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EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
November 12, 1999,
among
MAXXIM MEDICAL, INC.,
MAXXIM MEDICAL GROUP, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent
and Collateral Agent,
BANKERS TRUST COMPANY,
as Co-Syndication Agent,
XXXXXXX XXXXX CAPITAL CORPORATION,
as Co-Syndication Agent,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Co-Documentation Agent,
and
CREDIT SUISSE FIRST BOSTON,
as Co-Documentation Agent
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CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Classification of Loans and Borrowings . . . . . . . . . . . . 36
SECTION 1.03. Terms Generally. . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 1.04. Accounting Terms; GAAP . . . . . . . . . . . . . . . . . . . . 36
ARTICLE II
The Credits
SECTION 2.01. Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.02. Loans and Borrowings . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.03. Requests for Borrowings. . . . . . . . . . . . . . . . . . . . 38
SECTION 2.04. Swingline Loans. . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 2.05. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.06. Funding of Borrowings. . . . . . . . . . . . . . . . . . . . . 47
SECTION 2.07. Interest Elections . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.08. Termination and Reduction of Commitments . . . . . . . . . . . 49
SECTION 2.09. Repayment of Loans; Evidence of Debt . . . . . . . . . . . . . 51
SECTION 2.10. Amortization of Term Loans . . . . . . . . . . . . . . . . . . 52
SECTION 2.11. Prepayment of Loans. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 2.12. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 2.13. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 2.14. Alternate Rate of Interest . . . . . . . . . . . . . . . . . . 59
SECTION 2.15. Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 2.16. Break Funding Payments . . . . . . . . . . . . . . . . . . . . 61
SECTION 2.17. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs . . 63
SECTION 2.19. Mitigation Obligations; Replacement of Lenders . . . . . . . . 65
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers . . . . . . . . . . . . . . . . . . . . . 67
SECTION 3.02. Authorization; Enforceability. . . . . . . . . . . . . . . . . 67
SECTION 3.03. Governmental Approvals; No Conflicts . . . . . . . . . . . . . 67
SECTION 3.04. Financial Condition; No Material Adverse Effect. . . . . . . . 68
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SECTION 3.05. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 3.06. Litigation and Environmental Matters . . . . . . . . . . . . . 69
SECTION 3.07. Compliance with Laws and Agreements. . . . . . . . . . . . . . 70
SECTION 3.08. Investment and Holding Company Status. . . . . . . . . . . . . 70
SECTION 3.09. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 3.10. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 3.11. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 3.12. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 3.13. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 3.14. Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 3.15. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 3.16. Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . 73
SECTION 3.17. Year 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 3.18. Security Interests . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE IV
Conditions of Lending
SECTION 4.01. Each Credit Event. . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 4.02. Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information . . . . . . . . . . 82
SECTION 5.02. Notices of Material Events . . . . . . . . . . . . . . . . . . 84
SECTION 5.03. Information Regarding Collateral . . . . . . . . . . . . . . . 84
SECTION 5.04. Existence; Conduct of Business . . . . . . . . . . . . . . . . 85
SECTION 5.05. Payment of Obligations . . . . . . . . . . . . . . . . . . . . 86
SECTION 5.06. Maintenance of Properties. . . . . . . . . . . . . . . . . . . 86
SECTION 5.07. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 5.08. Casualty and Condemnation. . . . . . . . . . . . . . . . . . . 86
SECTION 5.09. Books and Records; Inspection and Audit Rights . . . . . . . . 87
SECTION 5.10. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 87
SECTION 5.11. Use of Proceeds and Letters of Credit. . . . . . . . . . . . . 87
SECTION 5.12. Additional Subsidiaries. . . . . . . . . . . . . . . . . . . . 88
SECTION 5.13. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 5.14. Interest Rate Protection . . . . . . . . . . . . . . . . . . . 89
SECTION 5.15. Corporate Formalities. . . . . . . . . . . . . . . . . . . . . 89
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ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities . . . . . . . . . . . 89
SECTION 6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 6.03. Fundamental Changes . . . . . . . . . . . . . . . . . . . . . 93
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions . . 94
SECTION 6.05. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 6.06. Sale and Leaseback Transactions . . . . . . . . . . . . . . . 98
SECTION 6.07. Hedging Agreements. . . . . . . . . . . . . . . . . . . . . . 99
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness . . . . 99
SECTION 6.09. Transactions with Affiliates. . . . . . . . . . . . . . . . . 101
SECTION 6.10. Restrictive Agreements. . . . . . . . . . . . . . . . . . . . 102
SECTION 6.11. Amendment of Material Documents . . . . . . . . . . . . . . . 103
SECTION 6.12. Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 103
SECTION 6.13. Total Adjusted Leverage Ratio . . . . . . . . . . . . . . . . 104
SECTION 6.14. Senior Adjusted Leverage Ratio. . . . . . . . . . . . . . . . 105
SECTION 6.15. Capital Expenditures. . . . . . . . . . . . . . . . . . . . . 105
SECTION 6.16. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE VII
Events of Default . . . . . . . . . . . . . . 107
ARTICLE VIII
The Administrative Agent . . . . . . . . . . . . . 110
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 9.02. Waivers; Amendments . . . . . . . . . . . . . . . . . . . . . 114
SECTION 9.03. Expenses; Indemnity; Damage Waiver. . . . . . . . . . . . . . 116
SECTION 9.04. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 118
SECTION 9.05. Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 122
SECTION 9.06. Counterparts; Integration; Effectiveness. . . . . . . . . . . 123
SECTION 9.07. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 123
SECTION 9.08. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 123
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. . 124
SECTION 9.10. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . 125
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SECTION 9.11. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 125
SECTION 9.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 125
SECTION 9.13. Interest Rate Limitation. . . . . . . . . . . . . . . . . . . 126
SCHEDULES:
Schedule 1.01(a) -- Investor
Schedule 1.01(b) -- Mortgaged Property
Schedule 1.01(c) -- Existing Capital Lease Obligations
Schedule 2.01 -- Commitments
Schedule 3.05(c) -- Owned and Leased Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.18(d) -- Mortgage Filing Offices
Schedule 5.15 -- Corporate Formalities and Procedures
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04(d) -- Investments
Schedule 6.04(e) -- Existing Investments in Subsidiaries
Schedule 6.04(k) -- Existing Loans and Advances
Schedule 6.09(h) -- Existing Stockholders Agreements
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Wachtell, Lipton, Xxxxx & Xxxx
Exhibit B-2 -- Form of Opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP
Exhibit B-3 -- Form of Opinion of Local Counsel
Exhibit C -- Form of Perfection Certificate
Exhibit D -- Form of Parent Guarantee Agreement
Exhibit E -- Form of Subsidiary Guarantee Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Services Agreement
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CREDIT AGREEMENT dated as of
November 12, 1999, among MAXXIM MEDICAL,
INC., MAXXIM MEDICAL GROUP, INC., the
LENDERS party hereto, THE CHASE MANHATTAN
BANK, as Administrative Agent and
Collateral Agent, BANKERS TRUST COMPANY, as
Co-Syndication Agent, XXXXXXX XXXXX CAPITAL
CORPORATION, as Co-Syndication Agent,
CANADIAN IMPERIAL BANK OF COMMERCE, as
Co-Documentation Agent, and CREDIT SUISSE
FIRST BOSTON CORPORATION, as
Co-Documentation Agent.
Pursuant to or in connection with the Merger Agreement (such term and
each other capitalized term used but not defined in this introductory statement
having the meaning assigned to such term in Article I), (a) prior to or
simultaneously with the borrowing of the Term Loans on the Closing Date, (i)
the Investor will make the Investor Equity Contribution, (ii) the Continuing
Shareholders will make the Management Equity Contribution and (iii) Holdings
will issue the Holdings Notes to the Sponsor and/or certain other investors
reasonably satisfactory to the Administrative Agent for gross proceeds of at
least $50,000,000 in cash, (b) immediately prior to or concurrent with the
Merger, Holdings and the Borrower will effect the Asset Dropdown, (c)
immediately after the Asset Dropdown but prior to or concurrent with the
Merger, pursuant to the Substitution, the Borrower will succeed to, and be
substituted for, Holdings as primary obligor under the indenture relating to
the Existing Notes, (d) prior to or concurrent with the Merger, (i) Circon will
declare the Dividend and immediately pay the Dividend by issuing the Dividend
Note to Circon Parent and (ii) Circon Holdings and Circon Parent will effect
the Circon Acquisition, (e) simultaneously with or immediately after the
consummation of the Circon Acquisition, (i) Circon Holdings will pay the Circon
Acquisition Consideration to Circon Parent, (ii) Circon will repay the Dividend
Note in full and (iii) immediately after the consummation of the Circon
Acquisition, the Borrower and Circon will enter into the Services Agreement,
(f) as promptly as practicable after or concurrent with the Asset Dropdown, the
Substitution and the Circon Acquisition, (i) Holdings and the Purchaser will
consummate the Merger and (ii) subject to stockholders' appraisal rights, each
of the Shares (other than (A) Shares acquired by the Investor and the
Continuing Shareholders pursuant to the Equity Contributions and (B) the
Retained Equity) will be converted into the right to receive the Cash Merger
Consideration and (g) the Investor's common equity holdings in Holdings
following the Equity Contributions shall be such that,
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pursuant to the terms of the Merger Agreement, after giving effect to the
Merger, (i) the Investor will hold post-Merger common stock of Holdings
representing not less than 87.8% of the aggregate post-Merger common stock of
Holdings (and 74.0% of such common stock on a fully diluted basis) and (ii) the
Continuing Shareholders and, possibly, certain other existing stockholders of
Holdings will retain the Retained Equity. The Merger is anticipated to be
structured as a recapitalization for accounting purposes.
In connection with the Recapitalization, (a) prior to or
simultaneously with the borrowing of the Term Loans on the Closing Date, (i)
Holdings and each of its subsidiaries (including Circon and its subsidiaries)
will repay or repurchase in full all the Existing Indebtedness and (ii) the
Existing Credit Agreement and any related guarantee and collateral documents
shall be terminated, (b) Holdings will (i) make the Debt Tender Offer and (ii)
pay the Debt Tender Premium, (c) Holdings or its applicable subsidiaries
(excluding Circon and its subsidiaries) will retain the Existing Capital Lease
Obligations, (d) the Borrower will assume, under the Substitution, the
obligations of Holdings in relation to any Existing Notes not repurchased
pursuant to the Debt Tender Offer, (e) on the Closing Date, the Borrower will
obtain the senior secured credit facilities provided for in this Agreement in
an aggregate principal amount not to exceed $310,000,000, (f) prior to or
simultaneously with the borrowing of the Term Loans on the Closing Date, the
Borrower will issue the Senior Subordinated Notes in a public offering or in a
Rule 144A offering or other private placement for gross proceeds of at least
$110,000,000 in cash and (g) the Transaction Costs (including the Debt Tender
Premium) will be paid.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
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"Acquired EBITDA" shall mean, with respect to any Acquired Entity or
Business or any Sold Entity or Business for any period, the Consolidated EBITDA
of such Acquired Entity or Business or Sold Entity or Business for such period.
"Acquired Entity or Business" has the meaning assigned to such term in
the definition of the term Adjusted Consolidated EBITDA.
"Adjusted Consolidated EBITDA" shall mean, for any Person for any
period, Consolidated EBITDA of such Person for such period, calculated by (a)
including in the determination thereof the Acquired EBITDA of any Person,
property, business or asset acquired during such period pursuant to a
transaction permitted under Section 6.04 and not subsequently sold, transferred
or otherwise disposed of during such period to the extent acquired by the
Borrower or any Subsidiary during such period (each such Person, property,
business or asset acquired and not subsequently so disposed of, an "Acquired
Entity or Business"), based on the actual Acquired EBITDA of such Acquired
Entity or Business for such period (including the portion thereof occurring
prior to such acquisition) and (b) excluding in the determination thereof the
Acquired EBITDA of any Person, property, business or asset sold, transferred or
otherwise disposed of by the Borrower or any Subsidiary during such period
(each such Person, property, business or asset so sold or disposed of, a "Sold
Entity or Business") based on the actual Acquired EBITDA of such Sold Entity or
Business for such period (including the portion thereof occurring prior to such
sale, transfer or disposition).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
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"Agents" means the Administrative Agent and the Co-Syndication Agents.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Laws" means the Food, Drug and Cosmetic Act and the rules
and regulations of the Food and Drug Administration.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day (a) with respect to any Tranche B
Term Loan, the applicable Tranche B Rate, (b) with respect to any Tranche C
Term Loan, the applicable Tranche C Rate and (c) with respect to any ABR Loan
or Eurodollar Loan that is a Revolving Loan or a Tranche A Term Loan, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption "ABR Spread",
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon
the Leverage Ratio as of the most recent determination date, provided that
until 180 days after the
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Closing Date, the "Applicable Rate" for purposes of clause (c) shall be the
applicable rate per annum set forth below in Category 1:
ABR Eurodolla Commitment Fee
Leverage Ratio: Spread Spread Rate
--------------- ------ ------ ----
Category 1
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Greater than or equal to 4.50 to 1.75% 2.75% 0.500%
1.00 ----- ----- ------
Category 2
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Less than 4.50 to 1.00 but greater 1.50% 2.50% 0.500%
than or equal to 4.00 to 1.00 ----- ----- ------
Category 3
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Less than 4.00 to 1.00 but greater 1.25% 2.25% 0.500%
than or equal to 3.50 to 1.00 ----- ----- ------
Category 4
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Less than 3.50 to 1.00 1.00% 2.00% 0.375%
----- ----- ------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon Holdings's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change, provided
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time
that an Event of Default has occurred and is continuing or (B) at the option of
the Administrative Agent or at the request of the Required Lenders if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States, provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as
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aforesaid, then the Assessment Rate shall be such annual rate as shall be
determined by the Administrative Agent to be representative of the cost of such
insurance to the Lenders.
"Asset Dropdown" means the contribution by Holdings of all its assets
to the Borrower.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Maxxim Medical Group, Inc., a Delaware corporation.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or Texas are authorized or
required by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower
and its consolidated Subsidiaries (other than pursuant to a Permitted
Acquisition) that are (or would be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP and
(b) Capital Lease Obligations incurred by the Borrower and its consolidated
Subsidiaries during such period.
