EXHIBIT 10.1
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CREDIT AGREEMENT
among
ADVANCED MEDICAL, INC.,
IMED CORPORATION,
VARIOUS LENDING INSTITUTIONS,
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT AND
SYNDICATION AGENT,
BANQUE PARIBAS,
AS DOCUMENTATION AGENT AND
SYNDICATION AGENT
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION,
AS SYNDICATION AGENT
________________________________
Dated as of November 26, 1996
________________________________
$250,000,000
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . . . 1
1.01 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Borrowing Amounts, etc. . . . . . . . . . . . . . . . . . 5
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . 5
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . 6
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . 9
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.09 Interest Periods. . . . . . . . . . . . . . . . . . . . . . . . . 10
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . . . 11
1.11 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.12 Change of Lending Office. . . . . . . . . . . . . . . . . . . . . 14
1.13 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . 15
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 15
2.02 Letter of Credit Requests; Notices of Issuance. . . . . . . . . . 17
2.03 Agreement to Repay Letter of Credit Drawings. . . . . . . . . . . 17
2.04 Letter of Credit Participations . . . . . . . . . . . . . . . . . 18
2.05 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3. Fees; Commitments. . . . . . . . . . . . . . . . . . . . . . . . 21
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.02 Voluntary Termination or Reduction of Commitments . . . . . . . . 22
3.03 Mandatory Adjustments of Commitments, etc.. . . . . . . . . . . . 23
SECTION 4. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . 24
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 25
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . . . 35
4.04 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 38
5.01 Execution of Agreement; Notes . . . . . . . . . . . . . . . . . . 38
5.02 No Default; Representations and Warranties. . . . . . . . . . . . 38
5.03 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . 38
5.04 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . 38
(i)
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5.05 Corporate Proceedings . . . . . . . . . . . . . . . . . . . . . . 39
5.06 Adverse Change, etc.. . . . . . . . . . . . . . . . . . . . . . . 39
5.07 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.08 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.09 Consummation of the Transaction . . . . . . . . . . . . . . . . . 40
5.10 Pledge Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 43
5.11 Security Agreement. . . . . . . . . . . . . . . . . . . . . . . . 43
5.12 Mortgages; Title Insurance; Surveys, etc. . . . . . . . . . . . . 44
5.13 Plans; Collective Bargaining Agreements; Existing Indebtedness
Agreements; Shareholders' Agreements; Management Agreements;
Employment Agreements; Non-Compete Agreements; Tax Sharing
Agreements; Material Contracts . . . . . . . . . . . . . . . . . 45
5.14 Solvency Opinion; Environmental Analyses; Evidence of Insurance . 47
5.15 Pro Forma Balance Sheets. . . . . . . . . . . . . . . . . . . . . 47
5.16 Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.17 Indebtedness to Remain Outstanding. . . . . . . . . . . . . . . 48
5.18 Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.19 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . 48
5.20 Subsidiary Guaranty . . . . . . . . . . . . . . . . . . . . . . . 48
5.21 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6. Representations, Warranties and Agreements . . . . . . . . . . . 49
6.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . . . 49
6.02 Corporate Power and Authority . . . . . . . . . . . . . . . . . . 49
6.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.04 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.05 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . . 50
6.06 Governmental Approvals. . . . . . . . . . . . . . . . . . . . . . 51
6.07 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 51
6.08 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 51
6.09 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 51
6.10 Financial Condition; Financial Statements . . . . . . . . . . . . 51
6.11 Security Interests. . . . . . . . . . . . . . . . . . . . . . . . 53
6.12 Representations and Warranties in Other Documents . . . . . . . . 53
6.13 Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.14 Compliance with ERISA in Connection with Domestic Pension Plans . 54
6.15 Compliance with Applicable Laws in Connection with Foreign
Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.16 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.17 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.18 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . 56
6.19 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 56
6.20 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 56
(ii)
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6.21 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.22 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.23 Tax Returns and Payments. . . . . . . . . . . . . . . . . . . . . 58
6.24 Indebtedness to Remain Outstanding. . . . . . . . . . . . . . . . 58
6.25 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.26 FDA Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . 59
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . . . 60
7.02 Books, Records and Inspections. . . . . . . . . . . . . . . . . . 63
