EXHIBIT 10(I)
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 15, 1999
AMONG
INNOVEX, INC.,
AS BORROWER
AND
THE BANKS NAMED HEREIN,
AS BANKS
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS AGENT
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
SECTION 1.1. DEFINITIONS..................................................................................1
ARTICLE II CREDIT FACILITIES.....................................................................................14
SECTION 2.1. COMMITMENT AS TO REVOLVING FACILITY.........................................................14
SECTION 2.2. COMMITMENT AS TO TERM FACILITY..............................................................14
SECTION 2.3. PROCEDURES FOR BORROWING UNDER THE REVOLVING FACILITY.......................................14
SECTION 2.4. CONVERTING FLOATING RATE FUNDINGS TO EURODOLLAR FUNDINGS; PROCEDURES........................15
SECTION 2.5. PROCEDURES AT END OF AN INTEREST PERIOD.....................................................15
SECTION 2.6. SETTING AND NOTICE OF RATES.................................................................15
SECTION 2.7. INTEREST ON OBLIGATIONS.....................................................................16
SECTION 2.8. OBLIGATION TO REPAY ADVANCES; REPRESENTATIONS...............................................16
SECTION 2.9. NOTES; AMORTIZATION.........................................................................17
SECTION 2.10. INTEREST DUE DATES..........................................................................18
SECTION 2.11. COMPUTATION OF INTEREST AND FEES............................................................18
SECTION 2.12. FEES........................................................................................18
SECTION 2.13. USE OF PROCEEDS.............................................................................19
SECTION 2.14. VOLUNTARY REDUCTION OR TERMINATION OF THE COMMITMENTS; PREPAYMENTS..........................19
SECTION 2.15. PAYMENTS....................................................................................20
SECTION 2.16. TAXES.......................................................................................22
SECTION 2.17. INCREASED COSTS; CAPITAL ADEQUACY; FUNDING EXCEPTIONS.......................................23
SECTION 2.18. FUNDING LOSSES..............................................................................27
SECTION 2.19. RIGHT OF BANKS TO FUND THROUGH OTHER OFFICES................................................27
SECTION 2.20. DISCRETION OF BANKS AS TO MANNER OF FUNDING.................................................27
SECTION 2.21. CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS........................................28
ARTICLE III CONDITIONS OF LENDING................................................................................28
SECTION 3.1. CONDITIONS PRECEDENT TO THE INITIAL ADVANCE.................................................28
SECTION 3.2. CONDITIONS PRECEDENT TO ALL ADVANCES........................................................30
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................30
SECTION 4.1. CORPORATE EXISTENCE AND POWER; NAME; CHIEF EXECUTIVE OFFICE.................................30
SECTION 4.2. AUTHORIZATION FOR BORROWINGS; NO CONFLICT AS TO LAW OR
AGREEMENTS..................................................................................30
SECTION 4.3. LEGAL AGREEMENTS............................................................................31
SECTION 4.4. SUBSIDIARIES................................................................................31
SECTION 4.5. FINANCIAL CONDITION; NO ADVERSE CHANGE......................................................31
SECTION 4.6. LITIGATION..................................................................................32
SECTION 4.7. REGULATION U................................................................................32
SECTION 4.8. TAXES.......................................................................................32
SECTION 4.9. TITLES AND LIENS............................................................................32
-i- Exhibit 10(i)
SECTION 4.10. PLANS.......................................................................................33
SECTION 4.11. DEFAULT.....................................................................................33
SECTION 4.12. ENVIRONMENTAL COMPLIANCE....................................................................33
SECTION 4.13. SUBMISSIONS TO BANKS........................................................................34
SECTION 4.14. FINANCIAL SOLVENCY..........................................................................34
ARTICLE V AFFIRMATIVE COVENANTS OF THE BORROWER..................................................................34
SECTION 5.1. REPORTING REQUIREMENTS......................................................................35
SECTION 5.2. BOOKS AND RECORDS; INSPECTION AND EXAMINATION...............................................37
SECTION 5.3. COMPLIANCE WITH LAWS........................................................................37
SECTION 5.4. PAYMENT OF TAXES AND OTHER CLAIMS...........................................................37
SECTION 5.5. MAINTENANCE OF PROPERTIES...................................................................37
SECTION 5.6. INSURANCE...................................................................................38
SECTION 5.7. PRESERVATION OF CORPORATE EXISTENCE.........................................................38
SECTION 5.8 YEAR 2000...................................................................................38
SECTION 5.9. INTEREST COVERAGE RATIO.....................................................................39
SECTION 5.10 LEVERAGE RATIO..............................................................................39
SECTION 5.11 MINIMUM NET WORTH...........................................................................39
ARTICLE VI NEGATIVE COVENANTS....................................................................................40
SECTION 6.1. LIENS.......................................................................................40
SECTION 6.2. INDEBTEDNESS................................................................................41
SECTION 6.3. GUARANTIES..................................................................................41
SECTION 6.4. INVESTMENTS.................................................................................41
SECTION 6.5. RESTRICTED PAYMENTS.........................................................................42
SECTION 6.6. SALE OR TRANSFER OF ASSETS; SUSPENSION OF BUSINESS OPERATIONS...............................42
SECTION 6.7. CONSOLIDATION AND MERGER; ASSET ACQUISITIONS................................................42
SECTION 6.8. SALE AND LEASEBACK..........................................................................42
SECTION 6.9. RESTRICTIONS ON NATURE OF BUSINESS..........................................................43
SECTION 6.10. ACCOUNTING..................................................................................43
SECTION 6.11. HAZARDOUS SUBSTANCES........................................................................43
SECTION 6.12. CAPITAL EXPENDITURES........................................................................43
ARTICLE VII EVENTS OF DEFAULT; RIGHTS AND REMEDIES...............................................................43
SECTION 7.1. EVENTS OF DEFAULT...........................................................................43
SECTION 7.2. RIGHTS AND REMEDIES.........................................................................45
ARTICLE VIII AGREEMENT AMONG BANKS AND AGENT.....................................................................46
SECTION 8.1. AUTHORIZATION; POWERS; AGENT FOR COLLATERAL PURPOSES........................................46
SECTION 8.2. APPLICATION OF PROCEEDS.....................................................................47
SECTION 8.3. EXCULPATION.................................................................................48
SECTION 8.4. USE OF THE TERM "AGENT".....................................................................48
SECTION 8.5. REIMBURSEMENT FOR COSTS AND EXPENSES........................................................48
SECTION 8.6. PAYMENTS RECEIVED DIRECTLY BY BANKS.........................................................48
SECTION 8.7. INDEMNIFICATION.............................................................................49
-ii-
SECTION 8.8. AGENT AND AFFILIATES........................................................................49
SECTION 8.9. CREDIT INVESTIGATION........................................................................49
SECTION 8.10. DEFAULTS....................................................................................50
SECTION 8.11. OBLIGATIONS SEVERAL.........................................................................50
SECTION 8.12. SALE OR ASSIGNMENT; ADDITION OF BANKS.......................................................50
SECTION 8.13. PARTICIPATION...............................................................................51
SECTION 8.14. WITHHOLDING TAX EXEMPTION...................................................................52
SECTION 8.15. BORROWER NOT A BENEFICIARY OR PARTY.........................................................52
ARTICLE IX MISCELLANEOUS.........................................................................................52
SECTION 9.1. NO WAIVER; CUMULATIVE REMEDIES..............................................................52
SECTION 9.2. AMENDMENTS, REQUESTED WAIVERS, ETC..........................................................53
SECTION 9.3. ADDRESSES FOR NOTICES, ETC..................................................................53
SECTION 9.4. COSTS AND EXPENSES..........................................................................53
SECTION 9.5. INDEMNITY...................................................................................54
SECTION 9.6. EXECUTION IN COUNTERPARTS...................................................................55
SECTION 9.7. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL...........................................55
SECTION 9.8. INTEGRATION; INCONSISTENCY..................................................................56
SECTION 9.9. AGREEMENT EFFECTIVENESS.....................................................................56
SECTION 9.10. ADVICE FROM INDEPENDENT COUNSEL.............................................................56
SECTION 9.11. JUDICIAL INTERPRETATION.....................................................................56
SECTION 9.12. BINDING EFFECT; NO ASSIGNMENT BY BORROWER...................................................56
SECTION 9.13. SEVERABILITY OF PROVISIONS..................................................................56
SECTION 9.14. HEADINGS....................................................................................56
-iii-
LIST OF EXHIBITS
Exhibit A Form of Revolving Note
Exhibit B Form of Term Note
Exhibit C Notice of Borrowing under Revolving Facility
Exhibit D Notice of Conversion to Eurodollar Rate
Exhibit E Notice of Rollover to Eurodollar Rate
Exhibit F Form of Certificate of Chief Financial Officer as to Annual
Financial Statements
Exhibit G Form of Certificate of Chief Financial Officer as to Fiscal
Quarter Financial Statements
Exhibit H Form of Assignment Certificate
LIST OF SCHEDULES
Schedule 4.1 Name under which Borrower and its Subsidiaries Have Done
Business
Schedule 4.4 Subsidiaries of the Borrower
Schedule 4.6 Litigation
Schedule 4.8 Unpaid Taxes and Assessments
Schedule 4.9 Intellectual Property
Schedule 4.10 Description of Pension Plans of the Borrower
Schedule 4.12 Environmental Disclosures of the Borrower
Schedule 6.1 Outstanding Liens of the Borrower and its Subsidiaries
Schedule 6.2 Outstanding Indebtedness of the Borrower and its Subsidiaries
Schedule 6.3 Outstanding Guaranties of the Borrower and its Subsidiaries
-iv-
CREDIT AGREEMENT
This Credit Agreement is dated as of September 15, 1999, by
and among INNOVEX, INC., a Minnesota corporation (the "Borrower"), and each of
the banks appearing on the signature pages hereof, together with such other
banks as may from time to time become a party to this Agreement pursuant to the
terms and conditions of Article VIII hereof (herein collectively called the
"Banks" and individually each called a "Bank"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association ("Norwest"), in its
separate capacity as administrative agent for itself and all other Banks (in
such capacity, the "Agent").
ARTICLE I
Definitions
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in the preamble have the meanings
therein assigned to them;
(b) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(d) all accounting terms, unless otherwise specified, shall be
deemed to refer to Persons and their Subsidiaries on a consolidated
basis in accordance with GAAP.
"Adjustment Date" has the meaning specified in Section 8.12.
"Administrative Fee" has the meaning specified in Section
2.12(c).
"Advance" means a loan of funds by a Bank to the Borrower
under a Facility.
"Affiliate" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as a
trustee, guardian or other fiduciary, (i) ten percent (10%) or more of a Person
that is publicly held or (ii) fifty percent (50%) or more of a Person that is
privately held, of the stock having ordinary voting power in the election of
directors of such Person, (b) each Person that controls, is controlled by or is
under common control with such Person or (c) each of such Person's, officers,
directors, joint venturers and partners. For purpose of this definition,
"control" of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its
management or policies, whether through the ownership of voting securities, by
contract or otherwise; provided, however, that the term "Affiliate" shall in no
event include the Agent or a Lender.
"Agent" has the meaning specified in the preamble.
"Agreement" means this Credit Agreement and all exhibits,
amendments and supplements hereto and all restatements thereof.
"Applicant" has the meaning specified in Section 8.12.
"Assignment Certificate" has the meaning specified in Section
8.12.
"Bank" or "Banks" has the meaning specified in the preamble.
"Base Rate" on any day means the higher of (i) the Prime Rate
in effect on that day, or (ii) the Federal Funds Rate in effect on that day plus
.50%.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a borrowing by the Borrower under the
Revolving Facility, consisting of the aggregate of all Revolving Advances made
by the Banks to the Borrower pursuant to a request under Section 2.3.
"Business Day" means any day other than a Saturday or Sunday
on which national banks are required to be open for business in Minneapolis,
Minnesota, and, in addition, if such day relates to a Eurodollar Funding or
fixing of a Eurodollar Rate, a day on which dealings in U.S. dollar deposits are
carried on in the London interbank eurodollar market.
"Capital Adequacy Rule" has the meaning specified in Section
2.17(b)(ii).
"Capital Adequacy Rule Change" has the meaning specified in
Section 2.17(b)(iii).
"Capital Expenditures" of any Person means, with respect to
the applicable Covenant Computation Period, the sum of:
(a) the aggregate amount of all expenditures of such Person
for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
(without duplication)
(b) the aggregate amount of all Capitalized Lease Liabilities
of such Person incurred during such Covenant Computation Period.
E-2 Exhibit 10(i)
"Capitalized Lease Expenditures" of any Person means, with
respect to the applicable Covenant Computation Period, the total expenditures
made by such Person on account of its Capitalized Lease Liabilities, determined
in accordance with GAAP.
"Capitalized Lease Liabilities" of any Person means, with
respect to the applicable Covenant Computation Period, all monetary obligations
of such Person under any leasing or similar arrangement which, in accordance
with GAAP, would be classified as capitalized leases, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash Flow Available for Interest" of any Person means, with
respect to the applicable Covenant Computation Period, such Person's Pre-Tax
Earnings, plus such Person's Interest Expense, plus such Person's rental expense
with respect to operating leases.
"Change of Control" means, with respect to any corporation,
either (i) the acquisition by any "person" or "group" (as those terms are used
in Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (as
defined in Rules 13d-3 and 13d-4 of the Securities and Exchange Commission,
except that a Person shall be deemed to have beneficial ownership of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 30% or more of the then-outstanding voting capital stock of such
corporation; or (ii) a change in the composition of the board of directors of
such corporation or any corporate parent of such corporation such that
continuing directors cease to constitute more than 50% of such board of
directors. As used in this definition, "continuing directors" means, as of any
date, (i) those members of the board of directors of the applicable corporation
who assumed office prior to such date, and (ii) those members of the board of
directors of the applicable corporation who assumed office after such date and
whose appointment or nomination for election by that corporation's shareholders
was approved by a vote of at least 50% of the directors of such corporation in
office immediately prior to such appointment or nomination.
"Closing Date" means the date of this Agreement.
"Collateral" means all real and personal property of the
Borrower and/or any of its Subsidiaries in which the Banks have been granted a
security interest pursuant to any Security Document, together with all
substitutions and replacements for and products of any of the foregoing.
"Commitment" means, with respect to each Bank, such Bank's
Revolving Commitment or Term Commitment, as the context may require.
"Commitment Fee" has the meaning specified in Section 2.12(b).
"Commitment Fee Percentage" means, with respect to the
computation of the applicable Commitment Fee under Section 2.12(b), the
percentage as set forth and described
E-3 Exhibit 10(i)
in the table below, calculated according to the Borrower's then applicable
Status; provided, however, that (i) notwithstanding the table set forth below
during the period from the Closing Date through March 31, 2000, the applicable
Commitment Fee Percentage shall be .25% and (ii) for all periods from and after
April 1, 2000, any adjustment in the applicable Commitment Fee Percentage shall
not become effective until the first day of the first month following the date
on which the Agent and the Banks shall have received the financial statements
relating to the last day of the relevant fiscal quarter pursuant to Section
5.1(b) hereof. If financial statements of the Borrower necessary to establish
the appropriate Commitment Fee Percentage hereunder are not received by the
Agent and the Banks with respect to the relevant fiscal quarter on or prior to
the date required pursuant to Section 5.1(b) hereof, the applicable Commitment
Fee Percentage shall be determined as if Level IV Status were in effect and such
Level IV Status shall remain in effect until the first day of the first month
following the date on which the required financial statements are received by
the Agent and the Banks:
COMMITMENT FEE
PERCENTAGE
Level I Status .25%
Level II Status .25%
Level III Status .30%
Level IV Status .40%
"Commitment Letter" means that certain commitment letter dated
July 22, 1999 between Norwest and the Borrower, as the same may be amended or
modified from time to time.
"Covenant Computation Date" means the last day of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending on September
30, 1999.
"Covenant Computation Period" means the twelve (12)
consecutive calendar months immediately preceding and ending on a Covenant
Computation Date.
"Debt" of any Person means, without duplication (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes, reimbursement agreements, recourse
agreements or other similar instruments, (c) all obligations of such Person to
pay the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (d) all Capitalized Lease
Liabilities of such Person, (e) all debt of others secured by a lien on any
asset of such Person, whether or not such debt is assumed by such Person, (f)
all debt of others guaranteed by such other Person, (g) all obligations of such
Person to pay a specified purchase price for goods or services, whether or not
delivered or accepted (i.e., take-or-pay
E-4 Exhibit 10(i)
and similar obligations), (h) all obligations of such Person under any interest
rate swap program or any similar agreement, arrangement or undertaking relating
to fluctuations in interest rates and (i) all obligations of such Person to
advance funds to, or purchase assets, property or services from, any other
Person in order to maintain the financial condition of such Person and (j) all
obligations of such Person under a letter of credit reimbursement agreement with
respect to letters of credit issued thereunder.
"Default" means an event that, with giving of notice or
passage of time or both, would constitute an Event of Default.
