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[EXECUTION COPY]
CREDIT AGREEMENT
Dated as of March 24, 2000
among
AMERICAN MEDICAL SYSTEMS, INC.,
as Borrower,
and
THE SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE LENDERS
FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N. A.,
as Agent
and
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS.......................................................1
1.1 DEFINITIONS.........................................................1
1.2 COMPUTATION OF TIME PERIODS........................................28
1.3 ACCOUNTING TERMS...................................................28
SECTION 2 CREDIT FACILITIES................................................29
2.1 REVOLVING LOANS....................................................29
2.2 LETTER OF CREDIT SUBFACILITY.......................................31
2.3 TRANCHE A TERM LOAN................................................36
2.4 TRANCHE B TERM LOAN................................................38
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES...................40
3.1 DEFAULT RATE.......................................................40
3.2 EXTENSION AND CONVERSION...........................................40
3.3 PREPAYMENTS........................................................41
3.4 TERMINATION AND REDUCTION OF COMMITMENTS...........................44
3.5 FEES...............................................................45
3.6 CAPITAL ADEQUACY...................................................46
3.7 LIMITATION ON EURODOLLAR LOANS.....................................46
3.8 ILLEGALITY.........................................................46
3.9 REQUIREMENTS OF LAW................................................47
3.10 TREATMENT OF AFFECTED LOANS........................................48
3.11 TAXES..............................................................48
3.12 COMPENSATION.......................................................50
3.13 PRO RATA TREATMENT.................................................51
3.14 SHARING OF PAYMENTS................................................51
3.15 PAYMENTS, COMPUTATIONS, ETC........................................52
3.16 EVIDENCE OF DEBT...................................................54
3.17 REPLACEMENT OF AFFECTED LENDERS....................................55
SECTION 4 GUARANTY.........................................................55
4.1 THE GUARANTY.......................................................55
4.2 OBLIGATIONS UNCONDITIONAL..........................................56
4.3 REINSTATEMENT......................................................57
4.4 CERTAIN ADDITIONAL WAIVERS.........................................57
4.5 REMEDIES...........................................................57
4.6 RIGHTS OF CONTRIBUTION.............................................58
4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.........................59
SECTION 5 CONDITIONS.......................................................59
5.1 CLOSING CONDITIONS.................................................59
5.2 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT.........................59
5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.............................65
SECTION 6 REPRESENTATIONS AND WARRANTIES...................................66
6.1 FINANCIAL CONDITION................................................66
6.2 NO MATERIAL CHANGE.................................................68
6.3 ORGANIZATION AND GOOD STANDING.....................................68
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS......................68
6.5 NO CONFLICTS.......................................................68
6.6 NO DEFAULT.........................................................69
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6.7 OWNERSHIP..........................................................69
6.8 INDEBTEDNESS.......................................................69
6.9 LITIGATION.........................................................69
6.10 TAXES..............................................................69
6.11 COMPLIANCE WITH LAW................................................70
6.12 ERISA..............................................................70
6.13 CORPORATE STRUCTURE; CAPITAL STOCK, ETC............................71
6.14 GOVERNMENTAL REGULATIONS, ETC......................................72
6.15 PURPOSE OF LOANS AND LETTERS OF CREDIT.............................72
6.16 ENVIRONMENTAL MATTERS..............................................72
6.17 INTELLECTUAL PROPERTY..............................................73
6.18 SOLVENCY...........................................................74
6.19 INVESTMENTS........................................................74
6.20 BUSINESS LOCATIONS.................................................74
6.21 DISCLOSURE.........................................................74
6.22 NO BURDENSOME RESTRICTIONS.........................................74
6.23 BROKERS' FEES......................................................74
6.24 LABOR MATTERS......................................................74
6.25 NATURE OF BUSINESS.................................................75
6.26 YEAR 2000 COMPLIANCE...............................................75
SECTION 7 AFFIRMATIVE COVENANTS............................................75
7.1 INFORMATION COVENANTS..............................................75
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES...........................78
7.3 BOOKS AND RECORDS..................................................79
7.4 COMPLIANCE WITH LAW................................................79
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS............................79
7.6 INSURANCE..........................................................79
7.7 MAINTENANCE OF PROPERTY............................................80
7.8 PERFORMANCE OF OBLIGATIONS.........................................80
7.9 USE OF PROCEEDS....................................................80
7.10 AUDITS/INSPECTIONS.................................................81
7.11 FINANCIAL COVENANTS................................................81
7.12 NEW SUBSIDIARIES...................................................82
7.13 PLEDGED ASSETS.....................................................82
7.14 INTEREST RATE PROTECTION...........................................83
7.15 YEAR 2000 COMPLIANCE...............................................83
SECTION 8 NEGATIVE COVENANTS...............................................83
8.1 INDEBTEDNESS.......................................................84
8.2 LIENS..............................................................85
8.3 NATURE OF BUSINESS.................................................87
8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC............................87
8.5 ASSET DISPOSITIONS.................................................87
8.6 INVESTMENTS........................................................88
8.7 RESTRICTED PAYMENTS................................................90
8.8 OTHER INDEBTEDNESS.................................................90
8.9 TRANSACTIONS WITH AFFILIATES.......................................91
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS..............................91
8.11 LIMITATION ON RESTRICTED ACTIONS...................................91
8.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON PARENT...................92
8.13 SALE LEASEBACKS....................................................92
8.14 CAPITAL EXPENDITURES...............................................92
8.15 NO FURTHER NEGATIVE PLEDGES........................................92
8.16 OPERATING LEASE OBLIGATIONS........................................93
8.17 LIMITATION ON FOREIGN OPERATIONS...................................93
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SECTION 9 EVENTS OF DEFAULT................................................93
9.1 EVENTS OF DEFAULT...............................................93
9.2 ACCELERATION; REMEDIES..........................................96
SECTION 10 AGENCY PROVISIONS...............................................97
10.1 APPOINTMENT, POWERS AND IMMUNITIES..............................97
10.2 RELIANCE BY AGENT...............................................97
10.3 DEFAULTS........................................................98
10.4 RIGHTS AS A LENDER..............................................98
10.5 INDEMNIFICATION.................................................98
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.........................99
10.7 SUCCESSOR AGENT.................................................99
SECTION 11 MISCELLANEOUS..................................................100
11.1 NOTICES........................................................100
11.2 RIGHT OF SET-OFF; ADJUSTMENTS..................................101
11.3 BENEFIT OF AGREEMENT...........................................101
11.4 NO WAIVER; REMEDIES CUMULATIVE.................................103
11.5 EXPENSES; INDEMNIFICATION......................................104
11.6 AMENDMENTS, WAIVERS AND CONSENTS...............................105
11.7 COUNTERPARTS...................................................107
11.8 HEADINGS.......................................................107
11.9 SURVIVAL.......................................................107
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE...............107
11.11 SEVERABILITY...................................................108
11.12 ENTIRETY.......................................................108
11.13 TERMINATION....................................................108
11.14 CONFIDENTIALITY................................................108
11.15 SOURCE OF FUNDS................................................109
11.16 REGULATION D...................................................110
11.17 CONFLICT.......................................................110
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SCHEDULES
Schedule 2.1(a) Lenders
Schedule 6.1(a) Disclosed Liabilities
Schedule 6.4 Required Consents, Authorizations, Notices
and Filings
Schedule 6.9 Litigation
Schedule 6.12 ERISA
Schedule 6.13A Corporate Structure
Schedule 6.13B Subsidiaries
Schedule 6.16 Environmental Disclosures
Schedule 6.17 Intellectual Property
Schedule 6.20(a) Mortgaged Properties
Schedule 6.20(b) Collateral Locations
Schedule 6.20(c) Chief Executive Offices/Principal Places
of Business
Schedule 7.6 Insurance
Schedule 8.1(b) Indebtedness
Schedule 8.1(m) Terms of Subordination
Schedule 8.2 Liens
Schedule 8.6 Investments
EXHIBITS
Exhibit 1.1A Form of Pledge Agreement
Exhibit 1.1B Form of Security Agreement
Exhibit 1.1C Form of Warburg Guaranty
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(f) Form of Tranche A Term Note
Exhibit 2.4(f) Form of Tranche B Term Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 5.2 Form of Parent Joinder Agreement
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Acceptance
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC. WILL FILE A COPY OF THE EXHIBITS (TO THE
EXTENT NOT PREVIOUSLY FILED) AND THE SCHEDULES SUPPLEMENTALLY WITH THE
SECURITIES EXCHANGE COMMISSION UPON THEIR REQUEST.
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 24, 2000 (as amended,
modified, restated or supplemented from time to time, the "Credit Agreement"),
is by and among AMERICAN MEDICAL SYSTEMS, INC., a Delaware corporation (the
"Borrower"), the Subsidiary Guarantors (as defined herein), the Lenders (as
defined herein) and BANK OF AMERICA, N. A., as Agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide credit
facilities in an aggregate amount of up to $115,000,000 (the "Credit
Facilities") for the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested Credit
Facilities available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acquisition", by any Person, means the acquisition by such
Person of (a) all of the Capital Stock, (b) all or substantially all of
the Property of another Person or (c) all or substantially all of a
line of business of another Person, in each case whether or not
involving a merger or consolidation with such other Person.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For purposes of
this definition, "control" when used with respect to any Person means
the power (i) to vote 10% or more of the securities having ordinary
voting power for the
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election of directors of such corporation or (ii) to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Agency Services Address" means Bank of America, N. A.,
NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attn: Agency Services, or such other address as may be identified by
written notice from the Agent to the Borrower.
"Agent" shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement,
dated as of December 22, 1999, between the Agent and the Borrower, as
amended, modified, restated or supplemented from time to time.
"Applicable Lending Office" means, for each Lender, the office
of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Agent and the Borrower by written
notice as the office by which its Eurodollar Loans are made and
maintained.
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Loan, the applicable rate
of the Unused Fee for any day for purposes of Section 3.5(a), the
applicable rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(b)(i) or the applicable rate of the Trade
Letter of Credit Fee for any day for purposes of Section 3.5(b)(ii),
the appropriate applicable percentage corresponding to the Leverage
Ratio in effect as of the most recent Calculation Date:
APPLICABLE PERCENTAGES
-------------------------------------------------------------------------------------------------
FOR TRANCHE A TERM FOR REVOLVING LOANS
LOANS AND TRANCHE B TERM
LOANS
---------------------------- -------------------------
FOR STANDBY FOR TRADE FOR UNUSED
PRICING LEVERAGE RATIO EURODOLLAR BASE RATE EURODOLLAR BASE RATE LETTER OF LETTER OF FEE
LEVEL LOANS LOANS LOANS LOANS CREDIT FEE CREDIT FEE
-------------- ---------------- -------------- ------------- -------------- ---------- ------------- -------------- -------------
I > 3.0 to 1.0 3.00% 2.00% 0.875% 0% 0.875% 0.4375% 0.125%
-------------- ---------------- -------------- ------------- -------------- ---------- ------------- -------------- -------------
< 3.0 to 1.0
-
II but > 2.5 to 2.50% 1.50% 0.875% 0% 0.875% 0.4375% 0.125%
1.0
-------------- ---------------- -------------- ------------- -------------- ---------- ------------- -------------- -------------
III < 2.5 to 1.0 2.00% 1.00% 0.875% 0% 0.875% 0.4375% 0.125%
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The Applicable Percentages shall be determined and adjusted quarterly
on the date (each a "Calculation Date") five Business Days after the
date by which the Credit Parties are required to provide the officer's
certificate in accordance with the provisions of
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Section 7.1(c) for the most recently ended fiscal quarter of the
Consolidated Parties; provided, however, that (i) the initial
Applicable Percentages shall be based on Pricing Level I (as shown
above) and shall remain at Pricing Level I until the Calculation Date
for the fiscal quarter of the Consolidated Parties ending on September
30, 2000, on and after which time the Pricing Level shall be determined
by the Leverage Ratio as of the last day of the most recently ended
fiscal quarter of the Consolidated Parties preceding the applicable
Calculation Date and (ii) if the Credit Parties fail to provide the
officer's certificate to the Agency Services Address as required by
Section 7.1(c) for the last day of the most recently ended fiscal
quarter of the Consolidated Parties preceding the applicable
Calculation Date, the Applicable Percentage from such Calculation Date
shall be based on Pricing Level I until such time as an appropriate
officer's certificate is provided, whereupon the Pricing Level shall be
determined by the Leverage Ratio as of the last day of the most
recently ended fiscal quarter of the Consolidated Parties preceding
such Calculation Date. Each Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentages shall be applicable to all
existing Loans and Letters of Credit as well as any new Loans and
Letters of Credit made or issued.
"Application Period", in respect of any Asset Disposition,
shall have the meaning assigned to such term in Section 8.5.
"Asset Disposition" means any disposition (including pursuant
to a Sale and Leaseback Transaction) of any or all of the Property
(including without limitation the Capital Stock of a Subsidiary) of any
Consolidated Party whether by sale, lease, transfer or otherwise, but
other than pursuant to any casualty or condemnation event.
"Asset Disposition Prepayment Event" means, with respect to
any Asset Disposition other than an Excluded Asset Disposition, the
failure of the Credit Parties to apply (or cause to be applied) the Net
Cash Proceeds of such Asset Disposition to Eligible Reinvestments
during the Application Period for such Asset Disposition.
"Assignment and Acceptance" shall have the meaning to such
term in Section 11.3(b).
"Bank of America" means Bank of America, N. A. and its
successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) the
entry of a decree or order for relief in respect of such Person by a
court or governmental agency having jurisdiction in the premises in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or the appointment by a court
or governmental agency having jurisdiction in the premises of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its
Property or ordering the winding up
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or liquidation of its affairs; or (ii) the commencement against such
Person of an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or of any
case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain undismissed
for a period of sixty (60) consecutive days; or (iii) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
make any general assignment for the benefit of creditors; or (iv) such
Person shall be unable to, or shall admit in writing its inability to,
pay its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (b) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina or New
York, New York are authorized or required by law to close, except that,
when used in connection with a Eurodollar Loan, such day shall also be
a day on which dealings between banks are carried on in Dollar deposits
in London, England.
"Businesses" means, at any time, a collective reference to the
businesses operated by the Consolidated Parties at such time.
"Calculation Date" shall have the meaning assigned to such
term in the definition of "Applicable Percentage" set forth in this
Section 1.1.
"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is required to be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, (iii) in the case of
a
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partnership, partnership interests (whether general or limited), (iv)
in the case of a limited liability company, membership interests and
(v) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
"Cash Equivalents" means, as at any date, (a) securities
issued or directly and fully guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition,
(b) Dollar denominated time deposits and certificates of deposit of (i)
any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (iii) any bank
whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition, (d) repurchase agreements
entered into by any Person with a bank or trust company (including any
of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"Change of Control" means any of the following events: (a) the
sale, lease, transfer or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Borrower and its Subsidiaries
taken as a whole to any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act) other than
the WPEP Entities, (b) prior to a Qualifying IPO, the WPEP Entities
shall fail to own beneficially, directly or indirectly, at least 50% of
the outstanding Voting Stock of the Parent, (c) after a Qualifying IPO,
the WPEP Entities shall fail to own beneficially, directly or
indirectly, (1) at least 30% of the outstanding Voting Stock of the
Parent and (2) a greater percentage of the outstanding Voting Stock of
the Parent than the percentage of such outstanding Voting Stock which
any other "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act) other than the WPEP Entities
(A) shall have acquired beneficial ownership, directly or indirectly,
of or (B) shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of, control over, (d) the failure of
the WPEP Entities and the Co-Investor to control, whether through
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ownership of Voting Stock, by contract or otherwise, a majority of the
seats (excluding vacant seats) on the Parent's Board of Directors. As
used herein, "beneficial ownership" shall have the meaning provided in
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act, or (e) the Parent shall fail to own directly
100% of the outstanding Capital Stock of the Borrower.
"Closing Date" means the date hereof.
"Co-Investor" means the Vertical Fund Associates, L.P., a
Delaware limited partnership.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed also to
refer to any successor sections.
"Collateral" means a collective reference to all real and
personal Property (other than Excluded Property) with respect to which
Liens in favor of the Agent are purported to be granted pursuant to and
in accordance with the terms of the Collateral Documents.
"Collateral Documents" means a collective reference to the
Security Agreement, the Pledge Agreement and the Mortgage Instruments.
"Commitment" means (i) with respect to each Lender, the
Revolving Commitment of such Lender, the Tranche A Term Loan Commitment
and the Tranche B Term Loan Commitment of such Lender and (ii) with
respect to the Issuing Lender, the LOC Commitment.
"Commitment Percentage" means, for any Lender, the percentage
identified as its Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3.
"Consolidated Capital Expenditures" means, as of any date for
the four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, all capital expenditures,
as determined in accordance with GAAP, but in any event excluding (i)
Eligible Reinvestments made with proceeds of any Involuntary
Disposition and (ii) any capital expenditures to the extent financed
with the proceeds of (a) Investor Subordinated Debt or (b) any Equity
Issuance by any member of the Initial Investor Group; provided,
however, that (1) Consolidated Capital Expenditures for the four fiscal
quarter period ending as of June 30, 2000 shall be based on
Consolidated Capital Expenditures for the one fiscal-quarter period
then ended multiplied by 4, (2) Consolidated Capital Expenditures for
the four fiscal quarter period ending as of September 30, 2000 shall be
based on Consolidated Capital Expenditures for the two fiscal-quarter
period then ended multiplied by 2 and (3) Consolidated Capital
Expenditures for the four fiscal quarter period ending as of December
31, 2000 shall be based on Consolidated Capital Expenditures for the
three fiscal-quarter period then ended
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multiplied by 1.33. Notwithstanding any other provisions of this Credit
Agreement to the contrary, Consolidated Capital Expenditures shall not
include any payments of Holdback Merger Consideration or Contingent
Merger Consideration by or on behalf of the Borrower.
"Consolidated Cash Taxes" means, as of any date for the four
fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, the aggregate of all
taxes, as determined in accordance with GAAP, to the extent the same
are paid in cash during such period; provided, however, that (i)
Consolidated Cash Taxes for the four fiscal quarter period ending as of
June 30, 2000 shall be based on Consolidated Cash Taxes for the one
fiscal-quarter period then ended multiplied by 4, (ii) Consolidated
Cash Taxes for the four fiscal quarter period ending as of September
30, 2000 shall be based on Consolidated Cash Taxes for the two
fiscal-quarter period then ended multiplied by 2 and (iii) Consolidated
Cash Taxes for the four fiscal quarter period ending as of December 31,
2000 shall be based on Consolidated Cash Taxes for the three
fiscal-quarter period then ended multiplied by 1.33.
"Consolidated EBITDA" means, as of any date for the four
fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, the sum of (i)
Consolidated Net Income, plus (ii) an amount which, in the
determination of Consolidated Net Income, has been deducted for (A)
Consolidated Interest Expense, (B) total Federal, state, local and
foreign income, value added and similar taxes, (C) depreciation and
amortization expense, (D) recognition of accruals for pension plan
obligations which did not require cash funding during such period, (E)
to the extent incurred during fiscal year 2000 of the Consolidated
Parties, one-time expenses in an aggregate amount not to exceed
$1,000,000 associated with the restructuring of the business acquired
under the Purchase Agreement, including, but not limited to severance
obligations incurred as a result of such restructuring, (F) one-time
expenses associated with the restructuring of the business acquired
under that certain Asset Purchase Agreement dated as of July 21, 1998
among Pfizer Inc. and the Borrower, including, but not limited to
severance obligations incurred as a result of such restructuring, in an
aggregate amount of up to (1) to the extent incurred during the first
fiscal quarter of 1999, $3,000,000, (2) to the extent incurred during
the second fiscal quarter of 1999, $400,000 and (3) to the extent
incurred during the third fiscal quarter of 1999, $200,000 and (G) the
recognition of expense for the write-off of purchased research and
development, all as determined in accordance with GAAP.
"Consolidated Interest Expense" means, as of any date for the
four fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, interest expense
(including the amortization of debt discount and premium, the interest
component under Capital Leases and the implied interest component under
Synthetic Leases), as determined in accordance with GAAP; provided,
however, that (i) Consolidated Interest Expense for the four
fiscal-quarter period ending as of March 31, 2000 shall be calculated
on a pro forma basis assuming that (a) the Indebtedness of the
Consolidated Parties outstanding on March 31, 2000 was the only
Indebtedness outstanding during such four fiscal-quarter period and (b)
all Indebtedness of the Consolidated Parties outstanding on March 31,
2000 was outstanding on every day
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of such four fiscal-quarter period and was bearing interest for each
such day at the rate which is in effect with respect to such
Indebtedness on Xxxxx 00, 0000, (xx) Consolidated Interest Expense for
the four fiscal quarter period ending as of June 30, 2000 shall be
based on Consolidated Interest Expense for the one fiscal-quarter
period then ended multiplied by 4, (iii) Consolidated Interest Expense
for the four fiscal quarter period ending as of September 30, 2000
shall be based on Consolidated Interest Expense for the two
fiscal-quarter period then ended multiplied by 2 and (iv) Consolidated
Interest Expense for the four fiscal quarter period ending as of
December 31, 2000 shall be based on Consolidated Interest Expense for
the three fiscal-quarter period then ended multiplied by 1.33.
"Consolidated Net Income" means, as of any date for the four
fiscal quarter period ending on such date with respect to the
Consolidated Parties on a consolidated basis, net income (excluding
extraordinary items) after interest expense, income taxes and
depreciation and amortization, all as determined in accordance with
GAAP.
"Consolidated Parties" means a collective reference to the
Parent and its Subsidiaries, and "Consolidated Party" means any one of
them.
"Consolidated Scheduled Funded Debt Payments" means, as of any
date for the four fiscal quarter period ending on such date with
respect to the Consolidated Parties on a consolidated basis, the sum of
all scheduled payments of principal on Funded Indebtedness (including
the implied principal component of payments due on Capital Leases and
Synthetic Leases, but excluding voluntary prepayments or mandatory
prepayments required pursuant to Section 3.3), as determined in
accordance with GAAP.
"Contingent Merger Consideration" shall have the meaning
assigned to such term in Section 2.8(c) of the Purchase Agreement.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 3.2 hereof of a Eurodollar Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 3.2 or Sections 3.7 through 3.12,
inclusive, of a Base Rate Loan into a Eurodollar Loan.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the
Agent's Fee Letter and the Collateral Documents (in each case as the
same may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time), and "Credit Document" means any
one of them.
"Credit Facilities" shall have the meaning assigned to such
term in the recitals hereto.
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"Credit Parties" means a collective reference to the Borrower
and the Guarantors, and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (i) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lender) and the Agent, whenever arising, under this Credit
Agreement, the Notes, the Collateral Documents or any of the other
Credit Documents (including, but not limited to, any interest accruing
after the occurrence of a Bankruptcy Event with respect to any Credit
Party, regardless of whether such interest is an allowed claim under
the Bankruptcy Code) and (ii) unless otherwise agreed to by a Credit
Party in the documentation evidencing same, all liabilities and
obligations, whenever arising, owing from any Credit Party to any
Lender, or any Affiliate of a Lender, arising under any Hedging
Agreement.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by any Consolidated Party other than Indebtedness
permitted under Section 8.1.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the term of this Credit Agreement within one Business Day
of when due, (b) other than as set forth in (a) above, has failed to
pay to the Agent or any Lender an amount owed by such Lender pursuant
to the terms of this Credit Agreement within one Business Day of when
due, unless such amount is subject to a good faith dispute or (c) has
been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or with respect to which (or with respect to any
of the assets of which) a receiver, trustee or similar official has
been appointed.