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"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Merger Consideration" means $26.00 per Share.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person other than Holdings of
any Equity Interest in the Borrower; (b) prior to an IPO, the failure by the
Sponsor to own, directly or indirectly, beneficially and of record, Equity
Interests in Holdings representing at least a majority of each of the aggregate
ordinary voting power and aggregate equity value represented by the issued and
outstanding Equity Interests in Holdings; (c) after an IPO, the failure by the
Sponsor to own, directly or indirectly, beneficially and of record, Equity
Interests in Holdings representing at least 35% of each of the aggregate
ordinary voting power and the aggregate equity value represented by the issued
and outstanding Equity Interests in Holdings; (d) after an IPO, the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) other than the Sponsor, of Equity Interests representing more than
35% of either the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in Holdings; (e)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of Holdings by Persons who were neither (i) nominated by the board of
directors of Holdings, (ii) appointed by directors so nominated nor (iii)
designated or nominated by the Sponsor; (f) the acquisition of direct or
indirect Control of Holdings by any Person or group other than the Sponsor; or
(g) the occurrence of a "Change of Control" (or similar event, however
denominated), as defined in any Subordinated Debt Documents or indenture or
other instrument or agreement under which any Permitted Refinancing
Indebtedness is issued or incurred or the Holdings Notes Indenture.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any
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change in any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section
2.15(b), by any lending office of such Lender or by such Lender's or the
Issuing Bank's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"Circon" means Circon Corporation, a Delaware corporation.
"Circon Acquisition" means the acquisition by Circon Holdings from
Circon Parent of all the outstanding capital stock of Circon for the Circon
Acquisition Consideration.
"Circon Acquisition Consideration" means the payment in cash of an
amount equal to the difference between (a) $228,000,000 and (b) the amount
repaid by Circon to Circon Parent in respect of the Dividend Note on the
Closing Date.
"Circon Businesses" mean the businesses of Circon and its subsidiaries
to the extent that such businesses are being sold in the Circon Acquisition.
"Circon Holdings" means Circon Holdings Corporation (formerly known as
Fox Xxxxx Xxxxxx Acquisition Corporation), a Delaware corporation.
"Circon Parent" means Maxxim Medical, Inc., a Delaware corporation.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Swingline
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, Tranche A Commitment, Tranche B
Commitment or Tranche C Commitment.
"Closing Date" means the date on which (a) the conditions specified in
Section 4.02 are satisfied (or waived in accordance with Section 9.02) and (b)
the drawing of the Term Facilities and the substantially simultaneous
consummation of the Recapitalization occur.
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14
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Co-Documentation Agents" means Canadian Imperial Bank of Commerce and
Credit Suisse First Boston, in their capacity as co-documentation agents for
the Lenders hereunder.
"Co-Syndication Agents" means Bankers Trust Company and Xxxxxxx Xxxxx
Capital Corporation, in their capacity as co-syndication agents for the Lenders
hereunder.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" shall have the meaning given to such term in the
Security Agreement.
"Commitment" means a Revolving Commitment, Tranche A Commitment,
Tranche B Commitment or Tranche C Commitment, or any combination thereof (as
the context requires).
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense less the sum for such period of (a) non-cash
expenses for interest payable in kind, including the amortization of the debt
discount on the Senior Subordinated Notes, the Holdings Notes or any other
Indebtedness permitted by Section 6.01(a), (b) to the extent included in
Consolidated Interest Expense, the amortization of fees paid by Holdings, the
Borrower or their subsidiaries in connection with the Transactions and (c) the
amortization of fees in respect of Hedging Agreements, provided that there
shall be included or excluded, as applicable, in determining Consolidated Cash
Interest Expense for any period the cash interest expense (calculated in the
same manner as Consolidated Cash Interest Expense is calculated) for such
period (including the portion thereof accruing prior to the applicable
acquisition or sale) of any Acquired Entity or Business or Sold Entity or
Business acquired or sold, as applicable, during such period assuming any
Indebtedness incurred or repaid in connection with the acquisition or sale had
been incurred or repaid on the first day of such period.
"Consolidated EBIT" means, for any Person for any period, Consolidated
Net Income of such Person, before total interest expense (whether cash or
non-cash), Transaction Costs (whether cash or non cash) and provisions for
taxes based on income, and determined without giving effect to any
extraordinary gains or extraordinary non-cash losses
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15
included in determining Consolidated Net Income for such Person for such
period.
"Consolidated EBITDA" means, for any Person for any period,
Consolidated EBIT of such Person, adjusted by adding thereto, without
duplication, the amount of (a) all depreciation expense, amortization expense
and other non-cash charges that were deducted in determining Consolidated EBIT
for such Person for such period and (b) if such Person is the Borrower, in
respect of any period ending on or before the date that is two years after the
Closing Date all out-of-pocket expenses incurred in that period in connection
with cost reduction initiatives or rationalizations at the Borrower's and the
Subsidiaries' facilities, provided that, in relation to such cost reduction
initiatives or rationalizations, (A) the Lender's (x) have been advised of the
Borrower's cost reduction and rationalization plans in advance of their
implementation and (y) are subsequently provided with a detailed breakdown of
the expenses incurred in connection therewith and (B) the amount added to such
Consolidated EBIT of the Borrower in respect of such cost reduction initiatives
or rationalizations for all periods combined shall not exceed $9,000,000.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to Capital Lease Obligations in accordance
with GAAP), whether cash or non-cash, of Holdings, the Borrower and the
Subsidiaries determined on a consolidated basis with respect to all outstanding
Indebtedness of Holdings, the Borrower and the Subsidiaries, including, without
limitation, (a) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (b)
amortization of the net costs or benefits under Hedging Agreements and (c)
amortization of the interest-equivalent costs that are associated with any
payments made to obtain any Hedging Agreement, deferred financing costs and any
interest expense on deferred compensation arrangements and any other non-cash
interest to the extent included in total interest expense.
"Consolidated Net Income" means, for any Person for any period, the
net income (or loss) after provision for taxes and before any pay-in-kind or
non-cash accumulating dividend on preferred stock of such Person and its
subsidiaries on a consolidated basis for such period taken as a single
accounting period, provided that there shall be excluded from such net income
(or loss) the income of any Person in which any other Person or Persons (other
than the Borrower or any Subsidiary or any director holding qualifying shares
in compliance with applicable law) owns or
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own aggregate Equity Interests representing more than 50% of the outstanding
Equity Interests in such Person except to the extent of the amount of dividends
or other distributions actually paid to the Borrower or any of the Subsidiaries
by such Person during such period.
"Continuing Shareholders" means Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx,
Xxxxx X. Xxxxxx, Xxxxx X. XxXxxx, Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition that constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Debt Tender Offer" means (a) the tender offer to be made by Holdings
to acquire all the Existing Notes and (b) the related consent solicitation
pursuant to which the covenants in the indenture relating to the Existing Notes
remaining outstanding after the consummation of the Debt Tender Offer shall be
waived or eliminated as required by Section 4.02(t), in each case to be
consummated concurrently with the Merger.
"Debt Tender Premium" means the debt tender premium and consent fees
to be paid in connection with the Debt Tender Offer in an aggregate amount not
in excess of $14,400,000.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Disqualified Stock" means, with respect to any Person, any Equity
Interest that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event: (a) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise; (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock; or (c) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the
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Tranche C Maturity Date; provided, however, that any Equity Interests that
would not constitute Disqualified Stock but for the provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Equity Interests upon the occurrence of an "asset sale" or "Change of Control"
occurring prior to the first anniversary of the Tranche C Maturity Date shall
not constitute Disqualified Stock if (i) the "asset sale" or "Change of
Control" provisions applicable to such Equity Interests are not more favorable
to the holders of such Equity Interests than the "asset sale" provisions and
the "Change of Control" provisions, respectively, contained in the Subordinated
Debt Documents, and (ii) any payment obligations in relation to the "Change of
Control" provisions applicable to such Equity Interests are subordinated to the
Obligations on terms satisfactory to the Administrative Agent.
"Dividend" means a dividend to be paid by Circon to Circon Parent in
the form of the Dividend Note.
"Dividend Note" means the intercompany note (a) payable by Circon to
Circon Parent and (b) pursuant to which Circon agrees to pay Circon Parent an
amount equal to the amount of the Dividend, with such amount paid
simultaneously with or immediately after the consummation of the Circon
Acquisition.
"dollars" or "$" refers to lawful money of the United States of
America.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to public health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental investigation and
remediation, natural resource damages, fines, penalties or indemnities), of
Holdings, the Borrower or any Subsidiary directly or indirectly resulting from
or based upon (a) any actual or alleged violation of any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal
of any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials or
(e) any contract, agreement or other consensual
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arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"Equity Contributions" means the Investor Equity Contribution and the
Management Equity Contribution.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person and any
options warrants or other rights to acquire such Equity Interests, but
excluding any debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is insolvent or in
reorganization, within the meaning of Title IV of ERISA.
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"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
(a) the consolidated net income (or loss) of Holdings, the Borrower
and its consolidated subsidiaries for such fiscal year, after provision
for taxes, adjusted to exclude any gains or losses attributable to
Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such consolidated net income (or loss) for such
fiscal year; plus
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period plus (ii) the net amount, if any, by which
the consolidated deferred revenues of Holdings, the Borrower and its
consolidated subsidiaries increased during such period plus (iii) the
aggregate principal amount of Capital Lease Obligations and other
Indebtedness incurred during such period to finance Capital Expenditures,
to the extent that mandatory principal payments in respect of such
Indebtedness would, pursuant to clause (f) below, be deducted in
determining Excess Cash Flow when made; minus
(d) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such fiscal year plus (ii) the
amount, if any, by which Net Working Capital increased during such fiscal
year plus (iii) the amount, if any, by which the consolidated deferred
revenues of Holdings, the Borrower and its consolidated subsidiaries
decreased during such fiscal year; minus
(e) Capital Expenditures for such period, except to the extent such
Capital Expenditures are financed with the proceeds of asset dispositions
(including casualty and condemnation events) or with the proceeds of the
sale of equity by, or the contribution of equity to, Holdings, the
Borrower or any Subsidiary (other than to or by Holdings, the Borrower or
any Subsidiary); minus
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(f) the aggregate principal amount of Capital Lease Obligations and
other Indebtedness repaid or prepaid by Holdings, the Borrower and its
consolidated subsidiaries during such period, excluding (i) Indebtedness
in respect of Revolving Loans, Swingline Loans and Letters of Credit
(unless accompanied by a permanent reduction of the Revolving
Commitments), (ii) Term Loans prepaid pursuant to Section 2.11(a),
2.11(c) or (d), (iii) repayments or prepayments of Capital Lease
Obligations and other Indebtedness financed by incurring other
Indebtedness, to the extent that mandatory principal payments in respect
of such other Indebtedness would, pursuant to this clause (f), be
deducted in determining Excess Cash Flow when made and (iv) Indebtedness
referred to in clauses (vii) and (viii) of Section 6.01(a).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that (i) is in effect and
would apply to amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to any withholding
tax pursuant to Section 2.17(a), or (ii) is attributable to such Foreign
Lender's failure to comply with Section 2.17(e).
"Existing Capital Lease Obligations" means the Capital Lease
Obligations of Holdings described in Schedule 1.01(c).
"Existing Credit Agreement" means the Third Amended and Restated
Credit Agreement dated as of January 4, 1999, as amended, among Holdings, the
lenders named therein and certain other parties.
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"Existing Indebtedness" means all the existing Indebtedness of
Holdings and its subsidiaries (other than the Existing Notes and the Existing
Capital Lease Obligations) immediately prior to the Recapitalization, including
all amounts outstanding under the Existing Credit Agreement.
"Existing Notes" means Holdings's outstanding 10-1/2% senior
subordinated notes due August 1, 2006, in an aggregate principal amount equal
to $100,000,000.
"Existing Notes Indenture" means the Indenture dated July 30, 1996,
between Holdings and First Union National Bank of Carolina, as Trustee,
relating to the Existing Notes.
"Existing Notes Refinancing Date" means November 1, 2005.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
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"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreements" means the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes,
and all substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any derivative or similar agreement or
arrangement, including any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement. "Holdings" means
Maxxim Medical, Inc., a Texas corporation.
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"Holdings Notes" means the senior unsecured notes issued by Holdings
in connection with the Recapitalization pursuant to the Holdings Notes
Indenture for gross cash proceeds of not less than $50,000,000.
"Holdings Notes Indenture" means the indenture or note agreement to be
entered into by Holdings in connection with the issuance of the Holdings Notes,
together with all instruments and other agreements entered into by Holdings in
connection therewith, all in form and substance satisfactory to the
Administrative Agent.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (excluding current accounts
payable and accrued expenses incurred in the ordinary course of business), (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding (x) current accounts payable and accrued expenses incurred in the
ordinary course of business and (y) until such time as such obligations must be
recognized as liabilities under GAAP, any obligations in respect of earn-out
arrangements, non-compete arrangements or long-term consulting or employment
arrangements, in each case incurred directly in connection with a Permitted
Acquisition), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of
such Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.
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"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit F, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Information Memorandum" means the Confidential Information Memorandum
dated July, 1999, relating to the Borrower and the Transactions.
"Interest Coverage Ratio" shall have the meaning set forth in Section
6.12.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each January, April, July and October,
(b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is
required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect, provided, that (a) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a
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Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investor" means the entities set forth on Schedule 1.01(a).
"Investor Equity Contribution" means a contribution of an aggregate
amount of not less than $130,400,000 in cash to Holdings as common equity.
"IPO" means an underwritten public offering by Holdings of Equity
Interests of Holdings pursuant to a registration statement filed with the
Securities and Exchange Commission in accordance with the Securities Act of
1933, as amended.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at
any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt on
such date to (b) Consolidated EBITDA for
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the period of four consecutive fiscal quarters of the Borrower most recently
ended as of such date, all determined on a consolidated basis in accordance
with GAAP.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement and the Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Management Equity Contribution" means a contribution by the
Continuing Shareholders of an aggregate amount of approximately $4,500,000 in
cash to Holdings as common equity.
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"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise,
of Holdings, the Borrower and the Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to the Lenders under any
Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Holdings, the Borrower and the Subsidiaries
in an aggregate principal amount exceeding $5,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
Holdings, the Borrower or any Subsidiary in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"Merger" means the merger of the Purchaser with and into Holdings,
with Holdings as the surviving corporation in the Merger.