"Default Percentage" means, as to any Bank, a fraction
determined as of the termination of the Revolving Commitments following the
occurrence of an Event of Default, the numerator of which equals the principal
amount of all Obligations owed to such Bank on such date and the denominator of
which equals the principal amount of all Obligations owed to all Banks on such
date.
"Default Rate" shall have the meaning specified in Section
2.7(c).
"EBITDA" of a Person means, with respect to the applicable
Covenant Computation Period, such Person's Pre-Tax Earnings plus its Interest
Expense and Non-Cash Charges.
"Environmental Laws" has the meaning specified in Section
4.12.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Eurodollar Advance" means any Advance which bears interest at
a rate determined by reference to a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to an Interest
Period, the rate per annum equal to the rate (rounded up if necessary to the
nearest one-sixteenth of one percent (1/16%)) determined by the Agent in
accordance with Section 2.6 to be a rate at which U.S. dollar deposits are
offered to major banks in the London interbank eurodollar market for funds to be
made available on the first day of such Interest Period and maturing at the end
of such Interest Period, as determined by the Agent between the opening of
business and 12:00 Noon, Minneapolis, Minnesota time, on the second Business Day
prior to the beginning of such Interest Period.
"Eurodollar Funding" means any Funding which bears interest at
a rate determined by reference to a Eurodollar Rate, including Eurodollar
Advances.
"Eurodollar Rate" means, with respect to an Interest Period,
the rate obtained by adding (a) the applicable Margin to (b) the rate obtained
by dividing (i) the applicable Eurodollar Base Rate by (ii) a percentage equal
to one (1.00) minus the applicable percentage
E-5 Exhibit 10(i)
(expressed as a decimal) prescribed by the Board of Governors of the Federal
Reserve System (or any successor thereto) for determining the maximum reserve
requirements applicable to eurodollar fundings (currently referred to as
"Eurocurrency Liabilities" in Regulation D) or any other maximum reserve
requirements applicable to a member bank of the Federal Reserve System with
respect to such eurodollar fundings.
"Event of Default" has the meaning specified in Section 7.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Facility" means the Revolving Facility or the Term Facility,
as the context requires.
"Federal Funds Rate" means at any time an interest rate per
annum equal to the weighted average of the rates for overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day for such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it; it
being understood that the Federal Funds Rate for any day which is not a Business
Day shall be the Federal Funds Rate for the next preceding Business Day.
"Floating Rate" means an annual rate at all times equal to the
sum of (a) the Base Rate and (b) the applicable Margin, which Floating Rate
shall change when and as the Base Rate changes.
"Floating Rate Advance" means any Advance which bears interest
at a rate determined by reference to the Floating Rate.
"Floating Rate Funding" means any Funding which bears interest
at a rate determined by reference to the Floating Rate, including Floating Rate
Advances.
"Funded Debt" of any Person means all interest bearing Debt of
such Person, and shall include all interest-bearing Debt created, assumed or
guaranteed by such Person either directly or indirectly, including obligations
secured by liens upon property of such Person and upon which such Person
customarily pays the interest, and all Capitalized Lease Liabilities.
"Funding" means a designated portion of outstanding principal
indebtedness evidenced by a Note which bears interest at a rate determined by
reference to a particular Eurodollar Rate or Floating Rate, as the case may be.
"GAAP" means generally accepted accounting principles as in
effect from time to time applied on a basis consistent with the accounting
practices applied in the financial statements of the Borrower and its
Subsidiaries referred to in Section 4.5.
E-6 Exhibit 10(i)
"Guarantor" means Innovex Precision Components, Innovex
Southwest and each and every other domestic Subsidiary of the Borrower having
assets with an aggregate fair market value at any time in excess of $200,000 and
each and every domestic Subsidiary of a Subsidiary of the Borrower having assets
with an aggregate fair market value at any time in excess of $200,000, whether
now existing or hereafter created or acquired.
"Guarantor Security Agreement" or "Guarantor Security
Agreements" means the security agreement of a Guarantor, or all of the security
agreements of the Guarantors, collectively, as the context may require.
"Guaranty" or "Guaranties" means the guaranty of a Guarantor,
or all of the guaranties of the Guarantors, collectively, as the context may
require.
"Hazardous Substance" means any asbestos, urea-formaldehyde,
polychlorinated biphenyls, nuclear fuel or material, chemical waste, radioactive
material, explosives, known carcinogens, petroleum products and by-products and
other dangerous, toxic or hazardous pollutants, contaminants, chemicals,
materials or substances listed or identified in, or regulated by, any
Environmental Laws.
"Indemnitees" has the meaning specified in Section 9.5.
"Innovex Precision Components" means Innovex Precision
Components, Inc., a Minnesota corporation, a wholly-owned Subsidiary of the
Borrower.
"Innovex Southwest" means Innovex Southwest, Inc., a Delaware
corporation, a wholly-owned Subsidiary of the Borrower, formerly known as ADFlex
Solutions, Inc., a Delaware corporation, which is the surviving entity following
the merger of Innovex Acquisition Corp., a Delaware corporation, and ADFlex
Solutions, Inc., a Delaware corporation.
"Interest Coverage Ratio" of any Person means, with respect to
the applicable Covenant Computation Period, the ratio of (a) such Person's Cash
Flow Available for Interest to (b) such Person's Interest Expense, plus such
Person's rental expense with respect to operating leases.
"Interest Expense" of any Person means, with respect to the
applicable Covenant Computation Period, the total gross interest expense on all
Debt of such Person during such period, and shall in any event include, without
limitation and without duplication, (a) accrued interest (whether or not paid)
on all Debt, (b) the amortization of Debt discounts, (c) the amortization of all
fees payable in connection with the incurrence of Debt to the extent included in
interest expense, and (d) the interest portion of any Capitalized Lease
Expenditure (determined in accordance with GAAP).
"Interest Period" means, relative to any Eurodollar Funding,
the period beginning on (and including) the date on which such Eurodollar
Funding is made, or
E-7 Exhibit 10(i)
continued as, or converted into, a Eurodollar Funding pursuant to Sections 2.3,
2.4 or 2.5 and shall end on (but exclude) the day which numerically corresponds
to such date one (1), two (2), three (3) or six (6) months thereafter (or, if
such month has no numerically corresponding day, on the last Business Day of
such month), as the Borrower may select in its relevant notice pursuant to
Sections 2.3, 2.4, or 2.5; provided, however, that:
(a) no more than five (5) different Interest Periods may be
outstanding at any one time with respect to a Facility;
(b) if an Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a month, in which case such Interest Period shall
end on the next preceding Business Day);
(c) no Interest Period applicable to a Funding for a Facility
may end later than the applicable Maturity Date for such Facility; and
(d) in no event shall the Borrower select Interest Periods
with respect to Fundings under the Term Facility which, in the
aggregate, would require payment of funding losses under Section 2.18
in order to make payments of regularly scheduled installments of
principal under such Facility.
"Inventory" means all inventory of the Borrower, as such term
is defined in the UCC, whether now owned or hereafter acquired, whether
consisting of whole goods, spare parts or components, supplies or materials,
whether acquired, held or furnished for sale, for lease or under service
contracts or for manufacture or processing, and wherever located.
"Lessor's Agreement" means a Landlord's Disclaimer and Consent
entered into by a Person leasing real estate to the Borrower or a Guarantor
pursuant to which such Person makes certain agreements for the benefit of the
Agent and the Banks with respect to the locations covered thereby.
"Level I Status" means that period of time during which the
Borrower's Leverage Ratio is less than or equal to 1.75 to 1.00.
"Level II Status" means that period of time during which the
Borrower's Leverage Ratio is greater than 1.75 to 1.00, but less than or equal
to 2.25 to 1.00.
"Level III Status" means that period of time during which the
Borrower's Leverage Ratio is greater than 2.25 to 1.00, but less than or equal
to 2.75 to 1.00.
"Level IV Status" means that period of time during which the
Borrower's Leverage Ratio is greater than 2.75 to 1.00.
E-8 Exhibit 10(i)
"Leverage Ratio" of any Person means, with respect to the
applicable Covenant Computation Date, the ratio of (a) such Person's Funded Debt
to (b) such Person's EBITDA.
"Loan Documents" means this Agreement, the Notes and the
Security Documents.
"Margin" means, with respect to computation of the applicable
interest rate on Fundings under a Facility, the increment payable by the
Borrower with respect thereto, as set forth and described in the table below,
calculated according to the Borrower's then applicable Status; provided,
however, that (i) notwithstanding the table set forth below, during the period
from the Closing Date through March 31, 2000, the applicable Margin on Fundings
under the Revolving Facility shall be 0% for Floating Rate Advances and shall be
1.25% for Eurodollar Rate Advances, (ii) notwithstanding the table set forth
below, during the period from the Closing Date through March 31, 2000, the
applicable Margin on Fundings under the Term Facility shall be 0% for Floating
Rate Advances and shall be 1.25% for Eurodollar Rate Advances, and (iii) for all
periods from and after April 1, 2000, any adjustment in the applicable Margin
shall not become effective until the first day of the first month following the
date on which the Agent and the Banks shall have received the financial
statements relating to the last day of the relevant fiscal quarter pursuant to
Section 5.1(b) hereof. If financial statements of the Borrower necessary to
establish the appropriate Margin hereunder are not received by the Agent and the
Banks with respect to the relevant fiscal quarter on or prior to the date
required pursuant to Section 5.1(b) hereof, the applicable Margin shall be
determined as if Level IV Status were in effect and such Level IV Status shall
remain in effect until the first day of the first month following the date on
which the required financial statements are received by the Agent and the Banks:
MARGIN FOR MARGIN FOR
REVOLVING FACILITY TERM FACILITY
FUNDINGS FUNDINGS
Floating Rate Eurodollar Rate Floating Rate Eurodollar Rate
Level I Status 0% 1.25% 0% 1.25%
Level II Status 0% 1.50% 0% 1.50%
Level III Status 0% 1.75% 0% 1.75%
Level IV Status .25% 2.00% .25% 2.00%
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
E-9 Exhibit 10(i)
(a) the business, financial condition, operations or prospects
of the Borrower and/or any of its Subsidiaries;
(b) the ability of the Borrower or any of its Subsidiaries to
perform its obligations under any Loan Document to which it is a party;
(c) the validity, enforceability or collectibility of any Loan
Document; or
(d) the status, existence, perfection, priority or
enforceability of any lien or security interest granted to the Banks
pursuant to the Loan Documents.
"Maturity Date" means (a) September 15, 2004 with respect to
the Revolving Facility and (b) September 15, 2004 with respect to the Term
Facility.
"Net Income" of a Person means, with respect to the applicable
Covenant Computation Period, such Person's after-tax net income as determined in
accordance with GAAP, before any extraordinary or non-recurring items.
"Net Worth" of any Person means, with respect to the
applicable Covenant Computation Date, the aggregate capital and retained
earnings of such Person, as determined in accordance with GAAP.
"Non-Cash Charges" of a Person means, with respect to the
applicable Covenant Computation Period, such Person's depreciation,
amortization, deferred taxes and other non-cash charges which have the effect of
reducing Pre-Tax Earnings or Net Income, as the case may be, all as determined
in accordance with GAAP.
"Norwest" has the meaning specified in the preamble.
"Note" or "Notes" means a Revolving Note or a Term Note, or
all such Notes, collectively, as the context may require.
"Obligations" means each and every Debt, liability and other
obligation of every type and description arising under or in connection with any
of the Loan Documents which the Borrower may now or at any time hereafter owe to
a Bank or to the Banks or to the Agent, whether such debt, liability or
obligation now exists or is hereafter created or incurred, whether it is direct
or indirect, due or to become due, absolute or contingent, primary or secondary,
liquidated or unliquidated, or sole, joint, several or joint and several, and
including specifically, but not limited to, all indebtedness, liabilities and
obligations of the Borrower arising under this Agreement or evidenced by the
Notes.
"Origination Fee" has the meaning specified in Section
2.12(a).
"Outstanding Obligations" means, as of the date of
determination, the outstanding principal amount of all Obligations.
E-10 Exhibit 10(i)
"Payee" has the meaning specified in Section 2.16.
"Percentage" means, with respect to a Facility and as to any
Bank, the percentage set forth opposite such Bank's signature on the execution
pages of this Agreement, or below such Bank's signature on any Assignment
Certificate executed by such Bank, in relation to such Facility, representing
the ratio of such Bank's Revolving Commitment or Term Commitment, as the case
may be, to the Revolving Commitment Amount or Term Commitment Amount,
respectively.
"Permitted Liens" has the meaning specified in Section 6.1.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" means an employee benefit plan maintained for employees
of the Borrower or any of its Subsidiaries and covered by Title IV of ERISA.
"Pre-Tax Earnings" of any Person means, with respect to the
applicable Covenant Computation Period, such Person's Net Income, plus any
provision for income taxes, plus any extraordinary or non-cash loss or expense
paid or incurred by such Person, less any extraordinary, non-operating and
non-cash income claimed or earned by such Person, all as determined in
accordance with GAAP.
"Prime Rate" means the rate of interest publicly announced
from time to time by the Agent as its "base rate" or "prime rate", or, if the
Agent ceases to announce a rate so designated, any similar successor rate
designated by the Agent. The Prime Rate is not necessarily the most favored rate
of the Agent and the Agent may lend to its customers at rates that are at, above
or below the Prime Rate.
"Reportable Event" has the meaning assigned to that term in
Title IV of ERISA, but does not include any such event for which advance
notification to the Pension Benefit Security Corporation is waived under ERISA
or applicable regulations.
"Required Banks" means, at any time, two or more of the Banks
holding at least sixty-six and sixty-seven hundredths percent (66.67%) of the
Commitments, or, if the Commitments have been terminated or have expired, two or
more of the Banks having at least sixty-six and sixty-seven hundredths percent
(66.67%) of the Outstanding Obligations.
"Required Net Worth Amount" has the meaning specified in
Section 5.11.
"Required Payment" has the meaning specified in Section
2.15(c).
"Return" has the meaning specified in Section 2.17(b)(i).
E-11 Exhibit 10(i)
"Revolving Advance" means a loan of funds by a Bank to the
Borrower under the Revolving Facility, including both Floating Rate Advances and
Eurodollar Advances made thereunder.
"Revolving Commitment" means, with respect to each Bank, the
amount of the Revolving Commitment set forth opposite such Bank's name on the
execution pages of this Agreement, or below such Bank's signature on an
Assignment Certificate executed by such Bank, unless such amount is reduced
pursuant to Section 2.14(a) hereof, in which event it means the amount to which
said amount is reduced pursuant thereto, or as the context may require, the
obligation of such Bank to make Revolving Advances, as contemplated in Section
2.1.
"Revolving Commitment Amount" shall mean Fifteen Million
Dollars ($15,000,000), being the maximum amount of the Revolving Commitments of
all Banks, in the aggregate, to make Revolving Advances to the Borrower pursuant
to Section 2.1, subject to reduction in accordance with Section 2.14(a).
"Revolving Commitment Termination Date" means the earlier of
(a) the Maturity Date with respect to the Revolving Facility or (b) the date on
which the Revolving Commitments are terminated pursuant to Section 7.2 or
reduced to zero pursuant to Section 2.15(a).
"Revolving Facility" means the revolving credit facility being
made available to the Borrower by the Banks pursuant to Section 2.1.
"Revolving Facility Outstanding Amount" means, as of the date
of determination, the aggregate principal amount of all outstanding Revolving
Advances.
"Revolving Note" means a promissory note of the Borrower
payable to a Bank in the amount of such Bank's Revolving Commitment, in
substantially the form of Exhibit A (as such promissory note may be amended,
extended or otherwise modified from time to time), evidencing the aggregate
indebtedness of the Borrower to such Bank resulting from such Bank's Percentage
of each Borrowing under the Revolving Facility, and also means each promissory
note accepted by such Bank from time to time in substitution therefor or in
renewal thereof.
"Security Agreement" means the Security Agreement of the
Borrower of even date herewith pursuant to which the Borrower grants the Banks a
security interest in all personal property assets of the Borrower to secure
payment of the Obligations.
"Security Documents" means the Security Agreement and the
Guarantor Security Agreements, as amended from time to time, and each and every
additional agreement entered into by the Borrower and/or any Guarantor for the
benefit of the Banks to secure payment of the Obligations.
E-12 Exhibit 10(i)
"Status" means the financial condition of the Borrower
determined in accordance with the definitions of "Level I Status," "Level II
Status", "Level III Status" and "Level IV Status".
"Subsidiary" of a Person means any corporation, limited
liability company, partnership or other entity of which more than fifty percent
(50%) of the outstanding equity or membership interests or shares of capital
stock having general voting power under ordinary circumstances to elect a
majority of the board of directors (or other governing body) of such entity,
(irrespective of whether or not at the time stock or membership interests of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person.
"Taxes" has the meaning specified in Section 2.16.
"Term Advance" means a loan of funds by a Bank to the Borrower
under the Term Facility, including both Floating Rate Advances and Eurodollar
Advances thereunder.