"Dollar Equivalent" means, on any date, (i) with respect to an
amount denominated in Dollars, such amount, and (ii) with respect to an
amount denominated in any currency other than Dollars, the amount of
Dollars into which such amount could be converted at its spot rate of
exchange in the interbank foreign exchange market applicable to the
relevant transaction on such date.
"Dollars" and "$" means dollars in lawful currency of the
United States.
"Domestic Subsidiary" means any direct or indirect Subsidiary
of the Borrower which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender or any fund that invests in bank loans and is managed by an
investment advisor to a Lender; and (iii) any commercial bank,
financial institution or any institutional "accredited investor" (as
defined in Regulation D) approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 11.3, the Borrower (such approval
by the Agent or the Borrower not to be
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unreasonably withheld or delayed and such approval to be deemed given
by the Borrower if no objection is received by the assigning Lender and
the Agent from the Borrower within two (2) Business Days after
confirmation (such confirmation not to be unreasonably withheld or
delayed) by an Executive Officer of the Borrower of receipt of notice
of such proposed assignment by the assigning Lender); provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Eligible Prepayment Proceeds" means, (i) at any time after
the Agent has received the Required Financial Information for any
fiscal year end, the portion of Excess Cash Flow for such fiscal year
not required to be applied to prepay the Loans pursuant to the terms of
Section 3.3(b)(ii), (ii) the cash proceeds from any Equity Issuance by
any Consolidated Party to any member of the Initial Investor Group,
(iii) the cash proceeds from a Qualifying IPO, (iv) the portion of Net
Cash Proceeds from an Equity Issuance (other than an Excluded Equity
Issuance) not required to be applied to prepay the Loans pursuant to
the terms of Section 3.3(b)(v) and (v) the cash proceeds of Investor
Subordinated Debt.
"Eligible Reinvestment" means (i) any acquisition (whether or
not constituting a capital expenditure, but not constituting an
Acquisition) of assets or any business (or any substantial part
thereof) used or useful in the same or a similar line of business as
the Borrower and its Subsidiaries were engaged in on the Closing Date
(or any reasonable extensions or expansions thereof) and (ii) any
Permitted Acquisition.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws (including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Resource Conservation and Recovery Act of
1976, the Toxic Substances Control Act, the Water Pollution Control
Act, the Clean Air Act and the Hazardous Materials Transportation Act),
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances
or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
"Equity Issuance" means any issuance by any Consolidated Party
to any Person of (a) shares of its Capital Stock, (b) any shares of its
Capital Stock pursuant to the exercise of options or warrants, (c) any
shares of its Capital Stock pursuant to the conversion of any debt
securities to equity or (d) any options or warrants relating to its
Capital Stock. The term "Equity Issuance" shall not include any Asset
Disposition.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations
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thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity which is under common
control with any Consolidated Party within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes any
Consolidated Party and which is treated as a single employer under
Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Consolidated Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan; (iii) the distribution of
a notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA; (v) any event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan; (vi) the complete or partial withdrawal of any Consolidated Party
or any ERISA Affiliate from a Multiemployer Plan; (vii) the conditions
for imposition of a lien under Section 302(f) of ERISA exist with
respect to any Plan; or (viii) the adoption of an amendment to any Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA.
"Eurodollar Loan" means any Loan that bears interest at a rate
based upon the Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Agent to be
equal to the quotient obtained by dividing (a) the Interbank Offered
Rate for such Eurodollar Loan for such Interest Period by (b) 1 minus
the Eurodollar Reserve Requirement for such Eurodollar Loan for such
Interest Period.
"Eurodollar Reserve Requirement" means, at any time, the
maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are required to
be maintained under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) by member
banks of the Federal Reserve System against "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the effect of
the foregoing, the Eurodollar Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be determined, or
(ii) any category of extensions of credit or other assets which include
Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Requirement.
"Event of Default" shall have the meaning assigned to such
term in Section 9.1.
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"Excess Cash Flow" means, with respect to any fiscal year
period of the Consolidated Parties on a consolidated basis, an amount
equal to (a) Consolidated EBITDA minus (b) Consolidated Capital
Expenditures minus (c) Consolidated Interest Expense minus (d) Federal,
state and other income taxes payable by the Consolidated Parties on a
consolidated basis minus (e) Consolidated Scheduled Funded Debt
Payments minus (f) the amount of any voluntary prepayments of the
Tranche A Term Loan or (to the extent accompanied by a reduction in the
Revolving Committed Amount) the Revolving Loans.
"Excess Proceeds" shall have the meaning assigned to such term
in Section 7.6(b).
"Excluded Asset Disposition" means, with respect to any
Consolidated Party, (i) the disposition of inventory or other assets
sold, leased, licensed or disposed of or replaced in the ordinary
course of such Consolidated Party's business, (ii) the disposition of
machinery and equipment no longer used or useful in the conduct of such
Consolidated Party's business, (iii) any Equity Issuance by such
Consolidated Party, (iv) any Involuntary Disposition by such
Consolidated Party, (v) any sale, lease, transfer or other disposition
of Property by such Consolidated Party to any Credit Party, provided
that the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Agent may request so as
to cause the Credit Parties to be in compliance with the terms of
Section 7.13 after giving effect to such transaction and (vi) if such
Consolidated Party is not a Credit Party, any sale, lease, transfer or
other disposition of Property by such Consolidated Party to any
Consolidated Party that is not a Credit Party.
"Excluded Equity Issuance" means (i) any Equity Issuance by
any Consolidated Party to any Credit Party or any member of the Initial
Investor Group, (ii) any Equity Issuance by the Parent in connection
with a Permitted Acquisition, (iii) any Equity Issuance by the Parent
the proceeds of which are used to finance a Permitted Acquisition, (iv)
any Equity Issuance pursuant to the exercise of options issued to
management of the Parent or the Borrower and (v) any Equity Issuance
constituting a Qualifying IPO.
"Excluded Property" means, with respect to any Consolidated
Party, including any Person that becomes a Consolidated Party after the
Closing Date as contemplated by Section 7.12, (i) any owned or leased
real or personal Property of such Consolidated Party which is located
outside of the United States, (ii) any owned real Property of such
Consolidated Party which has a net book value of less than $100,000,
provided that the aggregate net book value of all real Property of all
of the Consolidated Parties excluded pursuant to this clause (ii) shall
not exceed $500,000, (iii) any leased real Property of such Credit
Party which, at the written request of the Borrower, the Agent has
agreed in writing in its sole reasonable discretion is not material,
(iv) any leased personal Property of such Consolidated Party, (v) any
personal Property of such Consolidated Party (including, without
limitation, motor vehicles) in respect of which perfection of a Lien is
not either (A) governed by the Uniform Commercial Code or (B) effected
by appropriate evidence of the Lien being filed in either the United
States Copyright Office or the United States Patent and Trademark
Office and (vi) any Property of such Consolidated Party which, subject
to the terms of Section 8.11 and Section 8.15, is subject to a Lien of
the
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type described in Section 8.2(g) pursuant to documents which prohibit
such Consolidated Party from granting any other Liens in such Property.
"Executive Officer" of any Person means any of the chief
executive officer, chief operating officer, president, vice president,
chief financial officer or treasurer of such Person.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fees" means all fees payable pursuant to Section 3.5.
"Fixed Charge Coverage Ratio" means, as of the end of any
fiscal quarter of the Consolidated Parties for the four fiscal quarter
period ending on such date with respect to the Consolidated Parties on
a consolidated basis, the ratio of (a) the sum of (i) Consolidated
EBITDA for such period minus (ii) Consolidated Capital Expenditures for
such period minus (iii) Consolidated Cash Taxes for such period to (b)
the sum of (i) Consolidated Interest Expense for such period plus (ii)
Consolidated Scheduled Funded Debt Payments for such period.
"Foreign Subsidiary" means any direct or indirect Subsidiary
of the Borrower which is not a Domestic Subsidiary.
"Fully Satisfied" means, with respect to the Credit Party
Obligations as of any date, that, as of such date, (a) all principal of
and interest accrued to such date which constitute Credit Party
Obligations shall have been paid in full in cash, (b) all fees,
expenses and other amounts then due and payable which constitute Credit
Party Obligations shall have been paid in cash, (c) all outstanding
Letters of Credit shall have been (i) terminated, (ii) fully cash
collateralized or (iii) secured by one or more letters of credit on
terms and conditions, and with one or more financial institutions,
reasonably satisfactory to the Issuing Lender and (d) the Commitments
shall have been expired or terminated in full.
"Funded Indebtedness" means, with respect to any Person,
without duplication, (i) all Indebtedness of such Person other than
Indebtedness of the types referred to in clauses (e), (f), (g), (i) and
(n) of the definition of "Indebtedness" set forth in this Section 1.1,
(ii) all Funded Indebtedness of others of the type referred to in
clause (i) above secured by (or for which the holder of such Funded
Indebtedness has an existing right,
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contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, Property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed (or, if less, the aggregate net book value of all Property
securing such Funded Indebtedness of others), (iii) all Guaranty
Obligations of such Person with respect to Funded Indebtedness of the
type referred to in clause (i) above of another Person and (iv) Funded
Indebtedness of the type referred to in clause (i) above of any
partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer to the extent such Funded
Indebtedness is recourse to such Person. Notwithstanding any other
provisions of this Credit Agreement to the contrary, the Funded
Indebtedness of the Consolidated Parties shall not include the
obligations of the Borrower in respect of Holdback Merger Consideration
or Contingent Merger Consideration.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 (except, in respect of Synthetic Leases, as otherwise
treated herein).
"General Partner" means Warburg, Xxxxxx & Co., a New York
general partnership, as general partner of each of the WPEP Entities.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Lenders" means, at any time, Lenders holding any
of (i) the Revolving Commitments (and Participation Interests therein)
(or, if the Revolving Commitments have been terminated, the outstanding
Revolving Loans, LOC Obligations and Participation Interests (including
the Participation Interests of the Issuing Lender in any Letters of
Credit) or (ii) the outstanding Tranche B Term Loans (and Participation
Interests therein).
"Guarantors" means a collective reference to the Parent and
each of the Subsidiary Guarantors, together with their successors and
permitted assigns, and "Guarantor " means any one of them.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or any
Property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep
well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase Property,
securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount
of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an
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amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made. Notwithstanding any other provisions of
this Credit Agreement to the contrary, the Guaranty Obligations of the
Consolidated Parties shall not include the obligations of the Borrower
in respect of Holdback Merger Consideration or Contingent Merger
Consideration.
"Hedging Agreements" means any interest rate protection
agreement, foreign currency exchange agreement or commodity price
hedging agreement or, in each case, other similar agreement.
"Holdback Merger Consideration" shall have the meaning
assigned to such term in Section 2.8(b) of the Purchase Agreement.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to
Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations of such Person issued
or assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such
Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, Property owned or
acquired by such Person, whether or not the obligations secured thereby
have been assumed, (g) all Guaranty Obligations of such Person with
respect to Indebtedness of another Person, (h) the implied principal
component of all obligations of such Person under Capital Leases, (i)
all obligations of such Person under Hedging Agreements, (j) the
maximum amount of all performance and standby letters of credit issued
or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (k) all preferred Capital Stock issued by such
Person and which by the terms thereof could be (at the request of the
holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration (other than as a result of a
Change of Control or an Asset Disposition that does not in fact result
in a redemption of such preferred Capital Stock) at any time prior to
the Maturity Date, (l) the principal portion of all obligations of such
Person under Synthetic Leases, (m) all obligations of such Person to
repurchase any securities issued by such Person at any time prior to
the Maturity Date which repurchase obligations are related to the
issuance thereof, including, without limitation, obligations commonly
known as residual equity appreciation potential shares, (n) the
Indebtedness of any partnership or unincorporated joint venture in
which such Person is a general partner or a joint venturer to the
extent such Funded Indebtedness is recourse to such Person and (o) the
aggregate amount of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or similar transaction)
to the extent such transaction is effected with recourse to such Person
(whether or not such transaction would
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be reflected on the balance sheet of such Person in accordance with
GAAP). Notwithstanding any other provisions of this Credit Agreement to
the contrary, the Indebtedness of the Consolidated Parties shall not
include the obligations of the Borrower in respect of Holdback Merger
Consideration or Contingent Merger Consideration.
"Indemnified Party" shall have the meaning assigned to such
term in Section 11.5(b).
"Influence" means Influence, Inc., a Delaware corporation.
"Initial Funding Date" means the date on which the conditions
set forth in Section 5.2 to the making of the initial Loans and/or the
issuance of the initial Letter of Credit, as applicable, shall have
been fulfilled (or waived in the sole discretion of the Lenders) and on
which the initial Loans shall have been made and/or the initial Letters
of Credit shall have been issued.
"Initial Investor Group" means the WPEP Entities and their
Affiliates, the Management Investors and the Co-Investor.
"Interbank Offered Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Page 3750 (or any
successor page) of the Dow Xxxxx Market Service as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "Interbank Offered Rate" shall
mean, for any Eurodollar Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Coverage Ratio" means, as of the end of any fiscal
quarter of the Consolidated Parties for the four fiscal quarter period
ending on such date with respect to the Consolidated Parties on a
consolidated basis, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Interest Expense for such period.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last Business Day of each March, June, September and December, the date
of repayment of principal of such Loan and the Maturity Date, and (b)
as to Eurodollar Loans, the last day of each applicable Interest
Period, the date of repayment of principal of such Loan and the
Maturity Date, and in addition where the applicable Interest Period for
a Eurodollar Loan is greater than three months, then also the date
three months from the beginning of the Interest Period and each three
months thereafter.
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"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Maturity Date and (c)
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets (other than equipment, inventory, supplies and
general intangibles in the ordinary course of business and other than
any acquisition of assets constituting a Consolidated Capital
Expenditure), Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities of such
other Person, (b) any deposit with, or advance, loan or other extension
of credit to, such Person (other than deposits made in connection with
the purchase of equipment inventory, supplies and general intangibles
in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without
limitation, any Guaranty Obligations (including any support for a
letter of credit issued on behalf of such Person) incurred for the
benefit of such Person and any Asset Disposition to such Person for
consideration less than the fair market value of the Property disposed
in such transaction, but excluding any Restricted Payment to such
Person. Investments which are capital contributions or purchases of
Capital Stock which have a right to participate in the profits of the
issuer thereof shall be valued at the amount actually contributed or
paid to purchase such Capital Stock as of the date of such contribution
or payment. Investments which are loans, advances, extensions of credit
or Guaranty Obligations shall be valued at the principal amount of such
loan, advance or extension of credit outstanding as of the date of
determination or, as applicable, the principal amount of the loan or
advance outstanding as of the date of determination actually guaranteed
by such Guaranty Obligation.
"Investor Subordinated Debt" means any Indebtedness of the
Parent or the Borrower incurred pursuant to, and in accordance with the
terms of, Section 8.1(m).
"Involuntary Disposition" shall have the meaning assigned to
such term in Section 7.6(b).
"Issuing Lender" means Bank of America.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12 hereto, executed and delivered by a new
Guarantor in accordance with the provisions of Section 7.12.
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"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Person which may become a Lender by
way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.
"Lending Party" shall have the meaning assigned to such term
in Section 11.14.
"Letter of Credit" means any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.2.
"Leverage Ratio" means, as of the end of any fiscal quarter of
the Consolidated Parties for the four fiscal quarter period ending on
such date with respect to the Consolidated Parties on a consolidated
basis, the ratio of (a) Funded Indebtedness of the Consolidated Parties
on a consolidated basis on the last day of such period less Revolving
Loans and Tranche B Term Loans to (b) Consolidated EBITDA for such
period.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans, the Tranche A
Term Loans and/or the Tranche B Term Loans (or a portion of any
Revolving Loan, any Tranche A Term Loan or Tranche B Term Loan bearing
interest at the Adjusted Base Rate or the Adjusted Eurodollar Rate and
referred to as a Base Rate Loan or a Eurodollar Loan), individually or
collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings
thereon) of up to the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.2.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such
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Letters of Credit plus (ii) the aggregate amount of all drawings under
Letters of Credit honored by the Issuing Lender but not theretofore
reimbursed by the Borrower.
"Management Agreement" means that certain management agreement
between U.S. Warburg and the Manager dated as of June 11, 1998.
"Management Investors" means each of Xxxxxxx X. Xxxxx and
Xxxxxx X. Xxxxxxxxx.
"Manager" means X.X. Xxxxxxx, Xxxxxx & Co., LLC, a New York
limited liability company, as manager of each of the WPEP Entities.
"Material Adverse Effect" means a material adverse effect on
(i) after taking into account any applicable insurance and any
applicable indemnification (to the extent the provider of such
insurance or indemnification has the financial ability to support is
obligations with respect thereto and is not disputing or refusing to
acknowledge the same), the operations, financial condition or business
of the Consolidated Parties taken as a whole, (ii) the ability of any
Credit Party to perform any material obligation under the Credit
Documents to which it is a party or (iii) the material rights and
remedies of the Agent and the Lenders under the Credit Documents.
"Material Foreign Subsidiary" means, at any time, any direct
Foreign Subsidiary of the Borrower or any Domestic Subsidiary having
(i) 5% or more of Consolidated Total Assets at such time or (ii) 5% or
more of Consolidated EBITDA for the most recently ended four fiscal
quarters; provided, however, Influence Medical Technologies Ltd. shall
not be eligible for classification as a Material Foreign Subsidiary
prior to July 31, 2000.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maturity Date" means the earlier of (a) if the audited
financial statements described in Section 5.2(q) are not delivered to
the Agent prior to April 30, 2000, April 30, 2000 or (b) March 24,
2006.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Mortgage Instruments" shall have the meaning assigned such
term in Section 5.2(f).
"Mortgage Policies" shall have the meaning assigned such term
in Section 5.2(f).
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"Mortgaged Properties" shall have the meaning assigned such
term in Section 5.2(f).
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan (other than a
Multiemployer Plan) which any Consolidated Party or any ERISA Affiliate
and at least one employer other than the Consolidated Parties or any
ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate proceeds paid in cash
or Cash Equivalents received by any Consolidated Party in respect of
any Asset Disposition, Equity Issuance, Debt Issuance or Involuntary
Disposition, net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions)
and (b) a good faith estimate of the taxes payable with respect to such
proceeds, including, without duplication, withholding taxes and any
taxes payable to a third party in connection with a distribution of
such proceeds from a Subsidiary of the Borrower to the Borrower,
directly or indirectly, (c) with respect to an Asset Disposition, any
reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with the terms of the applicable
agreements governing such Asset Disposition so long as such reserve
amounts are placed in escrow with a third party and reserves
established by the Borrower to fund contingent liabilities reasonably
estimated to be payable during the year that such Asset Disposition
occurred or the next succeeding year and that are directly attributable
to such Asset Disposition (as determined reasonably and in good faith
by the chief financial officer of the Borrower) (d) with respect to an
Asset Disposition, any payments to be made by the Borrower or any of
its Subsidiaries, as agreed to between the Borrower or such Subsidiary
and the purchaser of such asset or assets, in connection with such sale
or disposition; it being understood that "Net Cash Proceeds" shall
include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by
any such Consolidated Party in any Asset Disposition, Equity Issuance,
Debt Issuance or Involuntary Disposition.
"Note" or "Notes" means the Revolving Notes, the Tranche A
Term Notes and/or the Tranche B Term Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i), Section 2.3(b) or Section 2.4(b).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
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"Other Taxes" shall have the meaning assigned to such term in
Section 3.11(b).
"Parent" means American Medical Systems Holdings, Inc., a
Delaware corporation, together with any permitted successors and
assigns.
"Parent Joinder Agreement" means a Joinder Agreement
substantially in the form of Exhibit 5.2 hereto, executed and delivered
by the Parent.
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2 or in any Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Acquisition" means an Acquisition by the Borrower
or any Subsidiary of the Borrower permitted pursuant to the terms of
Section 8.6(j).
"Permitted Asset Disposition" means (i) any Asset Disposition
permitted by Section 8.5 and (ii) any Excluded Asset Disposition.
"Permitted Investments" means, at any time, Investments by the
Consolidated Parties permitted to exist at such time pursuant to the
terms of Section 8.6.
"Permitted Liens" means, at any time, Liens in respect of
Property of the Consolidated Parties permitted to exist at such time
pursuant to the terms of Section 8.2.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the pledge agreement dated as of the
Initial Funding Date in the form of Exhibit 1.1A to be executed in
favor of the Agent by each of the Credit Parties, as amended, modified,
restated or supplemented from time to time.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
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"Principal Amortization Payment" means a principal payment on
the Tranche A Term Loans as set forth in Section 2.3(d) or on the
Tranche B Term Loans as set forth in Section 2.4(d).
"Principal Amortization Payment Date" means the date a
Principal Amortization Payment is due.
"Principal Office" means the principal office of Bank of
America, presently located at Charlotte, North Carolina.
"Pro Forma Basis" means, for purposes of calculating
(utilizing the principles set forth in the second paragraph of Section
1.3) compliance with each of the financial covenants set forth in
Section 7.11(a) and (b) in respect of a proposed transaction, that such
transaction shall be deemed to have occurred as of the first day of the
four fiscal-quarter period ending as of the most recent fiscal quarter
end preceding the date of such transaction with respect to which the
Agent has received the Required Financial Information. As used herein,
"transaction" shall mean (i) any Asset Disposition as referred to in
Section 8.5 or (ii) any Acquisition as referred to in Section 8.6(j).
In connection with any calculation of the financial covenants set forth
in 7.11(a) and (b) upon giving effect to a transaction on a Pro Forma
Basis:
(A) for purposes of any such calculation in respect of any Asset
Disposition as referred to in Section 8.5, (1) income
statement items (whether positive or negative) and capital
expenditures attributable to the Property disposed of shall be
excluded and (2) any Indebtedness which is retired in
connection with such transaction shall be excluded and deemed
to have been retired as of the first day of the applicable
period; and
(B) for purposes of any such calculation in respect of any
Acquisition as referred to in Section 8.6(j), (1) any
Indebtedness incurred by any Consolidated Party in connection
with such transaction (x) shall be deemed to have been
incurred as of the first day of the applicable period and (y)
if such Indebtedness has a floating or formula rate, shall
have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate
which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination, (2)
income statement items (whether positive or negative) and
capital expenditures attributable to the Person or Property
acquired shall be included beginning as of the first day of
the applicable period and (3) pro forma adjustments may be
included to the extent that such adjustments would be
permitted under GAAP and give effect to events that are (x)
directly attributable to such transaction, (y) expected to
have a continuing impact on the Consolidated Parties and (z)
factually supportable.
"Pro Forma Compliance Certificate" means a certificate of an
Executive Officer of the Borrower delivered to the Agent in connection
with (i) any Asset Disposition as referred to in Section 8.5 or (ii)
any Acquisition as referred to in Section 8.6(j), as
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applicable, and containing reasonably detailed calculations, upon
giving effect to the applicable transaction on a Pro Forma Basis, of
the Leverage Ratio and the Interest Coverage Ratio as of the most
recent fiscal quarter end preceding the date of the applicable
transaction with respect to which the Agent shall have received the
Required Financial Information.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Purchase Agreement" means Agreement and Plan of Merger, dated
as of November 12, 1999, by and among the Borrower, Persuade Merger
Corp., a Delaware corporation, Influence, Xxxxxxxxx Engineering Ltd.,
an Israeli company, Urotek Ltd., an Israeli company, Katsumi Oneda and
Xxxxx X. Xxxx, as the same may be amended, modified, restated or
supplemented prior to the Closing Date.
