AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF MAY 27, 2009 AMONG THERAGENICS CORPORATION, C.P. MEDICAL CORPORATION, GALT MEDICAL CORP. and NEEDLETECH PRODUCTS, INC., as Borrowers, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Bank
Exhibit
10.1
AMENDED AND RESTATED CREDIT
AGREEMENT
DATED AS
OF MAY 27, 2009
AMONG
THERAGENICS
CORPORATION, C.P. MEDICAL CORPORATION, GALT MEDICAL CORP. and NEEDLETECH
PRODUCTS, INC., as Borrowers,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION, as Bank
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iii
EXHIBITS
AND SCHEDULES
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||
EXHIBITS
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||
EXHIBIT
A
|
FORM
OF COMPLIANCE CERTIFICATE
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EXHIBIT
B
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FORM
OF CREDIT AGREEMENT JOINDER AGREEMENT
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EXHIBIT
C
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FORM
OF REVOLVER LOAN NOTE JOINDER AGREEMENT
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EXHIBIT
D
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FORM
OF TERM LOAN NOTE JOINDER AGREEMENT
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EXHIBIT
E
|
TERM
LOAN AMORTIZATION SCHEDULE
|
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SCHEDULES
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SCHEDULE 1.1 | SPECIAL NEEDLETECH AMOUNT | |
SCHEDULE
6.1
|
BORROWERS’
EXISTENCE
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SCHEDULE
6.3
|
LIST
OF NAMES USED BY BORROWERS AND PERSONS ACQUIRED IN LAST SIX
YEARS
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SCHEDULE
6.5
|
ACTIONS
PENDING
|
|
SCHEDULE
6.9
|
TAX
MATTERS
|
|
SCHEDULE
6.11
|
PERMITTED
LIENS
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|
SCHEDULE
6.12
|
LISTING
OF REAL PROPERTY OWNED OR LEASED BY BORROWERS
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SCHEDULE
6.16
|
LISTING
OF PATENTS, COPYRIGHTS, ETC.
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SCHEDULE
6.18
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ENVIRONMENTAL
MATTERS
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SCHEDULE
6.22
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INSURANCE
POLICIES IN EFFECT
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SCHEDULE
6.24
|
MATERIAL
CONTRACTS CONSTITUTING PART OF THE EXCLUDED COLLATERAL
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SCHEDULE
7.1(O)
|
APPROVED
BANK ACCOUNTS
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SCHEDULE
7.2(L)
|
LISTING
OF AGREEMENTS CURRENTLY IN EFFECT WITH AFFILIATES AND PERMITTED
POST-CLOSING
|
iv
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS AMENDED AND RESTATED CREDIT
AGREEMENT (this “Agreement”), dated as of May 27, 2009, is made by and
among THERAGENICS
CORPORATION, a Delaware corporation, C.P. MEDICAL CORPORATION, a
Delaware corporation, GALT
MEDICAL CORP., a Texas corporation, and NEEDLETECH PRODUCTS, INC., a
Massachusetts corporation, jointly and severally (each, a “Borrower” and
collectively, the “Borrowers”), and WACHOVIA BANK, NATIONAL ASSOCIATION,
successor by merger to SOUTHTRUST BANK (the “Bank”). As used herein,
capitalized words and phrases shall have the meanings ascribed thereto in
Article I of this Agreement.
W I T N E S S E T
H:
WHEREAS, each of the Borrowers
and the Bank are parties to that certain Credit Agreement dated as of October
29, 2003 (as amended, the “Original Credit Agreement”);
WHEREAS, the Bank and the
Borrowers wish to amend and restate the Original Credit Agreement in order to
reduce the $40,000,000 revolving line of credit under the Original Credit
Agreement to a $30,000,000 revolving line of credit under this Agreement
(subject to any increases thereof in accordance with the terms of this
Agreement) and to convert a $10,000,000 portion of the outstanding principal
balance of such revolving line of credit under the Original Credit Agreement
into a $10,000,000 term loan outstanding under this Agreement and to make
certain other amendments to the terms of the Original Credit Agreement;
and
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Bank and each Borrower hereby agree that this Agreement amends, restates and
supersedes in its entirety the Original Credit Agreement as
follows:
“Accumulated Funding
Deficiency” has the meaning set forth in Section 302 of
ERISA.
“Acquisition” means
any acquisition (whether in a single transaction or series of related
transactions) of (i) any going business, or all or substantially all of the
assets of any Person, whether through purchase, merger or otherwise; or (ii)
Equity Interests of any Person of five percent (5%) or more of the Equity
Interests or Voting Power of such Person.
“Advance” means each
loan of money or credit made or extended to or for the benefit of any Borrower
by Bank pursuant to this Agreement.
“Advancement Termination
Date” means the earlier of (i) the Revolver Loan Maturity Date, or (ii)
the date of the occurrence of an Event of Default under Section 9.1(J), or (iii)
the date the Bank exercises its rights and remedies under Section
9.5(A).
“Affiliate” means, as
to any Person, each other Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or under common control with,
such Person (and a Person shall be deemed to have control if such Person,
directly or indirectly, has rights to exercise Voting Power to elect a majority
of the members of the Governing Body of an applicable Person).
“Agreement” means this
Credit Agreement, as amended or supplemented from time to time.
“ALTA” means the
American Land Title Association.
“Annualized Rolling
Period” means the period from the date one year prior to the applicable
date through the applicable date.
“Applicable Margin”
means (i) with respect to Revolver Loans, 2.25% per annum and (ii) with respect
to the Term Loan, 1.75% per annum.
“Asset Disposition”
means any sale, assignment, lease, transfer or other disposition of any assets,
business units or other properties (including any interests in property or
securities).
“Assigned Agreements”
means all leases, contracts, agreements, Documents, Instruments and Chattel
Paper included in the Collateral.
“Assigned Leases”
means all leases existing or made as of the date on which a Trigger Event occurs
or thereafter made, whether written or verbal, or any letting of, or agreement
for the use or occupancy of, any part of the Mortgaged Property, and each
modification, extension, renewal and guarantee thereof, including the
Rents.
“Assignment of Rents”
means any and all Assignments of Rents and Leases at any time executed and
delivered by each Borrower in favor of Bank, and includes any and all
extensions, revisions, modifications or amendments at any time made
thereto.
“Attorneys’ Fees”
means attorneys’ fees actually incurred at ordinary and customary
rates.
“Available Amount” of
any Letter of Credit means, at any time, the maximum amount available to be
drawn under such Letter of Credit at such time.
“Bank” means Wachovia
Bank, National Association, successor by merger to
SouthTrust Bank, an Alabama banking corporation.
“Bank’s Lien” means
the Lien granted to Bank by each Borrower pursuant to this Agreement and the
other Security Documents.
“Bankruptcy Law” means
Title 11, U.S. Code, or any similar Laws of any Jurisdiction for the relief of
debtors, and “Bankruptcy” means the
commencement of any case or other action for relief under Bankruptcy
Law.
“Borrower” means (i)
each of the following, jointly and severally: THERAGENICS CORPORATION, a
Delaware corporation, C.P. MEDICAL CORPORATION, a Delaware corporation, GALT
MEDICAL CORP., a Texas corporation, and NEEDLETECH PRODUCTS, INC., a
Massachusetts corporation and (ii) each additional Person that hereafter becomes
a Borrower under this Agreement pursuant to the execution and delivery of the
Joinder Agreements and compliance with the terms and conditions
thereof.
2
“Borrower’s Closing
Certificate” means a certificate in form and substance acceptable to Bank
and signed by a duly authorized representative of a Borrower.
“Borrower’s Interest”
means all right, title and interest of a Borrower of whatever kind, nature or
description.
“Business Day” means
any day of the year, other than Saturday or Sunday, on which dealings in United
States Dollars are carried on in the London interbank market and banks open for
business in Atlanta, Georgia are not required or authorized to
close.
“Capital Expenditures”
means, without duplication, the sum of (i) all expenditures made by a
Person, directly or indirectly, for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that should be, in accordance with Generally Accepted Accounting
Principles, reflected as additions to property, plant or equipment on a balance
sheet of such Person or which have a useful life of more than one year plus
(ii) the aggregate principal amount of all Indebtedness (including
Capitalized Leases) assumed or incurred in connection with any such
expenditures.
“Capitalized Lease”
means a lease that is required to be capitalized for financial reporting
purposes in accordance with Generally Accepted Accounting
Principles.
“Cash Collateral
Account” means the special cash collateral account established pursuant
to Section 3.3 of this Agreement.
“Cash Equivalents”
means (i) securities issued or unconditionally guaranteed by the United States
of America or any agency or instrumentality thereof, backed by the full faith
and credit of the United States of America and maturing within 90 days from the
date of acquisition, or capable of being readily traded, (ii) commercial paper
issued by any Person organized under the Laws of the United States of America,
maturing within 90 days from the date of acquisition and, at the time of
acquisition, having a rating of at least “A-1” or the equivalent thereof by
Standard & Poor’s Ratings Services (“S&P”) or at least “P-1” or the
equivalent thereof by Xxxxx’x Investors Service, Inc. (“Moody’s”), (iii) time
deposits (which shall not include demand deposit accounts) and certificates of
deposit maturing within 90 days from the date of issuance and issued by a bank
or trust company organized under the Laws of the United States of America or any
state thereof that has combined capital and surplus of at least $500,000,000 and
that has (or is a subsidiary of a bank holding company that has) a long-term
unsecured debt rating of at least “A” or the equivalent thereof by S&P
Ratings Services or at least “A2” or the equivalent thereof by Moody’s, (iv)
repurchase obligations with a term not exceeding seven (7) days with respect to
underlying securities of the types described in clause (i) above entered into
with any bank or trust company meeting the qualifications specified in clause
(iii) above, (v) money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv)
above, and (vi) annuity investments with a maturity date of no more than three
(3) years, in an investment fund the substantial majority of whose assets
consist of bonds issued by corporations having an unsecured debt rating of “BBB”
or better from either S&P or Moody’s, or other cash equivalents described in
clauses (i) through (v) above.
“Cash Management
Agreement” means any and all cash management or similar agreements
entered into or in effect between any Borrower and Bank during the term of this
Agreement.
“Casualty or Condemnation
Event” means, with respect to any property of any Borrower, any loss of,
damage to or condemnation or other taking of, such property for which such
Borrower is entitled to receive, or receives, insurance proceeds, condemnation
proceeds or other similar proceeds or awards.
3
“Change in Control”
means an event or series of events by which (i) Parent fails to own, directly or
indirectly, 100% of all of the issued and outstanding stock and other equity of
each of Borrower (other than Parent), (ii) any Person or group of Persons acting
in concert as a partnership or other group shall, as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become, after the date hereof, the “beneficial owner” (within
the meaning of such term under Rule 13d-3 under the Exchange Act) of Equity
Interests of Parent representing Voting Power having the right to elect at least
35% of the members of the Governing Body of Parent; or (iii) the Governing Body
of Parent shall cease to consist of a majority of the individuals who
constituted the Governing Body of Parent as of the date of this Agreement or who
shall have become a member thereof subsequent to the date of this Agreement
after having been nominated, or otherwise approved in writing, by at least a
majority of individuals who constituted the Governing Body of the Parent as of
the date of this Agreement (or their replacements approved as herein
required).
“Closing” means the
time and place of actual execution and delivery of this Agreement, the Notes,
and except as waived by Bank, the other documents, instruments, and things
required by Section 5.1 hereof.
“Collateral” means,
subject to the limitations in Section 8.1(C), all of the assets of each
Borrower of every kind, nature and description, wherever located, whether now
owned or hereafter acquired, including the following:
(A)
The Mortgaged Property;
(B)
The Assigned Leases and the Rents;
(C)
All amounts that may be owing from time to time by Bank to each
Borrower in any capacity, including, without limitation, any balance or share
belonging to each Borrower, of any Deposit Accounts or other account with
Bank;
(D)
All of each Borrower’s assets which are or may be subject to Article 9 of the
Uniform Commercial Code, together with all replacements therefor, additions and
accessions thereto, and proceeds (including, but without limitation, insurance
proceeds) and products thereof, including, without limitation, the
following:
(1)
Accounts (including, without limitation, notes, drafts, acceptances,
letters of credit, and other rights to payment);
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(2)
The Cash Collateral Account, including all monies or securities held in
the Cash Collateral Account from time to time;
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(3)
Chattel Paper;
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(4)
Commercial Tort Claims;
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(5)
Deposit Accounts;
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(6)
Documents;
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(7)
Equipment;
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(8)
General
Intangibles;
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4
(9) Goods;
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(10)
Instruments;
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(11)
Inventory;
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(12)
Investment Property;
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(13)
Letter-of-Credit Rights;
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(14)
Payment Intangibles;
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(15)
Software;
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(16)
Supporting Obligations;
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(17)
Rights as seller of Goods and rights to returned or repossessed
Goods;
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(18)
All existing and future leases and use agreements of personal
property entered into by each Borrower as lessor with other Persons as
lessees, including without limitation the right to receive and collect all
rentals and other monies, including security deposits, at any time payable
under such leases and agreements;
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(19) Any
existing and future leases and use agreements of personal property entered
into by each Borrower as lessee with other Persons as lessors, including
without limitation the leasehold interest of such Borrower in such
property, and all options to purchase such property or to extend any such
lease or agreement;
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(20)
All fixtures of each Borrower (including, but not
limited to, all fixtures now or hereafter located on the Mortgaged
Property);
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(21)
All moneys of each Borrower and all bank accounts, deposit
accounts, lock boxes and other accounts in which such moneys may at any
time be on deposit or held and all investments or securities in which such
moneys may at any time be invested and all certificates, instruments and
documents from time to time representing or evidencing any of the
same;
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(22)
All claims of each Borrower in any pending litigation and/or claims for
any insurance proceeds;
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(23)
All Records pertaining to any of the
Collateral;
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(E) Any and all other
assets of each Borrower of any kind, nature, or description and which are
intended to serve as collateral for the Loan under any one or more of the
Security Documents; and
(F) All interest,
dividends, Proceeds, products, rents, royalties, issues and profits of any of
the property described above and all notes, certificates of deposit, checks and
other instruments from time to time delivered to or otherwise possessed by Bank
for or on behalf of each Borrower in substitution for or in addition to any of
said property.
5
“Commitment Fee” means
the fully earned and non-refundable fee payable by Borrowers to Bank at Closing
in accordance with the terms of the Fee Letter.
“Compliance
Certificate” means a fully completed and duly executed certificate
delivered by Parent to Bank and in the form attached hereto as Exhibit
“A”.
“Consolidated Fixed
Charges” means for the Parent and its consolidated Subsidiaries the sum
of (i) interest expense, whether paid or accrued, including the interest
component of any payments with respect to Capitalized Lease Obligations, plus
(ii) rent and lease expense, plus (iii) income taxes, plus (iv) current
maturities of long-term Indebtedness (excluding Hedging Obligations); provided
however, with respect to the Loan Advances included in the definition of
Indebtedness, current maturities of long-term Indebtedness shall mean only
regularly scheduled amortization payments over the prospective 12-month period
(if any) and not (a) the outstanding principal balance of the Loan Advances
under the Revolver Loan which are due on the Maturity Date or (b) the unpaid
principal balance of the Term Loan after subtraction of the scheduled
amortization payments over the prospective 12-month period. Items (i) through
(iv) are based on the actual amounts recorded in the Company’s consolidated
financial statements for the applicable periods.
“Credit Agreement Joinder
Agreement” means the Credit Agreement Joinder Agreement; substantially in
the form attached hereto as Exhibit B.
“Daily Adjusted LIBOR
Rate” means, for each day, an interest rate equal to the sum of (i) the
applicable Daily LIBOR Rate, plus (ii) the Applicable Margin.
“Daily LIBOR Rate”
means, for any day, a per annum rate of interest equal to LIBOR as determined by
Bank from Reuters for the 30-Day LIBOR Rate on such day. The Daily LIBOR Rate
shall change effective on each date on which the 30-Day LIBOR Rate
changes.
“Daily LIBOR Rate
Notice” means a written notice given to Bank by a Parent’s Representative
providing for the Borrowers’ election for all or any portion (but if a portion,
in increments of not less than $1,000,000.00) of the outstanding principal
balance of the Revolver Loan to bear interest at the applicable Daily Adjusted
LIBOR Rate thereafter, such notice to be given at least two (2) Business Days
prior to and specifying the date of the commencement thereof; provided, however,
that, except as may be waived by Bank in Bank’s discretion, (i) in no event may
the Daily LIBOR Rate apply until the expiration of any current LIBOR Rate
Interest Period, (ii) if any such Daily LIBOR Rate Notice would cause there to
be more than four (4) Interest Rates in effect with respect
to the Revolver Loan on the day of the commencement of the Daily LIBOR Rate,
then such Daily LIBOR Rate Notice shall not be effective with respect to such
Revolver Loan Advances, and (iii) if any such Daily LIBOR Rate Notice is not
timely received or is otherwise not properly made, such Daily LIBOR Rate Notice,
at Bank’s election, shall not be effective.
“Debt Issuance” means
the issuance or sale by any Borrower of any debt securities, whether in a public
offering of such securities or otherwise.
“Default” means the
occurrence of an event described in Section 9.1 hereof regardless of whether
there shall have occurred any passage of time or giving of notice that would be
necessary in order to constitute such event as an Event of Default.
“Default Costs” means
all Indemnified Losses incurred by Bank by reason of a Default.
6
“Default Rate” means a
variable per annum rate of interest equal to the lesser of (1) two percent (2%)
in excess of the Interest Rate then in effect, or (2) the maximum rate allowed
by applicable Laws.
“Deposit Accounts”
means all bank accounts and other deposit accounts and lock boxes included in
the Collateral or established for the benefit of Bank pursuant to the terms of
any of the Loan Documents.
“Drug Laws” means all
Laws of any Jurisdiction relating to the manufacture, production, distribution,
or development of drugs and drug products, including without limitation, the
Federal Food, Drug and Cosmetic Act.
“EBITDA” shall mean
for the Parent and its consolidated Subsidiaries for any period, on a
consolidated basis for the Parent and its consolidated subsidiaries, the sum of
the amounts for such period, without duplication, of (i) net earnings, plus (ii)
interest expense, plus (iii) income taxes, plus (iv) depreciation and
amortization. For non-cash items listed above in this definition, such items
shall be based on the actual amounts reflected as an adjustment to reconcile net
earnings to net cash provided by operating activities on the consolidated
statements of cash flows for the applicable period. For all other items, such
items shall be based on the actual amounts reflected in the other consolidated
financial statements, solely to the extent deducted in the calculation of net
earnings.
“Eligible Assignee”
means (i) an Affiliate of Bank, (ii) any Person that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit, so long as such Person or its assets are administered or
managed by Bank or an Affiliate of Bank, (iii) any Person that is an assignee as
a successor to the commercial lending business operated by Bank, or (iv) any
other Person approved by Bank and Parent, such approval not to be unreasonably
withheld or delayed.
“Eligible Participant”
means (i) an Affiliate of Bank; (ii) a commercial bank organized under the laws
of the United States, or any State thereof, and having combined capital and
surplus of at least $250,000,000.00; (iii) a savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof, and having combined capital and surplus of at least $250,000,000.00;
(iv) a finance company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) organized under the
laws of the United States, or any State thereof, that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having combined capital and surplus of at least
$250,000,000.00; and (v) any other Person approved by Bank and Parent, such
approval not to be unreasonably withheld or delayed.