"Merger Agreement" means the Agreement and Plan of Merger dated June
13, 1999, between Holdings and the Purchaser.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereto owned by a Loan Party and identified on Schedule
1.01(b), and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or
5.13.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash proceeds
received in respect of such event, including (i) any cash received in respect
of any non-cash proceeds, but only as and when received, (ii) in the case of
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a casualty, insurance proceeds and (iii) in the case of a condemnation or
similar event, condemnation awards and similar payments, net of (b) the sum of
(i) all reasonable fees and out-of-pocket expenses (including, in respect of
any asset sale, any out-of-pocket expenses relating to the relocation of assets
or personnel, any severance or other personnel costs, and any other
out-of-pocket expenses of a similar nature, in each case incurred within twelve
months of such asset sale) paid by Holdings, the Borrower and the Subsidiaries
to third parties in connection with such event, (ii) in the case of a sale,
transfer or other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or a condemnation or similar proceeding),
the amount of all payments required to be made by Holdings, the Borrower and
the Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) secured by such asset or otherwise subject to mandatory prepayment as a
result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by Holdings, the Borrower and the Subsidiaries, and
the amount of any reserves established by Holdings, the Borrower and the
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next succeeding
year and that are directly attributable to such event (as determined reasonably
and in good faith by the chief financial officer of the Borrower).
"Net Working Capital" means, at any date, (a) the consolidated current
assets of Holdings, the Borrower and its consolidated subsidiaries as of such
date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of Holdings, the Borrower and its consolidated subsidiaries
as of such date (excluding current liabilities in respect of Indebtedness). Net
Working Capital at any date may be a positive or negative number. Net Working
Capital increases when it becomes more positive or less negative and decreases
when it becomes less positive or more negative.
"Obligations" has the meaning assigned to such term in (a) the
Security Agreement, (b) the Pledge Agreement and (c) the Guarantee Agreements.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
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"Outstanding Existing Notes" means the Existing Notes that remain
outstanding after completion of the Debt Tender Offer.
"Parent Guarantee Agreement" means the Parent Guarantee Agreement,
substantially in the form of Exhibit D, made by Holdings in favor of the
Administrative Agent for the benefit of the Secured Parties.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit C
or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition that occurs after the
Closing Date of all or substantially all the assets of, or shares or other
Equity Interests in, a Person or division or line of business of a Person that
is engaged in a reasonably related (ancillary or complementary) line of
business or lines of business, as reasonably determined by the Board of
Directors of the Borrower (or any subsequent investment made in a previously
acquired Permitted Acquisition), that was not preceded by an unsolicited tender
offer for such Person, if immediately after giving effect thereto (a) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (b) all transactions related thereto shall be consummated in
accordance with applicable law, (c) 100% of the Equity Interests of any
acquired or newly formed corporation, partnership, association or other
business entity are owned directly by the Borrower or a domestic Wholly Owned
Subsidiary and all actions required to be taken, if any, with respect to such
acquired or newly formed subsidiary under Section 5.12 shall have been taken,
and (d)(i) Holdings, the Borrower and the Subsidiaries shall be in compliance,
on a pro forma basis after giving effect to such acquisition or formation, with
the covenants contained in Sections 6.12, 6.13 and 6.14 recomputed as at the
last day of the most recently ended fiscal quarter of Holdings, the Borrower
and the Subsidiaries as if such acquisition had occurred on the first day of
each relevant period for testing such compliance, and the Borrower shall have
delivered to the Administrative Agent an officers' certificate to such effect,
together with all relevant financial information for such subsidiary or assets,
and (ii) any acquired or newly formed subsidiary shall not be liable for any
Indebtedness (except for Indebtedness permitted by 6.01).
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30
days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of Holdings, the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof
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and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of
not less than $250,000,000 or a foreign bank that has a combined capital
and surplus and undivided profits of not less than $125,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
"Permitted Refinancing Indebtedness" means unsecured Indebtedness, the
proceeds of which are used by Holdings or the Borrower substantially
simultaneously with the issuance or incurrence of such Permitted Refinancing
Indebtedness solely to purchase or redeem all or any of the Outstanding
Existing Notes, provided that (a) such Indebtedness is issued or incurred by
Holdings or the Borrower, (b) such Indebtedness accrues interest at a fixed
rate determined in good faith by the Board of Directors of Holdings or the
Borrower, as applicable, to be a market rate of interest for such Indebtedness
at the time of issuance thereof or, in the case of a bridge loan, at a floating
rate determined based on a formula with a base rate, spreads and interest rate
step-ups that are determined in good faith by the Board of Directors of
Holdings or the Borrower, as applicable, to be market rates of interest and
interest rate step-up levels for such Indebtedness at the time of issuance
thereof, (c) such Indebtedness does not have a final maturity, and does not
require any amortization, sinking fund or similar payment, and is not
mandatorily redeemable or redeemable at the option of the holder or holders
thereof (in whole or in part), in each case prior to the date that is six
months after the Tranche C Maturity Date, provided that any Indebtedness that
would constitute Permitted Refinancing Indebtedness but for the provisions
thereof giving holders thereof the right to require the Obligor thereof to
repurchase or redeem such Indebtedness upon the occurrence of an "asset sale"
or "Change of Control" occurring prior to the date that is six months after the
Tranche C Maturity Date shall constitute Permitted
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Refinancing Indebtedness if the "asset sale" or "Change of Control" provisions
applicable to such Indebtedness are not more favorable to the holders of such
Indebtedness than the "asset sale" provisions and the "Change of Control",
provisions, respectively, contained in the Subordinated Debt Documents, (d) the
subordination provisions of such Indebtedness are no less favorable to the
Lenders than the subordination provisions applicable to the Senior Subordinated
Notes, (e) the terms of such Indebtedness do not require Holdings, the Borrower
or the Subsidiaries to maintain any specified financial condition (other than
as a condition to the taking of specified actions), (f) the terms of such
Indebtedness are not materially more restrictive than the terms of the Senior
Subordinated Notes and (g) the terms of such Indebtedness are otherwise
reasonably satisfactory to the Administrative Agent.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit G, among Holdings, the Borrower, the other Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of Holdings, the
Borrower or any Subsidiary, other than (i) dispositions described in
clauses (a), (b) and (c) of Section 6.05, (ii) in each fiscal year, cash
proceeds of up to and including $15,000,000 from any dispositions
described in clause (d) of Section 6.05 during such fiscal year and (iii)
other dispositions resulting in aggregate Net Proceeds not exceeding
$5,000,000 during any fiscal year of the Borrower; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any
property or
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asset of Holdings, the Borrower or any Subsidiary, but only to the extent
that the Net Proceeds therefrom have not been applied to repair, restore
or replace such property or asset within one year after such event; or
(c) the incurrence by Holdings, the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted pursuant to Section 6.01.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Purchaser" means Fox Xxxxx Medic Acquisition Corporation, a Texas
corporation.
"Recapitalization" means the transactions described in the first
paragraph of the introductory statement of this Agreement, including the Equity
Contributions, the issuance of the Holdings Notes, the Asset Dropdown, the
Substitution, the Circon Acquisition and the Merger.
"Recapitalization Documents" means the Merger Agreement and the other
agreements and documents entered into pursuant thereto or in connection
therewith (other than the Loan Documents, the Subordinated Debt Documents and
the Holdings Notes Indenture).
"Register" has the meaning set forth in Section 9.04(c).
"Related Fund" means, with respect to any Lender that is a fund or
trust that makes, buys or invests in commercial loans, any other fund or trust
that makes, buys or invests in commercial loans and is managed by the same
investment advisor as such Lender.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
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groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Holdings, the Borrower or any Subsidiary
or any option, warrant or other right to acquire any such Equity Interests in
Holdings, the Borrower or any Subsidiary.
"Retained Equity" means Shares having a value (based on the Cash
Merger Consideration) of approximately $13,300,000 and that will be held by the
Continuing Shareholders and, possibly, certain other existing stockholders of
Holdings immediately after the Closing Date.
"Revolving Availability Period" means the period from and including
the Closing Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $50,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal
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amount of such Lender's Revolving Loans and its LC Exposure and Swingline
Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with any
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (d) of Section
2.01.
"Revolving Maturity Date" means the date that is six years after the
Closing Date or the first Business Day thereafter, if such date is not a
Business Day.
"S&P" means Standard & Poor's Ratings Service.
"Secured Parties" shall have the meaning given such term in the
Security Agreement.
"Security Agreement" means the Security Agreement, substantially in
the form of Exhibit H, among the Borrower, Holdings, the Subsidiary Loan
Parties and the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Guarantee
Agreements, the Pledge Agreement, the Indemnity, Subrogation and Contribution
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
"Senior Adjusted Leverage Ratio" means, on any date, the ratio of (a)
Senior Debt on such date to (b) Adjusted Consolidated EBITDA for the period of
four consecutive fiscal quarters of the Borrower most recently ended as of such
date, all determined on a consolidated basis in accordance with GAAP.
"Senior Debt" means, with respect to the Borrower and the Subsidiaries
on a consolidated basis at any time (without duplication), Total Debt at such
time minus the sum of the aggregate principal amount of the Senior Subordinated
Notes, Existing Notes and Permitted Refinancing Indebtedness outstanding at
such time.
"Senior Subordinated Notes" means the $144,552,000 in aggregate
principal amount at maturity of senior subordinated discount notes issued by
the Borrower pursuant to the Subordinated Debt Documents.
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"Services Agreement" means the Services Agreement, substantially in
the form of Exhibit I, between the Borrower and Circon.
"Shares" means, collectively, all the shares of common stock of
Holdings outstanding immediately prior to the consummation of the Merger.
"Sold Entity or Business" has the meaning assigned to such term in the
definition of the term Adjusted Consolidated EBITDA.
"Sponsor" means Fox Xxxxx Capital Fund L.P. and its Affiliates (other
than Affiliates that are operating companies or controlled by operating
companies).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is subject
(a) with respect to the Base CD Rate, for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt Documents" means the indenture, note agreement or
other agreement under which the Senior Subordinated Notes and/or any Permitted
Refinancing Indebtedness are issued and all other instruments, agreements and
other documents evidencing or governing the Senior Subordinated Notes and/or
any Permitted Refinancing Indebtedness or providing for any Guarantee or other
right in respect of any thereof.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of
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the parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" means any subsidiary of the Borrower. For purposes of the
representations and warranties made herein on (and the conditions to borrowing
on) the Closing Date, the term Subsidiary includes each of Holdings and its
subsidiaries but excludes Circon and its subsidiaries to the extent they
include the Circon Businesses.
"Subsidiary Guarantee Agreement" means the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit E, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Subsidiary Loan Party" means any Subsidiary that is not a Foreign
Subsidiary.
"Substitution" means the process whereby the Borrower will succeed to,
and be substituted for, Holdings as the primary obligor under the indenture
relating to the Existing Notes, pursuant to Section 5.02 of that indenture.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"Term Loan Commitments" means Tranche A Commitments, Tranche B
Commitments and Tranche C Commitments.
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans.
"Test Period" means, for any determination made on a specific date,
the period of four consecutive fiscal quarters of the Borrower most recently
ended as of such date (taken as one accounting period).
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Adjusted Leverage Ratio" shall mean, on any date, the ratio of
(a) Total Debt as of such date to (b) Adjusted Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower most recently ended
as of such date, all determined on a consolidated basis in accordance with
GAAP.
"Total Debt" means, with respect to the Borrower and the Subsidiaries
on a consolidated basis at any time (without duplication), all Indebtedness
consisting of Capital Lease Obligations, Indebtedness for borrowed money and
Indebtedness in respect of the deferred purchase price of property or services
of the Borrower and the Subsidiaries on a consolidated basis at such time.
"Tranche A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche A Term Loan hereunder on
the Closing Date, expressed as an amount representing the maximum aggregate
principal amount of the Tranche A Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time
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39
to time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Tranche A Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche A Commitment, as applicable. The initial aggregate
amount of the Lenders' Tranche A Commitments is $80,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means the date that is six years after the
Closing Date or the first Business Day thereafter, if such date is not a
Business Day.
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Tranche B Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche B Term Loan hereunder on
the Closing Date, expressed as an amount representing the maximum aggregate
principal amount of the Tranche B Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Tranche B Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche B Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche B Commitments is, subject to Section 2.08(c), $90,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means the date that is seven-and-one-half
years after the Closing Date or the first Business Day thereafter, if such date
is not a Business Day.
"Tranche B Rate" means, with respect to any Tranche B Term Loan, (a)
2.25% per annum, in the case of an ABR Loan, or (b) 3.25% per annum, in the
case of a Eurodollar Loan.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
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40
"Tranche C Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche C Term Loan hereunder on
the Closing Date, expressed as an amount representing the maximum aggregate
principal amount of the Tranche C Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Tranche C Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche C Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche C Commitments is, subject to Section 2.08(c), $90,000,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment or an
outstanding Tranche C Term Loan.
"Tranche C Maturity Date" means the date that is eight-and-one-half
years after the Closing Date or the first Business Day thereafter, if such date
is not a Business Day.
"Tranche C Rate" means, with respect to any Tranche C Term Loan, (a)
2.50% per annum, in the case of an ABR Loan, or (b) 3.50% per annum, in the
case of a Eurodollar Loan.
"Tranche C Term Loan" means a Loan made pursuant to clause (c) of
Section 2.01.
"Transaction Costs" means the fees and expenses, including the Debt
Tender Premium, incurred by Holdings, the Borrower or any Subsidiary in
connection with the Transactions in an aggregate amount not to exceed
$52,200,000.