"Qualifying IPO" means an Equity Issuance by the Parent
consisting of an underwritten primary public offering (other than a
public offering pursuant to a registration statement on Form S-8) of
the common Capital Stock of the Parent (i) pursuant to an effective
registration statement filed with the Securities and Exchange
Commission in accordance with the Securities Act (whether alone or in
connection with a secondary public offering) and (ii) resulting in
proceeds to the Parent of at least $30,000,000.
"Real Properties" means, at any time, a collective reference
to each of the facilities and real properties owned, leased or operated
by the Consolidated Parties at such time.
"Refinancing" means the refinancing on the Initial Funding
Date of certain existing Funded Indebtedness of the Borrower and its
Subsidiaries.
"Register" shall have the meaning assigned to such term in
Section 11.3(c).
"Regulation D, T, U, or X" means Regulation D, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Financial Information" means, with respect to the
applicable Calculation Date, (i) the financial statements of the
Consolidated Parties required to be delivered pursuant to Section
7.1(a) or (b) for the fiscal period or quarter ending as of such
Calculation Date, and (ii) the certificate of an Executive Officer of
the Borrower required by Section 7.1(c) to be delivered with the
financial statements described in clause (i) above.
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"Required Guaranteed Lenders" means, at any time, Lenders
(other than Defaulting Lenders) holding in the aggregate at least a
majority of (i) the Revolving Commitments (and Participation Interests
therein) and the outstanding Tranche B Term Loans (and Participation
Interests therein) or (ii) if the Revolving Commitments have been
terminated, the outstanding Loans, LOC Obligations and Participation
Interests (including the Participation Interests of the Issuing Lender
in any Letters of Credit).
"Required Lenders" means, at any time, Lenders (other than
Defaulting Lenders) holding in the aggregate at least a majority of (i)
the Revolving Commitments (and Participation Interests therein), the
outstanding Tranche A Term Loans (and Participation Interests therein)
and the outstanding Tranche B Term Loans (and Participation Interests
therein) or (ii) if the Revolving Commitments have been terminated, the
outstanding Loans, LOC Obligations and Participation Interests
(including the Participation Interests of the Issuing Lender in any
Letters of Credit).
"Required Tranche A Term Lenders" means, at any time, Lenders
(other than Defaulting Lenders) holding in the aggregate at least a
majority of the outstanding Tranche A Term Loans (and Participation
Interests therein).
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
final, non-appealable determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding
upon such Person or to which any of its material property is subject.
"Restricted Payment" means (i) any dividend or other payment
or distribution, direct or indirect, on account of any shares of any
class of Capital Stock of any Consolidated Party, now or hereafter
outstanding (including without limitation any payment in connection
with any dissolution, merger, consolidation or disposition involving
any Consolidated Party), or to the holders, in their capacity as such,
of any shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding (other than dividends or distributions
payable in Capital Stock of the applicable Person and dividends or
distributions payable (directly or indirectly through Subsidiaries) to
any Credit Party other than the Parent), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of Capital Stock of any Consolidated Party, now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding, (iv) any payment or prepayment of
principal of, premium, if any, or interest on, including any
redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Investor Subordinated Debt and (v) any
loan or advance to the Parent.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding of up to such Lender's Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving
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Loans in accordance with the provisions of Section 2.1(a) and (ii) to
purchase Participation Interests in Letters of Credit in accordance
with the provisions of Section 2.2(c).
"Revolving Committed Amount" shall have the meaning assigned
to such term in Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each Lender provided pursuant to
Section 2.1(e) and evidencing the Revolving Loans of such Lender,
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, restated, supplemented, extended, renewed or
replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., or any successor or assignee of the
business of such division in the business of rating securities.
"Sale and Leaseback Transaction" means any arrangement
pursuant to which any Consolidated Party, directly or indirectly,
becomes liable as lessee, guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any Property
(a) which such Consolidated Party has sold or transferred (or is to
sell or transfer) to a Person which is not a Consolidated Party or (b)
which such Consolidated Party intends to use for substantially the same
purpose as any other Property which has been sold or transferred (or is
to be sold or transferred) by such Consolidated Party to another Person
which is not a Consolidated Party in connection with such lease.
"Securities Act" means the Securities Act of 1933, as amended,
and all regulations issued pursuant thereto.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended, and all regulations issued pursuant thereto.
"Security Agreement" means the security agreement dated as of
the Initial Funding Date in the form of Exhibit 1.1B to be executed in
favor of the Agent by each of the Credit Parties, as amended, modified,
restated or supplemented from time to time.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" or "Solvency" means, with respect to any Person as
of a particular date, that on such date (i) such Person is able to pay
its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature in their ordinary course, (iii) such Person is
not engaged in a business or a transaction, and is not about to
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engage in a business or a transaction, for which such Person's Property
would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (iv) the fair value of the Property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person
and (v) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time,
it is intended that such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
"Standby Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(i).
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or
classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether
or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at such time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association,
joint venture or other entity of which such Person directly or
indirectly through Subsidiaries owns at such time more than 50% of the
Capital Stock.
"Subsidiary Guarantor" means each of the Persons identified as
a "Subsidiary Guarantor" on the signature pages hereto and each Person
which may hereafter execute a Joinder Agreement pursuant to Section
7.12, together with their successors and permitted assigns, and
"Subsidiary Guarantor" means any one of them.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an Operating Lease
under GAAP.
"Taxes" shall have the meaning assigned to such term in
Section 3.11(a).
"Trade Letter of Credit Fee" shall have the meaning assigned
to such term in Section 3.5(b)(ii).
"Tranche A Obligations" all of the obligations of the Credit
Parties to the Lenders and the Agent, whenever arising, with respect to
the Tranche A Term Loans made pursuant to Section 2.3 of this Credit
Agreement and the Tranche A Term Notes (including, but not limited to,
any interest accruing after the occurrence of a Bankruptcy Event with
respect to any Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code).
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"Tranche A Term Lenders" means, at any time, Lenders holding
any of the outstanding Tranche A Term Loans (or Participation Interests
therein).
"Tranche A Term Loan" shall have the meaning assigned to such
term in Section 2.3(a).
"Tranche A Term Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make its portion of the
Tranche A Term Loan in a principal amount equal to such Lender's
Commitment Percentage of the Tranche A Term Loan Committed Amount.
"Tranche A Term Loan Committed Amount" shall have the meaning
assigned to such term in Section 2.3(a).
"Tranche A Term Note" or "Tranche A Term Notes" means the
promissory notes of the Borrower in favor of each Lender provided
pursuant to Section 2.3(f) and evidencing the Tranche A Term Loans of
such Lender, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time.
"Tranche B Term Loan" shall have the meaning assigned to such
term in Section 2.4(a).
"Tranche B Term Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make its portion of the
Tranche B Term Loan in a principal amount equal to such Lender's
Commitment Percentage of the Tranche B Term Loan Committed Amount.
"Tranche B Term Loan Committed Amount" shall have the meaning
assigned to such term in Section 2.4(a).
"Tranche B Term Note" or "Tranche B Term Notes" means the
promissory notes of the Borrower in favor of each Lender provided
pursuant to Section 2.4(f) and evidencing the Tranche B Term Loans of
such Lender, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time.
"Unused Fee" shall have the meaning assigned to such term in
Section 3.5(a).
"Unused Fee Calculation Period" shall have the meaning
assigned to such term in Section 3.5(a).
"Unused Revolving Committed Amount" means, for any period, the
amount by which (a) the then applicable Revolving Committed Amount
exceeds (b) the daily average sum for such period of (i) the
outstanding aggregate principal amount of all Revolving Loans plus (ii)
the outstanding aggregate principal amount of all LOC Obligations.
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"US Warburg" means Warburg, Xxxxxx Equity Partners, L.P., a
Delaware limited partnership.
"Voting Stock" means, with respect to any Person, Capital
Stock issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of
such a contingency.
"Warburg Guaranty" means that certain Guaranty and Investment
Agreement as of the Initial Funding Date in the form of Exhibit 1.1C
hereof to be executed in favor of the Agent by each of the WPEP
Entities, as guarantors, as amended, modified, restated or supplemented
from time to time.
"Wholly Owned Subsidiary" means any Person 100% of whose
Voting Stock (other than director's qualifying shares) is at the time
owned by the Borrower directly or indirectly through other Persons 100%
of whose Voting Stock (other than director's qualifying shares) is at
the time owned, directly or indirectly, by the Borrower.
"WPEP Entities" means US Warburg, Warburg, Xxxxxx Netherlands
Equity Partners I, C.V., a commanditaire vennootschap, Warburg, Xxxxxx
Netherlands Equity Partners II, C.V., a commanditaire vennootschap, and
Warburg, Xxxxxx Netherlands Equity Partners III, C.V., a commanditaire
vennootschap.
"Year 2000 Problem" shall have the meaning assigned to such
term in Section 6.27.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis; provided, however, that calculations of the implied principal component
of all obligations under any Synthetic Lease or the implied interest component
of any rent paid under any Synthetic Lease shall be made by the Borrower in
accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 7.1 (or, prior to the delivery of the first financial statements
pursuant to Section 7.1, consistent with the financial statements as at December
31, 1998), but, in any event, after elimination for minority interests;
provided, however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery
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of such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (b) the Agent or the Required Lenders shall so object in
writing within 60 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Credit Parties to the Lenders as to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made under the financial covenants set
forth in Section 7.11 (including without limitation for purposes of the
definitions of "Applicable Percentage" and "Pro Forma Basis" set forth in
Section 1.1), (i) after consummation of any Asset Disposition occurring after
the Closing Date (A) income statement items (whether positive or negative) and
capital expenditures attributable to the Property disposed of shall be excluded
to the extent relating to any period occurring prior to the date of such
transaction and (B) Indebtedness which is retired shall be excluded and deemed
to have been retired as of the first day of the applicable period and (ii) after
consummation of any Acquisition occurring after the Closing Date (A) income
statement items (whether positive or negative) and capital expenditures
attributable to the Person or Property acquired shall, to the extent not
otherwise included in such income statement items for the Consolidated Parties
in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.1, be included to the extent relating to any period applicable in such
calculations, (B) to the extent not retired in connection with such Acquisition,
Indebtedness of the Person or Property acquired shall be deemed to have been
incurred as of the first day of the applicable period and (C) pro forma
adjustments may be included to the extent that such adjustments would be
permitted under GAAP and give effect to items that are (x) directly attributable
to such transaction, (y) expected to have a continuing impact on the
Consolidated Parties and (z) factually supportable.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the
Borrower such Lender's Commitment Percentage of revolving credit loans
requested by the Borrower in Dollars ("Revolving Loans") from time to
time from the Initial Funding Date until the Maturity Date, or such
earlier date as the Revolving Commitments shall have been terminated as
provided herein; provided, however, that the sum of the aggregate
outstanding principal amount of Revolving Loans shall not exceed
FIFTEEN MILLION DOLLARS ($15,000,000) (as such aggregate maximum amount
may be reduced from time to time as provided in Section 3.4, the
"Revolving Committed Amount"); provided, further, (A) with regard to
each Lender individually, such Lender's outstanding Revolving Loans
shall not exceed such Lender's Commitment Percentage of the Revolving
Committed Amount, and (B) the sum of the aggregate outstanding
principal amount of Revolving Loans plus LOC Obligations shall not
exceed
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the Revolving Committed Amount. Revolving Loans may consist of Base
Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request; provided, however, that no more than 5 Eurodollar
Loans which are Revolving Loans shall be outstanding hereunder at any
time (it being understood that, for purposes hereof, Eurodollar Loans
with different Interest Periods shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods
to constitute a new Eurodollar Loan with a single Interest Period).
Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephonic
notice promptly confirmed in writing) to the Agent not later
than 10:00 A.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing in the case of Base
Rate Loans, and on the third Business Day prior to the date of
the requested borrowing in the case of Eurodollar Loans. Each
such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date
of the requested borrowing (which shall be a Business Day),
(C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar
Loans are requested, the Interest Period(s) therefor. If the
Borrower shall fail to specify in any such Notice of Borrowing
(I) an applicable Interest Period in the case of a Eurodollar
Loan, then such notice shall be deemed to be a request for an
Interest Period of one month, or (II) the type of Revolving
Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan hereunder. The Agent shall give
notice to each affected Lender promptly upon receipt of each
Notice of Borrowing pursuant to this Section 2.1(b)(i), the
contents thereof and each such Lender's share of any borrowing
to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base
Rate Loan that is a Revolving Loan shall be in a minimum
aggregate principal amount of $1,000,000 and integral
multiples of $100,000 in excess thereof (or the remaining
amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Commitment
Percentage of each Revolving Loan borrowing available to the
Agent for the account of the Borrower as specified in Section
3.15(a), or in such other manner as the Agent may specify in
writing, by 1:00 P.M. (Charlotte, North Carolina time) on the
date specified in the applicable Notice of Borrowing in
Dollars and in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the
Agent by crediting the account of the Borrower on the books of
such office with the aggregate of the amounts made available
to the Agent by the Lenders and in like funds as received by
the Agent.
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(c) Repayment. The principal amount of all Revolving Loans
shall be due and payable in full on the Maturity Date, unless
accelerated sooner pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(e) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower
to such Lender in an original principal amount equal to such Lender's
Commitment Percentage of the Revolving Committed Amount and in
substantially the form of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein,
the Issuing Lender agrees to issue, and each Lender severally agrees to
participate in the issuance by the Issuing Lender of, standby and trade
Letters of Credit in Dollars from time to time from the Initial Funding
Date until the date thirty (30) days prior to the Maturity Date as the
Borrower may request, in a form reasonably acceptable to the Issuing
Lender; provided, however, that (i) the LOC Obligations outstanding
shall not at any time exceed FIVE MILLION DOLLARS ($5,000,000) (the
"LOC Committed Amount") and (ii) the sum of the aggregate outstanding
principal amount of Revolving Loans plus LOC Obligations shall not at
any time exceed the Revolving Committed Amount. No Letter of Credit
shall (x) have an original expiry date more than one year from the date
of issuance (provided that any such Letter of Credit may contain
customary "evergreen" provisions pursuant to which the expiry date is
automatically extended by a specific time period unless the Issuing
Lender gives notice to the beneficiary of such Letter of Credit at
least a specified time period prior to the expiry date then in effect)
or (y) as originally issued or as extended, have an expiry date
extending beyond the date thirty (30) days prior to the Maturity Date.
Each Letter of Credit shall comply with the related LOC Documents. The
issuance and expiry dates of each Letter of Credit shall be a Business
Day.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted by the Borrower to the Issuing
Lender at least three (3) Business Days prior to the requested date of
issuance. The Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to each of the Lenders a detailed
report specifying the
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Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
the prior report, and including therein, among other things, the
beneficiary, the face amount and the expiry date, as well as any
payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a
Participation Interest from the Issuing Lender in such Letter of Credit
and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective
Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably assume and be obligated to pay to the
Issuing Lender and discharge when due, its pro rata share of the
obligations arising under such Letter of Credit. Without limiting the
scope and nature of each Lender's Participation Interest in any Letter
of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender its pro rata share of
such unreimbursed drawing in same day funds on the day of notification
by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) below. The obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender that
the Borrower intends to otherwise reimburse the Issuing Lender for such
drawing, the Borrower shall be deemed to have requested that the
Lenders make a Revolving Loan in the amount of the drawing as provided
in subsection (e) below on the related Letter of Credit, the proceeds
of which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds of a
Revolving Loan obtained hereunder or otherwise) in same day funds. If
the Borrower shall fail to reimburse the Issuing Lender as provided
hereinabove, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Adjusted Base Rate plus 2%.
The Borrower's reimbursement obligations hereunder shall be absolute
and unconditional under all circumstances irrespective of (but without
waiver of) any rights of setoff, counterclaim or defense to payment
that the applicable account party or the Borrower may claim or have
against the Issuing Lender, the Agent, the Lenders, the beneficiary of
the Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the applicable account
party or the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability
of the Letter of Credit. The Issuing Lender will promptly notify the
other Lenders of the amount of any unreimbursed drawing and each Lender
shall promptly pay to the Agent for the account of the Issuing Lender
in Dollars and in immediately available funds, the amount of such
Lender's pro rata share of such unreimbursed drawing. Such payment
shall be made on the
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day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (Charlotte, North
Carolina time), and otherwise such payment shall be made at or before
12:00 Noon (Charlotte, North Carolina time) on the Business Day next
succeeding the day such notice is received. If such Lender does not pay
such amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from the
date of such drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such Lender is required to make payments
of such amount pursuant to the preceding sentence, the Federal Funds
Rate and thereafter at a rate equal to the Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default
or the acceleration of the obligations of the Borrower hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever. Simultaneously with the making of each such payment by a
Lender to the Issuing Lender, such Lender shall, automatically and
without any further action on the part of the Issuing Lender or such
Lender, acquire a Participation Interest in an amount equal to such
payment (excluding the portion of such payment constituting interest
owing to the Issuing Lender) in the related unreimbursed drawing
portion of the LOC Obligation and in the interest thereon and in the
related LOC Documents, and shall have a claim against the Borrower with
respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan advance to reimburse a drawing under a Letter of Credit,
the Agent shall give notice to the Lenders that a Revolving Loan has
been requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case a
Revolving Loan advance comprised of Base Rate Loans (or Eurodollar
Loans to the extent the Borrower has complied with the procedures of
Section 2.1(b)(i) with respect thereto) shall be immediately made to
the Borrower by all Lenders (notwithstanding any termination of the
Commitments pursuant to Section 9.2) pro rata based on the respective
Commitment Percentages of the Lenders (determined before giving effect
to any termination of the Commitments pursuant to Section 9.2) and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving
Loan immediately upon any such request or deemed request in the amount,
in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with
the minimum amount for advances of Revolving Loans otherwise required
hereunder, (ii) whether any conditions specified in Section 5.3 are
then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for
Revolving Loan to be made by the time otherwise required hereunder, (v)
whether the date of such borrowing is a date on which Revolving Loans
are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving
Loan cannot for any reason be made on the date otherwise required above
(including, without limitation,
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as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower or any other Credit Party), then each
such Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) from the Issuing Lender such Participation Interests in
the outstanding LOC Obligations as shall be necessary to cause each
such Lender to share in such LOC Obligations ratably (based upon the
respective Commitment Percentages of the Lenders (determined before
giving effect to any termination of the Commitments pursuant to Section
9.2)), provided that at the time any purchase of Participation
Interests pursuant to this sentence is actually made, the purchasing
Lender shall be required to pay to the Issuing Lender, to the extent
not paid to the Issuing Lender by the Borrower in accordance with the
terms of subsection (d) above, interest on the principal amount of
Participation Interests purchased for each day from and including the
day upon which such borrowing would otherwise have occurred to but
excluding the date of payment for such Participation Interests, at the
rate equal to, if paid within two (2) Business Days of the date of the
Revolving Loan advance, the Federal Funds Rate, and thereafter at a
rate equal to the Base Rate.
(f) Designation of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a), a Letter of
Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of any Subsidiary of the
Borrower, provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter
of Credit shall, for purposes hereof, be treated in all respects the
same as the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits (the "UCP") or the International Standby
Practices 1998 (the "ISP98"), in either case as published as of the
date of issue by the International Chamber of Commerce, in which case
the UCP or the ISP98, as applicable, may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this
Section 2.2, the Borrower hereby agrees to pay, and protect,
indemnify and save each Lender harmless from and against, any
and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees)
that such Lender may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of such Lender to honor a drawing
under a
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Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Lenders
(including the Issuing Lender), the Borrower shall assume all
risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. No Lender (including the Issuing
Lender) shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (D) for any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from
causes beyond the control of such Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by any Lender (including the
Issuing Lender), under or in connection with any Letter of
Credit or the related certificates, if taken or omitted in
good faith, shall not put such Lender under any resulting
liability to the Borrower or any other Credit Party. It is the
intention of the parties that this Credit Agreement shall be
construed and applied to protect and indemnify each Lender
(including the Issuing Lender) against any and all risks
involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower (on behalf of
itself and each of the other Credit Parties), including,
without limitation, any and all Government Acts. No Lender
(including the Issuing Lender) shall, in any way, be liable
for any failure by such Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of such
Lender.
(iv) Nothing in this subsection (i) is intended to
limit the reimbursement obligations of the Borrower contained
in subsection (d) above. The obligations of the Borrower under
this subsection (i) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Lenders (including the Issuing
Lender) to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (i), the Borrower shall have no
obligation to indemnify any Lender
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(including the Issuing Lender) in respect of any liability
incurred by such Lender (A) arising solely out of the gross
negligence or willful misconduct of such Lender, as determined
by a court of competent jurisdiction, or (B) caused by such
Lender's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit, as determined
by a court of competent jurisdiction, unless such payment is
prohibited by any law, regulation, court order or decree.
Nothing in this Credit Agreement shall relieve the Issuing
Lender of any liability to the Borrower in respect of any
action taken by the Issuing Lender which action constitutes
gross negligence or willful misconduct of the Issuing Lender
or a violation of the UCP, ISP98 or Uniform Commercial Code
(as applicable), as determined by a court of competent
jurisdiction.
(j) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in this
Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.3 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section
2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any
letter of credit application), this Credit Agreement shall control.
2.3 TRANCHE A TERM LOAN.
(a) Tranche A Term Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein each Lender severally agrees to make
available to the Borrower on the Initial Funding Date such Lender's
Commitment Percentage of a term loan in Dollars (the "Tranche A Term
Loan") in the aggregate principal amount of SIXTY-FIVE MILLION DOLLARS
($65,000,000) (the "Tranche A Term Loan Committed Amount"). The Tranche
A Term Loan may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request; provided, however,
that no more than 5 Eurodollar Loans which are Tranche A Term Loans
shall be outstanding hereunder at any time (it being understood that,
for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period). Amounts repaid on the Tranche A Term Loan may
not be reborrowed.
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(b) Borrowing Procedures. The Borrower shall submit an
appropriate Notice of Borrowing to the Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Initial Funding Date, with
respect to the portion of the Tranche A Term Loan initially consisting
of a Base Rate Loan, or on the third Business Day prior to the Initial
Funding Date, with respect to the portion of the Tranche A Term Loan
initially consisting of one or more Eurodollar Loans. Such Notice of
Borrowing shall be irrevocable and shall specify (i) that the funding
of a Tranche A Term Loan is requested and (ii) whether the funding of
the Tranche A Term Loan shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail
to deliver such Notice of Borrowing to the Agent by 11:00 A.M.
(Charlotte, North Carolina time) on the third Business Day prior to the
Initial Funding Date, then the full amount of the Tranche A Term Loan
shall be disbursed on the Initial Funding Date as a Base Rate Loan.
Each Lender shall make its Commitment Percentage of the Tranche A Term
Loan available to the Agent for the account of the Borrower at the
office of the Agent specified in Schedule 2.1(a), or at such other
office as the Agent may designate in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the Initial Funding Date in Dollars and in
funds immediately available to the Agent.
