| 28. SEVERABILITY
|
| 82
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
This
REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of February 18, 1998, by and
among FARGO ELECTRONICS, INC. (the "Borrower"), a Minnesota corporation having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, FARGO ELECTRONICS HOLDINGS, INC., ("Holdings"), a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and BANKBOSTON, N.A., a national banking association and the
other lending institutions listed on Schedule 1 and BANKBOSTON, N.A. as agent for
itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this
Credit Agreement referred to below:
Accounts Receivable. All rights of the Borrower or any of its Subsidiaries to payment for goods sold, leased or otherwise marketed in
the ordinary course of business and all rights of the Borrower or any of its Subsidiaries to payment for services rendered in the ordinary course of business and all sums of money or other proceeds
due thereon pursuant to transactions with account debtors, except for that portion of the sum of money or other proceeds due thereon that relate to sales, use or property taxes in conjunction with
such transactions, recorded on books of account in accordance with generally accepted accounting principles.
Adjustment Date. The first Business Day which is five (5) Business Days after receipt by the Agent of the most
recent Compliance Certificate required to be delivered by the Borrower pursuant to §9.4(d).
Affected Bank. As defined in §6.12.
Affiliate. Any Person that would be considered to be an affiliate of the Borrower under Rule 144(a) of the Rules
and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if the Borrower were issuing securities.
Agent's Head Office. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other location as the Agent may designate from time to time.
Agent BankBoston, N.A. acting as agent for the Banks.
Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other counsel as may be approved by the Agent.
Applicable Margin. For each period commencing on an Adjustment Date through the date immediately preceding the next
Adjustment Date (each a "Rate Adjustment Period"), the Applicable Margin shall be the applicable margin set forth below with respect to the Borrower's Leverage Ratio as
determined for the period ending on the fiscal quarter ended immediately preceding the applicable Rate Adjustment Period.
Leverage Ratio
|
| Base Rate A
Loans
|
| Eurodollar
Rate A Loans
|
| Base Rate B
Loans
|
| Eurodollar
Rate B Loans
|
| Letter of
Credit Fee
|
| Commitment
Fee Rate
|
|
| Greater than or equal to 3.50:1.00
|
| 1.50
| %
| 2.50
| %
| 1.75
| %
| 2.75
| %
| 2.50
| %
| 0.50
| %
|
| Less than 3.50:1.00 but greater than or equal to 3.00:1.00
|
| 1.25
| %
| 2.25
| %
| 1.75
| %
| 2.75
| %
| 2.25
| %
| 0.50
| %
|
| Less than 3.00:1.00 but greater than or equal to 2.50:1.00
|
| 1.00
| %
| 2.00
| %
| 1.75
| %
| 2.75
| %
| 2.00
| %
| 0.375
| %
|
| Less than 2.50:1.00 but greater than or equal to 2.00:1.00
|
| 0.75
| %
| 1.75
| %
| 1.75
| %
| 2.75
| %
| 1.75
| %
| 0.375
| %
|
| Less than 2.00:1.00
|
| 0.50
| %
| 1.50
| %
| 1.75
| %
| 2.75
| %
| 1.50
| %
| 0.375
| %
Notwithstanding
the foregoing, (a) for Loans outstanding, the Letter of Credit Fees and the commitment fee payable during the period commencing on the Closing Date through the
date immediately preceding the first Adjustment Date to occur after June 30, 1998, the Applicable Margin shall be the highest Applicable Margin set forth above, and (b) if the Borrower
fails to deliver any
Compliance Certificate pursuant to §9.4(d) hereof then, for the period commencing on the next Adjustment Date to occur subsequent to such failure through the date immediately following the
date on which such Compliance Certificate is delivered, the Applicable Margin shall be the highest Applicable Margin set forth above.
Asset Transfer Agreement. The Asset Transfer Agreement dated as of February 18, 1998 by and between the Borrower
and Primera and in form and substance reasonably satisfactory to the Agent and the Banks.
Asset Sale. Any one or series of related transactions in which any applicable Person conveys, sells, transfers or
otherwise disposes of, directly or indirectly, any of its properties, businesses or assets (including the sale or issuance of capital stock of a Subsidiary), whether owned on the Closing date or
thereafter acquired.
Assignment and Acceptance. See §20.1.
Balance Sheet Date. December 31, 1997.
Banks. BKB and the other lending institutions listed on
Schedule 1 hereto and any other Person who becomes an assignee of any rights and obligations of a Bank pursuant to §20.