"Transactions" means, collectively, the transactions described in the
introductory statement of this Agreement, including the Recapitalization, the
borrowings under this Credit Agreement and the issuance of the Senior
Subordinated Notes and the Holdings Notes.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Wholly Owned Subsidiary" means a Subsidiary all the Equity Interests
of which (other than directors'
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qualifying shares) are owned by the Borrower or another Wholly Owned
Subsidiary.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time, provided
that, if the Borrower notifies the Administrative
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Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount not exceeding its Tranche A
Commitment, (b) to make a Tranche B Term Loan to the Borrower on the Closing
Date in a principal amount not exceeding its Tranche B Commitment, (c) to make
a Tranche C Term Loan to the Borrower on the Closing Date in a principal amount
not exceeding its Tranche C Commitment and (d) to make Revolving Loans to the
Borrower on the Closing Date and from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder, provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of
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ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith, provided that all Borrowings made on the Closing Date must be made as
ABR Borrowings. Each Swingline Loan shall be an ABR Loan. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan, provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000,
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Revolving Commitments or that
is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e). Each Swingline Loan shall be in an amount that is an
integral multiple of $500,000 and not less than $500,000. Borrowings of more
than one Type and Class may be outstanding at the same time, provided that
there shall not at any time be more than a total of fifteen Eurodollar
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Tranche A Maturity Date, Tranche B Maturity
Date or Tranche C Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 12:00 noon, New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 12:00 noon, New York City time, one Business Day before the date of the
proposed Borrowing, provided that any such notice of an ABR Revolving Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request
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in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing,
Tranche A Term Borrowing, Tranche B Term Borrowing or Tranche C Term
Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Revolving Availability
Period (other than on the Closing Date), in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the
total Revolving Exposures exceeding the total Revolving Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
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(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day) and amount of the requested Swingline
Loan. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's
Applicable Percentage of such Swingline Loan or Swingline Loans. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and
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thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on
the Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued,
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amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $25,000,000 and (ii) the total
Revolving Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m., New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or,
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if such notice has not been received by the Borrower prior to such time on such
date, then not later than 3:00 p.m., New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to 10:00 a.m., New York City time on the day of
receipt, provided that, if such LC Disbursement is not less than $5,000,000,
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
such Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Revolving Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed
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strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower's obligations hereunder. Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank,
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
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(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder, provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement (other than with respect to the timing of such reimbursement
obligation as set forth in Section 2.05(e)).
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans,
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.12(b). From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term "Issuing Bank" shall
be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with
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respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon, provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (h) or (i) of Article VII. Each such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be Permitted
Investments, made at the option and sole discretion of the Administrative Agent
and at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account and shall be the Borrower's property held by the Collateral Agent for
the satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), shall be applied to satisfy other
obligations of the Borrower under this Agreement. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of
the
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occurrence of an Event of Default, such amount plus any accrued interest or
realized profits on account of such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.11(b),
such amount plus any accrued interest or realized profits on account of such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower as and to the extent that, after giving effect to such return, the
Borrower would remain in compliance with Section 2.11(b) and no Default shall
have occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders, provided that Swingline Loans shall be made
as provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrower in the applicable
Borrowing Request, provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in
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the case of the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
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(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as a
Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class
would be less than the aggregate principal amount of Loans of such Class
required to be repaid on such scheduled repayment date.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Tranche A Commitments, Tranche B Commitments and
Tranche C
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Commitments shall terminate at 5:00 p.m., New York City time, on the Closing
Date and (ii) the Revolving Commitments shall terminate on (A) the Revolving
Maturity Date or (B) unless otherwise agreed in writing by Revolving Lenders
holding a majority of the Revolving Commitments, if more than $20,000,000 in
aggregate principal amount of the Existing Notes is neither (I) repurchased as
part of the Debt Tender Offer nor (II) repaid on or before the Existing Notes
Refinancing Date with the proceeds of the issuance or incurrence of Permitted
Refinancing Indebtedness, the Existing Notes Refinancing Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class, provided that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving
Commitments.
(c) The Tranche B Commitments and Tranche C Commitments shall be
automatically and permanently reduced on the Closing Date by an amount equal to
the aggregate principal amount of the Outstanding Existing Notes on the Closing
Date, such reduction to be allocated pro rata between the Tranche B Commitments
and the Tranche C Commitments based on the aggregate principal amount of such
commitments on the Closing Date.
(d) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable, provided that a notice of termination of
the Revolving Commitments delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments of any Class shall
be permanent. Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments of
such Class.
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SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier
of the Revolving Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made, provided that (A) on each date
that a Revolving Borrowing is made and (B) if requested by the Swingline
Lender, on the last day of March, June, September and December of each year,
the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such
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Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (e) of this Section, the Borrower shall repay Tranche A
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
Date Amount
---- ------
October 31, 2000 $10,000,000
October 31, 2001 $12,000,000
October 31, 2002 $12,000,000
October 31, 2003 $14,000,000
October 31, 2004 $16,000,000
Tranche A Maturity Date $16,000,000
provided, however, that if more than $20,000,000 in aggregate principal amount
of the Existing Notes is neither (i) repurchased as part of the Debt Tender
Offer nor (ii) repaid on or before the Existing Notes Refinancing Date with the
proceeds of the issuance or incurrence of Permitted Refinancing Indebtedness,
then all Tranche A Term Loans not previously repaid shall, unless otherwise
agreed in writing by Tranche A Lenders holding a majority of the outstanding
Tranche A Loans, be due and payable on the Existing Notes Refinancing Date.
(b) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Tranche B Term Borrowings on each date set forth below
in the aggregate principal amount set forth opposite such date:
Date Amount
---- ------
October 31, 2000 $250,000
October 31, 2001 $250,000
October 31, 2002 $250,000
October 31, 2003 $250,000
October 31, 2004 $250,000
October 31, 2005 $250,000
October 31, 2006 $40,000,000
Tranche B Maturity Date $48,500,000
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provided, however, that if more than $20,000,000 in aggregate principal amount
of the Existing Notes is neither (i) repurchased as part of the Debt Tender
Offer nor (ii) repaid on or before the date that is 91 days after the Existing
Notes Refinancing Date with the proceeds of the issuance or incurrence of
Permitted Refinancing Indebtedness, then all Tranche B Term Loans not
previously repaid shall, unless otherwise agreed in writing by Tranche B
Lenders holding a majority of the outstanding Tranche B Loans, be due and
payable on the date that is 91 days after the Existing Notes Refinancing Date.
(c) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Tranche C Term Borrowings on each date set forth below
in the aggregate principal amount set forth opposite such date:
Date Amount
---- ------
October 31, 2000 $250,000
October 31, 2001 $250,000
October 31, 2002 $250,000
October 31, 2003 $250,000
October 31, 2004 $250,000
October 31, 2005 $250,000
October 31, 2006 $250,000
October 31, 2007 $30,000,000
Tranche C Maturity Date $58,250,000
provided, however, that if more than $20,000,000 in aggregate principal amount
of the Existing Notes is neither (i) repurchased as part of the Debt Tender
Offer nor (ii) repaid on or before the date that is 182 days after the Existing
Notes Refinancing Date with the proceeds of the issuance or incurrence of
Permitted Refinancing Indebtedness, then all Tranche C Term Loans not
previously repaid shall, unless otherwise agreed in writing by Tranche C
Lenders holding a majority of the outstanding Tranche C Loans, be due and
payable on the date that is 182 days after Existing Notes Refinancing Date.
(d) To the extent not previously paid, (i) all Tranche A Term Loans
shall be due and payable on the Tranche A Maturity Date, (ii) all Tranche B
Term Loans shall be due and payable on the Tranche B Maturity Date and (iii)
all Tranche C Term Loans shall be due and payable on the Tranche C Maturity
Date.
(e) Any prepayment of a Term Loan of any Class, and any reduction of a
Term Loan Commitment of any Class
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pursuant to Section 2.08(c), shall be applied to reduce the subsequent
scheduled repayments of the Term Loans of such Class to be made pursuant to
this Section ratably. If the initial aggregate amount of the Lenders' Term
Commitments of any Class exceeds the aggregate principal amount of Term Loans
of such Class that are made on the Closing Date, then the scheduled repayments
of Term Borrowings of such Class to be made pursuant to this Section shall be
reduced ratably by an aggregate amount equal to such excess.
Each payment of Borrowings pursuant to this Section 2.10 shall be
accompanied by accrued interest on the principal amount paid to but excluding
the date of payment.
(f) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event that and on each occasion on which the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event that and on each occasion on which any Net Proceeds
are received by or on behalf of Holdings, the Borrower or any Subsidiary in
respect of any Prepayment Event, the Borrower shall, within three Business Days
after such Net Proceeds are received, prepay Term Borrowings in an aggregate
amount equal to such Net Proceeds, provided that, in the case of any event
described in clause (a) of the definition of the term Prepayment Event, if the
Borrower shall deliver to the Administrative Agent a certificate of a Financial
Officer to the effect that the Borrower and the Subsidiaries intend to apply
the Net Proceeds from such event, within 360 days after receipt
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of such Net Proceeds, to either (i) acquire real property, equipment or other
tangible assets to be used in the business of the Borrower and the Subsidiaries
or all of the outstanding capital stock of an entity owning such assets or (ii)
effect investments constituting Permitted Acquisitions permitted by Section
6.04(j), and certifying that no Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of such
event except to the extent of any Net Proceeds therefrom that have not been so
applied by the end of such 360-day period, at which time a prepayment shall be
required in an amount equal to the Net Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending on or about October 31, 2000, the Borrower shall
prepay Term Borrowings in an aggregate amount equal to the excess, if any, of
(i) 50% of Excess Cash Flow for such fiscal year over (ii) the aggregate
principal amount of Term Borrowings prepaid during such fiscal year pursuant to
Section 2.11(a). Each prepayment pursuant to this paragraph shall be made on or
before the date on which financial statements are delivered pursuant to Section
5.01 with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 90 days after the end of such fiscal year).
(e) In the event of any optional or mandatory prepayment of Term
Borrowings made at a time when Term Borrowings of more than one Class remain
outstanding, the Borrower shall select Term Borrowings to be prepaid so that
the aggregate amount of such prepayment is allocated among the Tranche A Term
Borrowings, Tranche B Term Borrowings and Tranche C Term Borrowings pro rata
based on the aggregate principal amount of outstanding Borrowings of each such
Class, provided that any Lender holding Tranche B Term Loans or Tranche C Term
Loans may elect on not less than one Business Day's prior written notice to the
Administrative Agent with respect to any mandatory prepayment to be made
pursuant to Section 2.11(c) or (d), not to have such prepayment applied to such
Lender's Tranche B Term Loans or Tranche C Term Loans, in which case the amount
not so applied shall be applied to prepay Tranche A Term Borrowings and, after
all outstanding Tranche A Term Borrowings have been prepaid, shall be retained
by the Borrower. Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section.
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(f) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment, provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily unused amount of
the Revolving Commitment of such Lender during the period from and including
the Closing Date to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears on the last day of January,
April, July and October of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the
date hereof. All commitment fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing commitment
fees with respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used to the extent of the
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outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date on which such Lender's Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at
the rate of 0.25% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Closing Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of January, April,
July and October of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Closing Date, provided that all such fees shall be payable on the date on which
the Revolving Commitments terminate and any such fees accruing after the date
on which the Revolving Commitments terminate shall be payable on demand. Any
other fees payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
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SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Revolving Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments, provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment
of an ABR Revolving Loan prior to the end of the Revolving Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
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SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lxender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
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Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed material by such Lender, then in accordance with
clause (c) below, the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy), in each case by an amount deemed
material by such Lender, then in accordance with clause (c) below, the Borrower
will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank,
as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of
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the Change in Law giving rise to such increased costs or reductions and of such
Lender's or the Issuing Bank's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall
be extended to include the period of retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes, provided that if the Borrower shall be required
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to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the
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time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably requested by
the Borrower as will permit such payments to be made without withholding or at
a reduced rate, provided that such Foreign Lender has received written notice
from the Borrower advising it of the availability of such exemption or
reduction and supplying all applicable documentation.
(f) If the Administrative Agent or a Lender (or Transferee)
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or
such Lender (or Transferee), agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender (or
Transferee) in the event the Administrative Agent or such Lender (or
Transferee) is required to repay such refund to such Governmental Authority.
Nothing contained in this Section 2.17(f) shall require the Administrative
Agent or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other
Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) on or before the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, New York City time), on the
date when due, in immediately available funds, without setoff or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the
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Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons
specified therein. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment under any Loan Document
shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension. All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans, provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the
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purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a)
Prior to any Lender requesting compensation under Section 2.15, or the Borrower
paying any
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additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the reasonable judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as the case may be, and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee selected by the Borrower that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment),
provided that (i) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Revolving Commitment is being assigned, the
Issuing Bank and Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a material reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.
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ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
the Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and as proposed to be
conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required, except where the failure to
be so qualified could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of Holdings and the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of Holdings, the
Borrower or such Loan Party (as the case may be), enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by or before, any Governmental Authority, except such as have
been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the terms of the charter, by-laws
or other organizational documents of Holdings, the Borrower or any of the
Subsidiaries, or any order of any Governmental Authority, (c) will not violate
or result in a default under any indenture, agreement or other instrument
binding upon Holdings, the Borrower or any of the
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Subsidiaries or any of their assets, or give rise to a right thereunder to
require any payment to be made by Holdings, the Borrower or any of the
Subsidiaries, except where the aggregate amount of all such required payments
is less than $5,000,000 and where such default could not reasonably be expected
to result in a Material Adverse Effect, and (d) will not result in the creation
or imposition of any Lien on any asset of Holdings, the Borrower or any of the
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Effect. (a)
Holdings has heretofore furnished to the Lenders its consolidated balance sheet
and related statements of income, stockholders' equity and cash flows (i) as of
and for the fiscal year ended November 1, 1998, reported on by KPMG, LLP,
independent public accountants, (ii) as of and for the fiscal quarter and the
portion of the fiscal year ended January 31, 1999, certified by its chief
financial officer, (iii) as of and for the fiscal quarter and the portion of
the fiscal year ended April 30, 1999, certified by its chief financial officer.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its consolidated subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clauses (ii) and (iii)
above.
(b) Holdings has heretofore furnished to the Lenders its pro forma
consolidated balance sheet as of the end of the most recently completed fiscal
quarter of Holdings and its subsidiaries ended after April 30, 1999, and that
is at least 45 days prior to the Closing Date, prepared giving effect to the
Transactions as if the Transactions had occurred on such date. Such pro forma
consolidated balance sheet (i) has been prepared in good faith based on the
same assumptions used to prepare the pro forma financial statements included in
the Information Memorandum (which assumptions are believed by Holdings and the
Borrower to be reasonable), (ii) is based on the best information available to
Holdings and the Borrower after due inquiry, (iii) accurately reflects all
adjustments necessary to give effect to the Transactions and (iv) presents
fairly, in all material respects, the pro forma financial position of Holdings
and its consolidated subsidiaries as of the end of the most recently completed
fiscal quarter of Holdings ended after April 30, 1999, and that is at least 45
days prior to the Closing Date, as if the Transactions had occurred on such
date.
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(c) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of Holdings,
the Borrower or the Subsidiaries has, as of the Closing Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(d) Since November 1, 1998, there has been no material adverse effect
on the business, assets, liabilities (including, but not limited to, potential
Environmental Liabilities, litigation liabilities and other contingent
liabilities), prospects, results of operations or condition (financial or
otherwise) of Holdings, the Borrower and their respective subsidiaries, taken
as a whole.