(c) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that is part of the Tranche A Term Loan shall be in an aggregate
principal amount that is not less than $1,000,000 and integral
multiples of $25,000 (or the then remaining principal balance of the
Tranche A Term Loan, if less).
(d) Repayment of Tranche A Term Loan. The principal amount of
the Tranche A Term Loan shall be repaid in twenty-four (24) consecutive
quarterly installments as follows unless accelerated sooner pursuant to
Section 9.2:
================================ ==============================
TRANCHE A TERM
PRINCIPAL LOAN PRINCIPAL
AMORTIZATION AMORTIZATION
PAYMENT DATES PAYMENT
================================ ==============================
June 30, 2000,
September 30, 2000,
December 31,2000 and $2,000,000
March 31, 2001
================================ ==============================
June 30, 2001,
September 30, 2001,
December 31,2001 and
March 31, 2002 $2,000,000
================================ ==============================
June 30, 2002,
September 30, 2002,
December 31,2002 and
March 31, 2003 $2,500,000
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================================ ==============================
June 30, 2003,
September 30, 2003,
December 31,2003 and
March 31, 2004 $3,000,000
================================ ==============================
June 30, 2004,
September 30, 2004,
December 31,2004 and
March 31, 2005 $3,375,000
================================ ==============================
June 30, 2005,
September 30, 2005,
December 31,2005 and
Maturity Date $3,375,000
================================ ==============================
(e) Interest. Subject to the provisions of Section 3.1, the
Tranche A Term Loan shall bear interest at a per annum rate equal to:
(i) Base Rate Loans. During such periods as the Tranche A
Term Loan shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as the Tranche
A Term Loan shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
Interest on the Tranche A Term Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(f) Tranche A Term Notes. The portion of the Tranche A Term
Loan made by each Lender shall be evidenced by a duly executed
promissory note of the Borrower to such Lender in an original principal
amount equal to such Lender's Commitment Percentage of the Tranche A
Term Loan and substantially in the form of Exhibit 2.3(f).
2.4 TRANCHE B TERM LOAN.
(a) Tranche B Term Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Borrower on the Initial Funding Date such Lender's
Commitment Percentage of a term loan in Dollars (the "Tranche B Term
Loan") in the aggregate principal amount of THIRTY-FIVE MILLION DOLLARS
($35,000,000) (the "Tranche B Term Loan Committed Amount"). The Tranche
B Term Loan may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request; provided, however,
that no more than 5 Eurodollar Loans which are Tranche B Term Loans
shall be outstanding hereunder at any time (it being understood that,
for purposes hereof, Eurodollar Loans with different Interest Periods
shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings,
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extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period).
Amounts repaid on the Tranche B Term Loan may not be reborrowed.
(b) Borrowing Procedures. The Borrower shall submit an
appropriate Notice of Borrowing to the Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the Initial Funding Date, with
respect to the portion of the Tranche B Term Loan initially consisting
of a Base Rate Loan, or on the third Business Day prior to the Initial
Funding Date, with respect to the portion of the Tranche B Term Loan
initially consisting of one or more Eurodollar Loans. Such Notice of
Borrowing shall be irrevocable and shall specify (i) that the funding
of a Tranche B Term Loan is requested and (ii) whether the funding of
the Tranche B Term Loan shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are
requested, the Interest Period(s) therefor. If the Borrower shall fail
to deliver such Notice of Borrowing to the Agent by 11:00 A.M.
(Charlotte, North Carolina time) on the third Business Day prior to the
Initial Funding Date, then the full amount of the Tranche B Term Loan
shall be disbursed on the Initial Funding Date as a Base Rate Loan.
Each Lender shall make its Commitment Percentage of the Tranche B Term
Loan available to the Agent for the account of the Borrower at the
office of the Agent specified in Schedule 2.1(a), or at such other
office as the Agent may designate in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the Initial Funding Date in Dollars and in
funds immediately available to the Agent.
(c) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that is part of the Tranche B Term Loan shall be in an aggregate
principal amount that is not less than $1,000,000 and integral
multiples of $25,000 (or the then remaining principal balance of the
Tranche B Term Loan, if less).
(d) Repayment of Tranche B Term Loan. The principal amount of
the Tranche B Term Loan shall be repaid in four (4) consecutive
quarterly installments as follows unless accelerated sooner pursuant to
Section 9.2:
================================ ==============================
TRANCHE B TERM LOAN
PRINCIPAL AMORTIZATION PAYMENT PRINCIPAL AMORTIZATION
DATES PAYMENT
================================ ==============================
June 30, 2005, September 30,
2005, December 31,2005 and
Maturity Date $8,750,000
================================ ==============================
(e) Interest. Subject to the provisions of Section 3.1, the
Tranche B Term Loan shall bear interest at a per annum rate equal to:
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(i) Base Rate Loans. During such periods as the Tranche B
Term Loan shall be comprised in whole or in part of Base Rate
Loans, such Base Rate Loans shall bear interest at a per annum
rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as the Tranche
B Term Loan shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
Interest on the Tranche B Term Loan shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be
specified herein).
(f) Tranche B Term Notes. The portion of the Tranche B Term
Loan made by each Lender shall be evidenced by a duly executed
promissory note of the Borrower to such Lender in an original principal
amount equal to such Lender's Commitment Percentage of the Tranche B
Term Loan and substantially in the form of Exhibit 2.4(f).
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, (i) the principal of and, to the extent permitted by law, interest on
the Loans and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate 2% greater
than the rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then the Adjusted Base
Rate plus 2%) and (ii) the Standby Letter of Credit Fee and the Trade Letter of
Credit shall accrue at a per annum rate 2% greater than the rate which would
otherwise be applicable.
3.2 EXTENSION AND CONVERSION.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to convert Loans
into Loans of another interest rate type; provided, however, that (i) except as
provided in Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
or extended as Eurodollar Loans for new Interest Periods only on the last day of
the Interest Period applicable thereto, (ii) Loans extended as, or converted
into, Eurodollar Loans shall be subject to the terms of the definition of
"Interest Period" set forth in Section 1.1 and shall be in such minimum amounts
as provided in, with respect to Revolving Loans, Section 2.1(b)(ii), with
respect to the Tranche A Term Loan, Section 2.3(c), or, with respect to the
Tranche B Term Loan, Section 2.4(c), (iii) no more than 5 Eurodollar Loans which
are Revolving Loans, 5 Eurodollar Loans which are Tranche A Term Loans and 5
Eurodollar Loans which are Tranche B Term Loans shall be outstanding hereunder
at any time (it being understood that, for purposes hereof, Eurodollar Loans
with different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings, extensions and
conversions may, in accordance with
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the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period) and (iv) any
request for extension or conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such extension or conversion shall be effected by the
Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Agent specified in Schedule
2.1(a), or at such other office as the Agent may designate in writing, prior to
11:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in the case
of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed
extension or conversion, specifying the date of the proposed extension or
conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods with respect thereto. Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in subsections (b), (c), (d) and (e) of
Section 5.3. In the event the Borrower fails to request extension or conversion
of any Eurodollar Loan in accordance with this Section 3.2, or any such
conversion or extension is not permitted or required by this Section 3.2, then
such Eurodollar Loan shall be automatically converted into a Base Rate Loan at
the end of the Interest Period applicable thereto. The Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments.
(i) Revolving Loans and Tranche A Term Loan.
The Borrower shall have the right to prepay Revolving
Loans and the Tranche A Term Loan in whole or in part
from time to time; provided, however, that each
partial prepayment of Revolving Loans or the Tranche
A Term Loan shall be in an integral multiple of
$500,000 (or the then remaining principal balance of
the Revolving Loans or the Tranche A Term Loan, as
applicable, if less). Prepayments of the Tranche A
Term Loan shall be applied pro rata to remaining
Principal Amortization Payments. Subject to the
foregoing terms, amounts prepaid under this Section
3.3(a)(i) shall be applied as the Borrower may elect;
provided that if the Borrower shall fail to specify
with respect to any voluntary prepayment, such
voluntary prepayment shall be applied first to
Revolving Loans and then to the Tranche A Term Loan
(pro rata to remaining Principal Amortization
Payments), in each case first to Base Rate Loans and
then to Eurodollar Loans in direct order of Interest
Period maturities. All prepayments under this Section
3.3(a)(i) shall be subject to Section 3.12, but
otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount
prepaid through the date of prepayment.
(ii) Tranche B Term Loan. The Borrower shall
not have the right to prepay the Tranche B Term Loan
unless all amounts outstanding
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hereunder in respect of the Tranche A Term Loan shall have
been paid in full and the Revolving Commitments shall have
been terminated; provided, however, that, so long as there
are no outstanding Revolving Loans or LOC Obligations at the
time of such prepayment, the Borrower shall have the right
to prepay the Tranche B Term Loan in whole or in part from
time to time with Eligible Prepayment Proceeds. Each partial
prepayment of the Tranche B Term Loan shall be in an
integral multiple of $500,000 (or the then remaining
principal balance of the Tranche B Term Loan, if less) and
shall be applied pro rata to remaining Principal
Amortization Payments. Subject to the foregoing terms,
amounts prepaid under this Section 3.3(a)(ii) shall be
applied as the Borrower may elect; provided that if the
Borrower shall fail to specify with respect to any voluntary
prepayment, such voluntary prepayment shall be applied first
to Base Rate Loans and then to Eurodollar Loans in direct
order of Interest Period maturities. All prepayments under
this Section 3.3(a)(ii) shall be subject to Section 3.12,
but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid
through the date of prepayment.
(b) Mandatory Prepayments.
(i) (A) Revolving Committed Amount. If at any time, the sum
of the aggregate outstanding principal amount of Revolving
Loans plus LOC Obligations shall exceed the Revolving
Committed Amount, the Borrower immediately shall prepay the
Revolving Loans and (after all Revolving Loans have been
repaid) cash collateralize the LOC Obligations, in an amount
sufficient to eliminate such excess.
(B) LOC Committed Amount. If at any time, the sum of the
aggregate principal amount of LOC Obligations shall exceed
the LOC Committed Amount, the Borrower immediately shall
cash collateralize the LOC Obligations in an amount
sufficient to eliminate such excess.
(ii) Excess Cash Flow. Within 90 days after the end of each
fiscal year (commencing with the fiscal year ending December 31,
2000), the Borrower shall prepay the Loans in an amount equal to
75% (if the Leverage Ratio as of the end of such fiscal year is
greater than 3.0 to 1.0), 50% (if the Leverage Ratio as of the end
of such fiscal year is less than or equal to 3.0 to 1.0 but
greater than 2.5 to 1.0) or 25% (if the Leverage Ratio as of the
end of such fiscal year is less than or equal to 2.5 to 1.0 but
greater than 2.0 to 1.0) of Excess Cash Flow for such prior fiscal
year (such prepayment to be applied as set forth in clause (vi)
below).
(iii) (A) Asset Dispositions. Immediately upon the
occurrence of any Asset Disposition Prepayment Event, the
Borrower shall prepay the Loans in an aggregate amount equal
to 100% of the Net Cash Proceeds of the related Asset
Disposition not applied (or caused to be applied) by the
Credit Parties during the related Application Period to make
Eligible Reinvestments as
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contemplated by the terms of Section 8.5(g) (such prepayment
to be applied as set forth in clause (vi) below).
(B) Casualty and Condemnation Events. Immediately upon
the occurrence of any event requiring application of any
insurance proceeds to the prepayment of Loans (and cash
collateralization of LOC Obligations) pursuant to Section
7.6(b), the Borrower shall prepay the Loans in the amount
required by such Section 7.6(b) (such prepayment to be
applied as set forth in clause (vi) below).
(iv) Debt Issuances. Immediately upon receipt by any
Consolidated Party of proceeds from any Debt Issuance, the
Borrower shall prepay the Loans in an aggregate amount equal to
100% of the Net Cash Proceeds of such Debt Issuance (such
prepayment to be applied as set forth in clause (vi) below).
(v) Equity Issuances. Immediately upon receipt by a
Consolidated Party of proceeds from any Equity Issuance other than
an Excluded Equity Issuance, the Borrower shall prepay the Loans
in an aggregate amount equal to 50% of the Net Cash Proceeds of
such Equity Issuance (such prepayment to be applied as set forth
in clause (vi) below).
(vi) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 3.3(b) shall be
applied as follows: (A) with respect to all amounts prepaid
pursuant to Section 3.3(b)(i)(A), to Revolving Loans and (after
all Revolving Loans have been repaid) to a cash collateral account
in respect of LOC Obligations, (B) with respect to all amounts
prepaid pursuant to Section 3.3(b)(i)(B), to a cash collateral
account in respect of LOC Obligations and (C) with respect to all
amounts prepaid pursuant to Section 3.3(b)(ii), (iii), (iv) and
(v), to the Tranche A Term Loan (pro rata to remaining Principal
Amortization Payments). Within the parameters of the applications
set forth above, prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Loans unless otherwise directed by
the Borrower. No prepayments under Sections 3.3(b)(ii) through (v)
shall be required after the Tranche A Term Loan has been repaid in
full. All prepayments under this Section 3.3(b) shall be subject
to Section 3.12, but otherwise without premium or penalty, and
shall be accompanied by interest on the principal amount prepaid
through the date of prepayment.
(vii) Prepayment Account. If the Borrower is required to
make a mandatory prepayment of Eurodollar Loans under this Section
3.3(b), the Borrower shall have the right, in lieu of making such
prepayment in full, to deposit an amount equal to such mandatory
prepayment with the Agent in a cash collateral account maintained
(pursuant to documentation reasonably satisfactory to the Agent)
by and in the sole dominion and control of the Agent. Any amounts
so deposited shall be held by the Agent as collateral for the
prepayment of such Eurodollar Loans and shall be applied to the
prepayment of the applicable Eurodollar Loans at the end of the
current Interest Periods applicable thereto. At
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the request of the Borrower, amounts so deposited shall be
invested by the Agent in Cash Equivalents maturing prior to
the date or dates on which it is anticipated that such
amounts will be applied to prepay such Eurodollar Loans; any
interest earned on such Cash Equivalents will be for the
account of the Borrower and the Borrower will deposit with
the Agent the amount of any loss on any such Cash
Equivalents to the extent necessary in order that the amount
of the prepayment to be made with the deposited amounts may
not be reduced.
3.4 TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole
or in part (in minimum aggregate amounts of $1,000,000 or in integral
multiples of $100,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount))
upon five Business Days' prior written notice to the Agent; provided,
however, (i) prior to payment in full of all amounts outstanding
hereunder in respect of the Tranche A Term Loan, no such termination or
reduction shall be made which would cause the Revolving Committed
Amount to be less than $10,000,000 and (ii) no such termination or
reduction shall be made which would cause the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations to
exceed the Revolving Committed Amount, unless, concurrently with such
termination or reduction, the Revolving Loans are repaid to the extent
necessary to eliminate such excess. The Agent shall promptly notify
each affected Lender of receipt by the Agent of any notice from the
Borrower pursuant to this Section 3.4(a).
(b) Term Loan Commitments. The Tranche A Term Loan
Commitment of each Lender shall automatically terminate at such time as
such Lender shall have made available to the Borrower such Lender's
share of the Tranche A Term Loan, and the Tranche B Term Loan
Commitment of each Lender shall automatically terminate at such time as
such Lender shall have made available to the Borrower such Lender's
share of the Tranche B Term Loan.
(c) Mandatory Reductions. The Revolving Committed Amount
automatically shall be permanently reduced from time to time in
accordance with the terms of Section 3.3(b)(vi).
(d) Maturity Date. The Revolving Commitments of the Lenders
and the LOC Commitment of the Issuing Lender shall automatically
terminate on the Maturity Date.
(e) General. The Borrower shall pay to the Agent for the
account of the Lenders in accordance with the terms of Section 3.5(a),
on the date of each termination or reduction of the Revolving Committed
Amount, the Unused Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so terminated
or reduced.
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3.5 FEES.
(a) Unused Fee. In consideration of the Revolving
Commitments of the Lenders hereunder, the Borrower promises to pay to
the Agent for the account of each Lender a fee (the "Unused Fee") on
the Unused Revolving Committed Amount computed at a per annum rate for
each day during the applicable Unused Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Percentage in
effect from time to time. The Unused Fee shall commence to accrue on
the Initial Funding Date and shall be due and payable in arrears on the
last Business Day of each March, June, September and December (and on
any date that the Revolving Committed Amount is reduced and on the
Maturity Date) for the immediately preceding quarter (or portion
thereof) (each such quarter or portion thereof for which the Unused Fee
is payable hereunder being herein referred to as an "Unused Fee
Calculation Period"), beginning with the first of such dates to occur
after the Initial Funding Date.
(b) Letter of Credit Fees.
(i) Standby Letter of Credit Issuance Fee. In
consideration of the issuance of standby Letters of Credit
hereunder, the Borrower promises to pay to the Agent for the
account of each Lender a fee (the "Standby Letter of Credit
Fee") on such Lender's Commitment Percentage of the average
daily maximum amount available to be drawn under each such
standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration equal
to the Applicable Percentage. The Standby Letter of Credit Fee
will be payable quarterly in arrears on the last Business Day
of each March, June, September and December for the
immediately preceding quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In
consideration of the issuance of trade Letters of Credit
hereunder, the Borrower promises to pay to the Agent for the
account of each Lender a fee (the "Trade Letter of Credit
Fee") on such Lender's Commitment Percentage of the average
daily maximum amount available to be drawn under each such
trade Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration equal
to the Applicable Percentage. The Trade Letter of Credit Fee
will be payable quarterly in arrears on the last Business Day
of each March, June, September and December for the
immediately preceding quarter (or a portion thereof).
(iii) Issuing Lender Fees. In addition to the Standby
Letter of Credit Fee payable pursuant to clause (i) above and
the Trade Letter of Credit Fee payable pursuant to clause (ii)
above, the Borrower promises to pay to the Agent for the
account of the Issuing Lender without sharing by the other
Lenders (i) a letter of credit fronting fee of 0.125% on the
average daily maximum amount available to be drawn under each
Letter of Credit computed at a per annum rate for each day
from the date of issuance to the date of expiration (which
fronting fee shall be payable quarterly in arrears on the last
Business Day of each March, June, September and December for
the immediately preceding quarter (or a portion thereof)) and
(ii) the
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customary charges from time to time of the Issuing Lender with
respect to the issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under, such
Letters of Credit.
(c) Agent's Fees. The Borrower promises to pay to the Agent,
for its own account, for the account of the Issuing Lender and for the
account of Banc of America Securities LLC, as applicable, the fees
referred to in the Agent's Fee Letter; provided that no such fees shall
be payable prior to the Initial Funding Date.
3.6 CAPITAL ADEQUACY.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto. No Lender shall be entitled to receive compensation
pursuant to this Section 3.6 for such amounts incurred more than 180 days prior
to delivery of a certificate requesting compensation and providing a reasonably
detailed explanation of the calculation thereof.
3.7 LIMITATION ON EURODOLLAR LOANS.
If on or prior to the first day of any Interest Period for any
Eurodollar Loan the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, then the Agent shall give the Borrower prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, Continue Eurodollar Loans, or to
Convert Base Rate Loans into Eurodollar Loans and the Borrower shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Eurodollar Loans or Convert such Eurodollar
Loans into Base Rate Loans in accordance with the terms of this Credit
Agreement.
3.8 ILLEGALITY.
Notwithstanding any other provision of this Credit Agreement, in the
event that it becomes unlawful for any Lender or its Applicable Lending Office
to make, maintain, or fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert Base Rate Loans into Eurodollar
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Loans shall be suspended until such time as such Lender may again make,
maintain, and fund Eurodollar Loans (in which case the provisions of Section
3.10 shall be applicable).
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Notes, or its obligation to make Eurodollar
Loans, or change the basis of taxation of any amounts payable to such
Lender (or its Applicable Lending Office) under this Credit Agreement
or its Notes in respect of any Eurodollar Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Eurodollar Reserve Requirement utilized in the determination of the
Adjusted Eurodollar Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or commitments of,
such Lender (or its Applicable Lending Office), including the
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or the London interbank market any other condition affecting
this Credit Agreement or its Notes or any of such extensions of credit
or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Credit Agreement or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9, the Borrower may, by notice to such Lender
(with a copy to the Agent), suspend the obligation of such Lender to make or
Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans,
until the event or condition giving rise to such request ceases to be in effect
(in which case the provisions of Section 3.10 shall be applicable); provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested. Each Lender shall promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this Section
3.9 and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section 3.9 shall
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furnish to the Borrower and the Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
3.10 TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make any Eurodollar Loan or to
Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 3.7, 3.8 or 3.9 hereof, such Lender's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on the last day(s)
of the then current Interest Period(s) for such Eurodollar Loans (or, in the
case of a Conversion, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 3.7, 3.8 or
3.9 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.7, 3.8 or 3.9 hereof that gave rise to the
Conversion of such Lender's Eurodollar Loans pursuant to this Section 3.10 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments.
3.11 TAXES.
(a) Any and all payments by any Credit Party to or for the
account of any Lender or the Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending Office)
or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being
hereinafter referred to as "Taxes"). If any Credit Party shall be
required by law to deduct any Taxes from or in respect of any sum
payable under this Credit Agreement or any other Credit Document to any
Lender or the Agent, (i) the sum
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payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 3.11) such Lender or the Agent receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law, and (iv) such Credit Party shall furnish to the Agent, at its
address referred to in Section 11.1, the original or a certified copy
of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Credit Agreement or any other Credit Document
or from the execution or delivery of, or otherwise with respect to,
this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.11) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender that is not a United States person under
Section 7701(a)(30) of the Code, on or prior to the date of its
execution and delivery of this Credit Agreement in the case of each
Lender listed on the signature pages hereof and on or prior to the date
on which it becomes a Lender in the case of each other Lender, and from
time to time thereafter if requested in writing by the Borrower or the
Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue
Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender
is entitled to benefits under an income tax treaty to which the United
States is a party which reduces to zero the rate of withholding tax on
payments of interest or certifying that the income receivable pursuant
to this Credit Agreement is effectively connected with the conduct of a
trade or business in the United States, (ii) Internal Revenue Service
Form W-8 or W-9, as appropriate, or any successor form prescribed by
the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to an exemption from tax on
payments pursuant to this Credit Agreement or any of the other Credit
Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to Section 3.11(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 3.11(a) or 3.11(b) with
respect to Taxes imposed by the United States; provided, however, that
should a Lender, which is otherwise exempt from withholding tax, become
subject to Taxes because of its failure to
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deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If any Credit Party is required to pay additional amounts
to or for the account of any Lender pursuant to this Section 3.11, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the applicable Credit Party shall furnish to the Agent the
original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 3.11 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.
3.12 COMPENSATION.
Upon the request of any Lender, the Borrower shall pay to such Lender
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (excluding loss of
anticipated profits (including loss of Applicable Margin)) incurred by it as a
result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Loan for any reason (including, without limitation, (i) in connection
with any assignment by Bank of America pursuant to Section 11.3(b) as
part of the primary syndication of the Loans during the 180-day period
immediately following the Initial Funding Date and (ii) the
acceleration of the Loans pursuant to Section 9.2) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 5 to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this Credit
Agreement.
