CREDIT AGREEMENT among ORTHOFIX HOLDINGS, INC., as Borrower, and ORTHOFIX INTERNATIONAL N.V., COLGATE MEDICAL LIMITED, VICTORY MEDICAL LIMITED, SWIFTSURE MEDICAL LIMITED, ORTHOFIX UK LTD, AND THE DOMESTIC SUBSIDIARIES OF ORTHOFIX INTERNATIONAL N.V.,...
Exhibit
10.18
$375,000,000
among
ORTHOFIX
HOLDINGS, INC.,
as
Borrower,
and
ORTHOFIX
INTERNATIONAL N.V.,
COLGATE
MEDICAL LIMITED,
VICTORY
MEDICAL LIMITED,
SWIFTSURE
MEDICAL LIMITED,
ORTHOFIX
UK LTD,
AND THE
DOMESTIC SUBSIDIARIES OF ORTHOFIX INTERNATIONAL N.V.,
as
Guarantors,
THE
LENDERS PARTIES HERETO,
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
and
CITICORP
NORTH AMERICA, INC.,
as
Syndication Agent
Dated as
of September 22, 2006
WACHOVIA
CAPITAL MARKETS, LLC,
and
CITIGROUP
GLOBAL MARKETS INC.,
as Joint
Lead Arrangers and Joint Bookrunners
TABLE OF
CONTENTS
|
Page
|
||
|
ARTICLE
I DEFINITIONS
|
1
|
|
|
Section
1.1
|
Defined
Terms.
|
1
|
|
Section
1.2
|
Other
Definitional Provisions.
|
34
|
|
Section
1.3
|
Accounting
Terms.
|
34
|
|
ARTICLE
II THE LOANS; AMOUNT AND TERMS
|
35
|
|
|
Section
2.1
|
Revolving
Loans; Revolver Increase.
|
35
|
|
Section
2.2
|
Term
Loan Facility; Incremental Term Loan.
|
38
|
|
Section
2.3
|
Letter
of Credit Subfacility.
|
41
|
|
Section
2.4
|
Swingline
Loan Subfacility.
|
45
|
|
Section
2.5
|
Fees.
|
46
|
|
Section
2.6
|
Commitment
Reductions.
|
47
|
|
Section
2.7
|
Prepayments.
|
48
|
|
Section
2.8
|
Lending
Offices.
|
50
|
|
Section
2.9
|
Default
Rate and Payment Dates.
|
50
|
|
Section
2.10
|
Conversion
Options.
|
51
|
|
Section
2.11
|
Computation
of Interest and Fees.
|
51
|
|
Section
2.12
|
Pro
Rata Treatment and Payments.
|
52
|
|
Section
2.13
|
Non-Receipt
of Funds by the Administrative Agent.
|
54
|
|
Section
2.14
|
Inability
to Determine Interest Rate.
|
55
|
|
Section
2.15
|
Illegality.
|
56
|
|
Section
2.16
|
Requirements
of Law.
|
56
|
|
Section
2.17
|
Indemnity.
|
58
|
|
Section
2.18
|
Taxes.
|
59
|
|
Section
2.19
|
Indemnification;
Nature of Issuing Lender’s Duties.
|
61
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES
|
62
|
|
|
Section
3.1
|
Financial
Condition.
|
62
|
|
Section
3.2
|
No
Change.
|
63
|
|
Section
3.3
|
Corporate
Existence; Compliance with Law.
|
63
|
|
Section
3.4
|
Corporate
Power; Authorization; Enforceable Obligations.
|
65
|
|
Section
3.5
|
Status
Under Certain Statutes.
|
65
|
|
Section
3.6
|
Margin
Regulations.
|
65
|
|
Section
3.7
|
No
Legal Bar; No Default.
|
65
|
|
Section
3.8
|
No
Material Litigation.
|
66
|
|
Section
3.9
|
ERISA.
|
66
|
|
Section
3.10
|
Environmental
Matters.
|
67
|
|
Section
3.11
|
Use
of Proceeds.
|
68
|
|
Section
3.12
|
Subsidiaries.
|
68
|
|
Section
3.13
|
Ownership.
|
68
|
|
Section
3.14
|
Indebtedness.
|
69
|
|
Section
3.15
|
Taxes.
|
69
|
|
Section
3.16
|
Intellectual
Property.
|
69
|
|
Section
3.17
|
Solvency.
|
70
|
i
|
Section
3.18
|
Investments.
|
70
|
|
Section
3.19
|
Location
of Collateral.
|
70
|
|
Section
3.20
|
No
Burdensome Restrictions.
|
70
|
|
Section
3.21
|
Labor
Matters.
|
70
|
|
Section
3.22
|
Security
Documents.
|
70
|
|
Section
3.23
|
Accuracy
and Completeness of Information.
|
71
|
|
Section
3.24
|
Fraud
and Abuse.
|
71
|
|
Section
3.25
|
Licensing
and Accreditation.
|
72
|
|
Section
3.26
|
Other
Regulatory Protection.
|
72
|
|
Section
3.27
|
Reimbursement
from Third Party Payors.
|
72
|
|
Section
3.28
|
Other
Agreements.
|
73
|
|
Section
3.29
|
Material
Contracts.
|
73
|
|
Section
3.30
|
Insurance.
|
73
|
|
Section
3.31
|
Classification
as Senior Indebtedness.
|
73
|
|
Section
3.32
|
Tax
Shelter Regulations.
|
73
|
|
Section
3.33
|
Regulation
H.
|
74
|
|
Section
3.34
|
Anti-Terrorism
Laws.
|
74
|
|
Section
3.35
|
Compliance
with OFAC Rules and Regulations.
|
74
|
|
Section
3.36
|
Compliance
with FCPA.
|
74
|
|
ARTICLE
IV CONDITIONS PRECEDENT
|
75
|
|
|
Section
4.1
|
Conditions
to Closing Date and Initial Extensions of Credit.
|
75
|
|
Section
4.2
|
Conditions
to All Extensions of Credit.
|
80
|
|
ARTICLE
V AFFIRMATIVE COVENANTS
|
81
|
|
|
Section
5.1
|
Financial
Statements.
|
81
|
|
Section
5.2
|
Certificates;
Other Information.
|
82
|
|
Section
5.3
|
Payment
of Obligations.
|
83
|
|
Section
5.4
|
Conduct
of Business and Maintenance of Existence.
|
84
|
|
Section
5.5
|
Maintenance
of Property; Insurance.
|
84
|
|
Section
5.6
|
Inspection
of Property; Books and Records; Discussions.
|
85
|
|
Section
5.7
|
Notices.
|
85
|
|
Section
5.8
|
Environmental
Laws.
|
86
|
|
Section
5.9
|
Financial
Covenants.
|
87
|
|
Section
5.10
|
Additional
Subsidiary Guarantors.
|
88
|
|
Section
5.11
|
Compliance
with Law.
|
88
|
|
Section
5.12
|
Pledged
Assets.
|
89
|
|
Section
5.13
|
Limitations
on Colgate and Victory.
|
90
|
|
Section
5.14
|
Further
Assurances; Post-Closing Covenant.
|
90
|
|
ARTICLE
VI NEGATIVE COVENANTS
|
93
|
|
|
Section
6.1
|
Indebtedness.
|
93
|
|
Section
6.2
|
Liens.
|
95
|
|
Section
6.3
|
Nature
of Business.
|
95
|
|
Section
6.4
|
Consolidation,
Merger, Sale or Purchase of Assets, etc.
|
95
|
|
Section
6.5
|
Advances,
Investments and Loans.
|
97
|
|
Section
6.6
|
Transactions
with Affiliates.
|
97
|
|
Section
6.7
|
Ownership
of Subsidiaries; Restrictions.
|
97
|
ii
|
Section
6.8
|
Fiscal
Year; Organizational Documents; Material Contracts; Subordinated
Indebtedness Documents.
|
98
|
|
Section
6.9
|
Limitation
on Restricted Actions.
|
98
|
|
Section
6.10
|
Restricted
Payments.
|
99
|
|
Section
6.11
|
Sale
Leasebacks.
|
100
|
|
Section
6.12
|
No
Further Negative Pledges.
|
100
|
|
Section
6.13
|
Accounts.
|
100
|
|
ARTICLE
VII EVENTS OF DEFAULT
|
101
|
|
|
Section
7.1
|
Events
of Default.
|
101
|
|
Section
7.2
|
Acceleration;
Remedies.
|
104
|
|
ARTICLE
VIII THE AGENT
|
104
|
|
|
Section
8.1
|
Appointment.
|
104
|
|
Section
8.2
|
Delegation
of Duties.
|
105
|
|
Section
8.3
|
Exculpatory
Provisions.
|
105
|
|
Section
8.4
|
Reliance
by Administrative Agent.
|
105
|
|
Section
8.5
|
Notice
of Default.
|
106
|
|
Section
8.6
|
Non-Reliance
on Administrative Agent and Other Lenders.
|
106
|
|
Section
8.7
|
Indemnification.
|
107
|
|
Section
8.8
|
Administrative
Agent in Its Individual Capacity.
|
107
|
|
Section
8.9
|
Successor
Administrative Agent.
|
107
|
|
Section
8.10
|
Other
Agents.
|
108
|
|
Section
8.11
|
Releases.
|
108
|
|
ARTICLE
IX MISCELLANEOUS
|
109
|
|
|
Section
9.1
|
Amendments,
Waivers and Release of Collateral.
|
109
|
|
Section
9.2
|
Notices.
|
111
|
|
Section
9.3
|
No
Waiver; Cumulative Remedies.
|
112
|
|
Section
9.4
|
Survival
of Representations and Warranties.
|
112
|
|
Section
9.5
|
Payment
of Expenses and Taxes.
|
113
|
|
Section
9.6
|
Successors
and Assigns; Participations; Purchasing Lenders.
|
114
|
|
Section
9.7
|
Adjustments;
Set-off.
|
117
|
|
Section
9.8
|
Table
of Contents and Section Headings.
|
119
|
|
Section
9.9
|
Counterparts.
|
119
|
|
Section
9.10
|
Effectiveness.
|
119
|
|
Section
9.11
|
Severability.
|
119
|
|
Section
9.12
|
Integration.
|
119
|
|
Section
9.13
|
Governing
Law.
|
119
|
|
Section
9.14
|
Consent
to Jurisdiction and Service of Process.
|
120
|
|
Section
9.15
|
Confidentiality.
|
120
|
|
Section
9.16
|
Acknowledgments.
|
121
|
|
Section
9.17
|
Waivers
of Jury Trial.
|
121
|
|
Section
9.18
|
Patriot
Act Notice.
|
122
|
|
Section
9.19
|
Resolution
of Drafting Ambiguities.
|
122
|
|
Section
9.20
|
Judgment
Currency; Payments in Dollars.
|
122
|
|
Section
9.21
|
Arbitration.
|
122
|
iii
|
ARTICLE
X GUARANTY
|
124
|
|
|
Section
10.1
|
The
Guaranty.
|
124
|
|
Section
10.2
|
Bankruptcy.
|
125
|
|
Section
10.3
|
Nature
of Liability.
|
125
|
|
Section
10.4
|
Independent
Obligation.
|
125
|
|
Section
10.5
|
Authorization.
|
126
|
|
Section
10.6
|
Reliance.
|
126
|
|
Section
10.7
|
Waiver.
|
126
|
|
Section
10.8
|
Limitation
on Enforcement.
|
127
|
|
Section
10.9
|
Confirmation
of Payment.
|
128
|
iv
Schedules
|
Schedule
1.1-1
|
Account
Designation Letter
|
|
Schedule
1.1-3
|
Permitted
Liens
|
|
Schedule
2.1(b)(i)
|
Form
of Notice of Borrowing
|
|
Schedule
2.1(e)
|
Form
of Revolving Note
|
|
Schedule
2.2(d)
|
Form
of Term Note
|
|
Schedule
2.4(d)
|
Form
of Swingline Note
|
|
Schedule
2.10
|
Form
of Notice of Conversion/Extension
|
|
Schedule
2.18
|
Form
of Tax Exempt Certificate
|
|
Schedule
3.3
|
Qui
Tam Actions
|
|
Schedule
3.8
|
Litigation
|
|
Schedule
3.12
|
Subsidiaries
|
|
Schedule
3.16
|
Intellectual
Property
|
|
Schedule
3.19(a)
|
Location
of Real Property
|
|
Schedule
3.19(b)
|
Location
of Collateral
|
|
Schedule
3.19(c)
|
Chief
Executive Offices
|
|
Schedule
3.19(d)
|
Mortgaged
Properties
|
|
Schedule
3.21
|
Labor
Matters
|
|
Schedule
3.29
|
Material
Contracts
|
|
Schedule
3.30
|
Insurance
|
|
Schedule
4.1-1
|
Form
of Secretary’s Certificate
|
|
Schedule
4.1-2
|
Form
of Solvency Certificate
|
|
Schedule
4.1-3
|
Form
of Lender Consent
|
|
Schedule
5.10
|
Form
of Joinder Agreement
|
|
Schedule
6.1(b)
|
Indebtedness
|
|
Schedule
6.4(a)
|
Permitted
Asset Sales
|
|
Schedule
6.5
|
Investments
|
|
Schedule
6.13
|
Accounts
|
|
Schedule
9.6(c)
|
Form
of Assignment Agreement
|
v
CREDIT AGREEMENT, dated
as of September 22, 2006, among ORTHOFIX HOLDINGS,
INC., a
Delaware corporation (the “Borrower”),
ORTHOFIX INTERNATIONAL
N.V., a
Netherlands Antilles corporation (the “Company”),
COLGATE MEDICAL
LIMITED, a
company formed under the laws of England and Wales (“Colgate”),
VICTORY MEDICAL
LIMITED, a
company formed under the laws of England and Wales (“Victory”),
SWIFTSURE MEDICAL
LIMITED, a
company formed under the laws of England and Wales (“Swiftsure”),
ORTHOFIX UK LTD, a
company formed under the laws of England and Wales (“UK Ltd”), those
Domestic Subsidiaries of the Company identified as a “Guarantor” on the
signature pages hereto and such other Domestic Subsidiaries of the Company as
may from time to time become a party hereto (together with Swiftsure and UK Ltd,
each a “Subsidiary
Guarantor” and,
together with the Company, Colgate and Victory, the “Guarantors”), the
several banks and other financial institutions as may from time to time become
parties to this Agreement (collectively, the “Lenders”; and
individually, a “Lender”), and
WACHOVIA BANK, NATIONAL
ASSOCIATION, a
national banking association, as administrative agent for the Lenders hereunder
(in such capacity, the “Administrative
Agent”).
W I T N E S S E T H:
WHEREAS, the
Borrower has requested that the Lenders make loans and other financial
accommodations to the Borrower in the amount of up to $375,000,000, as more
particularly described herein; and
WHEREAS, the
Lenders have agreed to make such loans and other financial accommodations to the
Borrower on the terms and conditions contained herein.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
|
Section 1.1
|
Defined
Terms.
|
As used
in this Agreement, terms defined in the first paragraph of this Agreement have
the meanings therein indicated, and the following terms have the following
meanings:
“Account Designation
Letter” shall
mean the Account Designation Letter dated the Closing Date from the Borrower to
the Administrative Agent substantially in the form attached hereto as
Schedule
1.1-1.
“Acquired
Company” shall
mean Blackstone Medical, Inc., a Massachusetts corporation.
1
“Acquisition” shall
mean the merger of New Era Medical Corp., a Massachusetts corporation and a
direct wholly-owned Subsidiary of the Borrower, with and into the Acquired
Company, with the Acquired Company being the surviving company, pursuant to the
Acquisition Documents.
“Acquisition
Documents” shall
mean (a) the Agreement and Plan of Merger, dated as of August 4, 2006, among the
Company, the Borrower, New Era Medical Corp, a Massachusetts corporation and a
direct wholly-owned Subsidiary of the Borrower, the Acquired Company, the
principal shareholders of the Acquired Company and Xxxxxxx X. Xxxxx, III, as
equityholders’ representative and (b) all other agreements and documents
executed in connection with the Acquisition, each as amended or modified prior
to the Closing Date.
“Additional Credit
Party” shall
mean each Person that becomes a Guarantor by execution of a Joinder Agreement in
accordance with Section 5.10.
“Additional Revolving
Loan” shall
have the meaning set forth in Section 2.1.
“Additional Term
Loan” shall
have the meaning set forth in Section 2.2.
“Administrative
Agent” shall
have the meaning set forth in the first paragraph of this Agreement and any
successors in such capacity.
“Administrative Details
Form” shall
mean, with respect to any Lender, a document containing such Lender’s contact
information for purposes of notices provided under this Agreement and account
details for purposes of payments made to such Lender under this
Agreement.
“Affiliate” shall
mean as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be “controlled by” a
Person if such Person possesses, directly or indirectly, power either (a) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) to direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.
“Agent’s Fee
Letter” shall
mean the letter agreement dated July 27, 2006 addressed to the Borrower from
Wachovia and WCM, as amended, modified, restated or supplemented from time to
time in accordance with its terms.
“Agents” shall
mean a collective reference to Wachovia and Citigroup North America, Inc.
“Agreement” or
“Credit
Agreement” shall
mean this Credit Agreement, as amended, restated, modified or supplemented from
time to time in accordance with its terms.
2
“Alternate Base
Rate” shall
mean, for any day, a rate per annum equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: “Prime
Rate” shall
mean, at any time, the rate of interest per annum publicly announced from time
to time by Wachovia at its principal office in Charlotte, North Carolina as its
prime rate. Each change in the Prime Rate shall be effective as of the opening
of business on the day such change in the Prime Rate occurs. The parties hereto
acknowledge that the rate announced publicly by Wachovia as its Prime Rate is an
index or base rate and shall not necessarily be its lowest or best rate charged
to its customers or other banks; and “Federal Funds Effective
Rate” shall
mean, for any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published on the next
succeeding Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the opening of business on the date of such
change.
“Alternate Base Rate
Loans” shall
mean Loans that bear interest at an interest rate based on the Alternate Base
Rate.
“Applicable
Percentage” shall
mean, for any day, the rate per annum set forth below opposite the applicable
level then in effect, it being understood that the Applicable Percentage for
(a)
Revolving Loans that are Alternate Base Rate Loans shall be the percentage set
forth under the column “Alternate Base Rate Margin for Revolving Loans”,
(b)
Revolving Loans that are LIBOR Rate Loans shall be the percentage set forth
under the column “LIBOR Rate Margin for Revolving Loans and Letter of Credit
Fee”, (c) the
Letter of Credit Fee shall be the percentage set forth under the column “LIBOR
Rate Margin for Revolving Loans and Letter of Credit Fee”, (d) Term
Loans that are Alternate Base Rate Loans shall be the percentage set forth under
the column “Alternate Base Rate Margin for Term Loans”, (e) Term
Loans that are LIBOR Rate Loans shall be the percentage set forth under the
column “LIBOR Rate Margin for Term Loans”, and (f) the
Commitment Fee shall be the percentage set forth under the column “Commitment
Fee”:
3
|
Level
|
Leverage
Ratio
|
Alternate
Base Rate Margin for Revolving Loans
|
LIBOR
Rate Margin for Revolving Loans and Letter of Credit Fee
|
Alternate
Base Rate Margin for Term Loans
|
LIBOR
Rate Margin for Term Loans
|
Commitment
Fee
|
|
I
|
≥
4.00 to 1.0
|
1.25%
|
2.25%
|
0.75%
|
1.75%
|
0.500%
|
|
II
|
≥
3.25 to 1.0 but
<
4.00 to 1.0
|
1.00%
|
2.00%
|
0.75%
|
1.75%
|
0.375%
|
|
III
|
≥
2.50 to 1.0 but
<
3.25 to 1.0
|
0.75%
|
1.75%
|
0.75%
|
1.75%
|
0.375%
|
|
IV
|
≥
1.75 to 1.0 but
<
2.50 to 1.0
|
0.50%
|
1.50%
|
0.75%
|
1.75%
|
0.250%
|
|
V
|
<
1.75 to 1.0
|
0.25%
|
1.25%
|
0.75%
|
1.75%
|
0.250%
|
The
Applicable Percentage shall, in each case, be determined and adjusted quarterly
on the date five (5) Business Days after the date on which the Administrative
Agent has received from the Borrower the financial information and
certifications required to be delivered to the Administrative Agent and the
Lenders in accordance with the provisions of Sections 5.1(a), (b) and
(c) and Section 5.2(b) (each, an “Interest Determination
Date”). Such
Applicable Percentage shall be effective from such Interest Determination Date
until the next such Interest Determination Date. The initial Applicable
Percentages shall be based on Level II until the
first Interest Determination Date occurring after the delivery of the officer’s
compliance certificate pursuant to Section 5.2(b) for the quarter ended December
31, 2006. If the Borrower shall fail to provide the annual and quarterly
financial information and certifications in accordance with the provisions of
Sections 5.1(a), (b) and (c) and Section 5.2(b), the Applicable Percentage
from such Interest Determination Date shall, on the date five (5) Business Days
after the date by which the Borrower was so required to provide such financial
information and certifications to the Administrative Agent and the Lenders, be
based on Level I until such time as such information and certifications are
provided, whereupon the level shall be determined by the then current Leverage
Ratio.
“Approved
Fund” shall
mean any Fund that is administered, managed or underwritten by (a) a
Lender, (b) an
Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
“Arrangers” shall
mean Wachovia Capital Markets, LLC and Citigroup Global Markets Inc., as joint
lead arrangers and joint bookrunners, together with their successors and/or
assigns.
“Asset
Disposition” shall
mean the disposition of any or all of the assets (including, without limitation,
the disposition to any person that is not a Credit Party or a Subsidiary of
Capital Stock of a Subsidiary or any ownership interest in a joint venture) of
the Company or any of its Subsidiaries whether by sale, lease, transfer or
otherwise. The term “Asset Disposition” shall not include (i) the sale, lease,
transfer or other disposition of assets permitted by Section 6.4(a)(i), (ii),
(iii), (iv), (v) or (vi) hereof or (ii) any Equity Issuance, including any
equity issued upon exercise of employee stock options.
4
“Assignment
Agreement” shall
mean an Assignment Agreement entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 9.6), and
accepted by the Administrative Agent, in substantially the form of Schedule
9.6(c) or any
other form approved by the Administrative Agent.
“Bank
Products” shall
mean any one or more of the following types of services or facilities extended
to any of the Credit Parties and their Subsidiaries by an Agent or an Affiliate
thereof, to the extent not prohibited by the terms of this Agreement:
(a)
Automated Clearing House (ACH) transactions and other similar money transfer
services; (b) cash
management, including controlled disbursement and lockbox services;
(c)
establishing and maintaining deposit accounts; (d) credit
cards or stored value cards; and (e) other
similar or related bank products and services.
“Bankruptcy
Code” shall
mean the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.
“Borrower” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Borrowing
Date” shall
mean, in respect of any Loan, the date such Loan is made.
“Business” shall
have the meaning set forth in Section 3.10.
“Business
Day” shall
mean a day other than a Saturday, Sunday or other day on which commercial banks
in Charlotte, North Carolina or New York, New York are authorized or required by
law to close; provided,
however, that
when used in connection with a rate determination, borrowing or payment in
respect of a LIBOR Rate Loan, the term “Business Day” shall also exclude any day
on which banks in London, England are not open for dealings in Dollar deposits
in the London interbank market.
“Capital
Lease” shall
mean any lease of property, real or personal, the obligations with respect to
which are required to be capitalized on a balance sheet of the lessee in
accordance with GAAP.
“Capital Lease
Obligations” shall
mean the capitalized lease obligations relating to a Capital Lease determined in
accordance with GAAP.
“Capital
Stock” shall
mean (a) in the
case of a corporation, capital stock, (b) in the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (c) in the
case of a partnership, partnership interests (whether general or limited),
(d) in the
case of a limited liability company, membership interests and (e) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
5
“Cash
Equivalents” shall
mean (a)
securities issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition (“Government
Obligations”),
(b) U.S.
dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (i) any
United States commercial bank of recognized standing having capital and surplus
in excess of $250,000,000 or (ii) bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx’x is at least P-1 or the equivalent thereof
(any such bank being an “Approved
Bank”), in
each case with maturities of not more than 364 days from the date of
acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including a Lender) or a
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America, (e)
obligations of any state of the United States or any political subdivision
thereof for the payment of the principal and redemption price of and interest on
which there shall have been irrevocably deposited Government Obligations
maturing as to principal and interest at times and in amounts sufficient to
provide such payment, (f)
Investments, classified in accordance with GAAP as current assets of the
Borrower or its Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, as amended, that are administered by
financial institutions that have the highest rating obtainable from either
Moody’s or S&P, and the portfolios of which are limited solely to
Investments (i) in corporate obligations having a remaining maturity of less
than two years, issued by corporations having outstanding comparable obligations
that are rated in the two highest categories of Moody’s and S&P or no lower
than the two highest long term debt ratings categories of either Moody’s or
S&P or (ii) of the character, quality and maturity described in clauses
(a)-(e) of this definition and (g)
money
market funds compliant with Rule 2a-7 of the Exchange Act which
consist primarily of cash and cash equivalents set forth in clauses (a) through
(f) above.
“CHAMPUS” shall
mean the United States Department of Defense Civilian Health and Medical Program
of the United States.
“Change of
Control” shall
mean the occurrence of any of the following: (a) any
“person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) becomes the “beneficial owner” (as defined in Rule l3d-3 under the
Exchange Act) of more than 30% of then outstanding Voting Stock of the Company,
measured by voting power rather than the number of shares; (b)
Continuing Directors shall cease for any reason to constitute a majority of the
members of the board of directors of the Company then in office, (c) the
Company shall cease to own, directly or indirectly through wholly-owned
Subsidiaries, all of the outstanding Capital Stock of the Borrower or, except as
result of the dissolution of Colgate or Victory pursuant to Section
6.4(a)(viii), Colgate or Victory, (d) Victory
or any successor parent company of the Borrower resulting from the dissolution
of Victory pursuant to Section 6.4(a)(viii) shall cease to own directly all of
the outstanding Capital Stock of the Borrower or
(e) the
occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the documents evidencing or governing any Subordinated
Indebtedness.
6
“Closing
Date” shall
mean the date of this Agreement.
“CMS” shall
mean the Centers for Medicare and Medicaid Services and any successor
thereto.
“Code” shall
mean the Internal Revenue Code of 1986, as amended, modified, succeeded or
replaced from time to time.
“Colgate” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Collateral” shall
mean a collective reference to the collateral that is identified in, and at any
time will be covered by, the Security Documents and any other property or assets
of a Credit Party, whether tangible or intangible and whether real or personal,
that may from time to time secure the Credit Party Obligations.
“Commitment” shall
mean the Revolving Commitment, the LOC Commitment, the Swingline Commitment and
the Term Loan Commitment, individually or collectively, as
appropriate.
“Commitment
Fee” shall
have the meaning set forth in Section 2.5(a).
“Commitment
Percentage” shall
mean the Revolving Commitment Percentage and/or the Term Loan Commitment
Percentage, as appropriate.
“Commitment
Period” shall
mean the period from and including the Closing Date to but not including the
Revolver Maturity Date.
“Commonly Controlled
Entity” shall
mean an entity, whether or not incorporated, which is under common control with
the Borrower within the meaning of Section 4001(b)(1) of ERISA or is part of a
group which includes the Borrower and which is treated as a single employer
under Section 414(b) or 414(c) of the Code or, solely for purposes of Section
412 of the Code to the extent required by such section, Section 414(m) or 414(o)
of the Code.
“Company” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Consolidated Capital
Expenditures” shall
mean, for any applicable period of computation, the aggregate amount (whether
paid in cash or accrued as a liability) of all capital expenditures of the
Company and its Subsidiaries on a consolidated basis for such period, as
determined in accordance with GAAP; provided,
however,
Consolidated Capital Expenditures shall not include any such expenditures
(i) for
replacements and substitutions for capital assets or acquisitions of capital
assets, to the extent made with the proceeds of insurance in accordance with
Section 2.7(b)(ii) or (ii) for
replacements and substitutions for capital assets or acquisitions of capital
assets, to the extent made with proceeds from the sale, exchange or other
disposition of assets as permitted under Section 2.7(b)(iv) or Section
6.4(a)(iii).
7
“Consolidated
EBITDA” shall
mean, for any
applicable period of computation, the sum of (a)
Consolidated Net Income for such period, but excluding therefrom all
extraordinary items of income or loss, plus
(b) to the
extent deducted in determining Consolidated Net Income for such period, the sum
of (i) the
aggregate amount of depreciation and amortization charges for such period,
plus
(ii)
Consolidated Interest Expense for such period, plus
(iii) the
aggregate amount of all income taxes reflected on the consolidated statements of
income of the Company and its Subsidiaries for such period plus
(iv)
non-cash charges related to Hedging Agreements plus
(v)
non-cash expenses resulting from the grant of stock options to any director,
officer or employee of any Credit Party or any Subsidiary pursuant to a written
plan or agreement plus
(vi) fees
and expenses associated with Permitted Acquisitions to the extent such fees and
expenses do not exceed $8,000,000 during the term of this Agreement plus
(vii) other
non-cash charges (excluding non-cash charges relating to accounts receivable and
inventories) in an aggregate amount not to exceed $8,000,000 per year
plus
(viii) fees
and expenses associated with the Acquisition and the closing of this Credit
Agreement in an aggregate amount not to exceed $12,500,000 plus
(ix) certain
one-time termination costs incurred in
connection with the termination of the Medtronic Services Agreement in an
aggregate amount not to exceed $6,100,000 plus
(x)
non-cash charges with respect to the write-off of research and development
expenses and inventory step-ups related to the Acquisition and the purchase
accounting treatment thereof minus
(xi)
non-cash gains related to Hedging Agreements;
provided,
however,
notwithstanding the foregoing, for purposes of determining the portion of
Consolidated EBITDA attributable to the Acquired Company and its Subsidiaries
for the fiscal quarters ended December 31, 2005, March 31, 2006 and June 30,
2006, such amounts shall be $2,300,000, $2,300,000 and $2,800,000, respectively.
“Consolidated Interest
Expense” shall
mean, for any applicable period of computation, all interest expense of the
Company and its Subsidiaries on a consolidated basis for such period (including,
without limitation, the interest component under Capital Leases and any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product, but excluding interest income), as
determined in accordance with GAAP.
“Consolidated Net
Income” shall
mean, for any applicable period of computation, net income after taxes for such
period of the Company and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
“Consolidated Working
Capital” shall
mean, at any date, (a) the consolidated current assets of the Company and its
Subsidiaries as of such date (excluding cash and Permitted Investments and
current deferred tax assets) minus (b) the
consolidated current liabilities of the Company and its Subsidiaries as of such
date (excluding current liabilities in respect of Indebtedness and current
deferred tax liabilities). Consolidated Working Capital at any date may be a
positive or negative number. Consolidated Working Capital increases when it
becomes more positive or less negative and decreases when it becomes less
positive or more negative.
“Continuing
Directors” shall
mean, during any period of up to twenty-four (24) consecutive months commencing
after the Closing Date, individuals who at the beginning of such twenty-four
(24) month period were directors of the Company (together with any new director
whose (a)
election by the Company’s board of directors, (b)
nomination for election by the Company’s shareholders or board of directors or
(c)
appointment was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election, nomination for election or appointment was previously so
approved).
8
“Contractual
Obligation” shall
mean, as to any Person, any provision of any security issued by such Person or
of any contract, agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
“Copyright
Licenses” shall
mean any agreement, written or oral, naming the Borrower or any of its
Subsidiaries which are Credit Parties as licensor and granting any right under
any Copyright including, without limitation, any thereof referred to in
Schedule
3.16.
“Copyrights” shall
mean (a) all registered United States copyrights in all Works, now existing or
hereafter created or acquired, all registrations and recordings thereof, and all
applications in connection therewith (including, without limitation,
registrations, recordings and applications in the United States Copyright
Office), including, without limitation, any thereof referred to in Schedule
3.16, and (b)
all renewals thereof including, without limitation, any renewals referred to in
Schedule
3.16.
“Credit
Documents” shall
mean this Agreement, each of the Notes, any Joinder Agreement, the LOC
Documents, the Security Documents and all other agreements, documents,
certificates and instruments delivered to the Administrative Agent or any Lender
by any Credit Party in connection therewith (excluding, however, any Hedging
Agreement).
“Credit
Party” shall
mean any of the Borrower or the Guarantors.
“Credit Party
Obligations” shall
mean, without duplication, (a) all of
the obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Administrative Agent, whenever arising, under this Agreement,
the Notes or any of the other Credit Documents (including, but not limited to,
any interest accruing after the occurrence of a filing of a petition of
bankruptcy under the Bankruptcy Code with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code), and
(b) all
liabilities and obligations, whenever arising, owing from any Credit Party or
any of its Subsidiaries to any Hedging Agreement Provider arising under any
Secured Hedging Agreement permitted pursuant to
Section 6.1(f).
“Debt
Issuance” shall
mean the issuance of any Indebtedness for borrowed money by the Company or any
of its Subsidiaries (excluding, for purposes hereof, any Equity Issuance or any
Indebtedness of the Company and its Subsidiaries permitted to be incurred
pursuant to Section 6.1 (other than Section 6.1(h) (except to the extent
proceeds from such issuance are used to consummate a Permitted Acquisition if
permitted by such Section)).
“Default” shall
mean any event which would constitute an Event of Default, whether or not any
requirement for the giving of notice or the lapse of time, or both, or any other
condition with respect to such Event of Default, has been
satisfied.
9
“Defaulting
Lender” shall
mean, at any time, any Lender that, at such time (a) has failed to make a Loan
required pursuant to the term of this Credit Agreement or failed to fund a
Participation Interest in accordance with the terms hereof, (b) has failed to
pay to the Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Credit Agreement, or (c) has been deemed insolvent
or has become subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
“Deposit Account Control
Agreement” shall
mean an agreement, among a Credit Party, a depository institution, and the
Administrative Agent, which agreement is in a form reasonably acceptable to the
Administrative Agent and which provides the Administrative Agent with “control”
(as such term is used in Article 9 of the Uniform Commercial Code) over the
deposit account(s) described therein, as the same may be as amended, modified,
extended, restated, replaced, or supplemented from time to time.
“Dispute” shall
have the meaning set forth in Section 9.21.
“Dollars” and
“$” shall
mean dollars in lawful currency of the United States of America.
“Domestic Lending
Office” shall
mean, initially, the office of each Lender designated as such Lender’s Domestic
Lending Office in such Lender’s Administrative Details Form; and thereafter,
such other domestic office of such Lender as such Lender may from time to time
specify to the Administrative Agent and the Borrower as the office of such
Lender at which Alternate Base Rate Loans of such Lender are to be
made.
“Domestic
Subsidiary” shall
mean any Subsidiary that is organized and existing under the laws of the United
States or any state or commonwealth thereof or under the laws of the District of
Columbia (other than any Subsidiary domiciled in Puerto Rico).
“Eligible
Assignee” means
(a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other Person (other than a natural person) approved by (i) the Administrative
Agent, (ii) in the case of any assignment of a Revolving Commitment, the Issuing
Bank, and (iii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.
“Environmental
Laws” shall
mean any and all applicable foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law (including common law)
regulating, relating to or imposing liability or standards of conduct concerning
protection of human health as such relates to exposure to Materials of
Environmental Concern or the environment, as now or may at any time be in effect
during the term of this Agreement.
10
“Equity
Issuance” shall
mean any issuance by the Company or any of its Subsidiaries to any Person that
is not a Credit Party or a Subsidiary of (a) shares of its Capital Stock,
(b) any shares of its Capital Stock pursuant to the exercise of options or
warrants (excluding employee stock options), (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity or
(d) warrants or options which are exercisable for shares of its Capital
Stock. The term “Equity Issuance” shall not include any Asset Disposition, Debt
Issuance, stock options, restricted stock or stock appreciation rights issued by
the Company or any of its Subsidiaries under a long-term incentive or employee
benefit plan of the Company or any successor plan, any shares of Capital Stock
issued in connection with a stock split (whether pursuant to a stock split in
the form of a stock dividend or otherwise), or any Capital Stock or stock
options issued in connection with or relating to the Acquisition.
“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended, modified,
succeeded or replaced from time to time.
“Eurodollar Reserve
Percentage” shall
mean for any day, the percentage (expressed as a decimal and rounded upwards, if
necessary, to the next higher 1/100th of 1%) that is in effect for such day as
prescribed by the Federal Reserve Board (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of Eurocurrency liabilities, as
defined in Regulation D of such Board as in effect from time to time, or any
similar category of liabilities for a member bank of the Federal Reserve System
in New York City.
“Event of
Default” shall
mean any of the events specified in Section 7.1; provided,
however, with
respect to any such event, that any requirement for the giving of notice or the
lapse of time, or both, or any other condition with respect thereto, has been
satisfied.
“Excess Cash
Flow”
shall
mean, with respect to any fiscal year of the Company commencing with the
Company’s fiscal year ending December 31, 2007, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to (a)
Consolidated EBITDA for such period minus
(b)
Consolidated Capital Expenditures paid in cash for such period minus
(c) Scheduled
Funded Debt Payments made during such period minus
(d)
Consolidated Interest Expense paid in cash (excluding any Consolidated Interest
Expense associated with intercompany Indebtedness) for such period minus
(e) amounts
paid in respect of federal, state, local and foreign income taxes of the Company
and its Subsidiaries with respect to such period minus
(f)
increases in Consolidated Working Capital plus
(g)
decreases in Consolidated Working Capital minus
(h)
optional prepayments of Revolving Loans (to the extent accompanied by a
corresponding reduction of the Revolving Committed Amount) and the Term Loan
made pursuant to Section 2.7(a) minus
(i) except
to the extent financed with the proceeds from the incurrence of Indebtedness or
any Equity Issuance, the amount of any cash consideration paid in connection
with any Permitted Acquisition during such period.
“Exchange
Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Extension of
Credit” shall
mean, as to any Lender, the making of a Loan by such Lender or the issuance of,
or participation in, a Letter of Credit by such Lender.
“Federal Funds Effective
Rate” shall
have the meaning set forth in the definition of “Alternate Base
Rate”.
11
“Fee
Letters” shall
mean (a) the
Agent’s Fee Letter and (b) the
letter agreement dated July 27, 2006 addressed to the Borrower from Wachovia,
WCM and Citigroup Global Markets Inc.
“Fixed Charge Coverage
Ratio” shall
mean, with respect to the Company and its
Subsidiaries on a consolidated basis for the twelve-month period ending on the
last day of any fiscal quarter of the Company, the
ratio of (a)
Consolidated EBITDA for such period to (b) the
sum of Consolidated Interest Expense for such period plus
Scheduled Funded Debt Payments required to be made during such period
plus cash
taxes paid or payable during such period plus
Consolidated Capital Expenditures for such period plus
Restricted Payments made during such period. Notwithstanding the foregoing, for
purposes of calculating the Fixed Charge Coverage Ratio for the fiscal quarters
ending December 31, 2006, March 31, 2007 and June 30, 2007, the Fixed Charge
Coverage Ratio shall be determined by annualizing the Consolidated Interest
Expense and Scheduled Funded Debt Payments during such fiscal quarters such that
(i) for the calculation of the Fixed Charge Coverage Ratio as of December 31,
2006, the Consolidated Interest Expense and Scheduled Funded Debt Payments for
such fiscal quarter would be multiplied by four (4), (ii) for the
calculation of the Fixed Charge Coverage Ratio as of March 31, 2007, the
Consolidated Interest Expense and the Scheduled Funded Debt Payments for the two
fiscal quarter period then ending would be multiplied by two (2) and (iii)
for the calculation of the Fixed Charge Coverage Ratio as of June 30, 2007, the
Consolidated Interest Expense and the Scheduled Funded Debt Payments for the
three fiscal quarter period then ending would be multiplied by one and
one-third (1 1/3).
“Flood Hazard
Property” shall
have the meaning set forth in Section 5.14(d).
“Foreign
Subsidiary” shall
mean any Subsidiary that is not a Domestic Subsidiary, but shall not include
Victory, Colgate, Swiftsure or UK Ltd.
“Fund” means
any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“Funded
Debt” shall
mean, with
respect to any Person, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such Person
(other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person incurred, issued or assumed as the deferred purchase price of
property or services purchased by such Person (other than trade debt incurred in
the ordinary course of business and due within six months of the incurrence
thereof) that would appear as liabilities on a balance sheet of such Person,
including, without limitation, the reasonably anticipated liability relating to
any earnout obligations whether or not included on the balance sheet of such
Person, (e) the principal portion of all obligations of such Person under
Capital Leases, (f) all obligations of such Person under Hedging Agreements to
the extent required to be accounted for as a liability under GAAP, excluding any
portion thereof which would be accounted for as interest expense under GAAP, (g)
the maximum amount of all letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (h) all preferred Capital
Stock or other equity interests issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration, (i)
the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product, (j) all
Indebtedness of others of the type described in clauses (a) through (i) hereof
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed; provided that for
purposes of the amount of Indebtedness pursuant to this clause (j) shall equal
the lesser of (i) such Indebtedness, or (ii) the value of the property subject
to such Lien, (k) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person of the type described in clauses (a) through (i)
hereof, and (l) all Indebtedness of the type described in clauses (a) through
(i) hereof of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer; provided,
however, that
with respect to Funded Debt of the Company and its Subsidiaries, Funded Debt
shall not include (x) Subordinated Indebtedness among the Borrower and the
Guarantors to the extent such Indebtedness would be eliminated on a consolidated
basis or (y) any obligation of the Company to Medtronic in connection with the
termination of the Medtronic Services Agreement in an aggregate amount not to
exceed $6,100,000 during the term of this Agreement.
12
“GAAP” shall
mean generally accepted accounting principles in effect in the United States of
America applied on a consistent basis, subject,
however, in the
case of determination of compliance with the financial covenants set out in
Section 5.9, to the provisions of Section 1.3.
“German
Breg” shall
mean Breg Deutschland GmbH, a German company.
“German
Buyout” shall
mean the purchase by Orthofix GmbH of the remaining 48% ownership interest in
German Breg pursuant to that certain deferred purchase agreement, dated as of
February 17, 2006 by and among Orthofix GmbH, Xxxxxxx Xxxxxxx, Xxxxxx Hansjorg,
Xxxxxxxx Xxxxxx and Xxxxxx Xxxxx.
“Government
Acts” shall
have the meaning set forth in Section 2.19(a).
“Governmental
Authority” shall
mean any nation or government, any state or other political subdivision thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Guarantor” shall
mean the Company, Colgate, Victory and each
Subsidiary Guarantor.
“Guaranty” shall
mean the guaranty of the Guarantors set forth in Article X.
“Guaranty
Obligations” shall
mean, with respect to any Person, without duplication, any obligations of such
Person (other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent,
(a) to
purchase any such Indebtedness or any property constituting security therefore,
(b) to
advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (c) to
lease or purchase Property, securities or services primarily for the purpose of
assuring the holder of such Indebtedness, or (d) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is
made.
13
“Hedging Agreement
Provider” shall
mean any Person that enters into a Secured Hedging Agreement with a Credit Party
or any of its Subsidiaries that is permitted by Section 6.1(f) to the extent
such Person is a Lender, an Affiliate of a Lender or any other Person that was a
Lender (or an Affiliate of a Lender) at the time it entered into the Secured
Hedging Agreement but has ceased to be a Lender (or whose Affiliate has ceased
to be a Lender) under the Credit Agreement; provided, in the case of a Secured
Hedging Agreement with a Person who is no longer a Lender, such Person shall be
considered a Hedging Agreement Provider only through the stated maturity date
(without extension or renewal) of such Secured Hedging Agreement.
“Hedging
Agreements” shall
mean, with respect to any Person, any agreements entered into to protect such
Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar
agreements or similar arrangements between such Person and one or more
counterparties, any foreign currency exchange agreements, currency protection
agreements, commodity purchase or option agreements or other interest or
exchange rate or commodity price hedging agreements.
“Incremental Term
Facility” shall
have the meaning set forth in Section 2.2.
“Indebtedness” shall
mean, with
respect to any Person, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such Person
(other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence thereof)
that would appear as liabilities on a balance sheet of such Person, including,
without limitation, the reasonably anticipated liability relating to any earnout
obligations whether or not included on the balance sheet of such Person, (e) all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements, (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, provided that for purposes of the amount of
Indebtedness pursuant to this clause (j) shall equal the lesser of (i) such
Indebtedness, or (ii) the value of the property subject to such Lien, (g) all
Guaranty Obligations of such Person with respect to Indebtedness of another
Person, (h) the principal portion of all obligations of such Person under
Capital Leases plus any accrued interest thereon, (i) all obligations of such
Person under Hedging Agreements to the extent required to be accounted for as a
liability under GAAP, excluding any portion thereof which would be accounted for
as interest expense under GAAP, (j) the maximum amount of all letters of credit
issued or bankers’ acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock or other equity interest issued
by such Person and which by the terms thereof could be (at the request of the
holders thereof or otherwise) subject to mandatory sinking fund payments,
redemption or other acceleration, (l) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
plus any accrued interest thereon, and (m)
the Indebtedness of any partnership or unincorporated joint venture in which
such Person is a general partner or a joint venturer; provided,
however, that
with respect to Indebtedness of the Company, Indebtedness shall not include any
obligation of the Company to Medtronic in connection with the termination of the
Medtronic Services Agreement in an aggregate amount not to exceed $6,100,00
during the term of this Agreement.
14
“Insolvency” shall
mean, with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of such term as used in Section 4245 of
ERISA.
“Insolvent” shall
mean being in a condition of Insolvency.
“Intellectual
Property” shall
mean, collectively, all
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and
Trademark Licenses.
“Interest Determination
Date” shall
have the meaning assigned thereto in the definition of “Applicable
Percentage”.
“Interest Payment
Date” shall
mean (a) as to any Alternate Base Rate Loan or Swingline Loan, the last Business
Day of each March, June, September and December during the term of this
Agreement and on the applicable Maturity Date, (b) as to any LIBOR Rate Loan
having an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than
three months, (i) each
three month anniversary of the first day of such Interest Period and
(ii) the
last day of such Interest Period, and (d) as to any Loan which is the subject of
a mandatory prepayment required pursuant to Section 2.7(b) hereof, the date of
such prepayment.
“Interest
Period” shall
mean, subject to availability, with respect to any LIBOR Rate Loan,
(a) initially,
the period commencing on the Borrowing Date or conversion date, as the case may
be, with respect to such LIBOR Rate Loan and ending one, two, three, six, or
subject to the consent of all applicable Lenders, nine months thereafter, as
selected by the Borrower in the Notice of Borrowing or Notice of
Conversion/Extension given with respect thereto; and
15
(b) thereafter,
each period commencing on the last day of the immediately preceding Interest
Period applicable to such LIBOR Rate Loan and ending one, two, three, six, or,
subject to the consent of all applicable Lenders, nine months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three (3) Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that the
foregoing provisions are subject to the following:
(i) if any
Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any
Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar month for such
Interest Period;
(iii) if the
Borrower shall fail to give notice as provided above, the Borrower shall be
deemed to have selected an Alternate Base Rate Loan to replace the affected
LIBOR Rate Loan;
(iv) any
Interest Period in respect of any Loan that would otherwise extend beyond the
Maturity Date for such Loan shall end on such Maturity Date;
(v) with
regard to the Term Loan, no Interest Period shall extend beyond any principal
amortization payment date unless the portion of the Term Loan consisting of
Alternate Base Rate Loans together with the portion of the Term Loan consisting
of LIBOR Rate Loans with Interest Periods expiring prior to or concurrently with
the date such principal amortization payment date is due, is at least equal to
the amount of such principal amortization payment due on such date; and
(vi) no more
than six (6) LIBOR Rate Loans may be in effect at any time; provided that,
for purposes hereof, LIBOR Rate Loans with different Interest Periods shall be
considered as separate LIBOR Rate Loans, even if they shall begin on the same
date and have the same duration, although borrowings, extensions and conversions
may, in accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new LIBOR Rate Loan with a single
Interest Period.
16
“Internal Control
Event” shall
mean a material weakness in, or fraud that involves management or other
employees who have a significant role in, any Credit Party’s internal controls
over financial reporting, in each case as described in the Securities Laws, to
the extent such material weakness or fraud could reasonably be expected to cause
a Material Adverse Effect.
“Investment” shall
mean all investments made directly or indirectly in, to or from any Person,
whether in cash or by acquisition of shares of Capital Stock, property, assets,
indebtedness or other obligations or securities or by loan advance, capital
contribution or otherwise.
“Issuing
Lender” shall
mean Wachovia.
“Issuing Lender
Fees” shall
have the meaning set forth in Section 2.5(c).
“Joinder
Agreement” shall
mean a Joinder Agreement substantially in the form of Schedule
5.10,
executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10.
“Judgment
Currency” shall
have the meaning set forth in Section 9.20.
“Lender” shall
have the meaning set forth in the first paragraph of this Agreement and shall
include the Issuing Lender and the Swingline Lender.
“Lender Commitment
Letter” shall
mean, with respect to any Lender, the letter (or other correspondence) to such
Lender from the Administrative Agent notifying such Lender of its LOC
Commitment, Revolving Commitment Percentage and/or Term Loan Commitment
Percentage.
“Letters of
Credit” shall
mean any letter of credit issued by the Issuing Lender pursuant to the terms
hereof, as such Letters of Credit may be amended, modified, extended, renewed or
replaced from time to time.
“Letter of Credit
Fee” shall
have the meaning set forth in Section 2.5(b).
“Leverage
Ratio” shall
mean, with
respect to the Company and its Subsidiaries
on a consolidated basis for the twelve-month period ending on the last day of
any fiscal quarter of the Company, the
ratio of (a) Funded Debt of the Company and its Subsidiaries on a consolidated
basis on the last day of such period to (b) Consolidated EBITDA of the Company
and its Subsidiaries for such period.