“Environmental Laws”
means all Laws of any Jurisdiction relating to the governance or protection of
the environment, including without limitation, the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (“CERCLA”), as amended (42
U.S.C. Sections 9601, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801,
et seq.), the
Resource Conservation and Recovery Act (“RCRA”), as amended (42 U.S.C. Sections
6901, et seq.),
the Clean Water Act, as amended (42 U.S.C. Sections 7401, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et
seq.).
“Equity Agreements”
means any and all agreements of whatever kind by, between or among any Borrower
and the Equity Owners of such Borrower and relating to the Equity
Interests.
“Equity Interests”
means any and all ownership or other equitable interests in the applicable
Person, including any interest represented by any capital stock, membership
interest, partnership interest, or similar interest, but specifically excluding
any interest of any Person solely as a creditor of the applicable
Person.
7
“Equity Issuance”
means (i) the issuance, sale or other disposition by Parent of its Equity
Interests, any rights, warrants or options to purchase or acquire any Equity
Interests, or any other security or instrument representing, convertible into or
exchangeable for any Equity Interest in Parent, and (ii) the receipt by Parent
of any capital contribution (whether or not evidenced by any security or
instrument); provided, however, that the
term “Equity Issuance” shall not include (x) any rights, warrants or options
issued to directors, officers or employees of any Borrower pursuant to bona fide
employee benefit plans established in the Ordinary Course of Business and any
capital stock issued upon the exercise thereof, or (y) any Equity Interest
issued or sold in connection with any Permitted Acquisition and constituting all
or a portion of the applicable purchase price.
“Equity Owner” means
any Person owning an Equity Interest.
“Equity Owners’
Equity” means, at any time, the sum of the following accounts set forth
in a consolidated balance sheet of Parent, adjusted to U.S. Dollars by means of
applicable foreign currency exchange rates and prepared in accordance with
Generally Accepted Accounting Principles consistently applied:
(A) The par or stated value
of all outstanding Equity Interests;
(B) Capital
surplus; and
(C) Retained
earnings.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended and in effect from
time to time, and the regulations and published interpretations
thereof.
“ERISA Affiliate”
means any Person that would be treated as a single employer with any Borrower or
any of its subsidiaries pursuant to Section 414(b) or 414(c) of the Internal
Revenue Code.
“ERISA Event” means
any of the following with respect to a Plan that is maintained or contributed to
by any Borrower or an ERISA Affiliate: (i) the occurrence of a Reportable Event,
(ii) the occurrence of a complete or partial withdrawal (within the meaning of
Section 4201(a) of ERISA) by any Borrower or any ERISA Affiliate from a Plan
that results in liability under ERISA, or the receipt by any Borrower or any
ERISA Affiliate of notice from a Multiemployer Plan that it is in reorganization
or insolvency pursuant to ERISA or that it intends to terminate or has
terminated under ERISA, (iii) the distribution by any Borrower or any ERISA
Affiliate under ERISA of a notice of intent to terminate any Plan pursuant to
Section 4041(a) of ERISA or the taking of any action to terminate any Plan
governed by Title IV of ERISA, (iv) the commencement of proceedings by the PBGC
under ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by any Borrower or any ERISA Affiliate of a
notice from any Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan, (v) the institution of a proceeding by
any fiduciary of any Multiemployer Plan against any Borrower or any ERISA
Affiliate to enforce Section 515 of ERISA, which is not dismissed within thirty
(30) days, (vi) the imposition upon any Borrower or any ERISA Affiliate of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under ERISA, or the imposition or threatened imposition of any Lien
upon any assets of any Borrower or any ERISA Affiliate as a result of any
alleged failure to comply with the Internal Revenue Code or ERISA in respect of
any Plan, (vii) the engaging in or otherwise becoming liable for a Prohibited
Transaction by any Borrower or any ERISA Affiliate, (viii) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Internal Revenue Code by any fiduciary of any
Plan for which any Borrower or any of its ERISA Affiliates is directly or
indirectly liable, (ix) the adoption of an amendment to any Plan that, pursuant
to the Internal Revenue Code, results in the loss of the tax-exempt status of
the trust of which such Plan is a part, or (x) any Borrower or an ERISA
Affiliate fails to timely provide security to such Plan in accordance with
Section 401(a)(29) of the Internal Revenue Code.
8
“Event of Default”
means the occurrence of an event described in Section 9.1 hereof provided that
there shall have occurred any passage of time or giving of notice that would be
necessary in order to constitute such event as an Event of Default under Section
9.1.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, and any
successor statute, and all rules and regulations from time to time promulgated
thereunder.
“Existing
Indebtedness” means Indebtedness of each Borrower as reflected on the
Most Recent Financial Statements, and which Indebtedness is not being paid or
defeased with the proceeds of the Loan at Closing.
“Existing Investments”
means Investments of each Borrower as reflected on the Most Recent Financial
Statements.
“Extraordinary
Receipt” means any cash received by or paid to or for the account of any
Borrower not in the Ordinary Course of Business, including, without limitation,
proceeds from dispositions of assets outside the Ordinary Course of Business,
pension plan reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute compensation for
lost earnings), condemnation awards (and payments in lieu thereof) and indemnity
payments.
“Fee Letter” means
that certain letter agreement dated the Closing Date issued by Borrowers in
favor of Bank and identified as the “Fee Letter”.
“Fees” means the
Unused Fee, the Commitment Fee and the Letter of Credit Facility
Fee.
“Financial Covenant
Default” means a Default arising out of any Borrower’s failure to comply
with any covenant provided under Section 7.3 of this Agreement.
“Financial Statements”
means the Most Recent Financial Statements and the income statements, balance
sheets and other financial statements required to be delivered by Borrowers in
accordance with this Agreement.
“Financing Statements”
means the UCC-1 financing statements (including any amendments and
continuations) and UCC-3 financing statements required hereunder or under any
other Security Document.
“Fiscal Year” means a
twelve-month period of time commencing on the first day of January.
“Fiscal Year-End”
means the end of each Fiscal Year.
9
“Fixed Charge Coverage
Ratio” means for the Parent and its consolidated Subsidiaries for each
fiscal quarter and the immediately preceding three (3) fiscal quarters, without
duplication, the sum of (i) EBITDA for such period, plus (ii) rent and lease
expense, solely to the extent deducted in the calculation of net earnings, plus
(iii) recognized share-based compensation expense, solely to the extent deducted
in the calculation of net earnings, plus (iv) one-time non-cash charges, solely
to the extent deducted in the calculation of net earnings, including, without
limitation, those related to Permitted Acquisitions, plus (v) for covenant
calculations for periods ending prior to December 31, 2009, the non-cash
goodwill and tradename impairment charges totaling $70,376,492, recorded in the
fourth quarter of 2008, plus (vi) non-cash expenses for fair value adjustments
related to interest rate swaps, minus (vii) non-cash gains for fair value
adjustments related to interest rate swaps, minus (viii) Capital Expenditures
which are not expended as part of Permitted Acquisitions, plus (ix) Special
NeedleTech Capital Expenditures, minus (x) Restricted Payments, divided by
Consolidated Fixed Charges. For non-cash items listed above in this definition,
such items shall be based on the actual amounts reflected as an adjustment to
reconcile net earnings to net cash provided by operating activities on the
consolidated statements of cash flows for the applicable period. For all other
items listed above in this definition, such items shall be based on the actual
amounts reflected in the relevant consolidated financial statements delivered
for such period under the terms of this Agreement.
“Generally Accepted
Accounting Principles” means generally accepted principles of accounting
in effect from time to time in the United States applied in a manner consistent
with those used in preparing such financial statements as have heretofore been
furnished to Bank by the applicable Person.
“Governing Body” means
the board of directors of a Person (or any Person or group of Persons exercising
similar authority).
“Governmental
Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, any Governmental
Authority.
“Governmental
Authority” means any nation or government and any political subdivision
thereof, and any entity exercising executive, legislative, judicial, regulatory,
or administrative functions of or pertaining thereto, which has or asserts
jurisdiction over Bank, Borrower, or any property of any of them.
“Hazardous Materials”
and “Hazardous
Substances” means “hazardous materials” and “hazardous substances” as
defined under any applicable Environmental Law.
“Hedging Contract”
means: (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement; and (b) any and all transactions of any kind, and the
related confirmations, that are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement including any such obligations or
liabilities under any such master agreement (in each case, together with any
related schedules).
“Hedging Obligations”
means, in respect of any one or more Hedging Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such
Hedging Contracts, the amount owed by the Borrowers for each of the following:
(a) for any date on or after the date such Hedging Contracts have been closed
out and termination values determined in accordance therewith, such termination
values, and (b) for any date prior to the date referenced in clause (a), the
amounts determined as the xxxx to market values for such Hedging Contracts, as
determined based upon one or more mid market or other readily available
quotations provided by any recognized dealer in such Hedging Contracts (which
may include Bank or any Affiliate of Bank). The amount of any net obligations
under any Hedging Contract on any date shall be deemed to be the Hedging
Obligations thereof as of such date.
10
“Improvements” means
any improvements located on the Real Property (including, but not limited to the
“Improvements” as defined in the Mortgage).
“Income Tax Expense”
and “Income Tax
Benefit” means the income tax expense or benefit of Borrowers for the
applicable period (to the extent included in the computation of Net Income),
determined in accordance with Generally Accepted Accounting
Principles.
“Incurable Default”
means a Default set forth in paragraphs (D) through (L), inclusive, of Section
9.1 of this Agreement.
“Indebtedness” means all items of
indebtedness, obligation or liability, whether matured or unmatured, liquidated
or unliquidated, direct or contingent, joint or several, including, but without
limitation or duplication:
(A) All
indebtedness guaranteed, directly or indirectly, in any manner, or endorsed
(other than for collection or deposit in the Ordinary Course of Business) or
discounted with recourse;
(B) All
indebtedness in effect guaranteed, directly or indirectly, through agreements,
contingent or otherwise:
(1)
to purchase such indebtedness; or
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(2)
to purchase, sell or lease (as lessee or lessor) property, products,
materials or supplies or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such indebtedness or to
assure the owner of the indebtedness against loss; or
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(3) to
supply funds to or in any other manner invest in the debtor;
and
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(C) All
indebtedness secured by (or which the holder of such indebtedness has a right,
contingent or otherwise, to be secured by) any Lien upon property owned or
acquired subject thereto, whether or not the liabilities secured thereby have
been assumed.
“Indemnified Losses”
means all damages, dues, penalties, fines, costs, amounts paid in settlement,
taxes, losses, expenses, and fees, including court costs and Attorneys’ Fees and
expenses.
“Interest Rate” means
the actual interest rate at which all or any portion of the outstanding
principal amount of each Loan bears interest from time to time during the term
of this Agreement.
“Investment” means any
loan or advance to any Person, any purchase or other acquisition of any capital
stock or other ownership or profit interest, warrants, rights, options,
obligations or other securities of such Person, any capital contribution to such
Person or any other investment in such Person.
“Joinder Agreements”
means, collectively with respect to each Person first becoming a Borrower after
the Closing Date, (i) the Credit Agreement Joinder Agreement, (ii) the Revolver
Loan Note Joinder Agreement, and (iii) the Term Loan Note Joinder Agreement
hereafter executed and delivered by such Person.
11
“Jurisdiction” means
each and every nation or any political subdivision thereof.
“knowledge” means the
actual knowledge of a Person or the knowledge such Person could be reasonably
expected to obtain upon a reasonable investigation and due inquiry.
“Land” means the
“Land” as defined in the Mortgage.
“Laws” means each and
all laws, treaties, ordinances, statutes, rules, regulations, orders,
injunctions, writs or decrees of any Governmental Authority, or any court or
similar entity established by any thereof, whether now in effect or hereafter
enacted.
“Letter of Credit”
means any letter of credit issued pursuant to Section 3.1 of this
Agreement.
“Letter of Credit
Advances” means all amounts owing to Bank under any Letter of Credit
Agreement, including, without limitation, all drafts paid by Bank under any
Letter of Credit and with respect to which and to the extent that Bank has not
been reimbursed.
“Letter of Credit
Agreement” means this Agreement and any other agreement of any Borrower
with Bank and relating to any Borrower’s obligation to reimburse Bank with
respect to amounts paid under any Letter of Credit and/or the granting of a Lien
to Bank to secure any such obligation, together with any and all extensions,
revisions, modifications or amendments at any time made thereto.
“Letter of Credit
Commitment” means the commitment of Bank, subject to the terms of this
Agreement, to issue for the account of any Borrower Letters of Credit in a
maximum stated amount at any time outstanding for all Borrowers up to (i) the
lesser of Five Million and 00/100 Dollars ($5,000,000.00), or the Unused
Revolver Loan Commitment, minus (ii) the
aggregate Available Amount under any outstanding Letters of Credit.
“Letter of Credit Facility
Fee” means a per annum fee payable by the Borrowers to Bank with respect
to each Letter of Credit, such fee to be payable quarterly in advance upon the
issuance of such Letter of Credit and on the first day of each fiscal quarter
thereafter, so long as such Letter of Credit remains outstanding, and equal to
one percent (1.0%) of the Available Amount of such Letter of Credit (with the
fee for any partial Quarter being prorated for the actual number of days
remaining in such Quarter before the scheduled expiry of such Letter of Credit,
calculated on a 365/366-day basis, as applicable). Bank acknowledges receipt of
the Letter of Credit Facility Fee paid prior to the date hereof by Borrowers
with respect to the Quarter ending June 30, 2009.
“Liabilities” means
all Indebtedness that, in accordance with Generally Accepted Accounting
Principles, should be classified as liabilities on a balance sheet of a Person;
provided however, that in calculating the financial ratio of Senior Liabilities
to Tangible Net Worth as set forth in Section 7.3(A), there shall be excluded
from Liabilities any deferred tax liability to the extent the same appears on
the balance sheet of any Borrower and is attributable to deferred tax liability
arising out of any Permitted Acquisition.
“LIBOR” means for any
day, the rate for U.S. dollar deposits for the relevant 1-month, 2-month, or
3-month period (each, an “Interest Period”) as reported on the Reuters Screen
LIBOR01 page as of 11:00 a.m., London time, on the second London business day
before the relevant Interest Period begins (or if not so reported, then as
determined by Bank from another recognized source or interbank quotation). If
the “Daily LIBOR Rate” option is selected, then the rate will equal LIBOR for
the 1-month Interest Period as the same may change on a daily basis. Interest on
the outstanding principal amount shall be calculated using the actual number of
days elapsed on a 360-day calendar year. LIBOR shall be calculated as to the
quotient obtained (stated as an annual percentage rate rounded upward to the
next higher 100th of 1%) by dividing (A) LIBOR for the relevant Interest Period
on such day by (B) 1.00 minus any Reserve Requirement for such Interest Period
(expressed as a decimal).
12
“LIBOR Rate Borrowing”
means (i) each Revolver Loan Advance (whether bearing interest at the Daily
LIBOR Rate Notice, 30-Day LIBOR Rate, 60-Day LIBOR Rate or a 90-Day LIBOR Rate
and (ii) the Term Loan bearing interest at the 30-Day LIBOR Rate.
“LIBOR Rate Interest
Period” means any applicable 30-Day LIBOR Rate Interest Period, 60-Day
LIBOR Rate Interest Period, or 90-Day LIBOR Rate Interest Period.
“LIBOR Rate Notice”
means any applicable Daily LIBOR Rate Notice, 30-Day LIBOR Rate Notice, 60-Day
LIBOR Rate Notice or 90-Day LIBOR Rate Notice.
“Lien” means any
mortgage, pledge, encumbrance, charge, security interest, lien, assignment or
other preferential arrangement of any nature whatsoever that is tantamount to a
lien, including any conditional sale agreement or other title retention
agreement.
“Liquid Assets” means
property not the subject of any Lien (other than the Bank’s Liens) or other
restriction on transfer comprised of (i) securities traded on a nationally
recognized securities exchange market in the United States, (ii) any of the
following with at least an “A” or higher rating from S&P or Xxxxx’x:
asset-backed securities, government notes, municipal bonds and auction rate
securities and (iii) Cash Equivalents.
“Loan” means each loan
and other extensions of credit, if any, being made by Bank to each Borrower
pursuant to this Agreement, including, but not limited to, the Revolver Loan,
the Term Loan, and the Letters of Credit.
“Loan Advances” means
all outstanding Advances of the Loans.
“Loan Documents” means
this Agreement, the Notes, the Security Documents, each Borrower’s Closing
Certificate and any and all other agreements, documents and instruments of any
kind executed or delivered at or after the Closing in connection with, or
evidencing, securing, guaranteeing or relating to, the Loan, whether heretofore,
simultaneously herewith or hereafter delivered, together with any and all
extensions, revisions, modifications or amendments at any time made to any of
the foregoing; provided, however, Loan Documents shall not include any Hedging
Contracts.
“Material Adverse
Change” means the occurrence of an event giving rise to a Material
Adverse Effect.
“Material Adverse
Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, or properties of
Borrowers, taken as a whole, (b) the ability of Borrowers, taken as a
whole, to perform their Obligations under any Loan Document to which it is or is
to be a party, or (c) the priority of any Lien of Bank relating to a material
part of the Collateral as provided under the terms of any Security
Document.
“Material Contract”
means any contract or agreement to which any Borrower is a party (other than any
employment contract entered into in the Ordinary Course of Business and Plans),
by which any of them or their respective properties is bound or to which any of
them is subject and that is required to be filed as an exhibit to any Borrower’s
registration statements or periodic reports (including on Forms 10-Q and 10-K)
submitted to the Securities and Exchange Commission under the Securities Act of
1933, as amended, and the rules and regulations from time to time promulgated
thereunder, or under the Exchange Act.
13
“Month-End” means the
last day of each calendar month during the term of this Agreement, or the date
utilized by the Borrower as its month end for accounting purposes.
“Mortgage” means any
and all Mortgage and Security Agreements, Deeds of Trust, Deeds to Secure Debt
or similar documents at any time executed and delivered by any Borrower in favor
of Bank, and includes any and all extensions, revisions, modifications or
amendments at any time made thereto.
“Mortgaged Property”
means the “Mortgaged Property” as defined in the Mortgage.
“Most Recent Financial
Statements” means the audited balance sheet and income statement of
Parent and its consolidated Subsidiaries dated as of December 31,
2008.
“Multiemployer Plan”
has the meaning set forth in Section 3(37) of ERISA.
“Net Cash Proceeds”
means, without duplication, (i) in the case of any Equity Issuance or Debt
Issuance, the aggregate cash payments received by any Borrower less reasonable
fees and expenses incurred by such Borrower in connection therewith, (ii) in the
case of any Casualty or Condemnation Event, the aggregate cash proceeds of
insurance, condemnation awards and other compensation received by any Borrower
in respect of such Casualty or Condemnation Event less (y) reasonable fees and
expenses incurred by any Borrower in connection therewith and (z) contractually
required repayments of Indebtedness to the extent secured by Liens on the
property subject to such Casualty or Condemnation Event and any income or
transfer taxes paid or payable by or for the account of such Borrower as a
result of such Casualty or Condemnation Event, and (iii) in the case of any
Asset Disposition, the aggregate cash payments received by any Borrower in
connection therewith, less (w) reasonable fees and expenses incurred by any
Borrower in connection therewith, (x) Indebtedness to the extent the amount
thereof is secured by a Lien on the property that is the subject of such Asset
Disposition and the transferee of (or holder of the Lien on) such Property
requires that such Indebtedness be repaid as a condition to such Asset
Disposition, (y) any income or transfer taxes paid or payable by or for the
account of such Borrower as a result of such Asset Disposition, and (z) a
reasonable reserve for potential indemnification liability.