With respect to Eurodollar Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, Converted or Continued,
for the period from the date of such prepayment or of such failure to borrow,
Convert or Continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, Convert or Continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to
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such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.13 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or (subject to the terms
of Section 3.3) prepayment of principal of any Loan or reimbursement
obligations arising from drawings under Letters of Credit, each payment
of interest on the Loans or reimbursement obligations arising from
drawings under Letters of Credit, each payment of Unused Fees, each
payment of the Standby Letter of Credit Fee, each payment of the Trade
Letter of Credit Fee, each reduction of the Revolving Committed Amount
and each conversion or extension of any Loan, shall be allocated pro
rata among the Lenders in accordance with the respective principal
amounts of their outstanding Loans of the applicable type and
Participation Interests in Loans of the applicable type and Letters of
Credit.
(b) Advances. No Lender shall be responsible for the failure
or delay by any other Lender in its obligation to make its ratable
share of a borrowing hereunder; provided, however, that the failure of
any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder. Unless the Agent shall have
been notified by any Lender prior to the date of any requested
borrowing that such Lender does not intend to make available to the
Agent its ratable share of such borrowing to be made on such date, the
Agent may assume that such Lender has made such amount available to the
Agent on the date of such borrowing, and the Agent in reliance upon
such assumption, may (in its sole discretion but without any obligation
to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent,
the Agent shall be able to recover such corresponding amount from such
Lender. If such Lender does not pay such corresponding amount forthwith
upon the Agent's demand therefor, the Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Agent. The Agent shall also be entitled to recover from
the Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent at a per
annum rate equal to (i) from the Borrower at the applicable rate for
the applicable borrowing pursuant to the Notice of Borrowing and (ii)
from a Lender at the Federal Funds Rate.
3.14 SHARING OF PAYMENTS.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other
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security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement, if
any Lender shall fail to remit to the Agent or any other Lender an amount
payable by such Lender to the Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Agent or such other Lender at a rate
per annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.14 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.14 to share in
the benefits of any recovery on such secured claim.
3.15 PAYMENTS, COMPUTATIONS, ETC.
(a) Generally. Except as otherwise specifically provided
herein, all payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without setoff, deduction, counterclaim or
withholding of any kind, at the Agent's office specified in Schedule
2.1(a) not later than 2:00 P.M. (Charlotte, North Carolina time) on the
date when due. Payments received after such time shall be deemed to
have been received on the next succeeding Business Day. The Agent may
(but shall not be obligated to) debit the amount of any such payment
which is not made by such time to any ordinary deposit account of the
Borrower or any other Credit Party maintained with the Agent (with
notice to the Borrower or such other Credit Party). The Borrower shall,
at the time it makes any payment under this Credit Agreement, specify
to the Agent the Loans, LOC Obligations, Fees, interest or other
amounts payable by the Borrower hereunder to which such payment is to
be applied (and in the event that it fails so to specify, or if such
application would be inconsistent with the terms hereof, the Agent
shall distribute such payment to the Lenders in such manner as the
Agent may determine to be appropriate in respect of obligations owing
by the Borrower hereunder, subject to the terms of Section 3.13(a)).
The Agent will distribute such payments to such Lenders, if any such
payment is received prior to 2:00 P.M. (Charlotte, North Carolina time)
on a Business Day in like funds as received prior to the end of such
Business
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Day and otherwise the Agent will distribute such payment to such
Lenders on the next succeeding Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and Fees for the period of
such extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Base Rate Loans which shall be
calculated based on a year of 365 or 366 days, as appropriate. Interest
shall accrue from and include the date of borrowing, but exclude the
date of payment.
(b) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, after the occurrence and during the continuance of an Event
of Default (but subject to the terms of Section 3.3(b)(vi)), all
amounts collected or received by the Agent or any Lender on account of
the Credit Party Obligations or any other amounts outstanding under any
of the Credit Documents or in respect of the Collateral shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Agent in connection with enforcing the
rights of the Lenders under the Credit Documents and any
protective advances made by the Agent with respect to the
Collateral under or pursuant to the terms of the Collateral
Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all of the Tranche A Obligations
consisting of accrued fees and interest;
FOURTH, to the payment of the outstanding principal
amount of the Tranche A Obligations;
FIFTH, to the payment of all of the other Credit Party
Obligations consisting of accrued fees and interest;
SIXTH, to the payment of the outstanding principal amount
of the other Credit Party Obligations (including the payment
or cash collateralization of the outstanding LOC Obligations);
SEVENTH, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation, reasonable
attorneys' fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise
with respect to the Credit Party Obligations owing to such
Lender;
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EIGHTH, to all other Credit Party Obligations and
other obligations which shall have become due and payable
under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "SEVENTH" above; and
NINTH, to the payment of the surplus, if any, to
whomever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the
then outstanding Loans and LOC Obligations held by such Lender bears to
the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH",
"SIXTH", "SEVENTH" and "EIGHTH" above; and (iii) to the extent that any
amounts available for distribution pursuant to clause "SEVENTH" above
are attributable to the issued but undrawn amount of outstanding
Letters of Credit, such amounts shall be held by the Agent in a cash
collateral account and applied (A) first, to reimburse the Issuing
Lender from time to time for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all
other obligations of the types described in clauses "SEVENTH" and
"EIGHTH" above in the manner provided in this Section 3.15(b).
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section
11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to
each Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder from or for the account of any Credit Party and each
Lender's share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to clause (b) of this Section 3.16
(and, if consistent with the entries of the Agent, clause (a)) shall be
prima facie evidence of the existence and amounts of the obligations of
the Credit Parties therein recorded; provided, however, that the
failure of any Lender or the Agent to maintain any such account, such
Register or such subaccount, as applicable, or any error therein, shall
not in any manner affect the obligation of the Credit Parties to repay
the Credit Party Obligations owing to such Lender.
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3.17 REPLACEMENT OF AFFECTED LENDERS.
If (i) any Lender having a Revolving Commitment becomes a Defaulting
Lender or (ii) any Credit Party is required to make any payments to any Lender
under Section 3.6, Section 3.8, Section 3.9 or Section 3.11 in an amount
reasonably deemed material by the Borrower, the Borrower shall have the right,
if no Event of Default then exists, to replace such Lender (the "Replaced
Lender") with one or more other Eligible Assignee or Eligible Assignees, none of
whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender"), provided that (a) at the time of any
replacement pursuant to this Section 3.17, the Replaced Lender and Replacement
Lender shall enter into an Assignment and Acceptance pursuant to which the
Replacement Lender shall acquire all or a portion, as the case may be, of the
Commitments and outstanding Loans of, and participation in Letters of Credit by,
the Replaced Lender and (b) all obligations of the Borrower owing to the
Replaced Lender relating to the Loans so replaced (including, without
limitation, such increased costs and excluding those specifically described in
clause (a) above in respect of which the assignment purchase price has been, or
is concurrently being paid) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the appropriate
Assignment and Acceptance, the payment of amounts referred to in clauses (a) and
(b) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrower,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder with respect to such replaced
Loans, except with respect to indemnification provisions under this Agreement,
which shall survive as to such Replaced Lender. Notwithstanding anything to the
contrary contained above, (1) the Lender that acts as the Issuing Lender may not
be replaced hereunder at any time that it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to the Issuing Lender (including the
furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer satisfactory to such Issuing Lender or the depositing of
cash collateral into a cash collateral account maintained with the Agent in
amounts and pursuant to arrangements satisfactory to such Issuing Lender) have
been made with respect to such outstanding Letters of Credit and (2) the Lender
that acts as the Agent may not be replaced hereunder except in accordance with
the terms of Section 10.7. The Replaced Lender shall be required to deliver for
cancellation its applicable Notes to be canceled on the date of replacement, or
if any such Note is lost or unavailable, such other assurances or
indemnification therefor as the Borrower may reasonably request.
SECTION 4
GUARANTY
4.1 THE GUARANTY.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement, and the
Agent as hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Credit Party Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory
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cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Credit Party
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Credit Party Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents or Hedging Agreements, the obligations of each
Guarantor under this Credit Agreement and the other Credit Documents shall be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of the Bankruptcy Code
or any comparable provisions of any applicable state law.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Credit Party Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor shall
have no right of subrogation, indemnity, reimbursement or contribution against
the Borrower or any other Guarantor for amounts paid under this Section 4 until
such time as the Credit Party Obligations have been Fully Satisfied. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following
shall not alter or impair the liability of any Guarantor hereunder which shall
remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Credit Party Obligations shall be extended, or such performance or
compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any
of the Credit Documents, any Hedging Agreement between any Consolidated
Party and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Credit Documents or such
Hedging Agreements shall be done or omitted;
(c) the maturity of any of the Credit Party Obligations shall
be accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement between any
Consolidated Party and any Lender, or any Affiliate of a Lender, or any
other agreement or instrument referred to in the Credit Documents or
such Hedging Agreements shall be
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waived or any other guarantee of any of the Credit Party Obligations or
any security therefor shall be released, impaired or exchanged in whole
or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Credit Party Obligations
shall fail to attach or be perfected; or
(e) any of the Credit Party Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents,
any Hedging Agreement between any Consolidated Party and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in the
Credit Documents or such Hedging Agreements, or against any other Person under
any other guarantee of, or security for, any of the Credit Party Obligations.
4.3 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
Without limiting the generality of the provisions of this Section 4,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. xx.xx.
26-7 through 26-9, inclusive, to the extent applicable. Each Guarantor further
agrees that such Guarantor shall have no right of recourse to security for the
Credit Party Obligations, except through the exercise of rights of subrogation
pursuant to Section 4.2 and through the exercise of rights of contribution
pursuant to Section 4.6.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Credit Party Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for
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purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of Section
4.1. The Guarantors acknowledge and agree that their obligations hereunder are
secured in accordance with the terms of the Collateral Documents and that the
Lenders may exercise their remedies thereunder in accordance with the terms
thereof.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other
Guarantor's Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be subordinate
and subject in right of payment to the Credit Party Obligations until such time
as the Credit Party Obligations have been Fully Satisfied, and none of the
Guarantors shall exercise any right or remedy under this Section 4.6 against any
other Guarantor until such Credit Party Obligations have been Fully Satisfied.
For purposes of this Section 4.6, (a) "Excess Payment" shall mean the amount
paid by any Guarantor in excess of its Pro Rata Share of any Guaranteed
Obligations; (b) "Pro Rata Share" shall mean, for any Guarantor in respect of
any payment of Credit Party Obligations, the ratio (expressed as a percentage)
as of the date of such payment of Guaranteed Obligations of (i) the amount by
which the aggregate present fair salable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of all of the Credit Parties exceeds the amount of all of the debts
and liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties hereunder) of
the Credit Parties; provided, however, that, for purposes of calculating the Pro
Rata Shares of the Guarantors in respect of any payment of Credit Party
Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such payment; and (c) "Contribution Share" shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, the ratio (expressed
as a percentage) as of the date of such Excess Payment of (i) the amount by
which the aggregate present fair salable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of the Credit Parties other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Credit Parties) of the Credit Parties other than the maker of
such Excess Payment; provided, however, that, for purposes of calculating the
Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess
Payment shall be deemed to have been a Guarantor on the date of such
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Excess Payment and the financial information for such Guarantor as of the date
such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment. This Section 4.6 shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under applicable law against the Borrower in respect of
any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights
of contribution against any Guarantor shall terminate from and after such time,
if ever, that such Guarantor shall be relieved of its obligations pursuant to
Section 8.5.
4.7 GUARANTEE OF PAYMENT; CONTINUING GUARANTEE.
The guarantee in this Section 4 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Credit Party
Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 CLOSING CONDITIONS.
This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by the Borrower, Influence and
the Agent, and the Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each Lender, and
thereafter this Credit Agreement shall be binding upon and inure to the benefit
of each Credit Party, the Agent and each Lender and their respective successors
and assigns.
5.2 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT.
The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit, whichever shall occur first, shall be subject to satisfaction of the
following conditions in addition to satisfaction of the conditions set forth in
Section 5.1:
(a) Executed Credit Documents. Receipt by the Agent of duly
executed copies of: (i) the Notes, (ii) the Pledge Agreement, (iii) the
Security Agreement, (iv) the Mortgage Instruments and (v) the Warburg
Guaranty.
(b) Corporate Documents. Receipt by the Agent of the
following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Initial Funding Date.
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(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Initial Funding
Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of each Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and
effect as of the Initial Funding Date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in
which the failure to so qualify and be in good standing could
have a Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all corporate
or comparable franchise taxes certified as of a recent date by
the appropriate governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Initial Funding Date.
(c) Warburg Partnership Documents. (i) A copy of the
certificate of limited partnership and the partnership agreement (not
including the schedules thereto) of U.S. Warburg, as amended and
modified from time to time, certified by an officer of the Manager to
be true and correct as of the Initial Funding Date, (ii) a copy of the
Management Agreement certified to be true and complete as of the
Initial Funding Date by an officer of the Manager, (iii) a copy of the
authorization of the General Partner authorizing the Manager to execute
and deliver the Warburg Guaranty on behalf of U.S. Warburg, (iv) an
excerpted copy of Sections 4.1, 4.2 and 4.3 of the Amended and Restated
Operating Agreement of the Manager authorizing officers of the Manager
to execute and deliver documents (including, without limitation, the
Warburg Guaranty) on behalf of the Manager certified to be true and
correct as of the Initial Funding Date by an officer of the Manager and
(v) incumbency certificate of the Manager certified by an officer of
the Manager to be true and correct as of the Initial Funding Date.
(d) Opinions of Counsel. The Agent shall have received, in
each case dated as of the Initial Funding Date and in form and
substance reasonably satisfactory to the Agent:
(i) a legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx,
counsel for the Credit Parties;
(ii) a legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx,
general counsel for the General Partner;
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(iii) a legal opinion of special local counsel for
each Credit Party not organized in the State of Delaware or
the State of New York;
(iv) a legal opinion of special local real estate
counsel for the Credit Parties for each State in which any
Mortgaged Property is located; and
(v) a legal opinion of special foreign counsel for
the Credit Parties for each country in which any Material
Foreign Subsidiary is organized.
(e) Personal Property Collateral. The Agent shall have
received:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit
Party and each jurisdiction where any Collateral is located or
where a filing would need to be made in order to perfect the
Agent's security interest in the Collateral, copies of the
financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction where financing statements are
required to be filed, in the Agent's sole discretion, in order
to perfect the Agent's security interest in the Collateral;
(iii) searches of ownership of, and Liens on, intellectual
property of each Credit Party in the appropriate governmental
offices;
(iv) all certificates evidencing any certificated Capital
Stock pledged to the Agent pursuant to the Pledge Agreement,
together with duly executed in blank, undated stock powers
attached thereto (unless, with respect to the pledged Capital
Stock of any Material Foreign Subsidiary, such stock powers
are deemed unnecessary by the Agent in its reasonable
discretion under the law of the jurisdiction of incorporation
of such Person);
(v) duly executed notices of grant of security interest
in the form required by the Security Agreement as are
necessary, in the Agent's sole discretion, to perfect the
Agent's security interest in the Collateral;
(vi) all instruments and chattel paper in the possession
of any of the Credit Parties, together with allonges or
assignments as may be necessary or appropriate to perfect the
Agent's security interest in the Collateral;
(vii) duly executed consents as are necessary, in the
Agent's sole discretion, to perfect the Agent's security
interest in the Collateral; and
(viii) in the case of any personal property Collateral
located at a premises leased by a Credit Party, such estoppel
letters, consents and waivers from the landlords on such real
property as may be required by the Agent.
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(f) Real Property Collateral. The Agent shall have received,
in form and substance reasonably satisfactory to the Agent:
(i) fully executed and notarized mortgages, deeds of
trust or deeds to secure debt (each, as the same may be
amended, modified, restated or supplemented from time to time,
a "Mortgage Instrument" and collectively the "Mortgage
Instruments") encumbering the fee interest and/or leasehold
interest of any Credit Party in each of the Real Properties
designated in Schedule 6.20(a) (each a "Mortgaged Property"
and collectively the "Mortgaged Properties");
(ii) in the case of each real property leasehold interest
of any Credit Party constituting Mortgaged Property, (a) such
estoppel letters, consents and waivers from the landlords on
such real property as may be required by the Agent, which
estoppel letters shall be in the form and substance reasonably
satisfactory to the Agent and (b) evidence that the applicable
lease, a memorandum of lease with respect thereto, or other
evidence of such lease in form and substance reasonably
satisfactory to the Agent, has been or will be recorded in all
places to the extent necessary or desirable, in the reasonable
judgment of the Agent, so as to enable the Mortgage Instrument
encumbering such leasehold interest to effectively create a
valid and enforceable first priority lien (subject to
Permitted Liens) on such leasehold interest in favor of the
Agent (or such other Person as may be required or desired
under local law) for the benefit of Lenders;
(iii) maps or plats of an as-built survey of the sites of
the real property covered by the Mortgage Instruments
certified to the Agent and the title insurance company issuing
the policy referred to in Section 5.2(f)(iv) (the "Title
Insurance Company") in a manner reasonably satisfactory to
each of the Agent and the Title Insurance Company, dated a
date reasonably satisfactory to each of the Agent and the
Title Insurance Company by an independent professional
licensed land surveyor, which maps or plats and the surveys on
which they are based shall be sufficient to delete any
standard printed survey exception contained in the applicable
title policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association
and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there
shall be surveyed and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all the
buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites;
(D) all roadways, paths, driveways, easements, encroachments
and overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor;
(E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F) if
the site is described as being on a filed map, a legend
relating the survey to said map;
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(iv) ALTA mortgagee title insurance policies issued by
Chicago Title Insurance Company (the "Mortgage Policies"), in
amounts not less than the respective amounts designated in
Schedule 6.20(a) with respect to any particular Mortgaged
Property, assuring the Agent that each of the Mortgage
Instruments creates a valid and enforceable first priority
mortgage lien on the applicable Mortgaged Property, free and
clear of all defects and encumbrances except Permitted Liens,
which Mortgage Policies shall be in form and substance
reasonably satisfactory to the Agent and shall provide for
affirmative insurance and such reinsurance as the Agent may
reasonably request, all of the foregoing in form and substance
reasonably satisfactory to the Agent;
(v) evidence as to (A) whether any Mortgaged Property is
in an area designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards (a "Flood
Hazard Property") and (B) if any Mortgaged Property is a Flood
Hazard Property, (1) whether the community in which such
Mortgaged Property is located is participating in the National
Flood Insurance Program, (2) the applicable Credit Party's
written acknowledgment of receipt of written notification from
the Agent (a) as to the fact that such Mortgaged Property is a
Flood Hazard Property and (b) as to whether the community in
which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program and (3)
copies of insurance policies or certificates of insurance of
the Consolidated Parties evidencing flood insurance
satisfactory to the Agent and naming the Agent as sole loss
payee on behalf of the Lenders; and
(vi) evidence reasonably satisfactory to the Agent that
each of the Mortgaged Properties, and the uses of the
Mortgaged Properties, are in compliance in all material
respects with all applicable laws, regulations and ordinances
including without limitation health and environmental
protection laws, erosion control ordinances, storm drainage
control laws, doing business and/or licensing laws, zoning
laws (the evidence submitted as to zoning should include the
zoning designation made for each of the Mortgaged Properties,
the permitted uses of each such Mortgaged Properties under
such zoning designation and zoning requirements as to parking,
lot size, ingress, egress and building setbacks) and laws
regarding access and facilities for disabled persons
including, but not limited to, the Federal Architectural
Barriers Act, the Fair Housing Amendments Act of 1988, the
Rehabilitation Act of 1973 and the Americans with Disabilities
Act of 1990.
(g) Availability. After giving effect to the Refinancing and
the making of the initial Loans and the issuance of the initial Letters
of Credit hereunder on the Initial Funding Date, the Revolving
Committed Amount shall exceed the sum of the aggregate outstanding
principal amount of Revolving Loans plus LOC Obligations by at least
$8,000,000.
(h) Evidence of Insurance. Receipt by the Agent of copies of
insurance policies or certificates of insurance of the Consolidated
Parties evidencing liability and casualty
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insurance meeting the requirements set forth in the Credit Documents,
including, but not limited to, naming the Agent as additional insured
(in the case of liability insurance) or loss payee (in the case of
hazard insurance) on behalf of the Lenders.
(i) Government Consent. Receipt by the Agent of evidence that
all governmental, shareholder and material third party consents and
approvals necessary or desirable in connection with the Refinancing and
expiration of all applicable waiting periods without any action being
taken by any authority that could restrain, prevent or impose any
material adverse conditions on the Refinancing or that could seek or
threaten any of the foregoing, and no law or regulation shall be
applicable which in the judgment of the Agent could have such effect.
(j) Capital Contribution. The Agent shall be satisfied that
members of the Initial Investor Group shall have contributed
approximately $20.9 million to the Borrower in exchange for common
Capital Stock of the Borrower, all on terms that are satisfactory to
the Agent.
(k) Officer's Certificates. The Agent shall have received (i)
a certificate or certificates executed by an Executive Officer of the
Borrower as of the Initial Funding Date, in form and substance
satisfactory to the Agent, stating that (A) each Credit Party is in
compliance with all existing financial obligations, (B) all
governmental, shareholder and third party consents and approvals, if
any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (C) no action, suit,
investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect any Credit Party or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding could have
a Material Adverse Effect and (D) immediately after giving effect to
the Refinancing, (1) no Default or Event of Default exists, (2) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects and (3) on the
basis of income statement items and capital expenditures for the
12-month period ending on the last day of the most recently ended
calendar month prior to the Initial Funding Date and balance sheet
items as of the Initial Funding Date after giving effect to the
Refinancing, the Credit Parties are in pro forma compliance with each
of the financial covenants set forth in Section 7.11; and (ii) a
certificate or certificates executed by an officer of the Manager as of
the Initial Funding Date stating that (A) all governmental, shareholder
and third party consents and approvals, if any, with respect to the
Warburg Guaranty and the transactions contemplated thereby have been
obtained, (B) there does not exist any pending or threatened action,
suit, investigation, or proceeding against any WPEP Entity that could
have a Material Adverse Effect and (C) immediately after giving effect
to the Credit Agreement, the other Credit Documents and all
transactions contemplated therein to occur on such date, (1) no Default
or Event of Default exists, (2) all representations and warranties of
the WPEP Entities contained in the Warburg Guaranty are true and
correct in all material respects and (3) as of the Initial Funding
Date, the aggregate Remaining Capital Commitment Balances of all
Limited Partners is at least $2.5 billion.
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(l) Solvency Certificate. The Agent shall have received a
certificate executed by an Executive Officer of the Borrower as of the
Initial Funding Date, in form and substance satisfactory to the Agent,
regarding the Solvency of each of the Credit Parties.
(m) Purchase Agreement. The Agent shall have received a copy,
certified by an Executive Officer of the Borrower as true and complete,
of the Purchase Agreement as originally executed and delivered,
together with all exhibits and schedules thereto.
(n) Fees and Expenses. Payment by the Credit Parties to the
Lenders and the Agent of all fees and expenses relating to the Credit
Facilities which are due and payable on the Initial Funding Date,
including, without limitation, payment to the Agent of the fees set
forth in the Agent's Fee Letter.
(o) Leverage Ratio. After giving effect to the Refinancing,
the ratio of (i) Funded Indebtedness of the Consolidated Parties on a
consolidated basis (other than Revolving Loans and Tranche B Term
Loans) on the Initial Funding Date to (ii) Consolidated EBITDA for the
four fiscal quarter period ending on December 31, 1999, shall be no
greater than 3.1 to 1.0.