17
“LIBOR” shall
mean, for any
LIBOR Rate Loan for any Interest Period therefore, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 A.M. (London
time) two (2) Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If for any reason such rate is
not available, the term “LIBOR” shall mean, for any LIBOR Rate Loan for any
Interest Period therefore, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London
time) two (2) Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided,
however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100 of 1%). If, for
any reason, neither of such rates is available, then “LIBOR” shall mean the rate
per annum at which, as determined by the Administrative Agent, Dollars in an
amount comparable to the Loans then requested are being offered to leading banks
at approximately 11:00 A.M. London time, two (2) Business Days prior to the
commencement of the applicable Interest Period for settlement in immediately
available funds by leading banks in the London interbank market for a period
equal to the Interest Period selected.
“LIBOR Lending
Office” shall
mean, initially, the office of each Lender designated as such Lender’s LIBOR
Lending Office in such Lender’s Administrative Details Form; and thereafter,
such other office of such Lender as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office of such Lender at which
the LIBOR Rate Loans of such Lender are to be made.
“LIBOR
Rate” shall
mean a rate per annum (rounded upwards, if necessary, to the next higher 1/100th
of 1%) determined by the Administrative Agent pursuant to the following
formula:
LIBOR
Rate =
LIBOR
1.00 -
Eurodollar Reserve Percentage
“LIBOR Rate
Loan” shall
mean Loans the rate of interest applicable to which is based on the LIBOR
Rate.
“Lien” shall
mean any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
“Loan” shall
mean a Revolving Loan, a Swingline Loan and/or a Term Loan, as
appropriate.
“LOC
Commitment” shall
mean the commitment of the Issuing Lender to issue Letters of Credit and, with
respect to each Revolving Lender, the commitment of such Revolving Lender to
purchase participation interests in the Letters of Credit up to the amount
identified as such Revolving Lender’s “LOC Commitment” on such Lender’s Lender
Commitment Letter or in the Register, as such amount may be modified in
connection with any assignment made in accordance with the provisions of Section
9.6(c) or reduced from time to time in accordance with the provisions
hereof.
18
“LOC Committed
Amount” shall
have the meaning set forth in Section 2.3(a).
“LOC
Documents” shall
mean, with respect to any Letter of Credit, such Letter of Credit, any
amendments thereto, any documents delivered in connection therewith, any
application therefore, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the
rights and obligations of the parties concerned or (b) any
collateral security for such obligations.
“LOC
Obligations” shall
mean, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus
(b) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
“Mandatory
Borrowing” shall
have the meaning set forth in Section 2.3(e) and Section 2.4(b)(ii),
as the context may require.
“Material Adverse
Effect” shall
mean a material adverse effect on (a) the business, operations, property,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower or the Borrower and the Guarantors taken
as a whole, to perform their obligations when such obligations are required to
be performed, under this Agreement, any of the Notes or any other Credit
Document or (c) the validity or enforceability of this Agreement, any of the
Notes or any of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
“Material
Contract” shall
mean any contract or other arrangement, whether written or oral, to which any
Credit Party is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could reasonably be expected to have a
Material Adverse Effect.
“Material
Property” shall
mean real and/or personal property of the Credit Parties with an aggregate fair
market value greater than or equal to $5,000,000.
“Materials of Environmental
Concern” shall
mean any gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
“Maturity
Date” shall
mean the Revolver Maturity Date and/or the Term Loan Maturity Date, as
applicable.
19
“Medicaid” shall
mean that entitlement program under Title XIX of the Social Security Act that
provides federal grants to states for medical assistance based on specific
eligibility criteria.
“Medicaid
Certification” shall
mean recognition by a state agency or other such entity administering a
particular state’s Medicaid program that a health care provider or supplier is
in compliance with all the conditions of participation set forth in the
appropriate state and federal Medicaid Regulations.
“Medicaid Provider
Agreement” shall
mean an agreement entered into between a state agency or
other such entity administering the Medicaid program and a health care provider
or supplier under which the health care provider or supplier agrees to provide
services for Medicaid patients in accordance with the terms of the agreement and
Medicaid Regulations.
“Medicaid
Regulations” shall
mean, collectively, (a) all
federal statutes (whether set forth in Title XIX of the Social Security Act or
elsewhere) affecting the medical assistance program established by Title XIX of
the Social Security Act and any statutes succeeding thereto; (b) all
applicable provisions of all federal rules, regulations, manuals and orders of
all Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (a) above and all federal administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (a) above; (c) all
state statutes and plans for medical assistance enacted in connection with the
statutes and provisions described in clauses (a) and (b) above; and
(d) all
applicable provisions of all rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the
statutes described in clause (c) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities having the
force of law promulgated pursuant to or in connection with the statutes
described in clause (b) above, in each case as may be amended, supplemented or
otherwise modified from time to time.
“Medical Reimbursement
Programs” shall
mean Medicare, Medicaid and TRICARE programs and any other healthcare program
operated by or financed in whole or in part by any foreign, federal, state or
local government and any other non-government funded third party payor
programs.
“Medicare
Certification” shall
mean recognition by CMS or an entity under contract with CMS that the health
care provider or supplier is in compliance with all of the conditions of
participation set forth in the Medicare Regulations.
“Medicare Provider
Agreement” means
an agreement entered into between CMS or other such entity administering the
Medicare program on behalf of CMS, and a health care provider or supplier under
which the health care provider or supplier agrees to provide services for
Medicare patients in accordance with the terms of the agreement and Medicare
Regulations.
20
“Medicare” shall
mean that government-sponsored entitlement program under Title XVIII of the
Social Security Act that provides for a health insurance system for eligible
elderly and disabled individuals.
“Medicare
Regulations” shall
mean, collectively, all Federal statutes (whether set forth in Title XVIII of
the Social Security Act or elsewhere) affecting the health insurance program for
the aged and disabled established by Title XVIII of the Social Security Act and
any statutes succeeding thereto; together with all applicable provisions of all
rules, regulations, manuals and orders and administrative, reimbursement and
other guidelines having the force of law of all Governmental Authorities
(including, without limitation, the United States Department of Health and Human
Services (“HHS”), CMS,
the OIG, or any person succeeding to the functions of any of the foregoing)
promulgated pursuant to or in connection with any of the foregoing having the
force of law, as each may be amended, supplemented or otherwise modified from
time to time.
“Medtronic” shall
mean Medtronic Sofamor Xxxxx USA, Inc., a Tennessee corporation.
“Medtronics Services
Agreement” shall
mean that certain Marketing Services Agreement, effective May 1, 2005 and
terminated August 10, 2006, between the Company and Medtronic.
“Moody’s” shall
mean Xxxxx’x Investors Service, Inc or any successor rating agency.
“Mortgage
Instruments” shall
mean any mortgage, deed of trust or deed to secure debt executed by a Credit
Party in favor of the Administrative Agent pursuant to the terms of Section
5.14(d), 5.10 or 5.12, as the same may be amended, modified, restated or
supplemented from time to time.
“Mortgage
Policy” shall
mean an ALTA mortgagee title insurance policy issued by the Title Insurance
Company in an amount (limited to 125% of the appraised value (if an appraisal is
available) or, if no appraisal is available, then 125% of the assessed
value) satisfactory
to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
“Mortgaged
Property” shall
mean any owned or leased real property of a Credit Party with respect to which
such Credit Party executes a Mortgage Instrument in favor of the Administrative
Agent.
“Multiemployer
Plan” shall
mean a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Cash
Proceeds” shall
mean the aggregate cash proceeds received by (a) the Company or any of its
Subsidiaries in respect of any Asset Disposition, Debt Issuance, Recovery Event
or sale, lease, transfer or other disposition pursuant to Section 6.4(a)(iii)(B)
and (b) the Company or any of the Company’s Subsidiaries in respect of any
Equity Issuance, in each case net of (i) direct costs paid or payable as a
result thereof (including, without limitation, reasonable legal, accounting and
investment banking fees, and sales commissions), (ii) taxes paid or payable as a
result thereof and (iii) with respect to Indebtedness incurred pursuant to
Section 6.1(h), the direct costs incurred prior to or within 7 days of the
issuance of such Indebtedness and paid or payable as a result of any call spread
or simultaneous purchase and sale of call options for the same number of shares
instituted with respect to such Indebtedness in an aggregate amount up to 15% of
the gross proceeds received by the Company and its Subsidiaries from such
Indebtedness; it being understood that “Net Cash Proceeds” shall include,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received by the Company or any of its Subsidiaries in
respect of such Asset Disposition, Equity Issuance, Debt Issuance, Recovery
Event or sale, lease, transfer or other disposition pursuant to Section
6.4(a)(iii)(B).
21
“Note” or
“Notes” shall
mean the Revolving Notes, the Swingline Note and/or the Term Notes,
collectively, separately or individually, as appropriate.
“Notice of
Borrowing” shall
have the meaning set forth in Section 2.1(b)(i).
“Notice of
Conversion/Extension” shall
have the meaning set forth in Section 2.10.
“Obligations” shall
mean, collectively, Loans and LOC Obligations.
“OFAC” shall
mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“OIG” shall
mean the Office of the Inspector General for the United States Department of
Health and Human Services.
“Participant” shall
have the meaning set forth in Section 9.6(b).
“Participation
Interest” shall
mean the purchase by a Revolving Lender of a participation interest in Letters
of Credit as provided in Section 2.3 and in Swingline Loans as provided in
Section 2.4.
“Patent
License” shall
mean any agreement, whether written or oral, providing for the grant by or to
the Borrower or any of its Subsidiaries which are Credit Parties of any right to
manufacture, use or sell any invention covered by a Patent, including, without
limitation, any thereof referred to in Schedule
3.16.
“Patents” shall
mean (a) all patents of the United States or any other country and all reissues
and extensions thereof, including, without limitation, any thereof referred to
in Schedule 3.16, and (b)
all applications for patents of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, including, without
limitation, any thereof referred to in Schedule
3.16.
“Patriot
Act” shall
have the meaning set forth in Section 9.18.
“PBGC” shall
mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA.
22
“Permitted
Acquisition” shall
mean any acquisition or any series of related acquisitions by any Credit Party
of the assets or a majority of the Voting Stock or equity interests of a Person
or any division, line of business or other business unit of such Person (such
Person or such division, line of business or other business unit of such Person
referred to herein as the “Target”), in
each case that is a type of business (or assets used in a type of business)
permitted to be engaged in by the Credit Parties pursuant to this Credit
Agreement, so long as (a) no
Default or Event of Default shall then exist or would exist after giving effect
thereto, (b) to the
extent required under this Agreement, the Administrative Agent, on behalf of the
Lenders, shall have received (or shall receive in connection with the closing of
such acquisition), a first priority perfected security interest in all property
with such exceptions as are consistent with Permitted Liens or otherwise
reasonably approved by the Administrative Agent (including, without limitation,
Capital Stock or equity interests) acquired with respect to the Target and the
Target, if a Person, shall have executed a Joinder Agreement, (c) such
acquisition is not a “hostile” acquisition and has been approved by the board of
directors and/or shareholders (or comparable persons or groups) of the
applicable Credit Party and the Target, (d) the
total consideration (including, without limitation, cash, assumed Indebtedness,
earnout payments and any other deferred payment but excluding the Capital Stock
of the applicable Credit Party) paid for the Target acquired in such acquisition
or series of related acquisitions shall not exceed $40,000,000 for any
individual acquisition (or series of related acquisitions) or $100,000,000 (of
which only $25,000,000 in the aggregate may be acquisitions or portions of
acquisitions involving assets situated outside the United States of America or
the Capital Stock of any Person organized outside the United States of America)
in the aggregate during the term of this Agreement, (e) to the
extent the total consideration of any Permitted Acquisition is in excess of
$15,000,000, the Target shall have earnings before interest, taxes, depreciation
and amortization in an amount greater than $0, determined on a Pro Forma Basis
for the period of twelve fiscal months most recently ended, (f) after
giving effect to such acquisition, there shall be at least $10,000,000 of
borrowing availability under the Revolving Committed Amount, (g) the
Administrative Agent shall have received a certificate from a Responsible
Officer of the Borrower certifying that, in the reasonable judgment of the
Credit Parties, the Credit Parties have conducted such financial, legal,
environmental and consulting due diligence with respect to the Target as a
substantially similarly situated prudent purchaser acquiring substantially
similar property and/or assets would customarily conduct, and (h) to the
extent the total consideration of any Permitted Acquisition is in excess of
$5,000,000 or the Borrower requests a Revolving Loan to fund such Permitted
Acquisition, the Borrower shall provide not less than fifteen (15) days prior to
the consummation of such Permitted Acquisition (i) a
reasonably detailed description of the material terms of such Permitted
Acquisition (including, without limitation, the purchase price and method and
structure of payment) and of each Target, (ii) to the extent available,
financial statements of the Target for the previous two years and year-to-date
financial statements of the Target, and (iii) a
certificate, in form and substance reasonably satisfactory to the Administrative
Agent, executed by a Responsible Officer of the Borrower (A) setting forth the
best good faith estimate of the total consideration (including, without
limitation, cash, Capital Stock, assumed Indebtedness, earnout payments and any
other deferred payment) to be paid for each Target, and (B) certifying that
such Permitted Acquisition complies with the requirements of this Credit
Agreement, and (C) certifying and demonstrating that after giving effect to such
Permitted Acquisition and any borrowings in connection therewith on a Pro Forma
Basis, the Company and its Subsidiaries will be in compliance with the financial
covenants set forth in Section 5.9.
23
“Permitted
Investments” shall
mean:
(a) cash and
Cash Equivalents;
(b) receivables
owing to the Borrower or any of its Subsidiaries or any receivables and advances
to suppliers, in each case if created, acquired or made in the ordinary course
of business and payable or dischargeable in accordance with customary trade
terms;
(c) Investments
(including, without limitation, the purchase or ownership of Capital Stock) by
any Credit Party in any other Credit Party (other than the Company) and
Subordinated Indebtedness owing by any Credit Party (other than the Company) to
any other Credit Party; provided that any
Investment or Subordinated Indebtedness made or issued by a Credit Party (other
than the Company) in or to Colgate or Victory shall be made or issued in
accordance with the Tax Structure Documents;
(d) loans and
advances to officers, directors, employees and Affiliates that are not Credit
Parties or their Subsidiaries in the ordinary course of business in an aggregate
amount not to exceed $500,000 at any time outstanding;
(e) Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(f) Investments
by any Foreign Subsidiary in any Credit Party or any other Foreign Subsidiary
and Investments by the Company in any Foreign Subsidiary;
(g) Investments,
acquisitions or transactions permitted under Section 6.4(b);
(h) Permitted
Acquisitions;
(i) Hedging
Agreements to the extent permitted pursuant to Section 6.1(f);
(j) Investments
set forth on Schedule
6.5;
(k) loans and
advances by Colgate and Victory to the Company to the extent that such loans and
advances would be permitted by Section 6.10(d), (f) or (i) if made as Restricted
Payments rather than loans and advances;
(l) Investments
in German Breg pursuant to the German Buyout in an aggregate amount not to
exceed $4,000,000;
24
(m) direct
costs referred to in clause (iii) of the definition of Net Cash Proceeds;
and
(n) additional
loan advances and/or Investments of a nature not contemplated by the foregoing
clauses hereof; provided that
such loans, advances and/or Investments made pursuant to this clause (n) shall
not exceed an aggregate amount of $5,000,000.
“Permitted
Liens” shall
mean:
(a) Liens
created by or otherwise existing, under or in connection with this Agreement or
the other Credit Documents in favor of the Administrative Agent and each other
Secured Party;
(b) Liens
securing purchase money Indebtedness and Capital Lease Obligations to the extent
permitted under Section 6.1(c), including Liens existing on any asset at the
time of acquisition pursuant to a Permitted Acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure the
purchase price); provided that
(i) any
such Lien attaches to such property concurrently with or within thirty (30)
days after the acquisition thereof and (ii) such
Lien attaches solely to the property so acquired in such
transaction;
(c) Liens for
taxes, assessments, charges or other governmental levies not yet due or as to
which the period of grace (not to exceed 60 days), if any, related thereto has
not expired or which are being contested in good faith by appropriate
proceedings; provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower or any of its Subsidiaries, as the case may be, in conformity with
GAAP;
(d) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of
more than sixty (60) days or which are being contested in good faith by
appropriate proceedings;
(e) pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements incurred in the ordinary
course of business;
(f)
deposits
to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business;
(g) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses; provided that
such extension, renewal or replacement Lien shall be limited to all or a part of
the property which secured the Lien so extended, renewed or
replaced;
25
(h) Liens in
favor of a Hedging Agreement Provider in connection with any Secured Hedging
Agreement, but only (i) to the
extent such Liens are on the Collateral and are shared ratably with the
Administrative Agent and (ii) if such
Hedging Agreement Provider, the Administrative Agent and the Lenders shall share
the proceeds of the Collateral subject to such Liens in accordance with the
terms of Section 2.12(b);
(i) Liens
existing on the Closing Date and set forth on Schedule
1.1-3;
provided that no such Lien shall at any time be extended to cover property or
assets other than the property or assets subject thereto on the Closing
Date;
(j) easements,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances shown on any
Mortgage Policy or not, in any material respect, impairing the use of the
encumbered Property for its intended purposes;
(k) Liens on
the assets of Foreign Subsidiaries securing Indebtedness of Foreign Subsidiaries
permitted by Section 6.1(e); and
(l) Liens on
equipment arising from precautionary UCC financing statements relating to the
lease of such equipment to the extent permitted by this Agreement.
“Person” shall
mean an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
“Plan” shall
mean, at any particular time, any employee benefit plan which is covered by
Title IV of ERISA and in respect of which any Credit Party or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5)
of ERISA.
“Pledge
Agreement” shall
mean the pledge agreement dated as of the Closing Date executed by the Credit
Parties in favor of the Administrative Agent, as amended, modified, restated or
supplemented from time to time in accordance with its terms and the terms
hereof.
“Prime
Rate” shall
have the meaning set forth in the definition of “Alternate Base
Rate”.
“Pro Forma
Basis” shall
mean, with
respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
twelve-month period ending as of the most recent month end
ending at least twenty (20) days preceding the date of such transaction.
“Properties” shall
have the meaning set forth in Section 3.10(a).
“Purchasing
Lenders” shall
have the meaning set forth in Section 9.6(c).
26
“Recovery
Event” shall
mean the receipt by the Company and its Subsidiaries of any
cash insurance proceeds or condemnation award payable by reason of theft, loss,
physical destruction or damage, taking or similar event with respect to any
Material Property.
“Register” shall
have the meaning set forth in Section 9.6(d).
“Reorganization” shall
mean, with respect to any Multiemployer Plan, the condition that such Plan is in
reorganization within the meaning of such term as used in Section 4241 of
ERISA.
“Related
Fund” shall
mean, with respect to any Lender, any fund or trust or entity that invests in
commercial bank loans in the ordinary course of business and is advised or
managed by (a) such
Lender, (b) an
Affiliate of such Lender, (c) any
other Lender or any Affiliate thereof or (d) the
same investment advisor as any Person described in clauses (a) -
(c).
“Reportable
Event” shall
mean any of the events set forth in Section 4043(c) of ERISA, other than those
events as to which the thirty-day notice period is waived under PBGC Reg.
§4043.
“Required
Lenders” shall
mean, at any time, Lenders holding in the aggregate a majority of (i) the
Commitments (and Participation Interests therein) or (ii) if the Commitments
have been terminated, the outstanding Loans and Participation Interests
(including the Participation Interests of the Issuing Lender in any Letters of
Credit and of the Swingline Lender in Swingline Loans); provided,
however, that if
any Lender shall be a Defaulting Lender at such time, then there shall be
excluded from the determination of Required Lenders, Obligations (including
Participation Interests) owing to such Defaulting Lender and such Defaulting
Lender’s Commitments, or after termination of the Commitments, the principal
balance of the Obligations owing to such Defaulting Lender.
“Requirement of
Law” shall
mean, as to any Person, the Certificate of Incorporation and By-laws or other
organizational or governing documents of such Person, and each law, treaty, rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Material Property or to which such Person or any of its Material Property is
subject.
“Responsible
Officer” shall
mean, as to (a) the Company, the President, the Chief Executive Officer, the
Chief Financial Officer and the Treasurer thereof or (b) any other Credit Party
or any Subsidiary thereof, the President, the Chief Executive Officer, the Chief
Financial Officer, the Treasurer and any other duly authorized director or
officer thereof.
27
“Restricted
Payments” shall
mean (a) any dividend or other distribution, direct or indirect, on account of
any shares of any class of Capital Stock of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of Capital Stock of any Credit Party or
any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of Capital Stock of any Credit Party
or any of its Subsidiaries, now or hereafter outstanding, (d) any payment with
respect to any earnout obligation, (e) any payment or prepayment of principal
of, premium, if any, or interest on, redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any Subordinated
Indebtedness or (f) the payment by any Credit Party or any of its Subsidiaries
of any management or consulting fee to any Person or of any salary, bonus or
other form of compensation to any Person who is directly or indirectly a
significant partner, shareholder, owner or executive officer of any such Person,
to the extent such fee, salary, bonus or other form of compensation is either
not included in the corporate overhead of any Credit Party or such Subsidiary
or, to the extent such salary, bonus or other form of compensation, is
reimbursed by the Company.
“Revolver
Increase” shall
have the meaning set forth in Section 2.1.
“Revolver Maturity
Date” shall
mean September 22, 2012.
“Revolving
Commitment” shall
mean, with respect to each Revolving Lender, the commitment of such Revolving
Lender to make Revolving Loans in an aggregate principal amount at any time
outstanding up to the amount identified as such Revolving Lender’s “Revolving
Commitment” on such Lender’s Lender Commitment Letter or in the Register, as
such amount may be modified in connection with any assignment made in accordance
with the provisions of Section 9.6(c) or increased (in accordance with Section
2.1(f)) or reduced from time to time in accordance with the provisions
hereof.
“Revolving Commitment
Percentage” shall
mean, for each Revolving Lender, the percentage identified as its “Revolving
Commitment Percentage” on such Lender’s Lender Commitment Letter or in the
Register, as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 9.6(c).
“Revolving Committed
Amount” shall
have the meaning set forth in Section 2.1.
“Revolving
Lender” shall
mean, as of any date of determination, each Lender with a Revolving Commitment
greater than $0.
“Revolving
Loans” shall
have the meaning set forth in Section 2.1.
“Revolving
Note” or
“Revolving
Notes” shall
mean the promissory notes of the Borrower in favor of each of the Revolving
Lenders evidencing the Revolving Loans provided pursuant to Section 2.1(e),
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented, extended, renewed or replaced from time to
time.
“S&P” shall
mean Standard & Poor’s Ratings Service, a division of The McGraw Hill
Companies, Inc. or any successor or rating agency.
28
“Sanctioned
Country” shall
mean a country subject to a sanctions program identified on the list maintained
by OFAC and available at xxxx://xxx.xxxxx.xxx/xxxxxxx/
eotffc/ofac/sanctions/index.html, or as
otherwise published from time to time.
“Sanctioned
Person” shall
mean (a) a
Person named on the list of “Specially Designated Nationals and Blocked Persons”
maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or as
otherwise published from time to time, or (b)
(i) an
agency of the government of a Sanctioned Country, (ii) an
organization controlled by a Sanctioned Country, or (iii) a
person resident in a Sanctioned Country, to the extent subject to a sanctions
program administered by OFAC.
“Xxxxxxxx-Xxxxx” shall
mean the Xxxxxxxx-Xxxxx Act of 2002.
“Scheduled Funded Debt
Payments” shall
mean, as of any date of determination for the Company and its Subsidiaries, the
sum of all scheduled payments of principal on Funded Debt for the applicable
period ending on the date of determination (including the principal component of
payments due on Capital Leases during the applicable period ending on the date
of determination).
“Secured Hedging
Agreement” shall
mean any Hedging Agreement between a Credit Party and a Hedging Agreement
Provider, or any agreement relating to Bank Products between a Credit Party and
an Agent or Affiliate thereof, as amended, modified, restated or supplemented
from time to time in accordance with its terms.
“Secured
Party” shall
mean each of the Administrative Agent, the Lenders and the Hedging Agreement
Providers, together with their respective successors and assigns.
“Securities Account Control
Agreement” shall
mean an agreement, among a Credit Party, a securities intermediary, and the
Administrative Agent, which agreement is or in a form reasonably acceptable to
the Administrative Agent and which provides the Administrative Agent with
“control” (as such term is used in Articles 8 and 9 of the Uniform Commercial
Code) over the securities account(s) described therein, as the same may be as
amended, modified, extended, restated, replaced, or supplemented from time to
time.
“Securities
Act” shall
mean the Securities Act of 1933, together with any amendment thereto or
replacement thereof and any rules or regulations promulgated
thereunder.
“Securities
Laws” shall
mean the Securities Act, the Exchange Act, Xxxxxxxx-Xxxxx and the applicable
accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the Public Company Accounting Oversight
Board, as each of the foregoing may be amended and in effect on any applicable
date hereunder.
“Security
Agreement” shall
mean the security agreement dated as of the Closing Date executed by the Credit
Parties in favor of the Administrative Agent, as amended, modified, restated or
supplemented from time to time in accordance with its terms and the terms
hereof.
29
“Security
Documents” shall
mean the Security Agreement, the Pledge Agreement, the UK Security Documents,
the Mortgage Instruments, and such other documents executed and delivered in
connection with the grant, attachment and perfection of the Administrative
Agent’s security interests and liens arising thereunder, including, without
limitation, UCC financing statements.
“Single Employer
Plan” shall
mean any Plan which is not a Multiemployer Plan.
“Social Security
Act” shall
mean the Social Security Act as set forth in Title 42 of the United States Code,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
References to sections of the Social Security Act shall be construed also to
refer to any successor sections.
“Solvent” shall
mean, with respect to any Person on any date (a) the fair saleable value of such
Person’s assets, measured on a going concern basis, exceeds all probable
liabilities of such Person, including contingent liabilities and those
liabilities to be incurred pursuant to this Credit Agreement, or (b) such
Person (i) does not have unreasonably small capital in relation to the
business in which it is or proposes to be engaged, (ii) has not incurred,
or believes that it will incur after giving effect to the transactions
contemplated by this Credit Agreement, debts beyond its ability to pay such
debts as they become due, (iii) has not suspended making payments on any of its
debts unless subject to a good faith dispute or (iv) by reason of actual or
anticipated financial difficulties, has not commenced negotiations with one or
more of its creditors in order to reschedule the payment of such
indebtedness.
“SRL” shall
mean Orthofix SRL/DMO, an Italian corporation.
“Subordinated
Indebtedness” shall
mean any Indebtedness incurred by any Credit Party that is (a) specifically
subordinated in right of payment and performance to the prior payment of the
Credit Party Obligations on terms reasonably acceptable to the Administrative
Agent and (b) evidenced by promissory notes, to the extent such Indebtedness is
owed to another Credit Party, which promissory notes shall be pledged to the
Administrative Agent as Collateral for the Credit Party
Obligations.
“Subsidiary” shall
mean (a) as to any Person other than the Company, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity are at
the time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person, and (b)
as to the Company, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interest the Company
owns at the time directly or indirectly through one or more intermediaries, or
both, of greater than 50%. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company.
30
“Subsidiary
Guarantor” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Survey” shall
mean any maps or plats of an as-built survey of the site of a Mortgaged
Property, which maps or plats and the surveys on which they are based shall be
sufficient to delete any standard printed survey exception contained in the
applicable title policy and be made in accordance with the Minimum Standard
Detail Requirements for Land Title Surveys jointly established and adopted by
the American Land Title Association and the American Congress on Surveying and
Mapping in 2005, and, without limiting the generality of the foregoing, there
shall be surveyed and shown on such maps, plats or surveys the following: (a)
the locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (b) the lines of
streets abutting the sites and width thereof; (c) all access and other easements
appurtenant to the sites necessary to use the sites; (d) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar
encumbrances affecting the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor; (e) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (f) if the site is described as being on a filed
map, a legend relating the survey to said map.
“Swiftsure” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Swingline
Commitment” shall
mean the commitment of the Swingline Lender to make Swingline Loans in an
aggregate principal amount at any time outstanding up to the Swingline Committed
Amount, and the commitment of the Revolving Lenders to purchase participation
interests in the Swingline Loans as provided in Section 2.4(b)(ii), as such
amounts may be reduced from time to time in accordance with the provisions
hereof.
“Swingline Committed
Amount” shall
have the meaning set forth in Section 2.4(a).
“Swingline
Lender” shall
mean Wachovia.
“Swingline
Loan” or
“Swingline
Loans” shall
have the meaning set forth in Section 2.4(a).
“Swingline
Note” shall
mean the promissory note of the Borrower in favor of the Swingline Lender
evidencing the Swingline Loans provided pursuant to Section 2.4(d), as such
promissory note may be amended, modified, supplemented, extended, renewed or
replaced from time to time.
“Target” shall
have the meaning set forth in the definition of “Permitted
Acquisition”.
31
“Tax Structure
Documents” shall
mean a collective reference to the following documents: (a) Offer
Letter dated December 30, 2003 from Colgate to UK Ltd, (b)
Amendment Agreement dated October 25, 2005 between Colgate and UK Ltd,
(c) Written
Notification of Termination and Offer of Amended Terms dated October 25, 2005
from Colgate to UK Ltd, (d)
Acknowledgment of Termination dated October 25, 2005 from UK Ltd to Colgate,
(e)
Promissory Note in the principal amount of $110,546,815 dated October 25, 2005
by UK Ltd for the benefit of Colgate, (f)
Debenture Receivable Sale and Purchase Agreement dated October 25, 2005 between
Colgate and Victory (“Receivable
Sale”),
(g)
1,999,999 ordinary shares of Victory issued to Colgate as consideration for
Receivable Sale, (h) Share
Subscription Agreement dated October 25, 2005 between the Borrower and
Swiftsure, (i)
Subscription Request Letter dated October 25, 2005 from Swiftsure to the
Borrower, (j)
Acknowledgment of Subscription Request Letter dated October 25, 2005 by the
Borrower to Swiftsure (“Subscription Request
Letter”),
(k) 999
ordinary shares of Swiftsure issued to the Borrower in connection with the
Subscription Request Letter, (l) Offer
Letter dated October 26, 2005 from Victory to Swiftsure, (m)
Guarantee dated October 26, 2005 by the Borrower for the benefit
of Victory, (n) Share
Sale and Purchase Agreement dated
October 26, 2005 between the Borrower and Swiftsure (“Share Sale and Purchase
Agreement”),
(o) Stock
Transfer Form dated October 26, 2005 relating to the Borrower’s sale of one
share of UK Ltd to Swiftsure (“Stock Transfer
Form”),
(p) one
ordinary share of UK Ltd issued to Swiftsure in connection with the Stock
Transfer Form, (q) one
ordinary shares of Swiftsure issued to the Borrower in connection with the Share
Sale and Purchase Agreement and (r) any
other agreement entered into to implement the terms and arrangements
contemplated by the foregoing documents that is reasonably acceptable to the
Administrative Agent.
“Taxes” shall
have the meaning set forth in Section 2.18.
“Term Loan” shall
have the meaning set forth in Section 2.2(a).
“Term Loan
Commitment” shall
mean, with respect to each Term Loan Lender, the commitment of such Term Loan
Lender to make its portion of the Term Loan in a principal amount equal to such
Term Loan Lender’s Term Loan Commitment Percentage of the Term Loan Committed
Amount (and for purposes of making determinations of Required Lenders hereunder
after the Closing Date, the principal amount outstanding on the Term
Loan).
“Term Loan Commitment
Percentage” shall
mean, for any Term Loan Lender, the percentage identified as its Term Loan
Commitment Percentage on such Lender’s Lender Commitment Letter, as such
percentage may be modified in connection with any Incremental Term Facility in
accordance with the provisions of Section 2.2(e) or any assignment made in
accordance with the provisions of Section 9.6(c).
“Term Loan Committed
Amount” shall
have the meaning set forth in Section 2.2(a).
“Term Loan
Lender” shall
mean, as of any date of determination, each Lender that holds a portion of the
outstanding Term Loan.
“Term Loan Maturity
Date” shall
mean September 22, 2013.
“Term Note” or “Term
Notes” shall
mean the promissory notes of the Borrower in favor of each of the Term Loan
Lenders evidencing the portion of the Term Loan provided pursuant to
Section 2.2(d), individually or collectively, as appropriate, as such
promissory notes may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time.
32
“Title Insurance
Company” shall
mean Chicago Title Insurance Company or any other title insurance company
approved by the Administrative Agent in its reasonable discretion.
“Trademark
License” shall
means any agreement, written or oral, providing for the grant by or to the
Borrower or any of its Subsidiaries which are Credit Parties of any right to use
any Trademark, including, without limitation, any thereof referred to in
Schedule
3.16.
“Trademarks” shall
mean (a) all trademarks, trade names, corporate names, company names, business
names, fictitious business names, trade dress and service marks, logos and other
source or business identifiers, and the goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any thereof
referred to in Schedule
3.16, and
(b) all renewals thereof, including, without limitation, any thereof
referred to in Schedule
3.16.
“Tranche” shall
mean the collective reference to LIBOR Rate Loans whose Interest Periods begin
and end on the same day. A Tranche may sometimes be referred to as a “LIBOR
Tranche”.
“Transfer Effective
Date” shall
have the meaning set forth in each Assignment Agreement.
“TRICARE” means
the United States Department of Defense healthcare program for service families
(including TRICARE Prime, TRICARE Extra and TRICARE Standard), and any successor
or predecessor thereof, including without limitation, CHAMPUS.
“Type” shall
mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR Rate
Loan, as the case may be.
“UK Ltd”
shall
have the meaning set forth in the first paragraph of this
Agreement.
“UK Security
Documents” shall
mean (a) that
certain pledge agreement dated as of the Closing Date executed by Colgate in
favor of the Administrative Agent with respect to the Capital Stock of Victory,
(b) that
certain pledge agreement dated as of the Closing Date executed by the Borrower
in favor of the Administrative Agent with respect to the Capital Stock of
Swiftsure, (c) that
certain pledge agreement dated as of the Closing Date executed by Swiftsure in
favor of the Administrative Agent with respect to the Capital Stock of UK Ltd,
(d) that
certain debenture dated as of the Closing Date executed by Colgate in favor of
the Administrative Agent, (e) that
certain debenture dated as of the Closing Date executed by Victory in favor of
the Administrative Agent, (f) that
certain debenture dated as of the Closing Date executed by Swiftsure in favor of
the Administrative Agent and (g) that
certain debenture dated as of the Closing Date executed by UK Ltd in favor of
the Administrative Agent, in each case as amended, modified, restated or
supplemented from time to time in accordance with its terms and the terms
hereof.
00
“X.X.” xx
“Xxxxxx
Xxxxxx” shall
mean the United States of America.
“Victory” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Voting
Stock” shall
mean, with respect to any Person, Capital Stock issued by such Person the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar functions) of
such Person, even though the right so to vote may be or have been suspended by
the happening of such a contingency.
“Wachovia” shall
mean Wachovia Bank, National Association, a national banking association,
together with its successors and/or assigns.
“WCM” shall
mean Wachovia Capital Markets, LLC.
“Works” shall
mean all works which are subject to copyright protection pursuant to
Title 17 of the United States Code.
|
Section 1.2
|
Other Definitional
Provisions.
|
(a) Unless
otherwise specified therein, all terms defined in this Agreement shall have such
defined meanings when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant hereto.
(b) The words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
|
Section 1.3
|
Accounting
Terms.
|
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Company delivered to the Lenders;
provided that, if
the Borrower notifies the Administrative Agent that it wishes to amend any
covenant in Section 5.9 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Section 5.9 for such purpose), then the
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
34
The
Borrower shall deliver to the Administrative Agent and each Lender at the same
time as the delivery of any annual or quarterly financial statements given in
accordance with the provisions of Section 5.1, (a) a
description in reasonable detail of any material change in the application of
accounting principles employed in the preparation of such financial statements
from those applied in the most recently preceding quarterly or annual financial
statements as to which no objection shall have been made in accordance with the
provisions above and (b) a
reasonable estimate of the effect on the financial statements on account of such
changes in application.
Notwithstanding
the above, the parties hereto acknowledge and agree that, for purposes of all
calculations made in determining compliance for any applicable period with the
financial covenants set forth in Section 5.9 (including without limitation for
purposes of the definition of “Pro Forma Basis” set forth in Section 1.1),
after consummation of any Permitted Acquisition, (i) income
statement items and other balance sheet items (whether positive or negative)
attributable to the Target acquired in such transaction shall be included in
such calculations to the extent relating to such applicable period, and
(ii)
Indebtedness of a Target that is retired in connection with a Permitted
Acquisition shall be excluded from such calculations and deemed to have been
retired as of the first day of such applicable period, in each
case in accordance with Regulation
S-X under the Securities Act, as amended, applicable to a Registration Statement
under such Act on Form S-1.
ARTICLE II
THE LOANS; AMOUNT AND
TERMS
|
Section 2.1
|
Revolving Loans;
Revolver Increase.
|
(a) Revolving
Commitment. During
the Commitment Period, subject to the terms and conditions hereof, each
Revolving Lender severally, but not jointly, agrees to make revolving credit
loans (“Revolving
Loans”) to the
Borrower from time to time in an aggregate principal amount of up to
FORTY-FIVE MILLION DOLLARS
($45,000,000) (as such
aggregate maximum amount may be reduced from time to time as provided in Section
2.6, the “Revolving Committed
Amount”) for
the purposes hereinafter set forth; provided,
however, that
(i) with regard to each Revolving Lender individually, the sum of such Revolving
Lender’s Revolving Commitment Percentage of outstanding Revolving Loans
plus such
Revolving Lender’s Revolving Commitment Percentage of outstanding Swingline
Loans plus such
Revolving Lender’s Revolving Commitment Percentage of outstanding LOC
Obligations shall not exceed such Revolving Lender’s Revolving Commitment and
(ii) with regard to the Revolving Lenders collectively, the sum of the
outstanding Revolving Loans plus
outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount.
Revolving Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or
a combination thereof, as the Borrower may request, and may be repaid or prepaid
and reborrowed in accordance with the provisions hereof; provided,
however,
Revolving Loans made on the Closing Date or on any of the three (3)
Business Days following the Closing Date may only consist of Alternate Base Rate
Loans. LIBOR Rate Loans shall be made by each Revolving Lender at its LIBOR
Lending Office and Alternate Base Rate Loans at its Domestic Lending
Office.
35
(b) Revolving Loan
Borrowings.
(i) Notice of
Borrowing. The
Borrower shall request a Revolving Loan borrowing by written notice (a
“Notice of
Borrowing”)
substantially in the form of the notice attached as Schedule
2.1(b)(i) (or
telephone notice promptly confirmed by delivery to the Administrative Agent of a
Notice of Borrowing by fax or other electronic notice with confirmed receipt
from the recipient) to the Administrative Agent not later than 12:00 Noon
(Charlotte, North Carolina time) on the Business Day of the requested borrowing
in the case of Alternate Base Rate Loans, and on the third Business Day prior to
the date of the requested borrowing in the case of LIBOR Rate Loans. Each such
request for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount to be borrowed on
such date, (D) whether the borrowing shall be comprised of Alternate Base Rate
Loans, LIBOR Rate Loans or a combination thereof, and (E) if LIBOR Rate Loans
are requested, the Interest Period(s) therefore. If the Borrower shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period in the
case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for
an Interest Period of one month, or (II) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for an Alternate Base Rate Loan
hereunder. The Administrative Agent shall give notice to each Revolving Lender
promptly upon receipt of each Notice of Borrowing, of the contents thereof and
each such Revolving Lender’s share thereof.
(ii) Minimum
Amounts. Each
Revolving Loan shall be in a minimum aggregate amount of $1,000,000 and in
integral multiples of $500,000 in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less).
(iii) Advances. Each
Revolving Lender will make its Revolving Commitment Percentage of each Revolving
Loan borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in Section 9.2, or
at such other office as the Administrative Agent may designate in writing, by
2:00 P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately available to
the Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent by crediting the account of the Borrower
designated in the Account Designation Letter (or as otherwise agreed by the
Borrower and the Administrative Agent) with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like funds
as received by the Administrative Agent.
36
(c) Repayment. The
principal amount of all Revolving Loans shall be due and payable in full on the
Revolver Maturity Date, unless accelerated sooner pursuant to
Section 7.2.
(d) Interest. Subject
to the provisions of Section 2.9, Revolving Loans shall bear interest as
follows:
(i) Alternate Base Rate
Loans. During
such periods as Revolving Loans shall be comprised of Alternate Base Rate Loans,
each such Alternate Base Rate Loan shall bear interest at a per annum rate equal
to the sum of the Alternate Base Rate plus the
Applicable Percentage; and
(ii) LIBOR Rate
Loans. During
such periods as Revolving Loans shall be comprised of LIBOR Rate Loans, each
such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of
the LIBOR Rate plus the
Applicable Percentage.
Interest
on Revolving Loans shall be payable in arrears on each Interest Payment
Date.
(e) Revolving Notes; Covenant to
Pay. Each
Revolving Lender’s Revolving Commitment shall be evidenced by a duly executed
promissory note of the Borrower to such Revolving Lender in substantially the
form of Schedule
2.1(e). The
Borrower covenants and agrees to pay the Revolving Loans in accordance with the
terms of this Agreement.
(f) Revolver
Increase. Subject
to the terms and conditions set forth herein, the Borrower shall have the right,
at any time and from time to time prior to the Revolver Maturity Date, to incur
additional Indebtedness under this Credit Agreement in the form of an increase
to the Revolving Committed Amount (each a “Revolver
Increase”) by an
aggregate amount of up to (a)
ONE HUNDRED TWENTY-FIVE MILLION
DOLLARS ($125,000,000) less
(b) the sum
of (i) the
aggregate amount of any prior Incremental Term Facility established pursuant to
Section 2.2(e) plus
(ii) the
aggregate amount of any prior Revolver Increases established pursuant to this
Section 2.1(f). The following terms and conditions shall apply to each Revolver
Increase: (i) the
loans made under any such Revolver Increase (each an “Additional Revolving
Loan”) shall
constitute Credit Party Obligations and will be secured and guaranteed with the
other Credit Party Obligations on a pari passu basis, (ii) the
proceeds of any Additional Revolving Loan will be used for the purposes set
forth in Section 3.11, (iii) the
Borrower shall execute a Revolving Note in favor of any new Lender or any
existing Lender requesting a Revolving Note whose Revolving Commitment is
created or increased, (iv) the
conditions to Extensions of Credit in Section 4.2 shall have been satisfied,
(v) the
Administrative Agent shall have received an opinion or opinions (including, if
reasonably requested by the Administrative Agent, local counsel opinions) of
counsel for the Credit Parties, addressed to the Administrative Agent and the
Lenders, in form and substance acceptable to the Administrative Agent,
(vi) any
such Revolver Increase shall be in a minimum principal amount of $15,000,000 or,
if less, the maximum remaining amount permitted pursuant to this Section 2.1(f),
(vii) if the
interest rate margin on any Revolver Increase would be more than the Applicable
Percentage for the existing Revolving Loans, the Applicable Percentage on the
existing Revolving Loans shall be increased such that the Applicable Percentage
on the existing Revolving Loans is equal to the interest rate margin on such
Revolver Increase, and (viii) the
Administrative Agent shall have received from the Borrower updated financial
projections for the remainder of the projection term set forth in Section 3.1(e)
and an officer’s certificate, in each case in form and substance reasonably
satisfactory to the Administrative Agent, demonstrating that, after giving
effect to any such Revolver Increase on a Pro Forma Basis, the Borrower will be
in compliance with the financial covenants set forth in Section 5.9 and no
Default or Event of Default shall exist. No existing Lender shall have any
obligation to provide all or any portion of the Revolver Increase. The
Administrative Agent is authorized to enter into, on behalf of the Lenders, any
amendment to this Credit Agreement or any other Credit Document as may be
necessary to incorporate the terms of any new Revolver Increase
therein.
37
|
Section 2.2
|
Term Loan Facility;
Incremental Term Loan.
|
(a) Term Loan. Subject
to the terms and conditions hereof and in reliance upon the representations and
warranties set forth herein, each Term Loan Lender severally agrees to make
available to the Borrower on the Closing Date, by transfer of funds as directed
by the Administrative Agent to the Borrower’s account set forth in the Account
Designation Letter, such Term Loan Lender’s Term Loan Commitment Percentage of a
term loan in Dollars (the “Term Loan”) in the
aggregate principal amount of THREE HUNDRED THIRTY MILLION DOLLARS
($330,000,000) (the
“Term Loan Committed
Amount”) for
the purposes hereinafter set forth. The Term Loan may consist of Alternate Base
Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may
request; provided that on
the Closing Date the Term Loan shall only consist of Alternate Base Rate Loans.
Amounts repaid or prepaid on the Term Loan may not be reborrowed.
(b) Repayment of Term
Loan. The
principal outstanding amount of the Term Loan as of the Closing Date shall be
repaid in twenty-eight (28) consecutive quarterly installments as follows,
unless accelerated sooner pursuant to Section 7.2:
|
Principal
Amortization
Payment
Date
|
Term Loan
Principal Amortization
Payment
|
|
December 31,
2006
|
$825,000
|
|
March 31,
2007
|
$825,000
|
|
June
30, 2007
|
$825,000
|
|
September
30, 2007
|
$825,000
|
|
December
31, 2007
|
$825,000
|
38
|
Principal
Amortization
Payment
Date
|
Term Loan
Principal Amortization
Payment
|
|
March 31,
2008
|
$825,000
|
|
June
30, 2008
|
$825,000
|
|
September
30, 2008
|
$825,000
|
|
December 31,
2008
|
$825,000
|
|
March 31,
2009
|
$825,000
|
|
June
30, 2009
|
$825,000
|
|
September
30, 2009
|
$825,000
|
|
December 31,
2009
|
$825,000
|
|
March 31,
2010
|
$825,000
|
|
June
30, 2010
|
$825,000
|
|
September
30, 2010
|
$825,000
|
|
December 31,
2010
|
$825,000
|
|
March 31,
2011
|
$825,000
|
|
June
30, 2011
|
$825,000
|
|
September
30, 2011
|
$825,000
|
|
December 31,
2011
|
$825,000
|
|
March 31,
2012
|
$825,000
|
|
June
30, 2012
|
$825,000
|
|
September
30, 2012
|
$825,000
|
|
December 31,
2012
|
$77,550,000
|
|
March
31, 2013
|
$77,550,000
|
|
June
30, 2013
|
$77,550,000
|
|
Term
Loan Maturity Date
|
The
remainder of the outstanding Term
Loan
|
(c) Interest on the Term
Loan. Subject
to the provisions of Section 2.9, the Term Loan shall bear interest as
follows:
(i) Alternate Base Rate
Loans. During
such periods as the Term Loan shall be comprised of Alternate Base Rate Loans,
each such Alternate Base Rate Loan shall bear interest at a per annum rate equal
to the sum of the Alternate Base Rate plus the
Applicable Percentage; and
39
(ii) LIBOR Rate
Loans. During
such periods as the Term Loan shall be comprised of LIBOR Rate Loans, each such
LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the
LIBOR Rate plus the
Applicable Percentage.
Interest
on the Term Loan shall be payable in arrears on each Interest Payment
Date.
(d) Term
Notes. Each
Term Loan Lender’s Term Loan Commitment Percentage of the Term Loan Committed
Amount shall be evidenced by a duly executed promissory note of the Borrower to
such Term Loan Lender in substantially the form of Schedule 2.2(d).
(e) Incremental Term
Loan. Subject
to the terms and conditions set forth herein, the Borrower shall have the right,
at any time and from time to time prior to the Term Loan Maturity Date, to incur
additional Indebtedness under this Credit Agreement in the form of a term loan
(each an “Incremental Term
Facility”) by an
aggregate amount of up to (a)
ONE HUNDRED TWENTY-FIVE MILLION
DOLLARS ($125,000,000) less
(b) the sum
of (i) the
aggregate amount of increases in the Revolving Committed Amount pursuant to any
Revolver Increase plus
(ii) the
aggregate amount of any prior Incremental Term Facilities established pursuant
to this Section 2.2(e). The following terms and conditions shall apply to each
Incremental Term Facility: (i) the
loans made under any such Incremental Term Facility (each an “Additional Term
Loan”) shall
constitute Credit Party Obligations and will be secured and guaranteed with the
other Credit Party Obligations on a pari passu basis, (ii) any
such Incremental Term Facility shall have a maturity date no sooner than, and a
weighted average life to maturity no shorter than, the Term Loan Maturity Date
and the weighted average life to maturity of the Term Loans at such time,
respectively, (iii) any
such Incremental Term Facility shall be entitled to the same voting rights as
the existing Term Loans and shall be entitled to receive proceeds of prepayments
on a pro rata basis with the existing Term Loans, (iv) any
such Incremental Term Facility shall be obtained from existing Lenders or from
other banks, financial institutions or investment funds, (v) any
such Incremental Term Facility shall be in a minimum principal amount of
$25,000,000 and
integral multiples of $1,000,000 in excess thereof, or, if less, the maximum
remaining amount permitted pursuant to this Section 2.2(e), (vi) the
proceeds of any Additional Term Loan will be used for the purposes set forth in
Section 3.11, (vii) the
Borrower shall execute a Term Note in favor of any new Lender or any existing
Lender requesting a Term Note whose Term Loan Committed Amount is created or
increased, (viii) the
conditions to Extensions of Credit in Section 4.2 shall have been satisfied,
(ix) the
Administrative Agent shall have received an opinion or opinions (including, if
reasonably requested by the Administrative Agent, local counsel opinions) of
counsel for the Credit Parties, addressed to the Administrative Agent and the
Lenders, in form and substance reasonably acceptable to the Administrative
Agent, (x) if the
interest rate margin on any Incremental Term Facility would be more than 0.25%
greater than the Applicable Percentage for the existing Term Loan, the
Applicable Percentage on the existing Term Loan shall be increased such that the
Applicable Percentage on the existing Term Loan is 0.25% lower than the interest
rate margin on the Incremental Term Facility, and (xi) the
Administrative Agent shall have received from the Borrower updated financial
projections for the remainder of the initial projection term set forth in
Section 3.1 and an officer’s certificate, in each case in form and substance
reasonably satisfactory to the Administrative Agent, demonstrating that, after
giving effect to any such Incremental Term Facility on a Pro Forma Basis, the
Borrower will be in compliance with the financial covenants set forth in Section
5.9 and no Default or Event of Default shall exist. No existing Lender shall
have any obligation to provide all or any portion of the Incremental Term
Facility. The Administrative Agent is authorized to enter into, on behalf of the
Lenders, any amendment to this Credit Agreement or any other Credit Document as
may be necessary to incorporate the terms of any new Incremental Term Facility
therein.