"Term Commitment" means, with respect to each Bank, the amount
of the Term Commitment set forth opposite such Bank's name on the execution
pages of this Agreement, or below such Bank's signature on an Assignment
Certificate, or as the context may require, the obligation of such Bank to make
Term Advances to the Borrower under Section 2.2 hereof.
"Term Commitment Amount" means Twenty-Five Million Dollars
($25,000,000), being the maximum amount of the Term Commitments of all Banks, in
the aggregate, to make Term Advances to the Borrower pursuant to Section 2.2.
"Term Facility" means the term loan facility being made
available to the Borrower by the Banks pursuant to Section 2.2.
"Term Note" means a promissory note of the Borrower payable to
a Bank in the amount of such Bank's Term Commitment, in substantially the form
of Exhibit B (as such promissory note may be amended, extended or otherwise
modified from time to time), evidencing the aggregate indebtedness of the
Borrower to such Bank resulting from such Bank's Percentage of the Term
Facility, and also means each other promissory note accepted from time to time
in substitution therefor or in renewal thereof.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the state designated in Section 9.7 (a) as the state whose laws shall
govern this Agreement, or in any other state whose laws are held to govern this
Agreement or any portion hereof.
"Year 2000 Compliant" has the meaning specified in Section
5.8.
E-13 Exhibit 10(i)
ARTICLE II
CREDIT FACILITIES
Section 2.1. Commitment as to Revolving Facility. Each Bank
hereby agrees, on the terms and subject to the conditions herein set forth, to
make Revolving Advances to the Borrower from time to time during the period from
the date hereof to and including the Revolving Commitment Termination Date, in
an aggregate amount at any time outstanding not to exceed such Bank's Percentage
of each Borrowing from time to time requested by the Borrower under the
Revolving Facility; provided, however, that (a) the Revolving Facility
Outstanding Amount shall at no time exceed the Revolving Commitment Amount and
(b) no Bank's Percentage of the Revolving Facility Outstanding Amount shall at
any time exceed such Bank's Revolving Commitment. Within the above limits, the
Borrower may obtain Revolving Advances, prepay Revolving Advances in accordance
with the terms hereof and reborrow Revolving Advances in accordance with the
applicable terms and conditions of this Article II.
Section 2.2. Commitment as to Term Facility. Each Bank hereby
agrees, on the terms and subject to the conditions herein set forth, to make a
single Term Advance to the Borrower on the Closing Date in an amount equal to
such Bank's Term Commitment. The Term Facility is not a revolving facility and,
once the initial Term Advance is made by a Bank, such Bank shall have no further
obligation to make any additional Term Advances to the Borrower under the Term
Facility, whether or not any amounts are repaid thereunder.
Section 2.3. Procedures for Borrowing Under the Revolving
Facility. Each Borrowing under the Revolving Facility shall be funded by the
Banks as either Floating Rate Advances or Eurodollar Advances, as the Borrower
shall specify in the related notice of proposed Borrowing. Floating Rate
Advances and Eurodollar Advances may be outstanding at the same time. It is
understood, however, that (i) in the case of a Borrowing which is to bear
interest at a Floating Rate, the principal amount of the Borrowing shall be in
an amount equal to or greater than $500,000 or a higher integral multiple of
$100,000 and (ii) in the case of a Borrowing which is to bear interest at a
Eurodollar Rate, the principal amount of the Borrowing shall be in an amount
equal to $1,000,000 or a higher integral multiple of $100,000. The Borrower
shall give notice to the Agent of each proposed Borrowing not later than 10:30
a.m., Minneapolis, Minnesota time, on a Business Day which, in the case of a
Borrowing that is to bear interest initially at a Floating Rate, is the proposed
date of such Borrowing or, in the case of a Borrowing that is to bear interest
initially at a Eurodollar Rate, is at least two (2) Business Days prior to the
proposed date of such Borrowing. Each such notice shall be effective upon
receipt by the Agent, shall be in writing or by telephone or telecopy
transmission, to be confirmed in writing by the Borrower if so requested by the
Agent (in the form of Exhibit C), and shall specify whether the Borrowing is to
bear interest initially at a Floating Rate or a Eurodollar Rate, and in the case
of a Borrowing that is to bear interest initially at a Eurodollar Rate, shall
specify the Interest Period to be applicable thereto. Promptly upon receipt of
such notice (but in no event later than 12:00 Noon,
E-14 Exhibit 10(i)
Minneapolis, Minnesota time, with respect to a Floating Rate Advance, and the
close of business, with respect to a Eurodollar Advance, in each case on the
Business Day of receipt of such notice), the Agent shall advise each Bank of the
proposed Borrowing. At or before 2:00 p.m., Minneapolis, Minnesota time, on the
date of the requested Borrowing, each Bank shall provide the Agent at the
principal office of the Agent in Minneapolis, Minnesota with immediately
available funds covering such Bank's Percentage of such Borrowing. Subject to
satisfaction of the conditions precedent set forth in Article III with respect
to such Borrowing, the Agent shall pay over such funds to the Borrower prior to
the close of business on the date of the requested Borrowing.
Section 2.4. Converting Floating Rate Fundings to Eurodollar
Fundings; Procedures. So long as no Default or Event of Default shall exist, the
Borrower may convert all or any part of any outstanding Floating Rate Funding
into a Eurodollar Funding by giving notice to the Agent of such conversion not
later than 10:30 a.m., Minneapolis, Minnesota time, on a Business Day which is
at least two (2) Business Days prior to the date of the requested conversion.
Each such notice shall be irrevocable, shall be effective upon receipt by the
Agent, shall be in writing or by telephone or telecopy transmission, to be
confirmed in writing by the Borrower if so requested by the Agent (in the form
of Exhibit D), shall specify the date and amount of such conversion, the total
amount of the Funding to be so converted and the Interest Period therefor. Each
conversion of a Funding shall be on a Business Day, and the aggregate amount of
each such conversion of a Floating Rate Funding to a Eurodollar Funding shall be
in an amount equal to $1,000,000 or a higher integral multiple of $100,000.
Section 2.5. Procedures at End of an Interest Period. Unless
the Borrower requests a new Eurodollar Funding in accordance with the procedures
set forth below, or prepays the principal of an outstanding Eurodollar Funding
at the expiration of an Interest Period, each Bank shall automatically and
without request of the Borrower convert each Eurodollar Funding to a Floating
Rate Funding on the last day of the relevant Interest Period. So long as no
Default or Event of Default shall exist, the Borrower may cause all or any part
of any outstanding Eurodollar Funding to continue to bear interest at a
Eurodollar Rate after the end of the then applicable Interest Period by
notifying the Agent not later than 10:30 a.m., Minneapolis, Minnesota time, on a
Business Day which is at least two (2) Business Days prior to the first day of
the new Interest Period. Each such notice shall be in writing or by telephone or
telecopy transmission, to be confirmed in writing by the Borrower if so
requested by the Agent (in the form of Exhibit E), shall be irrevocable,
effective when received by the Agent, and shall specify the first day of the
applicable Interest Period, the amount of the expiring Eurodollar Funding to be
continued and the Interest Period therefor. Each new Interest Period shall begin
on a Business Day and the amount of each Funding bearing a new Eurodollar Rate
shall be in an amount equal to $1,000,000 or a higher integral multiple of
$100,000.
Section 2.6. Setting and Notice of Rates. The applicable
Eurodollar Rate for each Interest Period shall be determined by the Agent on the
second Business Day prior to
E-15 Exhibit 10(i)
the beginning of such Interest Period, whereupon notice thereof (which may be by
telephone) shall be given by the Agent to the Borrower and each Bank. Each such
determination of the applicable Eurodollar Rate shall be conclusive and binding
upon the parties hereto, in the absence of demonstrable error. The Agent, upon
written request of the Borrower or any Bank, shall deliver to the Borrower or
such requesting Bank a statement showing the computations used by the Agent in
determining the applicable Eurodollar Rate hereunder.
Section 2.7. Interest on Obligations. The Borrower hereby
agrees to pay interest on the unpaid principal amount of each unpaid Obligation
for the period commencing on the date of this Agreement until the unpaid
principal amount thereof is paid in full, in accordance with the following:
(a) Floating Rate Fundings. Subject to subsection (c) below,
while any outstanding principal of a Note constitutes a Floating Rate
Funding, the outstanding principal balance thereof shall bear interest
at an annual rate at all times equal to the Floating Rate applicable to
such Floating Rate Funding.
(b) Eurodollar Fundings. Subject to subsection (c) below,
while any outstanding principal of a Note constitutes a Eurodollar
Funding, the outstanding principal balance thereof shall bear interest
for the applicable Interest Period at an annual rate equal to the
Eurodollar Rate established with respect such Eurodollar Funding in
accordance with Section 2.3, 2.4 or 2.5 hereof.
(c) Default Rate. From and after the occurrence of an Event of
Default and continuing thereafter until such Event of Default shall be
remedied to the written satisfaction of the Required Banks, the
outstanding principal balance of each Note shall bear interest, until
paid in full, at a rate equal to the sum of (i) the interest rate
otherwise in effect with respect to such outstanding principal and (ii)
two percent (2%). In addition, all fees, indemnification obligations
and other Obligations not paid when due hereunder shall bear interest,
until paid in full, at an annual rate equal to the sum of (i) the
Floating Rate (with the then applicable Revolving Facility Margin) and
(ii) two percent (2%) (each rate described in this subsection (c)
herein a "Default Rate").
Section 2.8. Obligation to Repay Advances; Representations.
The Borrower shall be obligated to repay all Advances under this Article II
notwithstanding the failure of the Agent to receive any written request therefor
or written confirmation thereof and notwithstanding the fact that the person
requesting the same was not in fact authorized to do so. Any request for a
Borrowing under Section 2.3, whether written, telephonic, telecopy or otherwise,
shall be deemed to be a representation by the Borrower that (a) the amount of
the requested Borrowing, when added to the Revolving Facility Outstanding
Amount, would not exceed the Revolving Commitment Amount and (b) the statements
set forth in Section 3.2 are correct as of the time of the request.
E-16 Exhibit 10(i)
Section 2.9. Notes; Amortization.
(a) Revolving Facility. All Revolving Advances made by a Bank
hereunder shall be evidenced by and repayable in accordance with a
Revolving Note issued by the Borrower to such Bank. The aggregate
unpaid principal amount of each Revolving Note shall bear interest at
the applicable Floating Rate unless a Eurodollar Rate shall become
applicable thereto pursuant to Sections 2.3, 2.4 or 2.5, and shall be
payable on the applicable Maturity Date with respect thereto or earlier
in accordance with Section 7.2.
(b) Term Facility. All Term Advances made by a Bank hereunder
shall be evidenced by and repayable in accordance with a Term Note
issued by the Borrower to such Bank. The aggregate unpaid principal
amount of each Term Note shall bear interest at the applicable Floating
Rate unless a Eurodollar Rate shall become applicable thereto pursuant
to Sections 2.3, 2.4 or 2.5, shall be payable in quarterly
installments, commencing on October 1, 2000, and continuing on the
first day of each January, April, July and October thereafter until the
final Maturity Date, when all unpaid principal thereof shall be finally
due and payable. Principal due with respect to the Term Facility on
each such quarterly installment date shall be in an aggregate amount of
One Million Five Hundred Sixty-Two Thousand Five Hundred Dollars
($1,562,500). In addition to the required quarterly installments of
principal on the Term Note described above, in the event that the
Borrower or any Subsidiary sells the stock of any Subsidiary or the
Borrower and/or its Subsidiaries sell any assets (other than the sale
of Inventory in the ordinary course of business) or the Borrower and/or
its Subsidiaries engage in any similar transactions which result in net
cash proceeds received by the Borrower and/or its Subsidiaries and the
aggregate amount of net cash proceeds received by the Borrower and/or
its Subsidiaries from all such sales and transactions in any fiscal
year of the Borrower exceed $5,000,000, then, on the last day of the
fiscal quarter in which such net cash proceeds for such fiscal year
exceeds $5,000,000 and on the last day of each subsequent fiscal
quarter of such fiscal year in which such net cash proceeds are
received, the Borrower shall make a prepayment of the unpaid principal
balance of the Term Note in an amount equal to one hundred percent
(100%) of such net cash proceeds in excess of such $5,000,000 annual
amount. Any mandatory prepayment of the Term Note occasioned by any
such sale of stock, assets or other similar transactions shall be in
addition to the required quarterly installments of principal of the
Term Note and shall be applied against such remaining quarterly
installments of principal of the Term Note in inverse order of their
maturity. The Borrower acknowledges that Article VI of this Agreement
contains provisions which restrict the ability of the Borrower and its
Subsidiaries to sell stock, to sell assets and to engage in similar
transactions without the prior written consent of the Required Banks
and the Borrower acknowledges that it must obtain such prior written
consent before engaging in any restricted sale or similar transaction.
E-17 Exhibit 10(i)
Section 2.10. Interest Due Dates. Accrued interest on each
Eurodollar Funding shall be payable on the last day of the Interest Period
relating to such Eurodollar Funding; provided, however, that if any Interest
Period is longer than three (3) months, interest shall be payable in arrears (3)
three months, or a whole multiple thereof, after the first day of such Interest
Period and on the last day of the Interest Period. Accrued interest on each
Floating Rate Funding shall be payable in arrears on the last day of each
calendar quarter and at maturity or conversion of such Floating Rate Funding to
a Eurodollar Funding.
Section 2.11. Computation of Interest and Fees. Interest
accruing on the Notes and all other fees described in Section 2.13 shall be
computed on the basis of actual number of days elapsed in a year of three
hundred sixty (360) days.
Section 2.12. Fees. The Borrower hereby agrees to pay fees to
the Agent and the Banks, commencing on the date hereof and continuing until all
Obligations are paid in full, in accordance with the following:
(a) Origination Fee. The Borrower agrees to pay to the Agent a
non-refundable origination fee (the "Origination Fee") in accordance
with the fee letter between the Borrower and the Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Agent
for the pro rata account of the Banks a commitment fee (the "Commitment
Fee") computed at the rate of the applicable Commitment Fee Percentage
per annum on the daily average amount by which the Revolving Commitment
Amount exceeds the Revolving Facility Outstanding Amount, from the
Closing Date to and including the Revolving Commitment Termination
Date, payable quarterly in arrears on the last day of each September,
December, March and June, commencing September 30, 1999. Any such
Commitment Fee remaining unpaid on the Revolving Commitment Termination
Date shall be due and payable on such date. The Commitment Fee shall be
shared by the Banks on the basis of their respective Percentages of the
Revolving Facility.
(c) Administrative Fee. The Borrower agrees to pay the Agent,
for the Agent's sole account, an annual administrative fee (the
"Administrative Fee") equal to the greater of (A) $2,500 or (B) $2,500
plus the product of (x) $2,500 and (y) the number of Banks (other than
the Agent) which are a party to this Agreement, from the first
anniversary of the Closing Date until the date on which the Commitments
are terminated and all of the Notes are paid in full, payable in
advance, with the first annual Administrative Fee being due and payable
on the first anniversary of the Closing Date and with subsequent
Administrative Fees being due and payable on each anniversary of such
date thereafter. The Administrative Fee shall be adjusted (on an
annualized basis) from time to time over the course of a year if and to
the extent Banks are added to or deleted from this Agreement.
E-18 Exhibit 10(i)
(d) Audit Fees. Following the occurrence of an Event of
Default, the Borrower agrees to pay to the Agent, on written demand,
reasonable fees charged by the Agent in connection with any audits or
inspections by the Agent (or by the employees, agents, consultants or
auditors of the Agent) of any Collateral or the operations or
businesses of the Borrower and its Subsidiaries, together with actual
out-of-pocket costs and expenses incurred in conducting any such audit
or inspection.
Section 2.13. Use of Proceeds. The Proceeds of each Borrowing
under the Revolving Facility shall be used by the Borrower solely for its
working capital purposes. The Proceeds of the Term Facility shall be used by the
Borrower to finance a portion of the purchase price paid by the Borrower for the
acquisition of Innovex Southwest.
Section 2.14. Voluntary Reduction or Termination of the
Commitments; Prepayments.
(a) Reduction or Termination of Revolving Commitments. The
Borrower, from time to time upon not less than five (5) Business Days'
prior written notice to the Agent, may permanently reduce the Revolving
Commitment Amount; provided, however, that no such reduction shall
reduce the Revolving Commitment Amount to an amount less than the
Revolving Facility Outstanding Amount. Any such voluntary reduction
shall be pro rata as to all Revolving Commitments according to each
Bank's Percentage of the Revolving Facility and shall be in an
aggregate amount equal to $5,000,000 or a higher integral multiple of
$1,000,000. The Borrower at any time prior to the Revolving Commitment
Termination Date may terminate the Revolving Commitments by (i)
providing to the Agent not less than five (5) Business Days prior
written notice of its intention to so terminate the Revolving
Commitments and (ii) making payment in full of all principal and
interest on the Revolving Notes.