“Net Income” means the
net income of the Borrowers as reflected in the consolidated financial
statements for the applicable period as determined in accordance with Generally
Accepted Accounting Principles, but excluding for purposes of determining any
financial ratios under this Agreement, all Extraordinary Receipts and any Income
Tax Expense on such Extraordinary Receipts and any Income Tax Benefit on account
of such Extraordinary Receipts.
“Non-Capitalized
Lease” means any lease other than a Capitalized Lease.
“Notes” means the
Revolver Loan Note and the Term Loan Note.
“Notice of Issuance”
means a notice from any Borrower to Bank to be made by telephone and confirmed
in writing, specifying therein the information as may be reasonably required by
Bank with respect to the issuance of any Letter of Credit under this
Agreement.
14
“Obligations” means
the Loans, interest thereon, fees owing in connection therewith, Hedging
Obligations owed by a Borrower to Bank or any affiliate of Bank, and all other
obligations (including obligations of performance) and liabilities of any
Borrower to Bank of every kind and description whatsoever, direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, contracted or arising, or acquired by Bank from any source, joint or
several, liquidated or unliquidated, regardless of how they arise or by what
agreement or instrument they may be evidenced or whether they are evidenced by
any agreement or instrument, and whether incurred as maker, endorser, surety,
guarantor, general partner, drawer, tort-feasor, indemnitor, account party with
respect to a letter of credit or otherwise, and arising out of, incurred
pursuant to and/or in connection with any Loan Document, and any and all
extensions and renewals of any of the same, including but not limited to the
obligation:
(A) To
pay the principal of and interest on the Notes in accordance with the respective
terms thereof and/or hereof, including any and all extensions, modifications,
restatements and renewals thereof and substitutions therefor;
(B) To
pay, repay or reimburse Bank for all amounts owing hereunder and/or under any of
the other Loan Documents, including the Reimbursement Obligation and all
Indemnified Losses and Default Costs;
(C) To
pay, repay or reimburse to Bank or any affiliate of Bank with respect to all
obligations under any Hedging Contracts; and
(D) To
reimburse Bank, on demand, for all of Bank’s expenses and costs, including the
fees and expenses of its counsel, in connection with the preparation,
administration, amendment, modification, or enforcement of this Agreement and
the documents required hereunder, including, without limitation, any proceeding
brought or threatened to enforce payment of any of the obligations referred to
in the foregoing paragraphs (A), (B), and (C).
“Ordinary Course of
Business” means an action taken by a Person only if:
(A) Such
action is consistent with the past practices of such Person and is taken in the
ordinary course of the normal day-to-day operations of such Person;
(B) Such
action is not required to be authorized by the Governing Body of such Person;
and
(C) Such
action is similar in nature and magnitude to actions customarily taken, without
any authorization by any Governing Body, in the ordinary course of the normal
day-to-day operations of other Persons that are in the same line of business as
such Person.
“Organizational
Documents” means (i) the certificate or articles of incorporation and the
bylaws of a corporation, (ii) the partnership agreement and any statement of
partnership of a general partnership, (iii) the limited partnership agreement
and the certificate of limited partnership of a limited partnership, (iv) the
articles of organization or formation and the operating agreement of a limited
liability company, (v) any charter or similar document adopted or filed in
connection with the creation, formation, or organization of a Person, and (vi)
any amendment to any of the foregoing.
“Parent” means
Theragenics Corporation, a Delaware corporation.
“Parent’s
Representatives” means the president, chief executive officer, chief
financial officer, and controller of Parent, and any other Person designated by
Parent as Parent’s Representatives under this Agreement.
15
“Participant” means
any bank, financial institution, Affiliate of Bank, or other entity which enters
into a participation agreement with Bank with respect to all or a portion of its
rights and obligations under this Agreement.
“Payment Default”
means a Default that can be cured with the payment of money.
“Payment Due Date”
means (i) with respect to the Term Loan, commencing on and after July 1, 2009,
each of the dates listed in the column titled “Payment Due Date” on Exhibit E
attached hereto and made a part hereof (subject to the effect of any
prepayments) and (ii) with respect to Revolver Loan Advances, the last day of
the 30-Day LIBOR Rate Interest Period, 60-Day LIBOR Rate Interest Period or
90-Day LIBOR Rate Interest Period, as applicable.
“Permitted
Acquisition” means Acquisitions after the date hereof if (i) the business
acquired is a Permitted Line of Business; (ii) consideration for such
Acquisition, plus the consideration paid for all Acquisitions (but excluding
therefrom any Acquisitions as a result of the Special NeedleTech Capital
Expenditures) by all Borrowers on a cumulative basis on and after the date
hereof, does not exceed the aggregate amount of $7,500,000 (which consideration
shall include, without limitation, securities issued by any Borrower, each
Borrower’s property (such securities and property to be valued at their fair
market value on the date of such Acquisition), cash, and the amount of all
Indebtedness assumed in the case of each asset purchase or acquired in the case
of each equity purchase); (iii) immediately after the Acquisition, the business
so acquired (and the assets constituting such business) shall be owned and
operated by a Borrower and if acquired via an equity purchase, such Person shall
contemporaneously execute and deliver the Joinder Agreements and comply with all
other conditions required therein; and (iv) Parent shall have delivered to Bank
a pro-forma compliance certificate demonstrating that, on a pro-forma basis,
after giving effect to the Acquisition, such Acquisition would not give rise to
a Default as of the consummation of the Acquisition, or a Financial Covenant
Default as of the four Quarter-Ends immediately following the Acquisition based
on such pro-forma projections. Any Acquisition consented to by Bank in writing
shall also constitute a “Permitted Acquisition” hereunder.
“Permitted
Indebtedness” means:
(A)
The Loans;
(B) The
Existing Indebtedness;
(C) Indebtedness
otherwise expressly permitted under the terms of this Agreement or any other
Loan Document, if any;
(D) Indebtedness
incurred in the Ordinary Course of Business and not incurred through the
borrowing of money, provided that such Indebtedness is either Unsecured
Indebtedness or Indebtedness secured by a Permitted Lien;
(E) During
the year prior to the Revolver Loan Maturity Date in effect at the time such
letter of credit is issued or renewed, and thereafter, Indebtedness in the form
of reimbursement obligations owing from time to time to the issuer of any
letter(s) of credit obtained by each Borrower to replace one or more expiring
Letters of Credit issued hereunder;
(F) Intercompany
Indebtedness from any Borrower to another Borrower;
16
(G) Indebtedness
existing or arising under any Hedging Contract provided that (i) such
Indebtedness was incurred by such Borrower in the Ordinary Course of Business
for the purpose of directly mitigating interest rate risks and not for purposes
of speculation or taking a “market view” and (ii) such Hedging Contract does not
contain any provision exonerating the non defaulting party from its obligation
to make payments on outstanding transactions to the defaulting
party;
(H) Purchase money
Indebtedness incurred in the Ordinary Course of Business and not exceeding, for
all Borrowers on a cumulative basis, $1,000,000 in any given Fiscal Year;
and
(I) Indebtedness
not otherwise described in clauses (A) through (H) of this definition, not to
exceed $5,000,000 at any time outstanding.
“Permitted
Investments” means:
(A) Cash
Equivalents;
(B) Purchases and
acquisitions of inventory, supplies, materials and equipment in the Ordinary
Course of Business;
(C) Investments
consisting of loans and advances to employees for reasonable travel, relocation
and business expenses in the Ordinary Course of Business or prepaid expenses
incurred in the Ordinary Course of Business;
(D) Without
duplication, Investments consisting of Permitted Indebtedness;
(E) Existing
Investments;
(F) Other Investments
made in accordance with the applicable Borrower’s investment policy as in effect
on the date of this Agreement, or as it may be amended with the Bank’s prior
written consent, which will not be unreasonably withheld, delayed or
conditioned;
(G) Investments which
are Permitted Acquisitions;
(H) Investments (other
than Investments specified in clauses (A) through (G) above) in an aggregate
amount that shall not exceed the Threshold Amount for all such Investments
during each Fiscal Year;
(I) Investments
arising under Hedging Contracts that otherwise qualify as Permitted
Indebtedness;
(J) Investments by
any Borrower in or to another Borrower; and
(K) Any other
Investments that may be approved in writing by Bank from time to
time.
“Permitted Liens”
means:
(A) Bank’s
Lien;
(B) Those Liens
identified on the attached Schedule 6.11;
(C) The following
Liens, if the granting of such Lien or the attachment of such Lien to the
Collateral (i) does not otherwise constitute a Default under the terms of this
Agreement, and (ii) does not give rise to a Material Adverse
Change:
17
(1)
if the validity or amount thereof is being contested in good faith by
appropriate and lawful proceedings, so long as levy and execution thereon
have been stayed and continue to be stayed, and with respect to which
adequate reserves or other appropriate provisions are being maintained to
the extent required by Generally Accepted Accounting
Principles:
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(a) Liens for
taxes, assessments or charges due and payable and subject to interest or
penalty;
|
||
(b) Liens upon,
and defects of title to, real or personal property, including any
attachment of personal or real property or other legal process prior to
adjudication of a dispute on the merits;
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(c) Liens of
mechanics, materialmen, warehousemen, carriers, or other like Liens;
and
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(d) Adverse
judgments on appeal or covered by insurance (except for permitted
deductibles);
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(2)
Pledges or deposits made in the Ordinary Course of Business to secure
payment of workmen’s compensation, or to participate in any fund in
connection with workmen’s compensation, unemployment insurance, old-age
pensions or other social security programs;
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(3)
Good faith pledges or deposits made in the Ordinary Course of Business to
secure performance of bids, tenders, Contracts (other than for the
repayment of borrowed money) or leases, not in excess of ten percent (10%)
of the aggregate amount due thereunder, or to secure statutory
obligations, or surety, appeal, indemnity, performance or other similar
bonds required in the Ordinary Course of Business; and
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(4)
Purchase money security interests granted in the Ordinary Course of
Business to secure not more than one hundred percent (100%) of the
purchase price of
assets;
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(D) Easements arising
by reason of zoning restrictions, easements, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other similar
encumbrances on the use of real property which do not materially detract from
the value of such real property or materially interfere with the ordinary
conduct of the business conducted and proposed to be conducted at such real
property;
(E) Prior to execution
and delivery of the Mortgage, all Liens of record as of the date of Closing
against the real property owned by each Borrower;
(F) After execution and
delivery of the Mortgage, Liens set forth in the Title Insurance Policy and
approved by Bank;
(G) purported Liens
evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the Ordinary
Course of Business;
(H) Liens in the form
of cash collateral required by the issuer of any letter of credit permitted by
clause (E) of the definition of “Permitted Indebtedness”;
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(I) Liens
in the form of Capitalized Leases, provided that the total amount of
Indebtedness secured by such Liens at any time outstanding, together with other
Indebtedness incurred and then outstanding pursuant to clause (F) of the
definition of “Indebtedness”, shall not exceed $5,000,000; and
(J)
Liens not otherwise permitted under clauses (A) through (I) of this definition,
securing obligations not exceeding the Threshold Amount at any time
outstanding.
“Permitted Line of
Business” means the business engaged in by the Borrowers as of the date
of this Agreement, and businesses reasonably ancillary thereto.
“Permitted Transfers of
Assets” means:
(A) Sales of Inventory
in the Ordinary Course of Business;
(B) The sale or
exchange of used, obsolete, worn out or surplus Equipment to the extent (y) the
Net Cash Proceeds of such sale are applied as a prepayment of any Loan or to
purchase other Tangible Property used in the business of any Borrower as
provided in Section 2.10(B) hereof, or such Equipment is exchanged for,
similar replacement Equipment, or (z) such Equipment is no longer necessary for
the operations of a Borrower in the Ordinary Course of Business;
(C) The sale or
disposition of assets outside the Ordinary Course of Business in an aggregate
amount that shall not exceed the Threshold Amount for all such sales or
dispositions during each Fiscal Year; and
(D) Any intercompany
sale, assignment, transfer or other disposition of any assets between any
Borrower and any other Borrower.
“Person” means any
individual, corporation, partnership, limited partnership, limited liability
company, association, joint-stock company, trust, unincorporated organization,
joint venture, court or Governmental Authority.
“Petroleum Products”
means “petroleum products” as defined under any applicable Environmental
Law.
“Place for Payment”
means a place for payment as from time to time designated by Bank, which place
for payment currently is at the address of Bank as hereinafter provided for with
respect to notices.
“Plans” means all
Single Employer Plans and multi-employer plans.
“Prohibited
Transaction” means a transaction described in Section 406 of ERISA as to
which an exemption described in Section 408 of ERISA does not
apply.
“Purchase Order” means
a valid and binding order for goods to be purchased from any Borrower, which
order shall be evidenced by an executed purchase order of the respective
Purchaser.
“Purchaser” means any
buyer or lessee of Inventory from any Borrower, any customer for whom services
have been rendered or materials furnished by any Borrower, and any other Person
that is now or may become obligated to any Borrower on an Account.
“Quarter” means a
period of time of three consecutive calendar months.
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“Quarter-End” means
the last day of each of March, June, September, and December, or such other date
as the Borrower may utilize for purposes of quarter-end for accounting purposes,
as agreed to by Bank.
“Real Property” means
the real property owned by any Borrower or in which any Borrower has a leasehold
interest, which Real Property is described on Schedule 6.12 of this
Agreement.
“Records” means
correspondence, memoranda, tapes, discs, microfilm, microfiche, papers, books
and other documents, or transcribed information of any type, whether expressed
in ordinary or machine language, and all filing cabinets and other containers in
which any of the foregoing is stored or maintained.
“Regulation D” means
Regulation D of the Board of Governors of the Federal Reserve System from time
to time in effect and shall include any successor or other regulation or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
“Regulation T”, “Regulation
U”, and “Regulation X” means Regulation T, Regulation U, and Regulation
X, respectively, of the Board of Governors of the Federal Reserve System as now
or from time to time hereafter in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve
System.
“Reimbursement
Obligation” means the obligation of the Borrowers to pay the amounts
required under Section 3.2 of this Agreement.
“Rents” means all the
rents, issues, and profits now due and which may hereafter become due under or
by virtue of the Assigned Leases, together with all claims and rights to the
payment of money at any time arising in connection with any rejection or breach
of any of the Assigned Leases under Bankruptcy Law, including without
limitation, all rights to recover damages arising out of such breach or
rejection, all rights to charges payable by a tenant or trustee in respect of
the leased premises following the entry of an order for relief under Bankruptcy
Law in respect of a tenant and all rentals and charges outstanding under the
Assigned Leases as of the date of entry of such order for relief.
“Reportable Event”
means a “reportable event” as defined in Section 4043(c) of ERISA, but excluding
events for which reporting has been waived.
“Reserve Requirement”
with respect to a LIBOR Rate Interest Period means the weighted average during
the LIBOR Rate Interest Period of the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements during the LIBOR Rate Interest Period) which is imposed under
Regulation D.
“Responsible Officer”
means, individually or collectively, the president, chief executive officer,
chief financial officer, and general counsel of any Borrower.
“Restricted Payments”
means any payment by Parent for the purpose of (i) paying dividends or making
any other payment or distribution on account of its Equity Interests, or set
aside funds for any of the foregoing, (ii) purchasing, redeeming or otherwise
acquiring any Equity Interests or any warrants, rights or options to acquire its
Equity Interests, or set aside funds for any of the foregoing, (iii) paying or
acquiring any Subordinated Debt, or (iv) acquiring or repaying any notes,
advances or loans to Affiliates (other than another Borrower), shareholders and
employees of any Borrower; provided, however, Restricted Dividends shall not
include dividend payments or other distributions payable solely in common
stock.
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“Reuters” means the
ThomsonReuters PLC reporting service, or if unavailable, such similar service as
reasonably determined by the Bank that publishes the British Bankers’
Association interest settlement rates for deposits in U.S. Dollars from time to
time.
“Revolver Loan” means
the revolving loan facility in the Revolver Loan Amount being provided to the
Borrowers in accordance with the terms of Article II of this
Agreement.
“Revolver Loan
Advances” means all outstanding Advances of the Revolver
Loans.
“Revolver Loan Amount”
means (i) THIRTY MILLION AND 00/100 U.S. DOLLARS ($30,000,000.00) or (ii) any
greater amount requested by Parent in writing to the Bank and as may be approved
in writing by the Bank in the exercise of its sole and absolute discretion in
accordance with Section 2.18 of this Agreement, as either such amount may be
reduced from time to time at Parent’s request, in accordance with Section 2.20
of this Agreement.
“Revolver Loan
Commitment” means the commitment of Bank, subject to the terms of this
Agreement, to lend to the Borrowers up to the amount of the Revolving Loan
Amount, less
(A) the Available Amount of the Letters of Credit, (B) any outstanding Letter of
Credit Advances, and (C) any prepayments of the Revolver Loan as and when
required under Section 2.10(B) of this Agreement.
“Revolver Loan Maturity
Date” means October 31, 2012.
“Revolver Loan Note”
means that certain Amended and Restated Line of Credit Note executed by each
Borrower to Bank of even date herewith, in the principal amount of
$30,000,000.00, and includes any amendment to or modification or restatement of
such note and any promissory note given in extension or renewal of, or in
substitution for, such note.
“Revolver Loan Note Joinder
Agreement” means the Revolver Loan Note Joinder Agreement; substantially
in the form attached hereto as Exhibit C.
“Security Documents”
means all documents or instruments of any kind executed or delivered in
connection with the Loan, whether delivered prior to, at, or after the Closing,
wherein Bank is granted a Lien in Borrower’s assets, and all documents and
instruments executed and delivered in connection with any of the foregoing,
together with any and all extensions, revisions, modifications, restatements or
amendments at any time made to any of such documents or instruments, including
but not limited to this Agreement, the Mortgage, the Assignment of Rents and the
Financing Statements.
“Senior Liabilities”
means the sum of total Liabilities, including capitalized leases and all
reserves for deferred taxes and other deferred sums appearing on the liabilities
side of the balance sheet, including Hedging Obligations, all in accordance with
Generally Accepted Accounting Principles applied on a consistent basis,
excluding Subordinated Debt.
“Single-Employer
Plans” has the meaning set forth in Section 3(41) of ERISA.
“Solid Wastes” means
“solid wastes” as defined under any applicable Environmental
Law.
21
“Solvent” and “Solvency” mean, with
respect to any Person on a particular date, that (after giving effect to any
rights of contribution, reimbursement or indemnification to which such Person
may be entitled by contract or otherwise) on such date (a) the fair value
of the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
“Special NeedleTech
Amount”
means that certain amount set forth on Schedule 1.1 attached hereto
and incorporated by reference herein.
“Special NeedleTech Capital
Expenditures” means up to the Special NeedleTech Amount of
Capital Expenditures incurred for the initial purchase and improvement of real
property for use as a new manufacturing facility for NeedleTech.