40
|
Section 2.3
|
Letter of Credit
Subfacility.
|
(a) Issuance. Subject
to the terms and conditions hereof and of the LOC Documents, if any, and any
other terms and conditions which the Issuing Lender may reasonably require,
during the Commitment Period the Issuing Lender shall issue, and the Revolving
Lenders shall participate in, Letters of Credit for the account of the Borrower
from time to time upon request in a form acceptable to the Issuing Lender;
provided,
however, that
(i) the aggregate amount of LOC Obligations shall not at any time exceed
SEVEN MILLION FIVE HUNDRED THOUSAND
DOLLARS ($7,500,000) (the
“LOC Committed
Amount”), (ii)
the sum of outstanding Revolving Loans plus
outstanding Swingline Loans plus
outstanding LOC Obligations shall not at any time exceed the Revolving Committed
Amount, (iii) all Letters of Credit shall be denominated in U.S. Dollars and
(iv) Letters of Credit shall be issued for lawful corporate purposes and may be
issued as standby letters of credit, including in connection with workers’
compensation and other insurance programs. Except as otherwise expressly agreed
upon by all the Revolving Lenders, no Letter of Credit shall have an original
expiry date more than twelve (12) months from the date of issuance; provided,
however, so long
as no Default or Event of Default has occurred and is continuing and subject to
the other terms and conditions to the issuance of Letters of Credit hereunder,
the expiry dates of Letters of Credit may be extended annually or periodically
from time to time at the request of the Borrower or by operation of the terms of
the applicable Letter of Credit to a date not more than twelve (12) months from
the date of extension; provided,
further, that no
Letter of Credit, as originally issued or as extended, shall have an expiry date
extending beyond the Revolver Maturity Date. Each Letter of Credit shall comply
with the related LOC Documents. The issuance and expiry date of each Letter of
Credit shall be a Business Day. Any Letters of Credit issued hereunder shall be
in a minimum original face amount of $100,000. Wachovia shall be the Issuing
Lender on all Letters of Credit issued on or after the Closing Date. In the
event and to the extent that the provisions of any LOC Document shall conflict
with this Agreement, the provisions of this Agreement shall govern. The Issuing
Lender shall make any Letter of Credit issued hereunder available to the
Borrower at its office referred to in Section 9.2 or as otherwise agreed with
the Borrower in connection with such issuance.
41
(b) Notice and
Reports. The
request for the issuance of a Letter of Credit shall be submitted to the Issuing
Lender at least five (5) Business Days prior to the requested date of issuance.
The Issuing Lender will promptly upon request of the Administrative Agent
provide to the Administrative Agent for dissemination to the Revolving Lenders a
detailed report specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may have occurred since
the date of any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date as well as any
payments or expirations which may have occurred.
(c) Participations. Each
Revolving Lender upon issuance of a Letter of Credit shall be deemed to have
purchased without recourse a risk participation from the Issuing Lender in such
Letter of Credit and the obligations arising thereunder and any collateral
relating thereto, in each case in an amount equal to its Revolving Commitment
Percentage of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefore and discharge when due,
its Revolving Commitment Percentage of the obligations arising under such Letter
of Credit. Without limiting the scope and nature of each Revolving Lender’s
participation in any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any LOC Document, each such
Revolving Lender shall pay to the Issuing Lender its Revolving Commitment
Percentage of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each Revolving Lender to
so reimburse the Issuing Lender shall be absolute and unconditional and shall
not be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
42
(d) Reimbursement. In the
event of any drawing under any Letter of Credit, the Issuing Lender will
promptly notify the Borrower and the Administrative Agent. The Borrower shall
reimburse the Issuing Lender on the day of drawing under any Letter of Credit
(with the proceeds of a Revolving Loan obtained hereunder or otherwise) in same
day funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Issuing Lender as provided herein, the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to the Alternate Base Rate plus the
Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans
plus two
percent (2%). Unless the Borrower shall promptly notify the Issuing Lender and
the Administrative Agent of its intent to otherwise reimburse the Issuing
Lender, the Borrower shall be deemed to have requested a Revolving Loan in the
amount of the drawing as provided in subsection (e) hereof, the proceeds of
which will be used to satisfy the reimbursement obligations. The Borrower’s
reimbursement obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of set-off, counterclaim or defense
to payment the Borrower may claim or have against the Issuing Lender, the
Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the other Revolving Lenders of the amount of any unreimbursed
drawing and each Revolving Lender shall promptly pay to the Administrative Agent
for the account of the Issuing Lender in Dollars and in immediately available
funds, the amount of such Revolving Lender’s Revolving Commitment Percentage of
such unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Revolving Lender from the Issuing Lender if such notice is
received at or before 2:00 P.M. (Charlotte, North Carolina time), otherwise such
payment shall be made at or before 12:00 Noon (Charlotte, North Carolina time)
on the next succeeding Business Day. If such Revolving Lender does not pay such
amount to the Issuing Lender in full upon such request, such Revolving Lender
shall, on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of such
drawing until such Revolving Lender pays such amount to the Issuing Lender in
full at a rate per annum equal to, if paid within two (2) Business Days of the
date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal
to the Alternate Base Rate. Each Revolving Lender’s obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this Agreement
or the Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the Credit Party Obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
43
(e) Repayment with Revolving
Loans. On any
day on which the Borrower shall have requested, or been deemed to have
requested, a Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Revolving Lenders that a Revolving
Loan has been requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans (each such borrowing, a “Mandatory
Borrowing”) shall
be immediately made (without giving effect to any termination of the Commitments
pursuant to Section 7.2) pro rata based on
each Revolving Lender’s respective Revolving Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant to Section
7.2) and the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each Revolving Lender hereby
irrevocably agrees to make such Revolving Loans immediately upon any such
request or deemed request on account of each Mandatory Borrowing in the amount
and in the manner specified in the preceding sentence and on the same such date
notwithstanding (i) the
amount of Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 4.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any reduction in
the Revolving Committed Amount after any such Letter of Credit may have been
drawn upon; provided,
however, that in
the event any such Mandatory Borrowing should be less than the minimum amount
for borrowings of Revolving Loans otherwise provided in Section 2.1(b)(ii), the
Borrower shall pay to the Administrative Agent for its own account an
administrative fee of $500. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code), then each such Revolving Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) its Participation Interests in the LOC Obligations;
provided,
further, that in
the event any Revolving Lender shall fail to fund its Participation Interest on
the day the Mandatory Borrowing would otherwise have occurred, then the amount
of such Revolving Lender’s unfunded Participation Interest therein shall bear
interest payable by such Revolving Lender to the Issuing Lender upon demand, at
the rate equal to, if paid within two (2) Business Days of such date, the
Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate
Base Rate.
(f) Modification,
Extension. The
issuance of any supplement, modification, amendment, renewal, or extension to
any Letter of Credit shall, for purposes hereof, be treated in all respects the
same as the issuance of a new Letter of Credit hereunder.
(g) ISP98 and
UCP. Unless
otherwise expressly agreed by the Issuing Lender and the Borrower, when a Letter
of Credit is issued, (i) the rules of the “International Standby Practices
1998,” published by the Institute of International Banking Law & Practice
(or such later version thereof as may be in effect at the time of issuance)
shall apply to each standby Letter of Credit, and (ii) the rules of The Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the “UCP”) at the
time of issuance, shall apply to each commercial Letter of Credit.
(h) Conflict with LOC
Documents. In the
event of any conflict between this Agreement and any LOC Document (including any
letter of credit application), this Agreement shall control.
(i) Designation of Subsidiaries
as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation Section 2.3(a), a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit is issued for the
account of a Subsidiary of the Borrower; provided that,
notwithstanding such statement, the Borrower shall be the actual account party
for all purposes of this Agreement for such Letter of Credit and such statement
shall not affect the Borrower’s reimbursement obligations hereunder with respect
to such Letter of Credit.
44
|
Section 2.4
|
Swingline Loan
Subfacility.
|
(a) Swingline
Commitment. During
the Commitment Period, subject to the terms and conditions hereof, the Swingline
Lender, in its individual capacity, agrees to make certain revolving credit
loans to the Borrower (each a “Swingline
Loan” and,
collectively, the “Swingline
Loans”) for
the purposes hereinafter set forth; provided,
however, (i) the
aggregate amount of Swingline Loans outstanding at any time shall not exceed
SEVEN MILLION FIVE HUNDRED THOUSAND
DOLLARS ($7,500,000) (the
“Swingline Committed
Amount”), and
(ii) the sum of the outstanding Revolving Loans plus
outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount.
Swingline Loans hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Swingline Loan
Borrowings.
(i) Notice of Borrowing and
Disbursement. The
Swingline Lender will make Swingline Loans available to the Borrower by
crediting the account of the Borrower designated in the Account Designation
Letter (or as otherwise agreed between the Borrower and the Administrative
Agent) on any Business Day upon request made by the Borrower through the
delivery of a Notice of Borrowing (with appropriate modifications) (or telephone
notice promptly confirmed by delivery to the Administrative Agent and the
Swingline Lender of a Notice of Borrowing by fax or other electronic notice with
confirmed receipt from the recipient) to the Administrative Agent and the
Swingline Lender not later than 2:00 P.M. (Charlotte, North Carolina time) on
such Business Day. Swingline Loan borrowings hereunder shall be made in minimum
amounts of $100,000 and in integral amounts of $100,000 in excess
thereof.
45
(ii) Repayment of Swingline
Loans. Each
Swingline Loan borrowing shall be due and payable on the Revolver Maturity Date.
The Swingline Lender may, at any time, in its sole discretion, by written notice
to the Borrower and the Administrative Agent, demand repayment of its Swingline
Loans by way of a Revolving Loan borrowing, in which case the Borrower shall be
deemed to have requested a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans in the amount of such Swingline Loans; provided,
however, that,
in the following circumstances, any such demand shall also be deemed to have
been given one Business Day prior to each of (A) the
Revolver Maturity Date, (B) the
occurrence of any Event of Default described in Section 7.1(e), (C) upon
acceleration of the Credit Party Obligations hereunder, whether on account of an
Event of Default described in Section 7.1(e) or any other Event of Default, and
(D) the
exercise of remedies in accordance with the provisions of Section 7.2 hereof
(each such Revolving Loan borrowing made on account of any such deemed request
therefore as provided herein being hereinafter referred to as “Mandatory
Borrowing”). Each
Revolving Lender hereby irrevocably agrees to make such Revolving Loans promptly
upon any such request or deemed request on account of each Mandatory Borrowing
in the amount and in the manner specified in the preceding sentence and on the
same such date notwithstanding
(I) the amount of Mandatory Borrowing may not comply with the minimum
amount for borrowings of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Section 4.2 are then satisfied,
(III) whether a Default or an Event of Default then exists, (IV) failure of any
such request or deemed request for Revolving Loans to be made by the time
otherwise required in Section 2.1(b)(i), (V) the date of such Mandatory
Borrowing, or (VI) any reduction in the Revolving Committed Amount or
termination of the Revolving Commitments immediately prior to such Mandatory
Borrowing or contemporaneously therewith. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code), then each Revolving Lender hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to cause
each such Revolving Lender to share in such Swingline Loans ratably based upon
its respective Revolving Commitment Percentage (determined before giving effect
to any termination of the Commitments pursuant to Section 7.2); provided that (x)
all interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
purchased, and (y) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing Revolving Lender shall be
required to pay to the Swingline Lender interest on the principal amount of such
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Borrowing, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base
Rate.
(c) Interest on Swingline
Loans. Subject
to the provisions of Section 2.9, Swingline Loans shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the
Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans.
Interest on Swingline Loans shall be payable in arrears on each Interest Payment
Date.
(d) Swingline Note; Covenant to
Pay. The
Swingline Loans may be evidenced, upon such Lender’s request, by a duly executed
promissory note of the Borrower to the Swingline Lender in the original amount
of the Swingline Committed Amount and substantially in the form of Schedule
2.4(d). The
Borrower covenants and agrees to pay the Swingline Loans in accordance with the
terms of this Agreement.
46
|
Section 2.5
|
Fees.
|
(a) Commitment
Fee. In
consideration of the Revolving Commitments, the Borrower agrees to pay to the
Administrative Agent for the ratable benefit of the Revolving Lenders a
commitment fee (the “Commitment
Fee”) in an
amount equal to the Applicable Percentage per annum on the average daily unused
amount of the Revolving Committed Amount. For purposes of computation of the
Commitment Fee, LOC Obligations shall be considered usage of the Revolving
Committed Amount but Swingline Loans shall not be considered usage of the
Revolving Committed Amount. The Commitment Fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter for the prior calendar
quarter then ending.
(b) Letter of Credit
Fees. In
consideration of the LOC Commitments, the Borrower agrees to pay to the Issuing
Lender a fee (the “Letter of Credit
Fee”) equal
to the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under each Letter of Credit from the date of issuance to
the date of expiration. In addition to such Letter of Credit Fee, the Issuing
Lender may charge, and retain for its own account without sharing by the other
Lenders, an additional facing fee of one-eighth of one percent (0.125%) per
annum on the average daily maximum amount available to be drawn under each such
Letter of Credit issued by it. The Issuing Lender shall promptly pay over to the
Administrative Agent for the ratable benefit of the Revolving Lenders (including
the Issuing Lender) the Letter of Credit Fee. The Letter of Credit Fee shall be
payable quarterly in arrears on the last Business Day of each calendar quarter
for the prior calendar quarter then ending.
(c) Issuing Lender
Fees. In
addition to the Letter of Credit Fees payable pursuant to subsection (b) hereof,
the Borrower shall pay to the Issuing Lender for its own account without sharing
by the other Lenders the reasonable and customary charges from time to time of
the Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit
(collectively, the “Issuing Lender
Fees”);
provided such
fees shall not be duplicative of any fees charged under any LOC
Document.
(d) Administrative
Fee. The
Borrower agrees to pay to the Administrative Agent the annual administrative fee
as described in the Agent’s Fee Letter.
|
Section 2.6
|
Commitment
Reductions.
|
(a) Voluntary
Reductions. The
Borrower shall have the right to terminate or permanently reduce the unused
portion of the Revolving Committed Amount at any time or from time to time upon
not less than five (5) Business Days’ prior notice to the Administrative
Agent (which shall notify the Revolving Lenders thereof as soon as practicable)
of each such termination or reduction, which notice shall specify the effective
date thereof and the amount of any such reduction which shall be in a minimum
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof, or, if
less, the remaining Revolving Committed Amount, and shall be irrevocable and
effective upon receipt by the Administrative Agent; provided that no
such reduction or termination shall be permitted if after giving effect thereto,
and to any prepayments of the Loans made on the effective date thereof, the sum
of the outstanding Revolving Loans plus
outstanding Swingline Loans plus
outstanding LOC Obligations would exceed the Revolving Committed
Amount.
47
(b) Swingline Committed
Amount. If the
Revolving Committed Amount is reduced, pursuant to Section 2.6(a) above, below
the then current Swingline Committed Amount, the Swingline Committed Amount
shall automatically be reduced by an amount such that the Swingline Committed
Amount equals the Revolving Committed Amount.
(c) Revolver Maturity
Date. The
Revolving Commitment, the Swingline Commitment and the LOC Commitment shall
automatically terminate on the Maturity Date.
|
Section 2.7
|
Prepayments.
|
(a) Optional
Prepayments. The
Borrower shall have the right to prepay Loans in whole or in part from time to
time; provided,
however, that
each partial prepayment of a Revolving Loan and the Term Loan shall be in a
minimum principal amount of $1,000,000 and integral multiples of $500,000 in
excess thereof, and each partial prepayment of a Swingline Loan shall be in a
minimum principal amount of $100,000 and integral multiples of $100,000 in
excess thereof. The Borrower shall give three (3) Business Days’
irrevocable notice in the case of LIBOR Rate Loans and one Business Day’s
irrevocable notice in the case of Alternate Base Rate Loans, to the
Administrative Agent (which shall notify the Lenders thereof as soon as
practicable). To the extent the Borrower elects to prepay the Term Loan
(including, if applicable, any Additional Term Loan), amounts prepaid under this
Section shall be applied to the next four (4) scheduled amortization payments
and then pro rata to the Term Loan and any Additional Term Loan, if applicable
(ratably to the remaining principal installments thereof), and then (after the
Term Loan and any Additional Term Loan, if applicable, has been paid in full) to
the Revolving Loans as the Borrower may elect. All prepayments under this
Section 2.7(a) shall be subject to Section 2.17, but otherwise without premium
or penalty. Interest on the principal amount prepaid shall be payable on the
next occurring Interest Payment Date that would have occurred had such loan not
been prepaid or, at the request of the Administrative Agent, interest on the
principal amount prepaid shall be payable on any date that a prepayment is made
hereunder through the date of prepayment.
(b) Mandatory
Prepayments.
(i) Revolving Committed
Amount. If at
any time after the Closing Date, the sum of the outstanding Revolving Loans
plus
outstanding Swingline Loans plus
outstanding LOC Obligations shall exceed the Revolving Committed Amount, the
Borrower immediately shall prepay the Loans and cash collateralize the
outstanding LOC Obligations in an amount sufficient to eliminate such excess
(such prepayment to be applied as set forth in clause (vi) below).
48
(ii) Asset
Dispositions. The
Borrower shall prepay the Loans and cash collateralize the outstanding LOC
Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds
derived from Asset Dispositions during any fiscal year in excess of $500,000
(such prepayment to be applied as set forth in clause (vi) below); provided,
however, that,
so long as no Default or Event of Default has occurred and is continuing, such
Net Cash Proceeds shall not be required to be so applied to the extent the
Borrower delivers to the Administrative Agent promptly following such Asset
Disposition a certificate stating that it or the Company or any Subsidiary
intends to use such Net Cash Proceeds to acquire like assets used in the
business of the Borrower and its Subsidiaries within 180 days of the receipt of
such Net Cash Proceeds, it being expressly agreed that any Net Cash Proceeds not
so reinvested shall be applied to prepay the Loans and cash collateralize the
outstanding LOC Obligations immediately thereafter (such prepayment to be
applied as set forth in clause (vi) below).
(iii) Issuances.
Immediately upon receipt by the Company or any of its Subsidiaries of proceeds
from (A) any Debt Issuance, the Borrower shall prepay the Loans and cash
collateralize the outstanding LOC Obligations in an aggregate amount equal to
100% of the Net Cash Proceeds of such Debt Issuance to the Lenders (such
prepayment to be applied as set forth in clause (vi) below) or (B) any Equity
Issuance, the Borrower shall prepay the Loans and cash collateralize the
outstanding LOC Obligations in an aggregate amount equal to 50% of the Net Cash
Proceeds of such Equity Issuance (such prepayment to be applied as set forth in
clause (vi) below);
provided,
however, if the
Leverage Ratio is less than or equal to 1.75 to 1.00 as of the end of the
preceding fiscal year of the Company, then the Borrower shall not be required to
prepay the Loans or cash collateralize the outstanding LOC Obligations with the
proceeds of any Debt Issuance or any Equity Issuance.
(iv) Recovery
Event. To the
extent of Net Cash Proceeds received in connection with a Recovery Event that
are not applied in accordance with Section 6.4(a)(iii), immediately following
the expiration of the period allowed for reinvesting of such Net Cash Proceeds
pursuant to Section 6.4(a)(iii), the Borrower shall prepay the Loans and cash
collateralize the outstanding LOC Obligations in an aggregate amount equal to
100% of such Net Cash Proceeds (such prepayment to be applied as set forth in
clause (vi) below).
(v) Excess Cash
Flow. Within
ninety (90) days after the end of each fiscal year of the Company
(commencing with the fiscal year ending December 31, 2007), the Borrower shall
prepay the Loans and cash
collateralize the outstanding LOC Obligations in an
amount equal to 50% of the Excess Cash Flow earned during such prior fiscal year
(such prepayments to be applied as set forth in clause (vi) below); provided,
however, if the
Leverage Ratio is less than or equal to 1.75 to 1.00 as of the end of the
preceding fiscal year of the Company, then the Borrower shall not be required to
prepay the Loans or cash collateralize the outstanding LOC Obligations with
Excess Cash Flow.
49
(vi) Application of Mandatory
Prepayments. All
amounts required to be paid pursuant to this Section 2.7(b) shall be applied as
follows: (A) with respect to all amounts prepaid pursuant to Section 2.7(b)(i),
(1) first, to the
outstanding Swingline Loans, (2) second, to the
outstanding Revolving Loans and (3) third (after
all Revolving Loans have been repaid), to a cash collateral account in respect
of outstanding LOC Obligations, and (B) with respect to all amounts prepaid
pursuant to Sections 2.7(b)(ii) through (v), (1) first, to the
next four (4) scheduled amortization payments of the Term Loan (including,
if applicable, any Additional Term Loan) and then pro rata to the Term Loan and
any Additional Term Loan, if applicable (ratably to the remaining principal
installments thereof), (2) second to the
Swingline Loans (without a corresponding reduction in the Revolving Committed
Amount), (3) third, to the
Revolving Loans (without a corresponding reduction in the Revolving Committed
Amount) and (4) fourth (after
all Revolving Loans have been repaid), to a cash collateral account in respect
of outstanding LOC Obligations. Within the parameters of the applications set
forth above, prepayments shall be applied first to Alternate Base Rate Loans and
then to LIBOR Rate Loans in direct order of Interest Period maturities. Each
Lender shall receive its pro rata share (except with respect to prepayments of
Swingline Loans) of any such prepayment based on its Revolving Commitment
Percentage or Term Loan Commitment Percentage, as applicable. All prepayments
under this Section 2.7(b) shall be subject to Section 2.17 and be
accompanied by interest on the principal amount prepaid through the date of
prepayment.
(c) Hedging Obligations
Unaffected. Any
repayment or prepayment made pursuant to this Section 2.7 shall not affect the
Borrower’s obligation to continue to make payments under any Secured Hedging
Agreement, which shall remain in full force and effect notwithstanding such
repayment or prepayment, subject to the terms of such Secured Hedging
Agreement.
|
Section 2.8
|
Lending
Offices.
|
LIBOR
Rate Loans shall be made by each Lender at its LIBOR Lending Office and
Alternate Base Rate Loans at its Domestic Lending Office.
|
Section 2.9
|
Default Rate and
Payment Dates.
|
Upon the
occurrence, and during the continuance, of an Event of Default, the principal of
and, to the extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall, at the discretion of
the Required Lenders, bear interest, payable on demand, at a per annum rate 2%
greater than the rate which would otherwise be applicable (or if no rate is
applicable, whether in respect of interest, fees or other amounts, then the
Alternate Base Rate plus the
Applicable Percentage with respect to Alternate Base Rate Loans plus
2%).
50
|
Section 2.10
|
Conversion
Options.
|
(a) The
Borrower may, in the case of Revolving Loans and Term Loans, elect from time to
time to convert Alternate Base Rate Loans to LIBOR Rate Loans, by giving the
Administrative Agent at least three (3) Business Days’ prior irrevocable
written notice of such election substantially in the form of the notice attached
as Schedule
2.10 (the
“Notice of
Conversion/Extension”). If
the date upon which an Alternate Base Rate Loan is to be converted to a LIBOR
Rate Loan is not a Business Day, then such conversion shall be made on the next
succeeding Business Day and during the period from such last day of an Interest
Period to such succeeding Business Day such Loan shall bear interest as if it
were an Alternate Base Rate Loan. All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein; provided that (i)
no Loan may be converted into a LIBOR Rate Loan when any Default or Event of
Default has occurred and is continuing and (ii) partial conversions shall be in
an aggregate principal amount of (A) in the
case of Revolving Loans, $1,000,000 or a whole multiple of $500,000 in excess
thereof and (B) in the
case of the Term Loan, $2,000,000 or a whole multiple of $1,000,000 in excess
thereof.
(b) Any LIBOR
Rate Loans may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice provisions
contained in Section 2.10(a); provided, that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, in which case such Loan shall be automatically
converted to an Alternate Base Rate Loan at the end of the applicable Interest
Period with respect thereto. If the Borrower shall fail to give timely notice of
an election to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate
Loans is not permitted hereunder, such LIBOR Rate Loans shall be automatically
converted to Alternate Base Rate Loans at the end of the applicable Interest
Period with respect thereto.
|
Section 2.11
|
Computation of
Interest and Fees.
|
(a) Interest
payable hereunder with respect to Alternate Base Rate Loans based on the Prime
Rate shall be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. All other fees, interest and all other
amounts payable hereunder shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of a LIBOR Rate on the
Business Day of the determination thereof. Any change in the interest rate on a
Loan resulting from a change in the Alternate Base Rate shall become effective
as of the opening of business on the day on which such change in the Alternate
Base Rate shall become effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative Agent shall, at
the request of the Borrower, deliver to the Borrower a statement showing the
computations used by the Administrative Agent in determining any interest
rate.
51
(c) It is the
intent of the Lenders and the Credit Parties to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All
agreements between the Lenders and the Credit Parties are hereby limited by the
provisions of this subsection which shall override and control all such
agreements, whether now existing or hereafter arising and whether written or
oral. In no way, nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any Credit Party Obligation),
shall the interest taken, reserved, contracted for, charged, or received under
this Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible construction of
any of the Credit Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any such construction shall
be subject to the provisions of this paragraph and such interest shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum nonusurious amount, an
amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing on
the Loans and not to the payment of interest, or refunded to the Borrower or the
other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to demand
payment of the Loans or any other Indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has not
otherwise accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the Loans
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or
extension) of the Loans so that the amount of interest on account of such
Indebtedness does not exceed the maximum nonusurious amount permitted by
applicable law.
|
Section 2.12
|
Pro Rata Treatment and
Payments.
|
(a) Each
borrowing of Revolving Loans and any reduction of the Revolving Commitments
shall be made pro rata
according to the respective Revolving Commitment Percentages of the Revolving
Lenders. Each payment under this Agreement or any Note shall be applied, first,
to any fees then due and owing by the Borrower pursuant to Section 2.5, second,
to interest then due and owing in respect of the Notes of the Borrower and,
third, to principal then due and owing hereunder and under the Notes of the
Borrower. Each payment on account of any fees pursuant to Section 2.5 shall be
made pro rata in
accordance with the respective amounts due and owing (except as to the portion
of the Letter of Credit retained by the Issuing Lender and the Issuing Lender
Fees). Each payment (other than prepayments) by the Borrower on account of
principal of and interest on the Revolving Loans and the Term Loan shall be made
pro rata
according to the respective amounts due and owing in accordance with Section 2.7
hereof. Each optional prepayment on account of principal of the Loans shall be
applied in accordance with Section 2.7(a) and each mandatory prepayment on
account of principal of the Loans shall be applied in accordance with Section
2.7(b). All payments (including prepayments) to be made by the Borrower on
account of principal, interest and fees shall be made without defense, set-off
or counterclaim (except as provided in Section 2.18(b)) and shall be made
to the Administrative Agent for the account of the Lenders at the Administrative
Agent’s office specified in Section 9.2 in Dollars and in immediately available
funds not later than 1:00 P.M. (Charlotte, North Carolina time) on the date when
due. The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a LIBOR Rate Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
52
(b) Allocation of Payments After
Exercise of Remedies.
Notwithstanding any other provision of this Credit Agreement to the contrary,
upon the exercise of remedies by the Administrative Agent or the Lenders
pursuant to Section 7.2 (or after the Commitments shall automatically terminate
and the Loans and all other amounts under the Credit Documents shall
automatically become due and payable in accordance with the terms of such
Section), all amounts collected or received by the Administrative Agent or any
Lender on account of the Credit Party Obligations or any other amounts
outstanding under any of the Credit Documents or in respect of the Collateral
shall be paid over or delivered as follows:
FIRST, to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Administrative Agent in
connection with enforcing the rights of the Lenders under the Credit Documents
and any protective advances made by the Administrative Agent with respect to the
Collateral under or pursuant to the terms of the Collateral
Documents;
SECOND,
to payment of any fees owed to the Administrative Agent;
THIRD, to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation, reasonable attorneys’ fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or otherwise
with respect to the Credit Party Obligations owing to such Lender;
53
FOURTH,
to the payment of all of the Credit Party Obligations consisting of accrued fees
and interest, including with respect to any Secured Hedging Agreement, any fees,
premiums and scheduled periodic payments due under such Secured Hedging
Agreement and any interest accrued thereon;
FIFTH, to
the payment of the outstanding principal amount of the Credit Party Obligations
and the payment or cash collateralization of the outstanding LOC Obligations,
and including with respect to any Secured Hedging Agreement, any breakage,
termination or other payments due under such Secured Hedging Agreement and any
interest accrued thereon;
SIXTH, to
all other Credit Party Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant
to clauses “FIRST” through “FIFTH” above; and
SEVENTH,
to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.
In
carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders and Hedging Agreement Providers
shall receive an amount equal to its pro rata share (based on the proportion
that the then outstanding Loans and outstanding LOC Obligations held by such
Lender or the outstanding obligations payable to such Hedging Agreement Provider
bears to the aggregate then outstanding Loans, outstanding LOC Obligations and
obligations payable under all Secured Hedging Agreements) of amounts available
to be applied pursuant to clauses ”THIRD”, “FOURTH”, “FIFTH” and “SIXTH”
above; and (iii) to the extent that any amounts available for distribution
pursuant to clause “FIFTH” above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (A) first, to
reimburse the Issuing Lender from time to time for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses “FIFTH” and
“SIXTH” above in the manner provided in this Section 2.12(b). Notwithstanding
the foregoing terms of this Section 2.12(b), only Collateral proceeds and
payments under the Guaranty with respect to Secured Hedging Agreements shall be
applied to obligations under any Secured Hedging Agreement.
|
Section 2.13
|
Non-Receipt of Funds
by the Administrative Agent.
|
(a) Unless
the Administrative Agent shall have been notified in writing by a Lender prior
to the date a Loan is to be made by such Lender (which notice shall be effective
upon receipt), that such Lender does not intend to make the proceeds of such
Loan available to the Administrative Agent, the Administrative Agent may assume
that such Lender has made such proceeds available to the Administrative Agent on
such date, and the Administrative Agent may in reliance upon such assumption
(but shall not be required to) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (i) from the
Borrower at the applicable rate for the applicable borrowing pursuant to the
Notice of Borrowing and (ii) from a Lender at the Federal Funds Effective
Rate.
54
(b) Unless
the Administrative Agent shall have been notified in writing by the Borrower,
prior to the date on which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Borrower does not intend to make such
payment, the Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to each Lender on such
payment date an amount equal to the portion of such assumed payment to which
such Lender is entitled hereunder, and if the Borrower has not in fact made such
payment to the Administrative Agent, such Lender shall, on demand, repay to the
Administrative Agent the amount made available to such Lender. If such amount is
repaid to the Administrative Agent on a date after the date such amount was made
available to such Lender, such Lender shall pay to the Administrative Agent on
demand interest on such amount in respect of each day from the date such amount
was made available by the Administrative Agent to such Lender to the date such
amount is recovered by the Administrative Agent at a per annum rate equal to the
Federal Funds Effective Rate.
(c) A
certificate of the Administrative Agent submitted to the Borrower or any Lender
with respect to any amount owing under this Section 2.13 shall be conclusive in
the absence of manifest error.
|
Section 2.14
|
Inability to Determine
Interest Rate.
|
Notwithstanding
any other provision of this Agreement, if (i) the Administrative Agent shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that, by reason of circumstances affecting the relevant market,
reasonable and adequate means do not exist for ascertaining LIBOR Rate for any
Interest Period, or (ii) the Administrative Agent or the Required Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that LIBOR Rate does not adequately and fairly reflect the cost
to such Lenders of funding LIBOR Rate Loans that the Borrower has requested be
outstanding as a LIBOR Tranche during such Interest Period, the Administrative
Agent shall forthwith give telephone notice of such determination, confirmed in
writing, to the Borrower, and the Lenders at least two (2) Business Days
prior to the first day of such Interest Period. Unless the Borrower shall have
notified the Administrative Agent upon receipt of such telephone notice that it
wishes to rescind or modify its request regarding such LIBOR Rate Loans, any
Loans that were requested to be made as LIBOR Rate Loans shall be made as
Alternate Base Rate Loans and any Loans that were requested to be converted into
or continued as LIBOR Rate Loans shall remain as or be converted into Alternate
Base Rate Loans. Until any such notice has been withdrawn by the Administrative
Agent, no further Loans shall be made as, continued as, or converted into, LIBOR
Rate Loans for the Interest Periods so affected.
55
|
Section 2.15
|
Illegality.
|
Notwithstanding
any other provision of this Agreement, if the adoption of or any change in any
Requirement of Law or in the interpretation, administration or application
thereof by the relevant Governmental Authority to any Lender shall make it
unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR
Rate Loans as contemplated by this Agreement or to obtain in the interbank
eurodollar market through its LIBOR Lending Office the funds with which to make
such Loans, (a) such Lender shall promptly notify the Administrative Agent and
the Borrower thereof, (b) the commitment of such Lender hereunder to make LIBOR
Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended
until the Administrative Agent shall give notice that the condition or situation
which gave rise to the suspension shall no longer exist, and (c) such Lender’s
Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the
last day of the Interest Period for such Loans or within such earlier period as
required by law to Alternate Base Rate Loans. The Borrower hereby agrees
promptly to pay any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for actual and direct costs (but not including
anticipated profits) reasonably incurred by such Lender including, but not
limited to, any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section
submitted by such Lender (which certificate shall include a description of the
basis for the computation), through the Administrative Agent, to the Borrower
shall be conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided,
however, that
such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its reasonable
discretion to be material.
|
Section 2.16
|
Requirements of
Law.
|
(a) If the
adoption of or any change in any Requirement of Law (other than any change by
way of imposition or increase of reserve requirements included in the Eurodollar
Reserve Percentage) or in the interpretation, administration or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
56
(i) shall
subject such Lender to any tax of any kind whatsoever with respect to any Letter
of Credit or any application relating thereto, any LIBOR Rate Loan made by it,
or change the basis of taxation of payments to such Lender in respect thereof
(except for changes in the rate of tax on the overall net income of such
Lender);
(ii) shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the LIBOR Rate hereunder; or
(iii) shall
impose on such Lender any other condition;
and the
result of any of the foregoing is to increase the cost to such Lender of making
or maintaining LIBOR Rate Loans or the Letters of Credit or to reduce any amount
receivable hereunder or under any Note, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender reasonably deems to be material as determined by
such Lender with respect to its LIBOR Rate Loans or Letters of Credit. A
certificate as to any additional amounts payable pursuant to this Section
submitted by such Lender (which certificate shall include a description of the
basis for the computation), through the Administrative Agent, to the Borrower
shall be conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its Domestic Lending
Office or LIBOR Lending Office, as the case may be) to avoid or to minimize any
amounts that might otherwise be payable pursuant to this paragraph of this
Section; provided,
however, that
such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its reasonable
discretion to be material.
(b) If any
Lender shall have reasonably determined that the adoption of or any change in
any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or Governmental Authority
made subsequent to the date hereof does or shall have the effect of reducing the
rate of return on such Lender’s or such corporation’s capital as a consequence
of its obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender’s or such corporation’s policies with
respect to capital adequacy) by an amount reasonably deemed by such Lender in
its reasonable discretion to be material, then from time to time, within
fifteen (15) days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount as shall be certified by such Lender as being
required to compensate it for such reduction. Such a certificate as to any
additional amounts payable under this Section submitted by a Lender (which
certificate shall include a description of the basis for the computation),
through the Administrative Agent, to the Borrower shall be conclusive absent
manifest error.
57
(c) In the
event that any Lender demands payment of costs or additional amounts pursuant to
Section 2.16 or Section 2.18 or asserts, pursuant to Section 2.15, that it is
unlawful for such Lender to make LIBOR Rate Loans, then (subject to such
Lender’s right to rescind such demand or assertion within 10 days after the
notice from the Borrower referred to below) the Borrower may, upon 20 days’
prior written notice to such Lender and the Administrative Agent, elect to cause
such Lender to assign at par its Loans and Commitments in full to one or more
Persons selected by the Borrower so long as (i) each such Person is either
another Lender or any Affiliate or Related Fund thereof or is otherwise
satisfactory to the Administrative Agent, (ii) such Lender receives payment in
full in cash of the outstanding principal amount of all Loans made by it and all
accrued and unpaid interest thereon and all other amounts due and payable to
such Lender as of the date of such assignment (including, without limitation,
amounts owing pursuant to Sections 2.16, 2.17 and 2.18), (iii) each such Lender
assignee agrees to accept such assignment and to assume all obligations of such
assigning party hereunder in accordance with Section 9.6 and (iv) the costs and
compensation paid by the Borrower under Section 2.16 or Section 2.18 shall be
reduced as a result of such assignment.
(d) The
agreements in this Section 2.16 shall survive the termination of this Agreement
and payment of the Notes and all other amounts payable hereunder.
|
Section 2.17
|
Indemnity.
|
The
Credit Parties hereby agree to indemnify each Lender and to hold such Lender
harmless from any funding loss or expense which such Lender may sustain or incur
as a consequence of (a) default by the Borrower in payment of the principal
amount of or interest on any Loan by such Lender in accordance with the terms
hereof, (b) default by the Borrower in accepting a borrowing after the Borrower
has given a notice in accordance with the terms hereof, (c) default by the
Borrower in making any prepayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
prepayment of a Loan, or the conversion thereof, on a day which is not the last
day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain its Loans
hereunder. A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender, through the Administrative Agent, to the
Borrower (which certificate must be delivered to the Administrative Agent within
thirty (30) days following such default, prepayment or conversion and shall
include a description of the basis for the computation) shall be conclusive in
the absence of manifest error. The agreements in this Section shall survive
termination of this Agreement and payment of the Notes and all other amounts
payable hereunder.
58
|
Section 2.18
|
Taxes.
|
(a) All
payments made by the Borrower hereunder or under any Note will be, except as
provided in Section 2.18(b), made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
Governmental Authority or by any political subdivision or taxing authority
thereof or therein with respect to such payments (but excluding any tax imposed
on or measured by the net income or profits of a Lender pursuant to the laws of
the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or additions to tax
with respect thereto (all such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges being referred to collectively as
“Taxes” and all
such excluded taxes referred to collectively as “Excluded
Taxes”). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. The Borrower will furnish to the
Administrative Agent as soon as practicable after the date the payment of any
Taxes is due pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts evidencing such
payment by the Borrower or such other evidence of payment reasonably
satisfactory to the Lenders. The Borrower agrees to indemnify and hold harmless
each Lender, and reimburse such Lender upon its written request (which shall
specify in reasonable detail the nature and amount of such Taxes), for the
amount of any Taxes so levied or imposed and paid by such Lender. Nothing
contained in this Section shall require a Lender to make available its tax
returns or provide any information relating to its taxes which it reasonably
deems confidential.
59
(b) Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the Closing Date, or in the case of a Lender
that is an assignee or transferee of an interest under this Agreement pursuant
to Section 9.6(c) (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) if the Lender is a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, two accurate and complete original
signed copies of Internal Revenue Service Form X-0XXX, X-0XXX or W-8IMY with
appropriate attachments (or successor forms) certifying such Lender’s
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Code, Internal Revenue Service Form X-0XXX, X-0XXX or W-8IMY with
appropriate attachments as set forth in clause (i) above, or (x) a certificate
in substantially the form of Schedule
2.18 (any
such certificate, a “Tax Exempt
Certificate”) and
(y) two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (or successor form) certifying such Lender’s entitlement to an
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. Each Lender that is
a United States person as that term is defined in Section 7701(a)(30) of the
Code , other than a Lender that may be treated as an exempt recipient based on
the indicators described in Treasury Regulation Section 1.6049-4(c)(1)(ii),
hereby agrees that it shall, no later than the Closing Date or, in the case of a
Lender that is an assignee or transferee of an interest under this Agreement
pursuant Section 9.6(c), on the date of such assignment or transfer to such
Lender, deliver to the Borrower and the Administrative Agent two accurate,
complete and signed copies of Internal Revenue service Form W-9 or successor
form, certifying that such Lender is not subject to United States backup
withholding tax. In addition, each Lender agrees that it will deliver updated
versions of the foregoing, as applicable, (A)
whenever the previous certification has become inaccurate in any material
respect or (B) at any
time reasonably requested by the Borrower or the Administrative Agent, together
with such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note. Notwithstanding anything to the contrary contained in Section 2.18(a), but
subject to the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender to the extent that such Lender has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 2.18(a) hereof to gross-up payments to be
made to a Lender in respect of Taxes imposed by the United States or to
indemnify such Lender for any withholding Taxes imposed by the United States if
(I) such Lender has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section or (II)
in the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such Forms do not establish a complete exemption
from withholding of such Taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section, the Borrower
agrees to pay additional amounts and to indemnify each Lender in the manner set
forth in Section 2.18(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes after the Closing Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of Taxes.
(c) Each
Lender agrees to use reasonable efforts (including reasonable efforts to change
its Domestic Lending Office or LIBOR Lending Office, as the case may be) to
avoid or to minimize any amounts which might otherwise be payable pursuant to
this Section; provided,
however, that
such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its reasonable
discretion to be material.
60
(d) If the
Borrower pays any additional amount pursuant to this Section with respect to a
Lender, such Lender shall use reasonable efforts to obtain a refund of tax or
credit against its tax liabilities on account of such payment; provided that
such Lender shall have no obligation to use such reasonable efforts if either
(i) it is in an excess foreign tax credit position or (ii) it believes in good
faith, in its sole discretion, that claiming a refund or credit would cause
adverse tax consequences to it. In the event that such Lender receives such a
refund or credit, such Lender shall pay to the Borrower an amount that such
Lender reasonably determines is equal to the net tax benefit obtained by such
Lender as a result of such payment by the Borrower. In the event that no refund
or credit is obtained with respect to the Borrower’s payments to such Lender
pursuant to this, then such Lender shall upon request provide a certification
that such Lender has not received a refund or credit for such payments. Nothing
contained in this Section shall require a Lender to disclose or detail the basis
of its calculation of the amount of any tax benefit or any other amount or the
basis of its determination referred to in the proviso to the first sentence of
this Section to the Borrower or any other party.
(e) The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder.
|
Section 2.19
|
Indemnification;
Nature of Issuing Lender’s Duties.
|
(a) In
addition to its other obligations under Section 2.3, each Credit Party
hereby agrees to protect, indemnify, pay and save each Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
charges, and reasonable out of pocket costs and expenses (including reasonable
attorneys’ fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit or
(ii) the failure of the Issuing Lender to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or governmental authority (all
such acts or omissions, herein called “Government
Acts”).
(b) As
between the Credit Parties, the Issuing Lender and each Lender, the Credit
Parties shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. Neither the Issuing Lender nor any Lender
shall be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of a Letter of Credit to comply fully with conditions
required in order to draw upon a Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or delay in
the transmission or otherwise of any document required in order to make a
drawing under a Letter of Credit or of the proceeds thereof; and (vii) any
consequences arising from causes beyond the control of the Issuing Lender or any
Lender, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing Lender’s rights or
powers hereunder.
61
(c) In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuing Lender or any
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender or such Lender under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and applied to
protect and indemnify the Issuing Lender and each Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Credit Parties, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any
Governmental Authority. The Issuing Lender and the Lenders shall not, in any
way, be liable for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or any
other cause beyond the control of the Issuing Lender and the
Lenders.
(d) Nothing
in this Section 2.19 is intended to limit the reimbursement obligation of the
Borrower contained in Section 2.3(d) hereof. The obligations of the Credit
Parties under this Section 2.19 shall survive the termination of this Agreement.
No act or omissions of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Issuing Lender to enforce
any right, power or benefit under this Agreement.
(e) Notwithstanding
anything to the contrary contained in this Section 2.19, the Credit Parties
shall have no obligation to indemnify any Issuing Lender or any Lender in
respect of any liability incurred by such Issuing Lender or such Lender arising
out of the gross negligence or willful misconduct of the Issuing Lender or such
Lender (including action not taken by an Issuing Lender), as determined by a
court of competent jurisdiction pursuant to a final non-appealable
judgment.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
To induce
the Lenders to enter into this Agreement and to make the Extensions of Credit
herein provided for, the Company and its Subsidiaries hereby represent and
warrant to the Administrative Agent and each Lender that:
62
|
Section 3.1
|
Financial
Condition.
|
The
Borrower has delivered to the Administrative Agent and the Lenders (a) balance
sheets and the related statements of income and of cash flows of (i) the
Company and its Subsidiaries for the fiscal years ended December 31, 2003,
December 31, 2004 and December 31, 2005 audited by Ernst & Young,
LLP and
(ii) the Acquired Company and its Subsidiaries for the fiscal years ended
December 31, 2003, December 31, 2004 and December 31, 2005 audited
by Xxxxxx,
Xxxxxxx & Xxxxx, LLP, (b) a company-prepared unaudited balance sheet and the
related statement of income and of cash flow of the Borrower for fiscal years
ended December 31, 2004 and December 31, 2005, (c) company-prepared
unaudited balance sheets and related statements of income and cash flows for the
Company, the Borrower and the Acquired Company and their respective Subsidiaries
for that portion of the fiscal year commencing on January 1, 2006 through the
month most recently ended prior to the Closing Date (provided that if
the Closing Date shall occur prior to the twentieth day of any month, then such
financial statements shall be provided as of the end of the month immediately
preceding the most recent month end), (d) good faith estimated (subject
only to completion of purchase price accounting and other related adjustments)
pro forma unaudited balance sheets of the Company and its Subsidiaries and the
Borrower and its Subsidiaries as of the last day of the month most recently
ended prior to the Closing Date (provided that if
the Closing Date shall occur prior to the twentieth day of any month, then such
financial statements shall be provided as of the end of the month immediately
preceding the most recent month end), in each case prepared giving effect to the
Acquisition and the initial Extensions of Credit made hereunder on a Pro Forma
Basis and in form and substance reasonably satisfactory to the Administrative
Agent and (e) the seven-year projections of the Company and the Borrower, in
form and substance reasonably satisfactory to the Administrative Agent. The
financial statements referred to in subsections (a)-(d) above are complete and
correct and present fairly the financial condition of the Company, the Borrower,
the Acquired Company and their respective Subsidiaries as of such dates, subject
in the case of unaudited financials to the absence of footnotes and immaterial
year end adjustments. All such financial statements and projections, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as disclosed
therein).
|
Section 3.2
|
No
Change.
|
Since
December 31, 2005 there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and no Internal Control
Event has occurred.
|
Section 3.3
|
Corporate Existence;
Compliance with Law.
|
Each of
the Credit Parties (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, organization or
formation, (b) has the requisite power and authority and the legal right to own
and operate all its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged and has taken all actions
necessary to maintain all rights, privileges, licenses and franchises necessary
or required in the normal conduct of its business, except to the extent that the
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (c) is duly qualified to conduct
business and is in good standing under the laws of (i) the
jurisdiction of its organization or formation and (ii) each
other jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that
the failure to so qualify or be in good standing could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect. Without limiting the generality of the
foregoing, each of the Credit Parties represents that:
63
(i) (A) To
the knowledge of any Responsible Officer of any Credit Party, there is no Credit
Party or individual employed by such Credit Party who may reasonably be expected
to have criminal culpability or to be excluded or suspended from participation
in any Medical Reimbursement Program for their corporate or individual actions
or failures to act where such culpability, exclusion and/or suspension has or
could be reasonably expected to result in a Material Adverse Effect; and (B)
there is no member of management continuing to be employed by any Credit Party
who may reasonably be expected to have individual culpability for matters under
investigation by any Governmental Authority where such culpability has or could
reasonably be expected to result in a Material Adverse Effect unless such member
of management has been, within a reasonable period of time after discovery of
such actual or potential culpability, either suspended or removed from positions
of responsibility related to those activities under challenge by the
Governmental Authority;
(ii) current
billing policies, arrangements, protocols and instructions comply with expressly
stated requirements of Medical Reimbursement Programs and are administered by
properly trained personnel except where any such failure to comply could not
reasonably be expected to result in a Material Adverse Effect;
(iii) current
medical director compensation arrangements and other arrangements with referring
physicians comply with state and federal self-referral and anti-kickback laws,
including without limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2) and 42
U.S.C. Section 1395nn, except where any such failure to comply could not
reasonably be expected to result in a Material Adverse Effect;
(iv) none of
the Credit Parties is currently, nor has in the past been subject to any
federal, state, local governmental or private payor civil or criminal
inspections, investigations, inquiries or audits involving and/or related to its
activities, except for routine inspections, investigations, inquiries or audits
in the ordinary course not anticipated to result in a Material Adverse Effect;
and
(v) except as
set forth on Schedule
3.3, no
Credit Party: (A) has had
a civil monetary penalty assessed against it pursuant to 42 U.S.C. §1320a 7a,
(B) has
been excluded from participation in a Federal Health Care Program (as that term
is defined in 42 U.S.C. §1320a 7b), (C) has
been convicted (as that term is defined in 42 C.F.R. §1001.2) of any of those
offenses described in 42 U.S.C. §1320a 7b or 18 U.S.C. §§669, 1035, 1347, 1518,
or (D) to the
knowledge of any Responsible Officer, has been involved or named in a U.S.
Attorney complaint made or any other action taken pursuant to the False Claims
Act under 31 U.S.C. §§3729 3731 or qui tam action brought pursuant to 31 U.S.C.
§3729 et seq.
64
|
Section 3.4
|
Corporate Power;
Authorization; Enforceable Obligations.
|
Each of
the Credit Parties has full power and authority and the legal right to make,
deliver and perform the Credit Documents to which it is party and has taken all
necessary limited liability company or corporate or other action to authorize
the execution, delivery and performance by it of the Credit Documents to which
it is party. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the borrowings hereunder or with the execution, delivery or
performance of any Credit Document by the Credit Parties (other than those which
have been obtained) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens created by such Credit Documents).