(b) Prepayments. The Borrower from time to time may
voluntarily prepay the Notes in whole or in part. In the event of any
voluntary prepayment hereunder (i) any prepayment of a Facility shall
be applied against outstanding Advances of each Bank under that
Facility pro rata according to each Bank's Percentage of that Facility,
(ii) each prepayment of the Notes shall be made to the Agent not later
than 12:00 Noon, Minneapolis, Minnesota time, on a Business Day, and
funds received after that hour shall be deemed to have been received by
the Agent on the next following Business Day, (iii) each partial
prepayment of Fundings which, at the time of such prepayment, bear
interest at a Eurodollar Rate shall be accompanied by accrued interest
on such partial prepayment through the date of prepayment and
additional compensation calculated in accordance with Section 2.18,
(iv) each partial prepayment of Fundings with respect to a Facility
which, at the time of such prepayment, bear interest at a Eurodollar
Rate, shall be in an aggregate amount equal to the applicable minimum
Funding amount specified in Section 2.5 for such Facility and, after
application of any such prepayment, shall not result in a Eurodollar
Funding remaining outstanding in an amount less than such minimum
Funding amount, (v)
E-19 Exhibit 10(i)
each partial prepayment of Fundings with respect to a Facility which,
at the time of such prepayment, bear interest at a Floating Rate, shall
be in an aggregate amount equal to $500,000 or a higher integral
multiple of $100,000, unless (in either case) the aggregate outstanding
balance of all Notes under the Facility being prepaid is less than such
minimum Funding amount, in which event any such prepayment may be in
such lesser amount, (vi) unless notified by the Borrower in writing to
the contrary, the Agent shall apply all partial prepayments to
outstanding Revolving Advances and, if no Revolving Advances are then
outstanding, to outstanding Term Advances and (vii) each partial
prepayment of the Term Facility shall be applied to principal
installments becoming due under such Facility in inverse order of their
respective maturities.
Section 2.15. Payments.
(a) Making of Payments. All payments of principal of and
interest due with respect to a Facility shall be made to the Agent for
the account of the Banks pro rata according to their respective
Percentages of such Facility; provided, that any such payments so
received by the Agent after the termination of the Revolving
Commitments following the occurrence of an Event of Default hereunder
shall be allocated among the Banks pro rata according to their Default
Percentages. All payments of fees pursuant to Section 2.12 shall be
made to the Agent (i) for the account of the Agent as to all amounts
specified in Section 2.12 as payable for the exclusive account of the
Agent and (ii) for the account of the Banks pro rata according to their
respective Percentages as to all fees specified in Section 2.12 as
payable for the account of the Banks. All payments to the Agent shall
be made to the Agent at its office in Minneapolis, Minnesota, not later
than 12:00 Noon, Minneapolis, Minnesota time, on the date due, in
immediately available funds, and funds received after that hour shall
be deemed to have been received by the Agent on the next following
Business Day. The Borrower hereby authorizes the Agent to charge the
Borrower's demand deposit account maintained with the Agent (or with
any other Bank) for the amount of any Obligation on its due date, but
the Agent's failure to so charge any such account shall in no way
affect the obligation of the Borrower to make any such payment. The
Agent shall remit to each Bank in immediately available funds on the
same Business Day as received by the Agent its share of all such
payments received by the Agent for the account of such Bank. If the
Agent fails to remit any payment to any Bank when required hereby, the
Agent shall pay interest on demand to that Bank for each day during the
period commencing on the date such remittance was due until the date
such remittance is made at an annual rate equal to the Federal Funds
Rate for such day. All payments under Section 2.16, 2.17 or 2.18 shall
be made by the Borrower directly to the Bank entitled thereto.
(b) Effect of Payments. Each payment by the Borrower to the
Agent for the account of any Bank pursuant to Section 2.15(a) shall be
deemed to constitute payment by the Borrower directly to such Bank,
provided, however, that in the event
E-20 Exhibit 10(i)
any such payment by the Borrower to the Agent is required to be
returned to the Borrower for any reason whatsoever, then the Borrower's
obligation to such Bank with respect to such payment shall be deemed to
be automatically reinstated.
(c) Distributions by Agent. Unless the Agent shall have been
notified by a Bank or the Borrower prior to the date on which such Bank
or the Borrower is scheduled to make payment to the Agent of (in the
case of a Bank) the proceeds of an Advance to be made by it hereunder
or (in the case of the Borrower) a payment to the Agent for the account
of one or more of the Banks hereunder (such payment by a Bank or the
Borrower (as the case may be) being herein called a "Required
Payment"), which notice shall be effective upon receipt, that it does
not intend to make the Required Payment to the Agent, the Agent may
assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date and, if
such Bank or the Borrower (as the case may be) has not in fact made the
Required Payment to the Agent, the recipient(s) of such payment shall,
on demand, repay to the Agent the amount so made available together
with interest thereon for each day during the period commencing on the
date such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate (i) equal to the Federal Funds
Rate for such day, in the case of a Required Payment owing by a Bank,
or (ii) equal to the applicable rate of interest as provided in this
Agreement, in the case of a Required Payment owing by the Borrower.
(d) Setoff. The Borrower agrees that each Bank, subject to
such Bank's sharing obligations set forth in Section 8.6, shall have
all rights of setoff and bankers' lien provided by applicable law, and
in addition thereto, the Borrower agrees that if at any time any
Obligation is due and owing by the Borrower under this Agreement or the
other Loan Documents to any Bank at a time when an Event of Default has
occurred and is continuing hereunder, any Bank may apply any and all
balances, credits, and deposits, accounts or moneys of the Borrower
then or thereafter in the possession of such Bank (excluding, however,
any trust or escrow accounts held by the Borrower for the benefit of
any third party) to the payment thereof.
(e) Due Date Extension. If any payment of principal of or
interest on any Floating Rate Funding or any fees payable hereunder
falls due on a day which is not a Business Day, then such due date
shall be extended to the next following Business Day, and (in the case
of principal) additional interest shall accrue and be payable for the
period of such extension.
(f) Application of Payments. Except as otherwise provided
herein, so long as no Default or Event of Default has occurred and is
continuing hereunder, each payment received from the Borrower shall be
applied to such Obligation as the Borrower shall specify by notice to
be received by the Agent on or before the date of such payment, or in
the absence of such notice, as the Agent shall determine in its
E-21 Exhibit 10(i)
discretion. Concurrently with each remittance to any Bank of its
appropriate share of any such payment (based upon such Bank's
Percentage of the Facility to which such payment relates), the Agent
shall advise such Bank as to the application of such payment. Except as
otherwise provided in Article VIII, after the termination of the
Revolving Commitments following the occurrence of a Default or Event of
Default, all payments received by the Agent or any Bank from the
Borrower shall be shared on the basis of each Bank's Default Percentage
thereof.
Section 2.16. Taxes. All payments made by the Borrower to the
Agent or any Bank (herein any "Payee") under or in connection with this
Agreement or the Notes shall be made without any setoff or other counterclaim,
and shall be free and clear of and without deduction for or on account of any
present or future taxes now or hereafter imposed by any governmental or other
authority, except to the extent that any such deduction or withholding is
compelled by law. As used herein, the term "Taxes" shall include all income,
excise and other taxes of whatever nature (other than taxes generally assessed
on the overall net income of a Payee by the government or other authority of the
country, state or political subdivision in which such Payee is incorporated or
in which the office through which such Payee is acting is located) as well as
all levies, imposts, duties, charges, or fees of whatever nature. "Taxes" shall
not include, however, any foreign withholding taxes or similar deductions
imposed solely as a result of a Bank's election to fund an Advance through a
foreign office of such Bank. If the Borrower is compelled by law to make any
deductions or withholdings on account of any Taxes (including any foreign
withholding) it will:
(a) pay to the relevant authorities the full amount required
to be so withheld or deducted;
(b) pay such additional amounts (including, without
limitation, any penalties, interest or expenses) as may be necessary in
order that the net amount received by the Payee after such deductions
or withholdings (including any required deduction or withholding on
such additional amounts) shall equal the amount the Payee would have
received had no such deductions or withholdings been made; and
(c) promptly forward to the Agent (for delivery to the
appropriate Payee) an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such authorities.
The amount that the Borrower shall be required to pay to any Payee pursuant to
the foregoing clause (b) shall be reduced, to the extent permitted by applicable
law, by the amount of any offsetting tax benefit which such Payee receives as
the result of the Borrower's payment to the relevant authorities as reasonably
determined by such Payee; provided, however, that if such Payee shall
subsequently determine that it has lost the benefit of all or a portion of such
tax benefit, the Borrower shall promptly remit to such Payee the amount
certified by such Payee to be the amount necessary to restore such Payee to the
position it would have been in if no payment had been made pursuant to this
sentence. If any Taxes otherwise payable by
E-22 Exhibit 10(i)
the Borrower pursuant to the foregoing are directly asserted against a Payee,
such Payee may pay such taxes and the Borrower promptly shall reimburse such
Payee to the full extent otherwise required under this Section 2.16. The
obligations of the Borrower under this Section 2.16 shall survive any
termination of this Agreement.
If circumstances arise in respect of any Bank which would, or
would upon the giving of notice, result in any liability of the Borrower under
this Section 2.16 then, without in any way limiting, reducing or otherwise
qualifying the Borrower's obligations under this Section 2.16 such Bank shall
promptly, upon becoming aware of the same, notify the Agent and the Borrower
thereof and shall, in consultation with the Agent and the Borrower and to the
extent that it can do so without, in its reasonable judgment, disadvantaging
itself, take such reasonable steps as may be available to it to mitigate the
effects of such circumstances (including, without limitation, the designation of
an alternate office or the transfer of its Eurodollar Fundings to another
office). If and so long as a Bank has been unable to take, or has not taken,
steps reasonably acceptable to the Borrower to mitigate the effect of the
circumstances in question, such Bank shall be obliged, at the request of the
Borrower, to assign all its rights and obligations hereunder to another Person
designated by the Borrower with the approval of the Agent (which shall not be
unreasonably withheld) which is willing to participate in the Revolving Facility
in place of such Bank; provided that such Person satisfies all of the
requirements of this Agreement, including, but not limited to, providing the
forms and documents required by Section 8.14 and any such Person shall cover all
costs incurred in connection with effecting such replacement.
Section 2.17. Increased Costs; Capital Adequacy; Funding
Exceptions.
(a) Increased Costs on Eurodollar Advances. If Regulation D of
the Board of Governors of the Federal Reserve System or after the date
of this Agreement the adoption of any applicable law, rule or
regulation, or any change in any existing law, 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 a Bank with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall:
(i) subject a Bank to or cause the withdrawal or
termination of any exemption previously granted to a Bank with
respect to, any tax, duty or other charge with respect to its
Eurodollar Fundings or its obligation to make Eurodollar
Fundings, or shall change the basis of taxation of payments to
a Bank of the principal of or interest under this Agreement in
respect of its Eurodollar Fundings or its obligation to make
Eurodollar Fundings (except for changes in the rate of tax on
the overall net income of a Bank imposed by the jurisdictions
in which a Bank's principal executive office is located); or
E-23 Exhibit 10(i)
(ii) impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System, but
excluding any reserve included in the determination of
interest rates pursuant to Section 2.6), special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, a Bank; or
(iii) impose on a Bank any other condition affecting
its making, maintaining or funding of its Eurodollar Fundings
or its obligation to make Eurodollar Fundings;
and the result of any of the foregoing is to increase the cost to an
affected Bank of making or maintaining any Eurodollar Funding, or to
reduce the amount of any sum received or receivable by such Bank under
this Agreement or under its Notes with respect to a Eurodollar Funding,
then the affected Bank will notify the Borrower and the Agent of such
increased cost and within fifteen (15) days after demand by such Bank
(which demand shall be accompanied by a statement setting forth the
basis of such demand) the Borrower shall pay to such Bank such
additional amount or amounts as will compensate the Bank for such
increased cost or such reduction; provided, however, that no such
increased cost or such reduction shall be payable by the Borrower for
any period longer than forty-five (45) days prior to the date on which
notice thereof is delivered to the Borrower. Each Bank will promptly
notify the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation
pursuant to this Section 2.17. If the Borrower receives notice from a
Bank of any event which will entitle such Bank to compensation pursuant
to this Section 2.17 the Borrower may prepay any then outstanding
Eurodollar Fundings or notify the affected Bank that any pending
request for a Eurodollar Funding shall be deemed to be a request for a
Floating Rate Funding, in each case subject to the provisions of
Section 2.18.
(b) Capital Adequacy. If a Bank determines at any time that
such Bank's Return has been reduced as a result of any Capital Adequacy
Rule Change, such Bank may require the Borrower to pay to such Bank the
amount necessary to restore such Bank's Return to what it would have
been had there been no Capital Adequacy Rule Change. For purposes of
this Section 2.17b), the following definitions shall apply:
(i) "Return", for any calendar quarter or shorter
period, means the percentage determined by dividing (A) the
sum of interest and ongoing fees earned by a Bank under this
Agreement during such period by (B) the average capital such
Bank is required to maintain during such period as a result of
its being a party to this Agreement, as determined by such
Bank based upon its total capital requirements and a
reasonable attribution formula that takes account of the
Capital Adequacy Rules then in effect. Return may be
calculated for a Bank for each calendar quarter and for the
shorter period
E-24 Exhibit 10(i)
between the end of a calendar quarter and the date of
termination in whole of this Agreement.
(ii) "Capital Adequacy Rule" means any law, rule,
regulation or guideline regarding capital adequacy that
applies to a Bank, or the interpretation thereof by any
governmental or regulatory authority. Capital Adequacy Rules
include rules requiring financial institutions to maintain
total capital in amounts based upon percentages of outstanding
loans, binding loan commitments and letters of credit.
(iii) "Capital Adequacy Rule Change" means any change
in any Capital Adequacy Rule occurring after the date of this
Agreement, but does not include any changes in applicable
requirements that at the date hereof are scheduled to take
place under the existing Capital Adequacy Rules or any
increases in the capital that a Bank is required to maintain
to the extent that the increases are required due to a
regulatory authority's assessment of such Bank's financial
condition.
The initial notice sent by a Bank shall be sent as promptly as
practicable after such Bank learns that its Return has been reduced,
shall include a demand for payment of the amount necessary to restore
such Bank's Return for the quarter in which the notice is sent, and
shall state in reasonable detail the cause for the reduction in such
Bank's Return and such Bank's calculation of the amount of such
reduction. Thereafter, a Bank may send a new notice during each
calendar quarter setting forth the calculation of the reduced Return
for that quarter and including a demand for payment of the amount
necessary to restore such Bank's Return for that quarter. A Bank's
calculation in any such notice shall be conclusive and binding absent
demonstrable error.
(c) Basis for Determining Interest Rate Inadequate or Unfair.
If with respect to any Interest Period:
(i) the Agent determines that, or the Required Banks
determine and advise the Agent that, deposits in U.S. dollars
(in the applicable amounts) are not being offered in the
London interbank eurodollar market for such Interest Period;
or
(ii) the Agent otherwise determines, or the Required
Banks determine and advise the Agent (which determination
shall be binding and conclusive on all parties), that by
reason of circumstances affecting the London interbank
eurodollar market adequate and reasonable means do not exist
for ascertaining the applicable Eurodollar Rate; or
E-25 Exhibit 10(i)
(iii) the Agent determines, or the Required Banks
determine and advise the Agent, that the Eurodollar Rate as
determined by the Agent will not adequately and fairly reflect
the cost to the Banks of maintaining or funding a Eurodollar
Funding for such Interest Period, or that the making or
funding of Eurodollar Fundings has become impracticable as a
result of an event occurring after the date of this Agreement
which in the opinion of such Banks materially affects such
Eurodollar Fundings;
then the Agent shall promptly notify the affected parties and (A) in
the event of any occurrence described in the foregoing clause (i) the
Borrower shall enter into good faith negotiations with each affected
Bank in order to determine an alternate method to determine the
Eurodollar Rate for such Bank, and during the pendency of such
negotiations with any Bank, such Bank shall be under no obligation to
make any new Eurodollar Fundings, and (B) in the event of any
occurrence described in the foregoing clauses (ii) or (iii), for so
long as such circumstances shall continue, no Bank shall be under any
obligation to make any new Eurodollar Fundings.
(d) Illegality. In the event that any change in (including the
adoption of any new) applicable laws or regulations, or any change in
the interpretation of applicable laws or regulations by any
governmental authority, central bank, comparable agency or any other
regulatory body charged with the interpretation, implementation or
administration thereof, or compliance by a Bank with any request or
directive (whether or not having the force of law) of any such
authority, central bank, comparable agency or other regulatory body,
should make it or, in the good faith judgment of the affected Bank,
shall raise a substantial question as to whether it is unlawful for
such Bank to make, maintain or fund Eurodollar Fundings, then (i) the
affected Bank shall promptly notify the Borrower and the Agent, (ii)
the obligation of the affected Bank to make, maintain or convert into
Eurodollar Fundings shall, upon the effectiveness of such event, be
suspended for the duration of such unlawfulness, and (iii) for the
duration of such unlawfulness, any notice by the Borrower pursuant to
Sections 2.3, 2.4 or 2.5 requesting the affected Bank to make or
convert into Eurodollar Fundings shall be construed as a request to
make or to continue making Floating Rate Fundings.