7.03 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.04 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 64
7.05 Corporate Franchises. . . . . . . . . . . . . . . . . . . . . . . 64
7.06 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . . . 64
7.07 Compliance with Environmental Laws. . . . . . . . . . . . . . . . 64
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.09 Good Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.10 End of Fiscal Years; Fiscal Quarters. . . . . . . . . . . . . . . 66
7.11 Additional Security; Further Assurances . . . . . . . . . . . . . 67
7.12 Registry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.13 Contributions; Payments . . . . . . . . . . . . . . . . . . . . . 68
7.14 Foreign Subsidiaries Security . . . . . . . . . . . . . . . . . . 69
7.15 Interest Rate Protection. . . . . . . . . . . . . . . . . . . . . 69
7.16 Debentures Redemption . . . . . . . . . . . . . . . . . . . . . . 70
7.17 Holdings Preferred Stock Redemption . . . . . . . . . . . . . . . 70
7.18 Senior Notes Tender Offer/Defeasance. . . . . . . . . . . . . . . 70
7.19 Maintenance of Corporate Separateness . . . . . . . . . . . . . . 70
7.20 IVAC Merger and IMED Merger . . . . . . . . . . . . . . . . . . . 70
7.21 FDA Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.22 Further Opinions of Counsel . . . . . . . . . . . . . . . . . . . 71
7.23 Liquidation of IMED B.V.I . . . . . . . . . . . . . . . . . . . . 72
7.24 Wind-Down of River Medical. . . . . . . . . . . . . . . . . . . . 72
SECTION 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 72
8.01 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . 72
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. . . . . . 72
8.03 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.05 Advances, Investments and Loans . . . . . . . . . . . . . . . . . 82
8.06 Dividends, etc. . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.07 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 88
8.08 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 89
8.09 Minimum Consolidated EBITDA. . . . . . . . . . . . . . . . . . . . 90
(iii)
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8.10 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . 91
8.11 Leverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . 92
8.12 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . . . 93
8.13 Minimum Consolidated Net Worth. . . . . . . . . . . . . . . . . . 94
8.14 Designated Senior Debt. . . . . . . . . . . . . . . . . . . . . . 94
8.15 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-
Laws and Certain Other Agreements; etc.. . . . . . . . . . . . . . 94
8.16 Limitation on Certain Restrictions on Subsidiaries. . . . . . . . 95
8.17 Limitation on the Creation of Subsidiaries. . . . . . . . . . . . 96
SECTION 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 96
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . . . 96
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
9.04 Default Under Other Agreements. . . . . . . . . . . . . . . . . . 97
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . . . 97
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
9.07 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . 98
9.08 Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
9.09 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
9.10 Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 10. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 99
SECTION 11. The Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . 133
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . 133
11.02 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 133
11.03 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . 133
11.04 Reliance by Agents . . . . . . . . . . . . . . . . . . . . . . . 134
11.05 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . 134
11.06 Non-Reliance on Agent, and Other Banks . . . . . . . . . . . . . 135
11.07 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 135
11.08 Agents in their Individual Capacities. . . . . . . . . . . . . . 136
11.09 Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
11.10 Resignation of an Agent; Successor Agent . . . . . . . . . . . . 136
SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 137
12.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . . . 137
12.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . 138
12.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
12.04 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . 138
12.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . 140
(iv)
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12.06 Payments Pro Rata. . . . . . . . . . . . . . . . . . . . . . . . 140
12.07 Calculations; Computations . . . . . . . . . . . . . . . . . . . 141
12.08 Governing Law; Submission to Jurisdiction; Venue . . . . . . . . 141
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 142
12.10 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . 142
12.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . . . 142
12.12 Amendment or Waiver; etc.. . . . . . . . . . . . . . . . . . . . 142
12.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
12.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . . . 144
12.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 144
12.16 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 145
12.17 IMED Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . 145
12.18 German Pledge Agreement. . . . . . . . . . . . . . . . . . . . . 147
SECTION 13. Holding Company Guaranty. . . . . . . . . . . . . . . . . . . . 148
13.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . 148