This Credit Agreement has been, and each other Credit Document when delivered
hereunder will have been, duly executed and delivered on behalf of each of the
Credit Parties party thereto. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of each of the Credit Parties,
enforceable against such Credit Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
|
Section 3.5
|
Status Under Certain
Statutes.
|
No Credit
Party is (i) required to be registered as an “investment company”, or
“controlled” by a Person that is required to be registered as an “investment
company”, under the Investment Company Act of 1940, as amended, or (ii) subject
to regulation under any federal or state statute or regulation limiting its
ability to incur the Credit Party Obligations.
|
Section 3.6
|
Margin
Regulations.
|
No part
of the proceeds of any Loan hereunder will be used directly or indirectly for
any purpose which does not comply with the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect. The Company and its Subsidiaries taken as a group do
not own “margin stock” except as identified in the financial statements referred
to in Section 3.1 and the aggregate value of all “margin stock” owned by the
Company and its Subsidiaries taken as a group does not exceed 25% of the value
of their assets.
|
Section 3.7
|
No Legal Bar; No
Default.
|
The
execution, delivery and performance of the Credit Documents, the borrowings
thereunder and the use of the proceeds of the Loans (a) will
not violate any Requirement of Law in any material respect or any material
Contractual Obligation of any Credit Party (except those as to which waivers or
consents have been obtained), (b) will
not conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws, articles of organization, operating agreement
or other organization documents of the Credit Parties or any Material Contract
to which such Person is a party or by which any of its properties may be bound
or any material approval or material consent from any Governmental Authority
relating to such Person, and (c) will
not result in, or require, the creation or imposition of any Lien on any Credit
Party’s properties or revenues pursuant to any Requirement of Law or Contractual
Obligation other than the Liens arising under or contemplated in connection with
the Credit Documents or Permitted Liens. No Credit Party is in default under or
with respect to any of its material Contractual Obligations in any material
respect. No Default or Event of Default has occurred and is
continuing.
65
|
Section 3.8
|
No Material
Litigation.
|
As of the
Closing Date, set forth on Schedule
3.8 is a
description of any material litigation, investigation, claim, criminal
prosecution, civil investigative demand, criminal or civil fine and penalty, or
other proceeding of or before any arbitrator or Governmental Authority
(including but not limited to those regulatory agencies responsible for
licensing, accrediting or issuing Medicare or Medicaid certifications) that is
pending or, to the best knowledge of any Responsible Officer, threatened by or
against the Company or any of its Subsidiaries or against any of its or their
respective properties or revenues. No litigation, investigation, claim, criminal
prosecution, civil investigative demand, imposition of criminal or civil fines
and penalties, or any other proceeding of or before any arbitrator or
Governmental Authority (including but not limited to those regulatory agencies
responsible for licensing, accrediting or issuing Medicare or Medicaid
certifications) is pending or, to the best knowledge of any Responsible Officer,
threatened by or against the Company or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to the Credit
Documents or any Loan or any of the transactions contemplated hereby, or (b)
which could reasonably be expected to be adversely determined and if so
adversely determined could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
|
Section 3.9
|
ERISA.
|
No
Reportable Event that could reasonably be expected to result in a Material
Adverse Effect, and no “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA), has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan. Each Single Employer Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred resulting in
any liability that has remained underfunded. No Lien in favor of a Single
Employer Plan or in favor of the PBGC with respect to a Single Employer Plan has
arisen, during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan
(other than a Lien with respect to a liability which has been satisfied in
full). The present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits, except to the extent that such underfunding could not
reasonably be expected to result in a Material Adverse Effect. Neither any
Credit Party nor any Commonly Controlled Entity has any outstanding liability
for a complete or partial withdrawal from a Multiemployer Plan, except to the
extent such liability could not reasonably be expected to result in a Material
Adverse Effect.
66
|
Section 3.10
|
Environmental
Matters.
|
Except as
could not reasonably be expected to have a Material Adverse Effect:
(a) The
facilities and properties owned, leased or operated by the Company or any of its
Subsidiaries (the “Properties”) do not
contain any Materials of Environmental Concern in amounts or concentrations that
constitute a violation of or a liability under, any Environmental
Law.
(b) The
Properties, all operations of the Company and/or its Subsidiaries at the
Properties, and the business operated by the Company or any of its Subsidiaries
(the “Business”) are in
compliance, and have in the last two years been in compliance, with all
applicable Environmental Laws.
(c) Neither
the Company nor any of its Subsidiaries has received any written notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does any Responsible
Officer of the Company or any of its Subsidiaries have knowledge that any such
notice will be received or is being threatened.
(d) Materials
of Environmental Concern have not been transported or disposed of from the
Properties by the Company or any of its Subsidiaries in violation of any
Environmental Law, and neither the Company nor any of its Subsidiaries has
received any written notice of any liability or potential liability for any
Materials of Environmental Concern transported or disposed of from the
Properties by the Company or any of its Subsidiaries. Materials of Environmental
Concern have not been generated, treated, stored or disposed of by the Company
or any of its Subsidiaries at, on or under any of the Properties in violation of
any applicable Environmental Law, and neither the Company nor any of its
Subsidiaries is liable for any Materials of Environmental Concern that have been
generated, treated, stored or disposed of at, on or under any of the
Properties.
(e) No
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of any Responsible Officer, threatened, under any Environmental
Law to which the Company or any Subsidiary is or, with respect to any threatened
proceeding or action, is reasonably expected to become a party with respect to
the Properties or the Business, nor are there any governmental consent decrees,
consent orders or administrative orders with respect to which the Company or any
of its Subsidiaries is a party, or other administrative or judicial requirements
applicable to the Company or any of its Subsidiaries outstanding under any
Environmental Law with respect to the Properties or the Business.
67
(f) There has
been no release of Materials of Environmental Concern by the Company or any of
its Subsidiaries or for which the Company or any of its Subsidiaries is liable
at or from the Properties, or arising from or related to the operations of the
Company or any of its Subsidiaries in connection with the Properties or
otherwise in connection with the Business, in violation of, or in amounts or in
a manner that give rise to liability, under Environmental Laws, except for any
such release that has been remediated in accordance with applicable
Environmental Laws.
|
Section 3.11
|
Use of
Proceeds.
|
The
proceeds of the Extensions of Credit shall be used solely by the Borrower to
(i) finance
a portion of the Acquisition, (ii) pay any
fees and expenses in connection with the Acquisition, (iii) pay any
fees and expenses owing to the Lenders and the Administrative Agent in
connection with this Agreement and the other Credit Documents (including those
under the Fee Letters), (iv)
refinance certain existing indebtedness of the Company and its Subsidiaries, and
(v) provide
for working capital, capital expenditures and other general corporate purposes
of the Borrower and its Subsidiaries, including, without limitation, Permitted
Acquisitions.
|
Section 3.12
|
Subsidiaries.
|
Set forth
on Schedule
3.12 is a
complete and accurate list of all direct and indirect Subsidiaries of the
Company as of the Closing Date. Information on the attached Schedule includes
jurisdiction of incorporation or organization; the number of shares of each
class of Capital Stock or other equity interests outstanding; the number and
percentage of outstanding shares of each class of Capital Stock held by each
shareholder; and the number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and similar rights. The
outstanding Capital Stock and other equity interests of all such Subsidiaries is
validly issued, fully paid and non-assessable and is owned, free and clear of
all Liens (other than those arising under or contemplated in connection with the
Credit Documents). There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors, directors’ qualifying shares or arrangements
with respect to the purchase of the remaining ownership interest in German Breg
as contemplated in the German Buyout) of any nature relating to any Capital
Stock of the Company or any Subsidiary, except as contemplated in connection
with the Credit Documents.
|
Section 3.13
|
Ownership.
|
Each of
the Company and its Subsidiaries is the owner of, and has good and insurable
title (in the case of real property) to or an indefeasible leasehold interest
in, all of its respective assets and none of such assets are subject to any Lien
on such party’s interest other than Permitted Liens. Each Credit Party and its
Subsidiaries enjoys peaceful and undisturbed possession under all of its leases
and all such leases are valid and subsisting and in full force and effect.
68
|
Section 3.14
|
Indebtedness.
|
Except as
otherwise permitted under Section 6.1, the Company and its Subsidiaries have no
Indebtedness.
|
Section 3.15
|
Taxes.
|
Each of
the Company and its Subsidiaries has filed, or caused to be filed, all tax
returns required to be filed and paid (a) all amounts of taxes shown thereon to
be due (including interest and penalties) and (b) all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) that are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. Neither the Company nor any of its
Subsidiaries are aware as of the Closing Date of any proposed tax assessments
against it or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
|
Section 3.16
|
Intellectual
Property.
|
To the
knowledge of any Responsible Officer, each of the Company and its Subsidiaries
owns, or has the legal right to use, all material Intellectual Property
necessary for each of them to conduct its business as currently conducted. Set
forth on Schedule
3.16 is a
list of all material Intellectual Property (excluding unregistered trademarks to
the extent not used or not reasonably identifiable by the Credit Parties) owned
by the Credit Parties or that any Credit Party has the right to use (excluding
standard “off the shelf” licensed software used in the ordinary course of
business). To the knowledge of any Responsible Officer, except pursuant to a
license agreement disclosed in Schedule
3.16 hereto,
or as otherwise disclosed in Schedule
3.16 hereto,
(a) the Credit Parties have the right to use the Intellectual Property disclosed
in Schedule
3.16 hereto
in perpetuity and without payment of royalties, and (b) all registrations with
and applications to Governmental Authorities in respect of such Intellectual
Property are valid or subsisting and in full force and effect and are not
subject to the payment of any taxes or maintenance fees or the taking of any
interest therein, held by the Company or any of its Subsidiaries to maintain
their validity or effectiveness in any material respects. To the knowledge of
any Responsible Officer, neither the Company nor any of its Subsidiaries is in
default (or with the giving of notice or lapse of time or both, would be in
default) under any license to use any material Intellectual Property; other than
as noted on Schedule
3.16, no
claim has been asserted in writing and is pending by any Person, in any material
respects, seeking to restrict or deny the use of any material Intellectual
Property or the validity or effectiveness of any such Intellectual Property, nor
does any Responsible Officer know of any such claim; and, to the knowledge of
any Responsible Officer, the use of any material Intellectual Property by the
Company or any of its Subsidiaries does not infringe on the rights of any
Person. Schedule
3.16 may be
updated from time to time by the Borrower to include new Intellectual Property
by giving written notice thereof to the Administrative Agent.
69
|
Section 3.17
|
Solvency.
|
Each of
the Credit Parties is Solvent.
|
Section 3.18
|
Investments.
|
All
Investments of each of the Company and its Subsidiaries are Permitted
Investments.
|
Section 3.19
|
Location of
Collateral.
|
Set forth
on Schedule
3.19(a) is a
list of the domestic real Properties (whether owned or leased) of the Credit
Parties as of the Closing Date with street address, county and state where
located. Set forth on Schedule
3.19(b) is a
list of all locations where any domestic tangible personal property of the
Credit Parties with a fair market value in excess of $250,000 is located as of
the Closing Date (other than trade show booths and related assets and tangible
personal property in transit, held by sales representatives or on consignment
with third parties), including county and state where located. Set forth on
Schedule
3.19(c) is the
state of incorporation or organization, chief executive office, the principal
place of business, the tax identification number and organization identification
number of each of the Credit Parties as of the Closing Date. Set forth on
Schedule
3.19(d) is a
list of all Mortgaged Properties as of the Closing Date.
|
Section 3.20
|
No Burdensome
Restrictions.
|
Neither
the Company nor any of its Subsidiaries is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate
restriction or any provision of any applicable law, rule or regulation that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
|
Section 3.21
|
Labor
Matters.
|
Except as
otherwise set forth in Schedule
3.21 hereto,
as of the Closing Date, (a) there are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Company or any of its
Subsidiaries, (b) neither the Company nor any of its Subsidiaries has suffered
any material strikes, walkouts, work stoppages or other material labor
difficulty within the last five years, (c) no Responsible Officer of the Company
or any of its Subsidiaries has knowledge of any material potential or pending
strike, walkout or work stoppage and (d) no material unfair labor practice
complaint is pending or, to the best knowledge of any Responsible Officer,
threatened against the Company or any of its Subsidiaries before any
Governmental Authority.
|
Section 3.22
|
Security
Documents.
|
The
Security Documents create (or will create upon the execution and delivery
thereof) valid security interests in, and Liens on, the Collateral purported to
be covered thereby, which security interests and Liens are currently (or will be
upon the execution and delivery of the Security Documents and upon the filing of
appropriate financing statements, the recordation of the applicable Mortgage
Instruments, the filing of appropriate notices with the United States Patent and
Trademark Office and the United States Copyright Office, in each case in favor
of the Administrative Agent, on behalf of the Lenders) perfected security
interests and Liens, prior to all other Liens other than Permitted Liens that
would be prior to the Liens in favor of the Administrative Agent as a matter of
law.
70
|
Section 3.23
|
Accuracy and
Completeness of Information.
|
All
factual written information (other than written financial projections)
heretofore, contemporaneously or hereafter furnished by or on behalf of any
Credit Party or any of its Subsidiaries to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement or any other Credit
Document, or any transaction contemplated hereby or thereby, is or will be true
and accurate in all material respects and not incomplete by omitting to state
any material fact necessary to make such information not misleading. The written
financial projections concerning the Company and its Subsidiaries heretofore,
contemporaneously or hereafter furnished by or on behalf of any Credit Party or
any of its Subsidiaries to the Administrative Agent or any Lender for purposes
of or in connection with this Agreement or any other Credit Document, or any
transaction contemplated hereby or thereby, have been and will be prepared in
good faith based upon assumptions that the Credit Parties believe to be
reasonable at the time of such preparation. There is no fact now known to the
Borrower, any other Credit Party or any of their Subsidiaries which has, or
could reasonably be expected to have, a Material Adverse Effect, which fact has
not been set forth herein, in the financial statements of the Company and its
Subsidiaries furnished to the Administrative Agent and/or the Lenders, or in any
opinion or other written statement made or furnished by any Credit Party to the
Administrative Agent and/or the Lenders.
|
Section 3.24
|
Fraud and
Abuse.
|
To the
knowledge of any Responsible Officer, neither the Company and its Subsidiaries
nor any of their officers or directors, have engaged in any activities which are
prohibited under federal Medicare and Xxxxxxxx xxxxxxxx, 00 X.X.X. §0000x-0x, or
42 U.S.C. §1395nn or the regulations promulgated pursuant to such statutes or
related state or local statutes or regulations, or which are prohibited by
binding rules of professional conduct, including but not limited to the
following: (a) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any applications for any
benefit or payment; (b) knowingly and willfully making or causing to be
made any false statement or representation of a material fact for use in
determining rights to any benefit or payment; (c) failing to disclose knowledge
by a claimant of the occurrence of any event affecting the initial or continued
right to any benefit or payment on its own behalf or on behalf of another with
the intent to secure such benefit or payment fraudulently; (d) knowingly and
willfully soliciting or receiving any remuneration (including any kickback,
bribe or rebate), directly or indirectly, overtly or covertly, in cash or in
kind or offering to pay such remuneration (i) in return for referring an
individual to a Person for the furnishing or arranging for the furnishing of any
item or service for which payment may be made in whole or in part by Medicare,
Medicaid or other applicable third party payors, or (ii) in return for
purchasing, leasing or ordering or arranging for or recommending the purchasing,
leasing or ordering of any good, facility, service, or item for which payment
may be made in whole or in part by Medicare, Medicaid or other applicable third
party payors, except in each case for any such prohibited activity that could
not reasonably be expected to result in a Material Adverse Effect.
71
|
Section 3.25
|
Licensing and
Accreditation.
|
Each of
the Company and its Subsidiaries has, to the extent applicable: (a)
obtained and maintains in good standing all required licenses; (b) to the
extent prudent and customary in the industry in which it is engaged, obtained
and maintains accreditation from all generally recognized accrediting agencies;
(c)
obtained and maintains Medicaid Certification and Medicare Certification; and
(d) entered
into and maintains in good standing its Medicare Provider Agreement and its
Medicaid Provider Agreement, except in each case to the extent the absence of
such license, accreditation, certification or good standing could not reasonably
be expected to have a Material Adverse Effect. All such required licenses are in
full force and effect on the date hereof and have not been revoked or suspended
or otherwise limited, except in each case to the extent such revocation,
suspension or other limitation could not reasonably be expected to have a
Material Adverse Effect.
|
Section 3.26
|
Other Regulatory
Protection.
|
Each of
the Company and its Subsidiaries represent that it does not manufacture
pharmaceutical products and is in compliance with all applicable rules,
regulations and other requirements of the Food and Drug Administration
(“FDA”), the
Federal Trade Commission (“FTC”), the
Occupational Safety and Health Administration (“OSHA”), the
Consumer Product Safety Commission, the United States Customs Service and the
United States Postal Service and other state or federal regulatory authorities
or jurisdictions in which the Company or any of its Subsidiaries do business or
distribute and market products, except to the extent that any such
noncompliance, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. Neither the FDA, the FTC, OSHA, the
Consumer Product Safety Commission, nor any other such regulatory authority has
requested (or, to the knowledge of any Responsible Officer, are considering
requesting) any product recalls or other enforcement actions that (a) if not
complied with, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and (b) with which the Company and its
Subsidiaries have not complied within the time period allowed.
|
Section 3.27
|
Reimbursement from
Third Party Payors.
|
The
accounts receivable of the Company and its Subsidiaries have been and will
continue to be adjusted to reflect the reimbursement policies (both those most
recently published in writing as well as those not in writing which have been
verbally communicated) of third party payors such as Medicare, Medicaid, Blue
Cross/Blue Shield, private insurance companies, health maintenance
organizations, preferred provider organizations, alternative delivery systems,
managed care systems, government contacting agencies and other third party
payors. In particular, accounts receivable relating to third party payors do not
and shall not exceed amounts any obligee is entered to receive under any
capitation arrangement, fee schedule, discount formula, cost-based reimbursement
or other adjustment or limitation to its usual charges.
72
|
Section 3.28
|
Other
Agreements.
|
No Credit
Party is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in (a) any
Medicaid Provider Agreement, Medicare Provider Agreement or other agreement or
instrument to which such Person is a party, which default has resulted in, or if
not remedied within any applicable grace period could result in, the revocation,
termination, cancellation or material suspension of Medicaid Certification or
Medicare Certification of any such Person or (b) any
other agreement or instrument to which any such Person is a party, which
default, individually or in the aggregate, has, or if not remedied within any
applicable grace period could reasonably be expected to have, a Material Adverse
Effect.
|
Section 3.29
|
Material
Contracts.
|
Schedule
3.29 sets
forth a true and correct and complete list of all Material Contracts currently
in effect. All of the Material Contracts are in full force and effect and no
material defaults exist thereunder.
|
Section 3.30
|
Insurance.
|
The
insurance coverage of the Credit
Parties and, with respect to the general insurance coverage of the Company and
its Subsidiaries, the Foreign Subsidiaries is
outlined as to carrier, policy number, expiration date, type and amount on
Schedule
3.30 and such
insurance coverage complies with the requirements set forth in Section
5.5(b).
|
Section 3.31
|
Classification as
Senior Indebtedness.
|
The
Credit Party Obligations constitute “Senior Indebtedness” under and as may be
defined in any agreement governing any outstanding Subordinated Indebtedness and
the subordination provisions set forth in each such agreement are legally valid
and enforceable against the parties thereto.
|
Section 3.32
|
Tax Shelter
Regulations.
|
The
Borrower does not intend to treat the Loans or Letters of Credit and
related transactions as being
a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4). In the event the Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Administrative
Agent thereof. If the Borrower so notifies the Administrative Agent, the
Borrower acknowledges that one or more of the Lenders may treat its Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such treasury
regulation.
73
|
Section 3.33
|
Regulation
H.
|
No
Mortgaged Property is a Flood Hazard Property.
|
Section 3.34
|
Anti-Terrorism
Laws.
|
Neither
any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the
enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et seq.), as
amended. Neither any Credit Party nor any or its Subsidiaries is in violation of
(a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto or (c) the Patriot Act. None of the Credit Parties (i) is a
blocked person described in Section 1 of the Executive Order Number 13224
(Anti-Terrorism Order) or (ii) to the knowledge of any Responsible Officer,
engages in any dealings or transactions, or is otherwise associated, with any
such blocked person.
|
Section 3.35
|
Compliance with OFAC
Rules and Regulations.
|
None of
the Credit Parties or their Subsidiaries or, to the knowledge of any Responsible
Officer, their respective Affiliates (a) is a Sanctioned Person,
(b) has more than 15% of its assets in Sanctioned Countries, or
(c) derives more than 15% of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Countries. No part of the
proceeds of any Extension of Credit hereunder will be used directly or
indirectly to fund any operations in, finance any investments or activities in
or make any payments to, a Sanctioned Person or a Sanctioned
Country.
|
Section 3.36
|
Compliance with
FCPA.
|
Each of
the Credit Parties and their Subsidiaries is in compliance with the Foreign
Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and, to
the knowledge of any Responsible Officer, any foreign counterpart thereto. None
of the Credit Parties or their Subsidiaries has made a payment, offering, or
promise to pay, or authorized the payment of, money or anything of value
(a) in order to assist in obtaining or retaining business for or with, or
directing business to, any foreign official, foreign political party, party
official or candidate for foreign political office, (b) to a foreign
official, foreign political party or party official or any candidate for foreign
political office, and (c) with the intent to induce the recipient to misuse
his or her official position to direct business wrongfully to such Credit Party
or its Subsidiary or to any other Person, in violation of the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq.
74
ARTICLE IV
CONDITIONS
PRECEDENT
|
Section 4.1
|
Conditions to Closing
Date and Initial Extensions of Credit.
|
This
Agreement shall become effective upon, and the obligation of each Lender to make
the initial Revolving Loans and the Term Loans on the Closing Date is subject
to, the satisfaction of the following conditions precedent:
(a) Execution of
Agreements. The
Administrative Agent shall have received (i)
counterparts of this Agreement from each party hereto, (ii) for the
account of each applicable Lender, a Revolving Note and a Term Note from the
Borrower, (iii) for the
account of each Swingline Lender, the Swingline Note from the Borrower,
(iv)
counterparts of the Security Agreement, and the Pledge Agreement, each Mortgage
Instrument and the other Security Documents from each Credit Party party thereto
and (v)
executed consents, in the form of Schedule
4.1-3 from
each Lender authorizing the Administrative Agent to enter this Credit Agreement
on their behalf, in each case conforming to the requirements of this Agreement
and executed by a duly authorized officer of each party thereto, and in each
case in form and substance reasonably satisfactory to the Administrative Agent.
(b) Authority
Documents. The
Administrative Agent shall have received the following:
(i) Articles of
Incorporation/Organizational Documents. Copies
of the articles of incorporation, certificate of incorporation or other
organizational documents, as applicable, of each Credit Party, certified (other
than with respect to the Company, Colgate, Victory, Swiftsure and UK Ltd) to be
true and complete as of a recent date by the appropriate Governmental Authority
of the jurisdiction of its incorporation or organization, as the case may
be.
(ii) Resolutions. Copies
of resolutions of the board of directors (or comparable group and, where
applicable, the shareholders or members) of each Credit Party approving and
adopting the Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party (pursuant to a secretary’s certificate
in substantially the form of Schedule
4.1-1 attached
hereto) as of the Closing Date to be true and correct and in force and effect as
of such date.
(iii) Bylaws/Operating
Agreement. A copy
of the bylaws, memorandum and articles of association, limited liability company
agreement or comparable operating agreement of each Credit Party (other than the
Company) certified by a secretary or assistant secretary of such Credit Party
(pursuant to a secretary’s certificate in substantially the form of Schedule
4.1-1 attached
hereto) as of the Closing Date to be true and correct and in force and effect as
of such date.
75
(iv) Good
Standing. Copies
of certificates of good standing, existence or its equivalent (to the extent
applicable) with respect to the each Credit Party certified as of a recent date
by the appropriate Governmental Authorities of the jurisdiction of incorporation
or organization and each other jurisdiction in which the failure to so qualify
and be in good standing could reasonably be expected to have a Material Adverse
Effect on the business or operations of such Credit Party in such
state.
(v) Incumbency. An
incumbency certificate of Responsible Officers of each Credit Party authorized
to execute the Credit Documents on such Credit Party’s behalf certified by a
secretary or assistant secretary (pursuant to a secretary’s certificate in
substantially the form of Schedule
4.1-1 attached
hereto) to be true and correct as of the Closing Date.
(c) Legal Opinions of
Counsel.
The
Administrative Agent shall have received (i)
opinions of legal counsel (including local counsel to the extent required by the
Administrative Agent) for the Credit Parties, dated the Closing Date and
addressed to the Administrative Agent and the Lenders, which opinions shall
include, without limitation, a “no conflicts” opinion with respect to corporate
instruments and Material Contracts of the Credit Parties on the Closing Date
after giving effect to the transactions contemplated herein, (ii) an
opinion from STvB Advocaten (Caracao) N.V. as to, inter alia, the due
authorization, execution and delivery of the Credit Documents to which the
Company is a party, and (iii) an
opinion from Xxxxxx Xxxxxxxx Xxxxxxx LLP as to, inter alia, enforceability of
the UK Security Documents and the due authorization, execution and delivery of
the Credit Documents to which Colgate, Victory, Swiftsure or UK Ltd is a party,
such opinions to be in form and substance reasonably satisfactory to the
Administrative Agent.
(d) Reliance. The
Administrative Agent shall have received a copy of each opinion, agreement, and
other material document required to be delivered pursuant to the Acquisition
Documents and the transactions contemplated in connection therewith, together
with evidence that the Administrative Agent and the Lenders have been authorized
to rely on each such opinion to the extent counsel providing each such opinion
has agreed to such reliance, all in form and substance reasonably satisfactory
to the Administrative Agent.
(e) Personal Property
Collateral. The
Administrative Agent shall have received, in form and substance reasonably
satisfactory to the Administrative Agent:
(i) a
perfection certificate setting forth the state or jurisdiction of incorporation
or organization of each Credit Party and each jurisdiction where any Collateral
of such Credit Party with a fair market value in excess of $100,000 is located
or where the chief executive office of such Credit Party is located, copies of
Lien searches in jurisdictions as required by the Administrative Agent, and
copies of the financing statements on file in such jurisdictions and evidence
that no Liens exist other than Permitted Liens;
76
(ii) UCC
financing statements for each appropriate jurisdiction as is necessary, in the
Administrative Agent’s reasonable discretion, to perfect the Administrative
Agent’s security interest in the Collateral; and
(iii) duly
executed consents as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Lenders’ security interest in the Collateral.
(f) [Reserved]
(g) Liability, Casualty and
Business Interruption Insurance. The
Administrative Agent shall have received copies of insurance policies (including
a Xxxxx Inc. report) or certificates of insurance evidencing liability and
casualty insurance meeting the requirements set forth herein or in the Security
Documents and business interruption insurance satisfactory to the Administrative
Agent. The Administrative Agent shall be named as loss payee or mortgagee, as
its interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and the respective
Credit Party shall use commercially reasonable efforts to obtain from each
provider of any such insurance an agreement that such provider, by endorsement
upon the policy or policies issued by it or by independent instruments furnished
to the Administrative Agent, will give the Administrative Agent thirty (30) days
prior written notice before any such policy or policies shall be altered or
canceled.
(h) Fees. The
Administrative Agent and the Lenders shall have received (i) all
fees, if any, owing pursuant to the Fee Letters and Section 2.5 and
(ii)
evidence that the aggregate amount of fees and expenses payable in connection
with the consummation of the Acquisition by the Company and its Subsidiaries
(excluding those fees identified in the foregoing subsection (i)) did not exceed
$12,500,000.
(i) Litigation. Except
as set forth on Schedule
3.8, there
shall not exist any material litigation, investigation, claim, criminal
prosecution, civil investigative demand, imposition of criminal or civil fines
and penalties, or any other proceeding of or before any arbitrator or
Governmental Authority (including but not limited to those regulatory agencies
responsible for licensing, accrediting or issuing Medicare or Medicaid
certifications) affecting or relating to any of the Company or its Subsidiaries,
this Agreement and the other Credit Documents, that has not been settled,
dismissed, vacated, discharged or terminated prior to the Closing
Date.
(j) Solvency
Certificate. The
Administrative Agent shall have received an officer’s certificate prepared by
the chief financial officer of the Company as to the financial condition,
solvency and related matters of each Credit Party, in each case after giving
effect to the Acquisition and the initial borrowings under the Credit Documents,
in substantially the form of Schedule
4.1-2
hereto.
77
(k) Account Designation
Letter. The
Administrative Agent shall have received the executed Account Designation Letter
in the form of Schedule
1.1-1
hereto.
(l) Corporate
Structure. The
corporate, capital and ownership structure of the Company and its Subsidiaries
after giving effect to the Acquisition shall be as described in Schedule
3.12, and
shall otherwise be reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall be satisfied with the management of the Company and
its Subsidiaries after giving effect to the Acquisition.
(m) Acquisition
Documents. The
Administrative Agent shall have reviewed and approved to its reasonable
satisfaction all of the Acquisition Documents
(other than the Agreement and Plan of Merger referred to in the definition of
“Acquisition Documents” and all related schedules and exhibits, which have been
approved) and there shall not have been any material modification, amendment,
supplement or waiver to the Acquisition
Documents
subsequent to August 4, 2006 without the prior written consent of the
Administrative Agent. The Acquisition shall
have been consummated substantially in accordance with the terms of the
Acquisition
Documents
(without waiver of any material conditions precedent to the obligations of any
party thereto without the consent of the Administrative Agent). The
Administrative Agent shall have received a copy, certified by an officer of the
Borrower as true and complete, of each Acquisition Document
as originally executed and delivered, together with all exhibits and schedules
thereto.
(n) Consents. The
Administrative Agent shall have received evidence that all governmental,
shareholder, board of director and material third party consents and approvals
that the Borrower can obtain using its commercially reasonable efforts and that
are necessary in connection with the financings, the Acquisition and other
transactions contemplated hereby have been obtained and all applicable waiting
periods have expired without any action being taken by any authority that could
restrain, prevent or impose any material adverse conditions on such transactions
or that could seek or threaten any of such transactions.
(o) Compliance with
Laws. The
financings and other transactions contemplated hereby shall be in compliance
with all applicable Requirements of Law (including all applicable securities and
banking laws, rules and regulations).
(p) Bankruptcy. There
shall be no bankruptcy or insolvency proceedings with respect to any Credit
Party or any of its Subsidiaries.
(q) Material Adverse
Effect. No
material adverse change shall have occurred or could reasonably be expected to
occur since December 31, 2005 in the business, properties, prospects,
operations, regulatory environment or condition (financial or otherwise) of
either the Company, the Borrower and its Subsidiaries, taken as a whole or the
Acquired Company and its Subsidiaries, taken as a whole.
78
(r) Minimum Consolidated
EBITDA. The
Administrative Agent shall have received evidence satisfactory thereto provided
by the Company that the Consolidated EBITDA for the twelve-month period ending
on the last day of the most recent fiscal quarter for which financial statements
of the Company and its Subsidiaries are available, calculated on a Pro Forma
Basis, is no less than $79,000,000.
(s) Leverage
Ratio. The
Leverage Ratio (determined using Funded Debt of the Company and its Subsidiaries
as of the Closing Date and pro forma Consolidated EBITDA of the Company and its
Subsidiaries for the twelve-month period ending on
the last day of the
most recent fiscal quarter for which financial statements of the Company and its
Subsidiaries are available), calculated on a Pro Forma Basis as of the Closing
Date, shall not exceed 4.25 to 1.0.
(t) Financial
Statements. The
Administrative Agent shall have received copies of the financial statements and
projections referred to in Section 3.1 hereof, each in form and substance
satisfactory to it.
(u) Termination of Existing
Indebtedness; Approval of Intercompany Indebtedness. All
existing Indebtedness for borrowed money of the Company, the Borrower, the
Acquired Company and their respective Subsidiaries in excess of $5,000,000 in
the aggregate, other than Indebtedness incurred by SRL as set forth on
Schedule
6.1(b), shall
have been repaid in full and terminated and all Liens relating thereto shall
have been terminated. The Administrative Agent shall have reviewed and approved
in its sole discretion all loan documentation with respect to any intercompany
Indebtedness of the Credit Parties and the Administrative Agent shall have
received a copy, certified by a Responsible Officer of the Borrower as true and
complete, of each such document, as originally executed and delivered, together
with all exhibits, schedules, amendments and modifications thereto.
(v) Officer’s
Certificates. The
Administrative Agent shall have received a certificate executed by a Responsible
Officer of the Borrower as of the Closing Date stating that (i) immediately
after giving effect to this Credit Agreement (including the initial Extensions
of Credit hereunder), the other Credit Documents and the Acquisition Documents
and all the transactions contemplated therein to occur on such date, (A) no
Default or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct in all
material respects, and (C) the Credit Parties are in compliance with each of the
financial covenants set forth in Section 5.9 and demonstrating compliance with
such financial covenants.
(w) Credit
Rating. The
Borrower shall have obtained a senior secured credit rating from Xxxxx’x and
from S&P.
(x) Patriot Act
Certificate. The
Administrative Agent shall have received a certificate satisfactory thereto, for
benefit of itself and the Lenders, provided by the Borrower that sets forth
information required by the Patriot Act (as defined in Section 9.18) including,
without limitation, the identity of each Credit Party, the name and address of
each Credit Party and other information that will allow the Administrative Agent
or any Lender, as applicable, to identify each Credit Party in accordance with
the Patriot Act.
79
(y) Additional
Matters. All
other documents and legal matters in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
|
Section 4.2
|
Conditions to All
Extensions of Credit.
|
The
obligation of each Lender to make any Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and
Warranties. The
representations and warranties made by the Credit Parties herein, in the
Security Documents or which are contained in any certificate furnished at any
time under or in connection herewith shall be true and correct on and as of the
date of such Extension of Credit as if made on and as of such date (other than
any such representations or warranties that, by their terms, refer to a specific
date other than the date of such Extension of Credit, in which case, as of such
specific date).
(b) No Default or Event of
Default. No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the Extension of Credit to be made on such date unless
such Default or Event of Default shall have been waived in accordance with this
Agreement.
(c) Compliance with
Commitments.
Immediately after giving effect to the making of any such Extension of Credit
(and the application of the proceeds thereof), (i) the sum of outstanding
Revolving Loans plus
outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount,
(ii) the outstanding LOC Obligations shall not exceed the LOC Committed Amount
and (iii) the Swingline Loans shall not exceed the Swingline Committed
Amount.
(d) Additional Conditions to
Extensions of Credit. If such
Extension of Credit is made pursuant to Sections 2.1, 2.2, 2.3 or 2.4, all
conditions set forth in such Section shall have been satisfied.
Each
request for an Extension of Credit and each acceptance by the Borrower of any
such Extension of Credit shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in paragraphs (a) through (d) of this Section have been
satisfied.
80
ARTICLE V
AFFIRMATIVE
COVENANTS
The
Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note shall remain outstanding and unpaid and the Credit
Party Obligations, together with interest, Commitment Fees and all other amounts
owing to the Administrative Agent or any Lender hereunder, shall have been paid
in full, the Credit Parties shall:
|
Section 5.1
|
Financial
Statements.
|
Furnish
to the Administrative Agent (which shall transmit or make available the same to
the Lenders as soon as practicable):
(a) Annual Financial
Statements. As soon
as available, but in any event within ninety (90) days after the end of
each fiscal year of the Company commencing with the fiscal year ended December
31, 2006 (or, with respect to the comparative information required below,
commencing with the fiscal year ended December 31, 2006), a copy of the
consolidated and consolidating balance sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related consolidated and
consolidating statements of income and retained earnings and of cash flows of
the Company and its consolidated Subsidiaries for such year, audited (with
respect to the consolidated statements only) by a firm of independent certified
public accountants of, as appropriate, nationally or internationally recognized
standing reasonably acceptable to the Administrative Agent, setting forth in
comparative form consolidated and consolidating figures
for the preceding fiscal year, reported on without a “going concern” or like
qualification or exception, or qualification indicating that the scope of the
audit was inadequate to permit such independent certified public accountants to
certify such financial statements without such qualification;
(b) Annual Unaudited Financial
Statements. As soon
as available, but in any event within ninety (90) days after the end of
each fiscal year of the Company commencing with the fiscal year ended December
31, 2006 (or, with respect to the comparative information required below,
commencing with the fiscal year ended December 31, 2006), a copy of the
consolidated and consolidating balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained earnings and of
cash flows of the Borrower and its consolidated Subsidiaries for such year,
setting forth in comparative form consolidated and consolidating figures
for the preceding fiscal year.
81
(c) Quarterly Financial
Statements. (i) As
soon as available and in any event within (A) forty-five (45) days after the end
of each of the first three fiscal quarters of the Company and (B) ninety (90)
days after the end of the fourth fiscal quarter of the Company, a
company-prepared consolidated and consolidating balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such period and related
company-prepared consolidated and consolidating statements
of income and retained earnings and of cash flows for the Borrower and its
consolidated Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in comparative
form consolidated and consolidating figures
for the corresponding period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments) and (ii) as soon as available and
in any event within (A) forty-five (45) days after the end of each of the first
three fiscal quarters of the Company and (B) ninety (90) days after the end of
the fourth fiscal quarter of the Company, a company-prepared consolidated and
consolidating balance sheet of the Company and its consolidated Subsidiaries as
at the end of such period and related company-prepared consolidated and
consolidating statements
of income and retained earnings and of cash flows for the Company and its
consolidated Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in comparative
form consolidated and consolidating figures
for the corresponding period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments) and to the extent not disclosed in
the Company’s Form 10-Q, management discussion and analysis of operating results
inclusive of operating metrics in comparative form; and
(d) Annual Budget
Plan. As soon
as available, but in any event within sixty (60) days after the end of each
fiscal year, a copy of the detailed annual budget or plan of the Company for the
next fiscal year on a quarterly basis, in form and detail reasonably acceptable
to the Administrative Agent, together with a summary of the material assumptions
made in the preparation of such annual budget or plan;
all such
financial statements to be complete and correct in all material respects
(subject, in the case of interim statements, to normal recurring year-end audit
adjustments) and to be prepared in reasonable detail and, in the case of the
annual and quarterly financial statements provided in accordance with
subsections (a), (b) and (c) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of a change, if any, in the application of accounting principles as
provided in Section 1.3.
|
Section 5.2
|
Certificates; Other
Information.
|
Furnish
to the Administrative Agent (which shall transmit or make available the same to
the Lenders as soon as practicable):
(a) concurrently
with the delivery of the financial statements referred to in Section 5.1(a)
above, certificates of the independent certified public accountants of the
Company reporting on such financial statements stating that in making the
examination necessary therefore no knowledge was obtained of any Default or
Event of Default under Section 5.9, except as specified in such
certificate;
82
(b) concurrently
with the delivery of the financial statements referred to in Sections 5.1(a),
5.1(b) and 5.1(c) above, a certificate of a Responsible Officer of the Borrower
stating that, to the best of such Responsible Officer’s knowledge, during such
period each of the Credit Parties observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement to
be observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate and such certificate shall include the calculations in
reasonable detail required to indicate compliance with Section 5.9 as of the
last day of such period;
(c) within
ten (10) days after the same are sent, copies of all reports (other than those
otherwise provided pursuant to Section 5.1 and those which are of a promotional
nature) and other financial information which the Company sends to its members
and equity holders, and within ten (10) days after the same are filed, copies of
all financial statements and non-confidential reports which the Company may make
to or file with the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) within
ninety (90) days after the end of each fiscal year of the Company, a certificate
containing information regarding the amount of all Asset Dispositions, Debt
Issuances, and Equity Issuances that were made during the prior fiscal year and
amounts received in connection with any Recovery Event during the prior fiscal
year;
(e) promptly
upon receipt thereof, a copy of any other report or “management letter”
submitted or presented by independent accountants to any Credit Party
or any of
the Borrower’s Subsidiaries in
connection with any annual, interim or special audit of the books of such Person
regarding material matters of the Company and its Subsidiaries, taken as a
whole;
(f) promptly,
copies of all material notices from or material requests to the FDA, FTC, and
OSHA (each, as defined in Section 3.26); and
(g) promptly,
such additional financial and other information as the Administrative Agent, on
behalf of any Lender, may from time to time reasonably request.
|
Section 5.3
|
Payment of
Obligations.
|
Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its taxes (Federal, state, local and any
other taxes) and all its other obligations and liabilities of whatever nature
and any additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such obligations and liabilities, except
(a) when the amount or validity of such obligations, liabilities and costs
is currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto have been
provided on the books of any Credit Party, as the case may be or (b) where
any such failure to pay, discharge or satisfy could not reasonably be expected
to have a Material Adverse Effect.
83
|
Section 5.4
|
Conduct of Business
and Maintenance of Existence.
|
Continue
to (a) engage in business of the same general type as now conducted by it on the
Closing Date and preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges and
franchises necessary or that the applicable Credit Party reasonably deems
desirable in the normal conduct of its business; provided that any
Credit Party or any Subsidiary thereof may reorganize in Delaware or in another
U.S. jurisdiction acceptable to the Required Lenders so long as the
Administrative Agent receives prior written notice thereof and all actions
required to continue the perfection of the Administrative Agent’s Liens on the
Collateral are taken; and provided,
further, the
Company may consummate the Acquisition and any other merger, consolidation,
purchase, lease or acquisition permitted under Section 6.4 or liquidate or
dissolve any Subsidiary that has no assets or that has sold, disposed of or
otherwise transferred all of its assets to the Borrower or a Subsidiary
Guarantor, and (b) comply with all Contractual Obligations and Requirements of
Law applicable to it except to the extent that failure to comply therewith,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
|
Section 5.5
|
Maintenance of
Property; Insurance.
|
(a) Keep all
Material Property useful and necessary in its business in good working order and
condition (ordinary wear and tear, damage by casualty and obsolescence
excepted);
(b) Maintain
with financially sound and reputable insurance companies insurance on all its
Material Property (including without limitation its material tangible
Collateral) in at least such amounts (or such greater amounts to the extent any
coverage amount maintained by the Credit Parties is significantly lower than the
coverage amount maintained by companies engaged in the same or a similar
business in the same general area) and against at least such risks as are
maintained by the Credit Parties as of the Closing Date and any other material
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative
Agent, upon written request, full information as to the insurance carried. The
Administrative Agent shall be named as loss payee or mortgagee, as its interest
may appear, (or additional insured in the case of liability coverage) with
respect to any such insurance providing coverage in respect of any Collateral,
and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered or
canceled, and that no act or default of any Credit Party or any Subsidiary of
the Company or any other Person shall affect the rights of the Administrative
Agent or the Lenders under such policy or policies;
and
(c) In case
of any material loss, damage to or destruction of the Collateral of any Credit
Party or any part thereof, such Credit Party shall promptly give written notice
thereof to the Administrative Agent generally describing the nature and extent
of such damage or destruction. In case of any material loss, damage to or
destruction of the Collateral of any Credit Party or any part thereof, such
Credit Party, whether or not the insurance proceeds, if any, received on account
of such damage or destruction shall be sufficient for that purpose, at such
Credit Party’s cost and expense, will promptly repair or replace the Collateral
of such Credit Party so lost, damaged or destroyed.
84
|
Section 5.6
|
Inspection of
Property; Books and Records; Discussions.
|
Keep
proper books and records of account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities; and permit,
during regular business hours and upon reasonable notice by the Administrative
Agent or any Lender, the Administrative Agent or any Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records (other than materials protected by the attorney-client privilege and
materials which any Credit Party may not disclose without violation of a
confidentiality obligation binding upon it) once a fiscal quarter or upon the
occurrence and during the continuance of a Default or an Event of Default, and
to discuss the business, operations, properties and financial and other
condition of the Credit Parties and their Subsidiaries with officers and
employees of the Credit Parties and their Subsidiaries and with its independent
certified public accountants. The forgoing, with respect to the Lenders, shall
be at such Lender’s expense and, with respect to the Administrative Agent, shall
be at the Borrower’s expense.
|
Section 5.7
|
Notices.
|
Give
notice in writing to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) promptly,
but in any event within two (2) Business Days after any Responsible Officer of a
Credit Party knows thereof, the occurrence of any Default or Event of
Default;
(b) promptly,
any default or event of default under any Contractual Obligation of any Credit
Party or any of its Subsidiaries which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or could reasonably be
expected to result in a monetary payment in excess of $10,000,000;
(c) promptly,
any litigation, or any investigation or proceeding known to any Credit Party (i)
affecting any Credit Party or any of its Subsidiaries which, if adversely
determined, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect or could reasonably be expected to result in a
monetary judgment in excess of $5,000,000 or (ii) affecting or with respect
to this Agreement or any other Credit Document;
85
(d) as soon
as possible and in any event within thirty (30) days after any Responsible
Officer of a Credit Party knows or has reason to know thereof: (i) the
occurrence of any material Reportable Event with respect to any Single Employer
Plan, a failure to make any required contribution to a Single Employer Plan, the
creation of any Lien in favor of a Single Employer Plan or in favor of the PBGC
with respect to a Single Employer Plan (other than a Permitted Lien) or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan, which could reasonably be expected to result in any material
liability for any Credit Party, or (ii) the institution of proceedings or the
taking of any other action by the PBGC or any Credit Party or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the terminating, Reorganization or Insolvency of, any Plan, which could
reasonably be expected to result in any material liability for any Credit Party;
(e) promptly,
of the institution of any investigation or proceeding against any Credit Party
to suspend, revoke or terminate or which may result in the termination of any
Medicaid Provider Agreement, Medicaid Certification, Medicare Provider
Agreement, Medicare Certification or exclusion from any Medical Reimbursement
Program;
(f) promptly,
after any Credit Party becomes involved in a pending civil or criminal
investigation, criminal action or civil proposed debarment, exclusion or other
sanctioning action related to any Federal or state healthcare program;
(g) promptly,
any other development or event which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(h) promptly,
any intention by the Borrower to treat the Loans and/or Letters of Credit and
related transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or
any successor form; and
(i) promptly,
the Company or any of its Subsidiaries (i) entering into a collective bargaining
agreement or Multiemployer Plan covering the employees of the Company or any of
its Subsidiaries, (ii) suffering any material strike, walkout, work stoppage or
other material labor difficulty or (iii) becoming aware of any material unfair
labor practice complaint against the Company or any of its Subsidiaries before
any Governmental Authority.
Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto. In the case of any notice of a Default or Event of Default, the
Borrower shall specify that such notice is a Default or Event of Default notice
on the face thereof.
|
Section 5.8
|
Environmental
Laws.
|
(a) Comply in
all material respects with, and ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except to the extent that
failure to do so, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect;
86
(b) Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect; and
(c) Defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors and affiliates, from and
against any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Credit Party or any of the Company’s Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the Person seeking
indemnification or any of its employees, agents, officers and directors and
affiliates. The agreements in this paragraph shall survive repayment of the
Notes and all other amounts payable hereunder.
|
Section 5.9
|
Financial
Covenants.
|
Commencing
on the day immediately following the Closing Date and for so long as this
Agreement shall remain in effect, each of the Credit Parties shall, and shall
cause each of its Subsidiaries to, comply with the following financial
covenants:
(a) Leverage
Ratio. The
Leverage Ratio, as of the last day of each fiscal quarter of the Company
occurring during the periods indicated below, shall be less than or equal to the
following:
|
Period
|
Ratio
|
|
Closing
Date through June 30, 2007
|
4.25
to 1.0
|
|
July
1, 2007 through December 31, 2007
|
4.00
to 1.0
|
|
January
1, 2008 through June 30, 2008
|
3.75
to 1.0
|
|
July
1, 2008 through December 31, 2008
|
3.50
to 1.0
|
|
January
1, 2009 through June 30, 2009
|
3.25
to 1.0
|
|
July
1, 2009 through December 31, 2009
|
3.00
to 1.0
|
|
January
1, 2010 through June 30, 2010
|
2.75
to 1.0
|
|
July
1, 2010 and thereafter
|
2.50
to 1.0
|
87
(b) Fixed Charge Coverage
Ratio. The
Fixed Charge Coverage Ratio, as of the last day of each fiscal quarter of the
Company occurring during the periods indicated below, shall be greater than or
equal to the following:
|
Period
|
Ratio
|
|
October
1, 2006 through December 31, 2008
|
1.250
to 1.0
|
|
January
1, 2009 through December 31, 2009
|
1.300
to 1.0
|
|
January
1, 2010 and thereafter
|
1.375
to 1.0
|
Notwithstanding
the above, the parties hereto acknowledge and agree that, for purposes of all
calculations made in determining compliance for any applicable period with the
financial covenants set forth in this Section, (i) after consummation of
any Permitted Acquisition, (A) income statement items and other balance
sheet items (whether positive or negative) attributable to the Target acquired
in such transaction shall be included in such calculations to the extent
relating to such applicable period, subject to adjustments mutually acceptable
to the Borrower and the Administrative Agent, and (B) Indebtedness of a
Target which is retired in connection with a Permitted Acquisition shall be
excluded from such calculations and deemed to have been retired as of the first
day of such applicable period and (ii) after any Asset Disposition
permitted by Section 6.4(a)(ix),
(A) income statement items, cash flow statement items and other balance
sheet items (whether positive or negative) attributable to the property or
assets disposed of shall be excluded in such calculations to the extent relating
to such applicable period, subject to adjustments mutually acceptable to the
Borrower and the Administrative Agent and (B) Indebtedness that is repaid
with the proceeds of such Asset Disposition shall be excluded from such
calculations and deemed to have been repaid as of the first day of such
applicable period.
|
Section 5.10
|
Additional Subsidiary
Guarantors.
|
The
Company will cause each of its Domestic Subsidiaries, whether newly formed,
after acquired or otherwise existing, to promptly become a Guarantor hereunder
by way of execution of a Joinder Agreement. The guaranty obligations of any such
Additional Credit Party shall be secured by, among other things, the property
and assets of such Additional Credit Party and such Domestic Subsidiary shall
execute and deliver to the Administrative Agent such Security Documents, legal
opinions and related documents as the Administrative Agent may reasonably
request with respect to such property and assets.
|
Section 5.11
|
Compliance with
Law.
|
The
Credit Parties will, and will cause each of its Subsidiaries to, (a) comply with
all expressly stated laws, rules, regulations, orders, restrictions and valid
requirements imposed by all Governmental Authorities and regulatory authorities
applicable to it, its property and assets and the conduct of its business if
noncompliance with any such law, rule, regulation, order, restriction or
requirement, including without limitation Titles XVIII and XIX of the Social
Security Act, Medicare Regulations and Medicaid Regulations, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
and (b)
obtain and maintain all licenses, permits, certifications and approvals of all
applicable Governmental Authorities as are required for the conduct of its
business as currently conducted and herein contemplated, including without
limitation professional licenses, appropriate Medicaid Certifications and
Medicare Certifications, if failure to do so could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Specifically,
but without limiting the foregoing, and except where any such failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect: (x) billing policies, arrangements, protocols and
instructions will comply with reimbursement requirements under Medicare,
Medicaid and other Medical Reimbursement Programs and will be administered by
properly trained personnel; and (y) medical director compensation arrangements
and other arrangements with referring physicians will comply with applicable
state and federal self-referral and anti-kickback laws, including without
limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2) and 42 U.S.C. Section
1395nn.