“Subordinated Debt”
means any Indebtedness of any Borrower the subject of a subordination agreement
acceptable to and approved by Bank (which approval shall not be unreasonably
withheld, conditioned or delayed), provided that any such agreement shall
provide, at a minimum, that (a) the Indebtedness owed by such Borrower to any
Third Person is expressly subordinated and made junior in right and time of
payment to the Obligations of such Borrower under the Loan Documents, and (b)
that such Indebtedness shall not permit any payment of principal if such
payment
would give rise to a Financial Covenant Default, and shall have covenants and
undertakings that, taken as a whole, are less restrictive than those contained
in the Loan Documents.
“Subsidiary” means, as
to any Person (the “first person”), another Person (the “second person”) with
respect to which such first person directly or indirectly through one or more
intermediaries, controls such second person (and a first person shall be deemed
to have control if such first person, directly or indirectly, has rights to
exercise Voting Power to elect a majority of the members of the Governing Body
of the second person).
“Tangible Net Worth”
means total assets minus intangible assets (as defined below) minus Senior
Liabilities. For purposes of this definition, “intangible assets” has the
meaning under Generally Accepted Accounting Principles, including, without
limitation, the book value of goodwill, franchises, licenses, non-competition
agreements, patents, trademarks, trade names, copyrights, service marks, and
brand names, plus the amount of any accounts, notes, advances and/or loans to
affiliates, shareholders, and employees of the Borrowers shall be subtracted
from total assets.
“Tangible Property”
means all equipment, machinery, goods, furniture, furnishings, fixtures,
supplies, tools, materials, vehicles, books, records, and other tangible
personal property that are part of the Collateral.
“Term Loan” means the
$10,000,000 term loan facility provided to the Borrowers in accordance with the
terms of Article II of this Agreement.
“Term Loan Maturity
Date” means June 1, 2012.
“Term Loan Note” means
that certain Term Loan Note from each Borrower to Bank of even date herewith, in
the principal amount of $10,000,000.00, and includes any amendment to or
modification or restatement of such note and any promissory note given in
extension or renewal of, or in substitution for, such note.
22
“Term Loan Note Joinder
Agreement” means the Term Loan Note Joinder Agreement; substantially in
the form attached hereto as Exhibit D.
“Third Person” means a
Person not a party to this Agreement.
“Threshold Amount”
means $1,000,000.00.
“Title Insurance
Company” means a title insurance company reasonably acceptable to Bank in
its discretion and authorized under applicable Law to issue a Title Insurance
Policy.
“Title Insurance
Policy” means one or more standard ALTA form title insurance policies
with respect to the Mortgaged Property and acceptable to Bank in its discretion,
issued by a Title Insurance Company to Bank upon the Mortgaged Property, subject
only to those exceptions and matters of title acceptable to Bank, in Bank’s
discretion, including the Permitted Liens.
“Trigger Event” means
the occurrence of an Event of Default which arises out of a Payment Default, a
Financial Covenant Default, or an Incurable Default.
“Trigger Event Notice”
means a writing from Bank to Parent giving notice that a Trigger Event has
occurred.
“Unsecured
Indebtedness” means Indebtedness not secured by any Lien.
“Unused Fee” means the
fee payable by Borrowers to Bank in arrears at the end of each Quarter, as
determined by Bank as of such Quarter-End in an amount equal to the product of
(i) one-quarter of one percent (0.25%), multiplied by (ii) the daily average of
the Unused Revolver Loan Commitment during such Quarter, divided by (iii) four
(4); provided that the Unused Fee for any partial quarter shall be prorated for
the actual number of days between the date such fee is payable to the most
recent Quarter-End to which such fee has been paid or, if no such fee has yet
been paid, to the date of the Closing.
“Unused Revolver Loan
Commitment” means, at any time (a) the Revolver Loan Commitment at such
time, minus (b)
the aggregate principal amount of all Revolver Loan Advances and Letter of
Credit Advances outstanding at such time.
“Voting Power” means,
with respect to any Person, the right to vote for the election of the Governing
Body of such Person under ordinary circumstances.
“30-Day Adjusted LIBOR
Rate” means, for each respective 30-Day LIBOR Rate Interest Period, an
interest rate equal to the sum of (i) the applicable 30-Day LIBOR Rate, plus
(ii) the Applicable Margin. The 30-Day Adjusted LIBOR Rate applicable to any
Loan shall change on each relevant Payment Due Date and be effective for the
next 30-Day Adjusted LIBOR Rate Interest Period (unless another LIBOR Rate
Interest Period applies, in accordance with the terms of this Agreement, in
which case it shall be effective for the next applicable LIBOR Rate Interest
Period).
“30-Day LIBOR Rate”
means, as applicable to each respective 30-Day LIBOR Rate Interest Period, a per
annum rate of interest equal to LIBOR for a period of one (1) month as
determined by Bank from Reuters (or such other source as Bank may select if such
a rate index is not available from Reuters).
23
“30-Day LIBOR Rate Interest
Period” means a period of one month from the first day of the applicable
30-Day LIBOR Rate Interest Period to the date one month thereafter, and, with
respect to Revolver Loan Advances only, with respect to which a 30-Day LIBOR
Rate Notice has been given.
“30-Day LIBOR Rate
Notice” means a written notice given to Bank by a Parent’s Representative
providing for Borrowers’ election for all or any portion (but if a portion, in
increments of not less than $1,000,000.00) of the outstanding principal balance
of the Revolver Loan to bear interest at the applicable 30-Day Adjusted LIBOR
Rate for a 30-Day LIBOR Rate Interest Period, such notice to be given at least
two (2) Business Days prior to and specifying the date of the commencement of
the applicable 30-Day LIBOR Rate Interest Period; provided, however, that,
except as may be waived by Bank in Bank’s discretion, (i) in no event may any
30-Day LIBOR Rate Interest Period begin until the expiration of any current
LIBOR Rate Interest Period, (ii) in no event may a 30-Day Adjusted LIBOR Rate be
elected at any time when the corresponding 30-Day LIBOR Rate Interest Period
would extend beyond the Revolver Loan Maturity Date, (iii) if any such 30-Day
LIBOR Rate Notice would cause there to be more than four (4) Interest Rates in
effect with respect to the Revolver Loan on the day of the commencement of the
applicable 30-Day LIBOR Rate Interest Period, then such 30-Day LIBOR Rate Notice
shall not be effective with respect to such Revolver Loan Advances, and (iv) if
any such 30-Day LIBOR Rate Notice is not timely received or is otherwise not
properly made, such 30-Day LIBOR Rate Notice, at Bank’s election, shall not be
effective.
“60-Day Adjusted LIBOR
Rate” means, for each respective 60-Day LIBOR Rate Interest Period, an
interest rate equal to the sum of (i) the applicable 60-Day LIBOR Rate, plus
(ii) the Applicable Margin. The 60-Day Adjusted LIBOR Rate applicable to any
Loan shall change on each relevant Payment Due Date and be effective for the
next 60-Day Adjusted LIBOR Rate Interest Period (unless another LIBOR Rate
Interest Period applies, in accordance with the terms of this Agreement, in
which case it shall be effective for the next applicable LIBOR Rate Interest
Period).
“60-Day LIBOR Rate”
means, as applicable to each respective 60-Day LIBOR Rate Interest Period, a per
annum rate of interest equal to LIBOR for a period of two (2) months as
determined by Bank from Reuters (or such other source as Bank may select if such
a rate index is not available from Reuters).
“60-Day LIBOR Rate Interest
Period” means a period of two months from the first day of the applicable
60-Day LIBOR Rate Interest Period to the date two months thereafter, and with
respect to which a 60-Day LIBOR Rate Notice has been given.
“60-Day LIBOR Rate
Notice” means a written notice given to Bank by a Parent’s Representative
providing for Borrowers’ election for all or any portion (but if a portion, in
increments of not less than $1,000,000.00) of the outstanding principal balance
of the Revolver Loan to bear interest at the applicable 60-Day Adjusted LIBOR
Rate for a 60-Day LIBOR Rate Interest Period, such notice to be given at least
two (2) Business Days prior to and specifying the date of the commencement of
the applicable 60-Day LIBOR Rate Interest Period; provided, however, that,
except as may be waived by Bank in Bank’s discretion, (i) in no event may any
60-Day LIBOR Rate Interest Period begin until the expiration of any current
LIBOR Rate Interest Period, (ii) in no event may a 60-Day Adjusted LIBOR Rate be
elected at any time when the corresponding 60-Day LIBOR Rate Interest Period
would extend beyond the Revolver Loan Maturity Date, (iii) if any such 60-Day
LIBOR Rate Notice would cause there to be more than four (4) Interest Rates in
effect with respect to the Revolver Loan on the day of the commencement of the
applicable 60-Day LIBOR Rate Interest Period, then such 60-Day LIBOR Rate Notice
shall not be effective with respect to such Revolver Loan Advances, and (iv) if
any such 60-Day LIBOR Rate Notice is not timely received or is otherwise not
properly made, such 60-Day LIBOR Rate Notice, at Bank’s election, shall not be
effective.
24
“90-Day Adjusted LIBOR
Rate” means, for each respective 90-Day LIBOR Rate Interest Period, an
interest rate equal to the sum of (i) the applicable 90-Day LIBOR Rate, plus
(ii) the Applicable Margin. The 90-Day Adjusted LIBOR Rate applicable to any
Loan shall change on each relevant Payment Due Date and be effective for the
next 90-Day Adjusted LIBOR Rate Interest Period (unless another LIBOR Rate
Interest Period applies, in accordance with the terms of this Agreement, in
which case it shall be effective for the next applicable LIBOR Rate Interest
Period).
“90-Day LIBOR Rate”
means, as applicable to each respective 90-Day LIBOR Rate Interest Period, a per
annum rate of interest equal to LIBOR for a period of three (3) months as
determined by Bank from Reuters (or such other source as Bank may select if such
a rate index is not available from Reuters).
“90-Day LIBOR Rate Interest
Period” means a period of three months from the first day of the
applicable 90-Day LIBOR Rate Interest Period to the date three months
thereafter, and with respect to which a 90-Day LIBOR Rate Notice has been
given.
“90-Day LIBOR Rate
Notice” means a written notice given to Bank by a Parent’s Representative
providing for Borrowers’ election for all or any portion (but if a portion, in
increments of not less than $1,000,000.00) of the outstanding principal balance
of the Revolver Loan to bear interest at the applicable 90-Day Adjusted LIBOR
Rate for a 90-Day LIBOR Rate Interest Period, such notice to be given at least
two (2) Business Days prior to and specifying the date of the commencement of
the applicable 90-Day LIBOR Rate Interest Period; provided, however, that,
except as may be waived by Bank in Bank’s discretion, (i) in no event may any
90-Day LIBOR Rate Interest Period begin until the expiration of any current
LIBOR Rate Interest Period, (ii) in no event may a 90-Day Adjusted LIBOR Rate be
elected at any time when the corresponding 90-Day LIBOR Rate Interest Period
would extend beyond the Revolver Loan Maturity Date, (iii) if any such 90-Day
LIBOR Rate Notice would cause there to be more than four (4) Interest Rates in
effect with respect to the Revolver Loan on the day of the commencement of the
applicable 90-Day LIBOR Rate Interest Period, then such 90-Day LIBOR Rate Notice
shall not be effective with respect to such Revolver Loan Advances, and (iv) if
any such 90-Day LIBOR Rate Notice is not timely received or is otherwise not
properly made, such 90-Day LIBOR Rate Notice, at Bank’s election, shall not be
effective.
“Without Notice” means
without demand of performance or other demand, advertisement, or notice of any
kind to or upon the applicable Person, except as may be required under
applicable Laws or by express provision of any Loan Document.
25
(A) Bank
will credit or pay the proceeds of each Revolver Loan Advance to Parent’s
deposit account with Bank, or in such other manner as Parent and Bank may
agree.
26
(B) Except
as otherwise provided in a Cash Management Agreement or otherwise agreed in
writing between any Borrower and Bank, in order to obtain a Revolver Loan
Advance, a Parent’s Representative shall notify Bank not later than 1:00 p.m.
(Atlanta, Georgia time) on the Business Day before such Revolver Loan Advance is
sought, specifying the date on which such Revolver Loan Advance is sought and
the requested amount of the Revolver Loan Advance. Upon Bank’s receipt of such
notice and upon satisfaction of the terms and conditions of this Agreement, Bank
will make such funds available to Parent as provided for above, by 10:00 a.m.
(Atlanta, Georgia time) on the date for which the Revolver Loan Advance is
requested. Notwithstanding anything contained herein to the contrary, no
Borrower shall be entitled to receive nor shall Bank be required to disburse any
Revolver Loan Advance after the Advancement Termination Date.
(b) In
the event that Borrowers enter into any Hedging Contract with respect to the
Revolver Loans or any portion thereof, such portion of the Revolver Loans will
on and after such date bear interest on the unpaid principal balance thereof
exclusively at the 30-Day Adjusted LIBOR Rate and the principal amount thereof,
plus accrued and unpaid interest thereon, shall be due and payable as provided
in such Hedging Contract.
(A) On
the first Payment Due Date following the Closing and on each successive Payment
Due Date thereafter until the entire outstanding indebtedness of Revolver Loan
is paid in full, Borrowers shall pay to Bank all accrued and unpaid interest on
the outstanding principal balance of the Revolver Loan.
27
(B)
If not earlier demanded pursuant to Section 9.3 hereof, the outstanding
principal balance of the Revolver Loan, together with all accrued and unpaid
interest thereon, shall be due and payable to Bank on the Revolver Loan Maturity
Date.
(B) Except
as may otherwise be expressly provided for in the Loan Documents to the contrary
or waived by Bank in its discretion, (i) promptly upon receipt of any Net Cash
Proceeds arising from a Debt Issuance other than Permitted Indebtedness or an
Equity Issuance, each Borrower shall pay such Net Cash Proceeds to Bank as a
prepayment of the Loans (to be applied to the Term Loan first and then to the
Revolver Loan); and (ii) on a date not later than six (6) months from receipt of
any Net Cash Proceeds arising from an Asset Disposition other than Permitted
Transfers of Assets, or a Casualty or Condemnation Event in excess of the
Threshold Amount, each Borrower shall pay such Net Cash Proceeds to Bank as a
prepayment of the Loans (to be applied to the Term Loan first and then to the
Revolver Loan) to the extent such Net Cash Proceeds have not been reinvested in
the other Tangible Property used in the business of any Borrower.
(C) All
partial prepayments, whether voluntary or mandatory, shall be applied first to
accrued and unpaid interest then due and payable, and then to outstanding
principal, provided that no prepayment shall entitle the Borrowers to cease
making any payment as otherwise scheduled hereunder.
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29
30
3.1 Issuance of Letters of
Credit. The Borrowers acknowledge and agree that all “Letters of Credit”
defined in and outstanding under the Original Credit Agreement shall constitute
Letters of Credit issued and outstanding under the terms of this Agreement.
Subject to the terms hereof, Parent, on behalf of the Borrowers, may request
Bank, on the terms and conditions hereinafter set forth, to issue, and Bank
shall issue, additional Letters of Credit for the account of the Borrowers from
time to time on any Business Day in an aggregate Available Amount for all
Letters of Credit not to exceed at any time the Letter of Credit Commitment on
such Business Day. No Letter of Credit shall have an expiration date (including
all rights of the Borrowers or the beneficiary to require renewal) later than
the earlier of (i) thirty (30) days before the Revolver Loan Maturity Date, or
(ii) one year after the date of issuance thereof. In order for a Letter of
Credit to be issued, a Parent’s Representative shall deliver a Notice of
Issuance to Bank not later than 10:30 a.m. (Atlanta, Georgia time) on a date not
less than three (3) Business Days prior to the date the issuance of such Letter
of Credit is sought, such Notice of Issuance to be accompanied by the form of
the Letter of Credit to be issued. If (i) the requested form of such Letter of
Credit is acceptable to Bank in its discretion, and (ii) if required by Bank,
upon execution and delivery of a Letter of Credit Agreement in the form of
Bank’s standard application for standby letter of credit in form and substance
satisfactory to Bank, Bank will, subject to the other terms and conditions of
this Agreement, issue such Letter of Credit. In the event and to the extent that
the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
31
(A) Bank
may from time to time invest funds on deposit in the Cash Collateral Account,
reinvest proceeds of any such investments which may mature or be sold, and
invest interest or other income received from any such investments, and all such
investments and reinvestments shall, for purposes of this Agreement, constitute
part of the funds held in the Cash Collateral Account.
(B) If
at any time Bank determines that any funds held in the Cash Collateral Account
are subject to any right or claim of any Person other than claims arising under
this Agreement and/or that the total amount of such funds is less than the
maximum amount at such time available to be drawn under the Letters of Credit,
the Borrowers will, forthwith upon demand by Bank, pay to Bank, as additional
funds to be deposited and held in the Cash Collateral Account, an amount equal
to the excess of (i) such maximum amount at such time available to be drawn
under the Letters of Credit over (ii) the total amount of funds, if any, then
held in the Cash Collateral Account which Bank determines to be free and clear
of any such right and claim.
(C) Parent
and each Borrower hereby assigns, transfers and sets over, and grants to Bank a
Lien on and upon, the Cash Collateral Account, including all funds held in the
Cash Collateral Account from time to time and all proceeds thereof, as security
for the Obligations. Parent and each Borrower agrees that, to the extent notice
of sale of any securities shall be required by Law, at least ten (10) Business
Days’ Notice to Parent of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Bank may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it will so
adjourned.
(D) Bank
(i) will apply funds from time to time held in the Cash Collateral Account to
the payment of any Reimbursement Obligation then due and payable, and (ii) after
acceleration of the Obligations, may apply such funds to the payment of any
other Obligation.
(E) Neither
Parent, nor any Borrower nor any Person claiming on behalf of or through Parent
or any Borrower shall have any right to withdraw any of the funds held in the
Cash Collateral Account after and during the continuance of any Default.
Promptly after all such Defaults have been waived in writing by Bank or
otherwise shall have ceased to exist, or after all Letters of Credit have been
surrendered for cancellation and all Reimbursement Obligations in respect
thereof have been paid in full, Bank shall refund to Parent all amounts in the
Cash Collateral Account, and earnings thereon, to the extent not previously
applied to the Obligations.
32
(A) All
monies payable to Bank under this Agreement or under any Note shall be paid
directly to Bank in immediately available funds at the Place for Payment. If
Bank shall send Parent statements of amounts due hereunder, such statements
shall be considered correct and conclusively binding on each Borrower unless
Parent notifies Bank to the contrary within thirty (30) days of its receipt of
any statement which it deems to be incorrect. Alternatively, at its discretion,
Bank may charge against any deposit account of any Borrower all or any part of
any amount owed by any Borrower hereunder.
(B) All
payments to be made by Borrowers hereunder will be made to Bank at the Place for
Payment not later than 1:00 p.m. (Atlanta, Georgia time). Payments received at
the Place for Payment after 1:00 p.m. (Atlanta, Georgia time) shall be deemed to
be payments made at the Place for Payment prior to 1:00 p.m. (Atlanta, Georgia
time) on the next succeeding Business Day. Each Borrower hereby authorizes Bank
to charge its accounts with Bank in order to cause timely payment of amounts due
hereunder to be made.
(C) At
the time of making each such payment, the Borrower making such payment shall,
subject to the other terms and conditions of this Agreement, specify to Bank the
Loan or other obligation of Borrowers hereunder to which such payment is to be
applied. In the event that such Borrower fails to so specify the relevant Loan
or if an Event of Default shall have occurred and be continuing, Bank may apply
such payments as it may determine in its discretion.