13.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
13.03 Nature of Liability. . . . . . . . . . . . . . . . . . . . . . . 148
13.04 Independent Obligation . . . . . . . . . . . . . . . . . . . . . 149
13.05 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . 149
13.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
13.07 Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . 150
13.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
13.09 Nature of Liability. . . . . . . . . . . . . . . . . . . . . . . 152
ANNEX I List of Banks
ANNEX II Bank Addresses
ANNEX III Real Properties
ANNEX IV Projections
ANNEX V Subsidiaries
ANNEX VI Plans
ANNEX VII Insurance
ANNEX VIII Indebtedness to Remain Outstanding
ANNEX IX Recalled Products
ANNEX X Medical Device Report Policy
ANNEX XI Tax Matters
ANNEX XII Projected Consolidated EBITDA
ANNEX XIII Existing Liens
ANNEX XIV Existing Investments
ANNEX XV Permitted Holdings Investments
(v)
EXHIBIT A-1 -- Form of Notice of Borrowing
EXHIBIT A-2 -- Form of Letter of Credit Request
EXHIBIT B-1 -- Form of A Term Note
EXHIBIT B-2 -- Form of B Term Note
EXHIBIT B-3 -- Form of C Term Note
EXHIBIT B-4 -- Form of D Term Note
EXHIBIT B-5 -- Form of Revolving Note
EXHIBIT B-6 -- Form of Swingline Note
EXHIBIT C -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT D -- Form of Opinion of Counsel to the Credit Parties
EXHIBIT E -- Form of Officers' Certificate
EXHIBIT F -- Form of Pledge Agreement
EXHIBIT G -- Form of Security Agreement
EXHIBIT H -- Form of Subsidiary Guaranty
EXHIBIT I -- Form of Subordination Provisions
EXHIBIT J -- Form of Assignment and Assumption Agreement
EXHIBIT K -- Form of Intercompany Note
EXHIBIT L -- Form of Shareholder Subordinated Note
EXHIBIT M -- Assumption Acknowledgment
EXHIBIT N -- Subsidiary Assumption Agreement
EXHIBIT O -- Form of Further Opinion of Counsel
(vi)
CREDIT AGREEMENT, dated as of November 26, 1996, among ADVANCED MEDICAL,
INC., a Delaware corporation ("Holdings"), IMED CORPORATION, a Delaware
corporation (the "Borrower"), the lenders from time to time party hereto (each,
a "Bank" and, collectively, the "Banks"), BANKERS TRUST COMPANY ("BTCo"), as
administrative agent (in such capacity, the "Administrative Agent") and as a
syndication agent (in such capacity, a "Syndication Agent"), BANQUE PARIBAS
("Paribas"), as documentation agent (in such capacity, the "Documentation Agent"
and together with BTCo in its capacity as Administrative Agent, the "Agents")
and as a syndication agent (in such capacity a "Syndication Agent") and
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION ("DLJ"), as a syndication
agent (in such capacity, a "Syndication Agent" and together with BTCo and
Paribas in their capacity as Syndication Agents, the "Syndication Agents").
Unless otherwise defined herein, all capitalized terms used herein and defined
in Section 10 are used herein as so defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein set forth, the
Banks are willing to make available the credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENTS. (A) Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a loan or loans to the
Borrower, which loans shall be drawn, to the extent such Bank has a commitment
under such Facility, under the A Term Loan Facility, the B Term Loan Facility,
the C Term Loan Facility, the D Term Loan Facility and the Revolving Loan
Facility, as set forth below:
(a) Loans under the A Term Loan Facility (each, an "A Term Loan" and,
collectively, the "A Term Loans"), (i) shall be incurred by the Borrower
pursuant to a single drawing, which shall be on the Initial Borrowing Date,
(ii) shall be denominated in U.S. Dollars, (iii) shall be made as Base Rate
Loans and, except as hereinafter provided, may, at the option of the
Borrower, be maintained as and/or converted into Base Rate Loans or
Eurodollar Loans, PROVIDED, that (x) all A Term Loans made by all Banks
pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of A Term Loans of the same Type and (y)
no incurrences of, or conversions into, A Term Loans maintained as
Eurodollar Loans may be effected prior to the earlier of (1) the 30th day
after the Initial Borrowing Date and (2) that date (the "Syndication Date")
upon which the Agents determine in their sole discretion (and
notifies the Borrower) that the primary syndication (and resultant
additions of institutions as Banks pursuant to Section 12.04) has been
completed and (iv) shall not exceed for any Bank at the time of incurrence
thereof on the Initial Borrowing Date that aggregate principal amount which
equals the A Term Loan Commitment, if any, of such Bank at such time. Once
repaid, A Term Loans may not be reborrowed.
(b) Each loan under the B Term Loan Facility (each, a "B Term Loan"
and, collectively, the "B Term Loans"), (i) shall be incurred by the
Borrower pursuant to a single drawing, which shall be on the Initial
Borrowing Date, (ii) shall be denominated in U.S. Dollars, (iii) shall be
made as Base Rate Loans and, except as hereinafter provided, may, at the
option of the Borrower, be maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, PROVIDED, that (x) all B Term Loans made by all
Banks pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of B Term Loans of the same Type and (y)
no B Term Loans maintained as Eurodollar Loans may be incurred prior to the
earlier of (1) the 30th day after the Initial Borrowing Date and (2) the
Syndication Date and (iv) shall not exceed for any Bank at the time of
incurrence thereof on the Initial Borrowing Date that aggregate principal
amount which equals the B Term Loan Commitment, if any, of such Bank at
such time. Once repaid, B Term Loans may not be reborrowed.