88
|
Section 5.12
|
Pledged
Assets.
|
(a) The
Company will, and will cause each of its Subsidiaries to, cause (i) 100% of the
outstanding Capital Stock of each of Victory, the Borrower and the Subsidiary
Guarantors and (ii) 65% (to the extent the pledge of a greater percentage would
be unlawful or would cause any materially adverse tax consequences to the
Borrower or any Guarantor) of the voting Capital Stock and 100% of the
non-voting Capital Stock of each first-tier Foreign Subsidiary of the Borrower
and the Subsidiary Guarantors, in each case to be subject at all times to a
first priority, perfected Lien in favor of the Administrative Agent pursuant to
the terms and conditions of the Security Documents or such other security
documents as the Administrative Agent shall reasonably request.
(b) If,
subsequent to the Closing Date, any Credit Party shall acquire any securities,
instruments (except checks), chattel paper or other personal property required
for perfection to be delivered to the Administrative Agent as Collateral
hereunder or under any of the Security Documents, such Credit Party shall
promptly (and in any event within three (3) Business Days) after such
acquisition notify the Administrative Agent of same; provided that
property the value of which, individually, is less than $500,000 and, in the
aggregate, is less than $1,000,000 in any twelve-month period, shall not be
required to be delivered until such time that all such property shall exceed
$1,000,000 in the aggregate in any twelve-month period. Each of the Credit
Parties shall take such action at its own expense as may be necessary or
otherwise requested by the Administrative Agent (including, without limitation,
any of the actions described in Sections 4.1(e) and 5.13(b) hereof) to ensure
that the Administrative Agent has a first priority perfected Lien to secure the
Credit Party Obligations in (i) all personal property Collateral of Colgate,
Victory, the Borrower and Subsidiary Guarantors and all tangible personal
property Collateral of the Company located in the United States and (ii) to the
extent required by the Administrative Agent or the Required Lenders in its or
their sole reasonable discretion, all real property owned by the Credit Parties
located in the United States, subject in each case only to Permitted Liens.
89
(c) If,
subsequent to the Closing Date, a Credit Party leases a warehouse, plant or
other real property material to such Person’s business and located within the
United States, such Credit Party shall (i) promptly notify the Administrative
Agent of such lease, (ii) to the extent required by the Administrative Agent and
to the extent consented to by the relevant landlord or not prohibited under the
lease, promptly deliver to the Administrative Agent such Mortgage Instruments,
title reports, Mortgage Policies, Surveys, environmental site assessment
reports, legal opinions and other documentation as the Administrative Agent may
reasonably require and (iii) use its reasonable best efforts to deliver to the
Administrative Agent such estoppel letters, consents and waivers from the
landlord on such real property as may be required by the Administrative Agent;
provided, that
the Credit Party shall not be required to expend any significant amount of money
to obtain such estoppel letters, consents and waivers.
|
Section 5.13
|
Limitations on Colgate
and Victory.
|
Neither
Colgate nor Victory shall have any Indebtedness or operations other than (a) its
Guaranty, (b) intercompany Subordinated Indebtedness or Investments permitted
hereunder, (c) operations as contemplated by the Tax Structure Documents, (d)
operations relating to the holding of the Capital Stock of its Subsidiaries and
(e) operations related to satisfying its obligations as a Credit
Party.
|
Section 5.14
|
Further
Assurances; Post-Closing
Covenant.
|
(a) Further
Assurances. Upon
the reasonable request of the Administrative Agent, promptly perform or cause to
be performed any and all acts and execute or cause to be executed any and all
documents for filing under the provisions of the Uniform Commercial Code or any
other Requirement of Law which are necessary or advisable to maintain in favor
of the Administrative Agent, for the benefit of the Secured Parties, Liens on
the Collateral that are duly perfected in accordance with the requirements of,
or the obligations of the Credit Parties under, the Credit Documents and all
applicable Requirements of Law.
(b) Deposit Account Control
Agreements. Within
sixty (60) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received, in form and substance reasonably satisfactory to the Administrative
Agent, Deposit Account Control Agreements and Securities Account Control
Agreements with respect to each account required to be subject to such agreement
pursuant to Section 6.13.
(c) Notice of Grant of
Security. Within
fifteen (15) Business Days after the Closing Date (or such extended period of
time as agreed to by the Administrative Agent), the Administrative Agent shall
have received, in form and substance reasonably satisfactory to the
Administrative Agent, (i)
evidence that a notice of a grant of security was served upon Bank of America,
N.A. with respect to each account of Colgate, Victory Swiftsure and UK Ltd
located in the United Kingdom and (ii) an
acknowledgement from Bank of America, N.A. as to the existence of such security,
to the extent such acknowledgement can be obtained using commercially reasonable
efforts.
90
(d) Real Property
Collateral. Within
sixty (60) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received, in form and substance reasonably satisfactory to the Administrative
Agent:
(i) fully
executed and notarized Mortgage Instruments encumbering the owned or, to the
extent not prohibited by the applicable lease or consented to by the applicable
landlord, leasehold interest in the Mortgaged Properties owned or leased by each
Credit Party and set forth on Schedule
3.19(d);
(ii) a title
report in respect of each of the Mortgaged Properties;
(iii) with
respect to each Mortgaged Property, ALTA Mortgage Policies issued by the Title
Insurance Company, assuring the Administrative Agent that each of the Mortgage
Instruments creates a valid and enforceable first priority mortgage lien on the
applicable Mortgaged Property, free and clear of all defects and encumbrances
except Permitted Liens, which Mortgage Policies shall provide for affirmative
insurance and such reinsurance as the Administrative Agent may reasonably
request, all of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent;
(iv) evidence
as to (A) whether any Mortgaged Property is in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards (a
“Flood Hazard
Property”) and
(B) if any Mortgaged Property is a Flood Hazard Property, (1) whether the
community in which such Mortgaged Property is located is participating in the
National Flood Insurance Program, (2) the Borrower’s or the applicable Credit
Party’s written acknowledgment of receipt of written notification from the
Administrative Agent (y) as to the fact that such Mortgaged Property is a Flood
Hazard Property and (z) as to whether the community in which each such Flood
Hazard Property is located is participating in the National Flood Insurance
Program and (3) copies of insurance policies or certificates of insurance of the
Borrower and its Subsidiaries evidencing flood insurance reasonably satisfactory
to the Administrative Agent and naming the Administrative Agent as loss payee on
behalf of the Lenders;
(v) to the
extent available, surveys of the sites of the Mortgaged Properties certified to
the Administrative Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date satisfactory to each of the Administrative
Agent and the Title Insurance Company by an independent professional licensed
land surveyor reasonably satisfactory to each of the Administrative Agent and
the Title Insurance Company;
91
(vi) reasonably
satisfactory Phase I environmental site assessment reports (or other
environmental reports acceptable to the Administrative Agent) with respect to
each of the Mortgaged Properties, together with (to the extent required by the
Administrative Agent) reliance letters with respect to such reports in favor of
the Lenders;
(vii)
opinions
of counsel to the Borrower or the applicable Credit Party for each jurisdiction
in which the Mortgaged Properties are located; and
(viii)
in the
case of the Properties located in McKinney,
Texas, Vista, California, Huntersville, North Carolina, Springfield,
Massachusetts, and Wayne, New Jersey, such estoppel letters, consents and
waivers from the landlords on such Properties as the Administrative Agent may
reasonably require; provided, that
the Credit Parties shall not be required (A) to obtain any such consent to the
extent the applicable landlord refuses to execute such consent after the Credit
Parties have used their commercially reasonable efforts to obtain such consent
or (B) to expend any significant amount of money to obtain such
consents.
(e) Stock Certificate and
Power. Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received the stock certificate evidencing the interest owned by Orthofix Inc. in
Innovative Spinal Technologies and a duly executed in blank undated stock or
transfer power with respect thereto.
(f) Opinion. Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received an opinion, in form and substance reasonably satisfactory to the
Administrative Agent, that the Capital Stock of each of the Credit Parties
organized under the laws of Delaware is duly authorized, validly issued, fully
paid, non-assessable and owned of record by such Credit Party.
(g) Intellectual
Property. Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received evidence that all chain of title issues have been resolved with the
United States Patent and Trademark Office and all third party security interests
with respect to the Intellectual Property of the Credit Parties have been
released of record with the United States Patent and Trademark Office;
provided that any
Indebtedness associated with such security interests shall have been paid in
full and terminated on or prior to the Closing Date.
92
ARTICLE VI
NEGATIVE
COVENANTS
The
Credit Parties hereby covenant and agree that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, Commitment Fee and all other amounts owing
to the Administrative Agent or any Lender hereunder, are paid in full that:
|
Section 6.1
|
Indebtedness.
|
No Credit
Party will, nor will it permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness
arising or existing under this Agreement and the other Credit
Documents;
(b) Indebtedness
of the Company and its Subsidiaries existing as of the Closing Date as
referenced in the financial statements referenced in Section 3.1 or the
liquidity section of the management discussion and analysis (and set out more
specifically in Schedule
6.1(b) hereto)
and renewals, refinancings or extensions thereof in a principal amount not in
excess of that outstanding as of the date of such renewal, refinancing or
extension; provided that the
Credit Parties party to the intercompany notes set forth on Schedule
6.1(b) hereby
agree that the intercompany Indebtedness evidenced by such intercompany notes
shall be subordinated to the Credit Party Obligations and that the Credit Party
Obligations shall be paid in full prior to any payments being made on such
intercompany notes, except as permitted by Section 6.10;
(c) Indebtedness
of the Borrower and its Subsidiaries incurred after the Closing Date consisting
of Capital Leases or Indebtedness incurred to provide all or a portion of the
purchase price or cost of construction of an asset (or assumed or acquired by
the Borrower and its Subsidiaries in connection with a Permitted Acquisition);
provided that (i)
such Indebtedness to the extent resulting from Capital Leases or as a result of
the purchase price or cost of construction when incurred shall not exceed the
purchase price or cost of construction of such asset; (ii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing; and (iii) the total amount
of all such Indebtedness shall not exceed $10,000,000 at any time
outstanding;
(d) Unsecured
intercompany Subordinated Indebtedness (i) owing
by a Credit Party (other than, subject to clause (iv) below, the Company) to
another Credit Party; provided that any
Subordinated Indebtedness issued by a Credit Party (other than the Company) to
Colgate or Victory shall be issued in accordance with the Tax Structure
Documents, (ii) among
the Company and Foreign Subsidiaries, (iii) among
Foreign Subsidiaries and other Foreign Subsidiaries or (iv) owing
by the Company to Colgate or Victory to the extent that such Subordinated
Indebtedness would be permitted by Section 6.10(d), (f) or (i) if made as a
Restricted Payment rather than the issuance of Subordinated
Indebtedness;
93
(e) Indebtedness
of Foreign Subsidiaries in an aggregate amount not to exceed $10,000,000 at any
time outstanding;
(f) Indebtedness
and obligations owing under Secured Hedging Agreements and other Hedging
Agreements entered into in order to manage existing or anticipated interest rate
or exchange rate risks and not for speculative purposes;
(g) Indebtedness
and obligations of the Borrower and its Subsidiaries owing under documentary
letters of credit for the purchase of goods or other merchandise (but not under
standby, direct pay or other letters of credit except for the Letters of Credit
hereunder) generally;
(h) (i)
Indebtedness of the Company or any of its Subsidiaries the proceeds of which are
used to prepay the Term Loan in accordance with Section 2.7 or used to fund
Permitted Acquisitions so long as such Indebtedness is (and all Guaranty
Obligations with respect to such Indebtedness are) unsecured and subordinated in
right and time of payment (subject to the terms of Section 6.10(h)) and priority
to the Credit Party Obligations pursuant to subordination provisions that are
reasonably satisfactory to the Administrative Agent and (ii)
Indebtedness of the Company or any of its Subsidiaries the proceeds of which are
used to prepay the Term Loan in accordance with Section 2.7 so long as such
Indebtedness is (and all Guaranty Obligations with respect to such Indebtedness
are) unsecured; provided, in each
case that (A) the
covenants and events of default of such Indebtedness are, taken as a whole,
materially less restrictive than those contained in this Agreement (and shall
not include any covenant or event of default more restrictive than those
contained in this Agreement), (B) both
immediately prior and after giving effect thereto, (1) no Default or Event of
Default shall exist or result therefrom and (2) the Company shall be in
compliance with the financial covenants set forth in Section 5.9, such
compliance immediately after giving effect thereto determined with regard to
calculations made on a Pro Forma Basis for the fiscal quarter most recently
ended, and the Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower to such effect, and (C) such
Indebtedness matures, and does not require any scheduled amortization or other
scheduled or mandatory payments of principal or first scheduled put right prior
to, the date which is at least 120 days after the later of the Term Loan
Maturity Date and the maturity date of any Incremental Term Facility, other than
(1) redemptions made at the option of the holders of such Indebtedness upon a
change in control of the issuer in circumstances that would also constitute a
Change of Control under this Agreement (provided that any
such redemption cannot be made fewer than thirty (30) days after such change in
control and that any such redemption is fully subordinated to the indefeasible
payment in full of all Credit Party Obligations), (2) mandatory prepayments
required as a result of asset dispositions if such Indebtedness allows the
issuer to satisfy such mandatory prepayment requirement by prepayment of Loans
under this Agreement or other senior obligations of the issuer or reinvestment
of the asset disposition proceeds within a specified period of time and (3)
payments permitted by Section 6.10(h)(ii);
94
(i) Guaranty
Obligations in respect of Indebtedness of the Company and its Subsidiaries to
the extent such Indebtedness is permitted to exist or be incurred pursuant to
this Section 6.1; and
(j) other
unsecured Indebtedness of the Company and its Subsidiaries which does not exceed
$10,000,000 in the
aggregate at any time outstanding.
|
Section 6.2
|
Liens.
|
No Credit
Party will, nor will it permit any of its Subsidiaries to, contract, create,
incur, assume or permit to exist any Lien with respect to any of its property or
assets of any kind (whether real or personal, tangible or intangible), whether
now owned or hereafter acquired, except for Permitted Liens. Notwithstanding the
foregoing, if a Credit Party shall xxxxx x Xxxx on any of its assets in
violation of this Section, then it shall be deemed to have simultaneously
granted an equal and ratable Lien on any such assets in favor of the
Administrative Agent for the ratable benefit of the Lenders and the Hedging
Agreement Providers, to the extent such Lien has not already been granted to the
Administrative Agent.
|
Section 6.3
|
Nature of
Business.
|
Each of
the Credit Parties will not, nor will any Credit Party permit any Subsidiary to,
alter the character of its business or any business activities reasonably
related thereto in any material respect from that conducted as of the Closing
Date; provided that the
foregoing shall not apply to the cessation of business activities that the
applicable Credit Party or Subsidiary reasonably believes should no longer be
conducted by such Credit Party or Subsidiary.
|
Section 6.4
|
Consolidation, Merger,
Sale or Purchase of Assets, etc.
|
Each of
the Credit Parties will not, nor will the Credit Parties permit any Subsidiary
to,
(a) dissolve,
liquidate or wind up its affairs, sell, transfer, lease or otherwise dispose of
its property or assets or agree to do so at a future time except the following,
shall be expressly permitted:
(i) the sale,
transfer, lease or other disposition of inventory and materials in the ordinary
course of business;
(ii) the sale,
transfer or other disposition of cash and Cash Equivalents;
95
(iii) (A) the
disposition of property or assets as a direct result of a Recovery Event or (B)
the sale, lease, transfer or other disposition of machinery, parts and equipment
no longer used or useful in the conduct of the business of the Borrower or any
of its Subsidiaries, so long as the Net Cash Proceeds from such dispositions,
sales, leases or transfers pursuant to clause (A) or (B) are used to replace
such machinery, parts and equipment or to purchase or otherwise acquire new
assets or property within 180 days of receipt of the Net Cash Proceeds or, with
respect to dispositions pursuant to clause (A), such Net Cash Proceeds are used
to prepay Loans and cash collateralize outstanding LOC Obligations in accordance
with the terms of Section 2.7(b)(iv); provided that,
upon the occurrence and during the continuance of a Default or an Event of
Default, the Credit Parties and their Subsidiaries shall not have the right to
reinvest such Net Cash Proceeds;
(iv) the sale,
lease or transfer of property or assets between or among (A) the
Borrower and the Subsidiary Guarantors; provided that any
sale, lease or transfer of property or assets to Swiftsure and UK Ltd shall be
limited to sales or transfers of property or assets in accordance with the Tax
Structure Documents, or (B) the
Foreign Subsidiaries of the Company and other Foreign Subsidiaries of the
Company;
(v) the
termination of any Hedging Agreement permitted pursuant to Section 6.1(f);
(vi) the
factoring or disposition of receivables by SRL in connection with the
Indebtedness of SRL set forth on Schedule
6.1(b);
(vii)
the sale
of any assets set forth on Schedule
6.4(a);
provided that the
Net Cash Proceeds from any such sale shall be applied to the Loans and the
outstanding LOC Obligations in accordance with the terms of Section 2.7(b)(ii)
(excluding any reinvestment right contained in such Section);
(viii)
the
liquidation or dissolution of (A) any
Domestic Subsidiary of the Company that has no assets or that has sold, disposed
of or otherwise transferred all of its assets to the Borrower or a Subsidiary
Guarantor, (B) any
Foreign Subsidiary of the Company that has no assets or that has sold, disposed
of or otherwise transferred all of its assets to the Borrower or a Subsidiary
Guarantor or another Foreign Subsidiary or (C)
Colgate, Victory, Swiftsure or UK Ltd if it has no assets or has sold, disposed
of or otherwise transferred all of its assets to the Borrower or a Subsidiary
Guarantor; provided that
Victory shall not be liquidated or dissolved unless the Administrative Agent
receives a first priority, perfected security interest in 100% of the Capital
Stock of the Borrower from the parent company of the Borrower after giving
effect to such liquidation or dissolution on terms satisfactory to the
Administrative Agent; and
(ix) the sale,
lease, transfer or other disposition of property or assets not to exceed
$3,000,000 in the aggregate in any fiscal year;
96
provided, that,
in the case of clauses (i), (ii), (iii), (vii) and (ix) above, at least 75% of
the consideration received therefore by the Borrower or any other Credit Party
is in the form of cash or Cash Equivalents; provided,
further, that
with respect to sales, transfers, leases or other dispositions of assets
permitted hereunder only, the Administrative Agent shall without the consent of
the Required Lenders, release its Liens relating to the particular assets sold,
transferred, leased or otherwise disposed of; or
(b) (i)
purchase, lease or otherwise acquire (in a single transaction or a series of
related transactions) the property or assets of any Person (other than
purchases, leases or other acquisitions of inventory, leases, materials,
property and equipment in the ordinary course of business, except as otherwise
limited or prohibited herein) or (ii) enter
into any transaction of merger or consolidation, except for (A) consummation of
the Acquisition, (B) investments or acquisitions permitted pursuant to Section
6.5, and (C) the merger or consolidation of (I) a Credit Party (other than the
Company, Colgate or Victory) with and into another Credit Party (other than the
Company, Colgate or Victory);
provided that
(y) if the
Borrower is a party thereto, the Borrower will be the surviving
corporation and (z)
the Administrative Agent’s Liens with respect to the Collateral of each Credit
Party involved in such merger or consolidation shall remain continuously
perfected; and
(II) a Foreign Subsidiary into another Foreign Subsidiary.
|
Section 6.5
|
Advances, Investments
and Loans.
|
No Credit
Party will, nor will it permit any Subsidiary to, make any Investment except for
Permitted Investments.
|
Section 6.6
|
Transactions with
Affiliates.
|
Except as
permitted in subsections (c), (d), (e), (f) or (k) of the definition of
Permitted Investments, no Credit Party will, nor will it permit any Subsidiary
to, enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm’s-length transaction with a Person other than
an officer, director, shareholder or Affiliate.
|
Section 6.7
|
Ownership of
Subsidiaries; Restrictions.
|
Neither
Colgate, Victory, the Borrower, nor any Subsidiary Guarantor will, nor will it
permit any Subsidiary to, create, form or acquire any Subsidiaries, except for
Domestic Subsidiaries which are Credit Parties or which are joined as Additional
Credit Parties in accordance with the terms hereof. Neither Colgate, Victory,
the Borrower, nor any Subsidiary Guarantor will sell, transfer, pledge or
otherwise dispose of any Capital Stock or other equity interests in any of its
Subsidiaries, nor will it permit any of its Subsidiaries to issue, sell,
transfer, pledge or otherwise dispose of any of their Capital Stock or other
equity interests, except in a transaction permitted by Section 6.4.
97
|
Section 6.8
|
Fiscal Year;
Organizational Documents; Material Contracts; Subordinated Indebtedness
Documents.
|
Each of
the Credit Parties will not, nor will any Credit Party permit any Subsidiary to,
change its fiscal year or its accounting policies except as required by GAAP.
Except as permitted pursuant to Section 5.4, each of the Credit Parties will
not, nor will any Credit Party permit any Subsidiary to, amend, modify or change
its articles of incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document) in a manner
adverse to the interests of the Lenders without the prior written consent of the
Required Lenders; provided that the
Company shall be permitted to amend such documents to provide for the issuance
of any classes or series of Capital Stock so long as such issuance does not
result in a Change of Control and the Capital Stock issued is not subject to
mandatory sinking fund payments, redemption or other acceleration or similar
rights or payments. Each of the Credit Parties will not, nor will any Credit
Party permit any Subsidiary to,
without
the prior written consent of the Administrative Agent, amend, modify, cancel or
terminate or fail to renew or extend or permit the amendment, modification,
cancellation or termination of any of the Material Contracts to the extent any
amendment, modification, cancellation, termination or failure to renew or extend
could reasonably be expected to have a Material Adverse Effect. Each of the
Credit Parties and their Subsidiaries will not, without the prior written
consent of the Required Lenders, amend, modify, waive or extend or permit the
amendment, modification, waiver or extension of any Subordinated Indebtedness or
of any documentation governing or evidencing such Subordinated Indebtedness in a
manner that is adverse to the interests of the Lenders or the issuer of such
Subordinated Indebtedness.
|
Section 6.9
|
Limitation on
Restricted Actions.
|
No Credit
Party will, nor will it permit any Subsidiary to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make any
other distributions to any Credit Party on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation owed to any Credit Party, (c) make loans or
advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a guarantor and pledge its assets
pursuant to the Credit Documents or any renewals, refinancings, exchanges,
refundings or extensions thereof, except (in respect of any of the matters
referred to in clauses (a)-(d) above) for such encumbrances or restrictions
existing under or by reason of (i) this Agreement and the other Credit
Documents, (ii) applicable law, (iii) any document or instrument governing
Indebtedness incurred pursuant to Section 6.1(c) or Guaranty Obligations with
respect to any of the foregoing; provided that any
such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, or (iv) any Permitted Lien or
any document or instrument governing any Permitted Lien; provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien.
98
|
Section 6.10
|
Restricted
Payments.
|
No Credit
Party will, nor will it permit any Subsidiary to, directly or indirectly,
declare, order, make or set apart any sum for or pay any Restricted Payment
except (a) to make
dividends or distributions payable solely in the same class of Capital Stock of
such Person (including, without limitation, stock splits provided that they are
in the same class of Capital Stock of such Person), (b) to make
dividends or other distributions (directly or indirectly through Subsidiaries)
payable to any Credit Party other than the Company, (c) to make
dividends or other distributions by a Foreign Subsidiary of the Company payable
(directly or indirectly through Subsidiaries) to any Credit Party or any other
Foreign Subsidiary, (d) to make
dividends payable solely to allow the Company, Colgate or Victory to pay federal
and state local taxes then due and owing, (e) so long
as no Event of Default has occurred and is continuing or would result therefrom,
to make (i) payments on intercompany Subordinated Indebtedness permitted under
Sections 6.1(b) and (d), or (ii) Permitted Investments in accordance with the
Tax Structure Documents; provided that
(A) no
payment shall be made pursuant to this Subsection from a Credit Party to the
Company or any Foreign Subsidiary thereof and (B) no
payment shall be made to Colgate or Victory except in accordance with the Tax
Structure Documents, (f) so long
as (i) no
Default or Event of Default exists or would exist on a Pro Forma Basis after
giving effect to such Restricted Payment and (ii) the
Leverage Ratio is less than 1.75 to 1.0 (A) before
giving effect to any such Restricted Payment and (B) on a
Pro Forma Basis after giving effect to any such Restricted Payment (and in the
case of any Restricted Payment or series of related Restricted Payments in an
amount in excess of $5,000,000, the Borrower shall have furnished to the
Administrative Agent a compliance certificate as to such compliance, together
with supporting calculations), to make Restricted Payments in an aggregate
amount that, taken together with the aggregate of all other Restricted Payments
made by the Credit Parties and their Subsidiaries (other than Restricted
Payments permitted under other subsections of this Section 6.10) from and after
the Closing Date, does not exceed the sum of 25% of Excess Cash Flow for the
period from the Closing Date to the end of the most recently ended fiscal year
for which the Company has delivered financial statements as required by Section
5.1(a) which then may be paid to the shareholders of the Company in the form of
a dividend or other distribution or may be used by the Company for other
corporate purposes, (g) so long
as no Default or Event of Default exists or would exist on a Pro Forma Basis
after giving effect to such Restricted Payment, to repurchase Capital Stock,
warrants, options or other rights to acquire Capital Stock of the Company from
current or former officers, employees or directors (or their heirs or estates)
of a Credit Party or any Subsidiary in connection with the death, disability or
termination of employment of any such Person in an aggregate amount not to
exceed $2,500,000 in any fiscal year and $5,000,000 during the term of this
Agreement, (h)
(i) to make
distributions to pay regularly scheduled interest payments on Subordinated
Indebtedness issued by a Credit Party permitted by Section 6.1(h) pursuant to
the subordination provisions applicable thereto and
(ii) to the
extent that Net Cash Proceeds resulting from the issuance of Subordinated
Indebtedness pursuant to Section 6.1(h) shall have been applied to repay the
Term Loan as set forth in Section 2.7(b) (and not to finance Permitted
Acquisitions) and so long as no Default or Event of Default shall have occurred
and be continuing, or would result therefrom on an actual or Pro Forma Basis, if
any such Subordinated Indebtedness shall contain a provision permitting a holder
thereof to convert or exchange such Indebtedness for common equity of the
Company and/or cash, to make payments in respect thereof upon the occurrence of
the event giving rise to such holders right to conversion or exchange and
(i) so long
as no Default or Event of Default exists or would exist on a Pro Forma Basis
after giving effect to such Restricted Payment, (A) the Company may make earnout
payments and any other deferred payment paid as consideration pursuant to a
Permitted Acquisition by the Company and (B) the Borrower and its Subsidiaries
may make earnout payments and any other deferred payment paid as consideration
pursuant to a Permitted Acquisition by the Borrower or any of its
Subsidiaries.
99
|
Section 6.11
|
Sale
Leasebacks.
|
No Credit
Party will, nor will it permit any Subsidiary to, directly or indirectly become
or remain liable as lessee or as guarantor or other surety with respect to any
lease, whether an operating lease or a Capital Lease, of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which any
Credit Party or any Subsidiary has sold or transferred or is to sell or transfer
to a Person which is not another Credit Party or Subsidiary
thereof.
|
Section 6.12
|
No Further Negative
Pledges.
|
No Credit
Party will, nor will it permit any Subsidiary to, enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, or requiring the grant of any security for such obligation
if security is given for some other obligation, except (a) pursuant to this
Agreement and the other Credit Documents, (b) pursuant to any document or
instrument governing Indebtedness incurred pursuant to Section 6.1(c),
provided that any
such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith and (c) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien;
provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien.
|
Section 6.13
|
Accounts.
|
Set forth
on Schedule
6.13 is a
complete and accurate list of all checking, savings or other accounts (including
securities accounts) of the Credit Parties at any bank or other financial
institution, or any other account where money is or may be deposited or
maintained with any Person as of the Closing Date. At anytime on or after
November 22, 2006, each of the Credit Parties (other than the Company) will not,
nor will it permit any Subsidiary to, open,
maintain or otherwise have any checking, savings or other accounts (including
securities accounts) at any bank or other financial institution, or any other
account where money is or may be deposited or maintained with any Person, other
than (a) the
accounts set forth on Schedule
6.13 and
designated as unrestricted accounts; provided that the
balance on any such account does not exceed $500,000 and the aggregate balance
in all such accounts does not exceed $1,500,000, (b) deposit
accounts that are subject to a Deposit Account Control Agreement, (c)
securities accounts that are subject to a Securities Account Control Agreement,
(d) deposit
accounts established solely as payroll and other zero balance accounts and
(e) deposit
accounts, so long as at any time the balance in any such account does not exceed
$500,000 and the aggregate balance in all such accounts does not exceed
$1,500,000.
100
ARTICLE VII
EVENTS OF DEFAULT
|
Section 7.1
|
Events of
Default.
|
An Event
of Default shall exist upon the occurrence of any of the following specified
events (each an “Event of
Default”):
(a) The
Borrower shall fail to pay any principal on any Loan when due in accordance with
the terms thereof or hereof; or the Borrower shall fail to reimburse the Issuing
Lender for any outstanding LOC Obligations when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or any fee or
other amount payable hereunder when due in accordance with the terms thereof or
hereof and such failure shall continue unremedied for three (3) Business Days
(or any Guarantor shall fail to pay on the Guaranty in respect of any of the
foregoing or in respect of any other Guaranty Obligations thereunder within the
aforesaid period of time); or
(b) Any
representation or warranty made or deemed made herein or in any of the other
Credit Documents or which is contained in any certificate, document or financial
or other written statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect, false or misleading in any
material respect on or as of the date made or deemed made; or
(c) (i) Any
of the Credit Parties or their Subsidiaries shall fail to perform, comply with
or observe any term, covenant or agreement applicable to it contained in Section
5.1(a), (b) and (c), Section 5.2, Section 5.4, Section 5.7(a) and (d), Section
5.9 or Article VI hereof; or (ii) any Credit Party shall fail to comply with any
other covenant, contained in this Credit Agreement or the other Credit Documents
or any other agreement, document or instrument among any Credit Party, the
Administrative Agent and the Lenders or executed by any Credit Party in favor of
the Administrative Agent or the Lenders (other than as described in Sections
7.1(a), 7.1(b) or 7.1(c)(i) above), and in the event such breach or failure to
comply is capable of cure, is not cured within thirty (30) days of its
occurrence; or
(d) Any of
the Credit Parties or their Subsidiaries shall (i) default in any payment
of principal of or interest on any Indebtedness (other than the Notes) in a
principal amount outstanding of at least $5,000,000 in the aggregate for the
Credit Parties and their Subsidiaries beyond the period of grace (not to exceed
30 days), if any, provided in the instrument or agreement under which such
Indebtedness was created; (ii) default in the observance or performance of any
other agreement or condition relating to any Indebtedness in a principal amount
outstanding of at least $5,000,000 in the aggregate for the Credit Parties and
their Subsidiaries or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
and, with respect to the foregoing, the effect of such default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its
stated maturity; or (iii) default
under any Secured Hedging Agreement; or
101
(e) (i) Any
of the Credit Parties or their Subsidiaries shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, suspension of payment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator, administrator, administrative receiver, compulsory manager or other
similar official for it or for all or any substantial part of its assets, or the
Credit Parties or their Subsidiaries shall make a general assignment or
arrangement for the benefit of any of its creditors; or (ii) there shall be
commenced against any of the Credit Parties or their Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for, with
respect to such proceeding or other action in a jurisdiction outside the United
States, a period of thirty (30) days and, with respect to such proceeding or
other action in a United States jurisdiction, a period of sixty (60) days; or
(iii) there shall be commenced against any of the Credit Parties or their
Subsidiaries, any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within, with respect to such case, proceeding or other action in
a jurisdiction outside the United States, thirty (30) days from the entry
thereof and, with respect such case, proceeding or other action in a United
States jurisdiction, sixty (60) days from the entry thereof; or (iv) any of the
Credit Parties or their Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clauses (i), (ii), or (iii) above; or (v) any of the Credit Parties
(together with their Subsidiaries taken as a whole) shall fail to be Solvent;
or
(f) One or
more judgments or decrees shall be entered against any of the Credit Parties and
shall not have been paid and satisfied, vacated, discharged, stayed or bonded
pending appeal within ten (10) days from the entry thereof to the extent such
judgments and decrees involve a liability (to the extent not paid when due or
covered by insurance in excess of $5,000,000 in the aggregate); or
(g) (i) Any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Single Employer Plan, (ii)
any “accumulated funding deficiency” (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Single Employer Plan or
any Lien in favor of a Single Employer Plan or in favor of the PBGC with respect
to a Single Employer Plan (other than a Permitted Lien) shall arise on the
assets of any Credit Party or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a Trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, or (v) any Credit Party or any Commonly Controlled
Entity shall incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, any Multiemployer Plan; and in each case in
clauses (i) through (v) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
102
(h) There
shall occur a Change of Control; or
(i) The
Guaranty or any provision thereof shall cease to be in full force and effect or
any Guarantor or any Person authorized to act by or on behalf of any Guarantor
shall deny or disaffirm any Guarantor’s obligations under the Guaranty;
or
(j) (i) Any
other Credit Document or any security interest or Lien granted thereunder shall
fail to be in full force and effect, shall be declared null and void or shall
fail to give the Administrative Agent and/or the Lenders the security interests,
liens, perfection, priority, rights, powers and privileges purported to be
created thereby (except as such documents may be terminated or no longer in
force and effect in accordance with the terms thereof, other than those
indemnities and provisions which by their terms shall survive); or (ii) any
Credit Party or any Person authorized to act by or on behalf of any Credit Party
shall deny or disaffirm any Credit Party Obligations or shall deny, disaffirm or
contest the validity, perfection or priority of any security interest or Lien
granted under the Security Documents; or
(k) Any
default (which is not waived or cured within the applicable period of grace) or
event of default shall occur under any document governing or evidencing any
Subordinated Indebtedness or the subordination provisions contained therein
shall cease to be in full force and effect or to give the Administrative Agent
and the Lenders the rights, powers and privileges purported to be created
thereby; or
(l) any
Credit Party shall be temporarily or permanently excluded from, or have payments
suspended under, (i) any Medicaid Provider Agreement, Medicaid Certification,
Medicare Provider Agreement or Medicare Certification or (ii) any Medical
Reimbursement Program, where such exclusion or suspension arises from fraud or
other claims or allegations which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
103
|
Section 7.2
|
Acceleration;
Remedies.
|
Upon the
occurrence and during the continuation of an Event of Default, then, and in any
such event, (a) if such event is an Event of Default specified in Section 7.1(e)
above with respect to any Credit Party or any material Subsidiary of the
Company, automatically the Commitments shall immediately terminate and the Loans
(with accrued interest thereon), and all other amounts under the Credit
Documents (including without limitation the maximum amount of all contingent
liabilities under Letters of Credit) shall immediately become due and payable,
and (b) if such event is any other Event of Default, any or all of the following
actions may be taken: (i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; (ii) the Administrative Agent may, or upon the written
request of the Required Lenders, the Administrative Agent shall, by notice of
default to the Borrower, declare the Loans (with accrued interest thereon) and
all other amounts
owing under this Agreement and the Notes to be due and payable forthwith and
direct the Borrower to pay to the Administrative Agent cash collateral as
security for the outstanding LOC Obligations for subsequent drawings under then
outstanding Letters of Credit in an amount equal to the maximum amount of which
may be drawn under Letters of Credit then outstanding, whereupon the same shall
immediately become due and payable; (iii) exercise any rights or remedies of the
Administrative Agent or the Lenders under this Agreement or any other Credit
Document, including, without limitation, any rights or remedies with respect to
the Collateral; and (iv) exercise any rights or remedies available to the
Administrative Agent or Lenders under applicable law.
ARTICLE VIII
THE AGENT
|
Section 8.1
|
Appointment.
|
Each
Lender hereby irrevocably designates and appoints Wachovia Bank, National
Association as the Administrative Agent of such Lender under this Agreement, and
each such Lender irrevocably authorizes Wachovia Bank, National Association, as
the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
104
|
Section 8.2
|
Delegation of
Duties.
|
The
Administrative Agent may execute any of its duties under this Agreement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care. Without limiting the
foregoing, but subject to the provisions of Section 8.3, the Administrative
Agent may appoint one of its affiliates as its agent to perform the functions of
the Administrative Agent hereunder relating to the advancing of funds to the
Borrower and distribution of funds to the Lenders and to perform such other
related functions of the Administrative Agent hereunder as are reasonably
incidental to such functions.
|
Section 8.3
|
Exculpatory
Provisions.
|
Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement (except for its or such Person’s own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
any of the Credit Documents or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance by the Borrower of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrower and its Subsidiaries.
|
Section 8.4
|
Reliance by
Administrative Agent.
|
(a) The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it in good faith
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless (a) a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent and (b) the Administrative Agent
shall have received the written agreement of such assignee to be bound hereby as
fully and to the same extent as if such assignee were an original Lender party
hereto, in each case in form satisfactory to the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or 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 Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under any of the Credit Documents in
accordance with a request of the Required Lenders or all of the Lenders, as may
be required under this Agreement, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
105
(b) For
purposes of determining compliance with the conditions specified in
Section 4.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender.
|
Section 8.5
|
Notice of
Default.
|
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative 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
unless and until the Administrative Agent shall have received such directions,
the Administrative 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 interests of the Lenders except
to the extent that this Credit Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the
Required Lenders, or all of the Lenders, as the case may be.
|
Section 8.6
|
Non-Reliance on
Administrative Agent and Other Lenders.
|
Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representation or warranty to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative 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 credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
106
|
Section 8.7
|
Indemnification.
|
The
Lenders agree to indemnify the Administrative Agent and the Revolving Lenders
agree to indemnify the Issuing Lender and the Swingline Lender, in each case in
its capacity hereunder and their Affiliates and their respective officers,
directors, agents and employees (to the extent not reimbursed by the Borrower
and without limiting any obligation of the Borrower to do so), ratably according
to their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against any such indemnitee in any way
relating to or arising out of any Credit Document or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such indemnitee under or in
connection with any of the foregoing; provided,
however, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from such indemnitee’s gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction. The agreements in this Section 8.7 shall survive the termination
of this Agreement and payment of the Notes and all other amounts payable
hereunder.
|
Section 8.8
|
Administrative Agent
in Its Individual Capacity.
|
The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to its Loans made or renewed by it and any Note issued to it, the Administrative
Agent shall have the same rights and powers under this Agreement as any Lender
and may exercise the same as though it were not the Administrative Agent, and
the terms “Lender” and “Lenders” shall include the Administrative Agent in its
individual capacity.
107
|
Section 8.9
|
Successor
Administrative Agent.
|
The
Administrative Agent may resign as Administrative Agent upon thirty (30)
days’ prior written notice to the Borrower and the Lenders. If the
Administrative Agent shall resign as Administrative Agent, then the Required
Lenders shall appoint from among the Lenders (with such Lender’s consent) a
successor agent for the Lenders, which successor agent shall in the absence of a
Default or an Event of Default be approved by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term “Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent gives notice of its resignation, then such resignation shall nonetheless
become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents (except that in the
case of any Collateral held by the Administrative Agent on behalf of the Secured
Parties, the retiring Administrative Agent shall continue to hold such
Collateral until such time as a successor Administrative Agent is appointed) and
(b) all payments, communications and determinations provided to be made by,
to or through the Administrative Agent shall instead be made by or to (i) each
Lender and the Issuing Lender directly with respect to payments and
communications and (ii) the Required Lenders with respect to any determination,
until such time as the Required Lenders appoint a successor Administrative Agent
as provided for above in this paragraph. After any retiring Administrative
Agent’s resignation as Administrative Agent, the provisions of this Section 8.9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
|
Section 8.10
|
Other
Agents.
|
None of
the Lenders or other Persons identified on the cover page or signature pages of
this Agreement as a “syndication agent,” “documentation agent,” “co-agent,”
“book manager,” “bookrunner,” “joint bookrunner,” “lead manager,” “arranger,”
“lead arranger,” “joint lead arrangers” or “co-arranger” shall have any right
(except as expressly set forth herein), power, obligation, liability,
responsibility or duty under this Agreement or under any other Credit Document
other than, in the case of such Lenders, those applicable to all Lenders as
such; provided,
however, that
the agents and co-lead arrangers shall be entitled to the same rights,
protections, exculpations and indemnifications granted to the Administrative
Agent under this Article VIII in their capacity as an agent or co-lead
arranger. Without limiting the foregoing, none of the Lenders or other Persons
so identified shall have or be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not rely,
on any of the Lenders or other Persons so identified in deciding to enter into
this Credit Agreement or in taking or not taking action hereunder.
|
Section 8.11
|
Releases.
|
The
Administrative Agent will promptly release any Guarantor and any Lien on any
Collateral, which is sold, transferred or otherwise disposed of as permitted by
the Credit Agreement or as otherwise permitted by the Lenders or Required
Lenders, as applicable.
108
ARTICLE IX
MISCELLANEOUS
|
Section 9.1
|
Amendments, Waivers
and Release of Collateral.
|
Neither
this Agreement, nor any of the other Credit Documents, nor any terms hereof or
thereof may be amended, supplemented, waived or modified except in accordance
with the provisions of this Section. The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from time
to time, (a) enter into with the Credit Parties written amendments,
supplements or modifications hereto and/or to the other Credit Documents for the
purpose of adding, deleting or modifying any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights or obligations of
the Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders may specify in such
instrument, any of the requirements of this Agreement or the other Credit
Documents or any Default or Event of Default and its consequences; provided,
however, that no
such waiver and no such amendment, waiver, supplement, modification or release
shall:
(i) reduce
the amount or extend the scheduled date of maturity of any Loan, Note or LOC
Obligation or any installment thereon, or reduce the stated rate of any interest
or fee payable hereunder (except in connection with a waiver of interest at the
increased post-default rate set forth in Section 2.9 which shall be determined
by a vote of the Required Lenders) or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender’s
Commitment, in each case without the written consent of each Lender directly
affected thereby; provided that, it
is understood and agreed that (A) no waiver, reduction or deferral of a
mandatory prepayment required pursuant to Section 2.7(b), nor any amendment of
Section 2.7(b) or the definitions of Asset Disposition, Debt Issuance, Equity
Issuance, Excess Cash Flow or Recovery Event, shall
constitute a reduction of the amount of, or an extension of the scheduled date
of maturity of, or any installment of, any Loan, Note or LOC Obligation, (B) any
reduction in the stated rate of interest on Revolving Loans shall only require
the written consent of each Lender holding a Revolving Commitment and (C) any
reduction in the stated rate of interest on the Term Loan shall only require the
written consent of each Lender holding a portion of the outstanding Term Loan;
or
(ii) amend,
modify or waive any provision of this Section or reduce the percentage specified
in the definition of Required Lenders, without the written consent of all the
Lenders; or
(iii) amend,
modify or waive any provision of Article VIII without the written consent of the
then Administrative Agent; or
109
(iv) release
the Borrower or all or substantially all of the Guarantors from obligations
under the Guaranty, without the written consent of all of the Lenders and the
Hedging Agreement Providers; or
(v) release
all or substantially all of the Collateral without the written consent of all of
the Lenders and Hedging Agreement Providers; or
(vi) subordinate
any Credit Party Obligations to any other Indebtedness or the Liens securing the
Credit Party Obligations to any other Indebtedness without the written consent
of all of the Lenders; or
(vii)
permit a
Letter of Credit to have an original expiry date more than twelve (12) months
from the date of issuance without the consent of each of the Revolving Lenders;
provided, that
the expiry date of any Letter of Credit may be extended in accordance with the
terms of Section 2.3(a); or
(viii)
permit
any Credit Party to assign or transfer any of its rights or obligations under
this Agreement or other Credit Documents without the written consent of all of
the Lenders; or
(ix) amend or
modify the definition of Credit Party Obligations to delete or exclude any
obligation or liability described therein without the written consent of each
Lender and each Hedging Agreement Provider directly affected thereby;
or
(x) amend,
modify or waive any provision of the Credit Documents requiring consent,
approval or request of the Required Lenders or all Lenders without the written
consent of the Required Lenders or all the Lenders as appropriate;
or
(xi) without
the consent of Revolving Lenders holding in the aggregate more than 50% of the
outstanding Revolving Commitments (or if the Revolving Commitments have been
terminated, the aggregate principal amount of outstanding Revolving Loans),
amend, modify or waive any provision in Section 4.2 or waive any Default or
Event of Default (or amend any Credit Document to effectively waive any Default
or Event of Default) if the effect of such amendment, modification or waiver is
that the Revolving Lenders shall be required to fund Revolving Loans when such
Lenders would otherwise not be required to do so; or
(xii) amend,
modify or waive the order in which Credit Party Obligations are paid or in a
manner that would alter the pro rata sharing of payments by and among the
Lenders, including, without limitation, as provided in Section 2.12,
without the written consent of each Lender and each Hedging Agreement Provider
directly affected thereby; or
110
(xiii)
amend the
definitions of “Hedging Agreement,” “Secured Hedging Agreement,” or “Hedging
Agreement Provider” without the consent of any Hedging Agreement Provider that
would be adversely affected thereby.
provided,
further, that no
amendment, waiver or consent affecting the rights or duties of the
Administrative Agent, the Issuing Lender or the Swingline Lender under any
Credit Document shall in any event be effective, unless in writing and signed by
the Administrative Agent, the Issuing Lender and/or the Swingline Lender, as
applicable, in addition to the Lenders required hereinabove to take such action.
Any such
waiver, any such amendment, supplement or modification and any such release
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the other Credit Parties, the Lenders, the Administrative Agent and
all future holders of the Notes. In the case of any waiver, the Borrower, the
other Credit Parties, the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the outstanding Loans
and Notes and other Credit Documents, and any Default or Event of Default
permanently waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding
any of the foregoing to the contrary, the consent of the Borrower shall not be
required for any amendment, modification or waiver of the provisions of Article
VIII (other than the provisions of Section 8.9); provided, however, that
the Administrative Agent will provide written notice to the Borrower of any such
amendment, modification or waiver.
Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such
Lender sees fit on any bankruptcy reorganization plan that affects the Loans,
and each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set forth herein and
(y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
|
Section 9.2
|
Notices.
|
Except as
otherwise provided in Article II, all notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy or other electronic communication with confirmed receipt from the
recipient), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made (a) when delivered by hand, (b) when
transmitted via telecopy (or other electronic communication device with
confirmed receipt from the recipient) to the number set out herein, (c) the day
following the day on which the same has been delivered prepaid (or pursuant to
an invoice arrangement) to a reputable national overnight air courier service,
or (d) the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case, addressed as
follows in the case of the Borrower, the other Credit Parties and the
Administrative Agent, and, in the case of each of the Lenders, as set forth in
such Lender’s Administrative Details Form, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Notes:
111
|
The
Borrower
|
Orthofix
Holdings, Inc.
|
|
and
the other
|
Xxx
Xxxxxx Xxxxxxxx, Xxxxx 000
|
|
Credit
Parties:
|
00000
Xxxxxx Xxxxxx
|
Xxxxxxxxxxxx
Xxxxxxxx Xxxx
Xxxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention:
Xxxxxx
Xxxx
Telecopier:
000 000
0000
Telephone:
000 000
0000
|
The
Administrative
|
Wachovia
Bank, National Association, as Administrative
Agent
|
|
Agent:
|
Charlotte
Plaza
|
000 Xxxxx
Xxxxxxx Xxxxxx
XX0000/XX0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention:
Syndication
Agency Services
Telecopier:
(000)
000-0000
Telephone:
(000)
000-0000
with a
copy to:
Wachovia
Bank, National Association
One
Wachovia Center
000 Xxxxx
Xxxxxxx Xxxxxx, XX 15
XX0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention:
Xxxxx
Santa Xxxx
Telecopier:
(000)
000-0000
Telephone:
(000)
000-0000
|
Section 9.3
|
No Waiver; Cumulative
Remedies.
|
No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
|
Section 9.4
|
Survival of
Representations and Warranties.
|
All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans; provided that all
such representations and warranties shall terminate on the date upon which the
Commitments have been terminated, no Credit Document remains in effect and all
Credit Party Obligations have been paid in full.