33
34
The
obligation of Bank to make the Loans and any Advance hereunder is subject to the
following conditions precedent:
(A)
This Agreement;
(B) Each
Note;
(C) Each Borrower’s
Closing Certificate;
(D) With respect to
each Borrower (other than a Borrower that is an individual), a certificate of an
officer or other representative acceptable to Bank dated as of the date of this
Agreement, certifying as to the incumbency and signatures of the
representative(s) of such Borrower signing, as applicable, this Agreement and
each of the other Loan Documents, and each other document to be delivered
pursuant hereto, together with the following documents attached
thereto:
(1) A
copy of the resolutions of such applicable Person’s Governing Body
authorizing the execution, delivery and performance of this Agreement,
each of the Loan Documents, and each other document to be delivered
pursuant hereto, as applicable;
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(2) A
copy, certified as of the most recent date practicable by the secretary of
state (or similar Governmental Authority) of the state, province, or other
Jurisdiction where such Person is organized, of such Person’s
Organizational Documents filed with such secretary of state (or similar
Governmental Authority);
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(3) A copy of such
Person’s other Organizational
Documents;
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35
(E) A
certificate, as of the most recent date practicable, of the secretary of state
(or similar appropriate Governmental Authority) and department of revenue or
taxation (or similar appropriate Governmental Authority) of each Jurisdiction in
which each Borrower (other than a Borrower that is an individual and other than
for NeedleTech Products, Inc.) is organized as to the existence and good
standing of each such Person within such Jurisdiction (unless such Governmental
Authorities do not issue such certificates of existence and/or good standing),
and a certificate, as of the most recent date practicable, of the secretary of
state (or similar appropriate Governmental Authority) of each state where any of
the Collateral is located as to the qualification and good standing of each
Borrower (other than a Borrower that is an individual) as a foreign entity doing
business in each such state (unless such Governmental Authorities do not issue
such certificates of existence and/or good standing);
(F) A
written opinion of counsel to Borrowers, dated as of the date of Closing and
addressed to Bank, in form and substance acceptable to Bank;
(G) The
Most Recent Financial Statements;
(H) UCC
lien search reports showing no Liens, except for the Permitted
Liens;
(I) The
Borrower shall have entered into a Hedging Contract with respect to the Term
Loan satisfactory to the Bank at the time of execution and delivery
thereof;
(J) Evidence
satisfactory to Bank that each Borrower has obtained all insurance policies as
required under this Agreement and/or any of the other Loan Documents, together
with evidence satisfactory to Bank that all premiums therefor have been paid and
that all such policies are in full force and effect; and
(K) Receipt
and approval by Bank of any other items reasonably required to be provided to
Bank, and not otherwise set forth above.
5.2 Certain Events Required for
Closing and for all Advances. At the time of the Closing and at the
time of each Advance, Bank shall be satisfied that:
(A) No
Default shall have occurred and be continuing;
(B) No
Material Adverse Change shall have occurred;
(C) All
of the Loan Documents shall have remained in full force and effect;
(D) The
Borrowers shall have paid all fees, expenses, costs, and other amounts then due
and payable to Bank, including, but not limited to, the Fees;
(E) All
Indebtedness to be prepaid, redeemed or defeased with the proceeds of any
Advance shall have been satisfied and extinguished, or provision for such
satisfaction and extinguishment acceptable to Bank shall have been made;
and
(F) There
shall exist no action, suit, investigation, litigation or proceeding affecting
any Borrower pending or threatened before any court, governmental agency or
arbitrator that purports to affect the legality, validity or enforceability of
this Agreement or any other Loan Document or the consummation of the financing
transaction contemplated hereby.
36
Each
Borrower represents and warrants to Bank, knowing that Bank will rely on such
representations and warranties as an inducement to make the Loans,
that:
37
38
39
40
Each
Borrower does hereby covenant and agree with Bank that, so long as any of the
Obligations remain unsatisfied or the Loan Commitment remains outstanding, each
Borrower at all times will comply or cause to be complied with the following
covenants:
(A) Payment and Performance of
Obligations. Each Borrower will duly and promptly pay and perform all of
such Borrower’s (i) Hedging Obligations in accordance with the terms of any
Hedging Contract with the Bank or any of its affiliates and (ii) all other
Obligations to Bank according to the terms of this Agreement and the other Loan
Documents, and will cause each other Borrower to perform such other Borrower’s
Obligations to Bank according to the terms of this Agreement and the other Loan
Documents.
(B) Use of Proceeds. Each
Borrower will use the proceeds of the Loans only for the purposes permitted
herein, or as Bank may have otherwise approved from time to time; and each
Borrower will furnish Bank such evidence as it may reasonably require with
respect to such uses.
(C) Financial Reporting.
Parent will furnish or cause to be furnished to Bank:
(1) Within
forty-five (45) days after each Quarter-End (a) an unaudited
(management-prepared) income statement of Parent and its consolidated
Subsidiaries for the applicable fiscal quarter, and (b) an unaudited
(management-prepared) balance sheet of Parent and its consolidated
Subsidiaries for the applicable fiscal quarter, all in reasonable detail
with Bank having full access to all supporting schedules and comments, and
certified by the Parent’s president, principal financial officer or other
employee designated by Parent and acceptable to the Bank to have been
prepared in accordance with Generally Accepted Accounting Principles
consistently applied, except for any inconsistencies explained in such
certificate;
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(2) Within one
hundred twenty (120) days after each Fiscal Year-End (a) an income
statement of Parent and its consolidated Subsidiaries for such Fiscal
Year, and (b) a balance sheet of Parent and its consolidated Subsidiaries
as of the end of such Fiscal Year, all in reasonable detail, including all
supporting schedules and comments; such statements and balance sheets to
be audited by Xxxxx Xxxxxx PLLC, or by another independent certified
public accountant reasonably acceptable to Bank, and certified by such
accountants to have been prepared in accordance with Generally Accepted
Accounting Principles consistently applied, except for any inconsistencies
explained in such certificate; in addition, Parent will obtain from such
independent certified public accountants and deliver to Bank, within one
hundred twenty (120) days after the close of each Fiscal Year, their
written statement that in making the examination necessary to their
certification they have obtained no knowledge of any Default, or
disclosing all Defaults of which they have obtained knowledge; provided,
however, that in making their examination such accountants shall not be
required to go beyond the bounds of generally accepted auditing procedures
for the purpose of certifying financial statements; and during the
existence of a Default or Event of Default and after Bank has sent prior
notice to the Parent, Bank shall have the right, from time to time, to
discuss any Borrower’s affairs directly with such Borrower’s accountants,
and any such accountants are authorized and directed to give Bank any
information Bank may request at any time regarding the financial affairs
of any Borrower and are authorized and directed to furnish Bank with
copies of any documents in their possession related
thereto;
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(3)
Within forty-five (45) days after each Quarter-End, a Compliance
Certificate for the applicable fiscal quarter, certified to be correct by
the Parent’s principal financial officer or other employee designated by
Parent and acceptable to the Bank;
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(4)
Promptly upon receipt thereof, copies of any “management letter” submitted
to Parent by its certified public accountants in connection with each
annual, interim or special audit, and promptly upon completion thereof,
any response reports from any Borrower in respect
thereof;
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(5)
Promptly after sending or making available or filing of the same, copies
of all reports, proxy statements and financial statements that Parent
and/or its consolidated Subsidiaries sends or makes available to its
Equity Owners and all registration statements and reports that Parent
and/or its consolidated Subsidiaries files with the Securities and
Exchange Commission (or any other similar Governmental Authority), the
National Association of Securities Dealers or any national securities
exchange;
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(6)
Not later than the sixtieth (60th)
day after the commencement of each fiscal year, deliver Projections (as
hereinafter defined) to Bank for the Parent and its consolidated
Subsidiaries for such fiscal year. “Projections” means forecasted
consolidated and consolidating (i) balance sheets prepared on an annual
basis, (ii) profit and loss statements prepared on a quarterly basis, and
(iii) cash flow statements prepared on an annual basis, all prepared on a
consistent basis with the historical financial statements of Parent and
its consolidated Subsidiaries, together with appropriate supporting
details and a statement of underlying assumptions; and
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(7)
Any other financial information reasonably requested by Bank from time to
time.
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(D) Fees and Expenses.
The Borrowers will pay or cause to be paid when due (i) all fees or expenses
owing to Bank, including the Fees; and (ii) all expenses involved in perfecting
Bank’s Lien or the priority of Bank’s Lien and all other expenses of Bank
related to the Loan, or the protection and preservation of the Collateral, or
the enforcement of any provision of this Agreement, or the preparation of this
Agreement, any of the other Loan Documents, or amendments to any of them,
including, without limitation, recording fees and taxes, tax, title and lien
search charges, title insurance charges, Attorneys’ Fees (including Attorneys’
Fees at trial and on any appeal by Borrower or Bank), real property taxes and
insurance premiums.
(E) Certification. Each
Borrower will certify to Bank upon request by Bank that:
(1)
Such Borrower
has complied with and is in compliance with all terms, covenants and
conditions of this Agreement which are binding upon it;
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(2)
There exists
no Default; or, if such is not the case, that one or more specified
Defaults have occurred; and
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(3)
The
representations and warranties contained in this Agreement are true with
the same effect as though made on the date of such certificate, except to
the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically
permitted
hereunder.
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(F) Right of Inspection.
Each Borrower will, when requested so to do, make available during normal
business hours for inspection and audit by duly authorized representatives of
Bank any of its Records, and will furnish Bank any information regarding its
business affairs and financial condition within a reasonable time after written
request therefor. Each Borrower shall reimburse Bank for all costs associated
with such audit if the audit reveals a material discrepancy in any financial
report, statement or other document provided to Bank pursuant to this
Agreement.
(G) Records. Each
Borrower will keep accurate and complete Records, consistent with sound business
practices.
(H) Income Tax Returns.
Within forty-five (45) days of Bank’s request therefor, each Borrower will
furnish or cause to be furnished to Bank copies of income tax returns filed by
such Borrower.
(I)
Third-Party
Indebtedness. Each Borrower will pay when due (or within applicable grace
periods) all Indebtedness due Third Parties, unless the failure so to pay such
Indebtedness would not give rise to a Material Adverse Change.
(J)
Change in Principal
Place of Business. Each Borrower will notify Bank thirty (30) days in
advance of any change in the location of such Borrower’s principal place of
business.
(K) Notices of Certain
Events. Each Borrower will promptly (and in any event within ten (10)
Business Days after) notify Bank in writing if any Responsible Officer of such
Borrower obtains actual knowledge of any of the following:
(1)
the occurrence of any Default or Event of Default, together with a written
statement of a Responsible Officer specifying the nature of such Default
or Event of Default, the period of existence thereof and the action that
such Borrower has taken and proposes to take with respect
thereto;
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(2)
the
institution or threatened institution of any action, suit, investigation
or proceeding against or affecting any Borrower, including any such
investigation or proceeding by any Governmental Authority (other than
routine periodic inquiries, investigations or reviews), which if adversely
determined, and after taking into account any applicable insurance
coverage, would be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect, and any material development in any
litigation or other proceeding previously reported pursuant to this
paragraph;
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(3)
the receipt by
any Borrower from any Governmental Authority of (i) any notice asserting
any failure by any Borrower to be in compliance with applicable Laws or
that threatens the taking of any action against any Borrower or sets forth
circumstances that, if taken or adversely determined, would be reasonably
likely to have a Material Adverse Effect, or (ii) any notice of any actual
or threatened suspension, limitation or revocation of, failure to renew,
or imposition of any restraining order, escrow or impoundment of funds in
connection with, any license, permit, accreditation or authorization of
any Borrower, where such action would be reasonably likely to have a
Material Adverse Effect;
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(4)
the occurrence
of any ERISA Event, together with (i) a written statement of a Responsible
Officer specifying the details of such ERISA Event and the action that
such Borrower has taken and proposes to take with respect thereto, (ii) a
copy of any notice with respect to such ERISA Event that may be required
to be filed with the PBGC, and (iii) a copy of any notice delivered by the
PBGC to such Borrower or such ERISA Affiliate with respect to such ERISA
Event;
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(5)
the occurrence
of any material default under, or any threatened termination or
cancellation received in writing of, any Material Contract, where such
material default, termination or cancellation of which would be reasonably
likely to have a Material Adverse Effect;
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(6)
the occurrence
of any of the following: (i) the assertion of any claim of any violation
of Environmental Laws against or affecting any Borrower or any of the Real
Property; (ii) the receipt by any Borrower of notice from any Governmental
Authority of any alleged violation of or noncompliance with any
Environmental Laws; or (iii) the taking of any remedial action by any
Borrower or any other Person in response to the actual or alleged
generation, storage, release, disposal or discharge of any Hazardous
Substances on, to, upon or from any of the Real Property; but in each case
under clauses (i), (ii) and (iii) above, only to the extent the same would
be reasonably likely to have a Material Adverse Effect;
and
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(7)
any other
matter or event that has, or would be reasonably likely to have, a
Material Adverse Effect, together with a written statement of a
Responsible Officer setting forth the nature and period of existence
thereof and the actions that such Borrower has taken and proposes to take
with respect thereto.
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(L)
ERISA. Each
Borrower will:
(1)
Fund all its Plans in accordance with no less than the minimum funding
standards of Section 302 of ERISA;
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(2)
Upon demand of
Bank, furnish Bank, promptly after the filing of the same, with copies of
all reports or other statements filed with the United States Department of
Labor or the Internal Revenue Service with respect to all such Plans;
and
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(3)
Promptly
advise Bank of the occurrence of any Reportable Event or Prohibited
Transaction with respect to any such
Plan.
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(M) Maintenance of
Properties. Each Borrower will maintain in good repair, working order and
condition, ordinary wear and tear excepted, all material properties used or
useful in its business of and from time to time will make or cause to be made
all appropriate repairs, renewals and replacements thereof.
44
(N) Insurance Covenants.
Each Borrower will maintain, or cause to be maintained, public liability
insurance, and fire and extended coverage insurance on all of such Borrower’s
Tangible Property, all in such form and amounts as are consistent with industry
practices and with such insurers as may be reasonably satisfactory to Bank. Any
or all insurance required by this Agreement may be maintained under one or more
blanket insurance policies. Such policies shall contain a provision whereby they
cannot be canceled except upon thirty (30) days written notice to Bank and
shall, in the case of the fire and extended coverage policies, upon and after
the execution and delivery of a Mortgage following the occurrence of a Trigger
Event, be endorsed to name Bank as loss payee/mortgagee. Each Borrower will,
upon request, furnish or cause to be furnished to Bank a Certificate of
Insurance, duly executed by the authorized agent, and other such evidence of
insurance as Bank may require. Each Borrower hereby agrees that, in the event
Borrowers fail to pay or cause to be paid the premium on any such insurance,
Bank may do so and be reimbursed by Borrowers therefor. Bank hereby acknowledges
and agrees that it has reviewed each Borrower’s insurance coverage as in effect
on the date of closing and that such insurance complies with the applicable
requirements of this Agreement.
(O) Maintaining Bank
Accounts. Each Borrower covenants and agrees that, within ninety (90)
days after the date of Closing (or with respect to any Person first becoming a
Borrower after the Closing Date, then within ninety (90) days after becoming a
Borrower), each Borrower shall establish, and shall thereafter maintain, all of
its primary Deposit Accounts and disbursement accounts except for local payroll
accounts (collectively, the “Disbursement Accounts”), only with Bank and other
banks approved by Bank (the “Approved Bank Accounts”), the current listing of
the Approved Bank Accounts being attached hereto as Schedule
7.1(O).
(P) Filing Fees and
Taxes. Each Borrower covenants and agrees to pay, or cause to be paid,
all recording and filing fees, revenue stamps, taxes and other expenses and
charges payable in connection with the execution and delivery to Bank of this
Agreement and the other Loan Documents, and the recording, filing, satisfaction,
continuation and release of any financing statements or other instruments filed
or recorded in connection herewith or therewith.
(Q) Material Contracts.
Each Borrower covenants and agrees to provide Bank with notice of (a) the
cancellation or termination of any Material Contract to which it is a party; (b)
any material amendment or other modification of any such Material Contract; (c)
any waiver of any material default or material breach of any such Material
Contract; or (d) any other action taken in connection with any such Material
Contract, if such action would give rise to a Material Adverse
Change.
(R) Underlying
Documentation. Each Borrower covenants and agrees that such Borrower
will, upon the request therefor by Bank, promptly deliver, or cause to be
delivered, to Bank copies of any or all of the Material Contracts.
(S) Delivery of Tax Clearance
Certificates. NeedleTech Products, Inc., shall deliver to the Bank on or
before October 15, 2009, a certificate issued by the department of revenue or
taxation (or similar appropriate Governmental Authority) of Massachusetts as to
the good standing of NeedleTech Products, Inc. Galt Medical Corp. shall deliver
to the Bank on or before June 30, 2009, a certificate issued by the department
of revenue or taxation (or similar appropriate Governmental Authority) of Texas
as to the good standing of Galt Medical Corp.
(T) Further Assurances.
Each Borrower covenants and agrees that, at each Borrower’s cost and expense,
upon request of Bank, each Borrower shall duly execute and deliver, or cause to
be duly executed and delivered, to Bank such further instruments and documents
and do and cause to be done such further acts as may be reasonably necessary or
proper in the opinion of Bank or its counsel to carry out more effectively the
provisions and purposes of this Agreement.
45
(A) Lines of Business. No
Borrower will engage in any business other than the Permitted Lines of
Business.
(B) Fundamental Changes.
No Borrower will change its name, enter into any merger, consolidation,
liquidation, reorganization or recapitalization, or dissolve; provided, however, that (i) any Borrower (other
than Parent) may merge or be consolidated with any other non-Parent Borrower;
(ii) any Borrower may merge with or be consolidated with Parent so long as
Parent is the surviving corporation; and (iii) a Borrower may merge or
consolidate with another Person (other than another Borrower) so long as
(x) such Borrower is the surviving corporation, and (y) such merger or
consolidation is a Permitted Acquisition.
(C) Asset Dispositions.
No Borrower will make any Asset Disposition other than Permitted Transfers of
Assets.
(D) Acquisitions. Without
the execution and delivery of the Joinder Agreements (if a stock or other equity
acquisition) and compliance with the conditions set forth in the Joinder
Agreements, no Borrower will consummate any Acquisition or enter into any
agreement with respect to any Acquisition, other than Permitted
Acquisitions.
(E) Subsidiaries. No
Borrower will, without Bank’s prior consent, create or acquire any Subsidiary in
connection with an Acquisition or otherwise, unless such Subsidiary becomes a
Borrower.
(F) Guaranties. No
Borrower will become liable, directly or indirectly, as guarantor, for any
obligation of any other Person (other than for a Borrower) in an amount
exceeding $250,000 in the aggregate.
(G) Equity Interests. No
Borrower will, without Bank’s prior written consent, issue, redeem, purchase or
retire any of its Equity Interests or grant or issue any warrant, right or
option pertaining thereto or any other security convertible into any of the
foregoing, nor otherwise permit any voluntary transfer, sale, redemption,
retirement, or other change in the ownership of any Equity Interests of such
Borrower by the owners of such Equity Interests if the same would result in a
Change in Control.