(p) Parent Joinder Agreement. Receipt by the Agent of a duly
executed copy of the Parent Joinder Agreement.
(q) 1999 Audited Financial Statements. Receipt by the Agent of
the audited annual financial statements of the Consolidated Parties
described in Section 7.1(a) for the fiscal year ended December 31,
1999.
(r) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership and contingent liabilities of the
Consolidated Parties.
5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligations of each Lender to make, convert or extend any Loan and
of the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1 and satisfaction on the Initial Funding Date
of the conditions set forth in Section 5.2:
(a) The Borrower shall have delivered (i) in the case of any
Revolving Loan, any portion of the Tranche A Term Loan or any portion
of the Tranche B Term Loan, an appropriate Notice of Borrowing or
Notice of Extension/Conversion or (ii) in the case of any Letter of
Credit, the Issuing Lender shall have received an appropriate request
for issuance in accordance with the provisions of Section 2.2(b);
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(b) The representations and warranties set forth in Section 6
and in Section 10 of the Warburg Guaranty shall, subject to the
limitations set forth therein, be true and correct in all material
respects as of such date (except for those which expressly relate to an
earlier date);
(c) There shall not have been commenced against the Borrower
or the Parent an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain
undismissed;
(d) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto; and
(e) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the sum of the aggregate
outstanding principal amount of Revolving Loans plus LOC Obligations
shall not exceed the Revolving Committed Amount, and (ii) the LOC
Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in subsections (b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 FINANCIAL CONDITION.
(a) The audited consolidated balance sheets and income
statements of the Consolidated Parties (other than Influence and its
Subsidiaries) for the fiscal years ended December 31, 1996 and December
31, 1997 and the period from September 10, 1998 to December 31, 1998
(including the notes thereto) (i) have been audited by KPMG Peat
Marwick LLP, in the case of the 1996 and 1997 financial statements, and
Ernst & Young, LLP, in the case of the 1998 financial statements, (ii)
have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby and (iii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the
consolidated financial condition, results of operations and cash flows
of the Consolidated Parties (other than Influence and its Subsidiaries)
as of such date and for such periods. The audited consolidated balance
sheets and income statements of Influence for the fiscal year December
31, 1998 and for the six-month period ended June 30, 1999 (including
the notes
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thereto) (i) have been audited by Ernst & Young, LLP, (ii) have been
prepared in accordance with GAAP consistently applied throughout the
periods covered thereby and (iii) present fairly (on the basis
disclosed in the footnotes to such financial statements) the
consolidated financial condition, results of operations and cash flows
of Influence as of such date and for such periods. The unaudited
interim consolidated balance sheets of each of the Consolidated Parties
(other than Influence and its Subsidiaries) and of Influence and its
Subsidiaries as at the end of, and the related unaudited interim
statements of earnings and of cash flows for, each fiscal quarterly
period ended (x) after December 31, 1998 for the Consolidated Parties
(other than Influence and its Subsidiaries) and (y) after June 30, 1999
for Influence and its Subsidiaries and prior to the Closing Date (i)
have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby and (ii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the
consolidated and consolidating financial condition, results of
operations and cash flows of the Consolidated Parties (other than
Influence and its Subsidiaries) or Influence, as the case may be, as of
such date and for such periods but are subject to potential adjustments
for in process research and development write-offs associated with the
acquisition of Influence and its Subsidiaries or the acquisition of the
UroVive product line. Except as contemplated by the Purchase Agreement,
during the period from December 31, 1998 to and including the Initial
Funding Date, there has been no sale, transfer or other disposition by
any Consolidated Party (including Influence and its Subsidiaries) of
any material part of the business or property of the Consolidated
Parties (including Influence and its Subsidiaries), taken as a whole,
and, except for the Acquisition of the Capital Stock of Influence
pursuant to the Purchase Agreement, no purchase or other acquisition by
any of them of any business or property (including any Capital Stock of
any other Person ) material in relation to the consolidated financial
condition of the Consolidated Parties (including Influence and its
Subsidiaries), taken as a whole, in each case, which is not reflected
in the foregoing financial statements or in the notes thereto and has
not otherwise been disclosed in writing to the Lenders on or prior to
the Initial Funding Date. Except as disclosed on Schedule 6.1(a)
hereto, the Consolidated Parties (including Influence and its
Subsidiaries) have no material liabilities (contingent or otherwise)
that are not reflected in the foregoing financial statements or in the
notes thereto.
(b) The pro forma consolidated balance sheet of the
Consolidated Parties as of the Initial Funding Date giving effect to
the Refinancing and reflecting estimated purchase accounting
adjustments is based upon reasonable assumptions made known to the
Lenders and upon information not known to be incorrect or misleading in
any material respect but such balance sheet is subject to potential
adjustments for in process research and development write-offs
associated with the acquisition of Influence and its Subsidiaries or
the acquisition of the UroVive product line.
(c) The financial statements delivered pursuant to Section
7.1(a) and (b) have been prepared in accordance with GAAP (except as
may otherwise be permitted under Section 7.1(a) and (b)) and present
fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating financial condition,
results of operations and cash flows of the Consolidated Parties as of
such date and for such periods.
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6.2 NO MATERIAL CHANGE.
Except as set forth on Schedule 6.9, since December 31, 1998, there has
been no development or event relating to or affecting a Consolidated Party which
has had or could reasonably be expected to have a Material Adverse Effect.
6.3 ORGANIZATION AND GOOD STANDING.
Each of the Consolidated Parties (a) is duly organized, validly
existing and is in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has the corporate or other necessary power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged and (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate or other
necessary action to authorize the borrowings and other extensions of credit on
the terms and conditions of this Credit Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. No consent or authorization of, filing with, notice to or other similar
act by or in respect of, any Governmental Authority or any other Person is
required to be obtained or made by or on behalf of any Credit Party in
connection with the borrowings or other extensions of credit hereunder, with the
execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party or with the consummation of the
Refinancing, except for (i) consents, authorizations, notices and filings
described in Schedule 6.4, all of which have been obtained or made or have the
status described in such Schedule 6.4 and (ii) filings to perfect the Liens
created by the Collateral Documents. This Credit Agreement has been, and each
other Credit Document to which any Credit Party is a party will be, duly
executed and delivered on behalf of the Credit Parties. This Credit Agreement
constitutes, and each other Credit Document to which any Credit Party is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of such Credit Party enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles
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or certificate of incorporation or bylaws or other organizational or governing
documents of such Person, (b) violate, contravene or materially conflict with
any Requirement of Law or any other law, regulation (including, without
limitation, Regulation U or Regulation X), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound, the violation of
which could reasonably be expected to have a Material Adverse Effect, or (d)
result in or require the creation of any Lien (other than those contemplated in
or created in connection with the Credit Documents) upon or with respect to its
properties.
6.6 NO DEFAULT.
No Consolidated Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its properties
is bound which default could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Lenders.
6.7 OWNERSHIP.
Each Consolidated Party is the owner of, and has good and marketable
title to, all of its respective assets and none of such assets is subject to any
Lien other than Permitted Liens.
6.8 INDEBTEDNESS.
Except as otherwise permitted under Section 8.1, the Consolidated
Parties have no Indebtedness.
6.9 LITIGATION.
Except as disclosed in Schedule 6.9, there does not exist any pending
or threatened action, suit or legal, equitable, arbitration or administrative
proceeding against any Consolidated Party which could reasonably be expected to
have a Material Adverse Effect.
6.10 TAXES.
Each Consolidated Party has filed, or caused to be filed, all material
tax returns (Federal, state, local and foreign) required to be filed and paid
(a) all amounts of taxes shown thereon to be due (including interest and
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware as of the Initial Funding Date of
any proposed material tax assessments against it or any other Consolidated
Party.
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6.11 COMPLIANCE WITH LAW.
Each Consolidated Party is in compliance with all Requirements of Law
and all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not reasonably be expected to have a Material
Adverse Effect.
6.12 ERISA.
Except as disclosed and described in Schedule 6.12 attached hereto or
as would not be reasonably expected to have a Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best knowledge of the Executive Officers of the
Credit Parties, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance
with its own terms and in material compliance with the provisions of
ERISA, the Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
(c) Neither any Consolidated Party nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Executive Officers of the
Credit Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither any Consolidated Party nor any ERISA Affiliate would
become subject to any withdrawal liability under ERISA if any
Consolidated Party or any ERISA Affiliate were to withdraw completely
from all Multiemployer Plans and Multiple Employer Plans as of the
valuation date most closely preceding the date on which this
representation is made or deemed made. Neither any Consolidated Party
nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best knowledge of the
Executive Officers of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
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(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject any Consolidated Party or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any Person against any such
liability.
(e) Neither any Consolidated Party nor any ERISA Affiliates
has any material liability with respect to "expected post-retirement
benefit obligations" within the meaning of the Financial Accounting
Standards Board Statement 106, except as have been accrued on the
financial statements of the Borrower. Each Plan which is a welfare plan
(as defined in Section 3(1) of ERISA) to which Sections 601-609 of
ERISA and Section 4980B of the Code apply has been administered in
compliance in all material respects of such sections.
(f) Neither the execution and delivery of this Credit
Agreement nor the consummation of the financing transactions
contemplated thereunder will involve any transaction which is subject
to the prohibitions of Sections 404, 406 or 407 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975
of the Code. The representation by the Credit Parties in the preceding
sentence is made in reliance upon and subject to the accuracy of the
Lenders' representation in Section 11.15 with respect to their source
of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance
company's general asset account, to the application of Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995),
compliance with the regulations issued under Section 401(c)(1)(A) of
ERISA, or the issuance of any other prohibited transaction exemption or
similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit
plan" within the meaning of Section 3(3) of ERISA or a "plan" within
the meaning of Section 4975(e)(1) of the Code.
6.13 CORPORATE STRUCTURE; CAPITAL STOCK, ETC.
The corporate capital and ownership structure of the Consolidated
Parties as of the Initial Funding Date is as described in Schedule 6.13A. Set
forth on Schedule 6.13B is a complete and accurate list with respect to the
Borrower and each of its direct and indirect Subsidiaries of (i) jurisdiction of
incorporation, (ii) number of shares of each class of Capital Stock outstanding,
(iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Consolidated Parties and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of all such Persons is validly issued, fully paid and, in the case
of the Borrower or any Domestic Subsidiary, non-assessable and is owned by the
Consolidated Parties, directly or indirectly, in the manner set forth on
Schedule 6.13B, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in Schedule 6.13B, neither the Borrower nor any of its Subsidiaries has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements
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providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to its Capital Stock. Schedule
6.13B may be updated from time to time by the Borrower by giving written notice
thereof to the Agent.
6.14 GOVERNMENTAL REGULATIONS, ETC.
(a) None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act, the Securities Exchange Act or any of Regulations U and
X. If requested by any Lender or the Agent, the Borrower will furnish
to the Agent and each Lender a statement, in conformity with the
requirements of FR Form U-1 referred to in Regulation U, that no part
of the Letters of Credit or proceeds of the Loans will be used,
directly or indirectly, for the purpose of "buying" or "carrying" any
"margin stock" within the meaning of Regulations U and X, or for the
purpose of purchasing or carrying or trading in any securities.
(b) None of the Consolidated Parties is (i) an "investment
company", or a company "controlled" by "investment company", within the
meaning of the Investment Company Act of 1940, as amended, (ii) a
"holding company" as defined in, or otherwise subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended or
(iii) subject to regulation under any other Federal or state statute or
regulation which limits its ability to incur Indebtedness.
6.15 PURPOSE OF LOANS AND LETTERS OF CREDIT.
The proceeds of the Loans hereunder shall be used solely by the
Borrower to effect the Refinancing, to pay fees and expenses related to the
Refinancing and to provide for working capital and general corporate purposes of
the Borrower and its Subsidiaries (including, without limitation, Permitted
Acquisitions). The Letters of Credit shall be used only for or in connection
with appeal bonds, reimbursement obligations arising in connection with surety
and reclamation bonds, reinsurance, domestic or international trade transactions
and obligations not otherwise aforementioned relating to transactions entered
into by the applicable account party for general corporate purposes in the
ordinary course of business.
6.16 ENVIRONMENTAL MATTERS.
Except as disclosed and described in Schedule 6.16 attached hereto or
as would not reasonably be expected to have a Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws,
there is no violation of any Environmental Law with respect to the Real
Properties or the Businesses, and there are no conditions relating to
the Real Properties or the Businesses that could reasonably be expected
to give rise to liability under any applicable Environmental Laws.
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(b) None of the Real Properties contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Real Properties in amounts or concentrations that constitute or
constituted a violation of, or could reasonably be expected to give
rise to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal
notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Real Properties or the
Businesses that remains unresolved, nor does any Executive Officer of
any Credit Party have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by or on behalf of any
Consolidated Party in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of the Executive Officers
of the Credit Parties, threatened, under any Environmental Law to which
any Consolidated Party is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
the Consolidated Parties, the Real Properties or the Businesses.
(f) There has been no release, or threat of release, of
Materials of Environmental Concern at or from the Real Properties, or
arising from or related to the operations (including, without
limitation, disposal) of any Consolidated Party in connection with the
Real Properties or otherwise in connection with the Businesses, in
violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
6.17 INTELLECTUAL PROPERTY.
Each Consolidated Party owns, or has the legal right to use, all
patents, trademarks, tradenames, copyrights, technology, know-how and processes
(the "Intellectual Property") necessary for each of them to conduct its business
as currently conducted except for those the failure to own or have such legal
right to use could not reasonably be expected to have a Material Adverse Effect.
As of the Closing Date, set forth on Schedule 6.17 is a list of all Intellectual
Property registered with the United States Copyright Office or the United States
Patent and Trademark Office and owned by each Consolidated Party or that any
Consolidated Party has the right to use. Except as provided on Schedule 6.17, no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does any Credit Party know of any such
claim, and, to the knowledge of the Executive Officers of the Credit Parties,
the use of such Intellectual Property by any Consolidated Party does not
infringe on the rights of any Person, except for such claims and
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infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
6.18 SOLVENCY.
Each Credit Party is Solvent.
6.19 INVESTMENTS.
All Investments of each Consolidated Party are Permitted Investments.
6.20 BUSINESS LOCATIONS.
Set forth on Schedule 6.20(a) is a list of all Real Properties located
in the United States as of the Initial Funding Date. Set forth on Schedule
6.20(b) is a list of all locations where any tangible personal property of a
Consolidated Party is located as of the Initial Funding Date. Set forth on
Schedule 6.20(c) is the chief executive office and principal place of business
of each Consolidated Party as of the Initial Funding Date.
6.21 DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Consolidated Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
6.22 NO BURDENSOME RESTRICTIONS.
No Consolidated Party is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any
provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
6.23 BROKERS' FEES.
No Consolidated Party has any obligation to any Person in respect of
any finder's, broker's, investment banking or other similar fee in connection
with any of the transactions contemplated under the Credit Documents.
6.24 LABOR MATTERS.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of a Consolidated Party as of the Initial Funding Date,
and none of the Consolidated Parties has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within
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the last five years except for any of the foregoing that individually or in the
aggregate could not be reasonably expected to have a Material Adverse Effect.
6.25 NATURE OF BUSINESS.
As of the Closing Date, the Consolidated Parties are engaged in the
business of manufacturing and distributing medical urological devices.
6.26 YEAR 2000 COMPLIANCE.
Each of the Credit Parties has (i) completed a review and assessment of
all areas within its and each of its Subsidiaries' businesses and operations
(including those affected by suppliers, vendors and customers) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications may not be able to recognize and properly perform date-sensitive
functions after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) substantially
completed implementation of that plan in accordance with that timetable. The
Year 2000 Problem has not resulted in, and each Credit Party believes that the
Year 2000 Problem will not result in, a Material Adverse Effect.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding or any Letter of Credit is
outstanding, and until all of the Commitments hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the Agent
and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days (or, in the case of fiscal year 1999, 120
days) after the close of each fiscal year of the Consolidated Parties,
a consolidated balance sheet and income statement of the Consolidated
Parties as of the end of such fiscal year, together with related
consolidated statements of retained earnings and cash flows for such
fiscal year, in each case setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Agent and whose opinion
shall be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the
audit or qualified as to the status of the Consolidated Parties as a
going concern or any other material qualifications or exceptions.
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(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of each fiscal quarter of
the Consolidated Parties (other than the fourth fiscal quarter, in
which case 90 days (or, in the case of fiscal year 1999, 120 days)
after the end thereof), a consolidated and consolidating balance sheet
and income statement of the Consolidated Parties as of the end of such
fiscal quarter, together with related consolidated and consolidating
statements of retained earnings and cash flows for such fiscal quarter,
in each case setting forth in comparative form consolidated and
consolidating figures for the corresponding period of the preceding
fiscal year, all such financial information described above to be in
reasonable form and detail and reasonably acceptable to the Agent, and
accompanied by a certificate of an Executive Officer of the Borrower to
the effect that such quarterly financial statements fairly present in
all material respects the financial condition of the Consolidated
Parties and have been prepared in accordance with GAAP, subject to
changes resulting from audit and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Executive Officer of the Borrower substantially in
the form of Exhibit 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation thereof as
of the end of each such fiscal period and (ii) stating that no Default
or Event of Default exists, or if any Default or Event of Default does
exist, specifying the nature and extent thereof and what action the
Credit Parties propose to take with respect thereto.
(d) Annual Business Plan and Budgets. By March 1 of each
fiscal year of the Borrower, an annual (with quarterly break out)
business plan and budget of the Consolidated Parties for such fiscal
year containing, among other things, pro forma financial statements.
(e) Compliance With Certain Provisions of the Credit
Agreement. Within 90 days after the end of each fiscal year of the
Credit Parties, a certificate containing information regarding (i) the
calculation of Excess Cash Flow and (ii) the amount of all Asset
Dispositions, Debt Issuances and Equity Issuances that were made during
the prior fiscal year.
(f) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement as it relates to accounting
and other financial matters and stating further whether, in the course
of their audit, they have become aware of any Default or Event of
Default and, if any such Default or Event of Default exists, specifying
the nature and extent thereof, provided that such accountants shall not
be liable by reason of any failure to obtain knowledge of any such
Default or Event of Default that would not be disclosed in the course
of their audit examination; provided further, that no such certificate
shall be required if the Borrower has used its best efforts to obtain
such a certificate and such accountants are unwilling to provide such a
certificate and other independent certified public accountants of
recognized national standing are unwilling to provide such a
certificate.
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(g) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or "management letter" submitted by independent
accountants to any Consolidated Party in connection with any annual,
interim or special audit of the books of such Person.
(h) Reports. Promptly upon transmission or receipt thereof,
(i) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as any Consolidated Party shall send to its shareholders (in
their capacity as shareholders) or to a holder of any Indebtedness owed
by any Consolidated Party in its capacity as such a holder and (ii)
upon the request of the Agent, all reports and written information to
and from the United States Environmental Protection Agency, or any
state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or
safety matters.
(i) Notices. Upon any Executive Officer of a Credit Party
obtaining knowledge thereof, the Credit Parties will give written
notice to the Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose
to take with respect thereto, and (ii) the occurrence of any of the
following with respect to any Consolidated Party (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against such Person which if adversely determined is likely to have a
Material Adverse Effect or (B) the institution of any proceedings
against such Person with respect to, or the receipt of notice by such
Person of potential liability or responsibility for violation, or
alleged violation of any Federal, state or local law, rule or
regulation, including but not limited to, Environmental Laws, the
violation of which could reasonably be expected to have a Material
Adverse Effect.
(j) ERISA. Upon any Executive Officer of a Credit Party
obtaining knowledge thereof, the Credit Parties will give written
notice to the Agent promptly (and in any event within five Business
Days) of: (i) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or might reasonably lead to, an
ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Credit Parties or any ERISA Affiliates,
or of a determination that any Multiemployer Plan is in reorganization
or insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Consolidated Party or any
ERISA Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) any change in the
funding status of any Plan that could reasonably be expected to have a
Material Adverse Effect, together with a description of any such event
or condition or a copy of any such notice and a statement by an
Executive Officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action, if any,
which has been or is being taken or is proposed to be taken by the
Credit Parties with respect thereto. Promptly upon request, the Credit
Parties shall
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furnish the Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not
limited to, copies of each annual report/return (Form 5500 series), as
well as all schedules and attachments thereto required to be filed with
the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the
meaning of Section 3(39) of ERISA).
(k) Environmental. Upon the written request of the Agent, (i)
based upon the reasonable belief that there has been a violation of
Environmental Law or a release of Materials of Environmental Concern at
a Real Property which is reasonably likely to have a Material Adverse
Effect or (ii) at any time during the existence of an Event of Default,
upon the written request of the Agent, the Credit Parties will furnish
or cause to be furnished to the Agent, at the Credit Parties' expense,
a report of an environmental assessment of reasonable scope, form and
depth, (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Agent as to the
nature and extent of the presence of any Materials of Environmental
Concern on any Real Properties (as defined in Section 6.16) and as to
the compliance by any Consolidated Party with Environmental Laws at
such Real Properties. If the Credit Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of
such written request then the Agent may arrange for same, and the
Consolidated Parties hereby grant to the Agent and their
representatives access to the Real Properties to reasonably undertake
such an assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment arranged
for by the Agent pursuant to this provision will be payable by the
Credit Parties on demand and added to the obligations secured by the
Collateral Documents.
(l) Additional Patents and Trademarks. At the time of delivery
of the financial statements and reports provided for in Section 7.1(a),
a report signed by an Executive Officer of the Borrower setting forth
(i) a list of registration numbers for all patents, trademarks, service
marks, tradenames and copyrights awarded to any Consolidated Party
since the last day of the immediately preceding fiscal year and (ii) a
list of all patent applications, trademark applications, service xxxx
applications, trade name applications and copyright applications
submitted by any Consolidated Party since the last day of the
immediately preceding fiscal year and the status of each such
application, all in such form as shall be reasonably satisfactory to
the Agent.
(m) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of any Consolidated Party as the Agent or the
Required Lenders may reasonably request.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary not prohibited by Section 8.4 or Section 8.5, each
Credit Party will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority, except (with respect to rights, franchises and
authority
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only) where the failure to do so would not have or be reasonably expected to
have a Material Adverse Effect.
7.3 BOOKS AND RECORDS.
Each Credit Party will, and will cause each of its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.4 COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
Property if noncompliance with any such law, rule, regulation, order or
restriction could reasonably be expected to have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Credit Party will, and will cause each of its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that (i) no Consolidated Party shall be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings and as to which adequate reserves therefor have
been established in accordance with GAAP, unless the failure to make any such
payment (A) would give rise to an immediate right to foreclose on a Lien
securing such amounts or (B) could reasonably be expected to have a Material
Adverse Effect and (ii) no Consolidated Party shall be required to pay any
Indebtedness if the aggregate amount of such unpaid Indebtedness does not exceed
$1,500,000 (taking into account applicable insurance or indemnitees to the
extent the provider of such insurance or indemnity has the financial ability to
support its obligations with respect thereto and is not disputing the same).