Base Rate. The higher of (a) the annual rate of interest announced from time to time by BKB at its head office
in Boston, Massachusetts, as its "base rate" and (b) one-half of one percent (1/2%) above the Federal Funds Effective Rate. For the purposes of this definition, "Federal Funds
Effective Rate" shall mean for any day, the rate per annum 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, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three funds brokers of recognized standing selected by the
Agent.
Base Rate A Loans. Revolving Credit Loans and all or any portion of the Term Loan A bearing interest calculated by
reference to the Base Rate.
Base Rate B Loans. All or any portion of the Term Loan B bearing interest calculated by reference to the Base Rate.
Base Rate Loans. The Base Rate A Loans and the Base Rate B Loans.
BKB. BankBoston, N.A., a national banking association, in its individual capacity.
Borrower. As defined in the preamble hereto.
Building Reference Period. The period of four consecutive fiscal quarters (or such shorter period of one, two or three
consecutive fiscal quarters as has elapsed since the Closing Date).
Business Day. Any day on which banking institutions in Boston, Massachusetts, are open for the transaction of banking
business and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible
(such as patents, copyrights, trademarks, franchises and good will)i provided that Capital Assets shall not include any item customarily
charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with generally accepted accounting principles.
Capital Expenditures. Amounts paid or Indebtedness incurred by the Borrower or any of its Subsidiaries in connection
with (a) the purchase or lease by the Borrower or any of its Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance
with generally accepted accounting principles or (b) the lease of any assets by the Borrower or any of its Subsidiaries as lessee under any Synthetic Lease to the extent that such assets would
have been Capital Assets had the synthetic lease been treated for accounting purposes as a Capitalized Lease.
Capitalization Documents. The Subordinated Seller Note, the Consulting Agreement, the Stockholders Agreement, the Stock
Purchase and Redemption Agreement and the Warrant (including the agreements, instruments and documents that are exhibits thereto) and the articles of incorporation and by-laws of,
Holdings, the Borrower and its Subsidiaries.
Capitalized Leases. Leases under which the Borrower or any of its Subsidiaries is the lessee or obligor, the discounted
future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with generally accepted accounting principles.
CERCLA. See §8.18(a).
Closing Date. The first date on which the conditions set forth in §12 have been satisfied and any Revolving
Credit Loans and the Term Loans are to be made or any Letter of Credit is to be issued hereunder.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Borrower and its Subsidiaries that are or are intended to
be subject to the security interests and mortgages created by the Security Documents.
Commitment. With respect to each Bank, the amount set forth on
Schedule 1 hereto as the amount of such Bank's commitment to make Loans to, and to participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrower, as the same may be reduced from time to time; or if such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Fee Rate. The applicable rate per annum set forth in the chart contained in the definition of Applicable
Margin under the heading "Commitment Fee Rate".
Commitment Percentage. With respect to each Bank, the percentage set forth on
Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of all of the Banks and with respect to the Term Loans, each Bank's commitment
to make each of the respective Term Loans.
Compliance Certificate. See §9.4(d) hereof.
Consolidated or consolidated. With reference to any term defined herein, shall mean that term as applied to the
accounts of the Borrower and its Subsidiaries, consolidated in accordance with generally accepted accounting principles.
Consolidated Cash Flow. With respect to the Borrower and its Subsidiaries for any period, an amount equal to
(a) the sum of (i) EBITDA for such period, plus (ii) if applicable, in-flows resulting from Net Working
Capital Changes for such period, less (b) the sum of, (i) Capital Expenditures made in such period, plus (ii) cash income taxes paid in such period, plus (iii) if
applicable, out-flows resulting from Net Working Capital Changes for such period, all as determined on a consolidated basis in accordance with generally accepted accounting principles.
Consolidated Current Assets. All cash and Accounts Receivable of the Borrower and its Subsidiaries on a consolidated
basis, provided that Accounts Receivable shall be included only if good and collectible as determined by the Borrower in accordance with established practice consistently applied and only if payable
and outstanding not more than ninety (90) days after the date of the shipment of goods or other transaction out of which any such Account Receivable arose; and such Accounts Receivable shall be
taken at their face value less reserves determined to be sufficient in accordance with generally accepted accounting principles.