SECTION 3.05. Properties. (a) Each of Holdings, the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for such defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of Holdings, the Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and the use thereof by
Holdings, the Borrower and the Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05(c) sets forth the address of each real property that
is owned or leased by Holdings, the Borrower or any of the Subsidiaries as of
the Closing Date.
(d) As of the Closing Date, neither Holdings, the Borrower nor any of
the Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by
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or before any arbitrator or Governmental Authority pending against or, to the
knowledge of Holdings or the Borrower, threatened against or affecting
Holdings, the Borrower or any of the Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither Holdings, the Borrower
nor any of the Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of Holdings,
the Borrower and the Subsidiaries is in compliance with all laws, regulations
and orders (including any Environmental Law or Applicable Law, margin
regulations and ERISA) of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither Holdings,
the Borrower nor any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Holdings, the Borrower and the
Subsidiaries has timely filed or caused to
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be filed all Tax returns and reports required to have been filed and has paid
or caused to be paid all Taxes required to have been paid by it, except (a) any
Taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Borrower or such Subsidiary, as applicable, has set aside
on its books reserves in accordance with GAAP or (b) failures to file or cause
to be filed or pay or cause to be paid that would not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability to the Borrower or the Subsidiaries is reasonably expected
to occur, could reasonably be expected to result in a Material Adverse Effect.
The present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent audited financial
statements reflecting such amounts, exceed by more than $5,000,000 the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $10,000,000 the fair market value
of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which
Holdings, the Borrower or any of the Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, provided that, with respect to projected financial
information, Holdings and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time such projections were prepared and delivered to the Administrative Agent.
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SECTION 3.12. Subsidiaries. Holdings does not have any subsidiaries
other than the Borrower and the Subsidiaries. Schedule 3.12 sets forth the
name of, and the ownership interest of the Borrower in, each Subsidiary and
identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of
the Closing Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Borrower and the Subsidiaries as of
the Closing Date. As of the Closing Date, all premiums in respect of such
insurance have been paid. Holdings and the Borrower believe that the insurance
maintained by or on behalf of Holdings, the Borrower and the Subsidiaries is
adequate with respect to Holdings's, the Borrower's and the Subsidiaries'
businesses.
SECTION 3.14. Labor Matters. As of the Closing Date, there are no
strikes, lockouts or slowdowns against Holdings, the Borrower or any Subsidiary
pending or, to the knowledge of Holdings or the Borrower, threatened. The hours
worked by and payments made to employees of Holdings, the Borrower and the
Subsidiaries have not been in material violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with
such matters. All payments due from Holdings, the Borrower or any Subsidiary,
or for which any claim may be made against Holdings, the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which Holdings,
the Borrower or any Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date, and immediately following the making
of each Loan made on the Closing Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and
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matured; (c) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.16. Senior Indebtedness. The Obligations of Holdings, the
Borrower and the Subsidiary Loan Parties all constitute "Senior Indebtedness"
under and as defined in the Subordinated Debt Documents, the Existing Notes
Indenture and the indenture or other instrument or agreement pursuant to which
any Permitted Refinancing Indebtedness is at the time outstanding.
SECTION 3.17. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) the computer systems
of Holdings, the Borrower and the Subsidiaries and (b) equipment containing
embedded microchips (including systems and equipment supplied by others or with
which Holdings's, the Borrower's or the Subsidiaries' systems interface) and
the testing of all such systems and equipment, as so reprogrammed, has been
completed in all material respects as of October 31, 1999. The cost to
Holdings, the Borrower and the Subsidiaries of such reprogramming and testing
and of the reasonably foreseeable consequences of the occurrence of the year
2000 to Holdings, the Borrower and the Subsidiaries (including reprogramming
errors and the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for the reprogramming referred to
in the preceding sentence as may be necessary, the computer and management
information systems of Holdings, the Borrower and the Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit Holdings, the Borrower and the
Subsidiaries to conduct their businesses without Material Adverse Effect.
SECTION 3.18. Security Interests. (a) When executed and delivered, the
Pledge Agreement will be effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral (as defined in the Pledge Agreement) and,
when the portion of the Collateral constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Administrative
Agent, such security interest shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgor
thereunder in such Collateral, in each case prior and superior in right to any
other Person.
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(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are
filed in the offices specified on Schedule 6 to each of the Perfection
Certificates, the Security Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral to the extent perfection can be obtained by
filing Uniform Commercial Code financing statements, other than the
Intellectual Property (as defined in the Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the security
interest created thereunder shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in the Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 6.02 (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the date
hereof).
(d) Each Mortgage is effective to create, subject to the exceptions
listed in each title insurance policy covering such Mortgage, in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
3.18(d), the
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Mortgages shall constitute a Lien on all right, title and interest of the Loan
Parties in such Mortgaged Properties and the proceeds thereof, in each case
prior and superior in right to any other Person, other than with respect to the
rights of Persons pursuant to Liens expressly permitted by Section 6.02.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):
SECTION 4.01. Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the
following conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by
Holdings and the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.02. Closing Date. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed
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signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Closing Date) of each of (i) Wachtell, Lipton, Xxxxx & Xxxx, counsel for
Holdings and the Borrower, substantially in the form of Exhibit B-1, (ii)
Xxxxxxxx, Loop & Xxxxxxxx, LLP, Florida counsel for Holdings and the Borrower,
substantially in the form of Exhibit B-2, and (iii) local counsel in each
jurisdiction where a Mortgaged Property is located, substantially in the form
of Exhibit B-3, and, in the case of each such opinion required by this
paragraph, covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably request.
Each of Holdings and the Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions to occur on the Closing Date and any
other legal matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.01.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Administrative Agent shall have received counterparts of the
Security Agreement, the Pledge Agreement and the Indemnity, Subrogation and
Contribution Agreement, each signed on behalf of the Borrower, Holdings and
each Subsidiary Loan Party, together with the following:
(i) stock certificates representing all the outstanding shares of
capital stock of the Borrower and
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each Subsidiary owned by or on behalf of any Loan Party as of the Closing
Date after giving effect to the Transactions (except that stock
certificates representing shares of common stock of a Foreign Subsidiary
may be limited to 65% of the outstanding shares of common stock of such
Foreign Subsidiary), promissory notes evidencing all intercompany
Indebtedness owed to any Loan Party by Holdings, the Borrower or any
Subsidiary as of the Closing Date after giving effect to the Transactions
and stock powers and instruments of transfer, endorsed in blank, with
respect to such stock certificates and promissory notes, provided that in
respect of any Foreign Subsidiary in respect of which stock certificates
are not available, the Administrative Agent shall have received such
other documents as it reasonably requests (including an agreement of the
kind described in Section 8-106(c)(2) of the Uniform Commercial Code);
(ii) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create or
perfect the Liens on the Collateral owned or to be acquired on or before
the Closing Date and intended to be created under the Security Agreement;
and
(iii) a completed Perfection Certificate dated the Closing Date and
signed by an executive officer or Financial Officer of the Borrower,
together with all attachments contemplated thereby, including the results
of a search of the Uniform Commercial Code (or equivalent) filings made
with respect to the Loan Parties, in the jurisdictions contemplated by
the Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search and evidence reasonably
satisfactory to the Administrative Agent that the Liens indicated by such
financing statements (or similar documents) are permitted by Section 6.02
or have been released.
(g) The Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property owned or to be acquired by the
Borrower or any Subsidiary on the Closing Date, signed on behalf of the record
owner of such Mortgaged Property and (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance company, insuring
the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as permitted by Section 6.02,
together with such
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endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request.
(h) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
(i) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions
shall have been obtained, and all applicable waiting periods and appeal periods
shall have expired, in each case without the imposition of any conditions
reasonably expected to have a Material Adverse Effect or to affect the rights
or security of the Lenders hereunder and under the Security Documents.
(j) The Agents shall have received (a) unaudited consolidated balance
sheets and related statements of operations, stockholders' equity and cash
flows of Holdings, the Borrower and the Subsidiaries (excluding the Circon
Businesses) for the fiscal quarters ending after the end of the fiscal year
1998 no later than 45 days following the end of such fiscal quarters (and, to
the extent available, for each month preceding the Closing Date since the last
such quarter) and (b) a pro forma consolidated balance sheet of Holdings as of
the end of the most recently completed fiscal quarter of the Borrower that is
at least 45 days prior to the Closing Date, reflecting all pro forma
adjustments as if the Transactions had been consummated on such date.
(k) The Administrative Agent shall have received a solvency letter, in
form and substance satisfactory to the Lenders, from Valuation Research, Inc.,
with respect to the solvency of the Loan Parties after giving effect to the
Transactions.
(l) Each of the Guarantee Agreements of the Loan Parties (other than
the Borrower) shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and effect.
(m) (i) The Recapitalization and the other Transactions supposed to
occur on or prior to the Closing Date shall have been consummated or shall be
consummated simultaneously with or immediately following the borrowing of the
Term Loans on the Closing Date in accordance with the Recapitalization
Documents and applicable law, without giving effect to any amendment to or
waiver of the Recapitalization Documents that is adverse to the Lenders and not
reasonably satisfactory to the Agents, (ii) the Investor and the Continuing
Shareholders shall have made the
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Equity Contributions and (iii) the Agents shall (x) be satisfied with the
capitalization, structure and equity ownership of Holdings and the Borrower
after giving effect to the Transactions to occur on the Closing Date (it being
agreed that the capitalization, structure and equity ownership of Holdings and
the Borrower to the extent described elsewhere in this Agreement are
satisfactory to the Agents) and (y) be satisfied that the Transaction Costs
(including underwriting commissions and discounts and the Debt Tender Premium),
whether incurred or paid on or before the Closing Date, shall not exceed
$52,200,000. The Administrative Agent shall have received copies of the
Recapitalization Documents and all certificates, opinions and other documents
delivered thereunder, certified by a Financial Officer as complete and correct.
(n) After giving effect to the Transactions, neither Holdings, the
Borrower nor any of the Subsidiaries shall have outstanding any Indebtedness or
preferred stock other than Indebtedness permitted under Sections 6.01(a)(i)
through (viii). The Existing Credit Agreement and any related guarantee and
collateral documents shall have been terminated.
(o) There shall not be in effect with respect to Holdings a
shareholder rights plan (or any other "anti-takeover" measure) that would, in
the Administrative Agent's reasonable judgment, impose materially burdensome
conditions on the Recapitalization or render the purchase of shares of
Holdings's common stock as contemplated by the Recapitalization uneconomical.
(p) The pro forma Consolidated EBITDA of Holdings, the Borrower and
the Subsidiaries (excluding the Circon Businesses) for the twelve-month period
ending on (a) April 30, 1999, shall be at least $73,200,000 and (b) the last
day of the most recent fiscal quarter ended after April 30, 1999, and at least
45 days prior to the Closing Date shall not be materially less than $73,200,000
(and, except as otherwise agreed upon by the Administrative Agent, all pro
forma adjustments to Consolidated EBITDA for any such twelve-month period shall
be in compliance with generally accepted accounting principles and practices in
the United States and prepared in accordance with Regulation S-X under the
Securities Act of 1933, as amended).
(q) The Agents shall be reasonably satisfied as to the amount and
nature of any Environmental Liabilities and exposures and employee health and
safety exposures to which Holdings, the Borrower and the Subsidiaries may be
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subject after giving effect to the Transactions, and with the plans of the
Borrower with respect thereto, and the Agents shall have received an
environmental report reasonably satisfactory to the Administrative Agent
prepared by Pilko & Associates, Inc. with respect to any Environmental
Liabilities that may be attributable to such properties or operations as have
been specified by the Administrative Agent for review.
(r) The terms and conditions of the Senior Subordinated Notes, the
Holdings Notes and the Dividend Note (including terms and conditions relating
to the interest rate, interest payment dates and conditions, the maturity date
and repayments, redemptions or repurchases) and the provisions of the
Subordinated Debt Documents and the Holdings Notes Indenture shall be
satisfactory to the Administrative Agent (it being agreed that the terms and
conditions of the Holdings Notes as contained in the term sheet disclosed to
the Administrative Agent prior to June 12, 1999, are satisfactory to the
Administrative Agent). Without limiting the generality of the foregoing, the
terms of the Holdings Notes shall not require the payment of any cash interest
during the five-year period immediately following the Closing Date, and shall
not, except in circumstances agreed with the Administrative Agent, provide for
the mandatory repayment, redemption or repurchase of the Holdings Notes or the
repayment, redemption or repurchase thereof at the option of the holders
thereof, prior to the date that is 91 days after the Tranche C Maturity Date.
The Administrative Agent shall have received copies of the Subordinated Debt
Documents, Holdings Notes Indenture and the Dividend Note certified by a
Financial Officer as complete and correct.
(s) The Agents shall be reasonably satisfied with (a) the terms and
conditions of the Recapitalization Documents, (b) the terms and conditions of
the Debt Tender Offer and all related documentation and (c) the terms and
conditions of the Services Agreement and all other agreements, arrangements and
understandings between Holdings, the Borrower and the Subsidiaries on the one
hand and Circon and its subsidiaries on the other hand that are to be in effect
after the Circon Acquisition (it being understood and agreed that the terms and
conditions of the Recapitalization Documents and the Debt Tender Offer to the
extent described elsewhere in this Agreement are satisfactory to the Agents).
(t) (i) All conditions to the purchase of the Existing Notes in the
Debt Tender Offer shall have been satisfied without giving effect to any waiver
or amendment
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thereof that is adverse to the Lenders and not reasonably satisfactory to the
Agents, (ii) the Borrower shall have irrevocably accepted for purchase not less
than a majority in principal amount of the Existing Notes, (iii) the negative
covenants with respect to the Existing Notes shall have been eliminated or
modified in a manner reasonably satisfactory to the Administrative Agent,
including so that, after giving effect to the Transactions, no default or event
of default shall exist under the Existing Notes or this Agreement and (iv) any
"change of control" provisions with respect to the Existing Notes shall have
been eliminated or modified in a manner reasonably satisfactory to the
Administrative Agent or waived.
(u) The Agents shall have received the written assumptions for
Holdings's management's consolidated financial projections that were delivered
to the Administrative Agent prior to June 12, 1999, for Holdings, the Borrower
and the Subsidiaries for the period of ten years following the Closing Date,
including on a quarter-by-quarter basis for fiscal years 1999 and 2000.