(H) Margin Stock. No
Borrower will directly or indirectly apply any part of the proceeds of the Loans
to the purchasing or carrying of any “margin stock” within the meaning of
Regulation T, Regulation U or Regulation X, or any regulations, interpretations
or rulings thereunder.
(I)
Environmental
Compliance. No Borrower will treat, store, handle, discharge, or dispose
of any Hazardous Materials, Petroleum Products, or Solid Wastes except in
material compliance with all Environmental Laws.
(J)
Accounting
Policies. No Borrower will make or permit any material changes in its
accounting policies, except as may be required or allowed by Generally Accepted
Accounting Principles.
(K) Negative Pledges.
Except with respect to (i) specific property encumbered to secure payment of
particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Disposition, and (ii) restrictions by reason of
customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses and similar agreements entered into in the
Ordinary Course of Business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or
assets subject to such leases, licenses or similar agreements, as the case may
be), no Borrower will enter into any agreement prohibiting the creation or
assumption of any Lien (other than a Permitted Lien) upon any of its properties
or assets, whether now owned or hereafter acquired.
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(L) Affiliate
Transactions. Except for agreements reflected in the Most Recent
Financial Statements, agreements currently in effect and listed on Schedule
7.2 (L) attached hereto, and agreements which provide only for either
Permitted Investments or Permitted Indebtedness, no Borrower will enter into any
agreement, transaction or series of transactions where any Affiliate (other than
a wholly owned Subsidiary that is a Borrower), shareholder, director, or officer
of such Borrower is a party thereto, except in the Ordinary Course of Business
and upon fair and reasonable terms that are no less favorable to it than would
obtain in a comparable arm’s length transaction with a Person other than an
Affiliate, Subsidiary, shareholder, director, or officer of such
Borrower.
(A) Financial Tests.
During the term of this Agreement, Borrowers will maintain or cause to be
maintained, on a consolidated basis, tested as of the end of each fiscal
quarter:
(1)
A ratio of Senior Liabilities to Tangible Net Worth of not more than 1.5
to 1.0;
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(2)
Fixed Charge Coverage Ratio of not less than 1.25 to
1.0;
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(3)
Liquid Assets at all times of not less than
$10,000,000.00;
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(4)
Borrowers will not make, incur, create, or assume any Capital Expenditures
(other than (i) Special NeedleTech Capital Expenditures and (ii) that
portion of Permitted Acquisitions consisting of Capital Expenditures)
exceeding $10,000,000 on a cumulative basis for all Borrowers in any
fiscal year.
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(B) Investments. Without the prior written
consent of the Bank, no Borrower will make any Investment other than Permitted
Investments.
(C) Indebtedness. Without the prior
written consent of the Bank, no Borrower will incur, create, assume, or permit
to exist any Indebtedness except Permitted Indebtedness.
(A) Effective
as of the occurrence of any Trigger Event and upon the giving of a Trigger Event
Notice, and without any other action being required by any Person, as security
for the prompt satisfaction of all Obligations, each Borrower hereby assigns,
transfers and sets over to Bank all of such Borrower’s Interest in and to, and
grants Bank a Lien on, upon and in the Collateral.
(B) No
submission by any Borrower to Bank of a schedule or other particular
identification of Collateral shall be necessary to vest in Bank security title
to and a security interest in each and every item of Collateral now existing or
hereafter created and acquired, but rather such title and security interest
shall vest in Bank immediately upon the creation or acquisition or any item of
Collateral hereafter created or acquired, without the necessity for any other or
further action by any Borrower or by Bank.
47
(C) Notwithstanding
anything to the contrary contained in this Agreement, in no event shall the
security interest granted under Article VIII or under any other Loan Document
attach to, or the term “Collateral” be deemed to include, (a) any lease,
Assigned Agreement, license, contract, property rights or agreement to which any
Borrower is a party or any of its rights or interests thereunder if, and for so
long as, the grant of such security interest shall constitute or result in (i)
the abandonment, invalidation or unenforceability of any right, title or
interest of any Borrower therein or (ii) a breach or termination pursuant to the
terms of, or a default under, any such Document, lease, Assigned Agreement or
other license, contract, property rights or agreement or the violation of any
applicable law (other than to the extent that any such term would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any
successor provision or provisions) of any relevant jurisdiction or any other
applicable law (including the Bankruptcy Code) or principles of equity);
provided, however that such security interest shall attach immediately at such
time as the condition causing such abandonment, invalidation or unenforceability
shall be remedied and to the extent severable, shall attach immediately to any
portion of such lease, Assigned Agreement or other license, contract, property
rights or agreement that does not result in any of the consequences specified in
(i) or (ii) above; provided further, however, that upon and after the occurrence
of any Trigger Event, and upon demand of Bank, each Borrower will use
commercially reasonable efforts to obtain any consent from any Person a party to
any such lease, license, contract or other agreement as Bank deems reasonably
necessary to cause such property to be included within the
Collateral.
(A) Effective
as of the occurrence of any Trigger Event and upon the giving of a Trigger Event
Notice, and without any other action being required by any Person, each Borrower
authorizes Bank to file one or more Financing Statements (including initial
financing statements and continuation and amendment statements) to perfect
Bank’s Lien in the Collateral pursuant to the Uniform Commercial Code, such
Financing Statements to be in form and substance as required by Bank. Bank
agrees to provide Borrower with a copy of any Financing Statements filed by
Bank.
(B) Upon
the occurrence of a Trigger Event and upon the giving of a Trigger Event Notice,
in connection with Bank’s Lien, each Borrower will:
(1)
Execute and deliver, and cause to be executed and delivered, such
documents and instruments, including amendments to the Security Documents
and Financing Statements (including amendments thereto and continuation
statements thereof) in form satisfactory to Bank as Bank, from time to
time, may specify, and pay, or reimburse Bank upon demand for paying, all
costs and taxes of filing or recording the same in such Jurisdictions as
Bank may designate; and
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(2) Take
such other steps as Bank, from time to time, may direct to protect,
perfect, and maintain Bank’s
Lien.
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48
(A) A Mortgage,
together with the following:
(1)
Evidence that such Mortgage has been duly recorded in all filing or
recording offices that Bank may deem necessary or desirable in order to
create a valid first Lien on the Mortgaged Property in favor of Bank and
that all filing and recording taxes and fees have been
paid;
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(2)
A Title Insurance Policy with respect to each parcel of Mortgaged
Property, with endorsements as required by Bank and in an amount
acceptable to Bank, issued, coinsured and reinsured by a Title Insurance
Company, insuring the applicable Mortgage to be a valid first Lien on the
applicable Mortgaged Property, free and clear of all Liens (including, but
not limited to, mechanics’ and materialman’s Liens), excepting only
Permitted Liens and other Liens approved by Bank in its discretion, and
providing for such other affirmative insurance and such coinsurance and
direct access reinsurance as Bank may deem necessary or
desirable;
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(3)
To the extent obtainable by Borrowers after using commercially reasonable
efforts, such consents and agreements of lessors, lessees, and other Third
Parties, and such estoppel letters and other confirmations, as Bank may
deem necessary or desirable;
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(4)
Evidence that all other action that Bank may deem necessary or
desirable in order to create a valid first Lien on the Mortgaged Property
has been taken;
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(B) An Assignment of
Rents, together with evidence that such Assignment of Rents has been duly
recorded in all filing or recording offices that Bank may deem necessary or
desirable in order to create a valid Lien on the property described therein in
favor of Bank and that all filing and recording taxes and fees have been
paid;
(C) Financing
Statements with respect to the Mortgaged Property, together with evidence that
such Financing Statements have been duly recorded in all filing or recording
offices that Bank may deem necessary or desirable in order to create a valid
Lien on the Mortgaged Property described therein, and that all filing and
recording taxes and fees have been paid;
(D) Written opinions of
counsel to Borrowers as to the due execution, authorization, delivery and
enforceability of the Mortgage, dated as of the date of the Mortgage and
addressed to Bank, in form and substance acceptable to Bank;
(E) UCC-11 reports
showing no Liens superior to Bank’s Lien in the Mortgaged Property, except for
the Permitted Liens;
(F) Evidence
satisfactory to Bank that such Borrower has obtained, or caused to be obtained,
all insurance policies with respect to the Mortgaged Property as required under
this Agreement and/or any of the other Loan Documents, together with evidence
satisfactory to Bank that all premiums therefor have been paid and that all such
policies are in full force and effect;
(G) A survey of the
Mortgaged Property acceptable to Bank, certified to Bank and the Title Insurance
Company in a manner satisfactory to Bank by a land surveyor duly registered and
licensed in the state in which the Mortgaged Property is located and acceptable
to Bank, and either (i) evidence satisfactory to Bank that none of the
Mortgaged Property is located in a flood hazard area, or (ii) a flood
insurance policy satisfactory to Bank;
49
(H) If
required by Bank, an appraisal of the Mortgaged Property, made at each
Borrower’s expense, which must be by an M.A.I. appraiser engaged and approved by
Bank, and must be in form and substance satisfactory to Bank and meeting the
requirements of Bank; and
(I)
Except as may be waived by Bank (which waiver may be
conditioned upon the execution and delivery of an environmental questionnaire
reflecting no environmental conditions reasonably unacceptable to Bank), an
environmental/hazardous substances survey and report with respect to the
Mortgaged Property, as reasonably approved by Bank, and reports and
certifications in such form and from such Person(s) as Bank may reasonably
require.
(A) Subject
to its right to make Permitted Transfers of Assets, each Borrower shall be and
remain the owner of all real estate on which any of the Collateral is located;
or if not, except as otherwise agreed to by Bank, such Borrower shall use
commercially reasonable efforts to obtain from each owner of said real estate a
written waiver or subordination (in form and substance satisfactory to Bank) of
any landlord’s Lien or other Lien said owner might have with respect to the
Collateral, and such Borrower shall deliver the same to Bank.
(B) Upon
request of Bank, each Borrower shall promptly deliver to Bank the certificates
of title for any motor vehicles now or hereafter included in the Collateral that
are subject to the title Laws of any state of the United States of America or
any other Jurisdiction and shall join with Bank in executing any applications
and other documents and taking any other actions necessary or desirable in
Bank’s opinion to perfect Bank’s Lien in such vehicles. Bank may retain
possession of such certificates of title until payment in full of all the
Obligations and/or until Bank’s Lien on such motor vehicle is
terminated.
50
(C) Each Borrower shall
furnish to Bank from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as Bank may reasonably request, all in reasonable
detail.
(D) Each Borrower shall
keep and maintain at its own cost and expense satisfactory and complete Records
of the Collateral at its principal place of business, and, to the extent
necessary to perfect, protect and maintain Bank’s Xxxx, xxxx the Collateral with
Bank’s name or in such other manner as shall be reasonably satisfactory to Bank.
After the occurrence of and during the continuance of any Event of Default, each
Borrower shall deliver copies of such Records to Bank at any time on demand of
Bank.
(E) Each Borrower shall
provide Bank with copies of all agreements between such Borrower and any
warehouse at which any Collateral may, from time to time, be kept and all lease
or similar agreements between such Borrower and any other Person, whether such
Borrower is lessor or lessee thereunder.
(F) Upon any Borrower’s
receipt of any Collateral which is evidenced or secured by an Instrument,
Document or Chattel Paper and upon demand of Bank, such Borrower shall deliver
the original thereof (or each executed or original counterpart if more than one)
in such Borrower’s possession to Bank, together with appropriate endorsements
and/or assignments in form and substance acceptable to Bank.
9.
DEFAULT
(A) Any Borrower shall
fail to pay as and when due (i) any installment of interest or fee or any
other amount payable under this Agreement or any Note, or any other Obligations,
and such failure is not cured within five (5) days, or (ii) any installment of
principal payable under this Agreement or such Note or such other Obligations;
provided, however, that the failure to pay any Obligations consisting of Hedging
Obligations shall not be an Event of Default hereunder unless and until the same
constitutes an “Event of Default” under such Hedging Contract.
(B) Any Borrower shall
fail to pay, perform or observe any other obligation, condition, or covenant to
be observed or performed by it under this Agreement or any other Loan Document,
and such failure shall continue for thirty (30) days or ten (10) days, in the
case of any covenant contained in Sections 7.2 or 7.3 hereof after the
earlier of:
(1) Notice
of such failure from Bank; or
(2)
Bank is notified of such failure or should have been so notified pursuant to the
provisions of this Agreement or any other Loan Document.
(C) There shall occur
any Event of Default as defined and provided under any other Loan Document or
any Event of Default as defined and provided under any Hedging
Contract.
51
(D) The validity or
enforceability of this Agreement or any other Loan Document shall be contested
by any Borrower, and/or any Borrower shall deny that it has any or further
liability or obligation hereunder or thereunder.
(E) Assignment or
attempted assignment by Borrower of this Agreement, any rights hereunder, or any
Advance to be made hereunder.
(F) The transfer of any
Borrower’s interest in, or rights under, this Agreement by operation of law or
otherwise, including, without limitation, such transfer by any Borrower as
debtor in possession under the Bankruptcy Code, or by a trustee for any Borrower
under the Bankruptcy Code, to any Person, whether or not the obligations of such
Borrower under this Agreement are assumed by such Person.
(G) The dissolution of
any Borrower, or any Change in Control.
(H) Any financial
statement, representation, warranty or certificate made or furnished by any
Borrower to Bank in connection with this Agreement, or as inducement to Bank to
enter into this Agreement, or in any separate statement or document to be
delivered hereunder to Bank, shall be materially false, incorrect, or incomplete
when made.
(I) Any Borrower
shall admit its inability to pay its debts as they mature, or shall make an
assignment for the benefit of itself or any of its creditors.
(J) Proceedings
in Bankruptcy, or for reorganization of any Borrower, or for the readjustment of
any of its debts, under the Bankruptcy Code, as amended, or any part thereof, or
under any other Laws, whether state or federal, for the relief of debtors, now
or hereafter existing, shall be commenced by any Borrower, or shall be commenced
against any Borrower, and in the latter instance, such proceedings are not
discharged within sixty (60) days.
(K) A receiver or
trustee shall be appointed for any Borrower or for any substantial part of its
assets, or any proceedings shall be instituted for the dissolution or the full
or partial liquidation of any Borrower, and such receiver or trustee shall not
be discharged within thirty (30) days of his appointment, or such proceedings
shall not be discharged within sixty (60) days of its commencement, or Borrower
shall discontinue business or materially change the nature of its
business.
(L) If any Borrower
shall not be Solvent at the time of the filing of any Financing Statement or
recordation of any Mortgage as provided under this Agreement.
Provided
that with respect to each of the foregoing, an Event of Default will be deemed
to have occurred upon the occurrence of the applicable event without notice
being required if Bank is prevented from giving notice by Bankruptcy or other
applicable Law.
52
(A)
To cancel Bank’s obligations arising under this Agreement;
(B) To institute
appropriate proceedings to specifically enforce performance of the terms and
conditions of this Agreement;
(C) To take immediate
possession of the Collateral;
(D) To appoint or seek
appointment of a receiver, Without Notice and without regard to the solvency of
any Borrower or the adequacy of the security, for the purpose of preserving the
Collateral, preventing waste, and to protect all rights accruing to Bank by
virtue of this Agreement and the other Loan Documents. All expenses incurred in
connection with the appointment of such receiver, or in protecting, preserving,
or improving the Collateral, shall be charged against the Borrowers and shall be
secured by Bank’s Lien;
(E) To proceed to
perform any and all of the duties and obligations and exercise all the rights
and remedies of any Borrower contained in the Assigned Agreements as fully as
such Borrower could itself;
(F) To notify
Purchasers that Accounts have been assigned to Bank, demand and receive
information from Purchasers with respect to Accounts, forward invoices to
Purchasers directing them to make payments to Bank, collect all Accounts in
Bank’s or any Borrower’s name and take control of any cash or non-cash proceeds
of Collateral;
(G) To enforce payment
of any Accounts, to prosecute any action or proceeding with respect to Accounts,
to extend the time of payment of any and all Accounts, to make allowances and
adjustments with respect thereto and to issue credits in the name of Bank or any
Borrower;
(H) To settle,
compromise, extend, renew, release, terminate or discharge, in whole or in part,
any Account or deal with the same as Bank may deem advisable;
(I) To require
each Borrower to open all mail only in the presence of a representative of Bank,
who may take therefrom any remittance on Collateral;
(J) To charge,
set-off and otherwise apply all or any part of the Obligations against the
Deposit Accounts, or any part thereof;
(K) To exercise any and
all rights and remedies of any Borrower under or in connection with any Assigned
Agreement or otherwise in respect of the Collateral, including, without
limitation, any and all rights of any Borrower to demand or otherwise require
payment of any amount under, or performance of any provision of, any Assigned
Agreement;
53
(L) To
enter upon the premises of any Borrower or any other place or places where the
Collateral is located and kept, and through self-help and without judicial
process, without first obtaining a final judgment or giving any Borrower notice
and opportunity for a hearing on the validity of Bank’s claim, without any
pre-seizure hearing as a condition to repossession through court action and
without any obligation to pay rent to any Borrower, to remove the Collateral
therefrom to the premises of Bank or of any agent of Bank, for such time as Bank
may desire, in order effectively to collect or liquidate the
Collateral;
(M) To
require each Borrower, upon the request of Bank, to assemble the Inventory,
Equipment and any other property included in the Collateral and make it
available to Bank at places which Bank shall select, whether at any Borrower’s
premises or elsewhere, and to make available to Bank all of each Borrower’s
premises and facilities for the purpose of Bank’s taking possession of, removing
or putting the Inventory and such other goods in salable form;
(N) To
collect, receive, appropriate, repossess and realize upon the Collateral, or any
part thereof, and to sell, lease, assign, give option or options to purchase, or
sell or otherwise dispose of and deliver the Collateral (or contract to do so),
or any part thereof, in one or more parcels, at public or private sale or sales,
at any exchange broker’s board or at any of Bank’s offices or elsewhere, at such
prices as Bank may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. Bank shall have the right upon any such
public sale or sales, and to the extent permitted by Law, to purchase the whole
or any part of the Collateral so sold, free of any right or equity of
redemption, which equity of redemption each Borrower hereby releases. Each
Borrower waives all claims, damages, and demands against Bank arising out of the
repossession, retention or sale of the Collateral;
(O) To
use, and to permit any purchaser of any of the Collateral from Bank to use
without charge, any Borrower’s labels, General Intangibles, and advertising
matter or any property of a similar nature, as it pertains to, or is included
in, any of the Collateral, in advertising for sale, preparing for sale and
selling any Collateral, and finishing the manufacture, processing, fabrication,
packaging and delivery of the Inventory, and each Borrower’s rights under all
licenses and all franchise agreements shall inure to Bank’s
benefit;
(P) To
send any written notice to any Borrower required by Law or this Agreement in the
manner set forth in this Agreement; and any notice sent by Bank in such manner
at least ten (10) Business Days (counting the date of sending) prior to the date
of a proposed disposition of the Collateral shall be deemed to be reasonable
notice (provided, however, that nothing contained herein shall be deemed to
require 10 days’ notice if, under the applicable circumstances, a shorter period
of time would be allowed under applicable Law);
(Q) After
execution and delivery to Bank of the Mortgage and the Assignment of Rents, to
take possession of the Mortgaged Property and/or the Rents and have, hold,
manage, lease and operate the Mortgaged Property on such terms and for such
period of time as Bank may in its discretion deem proper, and, either with or
without taking possession of the Mortgaged Property in Bank’s own
name:
(1)
Make any payment or perform any act which any Borrower has failed to make
or perform, in such manner and to such extent as Bank may deem necessary
to protect the security provided for in this Agreement, or otherwise,
including without limitation, the right to appear in and defend any action
or proceeding purporting to affect the security provided for in this
Agreement, or the rights or powers of
Bank;
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54
(2)
Lease the Mortgaged Property or any portion thereof in such manner and for
such Rents as Bank shall determine in its discretion;
or
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(3)
Demand, xxx for, or otherwise collect and receive from all Persons all
Rents, including those past due and unpaid, with full power to make from
time to time all alterations, renovations, repairs or replacements of and
to the Mortgaged Property (or any part thereof) as may seem proper to Bank
and to apply the Rents to the payment of (in such order of priority as
Bank, in its discretion, may
determine):
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(a) All
expenses of managing the Mortgaged Property, including, without
limitation, the salaries, fees and wages of a managing agent and such
other employees as Bank may deem necessary or
desirable;
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(b) All
taxes, charges, claims, assessments, water rents, sewer rents, and any
other liens, and premiums for all insurance which Bank may deem necessary
or desirable, and the cost of all alterations, renovations, repairs, or
replacements, and all expenses incidental to taking and retaining
possession of the Mortgaged Property;
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(c) All
or any portion of any Loan; and/or
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(d) All
costs and Attorneys’ Fees incurred in connection
therewith.