Consolidated Current Liabilities. The sum of, without duplication, (a) all liabilities and other Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis maturing on demand or within one (1) year from the date as of which Consolidated Current Liabilities are to be determined, plus
(b) such other liabilities as may properly be classified as current liabilities in accordance with generally accepted accounting principles, plus (c) the aggregate amount of all
Revolving Credit Loans and Unpaid Reimbursement Obligations outstanding at such time and the Maximum Drawing Amount of all issued and outstanding Letters of Credit at such time.
Consolidated Excess Cash Flow. With respect to the Borrower and its Subsidiaries and any particular fiscal period, an
amount equal to (a) Consolidated Cash Flow for such periodless (b) the sum of (without duplication) (i) Consolidated Total
Interest Expense for such period, plus (ii) any mandatory repayments (whether scheduled or otherwise) of principal and voluntary
permanent prepayments of principal on any Indebtedness of the Borrower or any of its Subsidiaries paid or due and payable during such period (other than payments made in respect of the prior fiscal
year's Consolidated Excess Cash Flow).
Consolidated Net Income (or Deficit). The consolidated net income (or deficit) of the Borrower and its Subsidiaries,
after deduction of all expenses, taxes, and other proper charges, determined in accordance with generally accepted accounting principles, after eliminating therefrom all extraordinary nonrecurring
items of income.
Consolidated Operating Cash Flow. For any period, an amount equal to (a) the sum of (i) EBIT for such
period, plus (ii) depreciation and amortization for such period, less (b) the sum of (i) cash payments for all
taxes paid during such period, plus (ii) to the extent not already deducted in the determination of EBIT, Capital Expenditures
made during such period.
Consolidated Total Interest Expense. For any period, the aggregate amount of interest required to be paid or accrued by
the Borrower and its Subsidiaries during such period on all Indebtedness of the Borrower and its Subsidiaries outstanding during all or any part of such period, whether such interest
was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of any Capitalized Lease or any Synthetic Lease and including commitment
fees, agency fees, facility fees, balance deficiency fees and similar fees or expenses in connection with the borrowing of money.
Consulting Agreement. That certain Consulting Agreement dated on or prior to the Closing Date, between the Borrower and
the Founder, and in form and substance reasonably acceptable to the Agent and the Banks.
Conversion Request. A notice given by the Borrower to the Agent of the Borrower's election to convert or continue a
Loan in accordance with §2.7.
Convertible Preferred Stock. The Borrower's "Convertible Preferred Stock", as such term is defined in the Borrower's
Amended and Restated Articles of Incorporation as in effect on the Closing Date.
Copyright Mortgages. The several Copyright Mortgage and Security Agreements, dated or to be dated on or prior to the
Closing Date, made by the Borrower and its Subsidiaries in favor of the Agent and in form and substance reasonably satisfactory to the Banks and the Agent.
Credit Agreement. This Revolving Credit and Term Loan Agreement, including the Schedules and Exhibits hereto, as the
same may be amended, modified, supplemented and restated from time to time in accordance with the terms hereof.
Default. See §14.1.
Delinquent Bank. See §16.5.3.
Distribution. The declaration or payment of any dividend on or in respect of any shares of any class of capital stock
of the Borrower, other than dividends payable solely in shares of common stock of the Borrower; the purchase, redemption, or other retirement of any shares of any class of capital stock of the
Borrower, directly or indirectly through a Subsidiary of the Borrower or otherwise; the return of capital by the Borrower to its shareholders as such; or any other distribution on or in respect of any
shares of any class of capital stock of the Borrower.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated as such
in Schedule 1 hereto; thereafter, such other office of such Bank, if any, located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan or the Term Loans are made or are to be made, and the date
on which any Revolving Credit Loan is converted or continued in accordance with §2.7 or all or any portion of the Term Loans are converted or continued in accordance with
§4.5(b).
EBIT. The consolidated earnings (or loss) from the operations of the Borrower and its Subsidiaries for any period,
after all expenses and other proper charges but before payment or provision for any income taxes or interest expense for such period, determined in accordance with generally accepted accounting
principles.
EBITDA. With respect to the Borrower and its Subsidiaries for any fiscal period, an amount equal to Consolidated Net
Income for such period, plus, to the extent deducted in the calculation of Consolidated Net Income and without duplication,
(a) depreciation and amortization for such period, (b) other noncash charges for such period, (c) income tax expense for such period, (d) Consolidated
Total Interest Expense for such period, and (e) the aggregate amount of the Seller Consulting Fees provided that the aggregate amount of such Seller Consulting Fees does not exceed $40,000 in
the
aggregate for the fiscal quarter ending March 31, 1998 and minus, to the extent added in computing Consolidated Net Income and without duplication, all noncash gains (including income tax
benefits) for such period, all as determined in accordance with generally accepted accounting principles.