The Administrative Agent shall notify the Borrower and the Lenders of
the Closing Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on
December 31, 1999 (and, in the event such conditions are not so satisfied or
waived at or prior to such time, the Commitments shall terminate at such time).
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, each of
Holdings and the Borrower covenants and agrees with the Lenders that:
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SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
Holdings's audited consolidated and unaudited consolidating balance sheet
and related statements of operations, stockholders' equity and cash flows
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on by KPMG LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of Holdings and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, Holdings's consolidated and
consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of Holdings and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each of the first two fiscal
months of each fiscal quarter of the Borrower, Holdings's consolidated
balance sheet and related statements of operations (including statements
showing the amount of depreciation, amortizations, capital expenditures,
acquisitions and asset sales) as of the end of and for such fiscal month
and the then elapsed portion of the fiscal year, in a form, and
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prepared on a basis, reasonably acceptable to the Administrative Agent
(it being acknowledged that such balance sheet and statements will not be
deemed to be unacceptable solely because they do not comply with GAAP in
all respects);
(d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.12, 6.13, 6.14 and 6.15, (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the Borrower's
audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate and (iv) setting forth
reasonably detailed information regarding (x) any investments, loans,
advances and other transactions made pursuant to Section 6.04(i) and (y)
any sales, transfers and other dispositions of assets made pursuant to
Section 6.05(d), in each case since the date of the last certificate
provided pursuant to this Section 5.01(d) (or, in the case of the first
certificate given after the Closing Date, since the Closing Date);
(e) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related statements of projected operations
and cash flow as of the end of and for such fiscal year and setting forth
the assumptions used for purposes of preparing such budget) and, promptly
when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all
periodic and other reports,
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proxy statements and other materials filed by Holdings, the Borrower or
any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by
Holdings to its shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may
reasonably request in connection with the Loan Documents.
SECTION 5.02. Notices of Material Events. Holdings and the Borrower
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting
Holdings, the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of Holdings, the Borrower and the Subsidiaries in an
aggregate amount exceeding $3,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in
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the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by
it is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. Holdings and the Borrower agree
not to effect or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. Holdings and the Borrower also agree promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer and the chief legal officer of the Borrower (i) setting forth
the information required pursuant to the Perfection Certificate or confirming
that there has been no change in such information since the date of the
Perfection Certificate delivered on the Closing Date or the date of the most
recent certificate delivered pursuant to this Section and (ii) certifying that
all Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a
description of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified pursuant
to clause (i) above to the extent necessary to protect and perfect the security
interests under the Security Documents for a period of not less than 18 months
after the date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew or replace and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business, provided that the foregoing shall
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not prohibit any merger, consolidation, liquidation or dissolution permitted
under Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, pay its Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) Holdings, the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Each of Holdings and the
Borrower will, and will cause each of the Subsidiaries to, keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of Holdings and the Borrower will, and
will cause each of the Subsidiaries to, maintain, with financially sound and
reputable insurance companies or associations (a) insurance in such amounts
(with no greater risk retention) and against such risks as are customarily
maintained by companies of established repute engaged in the same or similar
businesses operating in the same or similar locations and (b) all insurance
required to be maintained pursuant to the Security Documents. The Borrower will
furnish to the Lenders, upon request of the Administrative Agent, information
in reasonable detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will furnish
to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any Collateral
or any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents.
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SECTION 5.09. Books and Records; Inspection and Audit Rights. Each of
Holdings and the Borrower will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders, including Environmental Laws and Applicable Laws, of
any Governmental Authority applicable to it or its property, including all
regulatory reporting and accounting requirements, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. (a) The proceeds
of the Term Loans, together with the cash portion of the proceeds of the Circon
Acquisition Consideration (which will be transferred by Circon Parent to the
Borrower), the proceeds of the repayment of the Dividend Note (which will be
transferred by Circon Parent to the Borrower) and the issuance of the Senior
Subordinated Notes, will be transferred by the Borrower by means of dividend or
intercompany advance to Holdings on the Closing Date and used by Holdings,
together with the proceeds from the Equity Contributions and the issuance of
the Holdings Notes, only for (i) the payment of the Cash Merger Consideration,
(ii) the repayment of the Existing Indebtedness, (iii) the purchase of all
Existing Notes tendered and not withdrawn pursuant to the Debt Tender Offer and
(iv) the payment of the Transaction Costs (including the Debt Tender Premium).
(b) The proceeds of Revolving Loans, other than those referred to in
paragraph (a) above, will be used by the Borrower for general corporate
purposes, including (i) at any time after the Closing Date, Permitted
Acquisitions and (ii) if the aggregate principal amount of the Outstanding
Existing Notes is less than or equal to $10,000,000, to repurchase or redeem
all or any of the Outstanding Existing Notes.
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(c) Letters of credit will be used by the Borrower for general
corporate purposes.
(d) No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations G, U and X.
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Closing Date, the Borrower will notify the
Administrative Agent thereof and (a) if such Subsidiary is a Subsidiary Loan
Party, the Borrower will cause such Subsidiary to become a party to the
Subsidiary Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and each other applicable Security Document within ten Business Days
after such Subsidiary is formed or acquired, and, within fifteen Business Days
after such Subsidiary is formed or acquired, take such actions to create and
perfect Liens on such Subsidiary's assets to secure the Obligations as the
Administrative Agent or the Required Lenders shall reasonably request and (b)
if any Equity Interest in or Indebtedness of such Subsidiary are owned by or on
behalf of any Loan Party, the Borrower will cause such Equity Interests and
promissory notes evidencing such Indebtedness to be pledged pursuant to the
Pledge Agreement within ten Business Days after such Subsidiary is formed or
acquired (except that, if such Subsidiary is a Foreign Subsidiary, shares of
common stock of such Subsidiary to be pledged pursuant to the Pledge Agreement
may be limited to 65% of the outstanding shares of common stock of such
Subsidiary).
SECTION 5.13. Further Assurances. (a) Each of Holdings and the
Borrower will, and will cause each Subsidiary Loan Party to, execute any and
all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Security
Documents or the validity or priority of any such Lien, all at the expense of
the Loan Parties. Holdings and the Borrower also agree to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.
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(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Closing Date (other than assets
constituting Security under the Security Agreement that become subject to the
Lien of the Security Agreement upon acquisition thereof), the Borrower will
notify the Administrative Agent and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
and in any event within 120 days after the Closing Date, the Borrower will
enter into, and thereafter for a period of not less than three years will
maintain in effect, one or more interest rate protection agreements on such
terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit during such
three-year period the interest cost to the Borrower with respect to at least
50% of the outstanding Term Loans.
SECTION 5.15. Corporate Formalities. The Borrower will establish and
comply with the corporate formalities and procedures specified on Schedule
5.15.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) Holdings
and the Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
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(ii) the Senior Subordinated Notes in an aggregate principal amount
at maturity not to exceed $144,552,000 and, in the case of Holdings, the
Holdings Notes in an aggregate principal amount at maturity not to exceed
$98,549,000;
(iii) the Existing Capital Lease Obligations;
(iv) (A) in the case of the Borrower, the obligations related to
Indebtedness under the Substitution, (B) in the case of Holdings, the
obligations of Holdings pursuant to Section 5.02 of the Existing Notes
Indenture after the Substitution and (C) in the case of the Subsidiaries
who have, at the date hereof, given Guarantees of the Existing Notes
under the Existing Notes Indenture, their obligations under such
Guarantees as of the date hereof;
(v) Permitted Refinancing Indebtedness in an aggregate principal
amount not to exceed the aggregate principal amount of the Outstanding
Existing Notes on the date such Permitted Refinancing Indebtedness is
issued or incurred;
(vi) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof;
(vii) Indebtedness of the Borrower to any Wholly Owned Subsidiary and
of any Wholly Owned Subsidiary to the Borrower or any other Wholly Owned
Subsidiary, provided that Indebtedness of any Wholly Owned Subsidiary
that is not a Loan Party to the Borrower or any Wholly Owned Subsidiary
Loan Party shall be subject to Section 6.04;
(viii) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary, provided that Guarantees by the Borrower or any Subsidiary
Loan Party of (A) Senior Subordinated Notes, (B) Existing Notes, (C)
Permitted Refinancing Indebtedness or (D) Indebtedness of any Subsidiary
that is not a Loan Party shall be subject to Section 6.04;
(ix) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital
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assets, including Capital Lease Obligations and any Indebtedness assumed
in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof, provided that
such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, and
extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof, provided that the
aggregate principal amount of Indebtedness permitted by this clause (ix)
shall not exceed $20,000,000 at any time outstanding;
(x) Indebtedness of any Person that becomes a Subsidiary after the
date hereof, provided that (A) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (B) the aggregate
principal amount of Indebtedness permitted by this clause (x) shall not
exceed $10,000,000 at any time outstanding;
(xi) other unsecured Indebtedness of the Borrower or any Subsidiary
in an aggregate principal amount not exceeding $10,000,000 at any time
outstanding;
(xii) Indebtedness in respect of Hedging Agreements permitted by
Section 6.07; and
(xiii) Indebtedness incurred by the Borrower or any of the
Subsidiaries constituting reimbursement obligations with respect to
letters of credit issued in the ordinary course of business, including
letters of credit in respect of workers' compensation claims or
self-insurance.
(b) Holdings will not create, incur, assume or permit to exist any
Indebtedness except (i) the Holdings Notes, (ii) the Guarantees of the Senior
Subordinated Notes, (iii) Indebtedness in respect of the Outstanding Existing
Notes pursuant to Section 5.02 of the Existing Notes Indenture, (iv) the
Permitted Refinancing Indebtedness or any Guarantee thereof and (v)
Indebtedness created under the Loan Documents.
(c) Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, issue any preferred stock or other preferred Equity Interests.
SECTION 6.02. Liens. (a) Holdings and the Borrower will not, and will
not permit any Subsidiary to,
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create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02,
provided that (A) such Lien shall not apply to any other property or
asset of Holdings, the Borrower or any Subsidiary and (B) such Lien shall
secure only those obligations that it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary, provided that
(A) such Lien is not created in contem plation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may
be, (B) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (C) such Lien shall secure only those
obligations that it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof; and
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, provided that (A) such
security interests secure Indebtedness permitted by clause (ix) of
Section 6.01(a), (B) such security interests and the Indebtedness secured
thereby are incurred prior to or within 90 days after such acquisition or
the completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 80% of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
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(b) Holdings will not create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect thereof, except Liens created under the Pledge Agreement or the
Security Agreement and Permitted Encumbrances.
SECTION 6.03. Fundamental Changes. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) Holdings and the Purchaser may consummate the
Merger, (ii) any Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (iii) any Person may merge
with or into or consolidate with any Subsidiary in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) the surviving entity is a Subsidiary Loan Party, (iv)
any Subsidiary may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it in any sale or other
disposition permitted under Section 6.05, (v) any Subsidiary (other than a
Subsidiary Loan Party) may liquidate or dissolve if the Borrower determines in
good faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders and (vi) the
Borrower may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Borrower in another jurisdiction, provided that Holdings
pledges the stock of the surviving entity to the Collateral Agent as security
for the Obligations and, in connection with such merger, Holdings and its
subsidiaries execute such other documents as are reasonably requested by the
Administrative Agent to effect the purposes of this Agreement and the other
Loan Documents, provided further that any such merger or consolidation
involving a Person that is not a Wholly Owned Subsidiary immediately prior to
such merger or consolidation shall not be permitted unless also permitted by
Sections 6.04 and 6.08.
(b) The Borrower will not, and will not permit any of the Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and the Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto.
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(c) Holdings will not engage in any business or activity other than
the ownership of all the outstanding shares of capital stock of the Borrower,
the issuance of the Holdings Notes and activities incidental thereto, including
rental payments, computer services, professional and consultant services,
investment services, printing, travel and other miscellaneous services.