(e) Procedures to Mitigate. If circumstances arise in respect
of any Bank which would or would upon the giving of notice result in
any liability of the Borrower under this Section 2.17 then, without in
any way limiting, reducing or otherwise qualifying the Borrower's
obligations under this Section 2.17, such Bank shall promptly, upon
becoming aware of the same, notify the Agent and the Borrower thereof
and shall, in consultation with the Agent and the Borrower and to the
extent that it can do so without, in its reasonable judgment,
disadvantaging itself, take such reasonable steps as may be available
to it to mitigate the effects of such circumstances (including, without
limitation, the designation of an alternate office or the transfer of
E-26 Exhibit 10(i)
its Eurodollar Fundings to another office). If and so long as a Bank
has been unable to take, or has not taken, steps reasonably acceptable
to the Borrower to mitigate the effect of the circumstances in
question, such Bank shall be obliged, at the request of the Borrower,
to assign all its rights and obligations hereunder to another Person
designated by the Borrower with the approval of the Agent (which shall
not be unreasonably withheld) and willing to participate in the
Revolving Facility in place of such Bank; provided that such Person
satisfies all of the requirements of this Agreement, including, but not
limited to, providing the forms and documents required by Section 8.14
and any such Person shall cover all costs incurred in connection with
effecting such replacement.
Section 2.18. Funding Losses. The Borrower hereby agrees that
upon demand by any Bank (which demand shall be accompanied by a statement
setting forth the basis for the calculations of the amount being claimed) the
Borrower will indemnify such Bank against any loss or expense which such Bank
may have sustained or incurred (including, without limitation, any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain Eurodollar Fundings) or
which such Bank may be deemed to have sustained or incurred, as reasonably
determined by such Bank, (i) as a consequence of any failure by the Borrower to
make any payment when due of any amount due hereunder in connection with any
Eurodollar Fundings, (ii) due to any failure of the Borrower to borrow or
convert any Eurodollar Fundings on a date specified therefor in a notice thereof
or (iii) due to any payment or prepayment of any Eurodollar Funding on a date
other than the last day of the applicable Interest Period for such Eurodollar
Funding. For this purpose, all notices under Sections 2.3, 2.4 and 2.5 shall be
deemed to be irrevocable.
Section 2.19. Right of Banks to Fund through Other Offices.
Each Bank, if it so elects, may fulfill its agreements hereunder with respect to
any Eurodollar Funding by causing a foreign branch or affiliate of such Bank to
make such Eurodollar Funding; provided, that in such event the obligation of the
Borrower to repay such Eurodollar Funding shall nevertheless be to such Bank and
such Eurodollar Funding shall be deemed held by such Bank for the account of
such branch or affiliate.
Section 2.20. Discretion of Banks as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Bank shall
be entitled to fund and maintain all or any part of its Eurodollar Fundings in
any manner it deems fit, it being understood, however, that for the purposes of
this Agreement (specifically including, without limitation, Section 2.18 hereof)
all determinations hereunder shall be made as if each Bank had actually funded
and maintained each Eurodollar Funding during each Interest Period for such
Eurodollar Funding through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to the
appropriate Eurodollar Rate for such Interest Period.
E-27 Exhibit 10(i)
Section 2.21. Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of a Bank pursuant to Section 2.16,
2.17, or 2.18 shall be conclusive absent demonstrable error. Each Bank may use
reasonable averaging and attribution methods in determining compensation
pursuant to such Sections 2.16, 2.17 or 2.18 and the provisions of Sections
2.16, 2.17 and 2.18 shall survive termination of this Agreement.
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions Precedent to the Initial Advance. The
obligation of the Banks to fund the initial Advances is subject to the condition
precedent that the Agent shall have received the following, each in form and
substance satisfactory to the Agent:
(a) The Notes, properly executed on behalf of the Borrower.
(b) The Guaranties, each properly executed on behalf of the
appropriate Guarantor.
(c) The Security Documents, properly executed on behalf of the
Borrower and the Guarantors.
(d) Financing statements sufficient when filed to perfect the
security interests granted under the Security Documents, to the extent
such security interests are capable of being perfected by filing.
(e) A true and correct copy of the lease between Innovex
Southwest and TL Properties, Inc. pursuant to which Innovex Southwest
is leasing the facilities in which it operates in Chandler, Arizona,
together with Lessor's Agreement in which TL Properties, Inc. disclaims
any interest in the Collateral and grants the Agent and the Banks
certain rights, properly executed by TL Properties, Inc.
(f) Current searches of appropriate filing offices showing
that no state or federal tax liens have been filed and remain in effect
against the Borrower or any of its Subsidiaries (including, without
limitation, against Innovex Southwest (under its current and past
names)), and that no financing statements or other notifications or
filings have been filed and remain in effect against the Borrower or
any of its Subsidiaries (including, without limitation, against Innovex
Southwest (under its current and past names)), other than those for
which the Agent has received an appropriate release, termination or
satisfaction or those permitted in accordance with Section 6.1.
E-28 Exhibit 10(i)
(g) A certified copy of the resolutions of the board of
directors of the Borrower and each Guarantor evidencing approval of all
Loan Documents to which the Borrower or such Guarantor is a party and
the other matters contemplated hereby.
(h) Copies of the Articles of Incorporation and Bylaws of the
Borrower and each Guarantor (including evidence of the merger of
Innovex Acquisition Corp. into ADFlex Solutions, Inc., with ADFlex
Solutions, Inc. as the surviving entity and the name change of ADFlex
Solutions, Inc. to Innovex Southwest, Inc.), certified by the Secretary
or Assistant Secretary of the Borrower and such Guarantor as being true
and correct copies thereof.
(i) A certificate of good standing of the Borrower and each
Guarantor, dated not more than thirty (30) days prior to the date
hereof, and evidence satisfactory to the Agent that the Borrower and
each Guarantor is qualified to conduct its business in each state where
it presently conducts such business if failure to obtain any such
qualification or licensing would have a Material Adverse Effect.
(j) A signed copy of a certificate of the Secretary or an
Assistant Secretary of the Borrower and each Guarantor which shall
certify the names of the officers of the Borrower and each Guarantor
authorized to sign the Loan Documents and the other documents or
certificates to be delivered pursuant to this Agreement, including
requests for Advances and Eurodollar Fundings, together with the true
signatures of such officers. The Agent and each Bank may conclusively
rely on such certificates until they shall receive a further
certificate of the Secretary or an Assistant Secretary of the Borrower
and each Guarantor canceling or amending the prior certificate and
submitting the signatures of the officers named in such further
certificate.
(k) Certificates of the insurance required under the Security
Documents, naming the Agent, as collateral agent for all Banks, as loss
payee thereunder, together with an acceptable lender's loss payable
endorsement.
(l) Audited financial statements acceptable to the Banks for
the period ended September 30, 1998 for the Borrower and for the period
ended December 27, 1998 for ADFlex Solutions, Inc. and unaudited
financial statements for the period ended March 31, 1999 for the
Borrower and for the period ended March 28, 1999 for ADFlex Solutions,
Inc. and the pro forma financial statements entitled "Project Canyon"
and "Canyon and Lake Combined" prepared by the Borrower.
(m) A signed copy of an opinion of counsel for the Borrower
and the Guarantors, addressed to the Banks.
(n) Payment of all fees and expenses then due and payable
pursuant to Sections 2.12 and 9.4 hereof.
E-29 Exhibit 10(i)
(o) A UCC Release (or a payoff letter acceptable to the Agent)
relating to UCC Filing No. 922456 filed with the Arizona Secretary of
State, properly executed by the secured party thereunder.
(p) Such other items as the Agent or the Required Banks shall
reasonably require.
Section 3.2. Conditions Precedent to All Advances. The
obligation of the Banks to make each Advance shall be subject to the further
conditions precedent that on such date:
(a) the representations and warranties contained in Article IV
hereof are correct in all material respects on and as of the date of
such Advance as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result
from such Advance, which constitutes a Default or an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks as follows:
Section 4.1. Corporate Existence and Power; Name; Chief
Executive Office. The Borrower and each of its Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under the laws of its
respective state of incorporation, and is duly licensed or qualified to transact
business in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such licensing or
qualification necessary and where failure to obtain such licensing or
qualification would have a Material Adverse Effect. The Borrower and each of its
Subsidiaries has all requisite power and authority, corporate or otherwise, to
conduct its business, to own its properties and to execute and deliver, and to
perform all of its obligations under, the Loan Documents. Within the last twelve
(12) months, the Borrower and each of its Subsidiaries has done business solely
under the names set forth in Schedule 4.1 hereto. The chief executive office and
principal place of business of the Borrower and each of its Subsidiaries is
located at the address set forth in Schedule 4.1 hereto, and all of Borrower's
records relating to its businesses are kept at that location.
Section 4.2. Authorization for Borrowings; No Conflict as to
Law or Agreements. The execution, delivery and performance by the Borrower and
each of its Subsidiaries of the Loan Documents to which it is a party, and the
Advances from time to time obtained hereunder, have been duly authorized by all
necessary corporate action and do not and will not (i) require any consent or
approval which has not been obtained prior to the
E-30 Exhibit 10(i)
date hereof, (ii) require any authorization, consent or approval by, or
registration, declaration or filing (other than filing of financing statements
as contemplated hereunder) with, or notice to, any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, or
any third party, except such authorization, consent, approval, registration,
declaration, filing or notice as has been obtained, accomplished or given prior
to the date hereof, (iii) violate any provision of any law, rule or regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System) or of any order, writ, injunction or decree presently in
effect having applicability to the Borrower or any of its Subsidiaries or of the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries, (iv) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other material
agreement, lease or instrument to which the Borrower or any of its Subsidiaries
is a party or by which it or its properties may be bound or affected, or (v)
result in, or require, the creation or imposition of any mortgage, deed of
trust, pledge, lien, security interest or other charge or encumbrance of any
nature upon or with respect to any of the properties now owned or hereafter
acquired by the Borrower or other organizational documents (other than as
required hereunder in favor of the Banks).
Section 4.3. Legal Agreements. Each of the Loan Documents to
which the Borrower or any of its Subsidiaries is a party constitutes the legal,
valid and binding obligations and agreements of the Borrower or such Subsidiary,
as applicable, enforceable against the Borrower or such Subsidiary, as
applicable, in accordance its terms, except to the extent that enforcement
thereof may be limited by an applicable bankruptcy, insolvency or similar laws
now or hereafter in effect affecting creditors' rights generally and by general
principles of equity.
Section 4.4. Subsidiaries. All Subsidiaries of the Borrower
are set forth and described in Schedule 4.4.
Section 4.5. Financial Condition; No Adverse Change. The
Borrower has heretofore furnished to the Agent audited consolidated financial
statements of the Borrower and its Subsidiaries for its fiscal year ended
September 30, 1998, and unaudited financial statements of the Borrower and its
Subsidiaries for the period ended March 31, 1999, and those statements fairly
present the financial condition of the Borrower and its Subsidiaries on the
dates thereof and the results of operations and cash flows for the periods then
ended (subject to year-end audit adjustments) and were prepared in accordance
with GAAP. The Borrower has heretofore furnished to the Agent audited
consolidated financial statements of ADFlex Solutions, Inc. and its Subsidiaries
for its fiscal year ended December 27, 1998, and unaudited financial statements
of ADFlex Solutions, Inc. and its Subsidiaries for the period ended March 28,
1999, and, to the best of the Borrower's knowledge, these statements fairly
present the financial condition of ADFlex Solutions, Inc. and its Subsidiaries
on the dates thereof and the results of operations and cash flows for the
periods then ended (subject to year-end audit adjustments) and were prepared in
accordance with GAAP. Since the date of
E-31 Exhibit 10(i)
the financial statements described above, there has not occurred any event or
circumstance that would have a Material Adverse Effect.
Section 4.6. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries or the properties of the
Borrower or any of its Subsidiaries before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to the Borrower or any of its Subsidiaries, could
reasonably be expected to have a Material Adverse Effect, except as set forth
and described in Schedule 4.6.
Section 4.7. Regulation U. Neither the Borrower nor any of its
Subsidiaries has engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
Section 4.8. Taxes. Except as set forth and described on
Schedule 4.8, the Borrower and each of its Subsidiaries has paid or caused to be
paid to the proper authorities when due all federal, state and local taxes
required to be withheld by it. The Borrower and each of its Subsidiaries has
filed all federal, state and local tax returns which to the knowledge of the
officers of the Borrower, are required to be filed, and the Borrower and each of
its Subsidiaries has paid or caused to be paid to the respective taxing
authorities all taxes as shown on said returns or on any assessment received by
it to the extent such taxes have become due, except (a) for any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested by the Borrower or any such Subsidiary, as applicable, in good faith
and by proper proceedings and for which the Borrower or any such Subsidiary, as
applicable, shall have set aside adequate reserves, and (b) as set forth and
described on Schedule 4.8.
Section 4.9. Titles and Liens. The Borrower or one of its
Subsidiaries has good and absolute title to all properties and assets reflected
in the latest consolidated balance sheet referred to in Section 4.5, free and
clear of all mortgages, security interests, liens and encumbrances, except for
(a) mortgages, security interests and liens permitted by Section 6.1, and (b)
covenants, restrictions, rights, easements and minor irregularities in title
which do not (i) materially interfere with the business or operations of the
Borrower and its Subsidiaries as presently conducted and (ii) materially impair
the value of the property to which they attach. In addition, no financing
statement naming the Borrower or any of its Subsidiaries (including, without
limitation, Innovex Southwest (under any of Innovex Southwest, Inc., Innovex
Acquisition Corp. or ADFlex Solutions, Inc.)) as debtor is on file in any office
except to perfect only security interests permitted by Section 6.1. Each patent,
trademark, copyright and other intellectual property interest having a fair
market value in excess of
E-32 Exhibit 10(i)
$200,000 in which the Borrower and/or any of its Subsidiaries has a legal or
equitable interest are set forth in Schedule 4.9 attached hereto.
Section 4.10. Plans. Except as set forth and described in
Schedule 4.10, neither the Borrower nor any of any Subsidiaries currently
maintains and has not in the past maintained any Plan. Neither the Borrower nor
any of its Subsidiaries has received any notice, nor has it received any
knowledge to the effect, that it is not in full compliance in all material
respects with any of the requirements of ERISA. No Reportable Event or other
fact or circumstance which would reasonably be expected to have an adverse
effect on the Plan's tax qualified status exists in connection with any Plan.
Neither the Borrower nor any of its Subsidiaries has:
(a) any accumulated funding deficiency within the meaning of
ERISA; or
(b) any liability or know of any fact or circumstances which
could result in any liability to the Pension Benefit Guaranty
Corporation, the Internal Revenue Service, the Department of Labor or
any participant in connection with any Plan (other than accrued
benefits which are or which may become payable to participants or
beneficiaries of any such Plan).
Section 4.11. Default. The Borrower and each of its
Subsidiaries is in compliance with all provisions of all agreements,
instruments, decrees and orders to which it is a party or by which it or its
property is bound or affected, the breach or default of which could reasonably
be expected to have a Material Adverse Effect.
Section 4.12. Environmental Compliance. The Borrower and each
of its Subsidiaries has obtained all permits, licenses and other authorizations
which are required under federal, state and local laws and regulations relating
to emissions, discharges, releases of pollutants, contaminants, hazardous or
toxic materials, or wastes into 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
or hazardous or toxic materials or wastes ("Environmental Laws") at the
facilities of the Borrower or any of its Subsidiaries or in connection with the
operation of such facilities. Except as disclosed in Schedule 4.12, the Borrower
and each of its Subsidiaries and all activities of the Borrower and each of its
Subsidiaries at its respective facilities comply with all Environmental Laws and
with all terms and conditions of any required permits, licenses and
authorizations applicable to the Borrower or any such Subsidiary with respect
thereto. Except as disclosed in Schedule 4.12, the Borrower and each of its
Subsidiaries is in compliance with all limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in Environmental Laws or contained in any plan, order, decree,
judgment or notice of which the Borrower or such Subsidiary is aware and with
respect to which noncompliance would have a Material Adverse Effect. Except as
disclosed in Schedule 4.12, the Borrower is not aware of, nor has the Borrower
received notice of, any events, conditions, circumstances, activities,
practices,
E-33 Exhibit 10(i)
incidents, actions or plans which may interfere with or prevent continued
compliance with, or which may give rise to any liability under, any
Environmental Laws.
Section 4.13. Submissions to Banks. All financial and other
information provided to the Agent or any Bank by or on behalf of the Borrower
and its Subsidiaries in connection with the Borrower's request for the credit
facilities contemplated hereby is true and correct in all material respects and,
as to projections, valuations or pro forma financial statements, present a good
faith opinion as of the date made as to such projections, valuations and pro
forma condition and results.