7.6 INSURANCE.
(a) Each Credit Party will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with
normal industry practice (or as otherwise required by the Collateral
Documents). The Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and each
provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished
to the Agent, that it will give the Agent thirty (30) days prior
written notice
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before any such policy or policies shall be altered or canceled. The
present insurance coverage of the Consolidated Parties is outlined as
to carrier, policy number, expiration date, type and amount on Schedule
7.6.
(b) In the event that the Consolidated Parties receive Net
Cash Proceeds in excess of $500,000 in aggregate amount during any
fiscal year of the Consolidated Parties ("Excess Proceeds") on account
of any loss of, damage to or destruction of, or any condemnation or
other taking for public use of, any Property of the Consolidated
Parties (with respect to any Consolidated Party, an "Involuntary
Disposition"), the Credit Parties shall, within the period of 365 days
following the date of receipt of such Excess Proceeds, apply (or cause
to be applied) an amount equal to such Excess Proceeds to (i) make
Eligible Reinvestments (including but not limited to the repair or
replacement of the related Property) or (ii) prepay the Loans (and cash
collateralize LOC Obligations) in accordance with the terms of Section
3.3(b)(iii)(B); provided, however, that such Person shall not undertake
replacement or restoration of such Property unless, after giving pro
forma effect to any Funded Indebtedness to be incurred in connection
with such replacement or restoration, the Credit Parties would be in
compliance with the financial covenants set forth in Section 7.11(a)
and (b) as of the most recent fiscal quarter end preceding the date of
determination with respect to which the Agent has received the Required
Financial Information (assuming, for purposes hereof, that such Funded
Indebtedness was incurred as of the first day of the four
fiscal-quarter period ending as of such fiscal quarter end). All
insurance proceeds shall be subject to the security interest of the
Agent (for the ratable benefit of the Lenders) under the Collateral
Documents. Pending final application of any Excess Proceeds, the Credit
Parties may apply such Excess Proceeds to temporarily reduce the
Revolving Loans or to make Permitted Investments.
7.7 MAINTENANCE OF PROPERTY.
Each Credit Party will, and will cause each of its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made, in
such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
7.8 PERFORMANCE OF OBLIGATIONS.
Each Credit Party will, and will cause each of its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound, unless the failure
to do so will not have or be reasonably expected to have a Material Adverse
Effect.
7.9 USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
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7.10 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours (but absent the
existence of an Event of Default or other reasonable cause, not more than twice
during any fiscal year), each Credit Party will, and will cause each of its
Subsidiaries to, permit representatives appointed by the Agent, including,
without limitation, independent accountants, agents, attorneys, and appraisers
to visit and inspect its property, including its books and records, its accounts
receivable and inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and record any
information such representative obtains and shall permit the Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person. The Credit Parties agree that the Agent, and its
representatives, may conduct an annual audit of the Collateral, at the expense
of the Credit Parties.
7.11 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of
each fiscal quarter of the Consolidated Parties indicated below, shall
be less than or equal to the ratio indicated with respect to such date:
FISCAL QUARTER END LEVERAGE RATIO
March 31, 2000
June 30, 2000 3.50 to 1.00
September 30, 2000
December 31, 2000
March 31, 2001
June 30, 2001 3.00 to 1.00
September 30, 2001
December 31, 2001 and each
fiscal quarter-end thereafter 2.50 to 1.00
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the last day of each fiscal quarter of the Consolidated Parties
indicated below, shall be greater than or equal to the ratio indicated
with respect to such date:
FISCAL QUARTER END INTEREST COVERAGE RATIO
March 31, 2000
June 30, 2000 2.00 to 1.00
September 30, 2000
December 31, 2000
March 31, 2001
June 30, 2001 2.50 to 1.00
September 30, 2001
December 31, 2001 and each 3.00 to 1.00
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fiscal quarter-end thereafter
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the last day of each fiscal quarter of the Consolidated
Parties indicated below, shall be greater than or equal to the ratio
indicated with respect to such date:
FISCAL QUARTER END FIXED CHARGE COVERAGE RATIO
June 30, 2000 and each fiscal
quarter-end thereafter 1.00 to 1.00
7.12 NEW SUBSIDIARIES.
As soon as practicable and in any event within 30 days after any Person
becomes a direct or indirect Subsidiary of the Parent, the Borrower shall
provide the Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall (a) if
such Person is a Domestic Subsidiary, (i) cause such Person to execute a Joinder
Agreement in substantially the same form as Exhibit 7.12 and (ii) cause 100% of
the issued and outstanding Capital Stock of such Person to be delivered to the
Agent (together with undated stock powers signed in blank) and pledged to the
Agent pursuant to an appropriate pledge agreement(s) in substantially the form
of the Pledge Agreement and otherwise in form acceptable to the Agent, (b) if
such Person is a Material Foreign Subsidiary, cause 65% of the issued and
outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of
such Person to be delivered to the Agent (together with undated stock powers
signed in blank (unless, with respect to a Material Foreign Subsidiary, such
stock powers are deemed unnecessary by the Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person)) and pledged
to the Agent pursuant to an appropriate pledge agreement(s) in substantially the
form of the Pledge Agreement and otherwise in form acceptable to the Agent, (c)
if such Person is a Domestic Subsidiary, cause such Person to deliver to the
Agent with respect to any real Property owned or leased by such Person and which
is not Excluded Property, documents, instruments and other items of the types
required to be delivered pursuant to Section 5.2(e) all in form, content and
scope reasonably satisfactory to the Agent and (d) deliver such other
documentation as the Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, environmental reports,
landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Agent's liens thereunder) and other items of the types
required to be delivered pursuant to Section 5.3(b), (c), (d) and (e), all in
form, content and scope reasonably satisfactory to the Agent.
7.13 PLEDGED ASSETS.
Each Credit Party will (i) cause all of its owned and leased real and
personal Property other than Excluded Property to be subject at all times to
first priority, perfected and, in the case
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of real Property (whether leased or owned), title insured Liens in favor of the
Agent to secure the Credit Party Obligations pursuant to the terms and
conditions of the Collateral Documents or, with respect to any such Property
acquired subsequent to the Initial Funding Date, such other additional security
documents as the Agent shall reasonably request, subject in any case to
Permitted Liens and (ii) deliver such other documentation as the Agent may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, surveys, environmental reports, landlord's waivers, certified
resolutions and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Agent's liens
thereunder) and other items of the types required to be delivered pursuant to
Section 5.2(d) and (e), all in form, content and scope reasonably satisfactory
to the Agent. Without limiting the generality of the above, the Borrower will
cause (A) 100% of the issued and outstanding Capital Stock of the Borrower, (B)
100% of the issued and outstanding Capital Stock of each Domestic Subsidiary and
(C) 65% of the issued and outstanding Capital Stock entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and
outstanding Capital Stock not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary to be subject at
all times to a first priority, perfected Lien in favor of the Agent pursuant to
the terms and conditions of the Collateral Documents or such other security
documents as the Agent shall reasonably request.
7.14 INTEREST RATE PROTECTION.
At all times from the date 90 days after the Initial Funding Date, the
Credit Parties shall cause the Borrower to maintain protection against
fluctuations in interest rates pursuant to one or more Hedging Agreements
reasonably satisfactory to the Agent and providing coverage in a notional amount
equal to at least $30,000,000 for a period of three years from the Initial
Funding Date.
7.15 YEAR 2000 COMPLIANCE.
The Credit Parties will promptly notify the Agent in the event any
Credit Party discovers or determines that the Year 2000 Problem has resulted in,
or is reasonably expected to result in, a Material Adverse Effect.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding or any Letter of Credit is
outstanding, and until all of the Commitments hereunder shall have terminated:
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8.1 INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set
forth in Schedule 8.1(b) (and renewals, refinancings and extensions
thereof on terms and conditions not in excess of that outstanding as of
the date of such renewal, refinancing, or extension);
(c) purchase money Indebtedness (including obligations in
respect of Capital Leases or Synthetic Leases) hereafter incurred by
the Borrower or any of its Subsidiaries to finance the purchase of
fixed assets provided that (i) the total of all such Indebtedness for
all such Persons taken together shall not exceed an aggregate principal
amount of $1,000,000 at any one time outstanding; (ii) such
Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing;
(d) obligations of the Borrower in respect of Hedging
Agreements entered into in order to manage existing or anticipated
interest rate or exchange rate risks and not for speculative purposes;
(e) intercompany Indebtedness arising out of loans, advances
and Guaranty Obligations permitted under Section 8.6;
(f) preferred Capital Stock issued by the Parent;
(g) Indebtedness of the Borrower or any Domestic Subsidiary in
respect of performance, surety or appeal bonds in the ordinary course
of business;
(h) additional unsecured Indebtedness of the Borrower or any
Domestic Subsidiary in an aggregate principal amount not to exceed
$1,000,000 at any time outstanding for all such Persons taken together;
(i) Indebtedness of any Foreign Subsidiary to any other
Foreign Subsidiary;
(j) additional Indebtedness of Foreign Subsidiaries in an
aggregate principal amount not to exceed the Dollar Equivalent of
$2,000,000 at any time outstanding for all such Persons taken together;
(k) subject to the terms of Section 8.6(j)(vii), Indebtedness
of the Borrower or any Domestic Subsidiary assumed in connection with a
Permitted Acquisition (including
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renewals, refinancings or extensions of such Indebtedness in a
principal amount not in excess of that outstanding as of the date of
such renewal, refinancing or extension), provided that (i) such
Indebtedness is not incurred in anticipation of or in connection with
such Permitted Acquisition and (ii) the aggregate principal amount of
all such Indebtedness shall not exceed $10,000,000 at any one time
outstanding;
(l) Indebtedness of the Borrower or any of its Subsidiaries
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations (or from guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of a
Credit Party or any of its Subsidiaries pursuant to such agreements),
in any case incurred in connection with any Asset Disposition permitted
under Section 8.5, provided that such Indebtedness in respect of any
such Asset Disposition shall not exceed the gross proceeds actually
received by the Borrower and its Subsidiaries in connection therewith;
and
(m) additional unsecured subordinated Indebtedness of the
Parent or the Borrower to any member of the Initial Investor Group,
provided that (i) such Indebtedness shall be subordinated in right of
payment to the Credit Party Obligation on substantially the terms and
conditions set forth in Schedule 8.1(m) and (ii) the aggregate
principal amount of all such Indebtedness shall not exceed $30,000,000
at any one time outstanding.
8.2 LIENS.
The Credit Parties will not permit any Consolidated Party to contract,
create, incur, assume or permit to exist any Lien with respect to any of its
Property, whether now owned or after acquired, except for:
(a) Liens in favor of the Agent to secure the Credit Party
Obligations;
(b) Liens (other than Liens created or imposed under ERISA)
for taxes, assessments or governmental charges or levies not yet due or
Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account thereof);
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(d) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any Consolidated Party in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(e) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the judgments
secured shall not constitute an Event of Default;
(f) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes;
(g) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such
Person permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days after the
acquisition thereof;
(h) Liens on Property of a Foreign Subsidiary securing
Indebtedness of such Person permitted under Section 8.1(j);
(i) Liens on Property securing Indebtedness permitted under
Section 8.1(k), provided that such Liens are not incurred in
anticipation of or in connection with a Permitted Acquisition and do
not extend to cover any Property not acquired in such Permitted
Acquisition;
(j) leases or subleases granted to others not interfering in
any material respect with the business of any Consolidated Party;
(k) any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
this Credit Agreement;
(l) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(m) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.6;
(n) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depository institutions;
(o) Liens of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection;
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(p) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses; and
(q) Liens existing as of the Closing Date and set forth on
Schedule 8.2; provided that no such Lien shall at any time be extended
to or cover any Property other than the Property subject thereto on the
Closing Date.
8.3 NATURE OF BUSINESS.
The Credit Parties will not permit any Consolidated Party to
substantively alter the character of the business conducted by such Person as of
the Closing Date with reasonable expansions and extensions of such Business.
8.4 CONSOLIDATION, MERGER, DISSOLUTION, ETC.
Except in connection with a Permitted Asset Disposition, the Credit
Parties will not permit any Consolidated Party to enter into any transaction of
merger or consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that, notwithstanding the foregoing
provisions of this Section 8.4 but subject to the terms of Sections 7.12 and
7.13, (a) the Borrower may merge or consolidate with any of its Subsidiaries
provided that the Borrower shall be the continuing or surviving corporation, (b)
any Credit Party other than the Parent or the Borrower may merge or consolidate
with any other Credit Party other than the Parent or the Borrower, (c) any
Consolidated Party which is not a Credit Party may be merged or consolidated
with or into any Credit Party other than the Parent provided that such Credit
Party shall be the continuing or surviving corporation, (d) any Consolidated
Party which is not a Credit Party may be merged or consolidated with or into any
other Consolidated Party which is not a Credit Party, (e) any Subsidiary of the
Borrower may merge with any Person that is not a Credit Party in connection with
an Asset Disposition permitted under Section 8.5, (f) the Borrower or any
Subsidiary of the Borrower may merge with any Person other than a Consolidated
Party in connection with a Permitted Acquisition provided that, if such
transaction involves the Borrower, the Borrower shall be the continuing or
surviving corporation and (g) any Wholly Owned Subsidiary of the Borrower may
dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a Material
Adverse Effect.
8.5 ASSET DISPOSITIONS.
The Credit Parties will not permit any Consolidated Party to make any
Asset Disposition other than an Excluded Asset Disposition unless (a) the
consideration paid in connection therewith shall be cash or Cash Equivalents,
(b) if such transaction is a Sale and Leaseback Transaction, such transaction is
not prohibited by the terms of Section 8.13, (c) such transaction does not
involve the sale or other disposition of a minority equity interest in any
Consolidated Party, (d) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to
other Property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.5, (e) the aggregate net book value of all of the
assets sold or otherwise
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disposed of by the Consolidated Parties in all such transactions after the
Closing Date shall not exceed $1,000,000, (f) no later than five (5) Business
Days prior to such Asset Disposition, the Borrower shall have delivered to the
Agent (i) a Pro Forma Compliance Certificate demonstrating that, upon giving
effect on a Pro Forma Basis to such transaction, the Credit Parties would be in
compliance with the financial covenants set forth in Section 7.11(a) and (b) and
(ii) a certificate of an Executive Officer of the Borrower specifying the
anticipated date of such Asset Disposition, briefly describing the assets to be
sold or otherwise disposed of and setting forth the net book value of such
assets, the aggregate consideration and the Net Cash Proceeds to be received for
such assets in connection with such Asset Disposition and (g) the Credit Parties
shall, within the period of 180 days following the consummation of such Asset
Disposition (with respect to any such Asset Disposition, the "Application
Period"), apply (or cause to be applied) an amount equal to the Net Cash
Proceeds of such Asset Disposition to (i) make Eligible Reinvestments or (ii)
prepay the Loans (and cash collateralize LOC Obligations) in accordance with the
terms of Section 3.3(b)(iii)(A). Pending final application of the Net Cash
Proceeds of any Asset Disposition, the Consolidated Parties may apply such Net
Cash Proceeds to temporarily reduce the Revolving Loans or to make Investments
in Cash Equivalents.
Upon a sale of assets or the sale of Capital Stock of a Consolidated
Party permitted by this Section 8.5, the Agent shall (to the extent applicable)
deliver to the Credit Parties, upon the Credit Parties' request and at the
Credit Parties' expense, such documentation as is reasonably necessary to
evidence the release of the Agent's security interest, if any, in such assets or
Capital Stock, including, without limitation, amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any, and the
release of such Consolidated Party from all of its obligations, if any, under
the Credit Documents.
8.6 INVESTMENTS.
The Credit Parties will not permit any Consolidated Party to make any
Investments, except for:
(a) Investments consisting of cash and Cash Equivalents;
(b) Investments consisting of accounts receivable created,
acquired or made by any Consolidated Party in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms or otherwise in the prudent judgment of such Consolidated
Party;
(c) Investments consisting of Capital Stock, obligations,
securities or other property received by any Consolidated Party in
settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors;
(d) Investments existing as of the Closing Date and set forth
in Schedule 8.6 (including additional Investments required to be made
in connection therewith as such additional Investments are described in
Schedule 8.6);
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(e) Investments consisting of (i) loans or advances to
directors, officers, employees and agents in the ordinary course of
business to provide for the payment of reasonable expenses incurred by
such persons in the performance of their responsibilities or in
connection with any relocation and (ii) loans or advances to directors,
officers, employees, agents, customers or suppliers that do not exceed
$100,000 in the aggregate at any one time outstanding;
(f) Investments in any Credit Party other than the Parent;
(g) Investments in Foreign Subsidiaries in an aggregate
principal amount (including Investments of such type set forth in
Schedule 8.6) not to exceed the Dollar Equivalent of $1,000,000 at any
time outstanding;
(h) to the extent constituting Investments, transactions
permitted under Section 8.7;
(i) any Eligible Reinvestment of the proceeds of any
Involuntary Disposition as contemplated by Section 7.6(b) or of any
Asset Disposition as contemplated by Section 8.5(g); or
(j) Investments consisting of an Acquisition by the Borrower
or any Subsidiary of the Borrower, provided that (i) the Property
acquired (or the Property of the Person acquired) in such Acquisition
is used or useful in the same or a similar line of business as the
Borrower and its Subsidiaries were engaged in on the Closing Date (or
any reasonable extensions or expansions thereof), (ii) the Agent shall
have received all items in respect of the Capital Stock or Property
acquired in such Acquisition required to be delivered by the terms of
Section 7.12 and/or Section 7.13, (iii) in the case of an Acquisition
of the Capital Stock of another Person, the board of directors (or
other comparable governing body) of such other Person shall have duly
approved such Acquisition, (iv) the Borrower shall have delivered to
the Agent (A) a Pro Forma Compliance Certificate demonstrating that,
upon giving effect to such Acquisition on a Pro Forma Basis, the Credit
Parties would be in compliance with the financial covenants set forth
in Section 7.11(a) and (b) and (B) a certificate of an Executive
Officer of the Borrower demonstrating that upon giving effect to such
Acquisition, at least 90% of Consolidated EBITDA for four
fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the Agent
has received the Required Financial Information shall have been audited
in accordance with GAAP by independent certified public accountants of
recognized national standing reasonably acceptable to the Agent (whose
opinion shall not be limited as to the scope or qualified as to going
concern status), (v) the representations and warranties made by the
Credit Parties in any Credit Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition
(after giving effect thereto) except to the extent such representations
and warranties expressly relate to an earlier date, (vi) after giving
effect to such Acquisition, there shall be at least $7,000,000 of
availability existing under the Revolving Committed Amount and (vii)
the aggregate consideration (including cash and non-cash consideration
and any assumption of Indebtedness, but excluding consideration
consisting of (A) any Capital Stock of the
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Parent issued to the seller of the Capital Stock or Property acquired
in such Acquisition, (B) the proceeds of any Equity Issuance by the
Parent consummated subsequent to the Initial Funding Date to the extent
not required to be applied to prepay of the Loans pursuant to the terms
of Section 3.3(b)(v), (C) the proceeds of any Asset Disposition,
Excluded Asset Disposition or Involuntary Disposition consummated
subsequent to the Initial Funding Date, (D) the proceeds of any
Investor Subordinated Debt and (E) the proceeds of any Equity Issuance
by any Consolidated Party to any Credit Party or any member of the
Initial Investor Group) paid by the Consolidated Parties shall not
exceed (1) $5,000,000, for any single Acquisition, or (2) $10,000,000
for all Acquisitions occurring after the Closing Date.
8.7 RESTRICTED PAYMENTS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends or other distributions payable
to any Credit Party other than the Parent (directly or indirectly through
Subsidiaries), (b) as permitted by Section 8.8 or Section 8.9, (c) loans to the
Parent to permit the Parent to pay expenses incurred by it so long as the Parent
is in compliance with the provisions of Section 8.12, (d) loans to the Parent or
dividends to the Parent to permit the Parent to, and the Parent shall be
permitted to, (1) pay cash severance payments to employees of the Parent
following the death, retirement or termination of such employees and (2)
repurchase outstanding shares of Capital Stock of the Parent owned by employees
of the Parent following the death, retirement or termination of such employee or
purchase equity securities of the Parent from existing stockholders pursuant to
the Parent's exercise of a right of first refusal, provided that such Restricted
Payments do not exceed $500,000 in the aggregate during the term of this Credit
Agreement and (e) purchases of Capital Stock of Influence from existing
stockholders of Influence pursuant to the Exchange Agreement dated as of
December 15, 1999 between the Borrower and Urotek Ltd. provided that the
consideration for such Capital Stock is solely (except for cash issued for
fractional shares) is Capital Stock in the Parent.
8.8 OTHER INDEBTEDNESS.
The Credit Parties will not permit any Consolidated Party to (i) if any
Default or Event of Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof, (a) after the issuance thereof, amend
or modify any of the terms of any Indebtedness of such Consolidated Party if
such amendment or modification would add or change any terms in a manner adverse
to such Consolidated Party, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto, or (b) make (or give any notice
with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any other
Indebtedness of such Consolidated Party, (ii) after the issuance thereof, amend
or modify any of the terms of the documents evidencing or governing any Investor
Subordinated Debt if such amendment or modification would add or change any
terms in a manner adverse to the Consolidated Parties, or shorten the final
maturity or average life to maturity thereof or require any payment to be made
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sooner than originally scheduled or increase the interest rate applicable
thereto or change any subordination provision thereof, (iii) make interest
payments in respect of the Investor Subordinated Debt in violation of the
subordination provisions of the documents evidencing or governing such Investor
Subordinated Debt or (iv) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment, redemption, acquisition for value
or defeasance of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Investor Subordinated
Debt.
8.9 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not permit any Consolidated Party to enter into
or permit to exist any transaction or series of transactions with any officer,
director, shareholder, Subsidiary or Affiliate of such Person other than (a)
advances of working capital to any Credit Party other than the Parent, (b)
transfers of cash and assets to any Credit Party other than the Parent, (c)
intercompany transactions expressly permitted by Section 8.1, Section 8.4,
Section 8.5, Section 8.6, or Section 8.7, (d) normal compensation and
reimbursement of expenses of officers and directors and (e) except as otherwise
specifically limited in this Credit Agreement, other transactions which are
entered into in the ordinary course of such Person's business on terms and
conditions substantially as favorable to such Person as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Credit Parties will not permit any Consolidated Party to (i) change
its fiscal year without prior written notice to the Agent (provided that no such
change may occur if such change would materially affect the Lenders ability to
read and interpret the financial statements delivered pursuant to Section 7.1 or
make any calculation in respect of the financial covenants set forth in Section
7.11) or (ii) change its articles or certificate of incorporation or its bylaws
in any manner that would reasonably be likely to adversely affect the rights of
the Lenders.
8.11 LIMITATION ON RESTRICTED ACTIONS.
The Credit Parties will not permit any Consolidated Party to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Credit Party and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section
8.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (iv) any
Permitted Lien or any document or instrument
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governing any Permitted Lien, provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien or
(v) customary restrictions and conditions contained in any agreement relating to
the sale of any Property permitted under Section 8.5 pending the consummation of
such sale.
8.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON PARENT.