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In
connection with the foregoing, each Borrower hereby authorizes and directs each
party to any Assigned Lease (other than such Borrower), upon receipt from Bank
of written notice to the effect that an Event of Default exists, to perform all
of its obligations under the Assigned Lease as directed by Bank, and to continue
to do as so directed until otherwise notified by Bank.
55
(A) To take or to
bring, in the name of Bank or in the name of each or any Borrower, all steps,
action, suits or proceeding deemed by Bank necessary or desirable to effect
collection of the Accounts;
(B) To settle, adjust,
compromise, extend, renew, discharge, terminate or release the Accounts in whole
or in part;
(C) To settle, adjust
or compromise any legal proceedings brought to collect the
Accounts;
(D) To notify
Purchasers to make payments on the Accounts directly to Bank or to a lockbox
designated by Bank;
(E) To transmit to
Purchasers notice of Bank’s interest in the Accounts and to demand and receive
from such Purchasers at any time, in the name of Bank or of each or any Borrower
or of the designee of Bank, information concerning the Accounts and the amounts
owing thereon;
(F) To use each or any
Borrower’s stationery and sign the name of each or any Borrower to verifications
of the Accounts and notices thereof to Purchasers;
(G) To sell or assign
any of the Collateral upon such terms, for such amounts and at such time or
times as Bank deems advisable, and to execute any bills of sale or assignments
in the name of each or any Borrower in relation thereto;
56
(H) To take control, in
any manner, of any item of payment on, or proceeds of, Collateral;
(I) To prepare,
file and sign each or any Borrower’s name on any proof of claim in Bankruptcy or
similar document against any Purchaser;
(J) To prepare,
file and sign each or any Borrower’s name on any notice of lien, assignment or
satisfaction of lien or similar document in connection with the
Collateral;
(K) To sign or endorse
the name of each or any Borrower upon any Chattel Paper, Document, Instrument,
invoice, freight xxxx, xxxx of lading, warehouse receipt or similar document or
agreement relating to the Collateral;
(L) To use the
information recorded on or contained in any data processing equipment and
computer hardware and software relating to the Collateral to which each or any
Borrower has access;
(M) To enter into
contracts or agreements for the processing, fabrication, packaging and delivery
of the Collateral as said attorney-in-fact or designee or Bank may from time to
time deem appropriate and charge each or any Borrower’s account for any costs
thereby incurred;
(N) To receive, take,
endorse, assign and deliver in Bank’s name or in the name of each or any
Borrower any and all checks, notes, drafts and other instruments;
(O) To receive, open
and dispose of all mail addressed to each or any Borrower and to notify postal
authorities to change the address for the delivery thereof to such address as
Bank may designate; and
(P) To do all acts and
things necessary, in Bank’s discretion, to fulfill each or any Borrower’s
obligations under this Agreement and to otherwise carry out the purposes of this
Agreement.
57
58
59
60
61
(A) If to
Parent or any Borrower:
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c/o
Theragenics Corporation
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0000
Xxxxxxx Xxxxxxxxxx Xxx
|
Xxxxxx,
Xxxxxxx 00000
|
Attention: Xx.
Xxxxxxx X. Xxxxxxx
|
Facsimile
#(000) 000-0000
|
with copies
to:
|
Xxxxxx
X. Xxxxxxxx, Esq.
|
Xxxxx
Xxxx LLP
|
One
Atlantic Center
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0000
X. Xxxxxxxxx Xxxxxx XX
|
00xx
Xxxxx
|
Xxxxxxx,
Xxxxxxx 00000
|
Facsimile
#(000) 000-0000
|
(B)
If to
Bank:
|
Wachovia
Bank
|
000
00xx Xxxxxx, X.X., 0xx Xxxxx
|
XX
XX0000
|
Xxxxxxx,
Xxxxxxx 00000
|
Facsimile
#(000) 000-0000
|
Attn:
Xxxxxx Xxxxxxx
|
with a copy
to:
|
Xx
Xxxx, Esq.
|
Xxxx
& Xxxxxx LLP
|
000
00xx Xxxxxx X.X., 00xx Xxxxx
|
Xxxxxxx,
Xxxxxxx 00000
|
Facsimile
#(000)
000-0000
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11.2 Governing Law.
This Agreement is entered into and performable in Xxxxxx County, Georgia, and
the substantive Laws, without giving effect to principles of conflict of laws,
of the United States and the State of Georgia shall govern the construction of
this Agreement and the documents executed and delivered pursuant hereto, and the
rights and remedies of the parties hereto and thereto, except to the extent that
the Uniform Commercial Code or other applicable Law requires that the
perfection, the effect of perfection or non-perfection, the priority of Bank’s
Lien under the Loan Documents, or the enforcement of certain of Bank’s remedies
with respect to the Collateral, be governed by the Laws of another
Jurisdiction.
(A) EACH
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
62
(1)
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF GEORGIA. THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND APPELLATE COURTS FROM
ANY THEREOF;
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(2)
CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS,
AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
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(3)
AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE
EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO PARENT AT ITS
ADDRESS SET FORTH IN THIS AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH BANK
SHALL HAVE BEEN NOTIFIED PURSUANT THERETO; AND
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(4)
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO
XXX IN ANY OTHER JURISDICTION.
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(B)
EACH BORROWER AND BANK
HEREBY:
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(1)
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER ARISING
DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS AGREEMENT, THE
NOTES, ANY OF THE OTHER LOAN DOCUMENTS OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH OR THEREWITH; AND
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(2)
AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT
AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED FOR AGREEMENT
BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY
DISPUTE OR CONTROVERSY OF ANY KIND WHATSOEVER BETWEEN THEM SHALL INSTEAD
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
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* * * *
*
63
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
duly authorized representatives as of the day and year first above
written.
BORROWERS
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|||
THERAGENICS
CORPORATION
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|||
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
||
Its:
|
Chief
Financial Officer
|
||
C.P.
MEDICAL CORPORATION
|
|||
By:
|
/s/
Xxxx X. Xxxxxx
|
||
Its:
|
Treasurer
|
||
GALT
MEDICAL CORP.
|
|||
By:
|
/s/
Xxxx X. Xxxxxx
|
||
Its:
|
Treasurer
|
||
NEEDLETECH
PRODUCTS, INC.,
|
|||
By:
|
/s/
Xxxx X. Xxxxxx
|
||
Its:
|
Treasurer
|
||
BANK:
|
|||
WACHOVIA BANK, NATIONAL
ASSOCIATION,
successor
by merger to SouthTrust Bank
|
|||
By:
|
/s/
Xxx Xxxxxxx
|
||
Xxx
Xxxxxxx. Senior Vice
President
|
64
EXHIBIT
A
FORM
OF COMPLIANCE CERTIFICATE
COMPLIANCE
CERTIFICATE
FOR
THE PERIOD ENDING _______________
To:
|
Wachovia
Bank, National Association
|
||
171
17th St., 5th Floor
|
|||
MC
4507
|
|||
Xxxxxxx,
XX 00000
|
|||
Attn: _______________
|
Pursuant
to that certain Amended and Restated Credit Agreement, dated as of May 27, 2009
(as amended from time to time, the “Credit Agreement”, capitalized terms used
herein as therein defined), among THERAGENICS CORPORATION, a
Delaware corporation and the other “Borrowers” thereto (collectively, the
“Borrower”), and WACHOVIA BANK,
NATIONAL ASSOCIATION (the “Bank”), the undersigned submits this
Compliance Certificate and certifies that the covenants and financial tests
described in the Credit Agreement are as follows:
I.
|
Financial Statements and
Reports
|
Compliance
|
|
(Please
Indicate)
|
|||
A.
|
Annual
CPA audited, Fiscal Year-End financial
|
||
statements
within 120 days after each Fiscal Year-End
|
Yes No
|
||
B.
|
Quarterly
unaudited financial statements within 45 days
|
||
after
each Quarter-End
|
Yes No
|
||
II.
|
Senior Liabilities to Tangible Net
Worth
|
||
Maximum
of 1.5 to 1.0 allowed.
|
|||
As
of the Quarter ending _______________
|
$_________
|
/$__________
= ________
|
Yes No
|
|
Senior
Liabilities
|
TNW
Ratio
|
III.
|
Fixed Charge Coverage Ratio
|
|
Minimum
of 1.25 to 1.0 allowed.
|
||
As
of the Quarter ending _______________
|
$____________
|
/$____________
|
=
____________
|
Yes
|
No
|
the
sum of (i) EBITDA for such period, plus (ii) rent and lease
expense, solely to the extent deducted in the calculation of net earnings,
plus (iii) recognized share-based compensation expense, solely to the
extent deducted in the calculation of net earnings, plus (iv) one-time
non-cash charges, solely to the extent deducted in the calculation of net
earnings, including, without limitation, those related to Permitted
Acquisitions, plus (v) for covenant calculations for periods ending prior
to December 31, 2009, the non-cash goodwill and tradename impairment
charges totaling $70,376,492, recorded in the fourth quarter of 2008, plus
(vi) non-cash expenses for fair value adjustments related to interest rate
swaps, minus (vii) non-cash gains for fair value adjustments related to
interest rate swaps, minus (viii) Capital Expenditures which are not
expended as part of Permitted Acquisitions, minus (x) the Special
NeedleTech Capital Expenditures, minus (x) Restricted
Payments
|
Fixed
Charges
|
Ratio
|
IV.
|
Liquid Assets
|
||
Minimum
of $10,000,000 required
|
|||
Actual
Liquid Assets for this
|
|||
reporting
period equals $_____________
|
Yes No
|
||
V.
|
Capital Expenditures
|
||
Maximum
of $10,000,000 per fiscal year
|
|||
Actual
Capital Expenditures for this
|
|||
reporting
period equals $_____________
|
Yes No
|
||
VI.
|
Acquisitions
|
||
Maximum
$7,500,000 during life of Loans
|
|||
Actual
cumulative amount of Acquisitions
|
|||
equals
$_____________
|
Yes No
|
||
VII.
|
Purchase Money Debt
|
||
Maximum
$1,000,000 per fiscal year
|
|||
Actual
cumulative purchase money debt for
|
|||
subject
fiscal year equals $_____________
|
Yes No
|
A. The
undersigned has individually reviewed the provisions of the Credit Agreement and
a review of the activities of Borrower during the period covered by this
Compliance Certificate has been made in reasonable detail by or under the
supervision of the undersigned with a view to determining whether Borrower has
kept, observed, performed and fulfilled all of its obligations under the Credit
Agreement.
A-2
B. Such
review did not disclose, and I have no knowledge of, the existence of any
Default or Event of Default which has occurred and is continuing [except as
disclosed on the attachment hereto].
Executed
this ______ day of __________________, 20___.
THERAGENICS
CORPORATION
|
|||
By:
|
A-3
EXHIBIT
B
FORM
OF CREDIT AGREEMENT JOINDER AGREEMENT
THIS
CREDIT AGREEMENT JOINDER AGREEMENT (this “Agreement”) is made as of
__________________, 20_____, among Theragenics Corporation, a Delaware
corporation, C.P. Medical Corporation, a Delaware corporation, Galt Medical
Corp., a Texas corporation [and] NeedleTech Products, Inc., a Massachusetts
corporation [and list and previous Additional Borrowers] (collectively, the
“Existing Borrowers”) and ________________________________, a
_______________________________ (the “Additional Borrower”) and Wachovia Bank,
National Association, successor by merger to SouthTrust Bank (the
“Bank”);
W I T N E
S S E T H
WHEREAS,
the Bank and the Existing Borrowers are parties to that certain Amended and
Restated Credit Agreement dated as of May 27, 2009 (as amended, restated,
supplemented, extended or otherwise modified from time to time, the “Credit
Agreement”; unless otherwise defined herein, all capitalized terms shall have
the meanings given in the Credit Agreement), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Bank to the
Existing Borrowers;
WHEREAS,
Theragenics Corporation has agreed to purchase all of the issued and outstanding
capital stock of the Additional Borrower and, as result thereof, the Existing
Borrowers and the Additional Borrower are required by the terms of the Credit
Agreement to execute this Agreement in order for the Additional Borrower to
become a party to the Credit Agreement; and
WHEREAS,
in consideration of the Bank’s commitment to make the credit facilities under
the Credit Agreement available to the Existing Borrowers and the Additional
Borrower, and in consideration of the support that the Existing Borrowers have
provided and may in the future provide to the Additional Borrower, each of the
parties hereto is willing to execute and deliver this Agreement to provide for
the Additional Borrower to become a “Borrower” under the Credit Agreement and to
amend certain provisions of the Credit Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Joinder of Additional
Borrower as a Borrower under the Credit Agreement. The Additional
Borrower hereby becomes a party to the Credit Agreement and agrees to become
obligated and liable as a Borrower under and as defined in the Credit Agreement
for the payment and performance of all of the Obligations and agrees that each
of the representations, warranties, covenants, waivers and each of the other
terms and provisions of the Credit Agreement (as amended hereby) shall be the
valid and binding obligations of the Additional Borrower as if the Additional
Borrower had executed and delivered the same on the date of the Credit Agreement
(except that representations and warranties of Additional Borrower shall be
deemed initially made as of the effective date of this Agreement), the Credit
Agreement being incorporated herein by reference. In furtherance thereof, the
Additional Borrower hereby restates in part, and confirms that it is bound by
the provisions of, Section 8.1(A) of the Credit Agreement. Effective as of the
occurrence of any Trigger Event and upon the giving of a Trigger Event Notice,
and without any other action being required by any Person, as security for the
prompt satisfaction of all Obligations, the Additional Borrower hereby assigns,
transfers and sets over to Bank all of the Additional Borrower’s Interest in and
to, and grants Bank a Lien on, upon and in the Collateral, all upon the terms
and subject to the conditions and limitations set forth in the Credit
Agreement.
SECTION
2. Notices. All
notices, requests and other communications to any party hereunder or under the
Credit Agreement shall be given or made in accordance with the provisions of
Section 11.1 of the Credit Agreement and the address for the Additional Borrower
for such notices under Section 11.1 shall be its address provided under its
signature below.
SECTION
3. Conditions
Precedent. This Agreement shall (a) become effective upon the
occurrence of each of the following: (i) execution and delivery to the Bank of
(1) this Agreement by each party hereto, a Term Loan Note Joinder Agreement by
Additional Borrower, Existing Borrowers and Bank substantially in the form of
Exhibit D to the Credit Agreement, (2) a Revolver Loan Note Joinder Agreement by
Additional Borrower, Existing Borrowers and Bank substantially in the form of
Exhibit C to the Credit Agreement, (3) a Borrower’s Closing Certificate from the
Additional Borrower, (4) a certificate of an officer of the Additional Borrower
certifying as to the incumbency and signatures of such officer of the Additional
Borrower signing, as applicable, this Agreement and any other Loan Documents
executed on the date hereof, (5) a written opinion of counsel to the Additional
Borrower, dated as of the date of this Agreement and addressed to Bank, in form
and substance acceptable to Bank with respect to this Agreement [and the
consummation of the transactions (the “Stock Purchase”) contemplated by the
Stock Purchase Agreement (defined below)]; and (ii) delivery to the
Bank of (1) a copy of the resolutions of the Additional Borrower’s board of
directors authorizing the execution, delivery and performance of this Agreement,
the Revolver Loan Note Joinder Agreement, the Term Loan Note Joinder Agreement
and any other Loan Document executed by the Additional Borrower on the date
hereof, (2) a copy, certified as of the most recent date practicable by the
secretary of state (or similar Governmental Authority) of the state, province,
or other Jurisdiction where the Additional Borrower is organized, of the
Additional Borrower’s Organizational Documents filed with such secretary of
state (or similar Governmental Authority), (3) a copy of the Additional
Borrower’s other Organizational Documents, (4) a certificate, as of the most
recent date practicable, of the secretary of state (or similar appropriate
Governmental Authority) of each Jurisdiction in which the Additional Borrower is
organized as to the existence and good standing of the Additional Borrower
within such Jurisdiction (unless such Governmental authorities do not issue such
certificates of existence and/or good standing), and a certificate, as of the
most recent date practicable, of the secretary of state (or similar appropriate
Governmental Authority) of each state where any of the Collateral of the
Additional Borrower is located as to the qualification and good standing of the
Additional Borrower as a foreign entity doing business in each such state
(unless such Governmental Authorities do not issue such certificates of
existence and/or good standing), (5) lien search reports showing no Liens,
except for the Permitted Liens, against the assets of, or the stock issued by,
the Additional Borrower, (6) evidence satisfactory to Bank that the Additional
Borrower has obtained all insurance policies as required under the Credit
Agreement, together with evidence satisfactory to Bank that all premiums
therefor have been paid and that all such policies are in full force and effect,
[(7) an executed copy of the Stock Purchase Agreement (and all exhibits,
schedules and amendments thereto) between Theragenics Corporation and the owners
of the capital stock of the Additional Borrower (the “Stock Purchase
Agreement”),] and (8) receipt and approval by Bank of any other items reasonably
required to be provided to Bank, and not otherwise set forth above, and (b)
after becoming effective, be deemed to be executed and delivered simultaneously
with the consummation of the Stock Purchase.
SECTION
4. Exhibits and Schedules to
the Credit Agreement; Representations and Warranties; Ratification and
Confirmation of Loan Documents. (a) Certain
Schedules to the Credit Agreement are amended and restated as set forth on
Exhibit A attached to this Agreement after giving effect to the Stock
Purchase and the terms of this Agreement.
(b) The
Existing Borrowers represent and warrant to Bank that all representations and
warranties given by the Existing Borrowers in the Credit Agreement, are true and
correct as of the date hereof in all material respects. The Existing
Borrowers represent and warrant to Bank that the Existing Borrowers are in full
compliance with all of the covenants of the Existing Borrowers contained in the
Credit Agreement.