112
|
Section 9.5
|
Payment of Expenses
and Taxes.
|
The
Borrower agrees (a) to pay or reimburse the Administrative Agent and the
Arranger for all their reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation, negotiation, printing and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith (including, without limitation, all CUSIP fees for
registration with S&P’s CUSIP Service Bureau, together with the reasonable
fees and disbursements of counsel to the Administrative Agent and the Arranger,
(b) to pay or reimburse the Administrative Agent and, if an Event of
Default shall have occurred and is continuing, each Lender for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement and the other Credit Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, and if applicable, and to the Lenders (including
reasonable allocated costs of in-house legal counsel), (c) on demand, to
pay, indemnify, and hold each Lender, the Administrative Agent and the Arranger
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Credit
Documents and any such other documents; except for any and all stamp, excise and
other similar taxes payable in connection with any transfer under Section 9.6 of
this Agreement, (d) to pay, indemnify, and hold each Lender, the
Administrative Agent, the Arranger and their Affiliates and their respective
officers, directors, employees, partners, members, counsel, agents,
representatives, advisors and affiliates (collectively called the “Indemnitees”)
harmless from and against, any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents and any such
other documents and the use, or proposed use, of proceeds of the Loans and
(e) to pay any civil penalty or fine assessed by the U.S. Department of the
Treasury’s Office of Foreign Assets Control against, and all reasonable costs
and expenses (including counsel fees and disbursements) incurred in connection
with defense thereof by the Administrative Agent or any Lender as a result of
the funding of Loans, the issuance of Letters of Credit, the acceptance of
payments or of Collateral due under the Credit Documents (all of the foregoing,
collectively, the “Indemnified
Liabilities”);
provided,
however, that
the Borrower shall not have any obligation hereunder to an Indemnitee with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnitee, as determined by a court of competent
jurisdiction pursuant to a final non-appealable judgment. The agreements in this
Section shall survive repayment of the Loans, Notes and all other amounts
hereunder.
113
|
Section 9.6
|
Successors and
Assigns; Participations; Purchasing Lenders.
|
(a) This
Agreement shall be binding upon and inure to the benefit of the Credit Parties,
the Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Credit Parties may not assign
or transfer any of their rights or obligations under this Agreement or the other
Credit Documents without the prior written consent of each Lender.
(b) Any
Lender may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or other entities
(“Participants”)
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender, or any other interest of such Lender
hereunder. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender’s obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. No Lender shall transfer or grant any participation under which the
Participant shall have rights to approve any amendment to, or supplement,
modification or waiver of, this Agreement or any other Credit Document except to
the extent such amendment, supplement, modification or waiver would
(i) extend the scheduled maturity of any Loan or Note or any installment
thereon in which such Participant is participating, or reduce the stated rate or
extend the time of payment of interest or fees thereon (except in connection
with a waiver of interest at the increased post-default rate set forth in
Section 2.9 which shall be determined by a vote of the Required Lenders) or
reduce the principal amount thereof, or increase the amount of the Participant’s
participation over the amount thereof then in effect; provided that, it
is understood and agreed that (A) any waiver, reduction or deferral of a
mandatory prepayment required pursuant to Section 2.7(b) and any amendment of
Section 2.7(b) or the definitions of Asset Disposition, Debt Issuance, Equity
Issuance, or
Recovery Event, (B) any waiver of any Default or Event of Default and (C) any
increase in any Commitment or Loan shall be permitted without consent of any
participant if the Participant’s participation is not increased as a result
thereof, (ii) release all or substantially all of the Guarantors from their
obligations under the Guaranty, (iii) release
all or substantially all of the Collateral, or
(iv) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement. In the case of any such participation, the
Participant shall not have any rights under this Agreement or any of the other
Credit Documents (the Participant’s rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the Participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation; provided that
each Participant shall be entitled to the benefits of Sections 2.14, 2.15, 2.16,
2.17 and 9.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time; provided further, that no
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
114
(c) Any
Lender may, in accordance with applicable law, at any time, sell or assign to
any Lender or any Affiliate or Approved Fund thereof and to one or more
additional banks, insurance companies, financial institutions, investment funds
or other entities (“Purchasing
Lenders”), all
or any part of its rights and obligations under this Agreement and the Notes in
minimum amounts of (i) $1,000,000 (or such lesser amount approved by the
Administrative Agent and, so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower) with respect to its Revolving
Commitment and its Revolving Loans (or, if less, the entire amount of such
Lender’s Revolving Commitment and Revolving Loans) and (ii) $1,000,000 (or
such lesser amount approved by the Administrative Agent and so long as no
Default or Event of Default shall have occurred and be continuing, the Borrower)
with respect to its Term Loans (or, if less, the entire amount of such Lender’s
Term Loans), pursuant to an Assignment Agreement, executed by such Purchasing
Lender and such transferor Lender, consented to (such consent not to be
unreasonably withheld or delayed) by the Administrative Agent, the Issuing
Lender and the Borrower (to the extent required), and delivered to the
Administrative Agent for its acceptance and recording in the Register;
provided,
however, that
(A) any sale or assignment to an existing Lender, or Affiliate or Approved
Fund thereof, shall not require the consent of the Borrower, the Issuing Lender
or the Administrative Agent (but shall be accepted and acknowledged by the
Administrative Agent for the sole purpose of recording same in the Register) nor
shall any such sale or assignment be subject to the minimum assignment amounts
specified herein, (B) so long as no Default or Event of Default shall have
occurred and be continuing, except as provided in the foregoing clause (A), any
sale or assignment of a portion of the Revolving Loans and a Revolving Loan
Commitment shall require the consent of the Borrower (such
consent not to be unreasonably withheld), (C) except as provided in the
foregoing clause (ii), any sale or assignment of a portion of the Term Loan and
a Term Loan Commitment shall not require the consent of the Borrower and (D)
contemporaneous sales and/or assignments to a Purchasing Lender and its
Affiliates and Approved Funds shall be treated as one assignment for purposes of
determining compliance with the minimum assignment amounts specified herein.
Upon such execution, delivery, acceptance and recording, from and after the
Transfer Effective Date specified in such Assignment Agreement, (1) the
Purchasing Lender thereunder shall be a party hereto and, to the extent provided
in such Assignment Agreement, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (2) the transferor
Lender thereunder shall, to the extent provided in such Assignment Agreement, be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of a transferor
Lender’s rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto; provided,
however, that
such Lender shall continue to be entitled to any indemnification rights that
expressly survive hereunder). Such Assignment Agreement shall be deemed to amend
this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement and the Notes. On or prior to the Transfer Effective Date specified in
such Assignment Agreement, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the Notes delivered to the
Administrative Agent pursuant to such Assignment Agreement new Notes to the
order of such Purchasing Lender in an amount equal to the Commitment assumed by
it pursuant to such Assignment Agreement and, unless the transferor Lender has
not retained a Commitment hereunder, new Notes to the order of the transferor
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Notes shall be in the form of the Notes replaced thereby. Notwithstanding
anything to the contrary contained in this Section, a Lender may assign any or
all of its rights under this Agreement to an Affiliate or a Approved Fund of
such Lender without delivering an Assignment Agreement to the Administrative
Agent; provided,
however, that
(x) the Credit Parties and the Administrative Agent may continue to deal solely
and directly with such assigning Lender until an Assignment Agreement has been
delivered to the Administrative Agent for recordation on the Register, (y) the
failure of such assigning Lender to deliver an Assignment Agreement to the
Administrative Agent shall not affect the legality, validity or binding effect
of such assignment and (z) an Assignment Agreement between the assigning Lender
and an Affiliate or Approved Fund of such Lender shall be effective as of the
date specified in such Assignment Agreement.
115
(d) The
Administrative Agent shall maintain at its address referred to in
Section 9.2 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 Commitment of,
and principal amount of the Loans owing to, each Lender from time to time.
Subject to the requirements of Section 9.6(c), a Loan (and the related Note)
recorded on the Register may be assigned or sold in whole or in part upon
registration of such assignment or sale on the Register. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice. In the case of an assignment pursuant to the last
sentence of Section 9.6(c) as to which an Assignment Agreement is not delivered
to the Administrative Agent, the assigning Lender shall, acting solely for this
purpose as a non-fiduciary agent of the Credit Parties, maintain a comparable
register on behalf of the Credit Parties. In the event that any Lender sells
participations in a Loan recorded on the Register, such Lender shall maintain a
register on which it enters the name of all participants in such Loans held by
it (the “Participant
Register”). A
Loan recorded on the Register (and the registered Note, if any, evidencing the
same) may be participated in whole or in part only by registration of such
participation on the Participant Register (and each registered Note shall
expressly so provide). Any participation of such Loan recorded on the Register
(and the registered Note, if any, evidencing the same) may be effected only by
the registration of such participation on the Participant Register.
116
(e) Upon its
receipt of a duly executed Assignment Agreement, together with payment to the
Administrative Agent by the transferor Lender or the Purchasing Lender, as
agreed between them, of a registration and processing fee of $3,500 for each
Purchasing Lender (other than a Purchasing Lender that is an Affiliate or
Approved Fund of the transferor Lender) listed in such Assignment Agreement and
the Notes subject to such Assignment Agreement, the Administrative Agent shall
(i) accept such Assignment Agreement, (ii) record the information
contained therein in the Register and (iii) give
prompt notice of such acceptance and recordation to the Lenders and the
Borrower.
(f) The
Borrower authorizes each Lender to disclose to any Participant or Purchasing
Lender (each, a “Transferee”) and
any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and its Subsidiaries which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender’s credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement, in each case subject to
Section 9.15.
(g) At the
time of each assignment pursuant to this Section to a Person which is not
already a Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms described in
Section 2.18.
(h) Nothing
herein shall prohibit any Lender from pledging or assigning any of its rights
under this Agreement (including, without limitation, any right to payment of
principal and interest under any Note) to secure obligations of such Lender,
including without limitation, (i) any pledge or assignment to secure
obligations to a Federal Reserve Bank and (ii) in the case of any Lender
that is a fund or trust or entity that invests in commercial bank loans in the
ordinary course of business, any pledge or assignment to any holders of
obligations owed, or securities issued, by such Lender including to any trustee
for, or any other representative of, such holders; it being understood that the
requirements for assignments set forth in this Section shall not apply to any
such pledge or assignment of a security interest, except with respect to any
foreclosure or similar action taken by such pledgee or assignee with respect to
such pledge or assignment; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto and no such pledgee or assignee shall have any voting
rights under this Agreement unless and until the requirements for assignments
set forth in this Section are complied with in connection with any foreclosure
or similar action taken by such pledgee or assignee.
117
|
Section 9.7
|
Adjustments;
Set-off.
|
(a) Each
Lender agrees that if any Lender (a “benefited
Lender”) shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(e), or otherwise) in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender’s Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender’s Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if
all or any portion of such excess payment or benefits is thereafter recovered
from such benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender’s Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In
addition to any rights and remedies of the Lenders provided by law (including,
without limitation, other rights of set-off), each Lender (and its Affiliates)
shall have the right, without prior notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable
law, in the event that all amounts under the Credit Agreement shall have become
immediately due and payable pursuant to Section 7.2, to setoff and appropriate
and apply any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held by or owing to such Lender (and its
Affiliates) or any branch or agency thereof to or for the credit or the account
of the Borrower or any other Credit Party, or any part thereof in such amounts
as such Lender (and its Affiliates) may elect, against and on account of the
Loans and other Credit Party Obligations of the Borrower and the other Credit
Parties and claims of every nature and description of such Lender against the
Borrower and the other Credit Parties, in any currency, whether arising
hereunder, under any other Credit Document or any Secured Hedging Agreement
provided pursuant to the terms of this Agreement, as such Lender may elect,
whether or not such Lender or any other Lender has made any demand for payment
and although such obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by such Lender (and
its Affiliates) against the Borrower, any other Credit Party or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of the
Borrower or any other Credit Party, or against anyone else claiming through or
against the Borrower, any other Credit Party or any 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 shall not have been exercised by such Lender (or its
Affiliates) prior to the occurrence of any Event of Default. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender (and its Affiliates); provided,
however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
118
|
Section 9.8
|
Table of Contents and
Section Headings.
|
The table
of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.
|
Section 9.9
|
Counterparts.
|
This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same agreement. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or email
shall be effective as delivery of a manually executed counterpart of this
Agreement and shall constitute a representation that an original executed
counterpart will follow.
|
Section 9.10
|
Effectiveness.
|
This
Credit Agreement shall become effective on the date on which all of the parties
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent pursuant to Section 9.2 or, in
the case of the Lenders, shall have given to the Administrative Agent written,
telecopied or other electronic notice with confirmed receipt from the recipient
at such office that the same has been signed and mailed to it.
|
Section 9.11
|
Severability.
|
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
|
Section 9.12
|
Integration.
|
This
Agreement and the other Credit Documents represent the agreement of the
Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent, the Borrower or any Lender relative to
the subject matter hereof not expressly set forth or referred to herein or in
the other Credit Documents or Fee Letters.
|
Section 9.13
|
Governing
Law.
|
This
Agreement and the other Credit Documents (other than the UK Security Documents)
and the rights and obligations of the parties under this Agreement and the other
Credit Documents (other than the UK Security Documents) shall be governed by,
and construed and interpreted in accordance with, the law of the State of New
York.
119
|
Section 9.14
|
Consent to
Jurisdiction and Service of Process.
|
All
judicial proceedings brought against any party hereto with respect to this
Agreement, any Note or any of the other Credit Documents may be brought in any
state or federal court of competent jurisdiction in the State of New York, and,
by execution and delivery of this Agreement, each of such parties accepts, for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Agreement,
any Note or any other Credit Document from which no appeal has been taken or is
available. The parties hereto irrevocably agree that all service of process in
any such proceedings in any such court may be effected by mailing a copy thereof
by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to it at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent or the Borrower shall have been
notified pursuant thereto, such service being hereby acknowledged by the parties
hereto to be effective and binding service in every respect. Each of the parties
hereto irrevocably waives any objection, including, without limitation, any
objection to the laying of venue based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such action or
proceeding in any such jurisdiction. Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any party to bring proceedings against any other party in the court of any other
jurisdiction.
|
Section 9.15
|
Confidentiality.
|
Each of
the Administrative Agent, the Lenders and the Issuing Bank agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and other representatives (it being
understood and agreed that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any
other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Credit
Document or any action or proceeding relating to this Agreement or any other
Credit Document or the enforcement of rights hereunder or thereunder,
(f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement,
(ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (iii) to an
investor or prospective investor in an Approved Fund that
also agrees that Information shall be used solely for the purpose of evaluating
an investment in such Approved Fund, (iv) to a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in an Approved Fund in connection with the administration, servicing and
reporting on the assets serving as collateral for an Approved Fund, or
(v) to a
nationally recognized rating agency that requires access to information
regarding the Credit Parties, the Loans and Credit Documents in connection with
ratings issued with respect to an Approved Fund, (g) with
the consent of the Borrower or (h) to the
extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
(ii) becomes
available to the Administrative Agent, any Lender, the Issuing Bank or any of
their respective Affiliates on a nonconfidential basis from a source other than
a Credit Party.
120
For
purposes of this Section, “Information” means
all information received from any Credit Party or any of its Subsidiaries
relating to any Credit Party or any of its Subsidiaries or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by any Credit Party or any of its Subsidiaries. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
|
Section 9.16
|
Acknowledgments.
|
The
Borrower and the other Credit Parties each hereby acknowledges
that:
(a) it has
been advised by counsel in the negotiation, execution and delivery of each
Credit Document;
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower or any other Credit Party arising out of or in connection
with this Agreement and the relationship between Administrative Agent and
Lenders, on one hand, and the Borrower and the other Credit Parties, on the
other hand, in connection herewith is solely that of creditor and debtor;
and
(c) no joint
venture exists among the Lenders or among the Borrower or the other Credit
Parties and the Lenders.
|
Section 9.17
|
Waivers of Jury
Trial.
|
THE
BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
Each of
the Borrower, the other Credit Parties, the Administrative Agent and the Lenders
agree not to assert any claim against any other party to this Agreement or any
their respective directors, officers, employees, attorneys, Affiliates or
agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to any of the transactions
contemplated herein.
121
|
Section 9.18
|
Patriot Act
Notice.
|
Each
Lender and the Administrative Agent (for itself and not on behalf of any other
party) hereby notifies the Borrower that, pursuant to the requirements of the
USA Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001
(the “Patriot
Act”), it is
required to obtain, verify and record information that identifies the Borrower
and the other Credit Parties, which information includes the name and address of
the Borrower and the other Credit Parties and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify the Borrower
and the other Credit Parties in accordance with the Patriot Act.
|
Section 9.19
|
Resolution of Drafting
Ambiguities.
|
Each
Credit Party acknowledges and agrees that it was represented by counsel in
connection with the execution and delivery of this Agreement and the other
Credit Documents to which it is a party, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and thereof and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation hereof or
thereof.
|
Section 9.20
|
Judgment Currency;
Payments in Dollars.
|
If, for
the purposes of obtaining judgment in any court, it is necessary to convert a
sum due hereunder or under any other Credit Document in one currency into
another currency, the rate of exchange used shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each of the Credit Parties in respect
of any such sum due from it to the Administrative Agent or any Lender hereunder
or under the other Credit Documents shall, notwithstanding any judgment in a
currency (the “Judgment
Currency”) other
than Dollars, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such Lender of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent or such Lender
may in accordance with normal banking procedures purchase Dollars with the
Judgment Currency. If the amount of Dollars so purchased is less than the sum
originally due to the Administrative Agent or such Lender in Dollars, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Administrative Agent or such Lender or the Person to whom such
obligation was owing against such loss. If the amount of Dollars so purchased is
greater than the sum originally due to the Administrative Agent or such Lender
in such currency, the Administrative Agent and the Lenders agree to apply such
excess to any Credit Party Obligations then due and payable in accordance with
the terms of Section 2.12. Notwithstanding anything to the contrary in any
Credit Documents, all payments made by the Credit Parties under the Credit
Documents shall be made in Dollars.
122
|
Section 9.21
|
Arbitration.
|
(a) Notwithstanding
the provisions of Section 9.14 to the contrary, upon demand of any party
hereto, whether made before or within three (3) months after institution of
any judicial proceeding, any dispute, claim or controversy arising out of,
connected with or relating to this Agreement and other Credit Documents
(“Disputes”)
between or among parties to this Agreement shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by a party
does not waive the right of that party to demand arbitration hereunder. Disputes
may include, without limitation, tort claims, counterclaims, disputes as to
whether a matter is subject to arbitration, claims brought as class actions,
claims arising from Credit Documents executed in the future, or claims arising
out of or connected with the transaction reflected by this Agreement.
Arbitration
shall be conducted under and governed by the Commercial Arbitration Rules (the
“Arbitration
Rules”) of the
American Arbitration Association (the “AAA”) and
Title 9 of the U.S. Code. All arbitration hearings shall be conducted in
Charlotte, North Carolina. A hearing shall begin within ninety (90) days of
demand for arbitration and all hearings shall be concluded within
120 days of
demand for arbitration. These time limitations may not be extended unless a
party shows cause for extension and then no more than a total extension of sixty
(60) days. The
expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000. All
applicable statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute Arbitration
Panel of the AAA. The parties hereto do not waive applicable Federal or state
substantive law except as provided herein.
(b) Notwithstanding
the preceding binding arbitration provisions, the Administrative Agent, the
Lenders, the Borrowers and the other Credit Parties agree to preserve, without
diminution, certain remedies, as set forth below, that the Administrative Agent
on behalf of the Lenders may employ or exercise freely, independently or in
connection with an arbitration proceeding or after an arbitration action is
brought. The Administrative Agent on behalf of the Lenders shall have the right
to proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as and if applicable (i) all rights to
foreclose against any real or personal property or other security by exercising
a power of sale granted under Credit Documents or under applicable law or by
judicial foreclosure and sale, including a proceeding to confirm the sale;
(ii) all rights of self-help including peaceful occupation of real property
and collection of rents, set-off, and peaceful possession of personal property
and giving notices to and collecting obligations from account debtors;
(iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be requested
by a party in a Dispute.
(c) The
parties hereto agree that they shall not have a remedy of punitive or exemplary
damages against the other in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may arise in the future in
connection with any Dispute whether the Dispute is resolved by arbitration or
judicially.
123
(d) By
execution and delivery of this Agreement, each of the parties hereto accepts,
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction relating to any arbitration proceedings conducted
under the Arbitration Rules in Charlotte, North Carolina and irrevocably agrees
to be bound by any final judgment rendered thereby in connection with this
Agreement from which no appeal has been taken or is available.
ARTICLE X
GUARANTY
|
Section 10.1
|
The
Guaranty.
|
In order
to induce the Lenders to enter into this Credit Agreement and any Hedging
Agreement Provider to enter into any Secured Hedging Agreement and to extend
credit hereunder and thereunder and in recognition of the direct benefits to be
received by the Guarantors from the Extensions of Credit hereunder and any
Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows: the Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all indebtedness of the
Borrower owed to the Administrative Agent, the Lenders and the Hedging Agreement
Providers. If any or all of the indebtedness becomes due and payable hereunder
or under any Secured Hedging Agreement, each Guarantor unconditionally promises
to pay such indebtedness to the Administrative Agent, the Lenders, the Hedging
Agreement Providers, or their respective order, or demand, together with any and
all reasonable expenses which may be incurred by the Administrative Agent, the
Lenders or the Hedging Agreement Providers in collecting any of the Credit Party
Obligations. The word “indebtedness” is used in this Article X in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities of the Borrower and the Guarantors, including specifically all
Credit Party Obligations, arising in connection with this Credit Agreement, the
other Credit Documents or any Secured Hedging Agreement, in each case,
heretofore, now, or hereafter made, incurred or created, whether voluntarily or
involuntarily, absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time reduced, or
extinguished and thereafter increased or incurred, whether the Borrower and the
Guarantors may be liable individually or jointly with others, whether or not
recovery upon such indebtedness may be or hereafter become barred by any statute
of limitations, and whether or not such indebtedness may be or hereafter become
otherwise unenforceable. Notwithstanding anything herein or in any other Credit
Document to the contrary, the Guaranty provided hereunder is a guaranty of
payment and not of collection.
Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a Guarantor shall be adjudicated to
be invalid or unenforceable for any reason (including, without limitation,
because of any applicable law relating to fraudulent conveyances or transfers)
then the obligations of each such Guarantor hereunder shall be limited to the
maximum amount that is permissible under applicable law (including, without
limitation, the Bankruptcy Code or its non-U.S. equivalent).
124
|
Section 10.2
|
Bankruptcy.
|
Additionally,
each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations of the Borrower to
the Lenders and any Hedging Agreement Provider whether or not due or payable by
the Borrower upon the occurrence of any of the events specified in
Section 7.1(e) as applicable to the Company, Colgate, Victory, the Borrower
or any material Subsidiaries of the Borrower, and unconditionally promises to
pay such Credit Party Obligations to the Administrative Agent for the account of
the Lenders and to any such Hedging Agreement Provider, or order, on demand, in
lawful money of the United States. Each of the Borrower and the Guarantors
further agrees that to the extent that the Borrower or a Guarantor shall make a
payment or a transfer of an interest in any property to the Administrative
Agent, any Lender or any Hedging Agreement Provider, which payment or transfer
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to the
Borrower or a Guarantor, the estate of
the Borrower or a Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or other applicable law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been
made.
|
Section 10.3
|
Nature of
Liability.
|
The
liability of each Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the Credit Party Obligations of the Borrower
whether executed by any such Guarantor, any other guarantor or by any other
party, and no Guarantor’s liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrower or by any other
party, or (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent, the Lenders or any Hedging Agreement Provider on the
Credit Party Obligations that the Administrative Agent, such Lenders or such
Hedging Agreement Provider repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such
proceeding.
|
Section 10.4
|
Independent
Obligation.
|
The
obligations of each Guarantor hereunder are independent of the obligations of
any other guarantor or the Borrower, and a separate action or actions may be
brought and prosecuted against each Guarantor whether or not action is brought
against any other guarantor or the Borrower and whether or not any other
Guarantor or the Borrower is joined in any such action or actions.
125
|
Section 10.5
|
Authorization.
|
Each of
the Guarantors authorizes the Administrative Agent, each Lender and each Hedging
Agreement Provider without notice or demand (except as shall be required by
applicable law and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to (a) renew, compromise, extend,
increase, accelerate or otherwise change the time for payment of, or otherwise
change the terms of the Credit Party Obligations or any part thereof in
accordance with this Agreement and any Secured Hedging Agreement, as applicable,
including any increase or decrease of the rate of interest thereon, (b) take and
hold security from any Guarantor or any other party for the payment of this
Guaranty or the Credit Party Obligations and exchange, enforce, waive and
release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine in accordance with the terms of this Agreement and the
other Credit Documents and (d) release or substitute any one or more endorsers,
Guarantors, the Borrower or other obligors.
|
Section 10.6
|
Reliance.
|
It is not
necessary for the Administrative Agent, the Lenders or any Hedging Agreement
Providers to inquire into the capacity or powers of the Borrower or the
officers, directors, members, partners or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
|
Section 10.7
|
Waiver.
|
(a) Each of
the Guarantors waives any right (except as shall be required by applicable law
and cannot be waived) to require the Administrative Agent, any Lender or any
Hedging Agreement Provider to (i) proceed against the Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
from the Borrower, any other guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent’s, any Lender’s or any Hedging
Agreement Provider’s power whatsoever. Each of the Guarantors waives any defense
based on or arising out of any defense of the Borrower, any other guarantor or
any other party other than payment in full of the Credit Party Obligations,
including without limitation any defense based on or arising out of
(A) the
disability of the Borrower, any other guarantor or any other party,
(B) the
unenforceability or invalidity of the Credit Party Obligations or any part
thereof from any cause, (C) the
failure to properly perfect any Lien on the Collateral, (D) the
amendment, modification or waiver of any Credit Document without the consent of
such Guarantor, (E) any law
or regulation of any jurisdiction or any other event affecting any term of the
Guaranty or the other Credit Party Obligations, or (F) the
cessation from any cause of the liability of the Borrower other than payment in
full of the Credit Party Obligations. The Administrative Agent or any of the
Lenders may, at their election, foreclose on any security held by the
Administrative Agent or a Lender by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right or
remedy the Administrative Agent and any Lender may have against the Borrower or
any other party, or any security, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Credit Party
Obligations have been paid in full. Each of the Guarantors, to the extent
permitted by law, waives any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though such election operates
to impair or extinguish any right of reimbursement or subrogation or other right
or remedy of the Guarantors against the Borrower or any other party or any
security.
126
(b) Each of
the Guarantors waives all presentments, demands for performance, protests and
notices, including without limitation notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional Credit
Party Obligations. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Credit Party
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that neither the Administrative Agent
nor any Lender shall have any duty to advise such Guarantor of information known
to it regarding such circumstances or risks.
(c) Each of
the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the
claims of the Lenders or the Hedging Agreement Provider against the Borrower or
any other guarantor of the Credit Party Obligations of the Borrower owing to the
Lenders or such Hedging Agreement Provider (collectively, the “Other
Parties”) or any
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from any Other Party which it may at any time otherwise have as a
result of this Guaranty until such time as the Credit Party Obligations shall
have been paid in full, no Credit Document or Secured Hedging Agreement remains
in effect and the Commitments have been terminated. Each of the Guarantors
hereby further agrees not to exercise any right to enforce any other remedy
which the Administrative Agent, the Lenders or any Hedging Agreement Provider
now has or may hereafter have against any Other Party, any endorser or any other
guarantor of all or any part of the Credit Party Obligations of the Borrower and
any benefit of, and any right to participate in, any security or collateral
given to or for the benefit of the Lenders and/or the Hedging Agreement
Providers to secure payment of the Credit Party Obligations of the Borrower
until such time as the Credit Party Obligations shall have been paid in full, no
Credit Document or Secured Hedging Agreement remains in effect and the
Commitments have been terminated.
127
|
Section 10.8
|
Limitation on
Enforcement.
|
The
Lenders and the Hedging Agreement Providers agree that this Guaranty may be
enforced only by the action of the Administrative Agent acting upon the
instructions of the Required Lenders or any such Hedging Agreement Provider
(only with respect to obligations under the applicable Secured Hedging
Agreement) and that no Lender or Hedging Agreement Provider shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood
and agreed that such rights and remedies may be exercised by the Administrative
Agent for the benefit of the Lenders under the terms of this Credit Agreement
and for the benefit of any Hedging Agreement Provider under any Secured Hedging
Agreement. The Lenders and the Hedging Agreement Providers further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
|
Section 10.9
|
Confirmation of
Payment.
|
The
Administrative Agent and the Lenders will, upon request after payment of the
Credit Party Obligations under the Credit Documents which are the subject of
this Guaranty and termination of the Commitments relating thereto, confirm to
the Borrower, the Guarantors or any other Person that the Credit Party
Obligations under the Credit Documents have been paid in full and the
Commitments relating thereto terminated, and this Guaranty released, subject to
the provisions of Section 10.2.
128
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by its proper and duly authorized officers as of the day
and year first above written.
|
BORROWER:
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Vice President and Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
GUARANTORS:
|
ORTHOFIX
INTERNATIONAL N.V.,
|
||
|
a
Netherlands Antilles corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Cheif Financial Officer | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
COLGATE
MEDICAL LIMITED,
|
|||
|
a
company formed under the laws of England and Wales
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Director | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
VICTORY
MEDICAL LIMITED,
|
|||
|
a
company formed under the laws of England and Wales
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Director | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
ORTHOFIX
INC.,
|
|||
|
a
Minnesota corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Chief Financial Officer, Vice President and Treasurer | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
BREG
INC.,
|
|||
|
a
California corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Assistant Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
ORTHOFIX
US LLC,
|
|||
|
a
Delaware limited liability company
|
|||
|
By:
|
ORTHOFIX
UK LTD,
|
||
|
Sole
Member
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
AMEI
TECHNOLOGIES INC.,
|
|||
|
a
Delaware corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Treasurer and Assistant Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
NEOMEDICS,
INC., a New Jersey corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Treasurer and Assistant Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
OSTEOGENICS
INC., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Treasurer and Assistant Secretary | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
BLACKSTONE
MEDICAL, INC.,
|
|||
|
a
Massachusetts corporation
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Treasurer | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
SWIFTSURE
MEDICAL LIMITED,
|
|||
|
a
company formed under the laws of England and Wales
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Director | ||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
ORTHOFIX
UK LTD,
|
|||
|
a
company formed under the laws of England and Wales
|
|||
|
By:
|
/s/ Xxxxxx Xxxx | ||
|
Name:
|
Xxxxxx Xxxx | ||
|
Title:
|
Director
|
||
|
[Signature
Pages Continue]
|
|||
ORTHOFIX
HOLDING, INC.
CREDIT
AGREEMENT
|
ADMINISTRATIVE
AGENT:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
|
||
|
as
Administrative Agent for the Lenders and as a Lender
|
|||
|
By:
|
/s/ Xxxxx Santa Xxxx | ||
|
Name:
|
Xxxxx Santa Xxxx | ||
|
Title:
|
Director | ||
Schedule
1.1-1
ACCOUNT DESIGNATION
LETTER
[Date]
Wachovia
Bank, National Association
Charlotte
Plaza
000 Xxxxx
Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attn:
Syndication Agency Services
Ladies
and Gentlemen:
This
Account Designation Letter is delivered to you by Orthofix Holdings, Inc., a
Delaware corporation (the "Borrower"), pursuant
to Section 4.1 of the Credit Agreement dated as of September 22, 2006 (as
amended, restated or otherwise modified from time to time, the "Credit Agreement") by
and among the Borrower, the Guarantors from time to time party thereto, the
Lenders from time to time party thereto and Wachovia Bank, National Association,
as Administrative Agent (the "Administrative
Agent").
The
Administrative Agent is hereby authorized to disburse all Loan proceeds into the
following account, unless the Borrower shall designate, in writing to the
Administrative Agent, one or more other accounts:
[INSERT
Name of Bank/
ABA
Routing Number/
and
Account Number]
Notwithstanding
the foregoing, on the Closing Date, funds borrowed under the Credit Agreement
shall be sent to the institutions and/or persons designated on payment
instructions to be delivered separately.
Capitalized
terms defined in the Credit Agreement shall have the same meanings when used
herein.
This
Account Designation Notice may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
Schedule
1.1-3
PERMITTED
LIENS
|
1.
|
Liens of Blackstone
Medical, Inc.
|
|
State
|
Secured Party
|
Filing Information
|
Collateral
|
|
MA
|
Dell
Financial Services
|
Original
200317586280
01/13/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200317907850
1/27/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200317908550
01/27/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200318824200
03/06/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200319159860
3/20/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200319252390
3/24/2003
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200426944870
1/23/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200427265280
2/4/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200427406700
2/10/2004
|
Leased
Equipment
|
|
State
|
Secured Party
|
Filing Information
|
Collateral
|
|
MA
|
CIT
Communications Finance
|
Original
200428486990
3/24/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200433832410
10/21/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200434069400
11/01/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200434697540
11/26/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200435072120
12/13/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200435401290
12/27/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200535933420
01/18/2005
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200536198990
01/28/2005
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200536673460
02/17/2005
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200536927680
03/01/2005
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200429426850
04/29/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200430192300
05/27/2004
|
Leased
Equipment
|
|
State
|
Secured Party
|
Filing Information
|
Collateral
|
|
MA
|
Dell
Financial Services
|
Original
200430838000
06/22/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200431230380
07/07/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200431846040
08/02/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200432783380
09/09/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200433262550
09/29/2004
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200538080130
04/11/2005
|
Leased
Equipment
|
|
MA
|
Dell
Financial Services
|
Original
200538080310
04/11/2005
|
Leased
Equipment
|
|
MA
|
CIT
Communications Finance Corporation
|
Original
200542215030
09/22/2005
|
Leased
Equipment
|
|
MA
|
IOS
Capital
|
Original
200544074860
12/09/2005
|
Leased
Equipment
|
|
MA
|
IOS
Capital
|
Original
200649531790
07/11/2006
|
Leased
Equipment
|
|
MA
|
CIT
Bank
|
Original
200645236130
01/27/2006
|
Specific
Equipment
|
|
MA
|
Winthrop
Resources
|
Original
200645830680
02/22/2006
|
Leased
Equipment
|
Schedule
2.1(b)(i)
[FORM
OF]
NOTICE OF
BORROWING
[Date]
Wachovia
Bank, National Association
Charlotte
Plaza
000 Xxxxx
Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attn:
Syndication Agency Services
Ladies
and Gentlemen:
Pursuant
to subsection [2.1(b)][2.4(b)] of the Credit Agreement dated as of September 22,
2006 (as amended, restated or otherwise modified prior to the date hereof, the
"Credit
Agreement") by and among Orthofix Holdings, Inc., a Delaware corporation
(the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"), the Borrower hereby requests that the following Loans be made on
[date] as follows (the "Proposed
Borrowing"):
|
I.
|
Revolving
Loans requested:
|
|
|
(1)
|
Total
Amount of Revolving Loans Requested
|
$
______
|
|
|
(2)
|
Amount
of (1) to be allocated to LIBOR Rate Loans
|
$
______
|
|
|
(3)
|
Amount
of (1) to be allocated to Alternate Base Rate Loans
|
$
______
|
|
|
(4)
|
Interest
Periods and amounts to be allocated thereto in respect of the LIBOR Rate
Loans referenced in (2) (amounts must total
(2)):
|
|
|
(i)
|
one
month
|
$
______
|
|
|
(ii)
|
two
months
|
$
______
|
|
|
(iii)
|
three
months
|
$
______
|
|
|
(iv)
|
six
months
|
$
______
|
|
|
(v)
|
nine
months
|
$
______
|
|
Total
LIBOR Rate Loans
|
$
______
|
NOTE:
REVOLVING LOAN BORROWINGS MUST BE IN MINIMUM AMOUNTS OF $1,000,000 AND IN
INTEGRAL MULTIPLES OF $500,000 IN EXCESS THEREOF.
|
II.
|
Swingline
Loans requested:
|
|
|
(1)
|
Total
Amount of Swingline Loans Requested $
______
|
|
NOTE:
|
SWINGLINE
LOAN BORROWINGS MUST BE IN MINIMUM AMOUNTS OF $100,000 AND IN INTEGRAL
AMOUNTS OF $100,000 IN EXCESS
THEREOF.
|
Capitalized
terms defined in the Credit Agreement shall have the same meanings when used
herein.
The
undersigned hereby certifies that the following statements will be true on the
date of the Proposed Borrowing:
(A) The
representations and warranties made by the Credit Parties in the Credit
Agreement, the Security Documents and which are contained in any certificate
furnished at any time under or in connection therewith will be true and correct
as though such representations and warranties had been made on and as of the
date of such Proposed Borrowing (it being understood that any representation or
warranty which by its terms is made of a specified date shall be required to be
true and correct only as of such specified date);
(B) no
Default or Event of Default has occurred and is continuing, or would result from
such Proposed Borrowing (other than a Default or Event of Default that has been
waived in accordance with the Credit Agreement); and
(C) immediately
after giving effect to the making of the Proposed Borrowing (and the application
of the proceeds thereof), (i) the sum of outstanding Revolving Loans plus
outstanding LOC Obligations plus outstanding Swingline Loans shall not exceed
the Revolving Committed Amount, (ii) the outstanding LOC Obligations shall not
exceed the LOC Committed Amount and (iii) the outstanding Swingline Loans shall
not exceed the Swingline Committed Amount.
Delivery
of an executed counterpart of this Notice of Borrowing by telecopier or
electronic mail with receipt confirmed shall be effective as delivery of an
original executed counterpart of this Notice of Borrowing.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
Schedule
2.1(e)
[FORM
OF]
REVOLVING
NOTE
[Date]
FOR VALUE
RECEIVED, the undersigned, Orthofix Holdings, Inc., a Delaware corporation (the
"Borrower"),
hereby unconditionally promises to pay, on the Revolver Maturity Date (as
defined in the Credit Agreement referred to below), to the order of (the "Lender") at the
office of Wachovia Bank, National Association located at Charlotte Plaza, 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, in lawful
money of the United States of America and in same day funds, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to Section 2.1 of the Credit Agreement referred to below. The
Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof and, to the extent permitted by law, accrued
interest in respect hereof from time to time from the date hereof until payment
in full of the principal amount hereof and accrued interest hereon, at the rates
and on the dates set forth in the Credit Agreement.
The
holder of this Note is authorized to endorse the date and amount of each
Revolving Loan made pursuant to Section 2.1 of the Credit Agreement and each
payment of principal and interest with respect thereto and its character as a
LIBOR Rate Loan or an Alternate Base Rate Loan on Schedule 1 annexed
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, which endorsement shall constitute prima facie evidence
of the accuracy of the information endorsed (absent error); provided, however, that the
failure to make any such endorsement shall not affect the obligations of the
undersigned under this Note.
This Note
is one of the Revolving Notes referred to in the Credit Agreement dated as of
September 22, 2006 (as amended, restated or otherwise modified from time to
time, the "Credit
Agreement") by and among the Borrower, the Guarantors from time to time
party thereto, the Lenders from time to time party thereto and Wachovia Bank,
National Association, as Administrative Agent (the "Administrative
Agent"), and is entitled to the benefits thereof. Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
Upon the
occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided therein. In the
event this Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to principal and interest, all costs of
collection, including reasonable documented attorneys' fees.
All
parties now and hereafter liable with respect to this Note, whether maker,
principal, surety, endorser or otherwise, hereby waive presentment, demand,
protest and all other notices of any kind.
This Note
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
SCHEDULE
1
to
Revolving
Note
LOANS AND PAYMENTS OF
PRINCIPAL
|
Date
|
Amount
of
Loan
|
Type
of
Loan1
|
Interest
|
Interest
Rate
|
Interest
Period
|
Maturity
Date
|
Principal
Paid
or
Converted
|
Principal
Balance
|
Notation
Made
By
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
|||||||||
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
_____
|
__________________________
|
1
|
The
type of Loan may be represented either by "L" for LIBOR Rate Loans or
"ABR" for Alternate Base Rate
Loans.
|
Schedule
2.2(d)
[FORM
OF]
TERM
NOTE
[Date]
FOR VALUE
RECEIVED, the undersigned, Orthofix Holdings, Inc., a Delaware corporation (the
"Borrower"),
hereby unconditionally promises to pay, on the Term Loan Maturity Date (as
defined in the Credit Agreement referred to below), to the order of (the "Lender") at the
office of Wachovia Bank, National Association at Charlotte Plaza, 000 Xxxxx
Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, in lawful money of
the United States of America and in same day funds, the aggregate unpaid
principal amount of the Term Loan made by the Lender to the Borrower pursuant to
Section 2.2 of the Credit Agreement referred to below. The Borrower further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof and, to the extent permitted by law, accrued interest in respect
hereof from time to time from the date hereof until payment in full of the
principal amount hereof and accrued interest hereon, at the rates and on the
dates set forth in the Credit Agreement.
The
holder of this Note is authorized to endorse the date and amount of each payment
of principal and interest with respect to the Term Loan evidenced by this Note
and the portion thereof that constitutes a LIBOR Rate Loan or an Alternate Base
Rate Loan on Schedule
1 annexed hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof, which endorsement shall
constitute prima
facie evidence of the accuracy of the information endorsed (absent
error); provided, however, that the
failure to make any such endorsement shall not affect the obligations of the
undersigned under this Note.
This Note
is one of the Term Notes referred to in the Credit Agreement, dated as of
September 22, 2006 (as amended, restated or otherwise modified from time to
time, the "Credit
Agreement"), by and among the Borrower, the Guarantors from time to time
party thereto, the lenders from time to time party thereto (the "Lenders") and
Wachovia Bank, National Association, as Administrative Agent for the Lenders
(the "Administrative
Agent"), and is entitled to the benefits thereof. Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
Upon the
occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided therein. In the
event this Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to principal and interest, all costs of
collection, including reasonable attorneys' fees.
All
parties now and hereafter liable with respect to this Note, whether maker,
principal, surety, endorser or otherwise, hereby waive presentment, demand,
protest and all other notices of any kind.
This Note
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
SCHEDULE
1
to
Term
Note
LOANS AND PAYMENTS OF
PRINCIPAL
|
Date
|
Amount
of
Loan
|
Type
of
Loan1
|
Interest
|
Interest
Rate
|
Interest
Period
|
Maturity
Date
|
Principal
Paid
or
Converted
|
Principal
Balance
|
Notation
Made By
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
|||||||||
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____
|
____________________
|
1
|
The
type of Loan may be represented either by "L" for LIBOR Rate Loans or
"ABR" for Alternate Base Rate
Loans.
|
Schedule
2.4(d)
[FORM
OF]
SWINGLINE
NOTE
[Date]
FOR VALUE
RECEIVED, the undersigned, Orthofix Holdings, Inc., a Delaware corporation (the
"Borrower"),
hereby unconditionally promises to pay, on each date specified in the Credit
Agreement referred to below for the payment of principal hereof and on the
Revolver Maturity Date (as defined in the Credit Agreement referred to below),
to the order of Wachovia Bank, National Association (the "Swingline Lender") at
the office of Wachovia Bank, National Association located at Charlotte Plaza,
000 Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, in lawful
money of the United States of America and in same day funds, the principal
amount of the aggregate unpaid principal amount of all Swingline Loans made by
the Swingline Lender to the Borrower pursuant to Section 2.4 of the Credit
Agreement referred to below. The Borrower further agrees to pay interest in like
money at such office on the unpaid principal amount hereof and, to the extent
permitted by law, accrued interest in respect hereof from time to time from the
date hereof until payment in full of the principal amount hereof and accrued
interest hereon, at the rates and on the dates set forth in the Credit
Agreement.
The
holder of this Note is authorized to endorse the date and amount of each
Swingline Loan made pursuant to Section 2.4 of the Credit Agreement and each
payment of principal and interest with respect thereto on Schedule 1 annexed
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, which endorsement shall constitute prima facie evidence
of the accuracy of the information endorsed (absent error); provided, however, that the
failure to make any such endorsement shall not affect the obligations of the
undersigned under this Note.
This Note
is the Swingline Note referred to in the Credit Agreement dated as of September
22, 2006 (as amended, restated or otherwise modified from time to time, the
"Credit
Agreement") by and among the Borrower, the Guarantors from time to time
party thereto, the Lenders from time to time party thereto and Wachovia Bank,
National Association, as Administrative Agent (the "Administrative
Agent"), and is entitled to the benefits thereof. Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
Upon the
occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided therein. In the
event this Note is not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to principal and interest, all costs of
collection, including reasonable documented attorneys' fees.
All
parties now and hereafter liable with respect to this Note, whether maker,
principal, surety, endorser or otherwise, hereby waive presentment, demand,
protest and all other notices of any kind.
This Note
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
SCHEDULE
1
to
Swingline
Note
LOANS AND PAYMENTS OF
PRINCIPAL
|
Date
|
Amount
of
Loan
|
Principal
Paid
|
Interest
|
Principal
Balance
|
Notation
Made By
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
|||||
|
_______
|
_______
|
_______
|
_______
|
_______
|
_______
|
Schedule
2.10
[FORM
OF]
NOTICE OF
CONVERSION/EXTENSION
[Date]
Wachovia
Bank, National Association
Charlotte
Plaza
000 Xxxxx
Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attn:
Syndication Agency Services
Ladies
and Gentlemen:
Pursuant
to Section 2.10 of the Credit Agreement dated as of September 22, 2006 (as
amended, restated or otherwise modified prior to the date hereof, the "Credit Agreement") by
and among Orthofix Holdings, Inc., a Delaware corporation (the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"), the Borrower hereby requests conversion or extension of the
following Loans be made on [date] as follows (the "Proposed
Conversion/Extension"):
|
I.
|
Revolving
Loan
|
|
|
(1)
|
Total
Amount of Revolving Loans to be converted/extended
|
$
______
|
|
|
(2)
|
Amount
of (1) to be allocated to LIBOR Rate Loans
|
$
______
|
|
|
(3)
|
Amount
of (1) to be allocated to Alternate Base Rate Loans
|
$
______
|
|
|
(4)
|
Interest
Periods and amounts to be allocated thereto in respect of the LIBOR Rate
Loans referenced in (2) (amounts must total
(2)):
|
|
|
(i)
|
one
month
|
$
______
|
|
|
(ii)
|
two
months
|
$
______
|
|
|
(ii)
|
three
months
|
$
______
|
|
|
(iv)
|
six
months
|
$
______
|
|
|
(v)
|
nine
months
|
$
______
|
|
|
Total
LIBOR Rate Loans
|
$
______
|
|
NOTE:
|
CONVERSIONS
MUST BE (A) IN THE CASE OF REVOLVING LOANS, $1,000,000 OR A WHOLE MULTIPLE
OF $500,000 IN EXCESS THEREOF AND (B) IN THE CASE OF THE TERM LOAN,
$2,000,000 OR A WHOLE MULTPLE OF $1,000,000 IN EXCESS
THEREOF.
|
Capitalized
terms defined in the Credit Agreement shall have the same meanings when used
herein.
The
undersigned hereby certifies that as of the date of the Proposed
Conversion/Extension, no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Conversion/Extension or from the
application of the proceeds thereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
Schedule
2.
[FORM
OF]
TAX
EXEMPT CERTIFICATE
[Date]
Reference
is hereby made to the Credit Agreement dated as of September 22, 2006 (as
amended, restated or otherwise modified prior to the date hereof, the "Credit Agreement") by
and among Orthofix Holdings, Inc., a Delaware corporation (the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"). Pursuant to the provisions of Section 2.18 of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
This Tax
Exempt Certificate may, upon execution, be delivered by facsimile or electronic
mail, which shall be deemed for all purposes to be an original
signature.
|
[NAME
OF LENDER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Schedule
3.3
QUI TAM
MATTERS
|
1.
|
Orthofix Inc. and
Orthofix International N.V.
|
|
|
a)
|
U.S.
ex rel. Xxxxx Xxxx v. Orthofix, Inc. and Orthofix International
N.V.,
Civil Action No. 3-00CV1333-D (N.D.
Texas).
|
The
plaintiff filed a whistleblower complaint under the federal False Claims Act
relating to the appropriateness of claims Orthofix, Inc. submitted to federal
health programs for the off-label use of certain FDA-approved pulsed electronic
magnetic field devices and related billing and coding practices. The matter was
resolved via settlement Orthofix, Inc. paid $1.6 million to the United States
Department of Justice, admitted no wrongdoing and was not found to have violated
applicable law.
Schedule
3.8
LITIGATION
|
1.
|
Orthofix
Inc.
|
|
|
a)
|
Xxxxxx
Xxxx v. Orthofix. Inc., United States
District Court for the Eastern District of Washington; Civil Action No.
CV-06-5053 EFS.
|
Plaintiff
alleges that he was negligently provided with the incorrect model of an Orthofix
bone stimulator when he sustained a fracture of the left hip. The case was filed
in April 2006 in state court and was removed to the United States District Court
for the Eastern District of Washington. No trial date has been assigned. The
parties have only recently commenced discovery. Orthofix is vigorously
contesting all of plaintiffs liability and damage claims, and plans to file a
motion seeking dismissal of plaintiffs action.
|
|
b)
|
Xxxxxx
v. Orthofix. Inc., 296th Judicial
District Collin County Court; Civil Action No.
000-0000-00.
|
Plaintiff
alleges that he was discharged from employment because of a disability. Orthofix
has filed a motion for summary judgment which was denied. Mediation is scheduled
for October 26, 2006.
|
|
c)
|
Bone
Growth Stimulator Reclassification
Proceeding
|
Orthofix
Inc. is currently involved in a proceeding before the FDA addressing whether the
regulatory classification of Orthofix Inc.'s Physio-Stim and Spinal-Stim bone
growth stimulation products should be reclassified from FDA Class III to FDA
Class II. Orthofix Inc. is actively participating in this proceeding and
maintains that the current FDA Class III classification is correct. A meeting
was held on June 2, 2006 before the FDA's Orthopedic and Rehabilitation Devices
panel for the purpose of gathering information to allow the panel to recommend
to the FDA whether reclassification is appropriate. At the conclusion of the
meeting, the Panel determined that the present FDA Class III classification for
the products at issue is proper. Orthofix Inc. does not know when or whether the
FDA will reach a final determination on this classification issue or whether any
such determination will adversely impact Orthofix Inc.'s ability to market or
sell these products.
|
2.
|
Breg
Inc.
|
|
|
a)
|
Xxxxxxx
Xxxxxxxx and Xxxx Xxxxxxxx v. Omnimotion, Orthofix, Breg, Healthsouth, NSC
Channel Islands and Channel Islands Sursicenter, State of California
Superior Court, County of San Bernardino; Case Number VCVVS
040349.
|
This
matter involves alleged cold injuries sustained while plaintiff was using a Breg
Polar Care 300 unit on her elbow following surgery. At this time, we are in the
process of obtaining plaintiffs medical records and thereafter will schedule her
deposition. Very little discovery has taken place.
|
|
b)
|
Xxxx
Xxxx Xxxxxxx v. Brgs, Inc. and related distributor action for
indemnification.