Section 4.14. Financial Solvency. Both before and after giving
effect to all of the transactions contemplated in the Loan Documents, the
Borrower:
(a) was and will not be insolvent, as that term is used and
defined in Section 101(32) of the United States Bankruptcy Code and
Section 2 of the Uniform Fraudulent Transfer Act;
(b) does not have unreasonably small capital and is not
engaged or about to engage in a business or a transaction for which any
remaining assets of the Borrower are unreasonably small;
(c) does not, by executing, delivering or performing its
obligations under the Loan Documents or by taking any action with
respect thereto, intend to, nor believe that it will, incur debts
beyond its ability to pay them as they mature;
(d) does not, by executing, delivering or performing its
obligations under the Loan Documents or by taking any action with
respect thereto, intend to hinder, delay or defraud either its present
or future creditors; and
(e) does not contemplate filing a petition in bankruptcy or
for an arrangement or reorganization or similar proceeding under any
law any jurisdiction or country, and, to the best knowledge of the
Borrower, is not the subject of any bankruptcy or insolvency
proceedings or similar proceedings under any law of any jurisdiction or
country threatened or pending against the Borrower.
ARTICLE V
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any Note shall remain unpaid or any Commitment
shall be outstanding, the Borrower will comply with the following requirements,
unless the Required Banks shall otherwise consent in writing:
E-34 Exhibit 10(i)
Section 5.1. Reporting Requirements. The Borrower will
deliver, or cause to be delivered, to each Bank each of the following, which
shall be in form and detail reasonably acceptable to the Required Banks:
(a) as soon as available, and in any event within ninety (90)
days after the end of each fiscal year of the Borrower, audited annual
financial statements of the Borrower and its Subsidiaries with the
unqualified opinion of independent certified public accountants
selected by the Borrower and acceptable to the Agent, which annual
financial statements shall include the balance sheets of the Borrower
and its Subsidiaries as at the end of such fiscal year and the related
statements of income, retained earnings and cash flows of the Borrower
and its Subsidiaries for the fiscal year then ended, prepared on a
consolidated and consolidating basis, all in reasonable detail and
prepared in accordance with GAAP, together with a certificate of the
chief financial officer of the Borrower, substantially in the form of
Exhibit F, stating that such financial statements have been prepared in
accordance with GAAP and whether or not such officer has knowledge of
the occurrence of any Default or Event of Default hereunder and, if so,
stating in reasonable detail the facts with respect thereto;
(b) as soon as available and in any event within forty-five
(45) days after the end of each fiscal quarter of the Borrower, an
unaudited/internal balance sheet and statement of income, cash flow and
retained earnings of the Borrower and its Subsidiaries as at the end of
and for such month and for the year-to-date period then ended, prepared
on a consolidated and consolidating basis, in reasonable detail and the
figures for the corresponding date and periods in the previous year,
all prepared in accordance with GAAP hereof, subject to year-end audit
adjustments; and accompanied by a certificate of the chief financial
officer of the Borrower, substantially in the form of Exhibit G,
stating (i) that such financial statements have been prepared in
accordance with GAAP, subject to year-end audit adjustments, (ii)
whether or not such officer has knowledge of the occurrence of any
Default or Event of Default hereunder not theretofore reported and
remedied and, if so, stating in reasonable detail the facts with
respect thereto, and (iii) all relevant facts in reasonable detail to
evidence, and the computations as to (A) the Status of the Borrower for
purposes of establishing the appropriate Margins and Commitment Fee
Percentage and (B) whether or not the Borrower is in compliance with
the requirements set forth in Sections 5.9 through 5.11 and 6.12;
(c) not later than thirty (30) days after the beginning of
each fiscal year of the Borrower, the projected balance sheets, income
statements, Capital Expenditures budget, and cash flow statements for
the Borrower and its Subsidiaries for each month of such year, each in
reasonable detail, representing the good faith projections of the
Borrower for each such month, and certified by the Borrower's chief
financial officer as being the most accurate projections available and
identical to the projections used
E-35 Exhibit 10(i)
by the Borrower for internal planning purposes, together with such
supporting schedules and information as the Agent from time to time may
reasonably request;
(d) immediately after the commencement thereof, notice in
writing of all uninsured litigation and of all proceedings before any
governmental or regulatory agency affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.6 or which (i) seek a
monetary recovery against the Borrower or any of its Subsidiaries in
excess of $1,000,000; or (ii) if determined adversely to the Borrower
or any of its Subsidiaries, could reasonably be expected to have a
Material Adverse Effect.
(e) as promptly as practicable (but in any event not later
than five (5) Business Days) after an officer of the Borrower obtains
knowledge of the occurrence of a Default or Event of Default hereunder,
notice of such occurrence, together with a detailed statement by a
responsible officer of the Borrower setting forth the steps being taken
by the Borrower to cure the effect of such Default or Event of Default;
(f) as soon as possible and in any event within thirty (30)
days after the Borrower knows or has reason to know that any Reportable
Event with respect to any Plan has occurred, the statement of the chief
financial officer of the Borrower setting forth details as to such
Reportable Event and the action which the Borrower proposes to take
with respect thereto, together with a copy of the notice of such
Reportable Event to the Pension Benefit Guaranty Corporation;
(g) as soon as possible, and in any event within ten (10) days
after the Borrower fails to make any quarterly contribution required
with respect to any Plan under Section 4.12(m) of the Internal Revenue
Code of 1986, as amended, the statement of the chief financial officer
of the Borrower setting forth details as to such failure and the action
which the Borrower proposes to take with respect thereto, together with
a copy of any notice of such failure required to be provided to the
Pension Benefit Guaranty Corporation;
(h) promptly upon obtaining knowledge thereof, notice of the
violation by the Borrower or any of its Subsidiaries of any law, rule
or regulation, the non-compliance with which could reasonably be
expected to have a Material Adverse Effect;
(i) promptly upon their distribution, copies of all financial
statements, reports, proxy statements and other communications which
the Borrower shall have sent to its stockholders;
(j) promptly after the sending or filing thereof, copies of
all regular and periodic financial reports which the Borrower shall
file with the Securities and Exchange Commission or any national
securities exchange; and
E-36 Exhibit 10(i)
(k) such other information respecting the financial conditions
and results of operation of the Borrower and/or any of its Subsidiaries
as the Agent or the Required Banks may from time to time reasonably
request.
Section 5.2. Books and Records; Inspection and Examination.
The Borrower will, and will cause each of its Subsidiaries to, keep accurate
books of record and account for itself pertaining its business and financial
condition and such other matters as the Agent may from time to time request in
which true and complete entries will be made in accordance with GAAP
consistently applied and, upon request of and reasonable notice by the Agent,
will permit any officer, employee, attorney or accountant for any Bank to audit,
review, make extracts from or copy any and all of its corporate and financial
books and records at all reasonable times during ordinary business hours and to
discuss its affairs with any of its directors, officers, employees or agents.
The Borrower will, and will cause each of its Subsidiaries to, permit any Bank
or its employees, accountants, attorneys or agents, to examine and inspect any
of its property at any time during ordinary business hours; provided, that each
Bank will use reasonable efforts to conduct (or have conducted) any such
examination or inspection so as to minimize disruptions to operations.
Section 5.3. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, (a) comply with the requirements of
applicable laws and regulations, the noncompliance with which would have a
Material Adverse Effect, (b) use and keep its assets, and will require that
others use and keep its assets, only for lawful purposes, without violation of
any federal, state or local law, statute or ordinance, the noncompliance with
which could reasonably be expected to have a Material Adverse Effect.
Section 5.4. Payment of Taxes and Other Claims. The Borrower
will pay or discharge, when due, and will cause each of its Subsidiaries to pay
or discharge, when due, (a) all taxes, assessments and governmental charges
levied or imposed upon it or upon its income or profits, upon any properties
belonging to it prior to the date on which penalties attach thereto, (b) all
federal, state and local taxes required to be withheld by it, and (c) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon any of its properties; provided, the Borrower and its
Subsidiaries shall not be required to pay any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside adequate reserves in accordance with GAAP.
Section 5.5. Maintenance of Properties. The Borrower will, and
will cause each of its Subsidiaries to, keep and maintain, all of its properties
necessary or useful in its business in good condition, repair and working order
(normal wear and tear excepted); provided, however, that nothing in this Section
5.5 shall prevent the Borrower or any of its Subsidiaries from discontinuing the
operation and maintenance of any of its properties if such discontinuance is, in
the reasonable judgment of the Borrower or such Subsidiary, as
E-37 Exhibit 10(i)
applicable, desirable in the conduct of the its business and not disadvantageous
in any material respect to the Banks. The Borrower and/or its Subsidiaries will
at all times own or hold a valid, irrevocable and exclusive license to use all
patents, trademarks, copyrights and other intellectual property interests which
are utilized in the operations of the Borrower and/or its Subsidiaries or which
are being developed by or on behalf of the Borrower and/or its Subsidiaries for
use in the operations of the Borrower and/or its Subsidiaries, including without
limitation those set forth on Schedule 4.9 attached hereto, and the Borrower
and/or its Subsidiaries will have the full and exclusive right to control and
manage all such intellectual property interests. The Borrower will, and will
cause each of its Subsidiaries to, protect, defend and maintain all such
intellectual property interests, including without limitation prosecution of all
patent, trademark and copyright applications and timely payment of all necessary
maintenance and other fees. The Borrower will promptly notify the Agent if the
Borrower and/or any of its Subsidiaries owns, creates or acquires any legal or
equitable interest in any patent, trademark, copyright or other intellectual
property interest having a fair market value in excess of $200,000. Upon request
of the Agent, the Borrower will, or will cause each of its Subsidiaries to,
execute and deliver to the Agent all such security agreements, financing
statements and other documents required by the Agent related to patents,
trademarks, copyrights and other intellectual property interests of the Borrower
and/or its Subsidiaries.
Section 5.6. Insurance. The Borrower will, and will cause each
of its Subsidiaries to, obtain and all times maintain, insurance with insurers
believed by it to be responsible and reputable in such amounts and against such
risks as is usually carried by companies engaged in similar business and owning
similar properties in the same general areas in which it operates. Without
limiting the foregoing, at all times the Borrower shall, and shall cause each of
its Subsidiaries to, keep all tangible Collateral insured against risks of fire
(including so-called extended coverage), theft, collision (in case of Collateral
consisting of motor vehicles) and such other risks and in such amounts as the
Agent may reasonably request, with lender's loss payable clauses or endorsements
in favor of the Agent as collateral agent on behalf of the Banks, in form
reasonably acceptable to the Agent (including, without limitation a provision
requiring at least thirty (30) days prior written notice to the Agent of any
cancellation or modification of such insurance) and, upon request of the Agent,
deliver policies or certificates of such insurance to the Agent.
Section 5.7. Preservation of Corporate Existence. The Borrower
will, and will cause each of its Subsidiaries to, preserve and maintain its
corporate existence and all of its rights, privileges and franchises necessary
or desirable in the normal conduct of its business and shall conduct its
business in an orderly, efficient and regular manner.
Section 5.8 Year 2000. The Borrower will, and will cause each
of its Subsidiaries to, proceed with reasonable diligence to evaluate all of the
data processing systems necessary to the conduct of its business (including
computer hardware, software and firmware, and including data processing systems
embedded within equipment) and will
E-38 Exhibit 10(i)
implement such hardware and software modifications and upgrades as may be
necessary for such systems to be Year 2000 Compliant, and all such systems shall
be Year 2000 Compliant, by no later than September 30, 1999. For purposes
hereof, "Year 2000 Compliant" means with respect to any data processing system,
(i) that such system accurately records, stores, processes and presents date
data with respect to dates on and after January 1, 2000 in the same manner, and
with substantially the same functionality, as such system records, stores,
processes and presents date data with respect to dates on and before December
31, 1999; and (ii) that such system accurately records, stores, processes and
presents date ranges beginning on or before December 31, 1999 and ending on or
after January 1, 2000, or occurring entirely on or after January 1, 2000, in the
same manner, and with substantially the same functionality, as such system
records, stores, processes and presents date ranges occurring entirely on or
before December 31, 1999.
Section 5.9. Interest Coverage Ratio. As of each Covenant
Computation Date, the Borrower will maintain its Interest Coverage Ratio at not
less than 1.75 to 1.00.
Section 5.10 Leverage Ratio. As of each Covenant Computation
Date, the Borrower will maintain its Leverage Ratio at not less than 3.00 to
1.00.
Section 5.11 Minimum Net Worth. As of each Covenant
Computation Date, the Borrower will maintain its Net Worth at an amount not less
than the amount set forth below opposite the applicable Covenant Computation
Date set forth below:
Applicable Covenant Minimum Net
Computation Date Worth Amount
---------------- ------------
Closing Date $91,850,000
September 30, 1999 and each Required Net Worth Amount
subsequent Covenant
Computation Date
As used in this Section 5.11, the "Required Net Worth Amount" for any given
Covenant Computation Date is an amount equal to the sum of the minimum Net Worth
required as of the immediately preceding Covenant Computation Date, plus
seventy-five percent (75%) of the Net Income realized by the Borrower since such
immediately preceding Covenant Computation Date (with any net loss counting as
zero in such calculation), plus one hundred percent (100%) of the net cash
proceeds received by the Borrower and/or its Subsidiaries from any equity
offering made by the Borrower and/or its Subsidiaries since such immediately
preceding Covenant Computation Date.
E-39 Exhibit 10(i)
ARTICLE VI
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Commitment
shall be outstanding, the Borrower will comply with the following requirements,
unless the Required Banks shall otherwise consent in writing:
Section 6.1. Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any mortgage, deed
of trust, pledge, lien, security interest, assignment or transfer upon or of any
assets of the Borrower or any of its Subsidiaries, now owned or hereafter
acquired, to secure any indebtedness; excluding from the operation of the
foregoing (herein "Permitted Liens"):
(a) mortgages, deeds of trust, pledges, liens, security
interests and assignments in existence on the date hereof and listed in
Schedule 6.1;
(b) liens for taxes or assessments or other governmental
charges to the extent not required to be paid by Section 5.4; and any
extension, renewal or replacement thereof (so long as such indebtedness
is not increased above the amount outstanding as of the date of any
such extension, renewal or replacement;
(c) materialmen's, merchants', carriers', worker's,
repairer's, or other like liens arising in the ordinary course of
business to the extent not required to be paid by Section 5.4;
(d) pledges or deposits to secure obligations under worker's
compensation laws, unemployment insurance and social security laws, or
to secure the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases or to secure statutory
obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of business;
(e) zoning restrictions, easements, licenses, restrictions on
the use of real property or minor irregularities in title thereto,
which do not materially impair the use of such property in the
operation of the business of the Borrower or its Subsidiaries or the
value of such property for the purpose of such business;
(f) liens and security interests granted to the Banks pursuant
to any of the Loan Documents; and
(g) purchase money mortgages, liens or security interests,
including conditional sale agreements or other title retention
agreements and leases which are in the nature of title retention
agreements, upon or in property acquired after the Closing Date by the
Borrower or its Subsidiaries, or mortgages, liens or security interests
existing in such property at the time of the acquisition thereof,
provided that:
E-40 Exhibit 10(i)
(i) no such mortgage, lien or security interest
extends or shall extend to or cover any property of the
Borrower or any of its Subsidiaries other than the property
then being acquired; and
(ii) the aggregate principal amount of the
indebtedness secured by any such mortgage, lien or security
interest shall not exceed the cost of such property so
acquired in connection therewith.
Section 6.2. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, incur, create, assume, permit or suffer to
exist, any indebtedness or liability on account of deposits or advances or any
indebtedness for borrowed money, or any other indebtedness or liability
evidenced by notes, bonds, debentures or similar obligations, except:
(a) Obligations arising hereunder;
(b) indebtedness in existence on the date hereof and listed in
Schedule 6.2; and
(c) Capitalized Lease Liabilities and indebtedness of the
Borrower or its Subsidiaries secured by security interests permitted by
Section 6.1(g) incurred after the Closing Date.
Section 6.3. Guaranties. The Borrower will not, and will not
permit any of its Subsidiaries to, assume, guarantee, endorse or otherwise
become directly or contingently liable in connection with any obligations of any
other Person, except:
(a) guaranties of the Obligations arising hereunder;
(b) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
and
(c) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons in
existence on the date hereof and listed in Schedule 6.3.
Section 6.4. Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase or hold beneficially any stock or
other securities or evidences of indebtedness of, make or permit to exist any
loans or advances to, or create or acquire any Subsidiary or make any investment
or acquire any interest whatsoever in, any other Person, except:
(a) investments in (i) direct obligations of the United States
of America or any agency or instrumentality thereof whose obligations
constitute the full faith and credit obligations of the United States
of America having a maturity of eighteen (18)
E-41 Exhibit 10(i)
months or less, (ii) bonds issued by states, state agencies or
municipalities which are rated "A-" or better by Standard & Poors
Corporation or "A3" or better by ▇▇▇▇▇'▇ Investors Service, (iii) bonds
issued by states, state agencies or municipalities which are rated
below "A-" by Standard & Poors Corporation or below "A3" by ▇▇▇▇▇'▇
Investors Service or which are unrated; provided, however, that
investments under this Section 6.4(a)(iii) will not at any time exceed
five percent (5%) of the Borrower's Net Worth, (iv) commercial paper
issued by a U.S. corporation rated "A-1" or "A-2" by Standard & Poors
Corporation or "P-1" or "P-2" by ▇▇▇▇▇'▇ Investors Service, (v) money
market mutual funds whose underlying assets are exclusively investments
which would otherwise be permitted investments under this Section
6.4(a), or (vi) repurchase agreements, certificates of deposit or
bankers' acceptances having a maturity of eighteen (18) months or less
issued by members of the Federal Reserve System having deposits in
excess of $500,000,000 (which certificates of deposit or bankers'
acceptances are fully insured by the Federal Deposit Insurance
Corporation);
(b) advances or loans to officers and employees of the
Borrower or its Subsidiaries not exceeding at any one time an aggregate
of $100,000; and
(c) advances in the form of progress payments, prepaid rent or
security deposits.