Holdings will not own or acquire any assets (other than shares of capital stock
of the Borrower, cash and Permitted Investments) or incur any liabilities
(other than liabilities under the Loan Documents, liabilities imposed by law,
including tax liabilities, liabilities under the Holdings Notes and other
liabilities incidental to its existence and permitted business and activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of the
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger)
any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(a) pursuant to the Transactions;
(b) Permitted Investments;
(c) Investments permitted pursuant to Section 2.11(c);
(d) investments existing on the date hereof and set forth on Schedule
6.04(d);
(e) investments by the Borrower and the Subsidiaries in Equity
Interests in their respective Subsidiaries, provided that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the
Pledge Agreement (subject to the limitations applicable to common stock
of a Foreign Subsidiary referred to in Section 5.12) and (ii) the
aggregate amount of investments by Loan Parties in, and loans and
advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness of, Subsidiaries that are not Loan Parties (excluding all
such investments,
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loans, advances and Guarantees existing on the Closing Date to the extent
set forth on Schedule 6.04(e)) shall not exceed $15,000,000 (based on
cost and net of any cash distributed by such Subsidiaries that are not
Loan Parties to Loan Parties that represent a return of paid-in capital
or repayment of principal) at any time outstanding;
(f) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary, provided that
(i) any such loans and advances made by a Loan Party shall be evidenced
by a promissory note pledged pursuant to the Pledge Agreement and (ii)
the amount of such loans and advances made by Loan Parties to
Subsidiaries that are not Loan Parties shall be subject to the limitation
set forth in clause (e) above;
(g) Guarantees constituting Indebtedness permitted by Section 6.01,
provided that, other than in respect of the Guarantees in effect on the
date hereof in respect of the Outstanding Existing Notes, (i) neither
Holdings, the Borrower nor any Subsidiary shall Guarantee the Senior
Subordinated Notes, the Outstanding Existing Notes or any Permitted
Refinancing Indebtedness unless (A) Holdings or such Subsidiary, as
applicable, also has Guaranteed the Obligations pursuant to a Guarantee
Agreement, (B) such Guarantee of the Senior Subordinated Notes, the
Outstanding Existing Notes or such Permitted Refinancing Indebtedness, as
applicable, is subordinated to such Guarantee of the Obligations on terms
no less favorable to the Lenders than the subordination provisions of the
Senior Subordinated Notes, the Outstanding Existing Notes or such
Permitted Refinancing Indebtedness, as applicable, and (C) such Guarantee
of the Senior Subordinated Notes or such Permitted Refinancing
Indebtedness, as applicable, provides for the release and termination
thereof, without action by any party, (x) upon, in the case of a
Subsidiary, the applicable Subsidiary's ceasing to be a subsidiary as a
result of any foreclosure under any of the Security Documents or any
other exercise of remedies in respect thereof if that Subsidiary is
released from its Guarantee of the Obligations and (y) in the
circumstances set forth in Section 11.02(b) of the indenture forming part
of the Subordinated Debt Documents relating to the Senior Subordinated
Notes (as in effect on the date hereof) and (ii) the aggregate principal
amount of Indebtedness of Subsidiaries that are not Loan Parties that is
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Guaranteed by any Loan Party shall be subject to the limitation set forth
in clause (e) above;
(h) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(i) investments constituting Permitted Acquisitions not to exceed
$75,000,000 (based on cost and net of any cash distributed by the entity
that was the subject of the Permitted Acquisition to the extent that such
distribution represents a return of paid-in capital or repayment of
principal) in the aggregate (which amount will be deemed to (x) include
(A) the amount of any Indebtedness acquired or assumed in connection with
Permitted Acquisitions and (B) as soon as such obligations must be
recognized as liabilities under GAAP, any obligations in respect of
earn-out arrangements, non-compete arrangements or long-term consulting
or employment arrangements, in each case incurred directly in connection
with a Permitted Acquisition, and (y) exclude the amount of any Equity
Interests (other than Disqualified Stock) in Holdings issued to (A) the
seller in such Permitted Acquisition or (B) the Investor or a third party
reasonably acceptable to the Administrative Agent to provide proceeds
solely to be used by the Borrower to consummate such Permitted
Acquisition);
(j) investments constituting Permitted Acquisitions that are made
using the Net Proceeds of a sale, transfer or other disposition of assets
effected pursuant to Section 6.05(d) (other than any Net Proceeds that
have already been used for purposes permitted under Section 2.11) and
that are made within 360 days after receipt of such Net Proceeds, to the
extent that the Equity Interests or assets acquired in the Permitted
Acquisition become subject to the Security Documents pursuant to Section
5.12 or 5.13 (the "Secured Assets"), provided that if a particular
Permitted Acquisition is comprised of Secured Assets and Equity Interests
and assets that will not be Secured Assets (the "Unsecured Assets") then
(x) the investment in the Unsecured Assets must be permitted by Section
6.04(i) as if it were a separate Permitted Acquisition and (y) for the
purposes of determining whether the investment
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in such Permitted Acquisition is permitted pursuant to Section 6.04(i)
and this Section 6.04(j), the aggregate cost of the investment in such
Permitted Acquisition shall be allocated on a pro rata basis between the
Secured Assets and the Unsecured Assets based upon the gross profit
earned during the twelve months immediately prior to the date of the
Permitted Acquisition in respect of such assets as calculated in
accordance with GAAP;
(k) Loans and advances to employees, directors or consultants in the
ordinary course of business of the Borrower and the Subsidiaries as
presently conducted by Holdings in an aggregate principal amount
(excluding all such loans and advances existing on the Closing Date to
the extent set forth on Schedule 6.04(k), and any refinancings thereof on
substantially similar terms) not to exceed $5,000,000;
(l) Investments by the Borrower in Hedging Agreements permitted under
Section 6.07;
(m) receivables owing to the Borrower or any Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms (and any receivables and/or
securities received in full or partial satisfaction thereof from
financially troubled debtors to the extent necessary in order to prevent
or limit loss), provided, however, that such trade terms may include such
concessionary trade terms as the Borrower or any such Subsidiary deems
reasonable under the circumstances;
(n) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course
of business; and
(o) Investments that are made exclusively with Equity Interests of
Holdings (other than Disqualified Stock); and
(p) other investments in an aggregate amount not to exceed $5,000,000.
SECTION 6.05. Asset Sales. The Borrower will not, and will not permit
any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of any
asset, including
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any Equity Interest owned by it, nor will the Borrower permit
any of the Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) the sales, transfers and other dispositions comprising the Circon
Acquisition, the Asset Dropdown and any associated transaction forming
part of the Transactions;
(b) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(c) sales, transfers and dispositions to the Borrower or a
Wholly-Owned Subsidiary, provided that any such sales, transfers or
dispositions involving a Subsidiary that is not a Loan Party shall be
made in compliance with Section 6.09; and
(d) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary) that are not permitted by any other
clause of this Section, provided that the aggregate fair market value of
all assets sold, transferred or otherwise disposed of in reliance upon
this clause (c) shall not exceed (x) $50,000,000 in aggregate during the
period from the Closing Date until the last day of the fiscal year ending
on or about October 31, 2001, (y) $15,000,000 during any fiscal year of
the Borrower thereafter or (z) $80,000,000 in the aggregate during the
term of this Agreement, provided, however, that assets with an aggregate
book value of less than $100,000 sold, transferred or otherwise disposed
of in a single transaction or a series of related transactions shall not
be included in the determination of the aggregate fair market value of
assets sold, transferred or otherwise disposed of in reliance upon this
clause (d);
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (c) above) shall be made for fair
value and (other than those permitted by clause (c) above) shall be made for at
least 50% cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use
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for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets that is
made for cash consideration in an amount not less than the cost of such fixed
or capital asset and is consummated within 90 days after the Borrower or such
Subsidiary acquires or completes the construction of such fixed or capital
asset.
SECTION 6.07. Hedging Agreements. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, other than
(a) Hedging Agreements required by Section 5.14 and (b) Hedging Agreements
entered into in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Subsidiary is exposed in the conduct of its business
or the management of its liabilities. Solely for the avoidance of doubt,
Holdings and the Borrower acknowledge that a Hedging Agreement entered into for
speculative purposes or of a speculative nature (which shall be deemed to
include any Hedging Agreement under which Holdings, the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (x) in connection
with the purchase by any third party of any capital stock or any Indebtedness
or (y) as a result of changes in the market value of any capital stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except (i) Holdings may repurchase Shares, and acquire stock options for cash,
pursuant to the Merger; (ii) Holdings may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its common
stock; (iii) Subsidiaries may declare and pay dividends ratably with respect to
their capital stock; (iv) the Borrower may pay dividends to Holdings in amounts
equal to amounts expended by Holdings to repurchase or otherwise acquire shares
of, or options to purchase shares of, common stock of Holdings from employees,
former employees, consultants, former consultants, directors or former
directors of Holdings, the Borrower or any Subsidiary (or permitted transferees
of such employees, former employees, consultants, former consultants, directors
or former directors), pursuant to the terms of agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of Directors
of Holdings under which such individuals purchase or sell, or are
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granted the option to purchase or sell, shares of such common stock of
Holdings, provided, however, that the aggregate amount paid to Holdings
pursuant to this clause (iv) shall not exceed in any calendar year the sum of
(x) $6,500,000 plus (y) the Net Proceeds received since the date of this
Agreement and not previously credited to any repurchase or other acquisition of
such shares or options to purchase shares of common stock pursuant to this
clause (iv) received by Holdings and contributed to the Borrower from the sale
of Equity Interests to employees, consultants and directors of Holdings, the
Borrower or any Subsidiary; (v) the Borrower may pay dividends to Holdings at
such times and in such amounts equal to the amounts required for Holdings to
pay taxes, franchise fees and other fees required to maintain its corporate
existence and provide for other operating costs of up to $1,000,000 during any
fiscal year (other than liabilities in respect of the Holdings Notes); (vi) the
Borrower may pay dividends to Holdings in amounts equal to amounts necessary
for Holdings to make loans or advances to employees in the ordinary course of
business in accordance with past practices of Holdings, but in any event not to
exceed, when aggregated with amounts loaned or advanced under Section 6.04(j),
$5,000,000 in the aggregate outstanding at any one time; (vii) any purchase,
repurchase, retirement, defeasance or other acquisition or retirement for value
of Equity Interests of Holdings made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Equity Interests of Holdings (other than
Disqualified Stock and other than Equity Interests issued or sold to the
Borrower or a Subsidiary or an employee stock ownership plan or other trust
established by the Borrower or any of the Subsidiaries); and (viii) the
Borrower may at any time after the date that is five years after the Closing
Date, provided that no Default or Event of Default has occurred and is
continuing or will occur as a result of such payment and to the extent
permitted by the Subordinated Debt Documents and the Existing Notes Debenture
in each case as in effect on the date hereof, pay dividends to Holdings when
and to the extent necessary to fund payments of interest accrued and payable on
the Holdings Notes.
(b) Neither Holdings nor the Borrower will, nor will they permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any
payment or other distribution (whether in cash, securities or other property)
of or in respect of principal of or interest on any Indebtedness, or any
payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
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redemption, retirement, acquisition, cancelation or termination of any
Indebtedness (including the Holdings Notes), except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) the purchase of Existing Notes either (x) pursuant to the Debt
Tender Offer, (y) financed with the proceeds of the Permitted Refinancing
Indebtedness or (z) to the extent permitted by Section 5.11(b), with the
proceeds of a Revolving Loan;
(iii) the repayment or repurchase of the Existing Indebtedness on the
Closing Date;
(iv) payment of regularly scheduled interest and principal payments
as and when due in respect of any Indebtedness, other than (A) payments
in respect of the Senior Subordinated Notes or Outstanding Existing Notes
prohibited by the subordination provisions thereof and (B) payments in
cash in respect of interest on the Holdings Notes prior to the date that
is five years after the Closing Date;
(v) refinancings of Indebtedness to the extent permitted by Section
6.01; and
(vi) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness.
SECTION 6.09. Transactions with Affiliates. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) transactions in the ordinary course of
business that do not involve Holdings and are at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.08, (d) any issuance by Holdings of securities or by the Borrower of debt
securities, or other payments, awards or grants in cash, securities (other
than, in respect of the Borrower, Equity Interests) or otherwise pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans approved by the
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Board of Directors of the Borrower, (e) the grant of stock options or similar
rights in respect of Equity Interests in Holdings to employees and directors of
the Borrower pursuant to plans approved by the Board of Directors of the
Borrower, (f) customary indemnification and insurance arrangements in favor of
officers, directors, employees and consultants of Holdings, the Borrower or any
Subsidiary, (g) the payment of management fees by the Borrower or any
Subsidiary, provided that such fees shall not exceed an aggregate amount per
annum equal to 2.0% of the Consolidated EBITDA of Holdings for the fiscal year
most recently ended, and provided further that no Default or Event of Default
has occurred and is continuing, (h) the existence of, or the performance by
Holdings, the Borrower or any Subsidiary of the obligations under the terms of,
any stockholders agreements (including any registration rights agreement or
purchase agreement related thereto) to which it is a party as of the Closing
Date, which agreements are listed on Schedule 6.09(h), as such agreements may
be amended on terms reasonably satisfactory to the Administrative Agent from
time to time pursuant to the terms thereof, provided, however, that the terms
of any such amendment are no less favorable to the Lenders than the terms of
any such agreements in effect as of the Closing Date, and (i) the issuance of
Equity Interests (other than Disqualified Stock) of Holdings for cash to the
Sponsor, the Continuing Shareholders or other senior management of the
Borrower.
SECTION 6.10. Restrictive Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital
stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary, provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, any Subordinated Debt
Document, the Holdings Notes Indenture or any indenture or other instrument or
agreement pursuant to which any Permitted Refinancing Indebtedness is issued or
incurred (provided that the restrictions or conditions imposed by such
indenture, instrument or agreement are no more restrictive than those contained
in the Subordinated Debt Documents), (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule
6.10 (but shall apply to
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any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof, (vi) clause (a) of the foregoing
shall not apply to restrictions on cash or other deposits imposed by customers
under contracts entered into in the ordinary course of business on the parties
to such contracts and (vii) clause (a) of the foregoing shall not apply to any
encumbrance or restriction on the assets of any joint venture that is (A)
contained in any joint venture agreement or other similar agreement with
respect to such joint venture that was entered into in the ordinary course of
business and (B) customary for such types of agreements.
SECTION 6.11. Amendment of Material Documents. Neither Holdings nor
the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any Subordinated Debt Document or indenture
or other instrument or agreement under which any Permitted Refinancing
Indebtedness is issued or incurred, (b) the Holdings Notes Indenture, (c) its
certificate of incorporation, by-laws or other organizational documents, (d)
the Services Agreement or (e) any other material document or agreement, in each
case in any manner that would impair in any material respect the value of the
interests or rights of Holdings, the Borrower or such Subsidiary thereunder or
that would impair in any material respect the rights or interests of any Agent
or any Lender.