Notwithstanding any other provisions of this Credit Agreement to the
contrary:
(a) The Credit Parties will not permit any Consolidated Party
to (i) permit any Person (other than the Borrower or any Wholly Owned
Subsidiary of the Borrower) to own more than 10% of the Capital Stock
of any Subsidiary of the Borrower, except (A) to qualify directors
where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Capital Stock of
Foreign Subsidiaries or (B) as a result of or in connection with a
dissolution, merger, consolidation or disposition of a Subsidiary not
prohibited by Section 8.4 or Section 8.5, (ii) permit any Subsidiary of
the Borrower to issue or have outstanding any shares of preferred
Capital Stock or (iii) permit, create, incur, assume or suffer to exist
any Lien on any Capital Stock of any Subsidiary of the Borrower, except
for Permitted Liens.
(b) The Parent shall not (i) hold any material assets other
than the Capital Stock of the Borrower, (ii) have any liabilities other
than (A) the liabilities under the Credit Documents, (B) tax
liabilities in the ordinary course of business, (C) loans and advances
permitted under Section 8.9 and (D) corporate, administrative and
operating expenses in the ordinary course of business or (iii) engage
in any business other than (A) owning the Capital Stock of the Borrower
and activities incidental or related thereto and (B) acting as a
Guarantor hereunder and pledging its assets to the Agent, for the
benefit of the Lenders, pursuant to the Collateral Documents to which
it is a party.
8.13 SALE LEASEBACKS.
The Credit Parties will not permit any Consolidated Party to enter into
any Sale and Leaseback Transaction.
8.14 CAPITAL EXPENDITURES.
The Credit Parties will not permit Consolidated Capital Expenditures
for any fiscal year to exceed $4,000,000, plus the unused amount available for
Consolidated Capital Expenditures under this Section 8.14 for the immediately
preceding fiscal year (excluding any carry-forward available from any prior
fiscal year).
8.15 NO FURTHER NEGATIVE PLEDGES.
The Credit Parties will not permit any Consolidated Party to enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the existence of any Lien upon any of its Property in favor of the
Agent (for the benefit of the Lenders) for the purpose of securing the
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Credit Party Obligations, whether now owned or hereafter acquired, or requiring
the grant of any security for any obligation if such Property is given as
security for the Credit Party Obligations, except (a) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien, (b) in connection with any Permitted
Lien or any document or instrument governing any Permitted Lien, provided that
any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (c) pursuant to customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 8.5, pending the consummation of such sale.
8.16 OPERATING LEASE OBLIGATIONS.
The Credit Parties will not permit any Consolidated Party to enter
into, assume or permit to exist any obligations for the payment of rental under
Operating Leases in respect of all Property other than automobiles provided to
sales representatives in the ordinary course of business, which in the aggregate
for all of the Consolidated Parties would exceed $500,000 in any fiscal year.
8.17 LIMITATION ON FOREIGN OPERATIONS.
The Credit Parties will not permit (i) the sum of (a) the portion of
Consolidated Total Assets owned by Foreign Subsidiaries plus (b) the portion of
Consolidated Total Assets owned by the Parent, the Borrower and the Domestic
Subsidiaries and located outside the United States to exceed 20% of Consolidated
Total Assets or (ii) the portion of Consolidated EBITDA attributable to the
Foreign Subsidiaries for any four quarter period to exceed 20% of Consolidated
EBITDA for such period.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence and during the
continuance of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal
of any of the Loans or of any reimbursement obligations
arising from drawings under Letters of Credit, or
(ii) default, and such default shall continue for
three (3) or more Business Days, in the payment when due of
any interest on the Loans or on any reimbursement obligations
arising from drawings under Letters of Credit, or of any
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Fees or other amounts owing hereunder, under any of the other
Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was deemed to have
been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.9, 7.11, 7.12 or 7.13 or Section 8;
(ii) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.1(a),
(b), (c) or (d) and such default shall continue unremedied for
a period of at least 5 days after the earlier of an Executive
Officer of a Credit Party becoming aware of such default or
notice thereof by the Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), (c)(i) or (c)(ii) of this
Section 9.1) contained in this Credit Agreement or any other
Credit Document and such default shall continue unremedied for
a period of at least 30 days after the earlier of an Executive
Officer of a Credit Party becoming aware of such default or
notice thereof by the Agent; or
(d) Other Credit Documents. Except as a result of or in
connection with a dissolution, merger or disposition of a Subsidiary
not prohibited by Section 8.4 or Section 8.5, any Credit Document shall
fail to be in full force and effect or to give the Agent and/or the
Lenders the Liens, rights, powers and privileges purported to be
created thereby, or any Credit Party shall so state in writing; or
(e) Guaranties. Except as the result of or in connection with
a dissolution, merger or disposition of a Subsidiary not prohibited by
Section 8.4 or Section 8.5, the guaranty given by any Guarantor
hereunder (including any Person after the Closing Date in accordance
with Section 7.12) or any provision thereof shall cease to be in full
force and effect, or any Guarantor (including any Person after the
Closing Date in accordance with Section 7.12) hereunder or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to the Parent, the Borrower or any Domestic Subsidiary; or
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(g) Defaults under Other Agreements.
(i) Any Consolidated Party shall default in the
performance or observance (beyond the applicable grace period
with respect thereto, if any) or any material obligation or
condition of any contract or lease material to the
Consolidated Parties taken as a whole if such default could
reasonably be expected to have a Material Adverse Effect; or
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in
excess of $1,500,000 in the aggregate for the Consolidated
Parties (other than Foreign Subsidiaries which are not
Material Foreign Subsidiaries) taken as a whole, (A) either
(1) default in any payment shall occur and continue (beyond
the applicable grace period with respect thereto, if any) with
respect to any such Indebtedness, or (2) a default in the
observance or performance relating to such Indebtedness or
contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event or condition shall
occur or exist, the effect of which default or other event or
condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any
notice or lapse of time is required), any such Indebtedness to
become due prior to its stated maturity; or (B) any such
Indebtedness shall be declared due and payable, or required to
be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be
entered against one or more of the Consolidated Parties (other than
Foreign Subsidiaries which are not Material Foreign Subsidiaries)
involving a liability of $1,500,000 or more in the aggregate (to the
extent not paid or fully covered by insurance provided by a carrier who
has acknowledged coverage and has the ability to perform) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such
event or condition could involve possible taxes, penalties, and other
liabilities in an aggregate amount which could reasonably be expected
to have a Material Adverse Effect: (i) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of any
Consolidated Party or any ERISA Affiliate in favor of the PBGC or a
Plan; (ii) an ERISA Event shall occur with respect to a Single Employer
Plan, which is, in the reasonable opinion of the Agent, likely to
result in the termination of such Plan for purposes of Title IV of
ERISA; (iii) an ERISA Event shall occur with respect to a Multiemployer
Plan or Multiple Employer Plan, which is, in the reasonable opinion of
the Agent, likely to result in (A) the termination of such Plan for
purposes of Title IV of ERISA, or (B) any Consolidated Party or any
ERISA Affiliate incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA),
or insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; or
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(iv) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Consolidated Party or
any ERISA Affiliate to any liability under Sections 406, 409, 502(i),
or 502(l) of ERISA or Section 4975 of the Code, or under any agreement
or other instrument pursuant to which any Consolidated Party or any
ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Event of Default under Warburg Guaranty. The occurrence of
an "Event of Default" under and as defined in the Warburg Guaranty; or
(k) Ownership. The occurrence of a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
the Agent may or, upon the request and direction of the Required Lenders, shall,
by written notice to the Credit Parties take any of the following actions:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans, any reimbursement obligations
arising from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to the Agent and/or any of the Lenders hereunder to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice they will
immediately pay) to the Agent additional cash, to be held by the Agent,
for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents including,
without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and
all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur with respect to the Borrower, then, without the
giving of any notice or other action by the Agent or the Lenders, (i) the
Commitments automatically shall terminate, (ii) all Loans, all reimbursement
obligations arising from drawings under Letters of Credit, all accrued interest
in respect thereof, all accrued and unpaid Fees and other indebtedness or
obligations owing to the Agent and/or any of the Lenders hereunder automatically
shall immediately become due and payable and (iii) the Credit
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Parties automatically shall be obligated to pay to the Agent additional cash, to
be held by the Agent, for the benefit of the Lenders, in a cash collateral
account as additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Letters of Credits then
outstanding.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT, POWERS AND IMMUNITIES.
Each Lender hereby irrevocably appoints and authorizes the Agent to act
as its agent under this Credit Agreement and the other Credit Documents with
such powers and discretion as are specifically delegated to the Agent by the
terms of this Credit Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. The Agent (which term as
used in this sentence and in Section 10.5 and the first sentence of Section 10.6
hereof shall include its Affiliates and its own and its Affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement and
shall not be a trustee or fiduciary for any Lender; (b) shall not be responsible
to the Lenders for any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Credit Document or any
certificate or other document referred to or provided for in, or received by any
of them under, any Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Credit Document, or any other
document referred to or provided for therein or for any failure by any Credit
Party or any other Person to perform any of its obligations thereunder; (c)
shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any
Credit Party or the satisfaction of any condition or to inspect the property
(including the books and records) of any Credit Party or any of its Subsidiaries
or Affiliates; and (d) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Credit Document, except for
its own gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
10.2 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any certification, notice,
instrument, writing, or other communication (including, without limitation, any
thereof by telephone or telecopy) believed by it to be genuine and correct and
to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants, and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 11.3(b) hereof. As
to any matters not expressly provided for by this
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Credit Agreement, the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to any Credit Document or applicable law or unless it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking any such action.
10.3 DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or a Credit Party specifying such Default or Event
of Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt notice thereof to the Lenders. The Agent
shall (subject to Section 10.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders (or such other Lenders as required by Section 11.6), provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders.
10.4 RIGHTS AS A LENDER.
With respect to its Commitment and the Loans made by it, Bank of
America (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank of America (and any successor
acting as Agent) and its Affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Credit Party or any of its Subsidiaries or Affiliates as if it
were not acting as Agent, and Bank of America (and any successor acting as
Agent) and its Affiliates may accept fees and other consideration from any
Credit Party or any of its Subsidiaries or Affiliates for services in connection
with this Credit Agreement or otherwise without having to account for the same
to the Lenders.
10.5 INDEMNIFICATION.
The Lenders agree to indemnify the Agent (to the extent not reimbursed
under Section 11.5 hereof, but without limiting the obligations of the Credit
Parties under such Section) ratably (in accordance with their respective (i)
Revolving Commitments (or, if the Revolving Commitments have been terminated,
the outstanding Revolving Loans and Participation Interests in Letters of Credit
(including the Participation Interests of the Issuing Lender in Letters of
Credit)), (ii) outstanding Tranche A Term Loans (and Participation Interests
therein) and (iii) outstanding
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Xxxxxxx X Term Loans (and Participation Interests therein)) for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees), or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Agent (including by any Lender) in any way relating to or arising out of any
Credit Document or the transactions contemplated thereby or any action taken or
omitted by the Agent under any Credit Document; provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses payable by the Credit
Parties under Section 11.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Credit Parties. The agreements in
this Section 10.5 shall survive the repayment of the Loans, LOC Obligations and
other obligations under the Credit Documents and the termination of the
Commitments hereunder.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Credit Parties and
their Subsidiaries and decision to enter into this Credit Agreement and that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Credit Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of any Credit Party or any of its Subsidiaries
or Affiliates that may come into the possession of the Agent or any of its
Affiliates.
10.7 SUCCESSOR AGENT.
The Agent may resign at any time by giving notice thereof to the
Lenders and the Credit Parties. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a commercial bank organized under the laws of the
United States having combined capital and surplus of at least $100,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor, such
successor shall thereupon succeed to and become vested with all the rights,
powers, discretion, privileges, and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
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SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid (or pursuant to an invoice arrangement) to a
reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address, in the
case of the Credit Parties and the Agent, set forth below, and, in the case of
the Lenders, set forth on Schedule 2.1(a), or at such other address as such
party may specify by written notice to the other parties hereto:
if to any Credit Party:
American Medical Systems, Inc.
00000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
Bank of America, N. A.
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx, Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
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Bank of America, N. A.
Bank of America Corporate Center, 13th Floor
NC1-007-13-06
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.2 RIGHT OF SET-OFF; ADJUSTMENTS.
Upon the occurrence and during the continuance of any Event of Default,
each Lender (and each of its Affiliates) is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender (or any
of its Affiliates) to or for the credit or the account of any Credit Party
against any and all of the obligations of such Person now or hereafter existing
under this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Lender shall have made any demand
hereunder or thereunder and although such obligations may be unmatured. Each
Lender agrees promptly to notify any affected Credit Party after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 11.2 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
11.3 BENEFIT OF AGREEMENT.
(a) This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties
may assign or transfer any of its interests and obligations without
prior written consent of each of the Lenders; provided further that the
rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth
in this Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of an existing Lender or any fund that
invests in bank loans and is advised or managed by an
investment advisor to an existing Lender or an assignment of
all of a Lender's rights and obligations under this Credit
Agreement, any such partial assignment shall be in an amount
at least equal to $5,000,000 (or, if less, the
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remaining amount of the Commitment being assigned by such
Lender) or an integral multiple of $1,000,000 in excess
thereof; and
(iii) the parties to such assignment shall execute
and deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit 11.3(b) (an "Assignment and
Acceptance"), together with any Note subject to such
assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Credit Agreement. Upon the consummation of any
assignment pursuant to this Section 11.3(b), the assignor, the Agent
and the Credit Parties shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not a United States person under Section 7701(a)(30) of the
Code, it shall deliver to the Credit Parties and the Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 3.11.
(c) The Agent shall maintain (and the Borrower hereby
designates the Agent to serve as the Borrower's agent to maintain) at
its address referred to in Section 11.1 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Credit Parties, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Credit Parties or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Any assignment of
any Loan or other Credit Party Obligations shall be effective only upon
an entry with respect thereto being made in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit 11.3(b) hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of
its Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained in
Sections 3.6 through 3.12, inclusive (but only to
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the extent that the selling Lender is so entitled), and the right of
set-off contained in Section 11.2, and (iv) the Credit Parties shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and such Lender shall retain the sole right to enforce the obligations
of the Credit Parties relating to the Credit Party Obligations owing to
such Lender and to approve any amendment, modification, or waiver of
any provision of this Credit Agreement (other than amendments,
modifications, or waivers (A) decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Notes, (B)
extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Notes, (C) extending its
Commitment, (D) except as the result of or in connection with an Asset
Disposition not prohibited by Section 8.5, releasing all or
substantially all of the Collateral, (E) except as the result of or in
connection with a dissolution, merger or disposition of a Consolidated
Party not prohibited by Section 8.4 or Section 8.5, releasing the
Borrower or substantially all of the other Credit Parties from its or
their obligations under the Credit Documents or (D) releasing US
Warburg from its obligations under the Warburg Guaranty).
(f) Notwithstanding any other provision set forth in this
Credit Agreement, any Lender may at any time assign and pledge all or
any portion of its Loans and its Notes (i) to any Federal Reserve Bank
as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank or (ii) in the case of any
Lender which has made Tranche B Term Loans hereunder and is an
investment fund, to the trustee under the indenture to which such fund
is a party in support of its obligations to such trustee for the
benefit of the applicable trust beneficiaries. No such assignment shall
release the assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning the
Consolidated Parties in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 11.14
hereof.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Agent or any Lender and any of the
Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Credit Parties to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent or the Lenders to any other or
further action in any circumstances without notice or demand.
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11.5 EXPENSES; INDEMNIFICATION.
(a) The Credit Parties jointly and severally agree to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Credit Agreement,
the other Credit Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent (including the cost of internal
counsel) with respect thereto and with respect to advising the Agent as
to its rights and responsibilities under the Credit Documents. The
Credit Parties further jointly and severally agree to pay on demand all
costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the
cost of internal counsel), in connection with any work-out or
restructuring relating to the Credit Facilities or any enforcement
(whether through negotiations, legal proceedings, or otherwise) of any
of the Credit Documents.
(b) The Credit Parties jointly and severally agree to
indemnify and hold harmless the Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, agents,
and advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that may be
incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection
therewith) the Credit Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in
this Section 11.5 applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any of
the Credit Parties, their respective directors, shareholders or
creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Credit Parties
agree not to assert any claim against the Agent, any Lender, any of
their Affiliates, or any of their respective directors, officers,
employees, attorneys, agents, and advisers, on any theory of liability,
for special, indirect, consequential, or punitive damages arising out
of or otherwise relating to the Credit Documents, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 11.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.
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11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, each of the Credit Parties
party thereto and the Required Lenders, provided, however, that:
(a) without the consent of each Lender affected thereby,
neither this Credit Agreement nor any other Credit Document may be
amended, changed, waived, discharged or terminated so as to
(i) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit, or extend or waive any
Principal Amortization Payment of any Loan, or any portion
thereof,
(ii) reduce the rate or extend the time of payment of
interest on any Loan or of any reimbursement obligation, or
any portion thereof, arising from drawings under Letters of
Credit (other than as a result of waiving the applicability of
any post-default increase in interest rates) or of any Fees,
(iii) reduce or waive the principal amount of any Loan or
of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit,
(iv) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a
waiver of any Default or Event of Default or mandatory
reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender),
(v) except as the result of or in connection with a
Permitted Asset Disposition and subject to the terms of
Section 11.6(e), release all or substantially all of the
Collateral,
(vi) except as the result of or in connection with a
dissolution, merger or disposition of a Consolidated Party not
prohibited by Section 8.4 or Section 8.5 and subject to the
terms of Section 11.6(e), release the Borrower or
substantially all of the other Credit Parties from its or
their obligations under the Credit Documents,
(vii) amend, modify or waive any provision of this
Section 11.6,
(viii) reduce any percentage specified in, or otherwise
modify, the definitions of Required Guaranteed Lenders,
Required Lenders or Required Tranche A Term Lenders,
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(ix) release US Warburg from its obligations under the
Warburg Guaranty, or
(x) subject to the terms of Section 11.6(e), consent to
the assignment or transfer by the Borrower or all or
substantially all of the other Credit Parties of any of its or
their rights and obligations under (or in respect of) the
Credit Documents except as permitted thereby;
(b) without the consent of the Agent, no provision of Section
10 may be amended, changed, waived, discharged or terminated;
(c) without the consent of the Issuing Lender, no provision of
Section 2.2 may be amended, changed, waived, discharged or terminated;
(d) without the consent of the Required Tranche A Term
Lenders, (A) no amendment, change, waiver, discharge or termination of
any of the following which would have an adverse effect on the Tranche
A Term Lenders shall be effective: (1) the definitions of "Asset
Disposition", "Asset Disposition Prepayment Event", "Application
Period", "Capital Stock", "Collateral", "Collateral Documents", "Debt
Issuance", "Domestic Subsidiary", "Eligible Reinvestment", "Equity
Issuance", "Excess Proceeds", "Excluded Asset Disposition", "Excluded
Equity Issuance", "Excluded Property", "Foreign Subsidiary",
"Guarantors", "Involuntary Disposition", "Joinder Agreement", "Lien",
"Material Foreign Subsidiary", "Mortgaged Instruments", "Mortgaged
Properties", "Mortgaged Policies", "Net Cash Proceeds", "Permitted
Asset Disposition", "Permitted Liens", "Pledge Agreement", "Property",
"Security Agreement", "Subsidiary", "Subsidiary Guarantor" and "Tranche
A Obligations" set forth in Section 1.1, (2) Sections 3.3(a),
3.3(b)(iii)-(vi),3.15(b), 4, 7.6(b), 7.12, 7.13, 8.2, 8.5 or 9.1(e) or
(3) any of the Collateral Documents, and (B) neither this Credit
Agreement nor any other Credit Document may be amended, changed,
waived, discharged or terminated so as to (1) except as the result of
or in connection with a Permitted Asset Disposition, release any of the
Collateral, (2) except as the result of or in connection with a
dissolution, merger or disposition of a Consolidated Party not
prohibited by Section 8.4 or Section 8.5, release the Borrower or any
of the other Credit Parties from its or their obligations under the
Credit Documents or (3) consent to the assignment or transfer by the
Borrower or any of the other Credit Parties of any of its or their
rights and obligations under (or in respect of) the Credit Documents
except as permitted thereby;
(e) without the consent of the Required Guaranteed Lenders, no
amendment, change, waiver, discharge or termination of any of the
following which would have an adverse effect on the Guaranteed Lenders
shall be effective: (A) the definitions of "Guaranteed Lenders" set
forth in Section 1.1, (B) the Warburg Guaranty or (C) Section 9.1(j);
and
(f) without the consent of each Lender, no amendment, change,
waiver, discharge or termination of Sections 5.2(a), (n), (o), (p) or
(q) shall be effective.
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Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and
(y) the Required Lenders shall determine whether or not to allow a
Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of
the Lenders.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
11.8 HEADINGS.
The headings of the sections hereof are provided for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Credit Agreement.
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.2(i), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive until this Credit Agreement shall be terminated in
accordance with the terms of Section 11.13.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY
PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Any legal action or proceeding with respect to this
Credit Agreement or any other Credit Document may be brought in the
courts of the State of New York in New York County, or of the United
States for the Southern District of New York, and, by execution and
delivery of this Credit Agreement, each of the Credit Parties hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof
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by registered or certified mail, postage prepaid, to it at the address
set out for notices pursuant to Section 11.1, such service to become
effective three (3) days after such mailing. Nothing herein shall
affect the right of the Agent or any Lender to serve process in any
other manner permitted by law or to commence legal proceedings or to
otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE
LENDERS, EACH OF THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 TERMINATION.
The term of this Credit Agreement shall be until the Credit Party
Obligations are Fully Satisfied.
11.14 CONFIDENTIALITY.
The Agent and each Lender (each, a "Lending Party") agrees to keep
confidential any information furnished or made available to it by or on behalf
of the Credit Parties pursuant to this Credit Agreement; provided that nothing
herein shall prevent any Lending Party from disclosing such information (a) to
any other Lending Party or any Affiliate of any Lending Party, or any officer,
director, employee, agent, or advisor of any Lending Party or Affiliate of any
Lending
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Party, (b) to any other Person if reasonably incidental to the administration of
the Credit Facilities, (c) as required by any law, rule, or regulation, (d) upon
the order of any court or administrative agency, (e) upon the request or demand
of any regulatory agency or authority, (f) that is or becomes available to the
public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Credit Agreement,
(g) in connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Credit Agreement or any other Credit Document,
(i) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender, (j) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty (i) has been approved in writing by the Borrower
and (ii) agrees in a writing enforceable by the Borrower to be bound by the
provisions of this Section 11.14) and (k) subject to provisions substantially
similar to those contained in this Section 11.14, to any actual or proposed
participant or assignee.
11.15 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this clause (b), all employee benefit plans maintained by
the same employer or employee organization are deemed to be a single
plan);
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
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11.16 REGULATION D.
Each of the Lenders hereby represents and warrants to the Borrower that
it is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires or loans on
the ordinary course of business and that it will make or acquire Loans for its
own account in the ordinary course of business.
11.17 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: AMERICAN MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Title: Vice President -
-------------------------
Finance, Treasurer and
-------------------------
Chief Financial Officer
-------------------------
SUBSIDIARY
GUARANTOR: INFLUENCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Title: Chief Financial Officer
-------------------------
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LENDERS: BANK OF AMERICA, N. A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: /s/ Xxxx X. X'Xxxxx
----------------------------
Name: Xxxx X. X'Xxxxx
--------------------------
Title: Managing Director
-------------------------
BANKERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Principal
-------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
--------------------------
Title: Senior Vice President
-------------------------
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Director
-------------------------