Eligible Assignee. Any of (a) a commercial bank or finance company organized under the laws of the United
States, or any State thereof or the District of Columbia, and having total assets in excess of $1,000,000,000; (b) a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a net worth of at least $100,000,000, calculated in accordance with generally accepted accounting principles; (c) a
commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such bank is acting through a branch or agency located in
the country in which it is organized or another country which is also a member of the OECD; (d) the central bank of any country which is a member of the OECD; and (e) if, but only if,
any Event of Default has occurred and is continuing, any other bank, insurance company, commercial finance company or other financial institution or other Person approved by the Agent, such approval
not to be unreasonably withheld.
Employee Benefit Plan. Any employee, benefit plan within the meaning of §3(3) of ERISA maintained of
contributed to by the Borrower or any ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See §8.18(a).
EPA. See §8.18(b).
Equity Issuance. The sale or issuance by the Borrower or any of its Subsidiaries of any of its capital stock or equity
interests or any warrants, rights or options to acquire its capital stock or equity interests.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with the Borrower under §414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan within the meaning of
§4043 of ERISA and the regulations promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate Loan, the maximum rate (expressed as a
decimal) at which any lender subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency Liabilities" (as that term is used in Regulation D), if such liabilities were outstanding. The Eurocurrency Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for international business (including dealings in
Dollar deposits) in London or such other eurodollar interbank market as may be selected by the Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated as such
in Schedule 1 hereto; thereafter, such other office of such Bank, if any, that shall be making or maintaining Eurodollar Rate
Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate Loan, the rate of interest equal to
(a) the rate per annum (rounded upwards to the nearest 1/16 of one percent) at which the Reference Bank's Eurodollar Lending Office is offered Dollar deposits two (2) Eurodollar Business
Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for the number of days comprised therein ar4 in ax. amount comparable to the amount of the Eurodollar Rate Loan of the
Reference Bank to which such Interest Period applies, divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate A Loans. Revolving Credit Loans and all or any portion of the Term Loan A bearing interest calculated
by reference to the Eurodollar Rate.
Eurodollar Rate B Loans. All or any portion of the Term Loan B bearing interest calculated by reference to the
Eurodollar Rate.
Eurodollar Rate Loans. The Eurodollar Rate A Loans A Loans the Eurodollar Rate B Loans.
Event of Default. See §14.1.
Fee Letter. The fee letter dated on or prior to the Closing Date between the Borrower and the Agent, as the same may be
amended, modified or supplemented from lime to time.
Founder. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in his individual capacity.
generally accepted accounting principles. (a) When used in §11, whether directly or indirectly
through reference to a capitalized term used therein, means (i) principles that are consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent with such principles, the accounting practice of the Borrower reflected in its
financial statements for the year ended on the Balance Sheet Date, and (b) when used in general, other than as provided above, means principles that are (i) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time, and (ii) consistently applied with past financial statements
of the Borrower adopting the same principles, provided that in each case referred to in this definition of "generally accepted accounting principles" a certified public accountant would, insofar as
the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) as to
financial statements in which such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained
or contributed to by the Borrower or any ERISA Affiliate the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Each Subsidiary of the Borrower existing on the Closing Date and each other Person which is required to be
or become a guarantor from time to time pursuant to §9.14 hereof.
Hazardous Substances. See §8.18(b).
Holdings. As defined in the preamble hereto.