SECTION 6.12. Interest Coverage Ratio. The Borrower will not permit
the ratio (the "Interest Coverage Ratio") of Adjusted Consolidated EBITDA of
the Borrower to Consolidated Cash Interest Expense for (a) the fiscal quarter
period ended as of January 31, 2000, to be less than 1.50 to 1.00, (b) the two
fiscal quarter period ended as of April 30, 2000, to be less than 1.50 to 1.00,
(c) the three fiscal quarter period ended as of July 31, 2000, to be less than
1.55 to 1.00 or (d) any Test Period ending on the last day of any fiscal
quarter included in any period (or
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ending on any date) set forth on the table below to be less than the ratio set
forth opposite such period or date:
Period: Ratio:
------- ------
August 1, 2000, to April 30, 2001 1.55 to 1.00
May 1, 2001, to October 31, 2001 1.65 to 1.00
November 1, 2001, to April 30, 2002 1.70 to 1.00
May 1, 2002, to October 31, 2002 1.75 to 1.00
November 1, 2002, to April 30, 2003 1.80 to 1.00
May 1, 2003, to October 31, 2003 1.90 to 1.00
November 1, 2003, to April 30, 2004 1.90 to 1.00
May 1, 2004, to October 31, 2004 2.00 to 1.00
November 1, 2004, to April 30, 2005 2.20 to 1.00
May 1, 2005, to October 31, 2005 2.20 to 1.00
November 1, 2005, to April 30, 2006 2.40 to 1.00
May 1, 2006, to October 31, 2006 2.40 to 1.00
November 1, 2006, to April 30, 2007 3.00 to 1.00
May 1, 2007, to October 31, 2007 3.25 to 1.00
November 1, 2007, and thereafter 3.50 to 1.00
SECTION 6.13. Total Adjusted Leverage Ratio. The Borrower will not
permit the Total Adjusted Leverage Ratio as of the last day of any fiscal
quarter included in any period (or ending on any date) set forth below to be
more than the ratio set forth in the table below opposite such period or date:
Period: Ratio:
------- ------
Closing Date to January 31, 2000 6.50 to 1.00
February 1, 2000, to April 30, 2000 6.50 to 1.00
May 1, 2000, to October 31, 2000 6.20 to 1.00
November 1, 2000, to April 30, 2001 5.80 to 1.00
May 1, 2001, to October 31, 2001 5.65 to 1.00
November 1, 2001, to April 30, 2002 5.50 to 1.00
May 1, 2002, to October 31, 2002 5.25 to 1.00
November 1, 2002, to April 30, 2003 5.00 to 1.00
May 1, 2003, to October 31, 2003 4.85 to 1.00
November 1, 2003, to April 30, 2004 4.75 to 1.00
May 1, 2004, to October 31, 2004 4.50 to 1.00
November 1, 2004, to April 30, 2005 4.35 to 1.00
May 1, 2005, to October 31, 2005 4.25 to 1.00
November 1, 2005, to April 30, 2006 4.00 to 1.00
May 1, 2006, to October 31, 2006 3.60 to 1.00
November 1, 2006, to April 30, 2007 3.00 to 1.00
May 1, 2007, to October 31, 2007 2.75 to 1.00
November 1, 2007, and thereafter 2.75 to 1.00
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SECTION 6.14. Senior Adjusted Leverage Ratio. The Borrower will not
permit the Senior Adjusted Leverage Ratio as of the last day of any fiscal
quarter included in any period (or ending on any date) set forth below to be
more than the ratio set forth in the table below opposite such period or date:
Period: Ratio:
------- ------
Closing Date to January 31, 2000 4.30 to 1.00
February 1, 2000, to April 30, 2000 4.20 to 1.00
May 1, 2000, to October 31, 2000 4.10 to 1.00
November 1, 2000, to April 30, 2001 3.75 to 1.00
May 1, 2001, to October 31, 2001 3.75 to 1.00
November 1, 2001, to April 30, 2002 3.50 to 1.00
May 1, 2002, to October 31, 2002 3.30 to 1.00
November 1, 2002, to April 30, 2003 3.30 to 1.00
May 1, 2003, to October 31, 2003 3.00 to 1.00
November 1, 2003, to April 30, 2004 3.00 to 1.00
May 1, 2004, to October 31, 2004 2.80 to 1.00
November 1, 2004, to April 30, 2005 2.60 to 1.00
May 1, 2005, to October 31, 2005 2.60 to 1.00
November 1, 2005, to April 30, 2006 2.40 to 1.00
May 1, 2006, to October 31, 2006 2.25 to 1.00
November 1, 2006, to April 30, 2007 1.75 to 1.00
May 1, 2007, to October 31, 2007 1.75 to 1.00
November 1, 2007, and thereafter 1.75 to 1.00
SECTION 6.15. Capital Expenditures. (a) The Borrower will not, and
will not permit any of the Subsidiaries to, make any Capital Expenditures that
would
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cause the aggregate amount of such Capital Expenditures made by the Borrower
and the Subsidiaries in any fiscal year of the Borrower (i) ending on or about
October 31, 1999, to exceed $25,000,000, (ii) ending on or about October 31,
2000, October 31, 2001, or October 31, 2002 to exceed $15,000,000 and (ii)
ending thereafter to exceed $20,000,000, provided that (x) expenditures made in
connection with the replacement, substitution or restoration of assets (i) to
the extent financed from insurance proceeds paid on account of the loss of or
damage to the assets being replaced or restored or (ii) with awards of
compensation arising from the taking by eminent domain or condemnation of the
assets being replaced, (y) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment to the extent that the
gross amount of such purchase price is reduced by the credit granted by the
seller of such equipment for the equipment being traded in at such time and (z)
the purchase price of plant, property or equipment made within one year of the
sale of any asset to the extent purchased for an aggregate amount not in excess
of the amount of the Net Proceeds of such sale shall not be included in the
calculation of Capital Expenditures pursuant to this Section 6.15.
(b) Notwithstanding the foregoing, the Borrower may in any fiscal
year, upon written notice to the Administrative Agent, increase the amount of
Capital Expenditures permitted to be made during such fiscal year pursuant to
this Section 6.15 by an amount equal to the lesser of (i) the total unused
amount of Capital Expenditures permitted to be made pursuant to this Section
6.15 for the immediately preceding fiscal year (minus the amount of any unused
Capital Expenditures permitted to be made pursuant to this Section 6.15 that
were carried forward to such preceding fiscal year pursuant to this paragraph
(b)) and (ii) 50% of the amount of Capital Expenditures permitted to be made
pursuant to this Section 6.15 for the immediately preceding fiscal year (minus
the amount of any unused Capital Expenditures permitted to be made pursuant to
this Section 6.15 that were carried forward to such preceding fiscal year
pursuant to this paragraph (b)).
SECTION 6.16. Fiscal Year. Holdings and the Borrower will not, and
will not permit the Subsidiaries to, change the financial reporting convention
by which Holdings, the Borrower and the Subsidiaries determine the dates on
which their fiscal years and fiscal quarters will end.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of Holdings, the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall prove
to have been incorrect in any material respect when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of Holdings or the Borrower) or 5.11 or in
Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender);
(f) Holdings, the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any
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Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity, provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Holdings, the Borrower or any Subsidiary or its
debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
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(j) Holdings, the Borrower or any Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 (after giving effect to insurance
payments, if any) shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of Holdings, the
Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events for
which liability of the Borrower or the Subsidiaries is reasonably
expected to occur, could reasonably be expected to result in liability of
the Borrower and the Subsidiaries in an aggregate amount exceeding (i)
$5,000,000 in any year or (ii) $15,000,000 for all periods;
(m) (i) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, having a value in excess of
$10,000,000, with the priority required by the applicable Security
Document, except (A) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents
or (B) as a result of the Administrative Agent's failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Security Agreement or (ii) the
Obligations of the Borrower, or the obligations of Holdings or any
Subsidiaries pursuant to a Guarantee Agreement, shall cease to constitute
senior indebtedness under the subordination provisions of any document or
instrument evidencing any permitted subordinated Indebtedness or such
subordination provisions shall be invalidated or otherwise cease to be
legal, valid and binding obligations of the parties thereto, enforceable
in accordance with their terms; or
(n) a Change in Control shall occur;
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then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans
so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations
of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms of the Loan Documents, together with
such actions and powers as are reasonably incidental thereto. For purposes of
this Article VIII and for the purposes of Article IX, all references to the
Administrative Agent are deemed to include the Collateral Agent.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with Holdings, the Borrower or any Subsidiary or any
Affiliate of any of the foregoing as if it were not the Administrative Agent
hereunder.
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The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated by the Loan
Documents that the Administrative Agent is required to exercise in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Holdings, the Borrower or any
of the Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall not be deemed
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by Holdings, the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith, (iii)
the performance or observance of any of the covenants, agreements or other
terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
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genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any of and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower, to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-
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agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Holdings or the Borrower, to it at 00000 00xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention of Paulee Day (Telecopy No. (727)
561-2180);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx (Telecopy No. (212)
552-7500), with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxxx (Telecopy No. (212)
270-5135);
(c) if to the Issuing Bank, to it at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx (Telecopy No. (212)
552-7500);
(d) if to the Swingline Lender, to it at 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx (Telecopy No. (212)
552-7500); and
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(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrower and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required
Lenders, provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of
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interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date of any
scheduled payment of the principal amount of any Loan or LC Disbursement, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such scheduled payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
Holdings or any material Subsidiary Loan Party from its Guarantee under the
applicable Guarantee Agreement (except as expressly provided in such Guarantee
Agreement), or limit its liability in respect of such Guarantee, without the
written consent of each Lender, (vii) release all or substantially all of the
Collateral from the Liens of the Security Documents, without the written
consent of each Lender (except as expressly provided in such Security
Documents), (viii) change any provisions of any Loan Document in a manner that
by its terms adversely affects the rights in respect of payments due to Lenders
holding Loans of any Class differently than those holding Loans of any other
Class, without the written consent of Lenders holding a majority in interest of
the outstanding Loans and unused Commitments of each affected Class or (ix)
change the rights of the Tranche B Lenders or Tranche C Lenders to decline
mandatory prepayments as provided in Section 2.11, without the written consent
of Tranche B Lenders or Tranche C Lenders, as applicable, holding a majority of
the outstanding Tranche B Term Loans or Tranche C Term Loans, as applicable;
provided further that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Bank or
the Swingline Lender without the prior written consent of the Administrative
Agent, the Issuing Bank or the Swingline Lender, as the case may be, and (B)
any waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of the Revolving Lenders (but
not the Tranche A Lenders, Tranche B Lenders and Tranche C Lenders), the
Tranche A Lenders (but not the Revolving Lenders, Tranche B Lenders and Tranche
C Lenders), the Tranche B Lenders (but not the Revolving Lenders, Tranche A
Lenders and Tranche C
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Lenders) or the Tranche C Lenders (but not the Revolving Lenders, the Tranche A
Lenders and the Tranche B Lenders) may be effected by an agreement or
agreements in writing entered into by Holdings, the Borrower and requisite
percentage in interest of the affected Class of Lenders that would be required
to consent thereto under this Section if such Class of Lenders were the only
Class of Lenders hereunder at the time. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by Holdings, the Borrower, the Required Lenders and the Administrative
Agent (and, if their rights or obligations are affected thereby, the Issuing
Bank and the Swingline Lender) if (i) by the terms of such agreement the
Commitment of each Lender not consenting to the amendment provided for therein
shall terminate upon the effectiveness of such amendment and (ii) at the time
such amendment becomes effective, each Lender not consenting thereto receives
payment in full of the principal of and interest accrued on each Loan made by
it and all other amounts owing to it or accrued for its account under this
Agreement and the other Loan Documents, provided that each such Lender shall
thereafter remain entitled to its rights under Sections 2.15, 2.16, 2.17 and
9.03 and Article VIII.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, their due
diligence investigation of Holdings, the Borrower and the Subsidiaries, the
preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
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(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence, Release or threatened
Release of Hazardous Materials on or from any Mortgaged Property or any other
property currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that (i) such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee or (ii) such losses,
claims, damages, liabilities or related expenses of a Lender result from
disputes among such Lender and one or more other Lenders.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's pro rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as
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such. For purposes hereof, a Lender's "pro rata share" shall be determined
based upon its share of the sum of the total Revolving Exposures, outstanding
Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor
the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
ten days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more additional banks or other
financial institutions (or such other entity as consented to by the Borrower
and the Administrative Agent), all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it), provided that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender or Related Fund of any
Lender (other than an assignment of all or any portion of a Lender's Revolving
Commitment to an assignee that was not a Revolving Lender immediately prior to
such assignment), each of the Borrower and the Administrative Agent (and, in
the
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case of an assignment of all or a portion of a Revolving Commitment or any
Lender's obligations in respect of its LC Exposure or Swingline Exposure, the
Issuing Bank and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed,
it being understood that, without limitation, the Borrower shall have the right
to withhold its consent to any assignment if (x) increased costs would result
therefrom or (y) if in order for such assignment to comply with applicable law,
the Borrower would be required to obtain the consent of, or make any filing or
registration with, any Governmental Authority), (ii) except in the case of an
assignment to a Lender or an Affiliate or Related Fund of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, except that this clause (iii)
shall not be construed to prohibit the assignment of a proportionate part of
all the assigning Lender's rights and obligations in respect of one Class of
Commitments or Loans, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default
under clause (h) or (i) of Article VII has occurred and is continuing. Subject
to acceptance and recording thereof pursuant to paragraph (d) of this Section,
from and after the effective date specified in each Assignment and Acceptance
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights
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or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e)
of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and Holdings, the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it),
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) Holdings, the
Borrower, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any
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agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents, provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPV"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement, provided that
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(i) nothing herein shall constitute a commitment by any SPV to make any Loan
and (ii) if an SPV elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary in this Section 9.04, any
SPV may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. As this Section
9.04(h) applies to any particular SPV, this section may not be amended without
the written consent of such SPV.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and
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effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement, the
other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.02, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time
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held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against Holdings, the Borrower or its
properties in the courts of any jurisdiction.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to a written
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or
(ii) prospective direct or indirect counterparties in swap agreements to be
entered into in
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connection with Loans made hereunder, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than Holdings or the Borrower. For the purposes of this
Section, "Information" means all information received from Holdings or the
Borrower relating to Holdings or the Borrower or their respective businesses,
other than any such information that was made available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by Holdings or the Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised
customary procedures for handling confidential information of the same nature
as the Information in accordance with safe and sound banking practices.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor)
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until such cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been received by such
Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
MAXXIM MEDICAL, INC.,
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President, Chief Executive
Officer, and Chairman
MAXXIM MEDICAL GROUP, INC.,
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President, Chief Executive
Officer, Secretary, and
Treasurer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent and
Collateral Agent,
by /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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BANKERS TRUST COMPANY, individually and
as Co-Syndication Agent,
by /s/ M.A. Orlando
----------------------------------
Name: M.A. Orlando
Title: Principal
XXXXXXX XXXXX CAPITAL CORPORATION,
individually and as Co-Syndication Agent,
by /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, individually
and as Co-Documentation Agent,
by /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
by
/s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
CANADIAN IMPERIAL BANK OF COMMERCE, as
Co-Documentation Agent,
by /s/ Xxxx Xxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Executive Director CIBC
World Markets Corp.,
as Agent
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134
CIBC INC.,
by /s/ Xxxx Xxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Executive Director CIBC
World Markets Corp.,
as Agent
BANK ONE, NA,
by /s/ L. Xxxxxxx Xxxxxxxx
----------------------------------
Name: L. Xxxxxxx Xxxxxxxx
Title: Vice President
BHF (USA) CAPITAL CORPORATION,
by /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
by
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Associate
SCOTIABANC INC.,
by /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Relationship Manager
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000
XXX XXXX XX XXX XXXX,
by /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST SOURCE FINANCIAL LLP, by First
Source Financial, Inc., its
Agent/Manager,
by /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ Xxx Xxxxxx
----------------------------------
Name: Xxx Xxxxxx
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION,
by /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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FRANKLIN FLOATING RATE TRUST,
by /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED,
by /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President and Manager
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Duly Authorized Signatory
XXXXX XXX & XXXXXXX INCORPORATED, as
agent for Keyport Life Insurance Company,
by /s/ Xxxxx X. Good
----------------------------------
Name: Xxxxx X. Good
Title: Vice President and
Portfolio Manager
XXXXX FARGO BANK N.A.,
by /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
PARIBAS,
by /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
by /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