Section 6.5. Restricted Payments. The Borrower will not
declare or pay any dividends on any shares of any class of stock of the
Borrower, or directly or indirectly apply any assets to the redemption,
retirement, purchase or other acquisition of any shares of any class of stock of
the Borrower; provided, however, the Borrower may pay dividends on its stock so
long as prior to and immediately after giving effect to any such dividend no
Default or Event of Default shall exist.
Section 6.6. Sale or Transfer of Assets; Suspension of
Business Operations. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease, assign, transfer or otherwise dispose of all or a
substantial part of its assets (whether in one transaction or in a series of
transactions) to any other Person, other than the sale of Inventory in the
ordinary course of business, and will not liquidate, dissolve or suspend its
business operations.
Section 6.7. Consolidation and Merger; Asset Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, consolidate
with or merge into any Person, or permit any other Person to merge into it, or
acquire (in a transaction analogous in purpose or effect to a consolidation or
merger) all or substantially all the assets of any other Person, except for the
merger of any Subsidiary of the Borrower into the Borrower, provided the
Borrower survives as the sole remaining entity.
Section 6.8. Sale and Leaseback. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any arrangement, directly
or indirectly, with any other
E-42 Exhibit 10(i)
Person whereby the Borrower or any Subsidiary shall sell or transfer any real or
personal property, whether now owned or hereafter acquired, and then or
thereafter rent or lease as lessee such property or any part thereof or any
other property which the Borrower or any Subsidiary intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.
Section 6.9. Restrictions on Nature of Business. The Borrower
will not, and will not permit any of its Subsidiaries to, engage in any line of
business materially different from that in which it is presently engaged and
will not purchase, lease or otherwise acquire assets not related to its
business.
Section 6.10. Accounting. The Borrower will not, and will not
permit any of its Subsidiaries to, adopt any material change in accounting
principles, other than as required by GAAP, and will not adopt, permit or
consent to any change in its fiscal year.
Section 6.11. Hazardous Substances. The Borrower will not, and
will not permit any of its Subsidiaries to, cause or permit any Hazardous
Substances to be disposed of in any manner which might result in any material
liability to the Borrower or any Subsidiary, on, under or at any real property
which is operated by the Borrower or any Subsidiary or in which the Borrower or
any Subsidiary has any interest.
Section 6.12. Capital Expenditures. The Borrower will not, and
will not permit any of its Subsidiaries to, make Capital Expenditures during any
fiscal year, in an aggregate amount in excess of the amount set forth opposite
the applicable period below:
Maximum Aggregate Amount
of Capital Expenditures Fiscal Year
----------------------- -----------
$35,000,000 Fiscal Year Ended September 30, 2000
$25,000,000 Fiscal Year Ended September 30, 2001
$25,000,000 Fiscal Year Ended September 30, 2002
$20,000,000 Fiscal Year Ended September 30, 2003
$20,000,000 Fiscal Year Ended September 30, 2004
ARTICLE VII
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
Section 7.1. Events of Default. "Event of Default", wherever
used herein, means any one of the following events:
(a) default in the payment of any principal of any Note when
it becomes due and payable; or
E-43 Exhibit 10(i)
(b) default in the payment of any interest on any Note or any
fees, costs or expenses required to be paid by the Borrower or any
Guarantor under this Agreement or any other Loan Document and the
continuation of such default for more than five (5) calendar days; or
(c) default in the performance, or breach, of any covenant or
agreement on the part of the Borrower contained in Sections 5.8 through
5.11 or in Article VI; or
(d) default in the performance, or breach, of any covenant or
agreement of the Borrower in this Agreement (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere
in this Section 7.1 specifically dealt with) and the continuance of
such default or breach for a period of thirty (30) calendar days after
the Borrower has or should reasonably have had notice thereof; or
(e) default in the performance, or breach, of any covenant or
agreement of the Borrower or any Guarantor in any Loan Document other
than this Agreement (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 7.1
specifically dealt with) and the continuance of such default or breach
beyond the applicable period of grace, if any specified in such Loan
Document; or
(f) the Borrower or any of its Subsidiaries shall be or become
insolvent, or admit in writing its inability to pay its debts as they
mature, or make an assignment for the benefit of creditors; or the
Borrower or any of its Subsidiaries shall apply for or consent to the
appointment of any receiver, trustee, or similar officer for it or for
all or any substantial part of its property; or such receiver, trustee
or similar officer shall be appointed without the application or
consent of the Borrower or any such Subsidiary; or the Borrower or any
of its Subsidiaries shall institute (by petition, application, answer,
consent or otherwise) any insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceeding
relating to it under the laws of any jurisdiction; or any such
proceeding shall be instituted (by petition, application or otherwise)
against the Borrower or any of its Subsidiaries; or any judgment, writ,
warrant of attachment or execution or similar process shall be issued
or levied against a substantial part of the property of the Borrower or
any of its Subsidiaries and such judgment, writ, or similar process
shall not be released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(g) a petition naming the Borrower or any of its Subsidiaries
as debtor shall be filed under the United States Bankruptcy Code; or
(h) any representation or warranty made by the Borrower or any
of its Subsidiaries in any Loan Document or by the Borrower (or any of
its officers) in any request for a Borrowing, or in any other
certificate, instrument, or statement
E-44 Exhibit 10(i)
contemplated by or made or delivered pursuant to or in connection with
any Loan Document, shall prove to have been incorrect in any material
respect when made; or
(i) the rendering against the Borrower or any of its
Subsidiaries a final judgment, decree or order for the payment of money
in excess of $1,000,000 (unless the payment of such judgment is fully
insured) and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of thirty (30) consecutive
calendar days without a stay of execution; or
(j) a default under any bond, debenture, note, securitization
agreement or other evidence of indebtedness or similar obligation of
the Borrower or any of its Subsidiaries or under any indenture or other
instrument under which any such evidence of indebtedness or similar
obligation has been issued or by which it is governed and the
expiration of the applicable period of grace, if any, specified in such
evidence of indebtedness, indenture or other instrument; or
(k) any Reportable Event, which the Agent determines in good
faith could reasonably be expected to constitute grounds for the
termination of any Plan or for the appointment by the appropriate
United States District Court of a trustee to administer any Plan, shall
have occurred and be continuing thirty (30) days after written notice
to such effect shall have been given to the Borrower by the Agent; or
any Plan shall have been terminated (other than a standard termination
which is not reasonably expected to have a Material Adverse Effect), or
a trustee shall have been appointed by an appropriate United States
District Court to administer any Plan, or the Pension Benefit Guaranty
Corporation shall have instituted proceedings to terminate any Plan or
to appoint a trustee to administer any Plan; or
(l) the Borrower or any of its Subsidiaries shall liquidate,
dissolve, terminate or suspend its business operations or otherwise
fail to operate its business in the ordinary course, or shall sell all
or substantially all of its assets; or
(m) Any Guarantor shall repudiate, purport to revoke or fail
to perform any of such Guarantor's obligations under any Loan Document
to which such Guarantor is a party; or
(n) a Change of Control shall occur with respect to the
Borrower.
Section 7.2. Rights and Remedies. Upon the occurrence of an
Event of Default or at any time thereafter until such Event of Default is cured
or waived to the written satisfaction of the Required Banks, the Agent or the
Required Banks may (and, upon written request of the Required Banks the Agent
shall) exercise any or all of the following rights and remedies:
E-45 Exhibit 10(i)
(a) by notice to the Borrower, declare the Revolving
Commitments, the Term Commitments or all Commitments to be terminated,
whereupon the same shall forthwith terminate;
(b) by notice to the Borrower, declare the entire unpaid
principal amount of the Notes, all interest accrued and unpaid thereon,
and all other Obligations to be forthwith due and payable, whereupon
the Notes, all such accrued interest and all such other Obligations
shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower;
(c) without notice to the Borrower and without further action,
apply any and all monies owing by any Bank to the Borrower or to any
Subsidiary of the Borrower to the payment of the Notes, including
interest accrued thereon, and to payment to payment of all other
Obligations then owing by the Borrower;
(d) exercise and enforce the rights and remedies available to
the Banks or to any Bank under any Loan Document; and
(e) exercise any other rights and remedies available to the
Banks or to any Bank by law or agreement.
Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in Section 7.1(g) hereof, the entire unpaid principal amount of the
Notes, all interest accrued and unpaid thereon, and all other amounts payable
under this Agreement shall be immediately due and payable without presentment,
demand, protest or notice of any kind.
ARTICLE VIII
AGREEMENT AMONG BANKS AND AGENT
Section 8.1. Authorization; Powers; Agent for Collateral
Purposes. Each Bank irrevocably appoints and authorizes the Agent to act as
administrative agent for and on behalf of such Bank to the extent provided
herein, in any Loan Documents or in any other document or instrument delivered
hereunder or in connection herewith, and to take such other actions as may be
reasonably incidental thereto. The Agent agrees to act as administrative agent
for each Bank upon the express conditions contained in this Article VIII, but in
no event shall the Agent constitute a fiduciary of any Bank, nor shall the Agent
have any fiduciary responsibilities in respect of any Bank. In furtherance of
the foregoing, and not in limitation thereof, each Bank irrevocably (a)
authorizes the Agent to execute and deliver and perform those obligations under
each of the Loan Documents to which the Agent is a party as are specifically
delegated to the Agent, and to exercise all rights, powers and remedies as may
be specifically delegated hereunder or thereunder, together with such additional
powers as may be reasonably incidental thereto, (b) appoints the Agent as
nominal
E-46 Exhibit 10(i)
beneficiary or nominal secured party, as the case may be, under the Loan
Documents and all related UCC financing statements, and (c) authorizes the Agent
to act as agent of and for such Bank for purposes of holding, perfecting and
disposing of Collateral under the Loan Documents. As to any matters not
expressly provided for by the Loan Documents, 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 Banks or, if so required
pursuant to Section 9.2, upon the instructions of all Banks; provided, however,
that except for action expressly required of the Agent hereunder, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
unless it shall be indemnified to its satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action, and the Agent shall not in any event be
required to take any action which is contrary to the Loan Documents or
applicable law.
Section 8.2. Application of Proceeds. The Agent, after
deduction of any costs of collection, as provided in Section 8.5, shall remit to
each Bank (to the extent a Bank is to share therein) that Bank's pro rata share
of all payments of principal, interest and fees payable hereunder in accordance
with such Bank's appropriate Percentage with respect to the Facility under which
such payments are received; provided, however, that all payments received after
the termination of the Revolving Commitments following the occurrence of an
Event of Default, after application to the costs and expenses incurred by the
Agent or any Bank in collection thereof (as contemplated in Section 8.5), shall
be allocated to the Banks in accordance with their Default Percentages. Each
Bank's interest under the Loan Documents shall be payable solely from payments,
collections and proceeds actually received by the Agent under the Loan
Documents; and the Agent's only liability to a Bank with respect to any such
payments, collections and proceeds shall be to account for such Bank's
Percentage (or Default Percentage, as the case may be) of such payments,
collections and proceeds in accordance with this Agreement. If the Agent is
required for any reason to refund any such payments, collections or proceeds,
each Bank will refund to the Agent, upon demand, its Percentage (or Default
Percentage, as the case may be) of such payments, collections or proceeds,
together with its Percentage (or Default Percentage, as the case may be) of
interest or penalties, if any, payable by the Agent in connection with such
refund. If any Bank has wrongfully refused to fund its Percentage of any
Borrowing, or if the outstanding principal balance of the Advances made by any
Bank under a Facility is for any other reason less than its respective
Percentage of the aggregate principal balance of all Advances under that
Facility, the Agent may remit payments received by it to the other Banks until
such payments have reduced the aggregate amounts owed by the Borrower to the
extent that the aggregate amount of the Advances owing to such Bank hereunder
are equal to its Percentage of the aggregate amounts of the Advances owing under
the applicable Facility to all of the Banks hereunder. The foregoing provision
is intended only to set forth certain rules for the application of payments,
proceeds and collections in the event that a Bank has breached its obligations
hereunder and shall not be deemed to excuse any Bank from such obligations.
E-47 Exhibit 10(i)
Section 8.3. Exculpation. The Agent shall not be liable for
any action taken or omitted to be taken by the Agent in connection with the Loan
Documents, except for its own gross negligence or willful misconduct. The Agent
shall be entitled to rely upon advice of counsel concerning legal matters, the
advice of independent public accountants with respect to accounting matters and
advice of other experts as to any other matters and upon any Loan Document and
any schedule, certificate, statement, report, notice or other writing which it
reasonably believes to be genuine or to have been presented by a proper Person.
Neither the Agent nor any of its directors, officers, employees or agents shall
be responsible or in any way liable for (a) any recitals, representations or
warranties contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of any Loan Document, or any other instrument or
document delivered hereunder or in connection herewith, (b) the validity,
genuineness, perfection, effectiveness, enforceability, existence, value of
enforcement of any Collateral or (c) any action taken or omitted by it. The
designation of Norwest as Agent hereunder shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon, Norwest
in its individual capacity as Bank hereunder.
Section 8.4. Use of the Term "Agent". The term "Agent" is used
herein in reference to the Agent merely as a matter of custom. It is intended to
reflect only an administrative relationship between the Agent and the Banks, in
each case as independent contracting parties. However, the obligations of the
Agent shall be limited to those expressly set forth herein and in no event shall
the use of such term create or imply any fiduciary relationship or any other
obligation arising under the general law of agency.
Section 8.5. Reimbursement for Costs and Expenses. All
payments, collections and proceeds received or effected by the Agent may be
applied first to pay or reimburse the Agent for all reasonable costs and
expenses at any time incurred by or imposed upon the Agent in connection with
this Agreement or any other Loan Document (including but not limited to all
reasonable attorney's fees (including allocated costs of in-house counsel),
foreclosure expenses and advances made to protect the security of any
Collateral, but excluding any costs, expenses, damages or liabilities arising
from the gross negligence or willful misconduct of the Agent). If the Agent does
not receive payments, collections or proceeds sufficient to cover any such costs
and expenses within five (5) days after their incurrence or imposition, each
Bank shall, upon demand, remit to the Agent such Bank's Percentage of the
difference between (i) such costs and expenses and (ii) such payments,
collections and proceeds, together with interest on such amount for each day
following the thirtieth day after demand therefor until so remitted at a rate
equal to the Federal Funds Rate for each such day.
Section 8.6. Payments Received Directly by Banks. If any Bank
shall obtain any payment or other recovery (whether voluntary, involuntary, by
application of offset or otherwise) on account of any Facility or on account of
any fees under this Agreement (other than through distributions made in
accordance with Section 8.2 hereof) in excess of such
E-48 Exhibit 10(i)
Bank's applicable Percentage with respect to such Facility (or such Bank's
Default Percentage, if applicable), such Bank shall promptly give notice of such
fact to the Agent and shall promptly remit to the Agent such amount as shall be
necessary to cause the remitting Bank to share such excess payment or other
recovery ratably with each of the Banks in accordance with their respective
Percentages, (or Default Percentages, as the case may be) together with interest
for each day on such amount until so remitted at a rate equal to the Federal
Funds Rate for each such day; provided, however, that if all or any portion of
the excess payment or other recovery is thereafter recovered from such remitting
Bank or holder, the remittance shall be restored to the extent of such recovery.
Section 8.7. Indemnification. Each Bank severally (but not
jointly) hereby agrees to indemnify and hold harmless the Agent, as well as the
Agent's agents, employees, officers and directors, ratably according to their
respective Percentages from and against any and all losses, liabilities
(including liabilities for penalties), actions, suits, judgment, demands,
damages, costs, disbursements, or expenses (including attorneys' fees and
expenses)(including allocated costs of in-house counsel)) of any kind or nature
whatsoever, which are imposed on, incurred by, or asserted against the Agent or
its agents, employees, officers or directors in any way relating to or arising
out of the Loan Documents, or as a result of any action taken or omitted to be
taken by the Agent; provided, however, that no Bank shall be liable for any
portion of any such losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs disbursements, or expenses
resulting from the gross negligence or willful misconduct of the Agent.
Notwithstanding any other provision of the Loan Documents, the Agent shall in
all cases be fully justified in failing or refusing to act hereunder unless it
shall be indemnified to its satisfaction by the Banks against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
Section 8.8. Agent and Affiliates. Norwest shall have the same
rights and powers in its capacity as a Bank hereunder as any other Bank, and may
exercise or refrain from exercising the same as though it were not the Agent,
and Norwest and its affiliates may accept deposits from and generally engage in
any kind of business with the Borrower and its Subsidiaries or any affiliate of
the Borrower and its Subsidiaries as fully as if Norwest were not the Agent
hereunder.