Indebtedness. As to any Person and whether recourse is secured by or is otherwise available against all or only a
portion of the assets of such Person and whether or not contingent, but without duplication:
(a) every
obligation of such Person for money borrowed,
(b) every
obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses,
(c) every
reimbursement obligation of such Person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such Person,
(d) every
obligation of such Person issued or assumed as the deferred purchase price of property or services (including securities repurchase agreements but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of business which are not overdue or which are being contested in good faith),
(e) every
obligation of such Person under any Capitalized Lease,
(f) every
obligation of such Person under any lease (a "synthetic lease") treated as an operating lease under generally accepted accounting principles and as a loan or
financing for U.S. income tax purposes,
(g) all
sales by such Person of (i) accounts or general intangibles for money due or to become due, (ii) chattel paper, instruments or documents creating
or evidencing a right to payment of money or (iii) other receivables (collectively "receivables"), whether pursuant to a purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or a disposition of defaulted receivables for collection and not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection therewith,
(h) every
obligation of such Person (an "equity related purchase obligation") to purchase, redeem, retire or otherwise acquire for value any shares of capital stock of
any class issued by such Person, any warrants, options or other rights to acquire any such shares, or any rights measured by the value of such shares, warrants, options or other rights,
(i) every
obligation of such Person under any forward contract, futures contract, swap, option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which is dependent upon interest rates, currency exchange rates, commodities or other indices (a "derivative contract"),
(j) every
obligation in respect of Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent that such
Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent that the terms
of such Indebtedness provide that such Person is not liable therefor and such terms are enforceable under applicable law,
(k) every
obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guarantying or otherwise acting as surety for, any
obligation of a type described in any of clauses (a) through (j) (the "primary obligation") of another Person (the "primary obligor"), in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such Person (i) to purchase or pay (or advance or supply funds for the purchase of) any security for the payment of such primary obligation,
(ii) to purchase property, securities or services for the purpose of assuring the payment of such primary obligation, or (iii) to maintain
working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such primary obligation.
The
"amount" or "principal amount" of any Indebtedness at any lime of determination represented by (u) any Indebtedness, issued at a price that is less than the principal
amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with generally accepted accounting principles, (v) any Capitalized Lease shall be
the principal component of the aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof that is not subject to termination by the lessee, (w) any sale of
receivables shall be the amount of unrecovered capital or principal investment of the purchaser (other than the Borrower or any of its wholly-owned Subsidiaries) thereof, excluding amounts
representative of yield or interest earned on such investment, (x) any Synthetic Lease shall be the stipulated loss value, termination value or other equivalent amount, (y) any
derivative contract shall be the maximum amount of any termination or loss payment required to be paid by such Person if such derivative contract were, at the time of determination, to be terminated
by reason of any event of default or early termination event thereunder, whether or not such event of default or early termination event has in fact occurred and (z) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price thereof inclusive of any accrued an unpaid dividends to be comprised in such redemption or purchase price.
Ineligible Securities. Securities which may not be underwritten or dealt in by member banks of the Federal Reserve
System under Section 16 of the Banking Act of 1993 (12 U.S.C. §24, Seventh), as amended.
Initial Public Offering. The initial underwritten public offering of the common stock of the Borrower registered under
the Securities Act of 1933.
Instrument of Adherence. See §10.5.1.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the calendar quarter with respect to
interest accrued during such calendar quarter including, without limitation, the calendar quarter which includes the Drawdown Date of such Base Rate Loan; and (b) as to any Eurodollar Rate Loan
in respect of which the Interest Period is (i) three (3) months or less, the last day of such Interest Period and (ii) more than three (3) months, the date that is three
(3) months from the first day of such Interest Period and, in addition, the last day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or any relevant portion of the Term Loans,
(a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the periods set forth below, as selected by the Borrower in a Loan Request or as
otherwise required by the terms of this Credit Agreement (i) for any Base Rate Loan, the last day of the calendar quarter; and (ii) for any Eurodollar Rate Loan, 1, 2, 3 or
6 months; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period applicable to such Revolving Credit Loan or all or such portion of the Term Loans and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(a) if
any Interest Period with respect to a Eurodollar Rate Loan would otherwise end on a day that is not a Eurodollar Business Day, that Interest Period shall be
extended to the next succeeding Eurodollar Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Eurodollar Business Day;
(b) if
any Interest Period with respect to a Base Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding
Business Day;
(c) if
the Borrower shall fail to give notice as provided in §2.7, the Borrower shall be deemed to have requested a conversion of the affected Eurodollar
Rate Loan to a Base Rate Loan and the continuance of all Base Rate Loans as Base Rate Loans on the last day of the then current Interest Period with respect thereto;
(d) any
Interest Period relating to any Eurodollar Rate Loan that begins on the last Eurodollar Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Eurodollar Business Day of a calendar month; and
(e) any
Interest Period that would otherwise extend beyond the Revolving Credit Loan Maturity Date (if comprising a Revolving Credit Loan), the Term Loan A Maturity
Date (if comprising the Term Loan A or a portion thereof) or the Term Loan B Maturity Date (if comprising the Term Loan B or a portion thereof) shall end on the Revolving Credit Loan Maturity Date,
the Term Loan A Maturity Date or the Term Loan B Maturity Date, as the case may be.