State of California Superior Court, County of San Francisco; Case
Number CGC 04-431658; and related Distributor action for
indemnification.
|
This
matter involved alleged cold injuries sustained while plaintiff was using two
Polar Care 500 units, one on each knee. The jury returned a verdict in favor of
the plaintiff against Breg on theories of product liability and negligence in
the amount of $4.1 million. Except for the distributors of the Breg product who
wish to retain their rights to proceed against Breg for indemnification, the
other parties are currently in the process of settling the case, following a
stipulation to vacate the judgment and grant a new trial. The amount of the
verdict is insured.
|
|
c)
|
Xxxxxxx
X. Xxxxxx, MD x. Xxxx Inc., State of California
Superior Court, County of San Diego; Case Number
GIC860901.
|
This
matter involves an alleged injury sustained when a catheter of the Pain Care
2000 broke off in plaintiffs knee upon removal. Discovery is just
beginning.
|
|
d)
|
Xxxxxx
Xxxxxxx v. Breg, Inc., United States Court
of Appeals for the Seventh Circuit; Docket No.
06-2927.
|
Plaintiff
alleged that her right great toe was amputated as a result of using the Breg
Polar Care 300 cold therapy unit. The jury returned a verdict in favor of Breg
and found that there was no defective condition related to the product.
Plaintiff filed a Motion for a New Trial which was denied and is currently being
appealed.
|
|
e)
|
Xxx
X. Xxxxxxx v. The Orthopedic Store and The Orthopedic Store v. Breg,
Inc.,
District Court Bexar County, Texas; Case No.
2006-CI-06600.
|
Plaintiff
used a Polar Care 500 following ankle surgery. She claims to have sustained
tissue necrosis. Plaintiff did not xxx Xxxx. Instead, Breg has been named as a
third party defendant by The Orthopedic Store, a Durable Medical Equipment
dealer who was a customer of Breg. The Orthopedic Store purchased the Polar Care
500 from Breg and leased it to the plaintiff. The plaintiff is still in the
process of adding medical professionals to the lawsuit and accordingly there has
not been any discovery.
|
|
f)
|
Dismissal
Related Allegations for Employee Xxx Xxxxx (being handled by British
attorneys). We do not believe this matter is currently in
litigation.
|
|
3.
|
Blackstone Medical,
Inc.
|
|
|
a)
|
NovaBone Products,
LLC
|
On
January 11, 2006, the Company received a letter from NovaBone Products, LLC,
claiming an interest in certain intellectual property being developed by the
Company relating to the processing of natural bone product with bioglass, a
developmental product underway at the Company.
|
|
b)
|
Xxxxxxx
x. Xxxxxxxxxx Medical, Inc., Circuit Court of
the 18th District in and for Brevard, Florida; Case No.
05-2005-CA-017339.
|
The
Plaintiff is claiming damages because of allegedly defective bone screws and
fixation hardware sold by the Company. This matter was referred to the Company's
products liability insurance carrier and is being defended by counsel selected
by that carrier.
|
|
c)
|
TissueNet
|
In 2005,
the Company received correspondence dated December 13, 2005 from one of its
suppliers, TissueNet Custom Applications, LLC ("TissueNet") claiming that the
Company had breached a five year contract under which TissueNet supplied
precision tooled allograft implants to the Company for resale. We are unable to
determine whether a further claim will be made by TissueNet. The Company is also
disputing certain invoices (Nos. 2045 and 2046) that have been presented by
TissueNet. The value of the disputed invoices is approximately
$138,700.
|
|
d)
|
Xxxxxxxx
X. Xxxxx x. Xxxxxxxxxx Medical, Inc., Second Judicial
District Court of the State of Nevada, in and for the County of Washoe;
Case No. CV-06-01218.
|
The
Plaintiff is claiming damages because of allegedly defective bone screws and
fixation hardware sold by the Company. This matter was referred to the Company's
products liability insurance carrier and is being defended by counsel selected
by that carrier.
Schedule
3.12
SUBSIDIARIES
|
Subsidiary
|
Jurisdiction
of Incorporation/ Organization
|
Owner(s)
|
No.
Shares of Capital Stock/ Equity Interests Outstanding
|
No.
Shares of Capital Stock/ Equity Interests Held By [Each]
Owner
|
Percentage
Ownership of [Each] Owner
|
|
Orthosonics
Ltd
|
UK
|
Orthofix
International N.V.
|
120
|
120
|
100%
|
|
Orthofix
B.V.
|
Amsterdam
|
Orthofix
International N.V.
|
3,118,860
|
3,118,860
|
100%
|
|
Novamedix
Services Ltd (Cyprus)
|
UK
|
Orthofix
International N.V.
|
50,000
|
50,000
|
100%
|
|
Inter
Medical Supplies Ltd
|
Cyprus
|
Orthofix
International N.V.
|
10,000
|
10,000
|
100%
|
|
Novamedix
Distribution Ltd
|
Cyprus
|
Orthofix
International N.V.
|
4,000
|
4,000
|
100%
|
|
Inter
Medical Supplies Ltd (Seychelles)
|
Seychelles
|
Orthofix
International N.V.
|
5,000
|
5,000
|
100%
|
|
Novamedix
Ltd
|
UK
|
Orthofix
International N.V.
|
28,617
common,
5,050
preferred
|
28,617
common, 5,050 preferred
|
100%
|
|
Orthofix
Mexico S.A. de C.V.
|
Mexico
|
Orthofix
International N.V.
|
100,000
|
61,250
|
61.25%
|
|
Orthofix
de Brasil
|
Brazil
|
Orthofix
International N.V.
|
5,000
|
4,475
shares owned by Orthofix International NV; 325 shares owned by Xxxxx
Xxxxx; 200 shares owned by Xxxx Xxxxxxx Proenca
|
89.5%
owned by Orthofix International NV;
|
|
Orthofix
SRL/DMO
|
Italy
|
Orthofix
B.V.
|
3,000,000
|
3,000,000
|
100%
|
|
Orthofix
GmbH
|
Germany
|
Orthofix
B.V.
|
2,065,000
|
2,065,000
|
100%
|
|
Orthofix
LTD
|
UK
|
Orthofix
B.V.
|
1,426,256
|
1,426,256
|
100%
|
|
Orthofix
SA
|
France
|
Orthofix
B.V.
|
120,000
|
120,000
|
100%
|
|
Subsidiary
|
Jurisdiction
of Incorporation/ Organization
|
Owner(s)
|
No.
Shares of Capital Stock/ Equity Interests Outstanding
|
No.
Shares of Capital Stock/ Equity Interests Held By [Each]
Owner
|
Percentage
Ownership of [Each] Owner
|
|
Orthofix
AG
|
Switzerland
|
Orthofix
B.V.
|
100
|
100
|
100%
|
|
Orthofix
International II B.V.
|
Amsterdam
|
Orthofix
B.V.
|
22,449
|
22,449
|
100%
|
|
Intavent
Orthofix LTD
|
UK
|
Orthofix
International II B.V.
|
10,000
|
10,000
|
100%
|
|
Colgate
Medical Ltd
|
UK
|
Intavent
Orthofix LTD
|
587,879
|
587,879
|
100%
|
|
Victory
Medical Limited
|
UK
|
Colgate
Medical Ltd
|
4,000,000
|
4,000,000
|
100%
|
|
Orthofix
Holdings, Inc.
|
Delaware
|
Victory
Medical Limited
|
100
|
100
|
100%
|
|
Breg
Inc.
|
California
|
Orthofix
Holdings, Inc.
|
1
|
1
|
100%
|
|
Orthofix
Inc.
|
Minnesota
|
Orthofix
Holdings, Inc.
|
100
|
100
|
100%
|
|
Swiftsure
Medical Limited
|
UK
|
Orthofix
Holdings, Inc.
|
12,251,885
|
12,251,885
|
100%
|
|
Breg
Mexico
|
Mexico
|
Breg
Inc.; Orthofix International N.V.
|
N/A
|
N/A
|
99.9%
owned by Breg
Inc.; 0.1% owned by Orthofix
International N.V.
|
|
Breg
Deutschland GmbH
|
Germany
|
Orthofix
GmbH
|
N/A
|
N/A
|
52%
owned by Orthofix GmbH; 48% owned by Xxxxxxx
Xxxxxxx, Xxxxxx Hansjorg, Xxxxxxxx Xxxxxx and Xxxxxx
Xxxxx
|
|
Implantes
Y Sistemas Medicos
|
Puerto
Rico
|
Orthofix
Inc.
|
100
|
100
|
100%
|
|
Osteogenics
Inc.
|
Delaware
|
Orthofix
Inc.
|
1,000
|
1,000
|
100%
|
|
AMEI
Technologies Inc.
|
Delaware
|
Orthofix
Inc.
|
1,000
|
1,000
|
100%
|
|
Neomedics,
Inc.
|
New
Jersey
|
AMEI
Technologies Inc.
|
1,428,000
|
1,428,000
|
100%
|
|
Subsidiary
|
Jurisdiction
of Incorporation/
Organization
|
Owner(s)
|
No.
Shares of Capital
Stock/ Equity
Interests Outstanding
|
No.
Shares of Capital
Stock/ Equity
Interests Held By [Each] Owner
|
Percentage
Ownership
of
[Each] Owner
|
|
Orthofix
UK
Ltd
|
UK
|
Swiftsure
Medical
Limited
|
2
|
2
|
100%
|
|
Orthofix
US
LLC
|
Delaware
|
Orthofix
UK Ltd
|
0
|
0
|
100%
|
|
Blackstone
Medical,
Inc.
|
Massachusetts
|
Orthofix
Holdings,
Inc.
|
8,000,000
Class
A Voting Common Stock;
19,000,000 Class
B Nonvoting Common Stock
|
8,000,000
Class A
Voting Common Stock; 19,000,000
Class B Nonvoting
Common Stock
|
100%
of Class A and
B
|
|
Blackstone
GmbH
|
Germany
|
Blackstone
Medical,
Inc.
|
0
|
0
|
100%
|
|
Goldstone
GmbH
|
Switzerland
|
Blackstone
Medical,
Inc.; Blackstone GmbH
|
0
|
0
|
50%
owned by Blackstone
Medical, Inc.; 50% owned by Blackstone
GmbH
|
Schedule
3.16
INTELLECTUAL
PROPERTY
|
1.
|
Licenses
|
|
|
a)
|
Breg
Inc.
|
|
|
i.
|
Joint
Development and Technology Rights Agreement by and between Medicine Lodge,
Inc. and Breg, Inc., dated February 11, 2002; including Assignment of U.S.
Patent Application 10/218,106 to Breg, Inc. and Assignment of U.S. Patent
Application 10/270,091 to Breg,
Inc.
|
|
|
ii.
|
Agreement
between Professional Football Athletic Trainers Society (PFATS) and Breg,
Inc, dated. April 26, 1999; First Renewal Agreement between PFATS and
Breg, Inc., dated August 1, 2001; Second Renewal Agreement Between PFATS
and Breg, Inc., dated September 1,
2003.
|
|
|
iii.
|
Supplier
Agreement between Alpine Canada Alpin and Breg, Inc., dated August 1,
2001; Supplier Agreement between Alpine Canada Alpin and Breg, Inc. dated
April 14, 2003.
|
|
|
iv.
|
Exclusive
License Agreement between Breg, Inc. and Xxxxx Xxxxx, M.D., dated January
1, 1997.
|
|
|
v.
|
Exclusive
License Agreement between Breg, Inc. and Xxxxx X. Xxxx, M.D., dated
October 1, 1990.
|
|
|
vi.
|
Exclusive
License and Assignment Agreement between Breg, Inc. and Xxx Xxxxxxxxx,
dated October 21, 2003.
|
|
|
vii.
|
License
of Patent Agreement between Breg, Inc. and Cincinnati SubZero Products,
Inc., dated October 13, 1992.
|
|
|
viii.
|
Biodex
Settlement Agreement.
|
|
|
ix.
|
DonJoy
Settlement Agreement.
|
|
|
x.
|
Term
Royalty Agreement between Breg, Inc. and Xxxx Xxxxxxx and Xxxx Xxxxxxx,
dated May 1, 2002.
|
|
|
xi.
|
Exclusive
Distributor Agreement between Accu-Fit, Inc. and Breg, Inc., dated
November 1, 2002.
|
|
|
xii.
|
Supply
Agreement between Life-Tech, Inc. and Breg, Inc., dated October 18,
2002.
|
|
|
xiii.
|
Distributor
Agreement between Ultra Athlete, LLC f/k/a Athlete Protection Gear, LLC
and Breg, Inc., dated March 26, 2003 (replaced Distributor Agreement
between Athlete Protection Gear, LLC and Breg, Inc., dated June 19,
2003).
|
|
|
xiv.
|
Agreement
between Breg, Inc. and Orthofix Inc. for Distribution of Pulsed
ElectroMagnetic Fields Device Systems and related products, dated October
22, 2001.
|
|
|
xv.
|
Master
Services Agreement, dated August 26, 2002, between Breg, Inc. and Kenexa
Technology Inc.
|
|
|
b)
|
Orthofix
Inc.
|
|
|
i.
|
License
Agreement between Orthofix, Inc. and Innovative Orthotics relating to
EZ-Brace technology.
|
|
|
ii.
|
License
Agreement between Orthofix, Inc., Xxxx Xxxx, M.D. and Xxxxx Xxxxxxxx, M.D.
relating to Oasis technology.
|
|
|
iii.
|
License
Agreement between Orthofix, Inc. and Morphographics, L.C. relating to
Guided Growth Plate ("8-Plate")
technology.
|
|
|
iv.
|
Product
Development and Distribution Agreement between Orthofix, Inc., Orthodyne,
Inc. and J. Xxxx Xxxx, M.D. relating to Intramedullary Skeletal Kinetic
Distractor ("ISKD") Systems.
|
|
|
v.
|
License
Agreement between Orthofix, Inc. and Silvatec Medical Company Inc.
relating to Xxxxxxx Plate
technology.
|
|
|
vi.
|
License
Agreement between Orthofix, Inc. and Xxxxx Xxxxx, M.D., Xxxxxxx Xxxxxxx,
M.D. and Xxxx Xxxxxx, M.D. relating to Bone Staple and Trigger Finger
Release technology.
|
|
|
vii.
|
License
Agreement between Orthofix, Inc. and Xxxxx Xxxxxx, M.D. relating to
Contours Radial Distal Plate
technology.
|
|
|
viii.
|
License
Agreement between Orthofix, Inc. and L. Xxxxxx Xxxxx, M.D. relating to M2
minirail technology.
|
|
|
c)
|
Blackstone Medical,
Inc.
|
|
|
i.
|
End
User License Agreement dated December 1, 2005 by and between the
Blackstone and Epicor Software
Corporation.
|
|
|
ii.
|
License
Agreement dated as of December 2, 2003 by and between Blackstone and Cross
Medical Products, Inc.
|
|
|
iii.
|
Professional
Service Agreement dated May 30, 2006 by and between Blackstone and IQS,
Inc.
|
|
|
iv.
|
Services
Agreement dated October 25, 2004 by and between Blackstone and Atrium
Medical Corporation.
|
|
|
v.
|
Amended
and Restated Agreement between Blackstone and Xxxxxx X. Xxxx, Xx., M.D.,
dated December 16, 1998.
|
|
2.
|
Potential
Claims
|
|
|
a)
|
Blackstone Medical,
Inc.
|
|
|
i.
|
Letter
dated January 31, 2003 from Xxxx Xxxxxxxxxxx of Xxxxxx & Xxxxxxx LLP
to Xxxxxxx Xxxxx, President of Blackstone regarding potential infringement
of patents owned by Cross Medical Products,
Inc.
|
|
|
ii.
|
Blackstone
is aware that certain patents that it licenses from Cross Medical
Products, Inc. are the subject of a pending lawsuit between Medtronic
Sofamor Xxxxx and Cross Medical Products,
Inc.
|
|
|
iii.
|
Blackstone
is aware that Cross Medical Products, Inc. does not agree with Blackstone
as to the scope of the license granted to Blackstone under the License
Agreement between the parties.
|
|
|
iv.
|
On
July 10, 2006, Blackstone wrote to EBI requesting consent to the transfer
of the license in the context of the Blackstone/Orthofix transaction. On
July 28, 2006, EBI wrote to Blackstone declining to grant consent to the
transfer of the license. On September 11, 2006, representatives of
Orthofix, Blackstone and EBI met to address EBI's refusal to grant
consent. At that meeting, the parties agreed to refrain from initiating
any litigation, pending commercial negotiations to resolve the dispute
relating to the transfer of the
license.
|
PATENTS
|
Patent/
Application
No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Date
of
Issuance/
Application
|
Status
|
|
5181902
|
AMEI
Technologies Inc
|
Double-Transducer
System for PEMF Therapy
|
US
|
1/26/93
|
Active
|
|
11/408617
|
AMEI
Technologies Inc
|
Drive
Systems and Device Incorporating Drive Systems
|
US
|
4/21/06
|
Pending
|
|
11/115009
|
AMEI
Technologies Inc
|
Screw
Extration and Insertion Device
|
US
|
4/26/05
|
Pending
|
|
5269747
|
AMEI
Technologies Inc
|
Double-transducer
system for PEMF therapy
|
US
|
12/14/93
|
Active
|
|
5195941
|
AMEI
Technologies Inc
|
Contoured
Triangular Transducer System for PEMF Therapy
|
US
|
3/23/93
|
Active
|
|
5351389
|
AMEI
Technologies Inc
|
Method
for fabricating a contoured triangular transducer system
|
US
|
10/4/94
|
Active
|
|
5401233
|
AMEI
Technologies Inc
|
Contoured
triagular transducer system for PEMF therapy
|
US
|
3/28/95
|
Active
|
|
5314401
|
AMEI
Technologies Inc
|
Conformable
PEMF Transducer
|
US
|
5/24/94
|
Active
|
|
5304210
|
AMEI
Technologies Inc
|
Apparatus
for Distributed Bone Growth Stimulation
|
US
|
4/19/94
|
Active
|
|
5452407
|
AMEI
Technologies Inc
|
Method
for representing a patient's treatment site as data for use with a CAD or
CAM device
|
US
|
9/19/95
|
Active
|
|
5441527
|
AMEI
Technologies Inc
|
Implantable
Bone Growth Stimulator and Method of Operation
|
US
|
8/15/95
|
Active
|
|
D353889
|
AMEI
Technologies Inc
|
Implantable
Tissue Growth Stimulator
|
US
|
12/27/94
|
Active
|
|
0,561,068
|
AMEI
Technologies Inc
|
Implantable
Tissue Growth Stimulator
|
European
|
3/3/99
|
Active
|
|
5565005
|
AMEI
Technologies Inc
|
Implantable
Tissue Growth Stimulator and Method of Operation
|
US
|
10/15/96
|
Active
|
|
5766231
|
AMEI
Technologies Inc
|
Implantable
Tissue Growth Stimulator and Method of Operation
|
US
|
6/16/98
|
Active
|
|
0,611,583
|
AMEI
Technologies Inc
|
Implantable
Tissue Growth Stimulator and Method of Operation
|
European
|
4/7/99
|
Active
|
|
5524624
|
AMEI
Technologies Inc
|
Apparatus
and Method for Stimulating Tissue Growth with Ultrasound
|
US
|
6/11/96
|
Active
|
|
D361555
|
AMEI
Technologies Inc
|
Combined
Programmer and Monitor for an Implantable Tissue Growth
Stimulator
|
US
|
8/22/95
|
Active
|
|
5304179
|
AMEI
Technologies Inc
|
System
and Method for Installing a Spinal Fixation System at Variable
Angles
|
US
|
4/19/94
|
Active
|
|
5437669
|
AMEI
Technologies Inc
|
Spinal
Fixation Systems with Bifurcated Connectors
|
US
|
8/1/95
|
Active
|
|
5704904
|
AMEI
Technologies Inc
|
Inflatable
Lumbar Traction Device
|
US
|
1/6/98
|
Active
|
|
5950628
|
AMEI
Technologies Inc
|
Inflatable
Wearable Traction Device
|
US
|
9/14/99
|
Active
|
|
5724993
|
AMEI
Technologies Inc
|
Inflatable
Spinal Traction Device
|
US
|
3/10/98
|
Active
|
|
0,837,666
|
AMEI
Technologies Inc
|
Ambulatory
Spinal Traction Device
|
US/European
|
2/11/04
|
Active
|
|
310906
|
AMEI
Technologies Inc
|
Ambulatory
Spinal Traction Device
|
Norway
|
9/17/01
|
Active
|
|
122495
|
AMEI
Technologies Inc
|
Ambulatory
Spinal Traction Device
|
Israel
|
7/22/02
|
Active
|
|
699290
|
AMEI
Technologies Inc
|
Inflatable
Spinal Traction Device
|
Australia
|
3/11/99
|
Active
|
|
Patent/
Application No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Date
of Issuance/ Application
|
Status
|
|
5743844
|
AMEI
Technologies Inc
|
High
Efficiency Pulsed Electromagnetic Field (PEMF) Stimulation Therapy Method
and System
|
US
|
4/28/98
|
Active
|
|
6,261,221B1
|
AMEI
Technologies Inc
|
Flexible
Coil Pulsed Electromagnetic Field (PEMF) Stimulation Therapy
System
|
US
|
7/17/01
|
Active
|
|
6132362
|
AMEI
Technologies Inc
|
Pulsed
Electromagnetic Field (PEMF) Stimulation Therapy System with Bi-Phasic
Coil
|
US
|
10/17/00
|
Active
|
|
6117575
|
AMEI
Technologies Inc
|
Battery
Compartment
|
US
|
9/12/00
|
Active
|
|
6024691
|
AMEI
Technologies Inc
|
Cervical
Collar with Integrated Electrical Circuitry for Electromagnetic field
Therapy
|
US
|
2/15/00
|
Active
|
|
6418345B1
|
AMEI
Technologies Inc
|
PEMF
Stimulator for Treating Osteoporosis and Stimulating Tissue
Growth
|
US
|
7/9/02
|
Active
|
|
5507211
|
AMEI
Technologies Inc
|
Releasable
Socket
|
US
|
4/16/96
|
Active
|
|
6839595
|
AMEI
Technologies Inc
|
PEMF
Stimulator for Treating Osteoporosis and Stimulating Tissue
Growth
|
US
|
1/4/05
|
Active
|
|
1100582
|
AMEI
Technologies Inc
|
PEMF
Treatment for Osteoporosis and Tissue Growth Stimulation
|
European
|
6/15/05
|
|
|
6678562
|
AMEI
Technologies Inc
|
Combined
Tissue/Bone Growth Stimulator and External Fixation Device
|
US
|
1/13/04
|
|
|
1248659
|
AMEI
Technologies Inc
|
Combined
Tissue/Bone Growth Stimulator and External Fixation Device
|
European
|
Active
|
|
|
D348198
|
AMEI
Technologies Inc
|
Interlaminar
Clamp
|
US
|
6/28/94
|
Active
|
|
4735196
|
AMEI
Technologies Inc
|
Cervical-Thoracic
Orthosis and Method
|
US
|
4/5/88
|
Active
|
|
6635025
|
AMEI
Technologies Inc
|
Traction
Device Adjustment Mechanism and Method
|
US
|
10/21/03
|
Active
|
|
6974432
|
AMEI
Technologies Inc
|
Traction
Device Adjustment Mechanism and Method
|
US
|
12/13/05
|
Active
|
|
6533740
|
AMEI
Technologies Inc
|
Lifting
Mechanism for a Traction Device
|
US
|
3/18/03
|
Active
|
|
6776767
|
AMEI
Technologies Inc
|
Traction
Device and Associated Lifting Mechanism
|
US
|
8/17/04
|
Active
|
|
6702771
|
AMEI
Technologies Inc
|
Canting
Mechanism for Ambulatory Support Device
|
US
|
3/9/04
|
Active
|
|
6746413
|
AMEI
Technologies Inc
|
Canting
Mechanism for Ambulatory Support Device
|
US
|
6/8/04
|
Active
|
|
6689082
|
AMEI
Technologies Inc
|
Traction
Device
|
US
|
2/10/04
|
Active
|
|
6364824
|
Orthofix
Inc.
|
Stimulating
Cell Receptor Activity Using Electromagnetic Fields
|
US
|
4/2/04
|
Active
|
|
7089060
|
AMEI
Technologies Inc
|
Stimulating
Cell Growth Using Pulsed Electro-Magnetic Fields (PEMF)
|
US
|
8/8/06
|
Active
|
|
Patent/
Application No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Date
of Issuance/ Application
|
Status
|
|
7074201
|
AMEI
Technologies Inc
|
Measurement
Device for Fitting a Bracing Device
|
US/Patent
Cooperation Treaty
|
Active
|
|
|
6997892
|
AMEI
Technologies Inc
|
Ambulatory
Cyclic Traction Device
|
US
|
2/4/06
|
Active
|
|
03773260.9
2004/034872
|
AMEI
Technologies Inc
|
Ambulatory
Cyclic Traction Device
|
European/Patent
Cooperation Treaty
|
Active
|
|
|
7070572
|
AMEI
Technologies Inc
|
Dynamically
Adjustable Stabilization Brace
|
US/Patent
Cooperation Treaty
|
Active
|
|
|
10/712574
|
AMEI
Technologies Inc
|
Apparatus
and Method for Maintaining Bones in Healing Position
|
US/Patent
Cooperation Treaty
|
11/13/03
|
Pending
|
|
10/393,541
|
AMEI
Technologies Inc
|
Field
Adjustable Traction Device
|
US
|
Pending
|
|
|
11/244879
|
AMEI
Technologies Inc
|
Bone
Alignment Implant and Method of Use
|
US
|
Pending
|
|
|
6322571
|
AMEI
Technologies Inc
|
Apparatus
and Method for Placing Sutures in the Lacerated End of a Tendon and
Similar Body Tissues
|
US/Patent
Cooperation Treaty
|
11/27/01
|
Active
|
|
6342060
|
AMEI
Technologies Inc
|
Tendon
Passing Device and Method
|
US/Patent
Cooperation Treaty
|
1/29/02
|
Active
|
|
7001351
|
AMEI
Technologies Inc
|
Brace
with Integrated Lumbar Support System
|
US
|
2/21/06
|
Active
|
|
10/629,192
|
AMEI
Technologies Inc
|
Fixation
Device and Method for Treating Contractures and Other Orthopedic
Indications
|
US
|
7/29/03
|
Pending
|
|
6936019
|
Breg
Inc.
|
Strap
Connector Assembly for an Orthopedic Brace
|
US
|
8/30/05
|
Active
|
|
6893414
B2
|
Breg
Inc.
|
Integrated
Infusion and Aspiration System and Method
|
US
|
5/17/05
|
Active
|
|
6802823
B2
|
Breg
Inc.
|
Medication
Delivery System Having Selective Automated or Manual
Discharge
|
US
|
10/12/04
|
Active
|
|
Patent/
Application No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Date
of Issuance/ Application
|
Status
|
|
6719728
B2
|
Breg
Inc.
|
Patient
Controlled Medication Delivery System with Overmedication Prevention
(2000L)
|
US
|
4/13/2004
|
Active
|
|
6719713
B2
|
Breg
Inc.
|
Strap
Attachment Assembly for an Orthopedic Brace
|
US
|
4/13/2004
|
Active
|
|
D486870
S
|
Breg
Inc.
|
Continuous
Passive Motion Device for a Shoulder or Elbow (Shoulder
CPM)
|
US
|
2/17/2004
|
Active
|
|
6551264
B1
|
Breg
Inc.
|
Orthosis
for Dynamically Stabilizing the Patello-Femoral Joint
|
US
|
4/22/2003
|
Active
|
|
6270481
B1
|
Breg
Inc.
|
Patient-Controlled
Medication Delivery System (2000 & 2000L)
|
US
|
8/7/2001
|
Active
|
|
6260890
B1
|
Breg
Inc.
|
Tubing
Connector
|
US
|
7/17/2001
|
Active
|
|
6176869
B1
|
Breg
Inc.
|
Fluid
Drive Mechanism for a Therapeutic Treatment System
|
US
|
1/23/2001
|
Active
|
|
DES.430,288
|
Breg
Inc.
|
Medical
Infusion Pump (2000 & 2000L)
|
US
|
8/29/2000
|
Active
|
|
DES.430,289
|
Breg
Inc.
|
Infusion
Pump for Administering a Fluid Medication (2000 &
2000L)
|
US
|
8/29/2000
|
Active
|
|
REEXAM
(U.S. 5,330,519)
|
Breg
Inc.
|
Therapeutic
Nonambient Temperature Fluid Circulation System
|
US
|
7/6/1999
|
Active
|
|
REEXAM(U.S.
5,330,519)
|
Breg
Inc.
|
Therapeutic
Nonambient Temperature Fluid Circulation System
|
US
|
11/10/1998
|
Active
|
|
5827208
|
Breg
Inc.
|
Hinge
For an Orthopedic Brace Having a Selectively Positionable Stop to Limit
Rotation
|
US
|
10/27/1998
|
Active
|
|
5807294
|
Breg
Inc.
|
Adjustable
Hinge Assembly for an Osteoarthritic Knee Brace
|
US
|
9/15/1998
|
Active
|
|
5782780
|
Breg
Inc.
|
Method
of Forming a Contoured Orthotic Member
|
US
|
7/21/1998
|
Active
|
|
5772618
|
Breg
Inc.
|
Hinge
Plate For an Orthopedic Brace
|
US
|
6/30/1998
|
Active
|
|
5672152
|
Breg
Inc.
|
Hinge
For an Orthopedic Brace Having an Adjustable Range of
Rotation
|
US
|
9/30/1997
|
Active
|
|
DES.383,848
|
Breg
Inc.
|
Cold
Therapy Pad
|
US
|
9/16/1997
|
Active
|
|
DES.383,547
|
Breg
Inc.
|
Cold
Therapy Pad With Mounting Straps
|
US
|
9/9/1997
|
Active
|
|
5662695
|
Breg
Inc.
|
Occlusion-Resistant
Fluid Pad Conformable to a Body for Therapeutic Treatment
Thereof
|
US
|
9/2/1997
|
Active
|
|
5507792
|
Breg
Inc.
|
Therapeutic
Treatment Device Having a Heat Transfer Element and a Pump for Circulating
a Treatment Fluid Therethrough
|
US
|
4/16/1996
|
Active
|
|
5417720
|
Breg
Inc.
|
Nonambient
Temperature Pad Conformable to a Body For Therapeutic Treatment
Thereof
|
US
|
5/23/1995
|
Active
|
|
DES.352,781
|
Breg
Inc.
|
Therapeutic
Fluid Flow Line
|
US
|
11/22/1994
|
Active
|
|
DES.
351,472
|
Breg
Inc.
|
Therapeutic
Fluid Circulation Pad for the Eyes
|
US
|
10/11/1994
|
Active
|
|
5352174
|
Breg
Inc.
|
Shoulder
Exercise System
|
US
|
10/4/1994
|
Active
|
|
5330519
|
Breg
Inc.
|
Therapeutic
Nonambient Temperature Fluid Circulation System
|
US
|
7/19/1994
|
Active
|
|
DES.
348,518
|
Breg
Inc.
|
Therapeutic
Fluid Circulation Pad for Breasts
|
US
|
7/5/1994
|
Active
|
|
Patent/
Application No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Date
of Issuance/ Application
|
Status
|
|
DES.
348,106
|
Breg
Inc.
|
Therapeutic
Fluid Circulation Pad for Body Joints
|
US
|
6/21/1994
|
Active
|
|
DES.345,802
|
Breg
Inc.
|
Therapeutic
Fluid Pump
|
US
|
4/5/1994
|
Active
|
|
DES.345,803
|
Breg
Inc.
|
Therapeutic
Fluid Flow Controller
|
US
|
4/5/1994
|
Active
|
|
DES.
345,609
|
Breg
Inc.
|
Nonambient
Temperature Pad Conformable to a Body for Therapeutic Treatment Thereof
(Therapeutic Fluid Circulation Pad)
|
US
|
3/29/1994
|
Active
|
|
5241951
|
Breg
Inc.
|
Therapeutic
Nonambient Temperature Fluid Circulation System
|
US
|
9/7/1993
|
Active
|
|
5232020
|
Breg
Inc.
|
Shutoff
Valve Having a Unitary Valve Body (Housing)
|
US
|
8/3/1993
|
Active
|
|
5112045
|
Breg
Inc.
|
Kinesthetic
Diagnostic and Rehabilitation Device
|
US
|
5/12/1992
|
Active
|
|
5080089
|
Breg
Inc.
|
Therapeutic
Apparatus Applying Compression and a Nonambient Temperature
Fluid
|
US
|
1/14/1992
|
Active
|
|
11/285,827
|
Breg
Inc.
|
Non-Ambient
Temperature Therapy System with Automatic Treatment Temperature
Maintenance (new cold therapy)
|
US
|
11/22/2005
|
Pending
|
|
11/040,814
|
Breg
Inc.
|
Frame
for an Orthopedic Brace Including Offset Hinges
|
US
|
1/2/2005
|
Pending
|
|
11/067,305
|
Breg
Inc.
|
Method
for Fitting an Orthopedic Brace to the Body
|
US
|
1/12/2005
|
Pending
|
|
11/039,448
|
Breg
Inc.
|
Releasably
Locking Hinge for an Orthopedic Brace Having Adjustable Rotation
Limits
|
1/12/2005
|
Pending
|
|
|
11/039,056
|
Breg
Inc.
|
Support
Assembly for an Orthopedic Brace having a Length-Adjusting
Mechanism
|
US
|
1/12/2002
|
Pending
|
|
10/933,619
|
Breg
Inc.
|
Medication
Delivery System Having Selective Automated or Manual Discharge (Division
of xxx no. 6,802,823)
|
9/2/2004
|
Pending
|
|
|
10/860,963
|
Breg
Inc.
|
Shoulder
Stabilizing Restraint
|
US
|
6/4/2004
|
Pending
|
|
10/745,900
|
Breg
Inc.
|
Orthopedic
Xxxxxx Having a Soft Boot with a Deformable Insert
|
US
|
12/24/2003
|
Pending
|
|
10/728,736
|
Breg
Inc.
|
Knee
Brace Providing Dynamic Tracking of the Patello-Femoral
Joint
|
US
|
12/5/2003
|
Pending
|
|
10/420,344
|
Breg
Inc.
|
Orthosis
Providing Dynamic Tracking of the Patello-Femoral Joint Continuation in
Part.
|
US
|
4/22/2003
|
Pending
|
|
10/285,861
|
Breg
Inc.
|
Continuous
Passive Motion Device for Rehabilitation of the Elbow or
Shoulder
|
US
|
1/11/2002
|
Pending
|
|
10/270,091
|
Breg
Inc.
|
Catheter
Assemblies for Controlled Movement of Fluid
|
US
|
10/14/2002
|
Pending
|
|
PCT/
|
Breg
Inc.
|
Frame
for an Orthopedic Brace Including Offset Hinges
|
All
countries
|
12/29/2005
|
Pending
|
|
PCT/US03/25069
|
Breg
Inc.
|
Integrated
Infusion and Aspiration System and Method
|
All
countries
|
8/11/2003
|
Pending
|
|
10/896,515
|
Breg
Inc.
|
Integrated
Infusion and Aspiration System and Method
|
US
|
8/12/2002
|
Pending
|
|
Patent/
Application No.
|
Credit
Party
|
Title
|
Jurisdiction
|
Data
of
Issuance/
Application
|
Status
|
|
2002951449
|
Blackstone
Medical Inc.
|
An
Arthroscopy Irrigation Device
|
All
countries except Taiwan
|
Pending
|
|
|
2001285096
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
Australia
|
Active
|
|
|
2420147
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
Canada
|
Active
|
|
|
01816670.9
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
China
|
Active
|
|
|
01964217.2
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
EPO
|
Active
|
|
|
PA/a/2003/001514
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
Mexico
|
Active
|
|
|
NI201003
90120338
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
Taiwan
|
Active
|
|
|
6,524,310
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
US
|
2/25/2003
|
Active
|
|
04105071.7
|
Blackstone
Medical Inc.
|
A
Surgical Cross-Connecting Apparatus
|
Hong
Kong
|
Active
|
|
|
N1243052
91102582
|
Blackstone
Medical Inc.
|
Orthopedic
Implant and Method for Orthopedic Treatment
|
Taiwan
|
Active
|
|
|
10/676,062
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
US
|
Active
|
|
|
2003275367
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
Australia
|
Active
|
|
|
2504215
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
Canada
|
Active
|
|
|
03759643.4
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
EPO
|
Active
|
|
|
PA/a/2005/004596
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
Mexico
|
Active
|
|
|
06101761.9
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Provided with Screw Locking Mechanisms
|
Hong
Kong
|
Active
|
|
|
6,960,232
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
US
|
11/1/2005
|
Active
|
|
2003228697
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
Australia
|
Active
|
|
|
03726462.9
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
EPO
|
Active
|
|
|
2003-587291
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
Japan
|
Active
|
|
|
10/891,635
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
US
|
Active
|
|
|
US04/22778
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc
|
PCT
|
Active
|
|
|
6,413,259
|
Blackstone
Medical Inc.
|
Bone
Plate Assembly Including a Screw Retaining Member
|
US
|
7/2/2002
|
Active
|
|
6,648,893
|
Blackstone
Medical Inc.
|
Facet
Fixation Devices
|
US
|
11/18/2003
|
Active
|
|
6,238,396
|
Blackstone
Medical Inc.
|
Surgical
Cross-Connecting Apparatus and Related Methods
|
US
|
5/29/2001
|
Active
|
|
2424814
|
Blackstone
Medical Inc.
|
Surgical
Cross-Connecting Apparatus and Related Methods
|
Canada
|
Active
|
|
|
6,540,748
|
Blackstone
Medical Inc.
|
A
Surgical Screw System and Method of Use
|
US
|
4/1/2003
|
Active
|
|
2423973
|
Blackstone
Medical Inc.
|
A
Surgical Screw System and Related Methods
|
Canada
|
Active
|
|
|
10/968,586
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
US
|
Active
|
|
|
0000000000
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
Australia
|
Active
|
|
|
2542833
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
Canada
|
Active
|
|
Patent/
Application No.
|
Credit
Party
|
Title |
Jurisdiction
|
Date
of
Issuance/
Application
|
Status
|
|
04795903.6
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
EPO
|
||
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
Japan
|
|||
|
PA/a/2006/004374
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
Mexico
|
||
|
11/031,362
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
US
|
||
|
US2005/000376
|
Blackstone
Medical Inc.
|
Vertebral
Body Replacement Apparatus and Method
|
PCT
|
||
|
10/968,585
|
Blackstone
Medical Inc.
|
Bone
Plate and Method for Using Bone Plate
|
US
|
||
|
11/092,273
|
Blackstone
Medical Inc.
|
Bone
Plate and Method for Using Bone Plate
|
US
|
||
|
US2005/010540
|
Blackstone
Medical Inc.
|
Bone
Plate and Method for Using Bone Plate
|
PCT
|
||
|
10/928,955
|
Blackstone
Medical Inc.
|
Multi-Axial
Connection System
|
US
|
||
|
US2005/029836
|
Blackstone
Medical Inc.
|
Multi-Axial
Connection System
|
PCT
|
||
|
11/388,666
|
Blackstone
Medical Inc.
|
Multi-Axial
Connection System
|
US
|
||
|
US2006/010738
|
Blackstone
Medical Inc.
|
Multi-Axial
Connection System
|
PCT
|
||
|
11/228,117
|
Blackstone
Medical Inc.
|
Anterior
Cervical Plating System
|
US
|
||
|
60/703,546
|
Blackstone
Medical Inc.
|
Nerve
Protection System
|
US
|
||
|
60/719,424
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc-Crimped Ring Design
|
US
|
||
|
60/748,333
|
Blackstone
Medical Inc.
|
Device
and Method for Holding and Inserting One or More Components of a Pedicle
Screw
|
US
|
||
|
60/759,944
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc (aka Crimped Ring-Dacron) I
|
US
|
||
|
60/772,812
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc (aka Concentric Columns) I
|
US
|
||
|
60/780,903
|
Blackstone
Medical Inc.
|
System
and Method for Dynamic Stabilization of the Spine
|
US
|
||
|
60/744,871
|
Blackstone
Medical Inc.
|
Percutaneous
Facet Fusion Device and Method
|
US
|
||
|
60/745,303
|
Blackstone
Medical Inc.
|
Artificial
Intervertebral Disc (aka Radially Crimped Dacron)
|
US
|
TRADEMARKS
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
2646432
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Argentina
|
Pending
|
|
|
827344643
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Brazil
|
Pending
|
|
|
827942516
|
AMEI
Technologies, Inc.
|
GOTFRIED
PC.C.P & Design
|
Brazil
|
Pending
|
|
|
827318537
|
AMEI
Technologies, Inc.
|
MIOT
|
Brazil
|
Pending
|
|
|
824347269
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Brazil
|
Pending
|
|
|
824631633
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Brazil
|
Pending
|
|
|
828089400
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Brazil
|
||
|
1254566
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
Canada
|
Pending
|
|
|
1254565
|
AMEI
Technologies, Inc.
|
CONTOURS
VPS
|
Canada
|
Pending
|
|
|
1254260
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Canada
|
Pending
|
|
|
1254188
|
AMEI
Technologies, Inc.
|
MIOT
|
Canada
|
Pending
|
|
|
4614955
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
China
|
Pending
|
|
|
4556233
|
AMEI
Technologies, Inc.
|
MIOT
|
China
|
Pending
|
|
|
T2005-037367
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Colombia
|
Pending
|
|
|
0000000
|
AMEI
Technologies, Inc.
|
GOTFRIED
PC.C.P & Design
|
CTM
|
Pending
|
|
|
00-0000-00000
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Republic
of Korea
(South)
|
Pending
|
|
|
00-0000-00000
|
AMEI
Technologies, Inc.
|
MIOT
|
Republic
of Korea
(South)
|
Pending
|
|
|
97116
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Saudi
Arabia
|
Pending
|
|
|
95541
|
AMEI
Technologies, Inc.
|
MIOT
|
Saudi
Arabia
|
Pending
|
|
|
2005/07005
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
South
Africa
|
Pending
|
|
|
2005/07005
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
South
Africa
|
Pending
|
|
|
2005/04886
|
AMEI
Technologies, Inc.
|
MIOT
|
South
Africa
|
Pending
|
|
|
78526886
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
US
|
Pending
|
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
78663808
|
AMEI
Technologies, Inc.
|
BONEMAX
& Design
|
US
|
Pending
|
|
|
78834578
|
AMEI
Technologies, Inc.
|
MAKING
LIFE BETTER THROUGH INNOVATIONS IN HEALING
|
US
|
Pending
|
|
|
78504027
|
AMEI
Technologies, Inc.
|
MIOT
|
US
|
Pending
|
|
|
78607031
|
AMEI
Technologies, Inc.
|
OSTEOMAX
|
US
|
Pending
|
|
|
1050584
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
Australia
|
4/13/2005
|
Registered
|
|
1051609
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Australia
|
11/28/2005
|
Registered
|
|
1046353
|
AMEI
Technologies, Inc.
|
MIOT
|
Australia
|
3/15/2005
|
Registered
|
|
893347
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Australia
|
10/26/2001
|
Registered
|
|
893350
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Australia
|
10/26/2001
|
Registered
|
|
906762
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Australia
|
3/19/2002
|
Registered
|
|
619612
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Australia
|
12/31/1993
|
Registered
|
|
619614
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Australia
|
12/31/1993
|
Registered
|
|
544186
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Benelux
|
10/3/1994
|
Registered
|
|
770936
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Benelux
|
2/22/2005
|
Registered
|
|
0544185
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Benelux
|
10/3/1994
|
Registered
|
|
770937
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Benelux
|
2/22/2005
|
Registered
|
|
TMA449580
|
AMEI
Technologies, Inc.
|
AME
& Design
|
Canada
|
11/3/1995
|
Registered
|
|
TMA535437
|
AMEI
Technologies, Inc.
|
CERVICAL-STIM
|
Canada
|
10/23/2000
|
Registered
|
|
TMA626724
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Canada
|
11/25/2004
|
Registered
|
|
TMA638133
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Canada
|
4/22/2005
|
Registered
|
|
TMA539243
|
AMEI
Technologies, Inc.
|
OSTEO-TITE
|
Canada
|
1/8/2001
|
Registered
|
|
TMA542417
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Canada
|
3/15/2001
|
Registered
|
|
TMA446011
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Canada
|
8/11/1995
|
Registered
|
|
636707
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Chile
|
7/18/2002
|
Registered
|
|
642654
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Chile
|
9/23/2002
|
Registered
|
|
3013024
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
China
|
1/28/2003
|
Registered
|
|
3119623
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
China
|
1/28/2003
|
Registered
|
|
305007
|
AMEI
Technologies, Inc.
|
MIOT
|
Colombia
|
10/24/2005
|
Registered
|
|
4386967
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
CTM
|
4/13/2005
|
Registered
|
|
000884122
|
AMEI
Technologies, Inc.
|
CERVICAL-STIM
|
CTM
|
11/17/1999
|
Registered
|
|
4386901
|
AMEI
Technologies, Inc.
|
CONTOURS
VPS
|
CTM
|
4/13/2005
|
Registered
|
|
4409389
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
CTM
|
4/20/2005
|
Registered
|
|
001260728
|
AMEI
Technologies, Inc.
|
EZBRACE
|
CTM
|
11/8/2000
|
Registered
|
|
4338331
|
AMEI
Technologies, Inc.
|
MIOT
|
CTM
|
3/14/2005
|
Registered
|
|
002431559
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
CTM
|
3/31/2003
|
Registered
|
|
002624088
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
CTM
|
1/12/2004
|
Registered
|
|
00851634
|
AMEI
Technologies, Inc.
|
OSTEO-TITE
|
CTM
|
10/4/1999
|
Registered
|
|
94502900
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
France
|
7/8/1994
|
Registered
|
|
9450291
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
France
|
7/8/1994
|
Registered
|
|
153124
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Germany
|
6/2/2003
|
Registered
|
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
155984
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Germany
|
5/5/2003
|
Registered
|
|
153124
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Israel
|
6/2/2003
|
Registered
|
|
155984
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Israel
|
5/5/2003
|
Registered
|
|
4896847
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
Japan
|
9/22/2005
|
Registered
|
|
4399290
|
AMEI
Technologies, Inc.
|
CERVICAL-STIM
|
Japan
|
7/14/2000
|
Registered
|
|
4896849
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Japan
|
9/22/2005
|
Registered
|
|
4882077
|
AMEI
Technologies, Inc.
|
MIOT
|
Japan
|
7/22/2005
|
Registered
|
|
4399289
|
AMEI
Technologies, Inc.
|
OSTEO-TITE
|
Japan
|
7/14/2000
|
Registered
|
|
4411424
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
Japan
|
8/25/2000
|
Registered
|
|
4325121
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
Japan
|
10/15/1999
|
Registered
|
|
4513042
|
AMEI
Technologies, Inc.
|
THE
HEALING ADVANTAGE
|
Japan
|
10/12/2001
|
Registered
|
|
101697
|
AMEI
Technologies, Inc.
|
MIOT
|
Lebanon
|
4/6/2005
|
Registered
|
|
913396
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
Mexico
|
12/13/2005
|
Registered
|
|
913397
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Mexico
|
12/12/2005
|
Registered
|
|
920317
|
AMEI
Technologies, Inc.
|
GOTFRIED
PC.C.P & Design
|
Mexico
|
2/22/2006
|
Registered
|
|
909464
|
AMEI
Technologies, Inc.
|
MIOT
|
Mexico
|
11/23/2005
|
Registered
|
|
753560
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Mexico
|
6/28/2002
|
Registered
|
|
784276
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Mexico
|
3/24/2003
|
Registered
|
|
755668
|
AMEI
Technologies, Inc.
|
STORM
|
Mexico
|
7/25/2002
|
Registered
|
|
726603
|
AMEI
Technologies, Inc.
|
MIOT
|
New
Zealand
|
10/21/2004
|
Registered
|
|
647685
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
New
Zealand
|
5/2/2002
|
Registered
|
|
654028
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
New
Zealand
|
9/5/2002
|
Registered
|
|
215452
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Norway
|
8/15/2002
|
Registered
|
|
217336
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Norway
|
1/23/2003
|
Registered
|
|
141850
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
Panama
|
4/19/2005
|
Registered
|
|
141636
|
AMEI
Technologies, Inc.
|
MIOT
|
Panama
|
4/8/2015
|
Registered
|
|
246514
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Paraguay
|
5/8/2002
|
Registered
|
|
255993
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Paraguay
|
4/9/2003
|
Registered
|
|
659808
|
AMEI
Technologies, Inc.
|
BLADERUNNER
|
Republic
of Korea
(South)
|
4/24/2006
|
Registered
|
|
5432131
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
Republic
of Korea
(South)
|
3/14/2003
|
Registered
|
|
554995
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Device
|
Republic
of Korea
(South)
|
7/30/2003
|
Registered
|
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
56175
|
AMEI
Technologies, Inc.
|
MIOT
|
Republic
of Korea
(South)
|
11/30/2005
|
Registered
|
|
1557943
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
United
Kingdom
|
11/3/1995
|
Registered
|
|
1557944
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
United
Kingdom
|
12/1/1995
|
Registered
|
|
1981113
|
AMEI
Technologies, Inc.
|
1-800-BONEFIX
|
US
|
6/18/1996
|
Registered
|
|
2265742
|
AMEI
Technologies, Inc.
|
CERVICAL-STIM
|
US
|
7/27/1999
|
Registered
|
|
3103333
|
AMEI
Technologies, Inc.
|
CONTOURS
VPS
|
US
|
6/13/2006
|
Registered
|
|
3094296
|
AMEI
Technologies, Inc.
|
EIGHT-PLATE
GUIDED GROWTH SYSTEM & Design
|
US
|
5/16/2006
|
Registered
|
|
2592020
|
AMEI
Technologies, Inc.
|
EZBRACE
|
US
|
7/9/2002
|
Registered
|
|
3090036
|
AMEI
Technologies, Inc.
|
GOTFRIED
PC.C.P & Design
|
US
|
5/9/2006
|
Registered
|
|
2991110
|
AMEI
Technologies, Inc.