Section 8.9. Credit Investigation. Each Bank acknowledges that
it has made such inquiries and taken such care on its own behalf as would have
been the case had its Commitments been granted and its Advances made directly by
such Bank to the Borrower without the intervention of the Agent or any other
Bank. Each Bank agrees and acknowledges that the Agent makes no representations
or warranties about the creditworthiness of the Borrower or any other party to
this Agreement or with respect to the legality, validity, sufficiency or
enforceability of this Agreement, any Loan Document, any Collateral or any other
instrument or document delivered hereunder or in connection herewith.
E-49 Exhibit 10(i)
Section 8.10. Defaults. The Agent shall have no duty to
inquire into any performance or failure to perform by the Borrower and shall not
be deemed to have knowledge of the occurrence of a Default or an Event of
Default (other than under Sections 7.1(a) or 7.1(b)) hereof unless the Agent has
received notice from a Bank or the Borrower specifying the occurrence of such
Default or Event of Default. In the event that the Agent receives such a notice
of the occurrence of a Default or an Event of Default, the Agent shall give
prompt notice thereof to the Banks. In the event of any Default, the Agent shall
(subject to Section 8.7 hereof) (a) in the case of a Default that constitutes an
Event of Default, not take any the actions referred to in Section 7.2(b) hereof
unless so directed by the Required Banks, and (b) in the case of any Default,
take such actions with respect to such Default as shall be directed by the
Required Banks; provided that, unless and until the Agent shall have received
such directions, the Agent may take any action, or refrain from taking any
action, with respect to such Default as it shall deem advisable in the best
interest of the Banks.
Section 8.11. Obligations Several. The obligations of each
Bank hereunder are the several obligations of such Bank, and neither any Bank
nor the Agent shall be responsible for the obligations of any other Bank
hereunder, nor will the failure by the Agent or any Bank to perform any of its
obligations hereunder relieve the Agent or any other Bank from the performance
of its respective obligations hereunder. Nothing contained in this Agreement,
and no action taken by any Bank or the Agent pursuant hereto or in connection
herewith or pursuant to or in connection with the Loan Documents shall be deemed
to constitute the Banks, together or with or without the Agent, as a
partnership, association, joint venture, or other entity.
Section 8.12. Sale or Assignment; Addition of Banks. Except as
permitted under the terms and conditions of this Section 8.12 or, with respect
to participations, under Section 8.13, no Bank may sell, assign or transfer its
rights or obligations under this Agreement or its interest in any Note. Any
Bank, at any time upon at least five (5) Business Days' prior written notice to
the Agent and the Borrower (unless the Agent and the Borrower consent to a
shorter period of time), may assign all or a portion (provided such portion is
not less than $5,000,000) of such Bank's Notes, Advances, and Commitments to a
domestic or foreign bank (having a branch office in the United States), an
insurance company or other financial institution (an "Applicant") on any date
(the "Adjustment Date") selected by such Bank, but only so long as the Borrower
and the Agent shall have provided their prior written approval of such proposed
Applicant. Notwithstanding the foregoing, (i) the Borrower will not unreasonably
withhold its consent to any such assignment, (ii) no such consent of the
Borrower shall be required after the occurrence and during the continuance of an
Event of Default, and (iii) no such consent of the Borrower or the Agent shall
be required in connection with an assignment to the Federal Reserve Bank for
purposes of satisfying a Bank's capital requirements. Upon receipt of such
approval and to confirm the status of each additional Bank as a party to this
Agreement and to evidence the assignment in accordance herewith:
E-50 Exhibit 10(i)
(a) the Agent, the Borrower (if the Borrower's consent is
required), the assigning Bank and such Applicant shall, on or before
the Adjustment Date, execute and deliver to the Agent an Assignment
Certificate in substantially the form of Exhibit H (an "Assignment
Certificate");
(b) if requested by the Agent, the Borrower will execute and
deliver to the Agent, for delivery by the Agent in accordance with the
terms of the Assignment Certificate, (i) new Notes payable to the order
of the Applicant in amounts corresponding to the applicable Commitments
acquired by such Applicant and (ii) new Notes payable to the order of
the assigning Bank in amounts corresponding to the retained
Commitments. Such new Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of the Notes to be replaced by
such new Notes, shall be dated the effective date of such assignment
and shall otherwise be in the form of the Notes to be replaced thereby.
Such new Notes shall be issued in substitution for, but not in
satisfaction or payment of, the Notes being replaced thereby and such
new Notes shall be treated as Notes for purposes of this Agreement; and
(c) the assigning Bank shall pay to the Agent an
administrative fee of $3,000.
Upon the execution and delivery of such Assignment Certificate and such new
Notes, and effective as of the effective date thereof (i) this Agreement shall
be deemed to be amended to the extent, and only to the extent, necessary to
reflect the addition of such additional Bank and the resulting adjustment of the
Percentages arising therefrom, (ii) the assigning Bank shall be relieved of all
obligations hereunder to the extent of the reduction of the assigning Bank's
Percentage, and (iii) the Applicant shall become a party hereto and shall be
entitled to all rights, benefits and privileges accorded to a Bank herein and in
each other Loan Document or other document or instrument executed pursuant
hereto and subject to all obligations of a Bank hereunder, including, without
limitation, the right to approve or disapprove actions which, in accordance with
the terms hereof, require the approval of the Required Banks or all Banks. In
order to facilitate the addition of additional Banks hereto, the Borrower
(subject to is approval rights hereunder, if any) and the Banks shall cooperate
fully with the Agent in connection therewith and shall provide all reasonable
assistance requested by the Agent relating thereto, including, without
limitation, the furnishing of such written materials and financial information
regarding the Borrower as the Agent may reasonably request, the execution of
such documents as the Agent may reasonably request with respect thereto, and the
participation by officers of the Borrower, and the Banks in a meeting or
teleconference call with any Applicant upon the request of the Agent.
Section 8.13. Participation. In addition to the rights granted
in Section 8.12, each Bank may grant participations in all or a portion of its
Notes, Advances and Commitments to any domestic or foreign commercial bank
(having a branch office in the United States), insurance company, financial
institution or an affiliate of such Bank. No
E-51 Exhibit 10(i)
holder of any such participation shall be entitled to require any Bank to take
or omit to take any action hereunder. The Banks shall not, as among the
Borrower, the Agent and the Banks, be relieved of any of their respective
obligations hereunder as a result of any such granting of a participation. The
Borrower hereby acknowledges and agrees that any participation described in this
Section 8.13 may rely upon, and possess all rights under, any opinions,
certificates, or other instruments or documents delivered under or in connection
with any Loan Document. Except as set forth in this Section 8.13, no Bank may
grant any participation in the Notes, Advances or Commitments.
Section 8.14. Withholding Tax Exemption. At least five (5)
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America, or a state thereof, agrees that it
will deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such form
(or a successor form) on or before the date that such form expires (currently,
three successive calendar years for Form 1001 and one calendar year for Form
4224) or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Borrower
or the Agent, in each case certifying that such Bank is entitled to receive
payments under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank advises the
Borrower and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
Section 8.15. Borrower not a Beneficiary or Party. Except with
respect to the limitation of liability applicable to the Banks under Section
8.11 and the Borrower's right to approve additional Banks in accordance with
Section 8.12, the provisions and agreements in this Article VIII are solely
among the Banks and the Agent and the Borrower shall not be considered a party
thereto or a beneficiary thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1. No Waiver; Cumulative Remedies. No failure or
delay on the part of the Agent or any Bank in exercising any right, power or
remedy under the Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any
E-52 Exhibit 10(i)
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy under the Loan Documents. The
remedies provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law.
Section 9.2. Amendments, Requested Waivers, Etc. No amendment,
modification, termination or waiver of any provision of any Loan Document or
consent to any departure by the Borrower or any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Required Banks
and, if the rights or duties of the Agent are affected thereby, by the Agent;
provided that no amendment, modification, termination, waiver or consent shall
do any of the following unless the same shall be in writing and signed by all
Banks: (a) change the amount of any Commitment (except as permitted in
accordance with Section 8.12), (b) increase the Term Commitment Amount or the
Revolving Commitment Amount, (c) reduce the amount of any principal of or
interest due on any Advances or the Commitment Fees payable to the Banks
hereunder, (d) postpone any date fixed for any payment of principal of or
interest on any outstanding Advances or the Commitment Fees payable to the Banks
hereunder, (e) change the definition of "Required Banks," (f) amend this Section
9.2 or any other provision of this Agreement requiring the consent or other
action of the Required Banks or all Banks, (g) release any Guaranty or (h)
release, subordinate or terminate any security interest in or mortgage lien on
any Collateral (other than the sale of Inventory in the ordinary course of
business) if the fair market value of all Collateral so affected during any
fiscal year of the Borrower exceeds $1,000,000 in the aggregate. Any waiver or
consent given hereunder shall be effective only in the specific instance and for
the specific purpose for which given. No notice to or demand on the Borrower in
any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
Section 9.3. Addresses for Notices, Etc. Except as otherwise
expressly provided herein, all notices, requests, demands and other
communications provided for under the Loan Documents shall be in writing and
mailed or delivered to the applicable parties at their respective addresses set
forth on the execution pages hereto, or, as to each party, at such other address
as shall be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 9.3. All such notices,
requests, demands and other communications, when delivered, shall be effective
upon actual delivery and when mailed, shall be effective when sent by nationally
recognized overnight mail courier or delivery service, addressed as aforesaid,
except that notices or requests to the Agent or any Bank pursuant to any of the
provisions of Article II shall not be effective until received by the Agent or
such Bank.
Section 9.4. Costs and Expenses. The Borrower will reimburse
the Agent for (a) any and all out-of-pocket costs and expenses, including
without limitation attorneys' fees and expenses (including allocated costs of
in-house counsel), lien and UCC searches, title and recording expenses and other
similar expenses, paid or incurred by the Agent in connection with the
preparation, filing or recording of the Loan Documents and any other
E-53 Exhibit 10(i)
document or agreement related hereto or thereto, and the transactions
contemplated hereby (which amount shall be paid on the Closing Date or as soon
thereafter as demand is made therefor) and the negotiation of any amendments,
modifications or extensions to or of any of the foregoing documents, instruments
or agreements and the preparation of any and all documents necessary or
desirable to effect such amendments, modifications or extensions, (b) customary
transaction fees of the Agent incurred in connection with the loans contemplated
hereby, (c) fees in connection with any audits or inspections by the Agent of
any Collateral or the operations or business of the Borrower and/or its
Subsidiaries, whether conducted at the premises of the Borrower and/or its
Subsidiaries or at the Agent's premises, and (d) any and all other out-of-pocket
costs and expenses incurred by the Agent in connection with any of the
transactions contemplated hereby. The Borrower will reimburse the Agent and each
Bank for any and all costs and expenses incurred by the Agent or any Bank in
connection with the enforcement of any of the rights or remedies of the Agent or
the Banks under any of the Loan Documents or under applicable law, whether or
not suit is filed with respect thereto.
Section 9.5. Indemnity. In addition to the payment of expenses
pursuant to Section 9.4, the Borrower agrees to indemnify, defend and hold
harmless the Agent, each Bank and each of their respective participants, parent
corporations, subsidiary corporations, affiliated corporations, successor
corporations, and all present and future officers, directors, employees and
agents (the "Indemnitees"), from and against (i) any claim, loss or damage to
which any Indemnitee may be subjected as a result of any past, present or future
existence, use, handling, storage, transportation or disposal of any Hazardous
Substance by the Borrower or any of its Subsidiaries or with respect to any
property owned, leased or controlled by the Borrower or any of its Subsidiaries,
(ii) any and all transfer taxes, documentary taxes, assessments or charges made
by any governmental authority (excluding income or gross receipts taxes) by
reason of the execution and delivery of this Agreement and the other Loan
Documents or the making of any Advances and (iii) any and all liabilities,
losses, damages, penalties, judgments, suits, claims, costs and expenses of any
kind or nature whatsoever (including, without limitation, the reasonable fees
and disbursements of counsel) in connection with any investigative,
administrative or judicial proceedings, whether or not such Indemnitee shall be
designated a party thereto, which may be imposed on, incurred by or asserted
against such Indemnitee, in any manner relating to or arising out of or in
connection with, the making of any Advances or entering into this Agreement or
any other Loan Documents or the use or intended use of the proceeds of the
Advances, excepting, however, from the foregoing any such liabilities, losses,
damages, penalties, judgments, suits, claims, costs and expenses resulting
solely from the willful misconduct or gross negligence of any Indemnitee. If any
investigative, judicial or administrative proceeding arising from any of the
foregoing is brought against any Indemnitee, upon request of such Indemnitee,
the Borrower, or counsel designated by the Borrower and satisfactory to the
Indemnitee, will resist and defend such action, suit or proceeding to the extent
and in the manner directed by the Indemnitee, at the Borrower's sole cost and
expense. Each Indemnitee will use its best efforts to cooperate in the defense
of any such action, suit or proceeding. If the foregoing
E-54 Exhibit 10(i)
undertaking to indemnify, defend and hold harmless may be held to be
unenforceable because it violates any law or public policy, the Borrower shall
nevertheless make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities contemplated hereby which is permissible
under applicable law. The obligations of the Borrower under this Section 9.5
shall survive termination of this Agreement and the discharge of the
Obligations.
Section 9.6. Execution in Counterparts. This Agreement and
other Loan Documents may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
Section 9.7. Governing Law; Jurisdiction; Waiver of Jury
Trial.
(a) Governing Law. The Loan Documents shall be governed by,
and construed in accordance with, the laws of the State of Minnesota,
except to the extent the law of any other jurisdiction applies as to
the perfection or enforcement of the any security interest in any
Collateral and except to the extent expressly provided to the contrary
in any Loan Document.
(b) Jurisdiction. The Borrower hereby irrevocably submits to
the jurisdiction of any state or federal court sitting in the State of
Minnesota in any action or proceeding arising out of or relating to
this Agreement or any of the other Loan Documents, and the Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such state or federal court.
The Borrower hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower irrevocably
consents to the service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding by
the mailing of copies of such process to the Borrower at its addresses
specified in Section 9.3 above. The Borrower agrees that a final
judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Section 9.7(b) shall affect the right of the
Agent or any Bank to serve legal process in any other manner permitted
by law or affect the right of the Agent or any Bank to bring any action
or proceeding against the Borrower or its property in the courts of
other jurisdictions.
(c) WAIVER OF JURY TRIAL. THE BORROWER, THE BANKS AND THE
AGENT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.
E-55 Exhibit 10(i)
Section 9.8. Integration; Inconsistency. This Agreement,
together with the Loan Documents, comprise the final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to such subject matter, superseding all prior oral or written
understandings. If any provision of a Loan Document is inconsistent with or
conflicts with a comparable or similar provision appearing in this Agreement,
the comparable or similar provision in this Agreement shall govern.
Section 9.9. Agreement Effectiveness. This Agreement shall
become effective upon delivery of fully executed counterparts hereof to each of
the parties hereto.
Section 9.10. Advice from Independent Counsel. The parties
hereto understand that this Agreement is a legally binding agreement that may
affect such party's rights. Each party hereto represents to the other that it
has received legal advice from counsel of its choice regarding the meaning and
legal significance of this Agreement and that it is satisfied with its legal
counsel and the advice received from it.
Section 9.11. Judicial Interpretation. Should any provision of
this Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against any person by reason of the rule
of construction that a document is to be construed more strictly against the
person who itself through its agent prepared the same, it being agreed that all
parties hereto have participated in the preparation of this Agreement.
Section 9.12. Binding Effect; No Assignment by Borrower. This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Banks, the Agent and their respective successors and assigns; provided, however,
the Borrower may not assign any or all of its rights or obligations hereunder or
any of its interest herein without the prior written consent of all Banks.
Section 9.13. Severability of Provisions. Any provision of
this Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
Section 9.14. Headings. Article and Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGES FOLLOW]
E-56 Exhibit 10(i)
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
Address: INNOVEX, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ ------------------------------------
Its
--------------------------------
Address: NORWEST BANK MINNESOTA,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ NATIONAL ASSOCIATION, as Bank
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and as Agent
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ By
------------------------------------
Its
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Revolving Commitment: $9,375,000
Revolving Percentage: 62.50%
Term Commitment: $15,625,000
Term Percentage: 62.50%
SIGNATURE PAGE TO CREDIT AGREEMENT Exhibit 10(i)
Address: U.S. BANK NATIONAL ASSOCIATION
U.S. Bank Place
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▇▇▇▇▇▇▇▇ ------------------------------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Its
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ --------------------------------
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Commitment: $5,625,000
Revolving Percentage: 37.50%
Term Commitment: $9,375,000
Term Percentage: 37.50%
SIGNATURE PAGE TO CREDIT AGREEMENT Exhibit 10(i)