Investments. All expenditures made and all liabilities incurred (contingently or otherwise) for the acquisition of
stock or Indebtedness of, or for loans, advances, capital contributions or transfers of property to, or in respect of any guaranties (or other commitments as described under Indebtedness), or
obligations of, any Person. In determining the aggregate amount of Investments outstanding at any particular time: (a) the amount of any Investment represented by a guaranty shall be taken at
not less than the principal amount of the obligations guaranteed and still outstanding; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness
constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by
repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (d) there shall not be deducted in respect of any Investment any amounts received as earnings
on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.
Investors. Those Persons identified as "Investors" on the signature pages to the Stockholders Agreement.
Letter of Credit. See §5.1.1.
Letter of Credit Application. See §5.6.
Letter of Credit Fee. See §5.1.1.
Letter of Credit Participation. See §5.1.4.
Leverage Ratio. As of any date of determination, the ratio of (a) Total Funded Indebtedness of the Borrower and
its Subsidiaries outstanding on such date to (b) the EBITDA of the Borrower and its Subsidiaries for the Reference Period ended on such date; provided, however, for purposes of determining the
Leverage Ratio for purposes of the Applicable Margin and compliance with §11.1 hereof, EBITDA for the quarter ended (i) March 31, 1997 shall be $4,071,000;
(ii) June 30, 1997 shall be $4,523,000; (iii) September 30, 1997 shall be $5,605,000 and (iv) December 31, 1997 shall be $4,428,000.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit Applications, the Letters of Credit, the Fee
Letter, the Subordination Agreement and the Security Documents.
Loan Request. See §2.6.
Loans. The Revolving Credit Loans and the Term Loans.
Majority Banks. As of any date, the Banks holding at least sixty-six and two-thirds percent
(662/3%) of the outstanding principal amount of the Notes, plus the unused portion of the Commitments on such date; and if no such principal is outstanding, the Banks whose aggregate
Commitments constitutes at least sixty-six and two-thirds percent (662/3%) of the Total Commitment.
Material Adverse Effect. A material adverse effect on (a) the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower, individually, or Holdings, the Borrower and its Subsidiaries taken as a whole, or the Collateral, (b) the rights and remedies
of the Agent or any Bank under any Loan Documents, or (c) the ability of Holdings, the Borrower or any of its Subsidiaries to perform its Obligations under the Loan Documents.
Maximum Drawing Amount. The maximum aggregate amount that the beneficiaries may at any time draw under outstanding
Letters of Credit, as such aggregate amount may be reduced from time to time pursuant to the terms of the Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed
to by the Borrower or any ERISA Affiliate.
Net Cash Proceeds. With respect to any Equity Issuance, the excess of the gross cash proceeds received by such Person
from such Equity Issuance after deduction of reasonable and customary transaction expenses (including without limitation, underwriting discounts and commissions) actually incurred in connection with
the Equity Issuance.
Net Cash Sale Proceeds. The net cash proceeds received by the Borrower and any of its Subsidiaries in respect of any
Asset Sale, less the sum of (a) all reasonable out-of-pocket fees, commissions and other expenses incurred in connection with such Asset Sale, including the amount
(estimated in good faith by such Person) of income, franchise, sales and other applicable taxes required to be paid by such Person in connection with such Asset Sale and (b) the aggregate
amount of cash so received by such Person which is used to retire (in whole or in part) any Indebtedness (other than under the Loan Documents) of such Person permitted by this Credit Agreement that
was secured by a lien or security interest (if any) permitted by this Credit Agreement having priority over the liens and security interests (if any) of the Agent, for the benefit of the Banks, with
respect to such assets transferred, and which is required
to be repaid in whole or in part (which repayment, in the case of any other revolving credit arrangements or multiple advance arrangements, reduces the commitment thereunder) in connection with such
Asset Sale.
Net Working Capital Changes. For any fiscal period, the net change from the immediately preceding like fiscal period in
(a) both billed and unbilled Accounts Receivable, (b) current accounts payable of the Borrower and its Subsidiaries, (c) current accruals and accretions (exclusive of interest
accruals and accretions) of the Borrower and its Subsidiaries and (d) inventory of the Borrower and its Subsidiaries.
Non-Affected Banks. | |