|
I
ISKD & Design
|
US
|
9/6/2005
|
Registered
|
|
3029777
|
AMEI
Technologies, Inc.
|
M2
MULTIPLANAR MINIRAIL & Design
|
US
|
12/13/2005
|
Registered
|
|
2574017
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
|
US
|
5/28/2002
|
Registered
|
|
2708888
|
AMEI
Technologies, Inc.
|
ORTHOTRAC
& Design
|
US
|
4/22/2003
|
Registered
|
|
2269876
|
AMEI
Technologies, Inc.
|
OSTEO-TITE
|
US
|
8/10/1999
|
Registered
|
|
1701625
|
AMEI
Technologies, Inc.
|
PHYSIO-STIM
|
US
|
7/21/1992
|
Registered
|
|
1384143
|
AMEI
Technologies, Inc.
|
SPINAL-STIM
|
US
|
2/25/1986
|
Registered
|
|
2789136
|
AMEI
Technologies, Inc.
|
THE
HEALING ADVANTAGE
|
US
|
12/2/2003
|
Registered
|
|
2427678
|
AMEI
Technologies, Inc.
|
BMD-STIM
|
US
|
2/6/2001
|
Registered
|
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
2,750,593
|
Breg
Inc.
|
PTO
|
US
|
8/12/2003
|
Registered
|
|
2,734,767
|
Breg
Inc.
|
Breg
|
US
|
7/8/2003
|
Registered
|
|
2,692,824
|
Breg
Inc.
|
B
stylized letters
|
US
|
3/4/2003
|
Registered
|
|
2,692,823
|
Breg
Inc.
|
B
Breg
|
US
|
3/4/2003
|
Registered
|
|
2,393,538
|
Breg
Inc.
|
THE
TRADITION
|
US
|
10/10/2000
|
Registered
|
|
2,664,714
|
Breg
Inc.
|
PAIN
CARE
|
US
|
12/17/2002
|
Registered
|
|
2,445,909
|
Breg
Inc.
|
POLAR
CARE
|
US
|
4/24/2001
|
Registered
|
|
1,898,777
|
Breg
Inc.
|
FLEX-MATE
|
US
|
6/13/1995
|
Registered
|
|
1,710,735
|
Breg
Inc.
|
B
Breg and design
|
US
|
8/25/1992
|
Registered
|
|
1,726,657
|
Breg
Inc.
|
Design
only
|
US
|
10/20/1992
|
Registered
|
|
1,712,650
|
Breg
Inc.
|
BREG
|
US
|
9/1/1992
|
Registered
|
|
2,041,086
|
Breg
Inc.
|
BREG
|
DE
|
7/23/1993
|
|
|
751,644
|
Breg
Inc.
|
BREG
|
Mexico
|
11/18/2005
|
|
|
2,791,770
|
Breg
Inc.
|
BREG
|
EC
|
||
|
1,720,605
|
Breg
Inc.
|
BREG
|
Spain
|
Registered
|
|
|
649,826
|
Breg
Inc.
|
BREG
|
Italy
|
Registered
|
|
|
2,041,086
|
Breg
Inc.
|
BREG
|
Germany
|
Registered
|
|
|
94/432
165
|
Breg
Inc.
|
BREG
|
France
|
Registered
|
|
3,052,822
|
Breg
Inc.
|
BREG
|
Japan
|
Registered
|
|
|
VR006441994
|
Breg
Inc.
|
BREG
|
Denmark
|
Registered
|
|
|
160,042
|
Breg
Inc.
|
BREG
|
Norway
|
Registered
|
|
|
827,731,922
|
Breg
Inc.
|
BREG
|
Brazil
|
8/3/2005
|
Registered
|
|
827,731,949
|
Breg
Inc.
|
POLAR
CARE
|
Brazil
|
8/3/2005
|
Registered
|
|
Registration/
Application
No.
|
Credit
Party
|
Trademark
|
Jurisdiction
|
Registration/
Application
Date
|
Status
|
|
751,647
|
Breg
Inc.
|
POLAR
CARE
|
Mexico
|
11/18/2005
|
Registered
|
|
3,066,723
|
Breg
Inc.
|
ORTHO
SELECT
|
US
|
3/7/2006
|
Registered
|
|
3,050,423
|
Breg
Inc.
|
FUSION
|
US
|
1/24/2006
|
Registered
|
|
3,050,899
|
Breg
Inc.
|
FUSION
and twin F design
|
US
|
1/24/2006
|
Registered
|
|
3,050,900
|
Breg
Inc.
|
twin
F design
|
US
|
1/24/2006
|
Registered
|
|
3,020,950
|
Breg
Inc.
|
PAIN
CARE
|
US
|
11/29/2005
|
Registered
|
|
3,012,237
|
Breg
Inc.
|
T
SCOPE
|
US
|
11/1/2005
|
Registered
|
|
2,900,945
|
Breg
Inc.
|
NEUTRAL
WEDGE
|
US
|
11/2/2004
|
Registered
|
|
2,855,229
|
Breg
Inc.
|
ARTHOTAP
|
US
|
6/15/2004
|
Registered
|
|
2,796,013
|
Breg
Inc.
|
AIRMESH
|
US
|
12/16/2003
|
Registered
|
|
2,775,794
|
Breg
Inc.
|
X2K
|
US
|
10/21/2003
|
Registered
|
|
78/963,043
|
Breg
Inc.
|
KOOL
SLING
|
US
|
8/29/2006
|
Pending
|
|
78/959,137
|
Breg
Inc.
|
KODIAK
|
US
|
8/23/2006
|
Pending
|
|
78/881,001
|
Breg
Inc.
|
PAINDRAIN
|
US
|
5/10/2006
|
Pending
|
|
78/722,922
|
Blackstone
Medical Inc.
|
Advent
|
US
|
9/29/2005
|
Pending
|
|
3091181
|
Blackstone
Medical Inc.
|
Alloquent
|
US
|
5/9/2006
|
Active
|
|
3101182
|
Blackstone
Medical Inc.
|
Ascent
|
US
|
6/6/2006
|
Active
|
|
2347454
|
Blackstone
Medical Inc.
|
Blackstone
|
US
|
5/2/2000
|
Active
|
|
3078373
|
Blackstone
Medical Inc.
|
Breakthrough
Thinking
|
US
|
4/11/2006
|
Active
|
|
78/415,732
|
Blackstone
Medical Inc.
|
Construx
|
US
|
5/10/2006
|
Pending
|
|
76/626,832
|
Blackstone
Medical Inc.
|
Hallmark
|
US
|
1/4/2005
|
Pending
|
|
76/634,301
|
Blackstone
Medical Inc.
|
Icon
|
US
|
3/25/2005
|
Pending
|
|
76/627,654
|
Blackstone
Medical Inc.
|
Newbridge
|
US
|
1/12/2005
|
Pending
|
|
78/415,714
|
Blackstone
Medical Inc.
|
Ngage
|
US
|
5/10/2004
|
Pending
|
|
78/932,408
|
Blackstone
Medical Inc.
|
Origen
DBM
|
US
|
7/18/2006
|
Pending
|
|
78/880,509
|
Blackstone
Medical Inc.
|
Pillar
|
US
|
5/10/2006
|
Pending
|
|
78/880,515
|
Blackstone
Medical Inc.
|
Proview
|
US
|
5/10/2006
|
Pending
|
|
78/415,658
|
Blackstone
Medical Inc.
|
Reveal
|
US
|
||
|
78/935,508
|
Blackstone
Medical Inc.
|
Reliant
|
US
|
7/18/2006
|
|
|
78/751,479
|
Blackstone
Medical Inc.
|
Trinity
and Design
|
US
|
11/10/2005
|
Pending
|
|
78/752,413
|
Blackstone
Medical Inc.
|
Trinity
|
US
|
11/11/2005
|
Pending
|
|
76/625,481
|
Blackstone
Medical Inc.
|
Unity
|
US
|
12/23/2004
|
Pending
|
|
76/635,940
|
Blackstone
Medical Inc.
|
Unity
51
|
US
|
Schedule
3.19(a)
LOCATION OF REAL
PROPERTY
|
1.
|
Leased
Properties
|
|
a)
|
Street
Address:
|
0000
Xxxx Xxxxxxx Xxxxx, XxXxxxxx, XX 00000
|
|
|
State:
|
Texas
|
||
|
County:
|
Collin
County
|
||
|
b)
|
Street
Address:
|
0000
Xxxxxxxx Xxx, Xxxxx, XX 00000
|
|
|
State:
|
California
|
||
|
County:
|
San
Diego County
|
||
|
c)
|
Street
Address:
|
00000
Xxxxxx Xxxxxx, Xxxxx 000,
|
|
|
Xxxxxxxxxxxx
Xxxx, Xxxxxxxxxxxx, XX 00000
|
|||
|
State:
|
North
Carolina
|
||
|
County:
|
Mecklenburg
County
|
||
|
d)
|
Street
Address:
|
00
Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000
|
|
|
State:
|
Massachusetts
|
||
|
County:
|
Hampden
County
|
||
|
e)
|
Street
Address:
|
0000
Xxxxxxx Xxxxxxxx, Xxxxx 000,
|
|
|
Xxxxx,
XX 00000
|
|||
|
State:
|
New
Jersey
|
||
|
County:
|
Passaic
County
|
|
2.
|
Owned
Properties
|
None.
Schedule
3.19(b)
LOCATION OF
COLLATERAL
|
Address
(including county)
|
Value
of Collateral
|
|
00000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Mecklenburg
County
|
$121,917
|
|
0000
Xxxx Xxxxxxx Xxxxx
XxXxxxxx,
XX 00000
Collin
County
|
$17,966,908
|
|
0000
Xxxxxxxx Xxx
Xxxxx,
XX 00000
Xxx
Xxxxx Xxxxxx
|
$13,485,000
|
|
00
Xxxxxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Hampden
County
|
$11,738,600
|
|
0000
Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxx,
XX 00000
Xxxxxxx
Xxxxxx
|
$279,087
|
Schedule
3.19(c)
CHIEF EXECUTIVE
OFFICES
|
Credit
Party
|
Jurisdiction
of
Incorporation/
Organization
|
Chief
Executive
Office
|
Principal
Place
of
Business
|
Tax
Identification
Number/Tax
Reference
Number
|
Organization
Identification
Number
|
|
Orthofix
International
N.V.
|
Netherlands
Antilles
|
00000
Xxxxxx
Xxxxxx,
Xxxxx
000,
Xxxxxxxxxxxx,
XX
00000
Mecklenburg
County
|
0
Xxxxxxx xx
Xxxxxxxxxx
Xxxxxxx,
Xxxxxxxxxxx
Antilles
|
117.595.068
|
None
|
|
Colgate
Medical Ltd
|
UK
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
610
67740
10890
|
01311455
|
|
Orthofix
Holdings, Inc.
|
Delaware
|
00000
Xxxxxx
Xxxxxx,
Xxxxx
000,
Xxxxxxxxxxxx,
XX
00000
Mecklenburg
County
|
00000
Xxxxxx
Xxxxxx,
Xxxxx
000,
Xxxxxxxxxxxx,
XX
00000
Mecklenburg
County
|
00-0000000
|
3741422
|
|
Victory
Medical
Limited
|
UK
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
610
75400
20346
|
00000000
|
|
Swiftsure
Medical
Limited
|
UK
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
|
610
54745
13575
|
05594781
|
|
Credit
Party
|
Jurisdiction
of
Incorporation/
Organization
|
Chief
Executive
Office
|
Principal
Place
of
Business
|
Tax
Identification
Number/Tax
Reference
Number
|
Organization
Identification
Number
|
|
7BZ
|
7BZ
|
||||
|
Orthofix
UK Ltd
|
UK
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
0
Xxxxxx
Xxxxx,
Xxxxxxxxxx
Xxxx,
Xxxxxxxxxx,
Xxxxx
XX0
0XX
|
610
17836
02273
|
05000721
|
|
Orthofix
Inc.
|
Minnesota
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
00-0000000
|
0X-000
|
|
Xxxx
Inc.
|
California
|
0000
Xxxxxxxx
Xxx,
Xxxxx,
XX
00000
San
Diego
County
|
0000
Xxxxxxxx
Xxx,
Xxxxx,
XX
00000
Xxx
Xxxxx
Xxxxxx
|
00-0000000
|
X0000000
|
|
Xxxxxxxx
XX LLC
|
Delaware
|
00000
Xxxxxx
Xxxxxx,
Xxxxx
000,
Xxxxxxxxxxxx,
XX
00000
Mecklenburg
County
|
00000
Xxxxxx
Xxxxxx,
Xxxxx
000,
Xxxxxxxxxxxx,
XX
00000
Mecklenburg
County
|
00-0000000
|
3742359
|
|
AMEI
Technologies
Inc.
|
Delaware
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
00-0000000
|
3978372
|
|
Osteogenics
Inc.
|
Delaware
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
|
00-0000000
|
2440883
|
|
Credit
Party
|
Jurisdiction
of
Incorporation/
Organization
|
Chief
Executive
Office
|
Principal
Place
of
Business
|
Tax
Identification
Number/Tax
Reference
Number
|
Organization
Identification
Number
|
|
Collin
County
|
Collin
County
|
||||
|
Neomedics,
Inc.
|
New
Jersey
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
0000
Xxxx
Xxxxxxx
Xxxxx,
XxXxxxxx,
XX
00000
Collin
County
|
00-0000000
|
0100624244
|
|
Blackstone
Medical,
Inc.
|
Massachusetts
|
00
Xxxxxxxxx
Xxxxx,
Xxxxxxxxxxx,
XX
00000
Hampden
County
0000
Xxxxxxx
Xxxxxxxx,
Xxxxx
000,
Xxxxx,
Xxx
Xxxxxx
00000
Passaic
County
|
00
Xxxxxxxxx
Xxxxx,
Xxxxxxxxxxx,
XX
00000
|
00-0000000
|
None
|
Schedule
3.19(d)
MORTGAGED
PROPERTIES
|
1.
|
Leased
Properties
|
|
|
a)
|
Street
Address:
|
0000
Xxxx Xxxxxxx Xxxxx, XxXxxxxx, XX
00000
|
|
|
State:
|
Texas
|
|
|
County:
|
Collin
County
|
|
|
b)
|
Street
Address:
|
0000
Xxxxxxxx Xxx, Xxxxx, XX 00000
|
|
|
State:
|
California
|
|
|
County:
|
San
Diego County
|
|
|
c)
|
Street
Address:
|
00
Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX
00000
|
|
|
State:
|
Massachusetts
|
|
|
County:
|
Hampden
County
|
|
2.
|
Owned Properties
.
|
None
Schedule
3.21
LABOR
MATTERS
|
1.
|
The
employees of Orthofix International N.V.'s Orthofix Srl subsidiary are
represented for the purposes of collective bargaining by a labor
organization as mandated by Italian
law.
|
Schedule
3.29
MATERIAL
CONTRACTS
|
1.
|
Orthofix International
N.V.
|
|
|
a)
|
Employment
Agreement, dated November 20, 2003, between Orthofix International N.V.
and Xxxxxxx X. Xxxxx, filed with the SEC in an 8-K dated November 26,
2003.
|
|
|
b)
|
Employment
Agreement, dated April 15, 2005, between Orthofix International N.V. and
Xxxxxxx X. Xxxxxxxx, filed with the SEC in an 8-K dated April 18,
2005.
|
|
|
c)
|
Employment
Agreement, as amended, dated December 29, 2005, between Orthofix
International N.V. and Xxxxxxx X. Xxxxxxxx, filed with the SEC in an 8-K
dated December 30, 2005.
|
|
|
d)
|
Employment
Agreement, dated July 13, 2006, between the Company and Xxxxxx Xxxx, filed
with the SEC in an 8-K dated July 18,
2006.
|
|
|
e)
|
Employment
Agreement, dated July 13, 2006, between Orthofix Inc. and Xxxx X.
Xxxxxxxxx, filed with the SEC in an 8-K dated July 18,
2006.
|
|
|
f)
|
Employment
Agreement, dated July 13, 2006, between Orthofix Inc. and Xxxxxxx X.
Xxxxxxx, filed with the SEC in an 8-K dated July 18,
2006.
|
|
|
g)
|
Employment
Agreement, dated July 13, 2006, between Orthofix Inc. and Xxxxxxx X.
Xxxxx, filed with the SEC in an 8-K dated July 18,
2006.
|
|
2.
|
Blackstone Medical,
Inc.
|
|
|
a)
|
Distribution
and Supply Agreement by and between Blackstone and Osiris Therapeutics,
Inc. dated November __, 2005. Section 11.2 provides that Blackstone may
transfer the agreement in connection with a merger with the prior written
consent of Osiris, such consent not to be unreasonably withheld.1
|
|
|
b)
|
Agreement
between Blackstone and Invibio, Inc. dated as of October 23, 2003. Section
4.3 provides that neither party may assign a right or obligation under the
agreement without first obtaining the other party's written
consent.
|
______________________
1Note:
Document executed, but not dated.
|
|
c)
|
License
Agreement dated December 2, 2003 by and between Blackstone and Cross
Medical Products, Inc. Section 6.1 provides that the parties may assign
any or all of their rights or delegate any or all of their duties under
the agreement only upon the prior written consent of the other party, but
such consent shall not be unreasonably withheld in the event a party
wishes to assign the agreement to a purchaser of all or substantially all
of its assets relating to the '237 Patent, the '555 Patent or the Licensed
Product.
|
|
3.
|
Breg
Inc.
|
|
|
a)
|
Extension
of Lease between Breg, Inc. and North County Industrial Park, LP
(Vista).
|
|
|
b)
|
Lease
Agreement between Breg Mexico S. de X.X de C.V. and Industrias Asociadas
Maquiladoras, S.A. de C.V.
(Mexicali).
|
|
|
c)
|
GPO
Agreements; Amerinet; Consorta; Novation; Healthtrust; OPGA; DOD and VA
Government Contracts; and Hanger.
|
|
4.
|
Tax
Structure Documents (as defined in the Credit
Agreement).
|
Schedule
3.30
INSURANCE
|
1.
|
Orthofix Holdings,
Inc. and its Domestic
Subsidiaries
|
|
Type
of Insurance
|
Carrier
|
Policy
Number
|
Amount
|
Expiration
Date
|
|
Product
Liability
|
Medmarc
Casualty Insurance Company
|
06NC380002
|
$10,000,000
Per Occurrence $10,000,000 Aggregate $1,000,000 Separate Defense Cost
Limit $250,000 per Occurrence SIR $1,000,000 Aggregate SIR
|
04/01/07
|
|
Excess
Product Liability
|
Lexington
Insurance Company
|
000-00-00
|
$5,000,000
Per Occurrence $5,000,000 Aggregate
|
04/01/07
|
|
General
Liability
|
Travelers
Property Casualty Company of America
|
Y-630-
6108A144-TIL-06
|
$2,000,000
General Aggregate $1,000,000 Each Occurrence Limit $1,000,000
Personal/Advertising Injury $300,000 Fire Damage Legal Liability $10,000
Medical Payments Per Person Product Liability Excluded
|
04/01/07
|
|
Property
including Equipment Breakdown
|
Travelers
Property Casualty Company of America
|
Y-630-
6108A144-TIL-06
|
$6,000,000
Real Property $25,854,000 Business Personal Property $100,145,000 Business
Interruption $10,500,000 Inland Marine $25,000 PD Deductible $50,000 PD
Deductible Flood/EQ 5%/$250,000 min. CA EQ Xxxxxxxxxx 00 Xx XX
Deductible
|
04/01/07
|
|
Inland
Marine
|
Travelers
Property Casualty Company of America
|
Y-630-
6108A144-TIL-06
|
$10,500,000
Inland Marine Limit $25,000 Deductible $50,000 Deductible
Flood/EQ
|
04/01/07
|
|
Automobile
Liability & Physical Damage
|
Travelers
Property Casualty Company of America
|
Y-810-
6108A132-TIL-06
|
$1,000,000
BI & PD Combined Single Limit
|
04/01/07
|
|
Workers
Compensation
|
The
Travelers Indemnity Company of Connecticut
|
YEUB-6117A90-3-06
|
Statutory
WC Limits $1,000,000 Employers Liability Limits
|
04/01/07
|
|
Foreign
Liability
|
St.
Xxxx Fire & Marine Insurance Company
|
GB06800892
|
$1,000,000
Each Occurrence $2,000,000 Aggregate Product Liability
Excluded
|
04/01/07
|
|
Umbrella
|
National
Union Fire Insurance Company of Xxxxxxxxxx, XX
|
XX0000000
|
$25,000,000
Per Occurrence $25,000,000 Aggregate $10,000 SIR Product Liability
Excluded
|
04/01/07
|
|
California
Earthquake
|
Glencoe
Insurance Company
|
305506XF-1
|
$3,000,000
excess of Travelers $2,000,000 5% deductible per location (min.
$500,0000)
|
04/01/07
|
|
Marine
Ocean Cargo
|
Continental
Insurance Company
|
OC0243831
|
$1,000,000
Any One Conveyance $1,000 Deductible
|
04/01/07
|
|
2.
|
Orthofix International
N.V. and its Subsidiaries
|
|
Type
of Insurance
|
Carrier
|
Policy
Number
|
Amount
|
Expiration
Date
|
|
Crime
|
St.
Xxxx Fire & Marine Insurance Company
|
429CF0600
|
$3,000,000
limit $25,000 Deductible
|
09/07/07
|
|
Employment
Practices Liability
|
St.
Xxxx Mercury Insurance Company
|
EC09000870
|
$5,000,000
limit $100,000 Deductible
|
09/07/07
|
|
Kidnap
& Xxxxxx
|
St.
Xxxx Fire & Marine Insurance Company
|
429CF0601
|
$3,000,000
per Insured Event
|
09/07/07
|
|
Fiduciary
Liability
|
Federal
Insurance Company
|
8139-0905
|
$3,000,000
Each Claim $3,000,000 Each policy period $10,000 Retention
|
09/07/07
|
|
Directors
& Officers
|
St.
Xxxx Mercury Insurance Company
|
EC09000869
|
$15,000,000
Limit $250,000 Retention $500,000 Retention SEC Claims
|
09/07/07
|
|
Excess
Directors & Officers
|
Federal
Insurance Company
|
6803-3515
|
$10,000,000
limit excess of $15,000,000
|
09/07/07
|
|
3.
|
Blackstone
Medical, Inc.
|
|
Type
of Insurance
|
Carrier
|
Policy
Number
|
Amount
|
Expiration
Date
|
|
Product
Liability
|
Noetic
Specialty Insurance Co.
|
NO6MA380001
|
Aggregate:
$10,000,000 Each Occurrence: $10,000,000
|
01/06/07
|
Schedule
4.1-1
[FORM
OF]
SECRETARY'S
CERTIFICATE
Pursuant
to Section 4.1(b) of the Credit Agreement dated as of September 22, 2006 (the
"Credit
Agreement") by and among Orthofix Holdings, Inc., a Delaware corporation
(the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"), the undersigned _______of [CREDIT PARTY]
(the "Company") hereby
certifies as follows:
1. Attached
hereto as Exhibit
A is a true and complete copy of the [articles of incorporation]
[certificate of formation] [certificate of limited partnership] of the Company
and all amendments thereto as in effect on the date hereof certified as a recent
date by the appropriate Governmental Authority of the state of [incorporation]
[organization] of the Company.
2. Attached
hereto as Exhibit
B is a true and complete copy of the [bylaws] [operating agreement]
[partnership agreement] of the Company and all amendments thereto as in effect
on the date hereof.
3. Attached
hereto as Exhibit
C is a true and complete copy of resolutions duly adopted by the [board
of directors] [members] [managers] [partners] of the Company on ________
_____. Such resolutions have not in any way been rescinded or
modified and have been in full force and effect since their adoption to and
including the date hereof, and such resolutions are the only corporate
proceedings of the Company now in force relating to or affecting the matters
referred to therein.
4. Attached
hereto as Exhibit
D is a true and complete copy of the certificates of good standing,
existence or its equivalent of the Company, each certified as a recent date by
the appropriate Governmental Authority of the state of [incorporation]
[organization] of the Company or any other state in which the failure to so
qualify and be in good standing could reasonably be expected to have a Material
Adverse Effect.
5. The
following persons are now the duly elected and qualified [officers] [directors]
of the Company, [holding the offices indicated next to the names below on the
date hereof,] and the signatures appearing opposite the names of the [officers]
[directors] below are their true and genuine signatures, and each of such
[officers] [directors] is duly authorized to execute and deliver on behalf of
the Company, the Credit Agreement, the Notes and the other Credit Documents to
be issued pursuant thereto:
|
Name
|
[Office]
[Director]
|
Signature
|
This
Certificate may, upon execution, be delivered by facsimile or electronic mail,
which shall be deemed for all purposes to be an original signature.
Capitalized
terms defined in the Credit Agreement shall have the same meanings when used
herein.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned hereunder subscribes his/her name
effective as of the __ day of _______, ___.
|
Name:
|
|||
|
Title:
|
I,
___________________________, the ____________________________ of the Company,
hereby certify that ___________________________________
is the duly elected and qualified
_____________________________ of the Company and that his/her true and genuine
signature is set forth above.
|
Name:
|
|||
|
Title:
|
Schedule
4.1-2
[FORM
OF]
SOLVENCY
CERTIFICATE
The
undersigned, Xxxxxx Xxxx, Chief Financial Officer of ORTHOFIX INTERNATIONAL,
N.V., a Netherlands Antilles corporation (the "Company"), is
familiar with the properties, businesses, assets and liabilities of the Credit
Parties and is duly authorized to execute this certificate (this "Solvency
Certificate") on behalf of the Credit Parties.
This
Solvency Certificate is delivered pursuant to Section 4.1(j) of that certain
Credit Agreement dated as of September 22, 2006 (the "Credit Agreement") by
and among Orthofix Holdings, Inc., a Delaware corporation (the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"). All capitalized terms used and not defined herein have the
meanings stated in the Credit Agreement.
1. The
undersigned certifies that he has made such investigation and inquiries as to
the financial condition of the Credit Parties as the undersigned deems necessary
and prudent for the purpose of providing this Solvency Certificate. The
undersigned acknowledges that the Administrative Agent and the Lenders are
relying on the truth and accuracy of this Solvency Certificate in connection
with the making of Loans and other Extensions of Credit under the Credit
Agreement.
2. The
undersigned certifies that the financial information, projections and
assumptions which underlie and form the basis for the representations made in
this Solvency Certificate were reasonable when made and were made in good faith
and continue to be reasonable as of the date hereof.
BASED ON
THE FOREGOING, the undersigned certifies that after giving effect to the
Acquisition, the Loans and other Extensions of Credit made on the Closing
Date:
A. On
the date hereof, each of the Credit Parties is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
become due.
B. Each
of the Credit Parties does not intend to, and does not believe
that it will, incur debts or liabilities beyond its ability to pay as such
debts and
liabilities become due.
C.
On the date hereof, each of the Credit Parties is not engaged in any
business or transaction, and is not about to engage in any business or
transaction,
for which the assets of such Credit Party would constitute unreasonably
small capital after giving due consideration to the prevailing practice
in the industry in which the Credit Parties and their Subsidiaries are
engaged or are to engage.
D.
On the date hereof, the present fair saleable value of the consolidated
assets of the Credit Parties and their Subsidiaries, measured
on a
going concern basis, exceeds all probable liabilities of the Credit Parties and
their
Subsidiaries, on a consolidated basis, including contingent liabilities
incurred
pursuant to the Credit Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
|
ORTHOFIX
INTERNATIONAL, N.V.,
|
|||
|
a
Netherlands Antilles corporation
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Schedule 4.1-3
[FORM
OF]
LENDER
CONSENT
|
TO:
|
Wachovia
Bank, National Association, as Administrative
Agent
|
|
RE:
|
Credit
Agreement dated as of September 22, 2006 (the "Credit
Agreement") by and among Orthofix Holdings, Inc., a Delaware
corporation (the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time
party thereto (the "Lenders") and
Wachovia Bank, National Association, as Administrative Agent (the "Administrative
Agent").
|
|
DATE:
|
September
22, 2006
|
This
Consent is given pursuant to the Credit Agreement referenced above. The
undersigned hereby (i) approves the Credit Agreement, (ii) authorizes and
appoints the Administrative Agent as its agent in accordance with the terms of
Article VIII of the Credit Agreement and (iii) authorizes the Administrative
Agent to execute and deliver the Credit Agreement on its behalf and, by its
execution below, the undersigned agrees to be bound as a Lender by the terms and
conditions of the Credit Agreement as if the undersigned had directly executed
and delivered a signature page to the Credit Agreement. By becoming a Lender
under the Credit Agreement pursuant to this Consent, the undersigned agrees to
make Extensions of Credit to the Borrower up to the amount of its Commitments in
accordance with the terms of the Credit Agreement. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Credit
Agreement.
Delivery
of this Consent by telecopy shall be effective as an original.
A duly
authorized officer of the undersigned has executed this
Consent as of the
_____ day of ______, ___.
| , | ||||
|
as
a Lender
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
Schedule 5.10
[FORM
OF]
JOINDER
AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of
__________,
_____, is by and between _______________, a _____________ (the "New Domestic
Subsidiary"), and WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent under that certain Credit
Agreement dated as of September 22, 2006 (as amended, restated or otherwise
modified prior to the date hereof, the "Credit Agreement") by
and among Orthofix Holdings, Inc., a Delaware corporation (the "Borrower"), the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Wachovia Bank, National Association, as Administrative Agent (the
"Administrative
Agent"). All of the defined terms in the Credit Agreement are
incorporated herein by reference.
The New
Domestic Subsidiary is an Additional Credit Party, and, consequently, the Credit
Parties are required by Section 5.10 of the Credit Agreement to cause the New
Domestic Subsidiary to become a "Guarantor" thereunder.
Accordingly,
the New Domestic Subsidiary and the Borrower hereby agree as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The New
Domestic Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New Domestic Subsidiary will be deemed to be a
party to and a "Guarantor" under the Credit Agreement and shall have all of the
obligations of a Guarantor thereunder as if it had executed the Credit
Agreement. The New Domestic Subsidiary hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions contained
in the applicable Credit Documents, including without limitation (a) all of the
representations and warranties set forth in Article III of the Credit Agreement
and (b) all of the affirmative and negative covenants set forth in Articles V
and VI of the Credit Agreement. Without limiting the generality of the foregoing
terms of this Paragraph 1, the New Domestic Subsidiary hereby guarantees,
jointly and severally together with the other Guarantors, the prompt payment of
the Credit Party Obligations in accordance with Article X of the Credit
Agreement.
2. The New
Domestic Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New Domestic Subsidiary will be deemed to be a
party to the Security Agreement, and shall have all the rights and obligations
of an "Obligor" (as such term is defined in the Security Agreement) thereunder
as if it had executed the Security Agreement. The New Domestic
Subsidiary hereby agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. Without
limiting the generality of the foregoing terms of this Paragraph 2, the New
Domestic Subsidiary hereby grants to the Administrative Agent, for the benefit
of the Lenders, a continuing security interest in, and a right of set off, to
the extent applicable, against any and all right, title and interest of the New
Domestic Subsidiary in and to the Collateral (as such term is defined in Section
2 of the Security Agreement) of the New Domestic Subsidiary.
3. The
New Domestic Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New Domestic Subsidiary will be deemed to be a
party to the Pledge Agreement, and shall have all the rights and obligations of
a "Pledgor" thereunder as if it had executed the Pledge Agreement. The New
Domestic Subsidiary hereby agrees to be bound by, all the terms, provisions and
conditions contained in the Pledge Agreement. Without limiting the generality of
the foregoing terms of this Paragraph 3, the New Domestic Subsidiary hereby
pledges and assigns to the Administrative Agent, for the benefit of the Lenders,
and grants to the Administrative Agent, for the benefit of the Lenders, a
continuing security interest in any and all right, title and interest of the New
Domestic Subsidiary in and to Pledged Capital Stock (as such term is defined in
Section 2 of the Pledge Agreement) and the other Pledged Collateral (as such
term is defined in Section 2 of the Pledge Agreement).
4. The
New Domestic Subsidiary acknowledges and confirms that it has received a copy of
the Credit Agreement and the schedules and exhibits thereto and each Security
Document and the schedules and exhibits thereto. The schedules to the Credit
Agreement and the Security Documents are hereby supplemented (to the extent
permitted under the Credit Agreement or Security Documents) to include the
information shown on the attached Schedule A.
5. The
Borrower confirms that the Credit Agreement is and, upon the New Domestic
Subsidiary becoming a Guarantor, shall continue to be, in full force and effect.
The parties hereto confirm and agree that immediately upon the New Domestic
Subsidiary becoming a Guarantor under the Credit Agreement, the term "Credit
Party Obligations," as used in the Credit Agreement, shall include all
obligations of the New Domestic Subsidiary under the Credit Agreement and under
each other Credit Document.
6. Each
of the Borrower and the New Domestic Subsidiary agrees that at any time and from
time to time, upon the written request of the Administrative Agent, it will
execute and deliver such further documents and do such further acts as the
Administrative Agent may reasonably request in accordance with the terms and
conditions of the Credit Agreement in order to effect the purposes of this
Agreement.
7. This
Agreement (a) may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute one
contract and (b) may, upon execution, be delivered by facsimile or electronic
mail, which shall be deemed for all purposes to be an original
signature.
8. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York. The terms of Sections 9.14 and 9.17 of the Credit
Agreement are incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, each of the Borrower and the New Domestic Subsidiary has caused
this Agreement to be duly executed by its authorized officer, and the
Administrative Agent, for the benefit of the Lenders, has caused the same to be
accepted by its authorized officer, as of the day and year first above
written.
|
BORROWER:
|
ORTHOFIX
HOLDINGS, INC.,
|
||
|
a
Delaware corporation
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
NEW
DOMESTIC SUBSIDIARY:
|
[NEW
DOMESTIC SUBSIDIARY]
|
||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Acknowledged
and accepted:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
|
By:
|
||
|
Name:
|
||
|
Title:
|
SCHEDULE
A
to
Joinder
Agreement
Schedules to Credit
Agreement
Schedules to Security
Agreement
Schedules to Pledge
Agreement
Schedule 6.(b)
INDEBTEDNESS
|
1.
|
Orthofix International
N.V.
|
|
|
a)
|
Letter
of Credit issued by Bank of America in favor of to Orthofix de Centro
America S.A in the amount of $243,185.35, cash collateralized by an
Orthofix International N.V. certificate of deposit with Bank of America.
The letter of credit expires on July 31,
2007.
|
|
|
b)
|
Guarantee
by Orthofix International N.V. of the payment obligation of Orthofix Inc.
to Xxxxxxx X. Xxxxxxx pursuant to that certain Employment Agreement, dated
July 13, 2006, between Orthofix Inc. and Xxxxxxx X.
Xxxxxxx.
|
|
|
c)
|
Guarantee
by Orthofix International N.V. of the payment obligation of Orthofix Inc.
to Xxxxxxx X. Xxxxx pursuant to that certain Employment Agreement, dated
July 13, 2006, between Orthofix Inc. and Xxxxxxx X.
Xxxxx.
|
|
|
d)
|
Guarantee
by Orthofix International N.V. of the payment obligation of Orthofix Inc.
to Xxxxxx Xxxx pursuant to that certain Employment Agreement, dated July
13, 2006, between Orthofix Inc. and Xxxxxx
Xxxx.
|
|
|
e)
|
Guarantee
by Orthofix International N.V. of the payment obligation of Orthofix Inc.
to Xxxx X. Xxxxxxxxx pursuant to that certain Employment Agreement, dated
July 13, 2006, between Orthofix Inc. and Xxxx X.
Xxxxxxxxx.
|
|
2.
|
Orthofix Holdings.
Inc.
|
|
|
a)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $35,561,349, dated as of December 29,
2003.
|
|
|
b)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix US LLC in the
principal amount of USD $129,000,000, dated as of December 30,
2003.
|
|
|
c)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $15,000,000, dated as of September 24,
2004.
|
|
|
d)
|
Note
issued by Ortho-fix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $7,000,000, dated as of December 16,
2004.
|
|
|
e)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $6,400,000, dated as of December 22,
2004.
|
|
|
f)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $3,000,000, dated as of September 19,
2005.
|
|
|
g)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $3,300,000, dated as of June 16,
2005.
|
|
|
h)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $5,500,000, dated as of September 22,
2005.
|
|
|
i)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $6,500,000, dated as of December 15,
2005.
|
|
|
j)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $3,500,000, dated as of March 17,
2006.
|
|
|
k)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $9,000,000, dated as of March 22,
2006.
|
|
|
l)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the amount
of USD $4,050,000, dated as of June 22,
2006.
|
|
|
m)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $900,000, dated as of September 14,
2006.
|
|
|
n)
|
Note
issued by Orthofix Holdings Inc. in favor of Blackstone Medical, Inc. in
the amount of USD $333,000,000, dated as of September 22,
2006.
|
|
3.
|
Orthofix
Inc.
|
|
|
a)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $5,000,000, dated as of April 30,
1996.
|
|
|
b)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $5,000,000, dated as of September 30,
1997.
|
|
|
c)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $150,000,000, dated as of October 31,
1997.
|
|
|
d)
|
Note
issued by Orthofix Inc. in favor of Osteogenics Inc. in the principal
amount of USD $1,000,000, dated as of January 21,
2000.
|
|
4.
|
Breg
Inc.
|
|
|
a)
|
Note
issued by Breg Inc. in favor of Orthofix Holdings, Inc. in the principal
amount of USD $125,170,148.14, dated as of December 30,
2003.
|
|
|
b)
|
Breg
Inc. is a guarantor of Breg Mexico's lease agreement for the facility in
Mexicali, Mexico.
|
|
5.
|
AMEI Technologies
Inc.
|
|
|
a)
|
Note
issued by AMEI Technologies Inc. in favor of Osteogenics Inc. in the
principal amount of USD $20,000,000, dated May 6,
1998.
|
|
6.
|
Orthofix
SRL/DMO
|
|
|
a)
|
Available
line of credit established and issued collectively by Unicredit BABK,
Banco Popolare di Verona and Banco of Brescia, in favor of Orthofix
SRL/DMO, in a maximum principal amount at any time outstanding of
€6,800,000. This line of credit is renewed each
April.
|
|
7.
|
Colgate Medical
Ltd
|
|
|
a)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $11,779,217.08, dated as of December 27,
2004.
|
|
|
b)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $5,000,000, dated as of September 26,
2005.
|
|
|
c)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $4,700,000, dated as of December 22,
2005.
|
|
|
d)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $10,600,000, dated as of March 29,
2006.
|
|
|
e)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $10,000,000, dated as of September 27,
2004.
|
|
|
f)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix International N.V. in
the principal amount of USD $4,725,000 dated as of June 16,
2005.
|
|
8.
|
Blackstone Medical,
Inc.
|
|
|
a)
|
Demand
Convertible Promissory Note dated January 24, 2003 in principal amount of
USD $215,000 made by Blackstone Medical, Inc. in favor of Xxxxxxx X.
Xxxxx.1
|
|
|
b)
|
Demand
Convertible Promissory Note dated January 24, 2003 in principal amount of
USD $215,000 made by Blackstone Medical, Inc. in favor of Xxxxxxx X.
Xxxxx.1
|
|
|
c)
|
Demand
Convertible Promissory Note dated January 24, 2003 in principal amount of
USD $215,000 made by Blackstone Medical, Inc. in favor of Xxxxxxx X. Xxxxx
III.1
|
|
|
d)
|
Master
Lease Finance Agreement dated as of September 28, 2004 by and between
Banknorth Leasing Corp. and Blackstone Medical, Inc. and schedules
thereto.2
|
|
|
e)
|
Lease
dated January 23, 2003 by and between Banknorth Leasing Corp. and
Blackstone Medical, Inc.2
|
|
|
f)
|
Lease
dated April 4, 2003 by and between Banknorth Leasing Corp. and Blackstone
Medical, Inc.2
|
________________________
1 Expected
to be converted into common stock immediately prior to the Effective Time of the
Orthofix-Blackstone merger.
2 This
capital lease is expected to be paid off immediately prior to the Effective Time
of the Orthofix-Blackstone merger.
Schedule
6.4(a)
PERMITTED ASSET
SALES
|
1.
|
1,500,000
shares of Innovative Spinal Technologies, owned by Orthofix
Inc.
|
|
2.
|
1,500,000
shares of OPED AG, owned by Orthofix International
N.V.
|
|
3.
|
3,470,000
shares of OrthoRx, owned by Orthofix International
N.V.
|
Schedule
6.5
INVESTMENTS
|
1.
|
Orthofix International
N.V.
|
|
|
a)
|
Investment
in Innovative Spinal Technologies in the amount of USD
$1,500,000.
|
|
|
b)
|
Investment
in OPED AG in the amount of USD
$2,500,000.
|
|
|
c)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $35,561,349, dated as of December 29,
2003.
|
|
|
d)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $6,400,000, dated as of December 22,
2004.
|
|
|
e)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $3,300,000, dated as of June 16,
2005.
|
|
|
f)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $5,500,000, dated as of September 22,
2005.
|
|
|
g)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix International N.V.
in the principal amount of USD $3,500,000, dated as of March 17,
2006.
|
|
|
i)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix International N.V. in
the principal amount of USD $4,725,000 dated June 16,
2005.
|
|
2.
|
Orthofix Holdings,
Inc.
|
|
|
a)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $5,000,000, dated as of September 26,
2005.
|
|
|
b)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $4,700,000, dated as of December 22,
2005.
|
|
|
c)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $10,600,000, dated as of March 29,
2006.
|
|
|
d)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $11,779,217.08, dated as of December 27,
2004.
|
|
|
e)
|
Note
issued by Colgate Medical Ltd in favor of Orthofix Holdings, Inc. in the
principal amount of USD $10,000,000, dated as of September 27,
2004.
|
|
|
f)
|
Note
issued by Breg Inc. in favor of Orthofix Holdings, Inc. in the principal
amount of USD $125,170,148.14, dated as of December 30,
2003.
|
|
3.
|
Orthofix US
LLC
|
|
|
a)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix US LLC in the
principal amount of USD $129,000,000, dated as of December 30,
2003.
|
|
4.
|
Orthofix
Inc.
|
|
|
a)
|
Investment
in Bio Wave in the amount of USD
$500,000.
|
|
|
b)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $15,000,000, dated as of September 24,
2004.
|
|
|
c)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $7,000,000, dated as of December 16,
2004.
|
|
|
d)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $3,000,000, dated as of September 19,
2005.
|
|
|
e)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $6,500,000, dated as of December 15,
2005.
|
|
|
f)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $9,000,000, dated March 22,
2006.
|
|
|
g)
|
Note
issued by Orthofix Holdings, Inc. in favor of Orthofix Inc. in the
principal amount of USD $900,000, dated as of September 14,
2006.
|
|
|
h)
|
Note issued by
Orthofix Holdings, Inc. in favor of Orthofix Inc. in the amount
of USD $4,050,000, dated as of June 22,
2006.
|
|
5.
|
Breg.
Inc.
|
|
|
a)
|
Investment
in Orthospot in the amount of USD
$531,831.
|
|
6.
|
AMEI Technologies
Inc.
|
|
|
a)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $5,000,000, dated as of April 30,
1996.
|
|
|
b)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $5,000,000, dated as of September 30,
1997.
|
|
|
c)
|
Note
issued by Orthofix Inc. in favor of AMEI Technologies Inc. in the
principal amount of USD $150,000,000, dated as of October 31,
1997.
|
|
7.
|
Osteogenics
Inc.
|
|
|
a)
|
Note
issued by AMEI Technologies Inc. in favor of Osteogenics Inc. in the
principal amount of USD $20,000,000, dated May 6,
1998.
|
|
|
b)
|
Note
issued by Orthofix Inc. in favor of Osteogenics Inc. in the principal
amount of USD $1,000,000, dated as of January 21,
2000.
|
|
8.
|
Blackstone Medical,
Inc.
|
|
|
a)
|
Note
issued by Orthofix Holdings, Inc. in favor of Blackstone Medical, Inc. in
the amount of USD $333,000,000, dated as of September 22,
2006.
|
Schedule
6.13
ACCOUNTS
|
1.
|
Orthofix International
N.V.
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
|
b)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Investment
|
|
|
c)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Checking
|
|
|
d)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
CD
- Costa Rica
|
|
2.
|
Orthofix Holdings,
Inc.
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
3.
|
Victory Medical
Limited
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
4.
|
Orthofix
Inc.
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
|
b)
|
Bank:
|
Xxxxx
Fargo
|
|
|
Type
of Account:
|
Operating
|
|
|
c)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Checking
|
|
5.
|
Breg
Inc.
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
6.
|
Orthofix US
LLC
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
7.
|
AMEI Technologies
Inc.
|
|
|
a)
|
Bank:
|
Wilmington
Trust
|
|
|
Type
of Account:
|
Checking
|
|
|
b)
|
Bank:
|
Wilmington
Trust
|
|
|
Type
of Account:
|
Investment
|
|
8.
|
Colgate Medical
Ltd
|
|
|
c)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
9.
|
Swiftsure Medical
Limited
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
10.
|
Orthofix UK
Ltd
|
|
|
a)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Operating
|
|
|
b)
|
Bank:
|
Bank
of America
|
|
|
Type
of Account:
|
Investment
|
|
11.
|
Blackstone Medical,
Inc.
|
|
|
a)
|
Bank
of America account to be opened promptly following
closing.
|
Schedule
9.6(c)
ASSIGNMENT
AGREEMENT
This
Assignment Agreement (the "Assignment
Agreement") is dated as of the Effective Date set forth below and is
entered into by and between [the] [each] Assignor identified in item 1 below
([the] [each, an] "Assignor") and [the]
[each] Assignee identified in item 2 below ([the][each, an] "Assignee"). [It is
understood and agreed that the rights and obligations of [the Assignors] [the
Assignees] hereunder are several and not joint.]1 Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the "Credit Agreement"),
receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The
Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby
agreed to and incorporated herein by reference and made a part of this
Assignment Agreement as if set forth herein in full.
For an
agreed consideration, [the] [each] Assignor hereby irrevocably sells and assigns
to [the Assignee][the respective Assignees], and [the][each] Assignee hereby
irrevocably purchases and assumes from [the Assignor] [the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor's][the
respective Assignors'] rights and obligations in [its capacity as a Lender]
[their respective capacities as Lenders] under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor] [the respective Assignors]
under the respective facilities identified below (including without limitation
any letters of credit, guarantees, and swingline loans included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor
(in its capacity as a Lender)] [the respective Assignors (in their respective
capacities as Lenders)] against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned by [the] [any] Assignor to [the] [any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] "Assigned Interest").
Each such sale and assignment is without recourse to [the] [any] Assignor and,
except as expressly provided in this Assignment Agreement, without
representation or warranty by [the] [any] Assignor.
1. Assignor
[s]: _________________________________________
_________________________________________
_____________________
1
Include bracketed language if there are either multiple Assignors or multiple
Assignees.
2. Assignee[s]:
_________________________________________
_________________________________________
[for each
Assignee, indicate [Affiliate] [Approved Fund] of [identify
Lender]
|
3.
|
Borrower:
|
Orthofix
Holdings, Inc., a Delaware
corporation
|
|
4.
|
Administrative
Agent:
|
Wachovia
Bank, National Association, as the administrative agent under the Credit
Agreement.
|
|
5.
|
Credit
Agreement:
|
The
Credit Agreement dated as of September 22, 2006 among the Borrower, the
guarantors from time to time party thereto, the lenders and other
financial institutions from time to time party thereto, and Wachovia Bank,
National Association, as Administrative
Agent.
|
|
6.
|
Assigned
Interest[s]:
|
|
Assignor[s]
|
Assignee[s]
|
Facility
Assigned
|
Aggregate
Amount of Commitment/ Loans for all Lenders
|
Amount
of Commitment/
Loans
Assigned
|
Percentage
Assigned of Commitment/ Loans
|
CUSIP
Number
|
|
$
|
$
|
%
|
||||
|
$
|
$
|
%
|
||||
|
$
|
$
|
%
|
|
[7.
|
Trade
Date: _____________________________
|
]2
|
Effective
Date: _________________ __ , 20__.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
_____________________________
2 To be
completed if the Assignor(s) and the Assignee(s) intend that the minimum
assignment amount is to be determined as of the Trade Date.
The terms
set forth in this Assignment Agreement are hereby agreed to
|
ASSIGNOR[S]
|
|||
|
[NAME
OF ASSIGNOR]
|
|||
|
By:
|
|||
|
Title:
|
|||
|
ASSIGNEE[S]
|
|||
|
[NAME
OF ASSIGNEE]
|
|||
|
By:
|
|||
|
Title:
|
|||
|
[Consented
to and] Accepted:
|
|||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION, as
|
|||
|
Administrative
Agent
|
|||
|
By:
|
|||
|
Title:
|
|||
|
[Consented
to:]
|
|||
|
[NAME
OF RELEVANT PARTY]
|
|||
|
By:
|
|||
|
Title:
|
|||
ANNEX 1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AGREEMENT
1. Representations and
Warranties.
1.1 Assignor[s]. [The]
[Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the] [the relevant] Assigned Interest, (ii) [the] [such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment Agreement and to consummate
the transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Credit Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Credit Document or (iv) the performance or
observance by the Company, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Credit
Document.
1.2.
Assignee[s].
[The] [Each] Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment Agreement and to consummate the transactions contemplated hereby and
to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section 9.6 of the Credit Agreement
(subject to such consents, if any, as may be required under Section 9.6 of the
Credit Agreement), (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of [the] [the relevant] Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the
person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, (v) it has received a
copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 5.1 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision
to enter into this Assignment Agreement and to purchase [the] [such] Assigned
Interest, and (vi) it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment Agreement and to purchase [the] [such]
Assigned Interest; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, [the] [any] Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
2. Payments. From and
after the Effective Date, the Administrative Agent shall make all payments in
respect of [the] [each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the] [the relevant] Assignor for amounts
which have accrued to but excluding the Effective Date and to [the] [the
relevant] Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions.
This Assignment Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
Agreement may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature
page of this Assignment Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment Agreement. This Assignment
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York.