B-2
(c) The
Additional Borrower represents and warrants to Bank that all representations and
warranties given by the Additional Borrower in the Credit Agreement, are true
and correct as of the date hereof in all material respects (except to the extent
such representations and warranties expressly relate solely to an earlier date,
in which case such representations and warranties shall have been true and
accurate on and as of such date, and except for changes in factual circumstances
specifically permitted under the Credit Agreement). The Additional
Borrower represents and warrants to Bank that the Additional Borrower is in full
compliance with all of the covenants of the Additional Borrower contained in the
Credit Agreement.
(d) Except
as heretofore or herein expressly modified, or as may otherwise be inconsistent
with the terms of this Agreement (in which case the terms and conditions of this
Agreement shall govern), all terms of the Credit Agreement, as amended, and all
documents and instruments executed and delivered in furtherance thereof shall be
and remain in full force and effect, and the same are hereby ratified and
confirmed in all respects. Borrower agrees to pay directly, or reimburse Bank
for, all expenses, including the fees and expenses of legal counsel actually
incurred by Bank in connection with the preparation of the documentation to
evidence this Agreement.
SECTION 5. Miscellaneous. (a)
This Agreement is entered into and performable in Xxxxxx County, Georgia, and
the substantive Laws, without giving effect to principles of conflict of laws,
of the United States and the State of Georgia shall govern the construction of
this Agreement and the documents executed and delivered pursuant hereto, and the
rights and remedies of the parties hereto and thereto, except to the extent that
the Uniform Commercial Code or other applicable Law requires that the
perfection, the effect of perfection or non-perfection, the priority of Bank’s
Lien (if any) under the Loan Documents, or the enforcement of certain of Bank’s
remedies with respect to the Collateral, be governed by the Laws of another
Jurisdiction.
(b) If
any provision of this Agreement shall be held invalid under any applicable Laws,
such invalidity shall not affect any other provision of this Agreement or such
other instrument or agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
(c) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
(d) This
Agreement shall be attached to the Credit Agreement, provided, however, that any
failure to do so shall not invalidate this Agreement or the Credit
Agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES
ON THE FOLLOWING PAGES]
B-3
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be duly executed, under seal, by its
authorized officer as of the day and year first above written.
ADDITIONAL
BORROWER:
|
|||
|
|||
By:
|
|||
|
Name:
|
||
|
Title:
|
||
Address: c/o
Theragenics Corporation
|
|||
Attention: Chief
Financial Officer
|
|||
Facsimile: (000)
000-0000
|
|||
EXISTING
BORROWERS:
|
|||
THERAGENICS
CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
C.P.
MEDICAL CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
GALT
MEDICAL CORP.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
NEEDLETECH
PRODUCTS, INC.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
[LIST
PREVIOUS ADDITIONAL BORROWERS]
|
[SIGNATURES
CONTINUE ON NEXT PAGE]
B-4
BANK:
|
|||
WACHOVIA
BANK, NATIONAL ASSOCIATION,
successor
by merger to SouthTrust Bank
|
|||
By:
|
|||
Name:
|
|||
Title:
|
B-5
EXHIBIT
C
FORM
OF REVOLVER LOAN NOTE JOINDER AGREEMENT
THIS
REVOLVER LOAN NOTE JOINDER AGREEMENT (this “Agreement”) is made as of
__________________, 20_____, among Theragenics Corporation, a Delaware
corporation, C.P. Medical Corporation, a Delaware corporation, Galt Medical
Corp., a Texas corporation [and] NeedleTech Products, Inc., a Massachusetts
corporation [and list any previous Additional Borrowers] (collectively, the
“Existing Borrowers”) and ________________________________, a
_______________________________ (the “Additional Borrower”) and Wachovia Bank,
National Association, successor by merger to SouthTrust Bank (the
“Bank”);
W I T N E
S S E T H
WHEREAS,
the Bank and the Existing Borrowers are parties to that certain Amended and
Restated Credit Agreement dated May 27, 2009 (as amended, restated,
supplemented, extended or otherwise modified from time to time, the “Credit
Agreement”; unless otherwise defined herein, all capitalized terms shall have
the meanings given in the Credit Agreement), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Bank to the
Existing Borrowers, including, but not limited to, a $30,000,000 [adjust if
accordion has been exercised] line of credit made by the Bank to the Existing
Borrowers, as evidenced by that certain Amended, Restated and Consolidated Line
of Credit Note dated May 27, 2009 payable by Existing Borrowers to the Bank (as
heretofore amended, restated or extended, the “Revolver Loan
Note”);
WHEREAS,
[name of applicable Borrower] [has agreed to purchase] [is the owner of] all of
the issued and outstanding capital stock of the Additional Borrower and, as
result thereof, the Existing Borrowers and the Additional Borrower are required
by the terms of the Credit Agreement to execute this Agreement in order for the
Additional Borrower to become a party to the Revolver Loan Note;
and
WHEREAS,
in consideration of the Bank’s commitment to make the credit facilities under
the Credit Agreement available to the Existing Borrowers and the Additional
Borrower, and in consideration of the support that the Existing Borrowers have
provided and may in the future provide to the Additional Borrower, each of the
parties hereto is willing to execute and deliver this Agreement to provide for
the Additional Borrower to become a “Borrower” under the Revolver Loan Note and
to amend certain provisions of the Revolver Loan Note;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Joinder of Additional
Borrower as a Borrower under the Revolver Loan Note. The Additional
Borrower hereby becomes a party to the Revolver Loan Note and agrees to become
obligated and liable as a Borrower under and as defined in the Revolver Loan
Note for the payment of the Revolver Loan as provided therein and agrees that
each of the representations, warranties, covenants, waivers and each of the
other terms and provisions of the Revolver Loan Note (as amended hereby) shall
be the valid and binding obligations of the Additional Borrower as if the
Additional Borrower had executed and delivered the same on the date of the
Revolver Loan Note (except that representations and warranties of Additional
Borrower shall be deemed initially made as of the effective date of this
Agreement), the Revolver Loan Note being incorporated herein by
reference.
SECTION
2. Notices. All
notices, requests and other communications to any party hereunder or under the
Revolver Loan Note shall be given or made in accordance with the provisions of
Section 11.1 of the Credit Agreement and the address for the Additional Borrower
for such notices under Section 11.1 shall be its address provided under its
signature below.
SECTION
3. Conditions
Precedent. This Agreement shall become effective upon the
occurrence of each of the following: (i) execution and delivery to the Bank of
this Agreement by each party hereto and (ii) the satisfaction of the conditions
precedent set forth in that certain Credit Agreement Joinder Agreement by
Additional Borrower, Existing Borrowers and Bank substantially in the form of
Exhibit B to the Credit Agreement dated as of even date herewith.
SECTION
4. Ratification and
Confirmation of Loan Documents. The parties hereto agree that
except as heretofore or herein expressly modified, or as may otherwise be
inconsistent with the terms of this Agreement (in which case the terms and
conditions of this Agreement shall govern), the Revolver Loan is payable under
the terms of the Revolver Loan Note, and all terms of the Revolver Loan Note,
and all documents and instruments executed and delivered in furtherance thereof
shall be and remain in full force and effect, and the same are hereby ratified
and confirmed in all respects. Each Borrower agrees to pay directly, or
reimburse Bank for, all expenses, including the fees and expenses of legal
counsel actually incurred by Bank in connection with the preparation of the
documentation to evidence this Agreement.
SECTION 5. Miscellaneous. (a)
This Agreement is entered into and performable in Xxxxxx County, Georgia, and
the substantive Laws, without giving effect to principles of conflict of laws,
of the United States and the State of Georgia shall govern the construction of
this Agreement and the documents executed and delivered pursuant hereto, and the
rights and remedies of the parties hereto and thereto, except to the extent that
the Uniform Commercial Code or other applicable Law requires that the
perfection, the effect of perfection or non-perfection, the priority of Bank’s
Lien (if any) under the Loan Documents, or the enforcement of certain of Bank’s
remedies with respect to the Collateral, be governed by the Laws of another
Jurisdiction.
(b) If
any provision of this Agreement shall be held invalid under any applicable Laws,
such invalidity shall not affect any other provision of this Agreement or such
other instrument or agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
(c) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
(d) This
Agreement shall be attached to the original Revolver Loan Note, provided,
however, that any failure to do so shall not invalidate this Agreement or the
Revolver Loan Note.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES
ON THE FOLLOWING PAGES]
C-2
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be duly executed, under seal, by its
authorized officer as of the day and year first above written.
ADDITIONAL
BORROWER:
|
|||
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
Address: c/o
Theragenics Corporation
|
|||
Attention: Chief
Financial Officer
|
|||
Facsimile: (000)
000-0000
|
|||
EXISTING
BORROWERS:
|
|||
THERAGENICS
CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
C.P.
MEDICAL CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
GALT
MEDICAL CORP.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
NEEDLETECH
PRODUCTS, INC.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
[AND LIST PREVIOUS ADDITIONAL BORROWERS] |
C-3
BANK:
|
|||
WACHOVIA
BANK, NATIONAL ASSOCIATION,
successor
by merger to SouthTrust Bank
|
|||
By:
|
|||
Name:
|
|||
Title:
|
C-4
EXHIBIT
D
FORM
OF TERM LOAN NOTE JOINDER AGREEMENT
THIS TERM
LOAN NOTE JOINDER AGREEMENT (this “Agreement”) is made as of __________________,
20_____, among Theragenics Corporation, a Delaware corporation, C.P. Medical
Corporation, a Delaware corporation, Galt Medical Corp., a Texas corporation
[and] NeedleTech Products, Inc., a Massachusetts corporation [and list any
previous Additional Borrowers] (collectively, the “Existing Borrowers”) and
________________________________, a _______________________________ (the
“Additional Borrower”) and Wachovia Bank, National Association, successor by
merger to SouthTrust Bank (the “Bank”);
W I T N E
S S E T H
WHEREAS,
the Bank and the Existing Borrowers are parties to that certain Amended and
Restated Credit Agreement dated May 27, 2009 (as amended, restated,
supplemented, extended or otherwise modified from time to time, the “Credit
Agreement”; unless otherwise defined herein, all capitalized terms shall have
the meanings given in the Credit Agreement), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Bank to the
Existing Borrowers, including, but not limited to, a $10,000,000 term loan made
by the Bank to the Existing Borrowers, as evidenced by that certain Term Loan
Note dated May 27, 2009 payable by Existing Borrowers to the Bank (as heretofore
amended, restated or extended, the “Term Loan Note”);
WHEREAS,
[Name of applicable Borrower] [has agreed to purchase] [is the owner of] all of
the issued and outstanding capital stock of the Additional Borrower and, as
result thereof, the Existing Borrowers and the Additional Borrower are required
by the terms of the Credit Agreement to execute this Agreement in order for the
Additional Borrower to become a party to the Term Loan Note; and
WHEREAS,
in consideration of the Bank’s commitment to make the credit facilities under
the Credit Agreement available to the Existing Borrowers and the Additional
Borrower, and in consideration of the support that the Existing Borrowers have
provided and may in the future provide to the Additional Borrower, each of the
parties hereto is willing to execute and deliver this Agreement to provide for
the Additional Borrower to become a “Borrower” under the Term Loan Note and to
amend certain provisions of the Term Loan Note;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Joinder of Additional
Borrower as a Borrower under the Term Loan Note. The Additional Borrower
hereby becomes a party to the Term Loan Note and agrees to become obligated and
liable as a Borrower under and as defined in the Term Loan Note for the payment
of the Term Loan as provided therein and agrees that each of the
representations, warranties, covenants, waivers and each of the other terms and
provisions of the Term Loan Note (as amended hereby) shall be the valid and
binding obligations of the Additional Borrower as if the Additional Borrower had
executed and delivered the same on the date of the Term Loan Note (except that
representations and warranties of Additional Borrower shall be deemed initially
made as of the effective date of this Agreement), the Term Loan Note being
incorporated herein by reference.
SECTION
2. Notices. All
notices, requests and other communications to any party hereunder or under the
Term Loan Note shall be given or made in accordance with the provisions of
Section 11.1 of the Credit Agreement and the address for the Additional Borrower
for such notices under Section 11.1 shall be its address provided under its
signature below.
SECTION
3. Conditions
Precedent. This Agreement shall become effective upon the
occurrence of each of the following: (i) execution and delivery to the Bank of
this Agreement by each party hereto and (ii) the satisfaction of the conditions
precedent set forth in that certain Credit Agreement Joinder Agreement by
Additional Borrower, Existing Borrowers and Bank substantially in the form of
Exhibit B to the Credit Agreement dated as of even date herewith.
SECTION
4. Ratification and
Confirmation of Loan Documents. The parties hereto agree that
except as heretofore or herein expressly modified, or as may otherwise be
inconsistent with the terms of this Agreement (in which case the terms and
conditions of this Agreement shall govern), the Term Loan is payable under the
terms of the Term Loan Note, and all terms of the Term Loan Note, and all
documents and instruments executed and delivered in furtherance thereof shall be
and remain in full force and effect, and the same are hereby ratified and
confirmed in all respects. Each Borrower agrees to pay directly, or reimburse
Bank for, all expenses, including the fees and expenses of legal counsel
actually incurred by Bank in connection with the preparation of the
documentation to evidence this Agreement.
SECTION 5. Miscellaneous. (a)
This Agreement is entered into and performable in Xxxxxx County, Georgia, and
the substantive Laws, without giving effect to principles of conflict of laws,
of the United States and the State of Georgia shall govern the construction of
this Agreement and the documents executed and delivered pursuant hereto, and the
rights and remedies of the parties hereto and thereto, except to the extent that
the Uniform Commercial Code or other applicable Law requires that the
perfection, the effect of perfection or non-perfection, the priority of Bank’s
Lien (if any) under the Loan Documents, or the enforcement of certain of Bank’s
remedies with respect to the Collateral, be governed by the Laws of another
Jurisdiction.
(b) If
any provision of this Agreement shall be held invalid under any applicable Laws,
such invalidity shall not affect any other provision of this Agreement or such
other instrument or agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
(c) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
(d) This
Agreement shall be attached to the original Term Loan Note, provided, however,
that any failure to do so shall not invalidate this Agreement or the Term Loan
Note.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES
ON THE FOLLOWING PAGES]
D-2
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be duly executed, under seal, by its
authorized officer as of the day and year first above written.
ADDITIONAL
BORROWER:
|
|||
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
Address: c/o
Theragenics Corporation
|
|||
Attention: Chief
Financial Officer
|
|||
Facsimile: (000)
000-0000
|
|||
EXISTING
BORROWERS:
|
|||
THERAGENICS
CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
C.P.
MEDICAL CORPORATION
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
GALT
MEDICAL CORP.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
NEEDLETECH
PRODUCTS, INC.
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
[AND
LIST PREVIOUS ADDITIONAL BORROWERS]
|
[SIGNATURES
CONTINUE ON NEXT PAGE]
D-3
BANK:
|
|||
WACHOVIA
BANK, NATIONAL ASSOCIATION,
successor
by merger to SouthTrust Bank
|
|||
By:
|
|||
Name:
|
|||
Title:
|
D-4
EXHIBIT
E
SCHEDULE
A TO PROMISSORY NOTE
|
3143893
|
The Note
will be paid in the principal amounts plus accrued interest on the dates as
shown below:
ATTACHMENT
1
Amortization
Schedule for 3143893
|
Calculation Period
(from
and including, to but excluding)
|
USD Notional Amount
|
USD Notional Reduction
(at
end of period)
|
||||||||
27
May 09
|
to
|
01
Jul 09
|
10,000,000.00 | 0.00 | ||||||
01
Jul 09
|
to
|
03
Aug 09
|
9,722,222.22 | 277,777.78 | ||||||
03
Aug 09
|
to
|
01
Sep 09
|
9,444,444.44 | 277,777.78 | ||||||
01
Sep 09
|
to
|
01
Oct 09
|
9,166,666.67 | 277,777.78 | ||||||
01
Oct 09
|
to
|
02
Nov 09
|
8,888,888.89 | 277,777.78 | ||||||
02
Nov 09
|
to
|
01
Dec 09
|
8,611,111.11 | 277,777.78 | ||||||
01
Dec 09
|
to
|
04
Jan 10
|
8,333,333.33 | 277,777.78 | ||||||
04
Jan 10
|
to
|
01
Feb 10
|
8,055,555.56 | 277,777.78 | ||||||
01
Feb 10
|
to
|
01
Mar 10
|
7,777,777.78 | 277,777.78 | ||||||
01
Mar 10
|
to
|
01
Apr 10
|
7,500,000.00 | 277,777.78 | ||||||
01
Apr 10
|
to
|
03
May 10
|
7,222,222.22 | 277,777.78 | ||||||
03
May 10
|
to
|
01
Jun 10
|
6,944,444.44 | 277,777.78 | ||||||
01
Jun 10
|
to
|
01
Jul 10
|
6,666,666.67 | 277,777.78 | ||||||
01
Jul 10
|
to
|
02
Aug 10
|
6,388,888.89 | 277,777.78 | ||||||
02
Aug 10
|
to
|
01
Sep 10
|
6,111,111.11 | 277,777.78 | ||||||
01
Sep 10
|
to
|
01
Oct 10
|
5,833,333.33 | 277,777.78 | ||||||
01
Oct 10
|
to
|
01
Nov 10
|
5,555,555.56 | 277,777.78 | ||||||
01
Nov 10
|
to
|
01
Dec 10
|
5,277,777.78 | 277,777.78 | ||||||
01
Dec 10
|
to
|
03
Jan 11
|
5,000,000.00 | 277,777.78 | ||||||
03
Jan 11
|
to
|
01
Feb 11
|
4,722,222.22 | 277,777.78 | ||||||
01
Feb 11
|
to
|
01
Mar 11
|
4,444,444.44 | 277,777.78 | ||||||
01
Mar 11
|
to
|
01
Apr 11
|
4,166,666.67 | 277,777.78 | ||||||
01
Apr 11
|
to
|
02
May 11
|
3,888,888.89 | 277,777.78 | ||||||
02
May 11
|
to
|
01
June 11
|
3,611,111.11 | 277,777.78 | ||||||
01
June 11
|
to
|
01
Jul 11
|
3,333,333.33 | 277,777.78 | ||||||
01
Jul 11
|
to
|
01
Aug 11
|
3,055,555.56 | 277,777.78 | ||||||
01
Aug 11
|
to
|
01
Sep 11
|
2,777,777.78 | 277,777.78 | ||||||
01
Sep 11
|
to
|
03
Oct 11
|
2,500,000.00 | 277,777.78 | ||||||
03
Oct 11
|
to
|
01
Nov 11
|
2,222,222.22 | 277,777.78 | ||||||
01
Nov 11
|
to
|
01
Dec 11
|
1,944,444.44 | 277,777.78 | ||||||
01
Dec 11
|
to
|
03
Jan 12
|
1,666,666.67 | 277,777.78 | ||||||
03
Jan 12
|
to
|
01
Feb 12
|
1,388,888.89 | 277,777.78 | ||||||
01
Feb 12
|
to
|
01
Mar 12
|
1,111,111.11 | 277,777.78 | ||||||
01
Mar 12
|
to
|
02
Apr 12
|
833,333.33 | 277,777.78 | ||||||
02
Apr 12
|
to
|
01
May 12
|
555,555.56 | 277,777.78 | ||||||
01
May 12
|
to
|
01
Jun 12
|
277,777.78 | 277,777.78 |