(c) Each loan under the C Term Loan Facility (each, a "C Term Loan"
and, collectively, the "C Term Loans"), (i) shall be incurred by the
Borrower pursuant to a single drawing, which shall be on the Initial
Borrowing Date, (ii) shall be denominated in U.S. Dollars, (iii) shall be
made as Base Rate Loans and, except as hereinafter provided, may, at the
option of the Borrower, be maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, PROVIDED, that (x) all C Term Loans made by all
Banks pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of C Term Loans of the same Type and (y)
no C Term Loans maintained as Eurodollar Loans may be incurred prior to the
earlier of (1) the 30th day after the Initial Borrowing Date and (2) the
Syndication Date and (iv) shall not exceed for any Bank at the time of
incurrence thereof on the Initial Borrowing Date that aggregate principal
amount which equals the C Term Loan Commitment, if any, of such Bank at
such time. Once repaid, C Term Loans may not be reborrowed.
(d) Each loan under the D Term Loan Facility (each, a "D Term Loan"
and, collectively, the "D Term Loans"), (i) shall be incurred by the
Borrower pursuant to a single drawing, which shall be on the Initial
Borrowing Date, (ii) shall be denominated in U.S. Dollars, (iii) shall be
made as Base Rate Loans and, except as hereinafter provided, may, at the
option of the Borrower, be maintained as and/or converted into Base Rate
Loans or Eurodollar Loans, PROVIDED, that (x) all D Term Loans made by all
Banks pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of D Term Loans of the same Type and
-2-
(y) no D Term Loans maintained as Eurodollar Loans may be incurred prior to
the earlier of (1) the 30th day after the Initial Borrowing Date and (2)
the Syndication Date and (iv) shall not exceed for any Bank at the time of
incurrence thereof on the Initial Borrowing Date that aggregate principal
amount which equals the D Term Loan Commitment, if any, of such Bank at
such time. Once repaid, D Term Loans may not be reborrowed.
(e) Each loan under the Revolving Loan Facility (each, a "Revolving
Loan" and, collectively, the "Revolving Loans"), (i) may be incurred by the
Borrower at any time and from time to time on or after the Initial
Borrowing Date and prior to the Revolving Loan Maturity Date, (ii) shall be
denominated in U.S. Dollars, (iii) except as hereinafter provided, may, at
the option of the Borrower, be incurred and maintained as and/or converted
into Base Rate Loans or Eurodollar Loans, PROVIDED, that (x) all Revolving
Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same Type
and (y) no incurrences of, or conversions into, Revolving Loans maintained
as Eurodollar Loans may be effected prior to the earlier of (1) the 30th
day after the Initial Borrowing Date and (2) the Syndication Date, (iv) may
be repaid and reborrowed in accordance with the provisions hereof and (v)
shall not exceed for any Bank at any time outstanding that aggregate
principal amount which, when combined with (I) the aggregate principal
amount of all other then outstanding Revolving Loans made by such Bank and
(II) such Bank's RL Percentage, if any, of the Swingline Loans then
outstanding and the Letter of Credit Outstandings (exclusive of Unpaid
Drawings relating to Letters of Credit which are repaid with the proceeds
of, and simultaneously with the incurrence of, Revolving Loans or Swingline
Loans) at such time, equals the Revolving Loan Commitment, if any, of such
Bank at such time. Notwithstanding anything to the contrary contained
herein, the aggregate amount of Revolving Loans incurred on the Initial
Borrowing Date may not exceed $10,000,000.
(B) Subject to and upon the terms and conditions herein set forth, BTCo in
its individual capacity agrees to make at any time and from time to time after
the Initial Borrowing Date and prior to the Swingline Expiry Date, a loan or
loans to the Borrower (each, a "Swingline Loan" and, collectively, the
"Swingline Loans"), which Swingline Loans (i) shall be made and maintained as
Base Rate Loans, (ii) shall be denominated in U.S. Dollars, (iii) may be repaid
and reborrowed in accordance with the provisions hereof, (iv) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters
of Credit which are repaid with the proceeds of, and simultaneously with the
incurrence of, Revolving Loans or Swingline Loans) at such time, an amount equal
to the Total Revolving Loan Commitment then in effect and (v) shall not exceed
in aggregate principal amount at any time outstanding the Maximum Swingline
Amount. BTCo shall not be obligated to make any Swingline Loans at a time when
a Bank Default exists unless BTCo has entered into arrangements satisfactory to
it and the Borrower to eliminate BTCo's risk with respect to the Defaulting
Bank's or Banks' participation in such Swingline
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Loans, including by cash collateralizing such Defaulting Bank's or Banks' RL
Percentage of the outstanding Swingline Loans. BTCo will not make a Swingline
Loan after it has received written notice from the Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time as
BTCo shall have received a written notice of (i) rescission of such notice from
the party or parties originally delivering the same or (ii) a waiver of such
Default or Event of Default from the Required Banks (or all the Banks to the
extent required by Section 12.12).
(C) On any Business Day, BTCo may, in its sole discretion, give notice to
the ▇▇ ▇▇▇▇▇ that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (PROVIDED, that each such notice shall be deemed to
have been automatically given upon the occurrence of a Default or an Event of
Default under Section 9.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 9), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all ▇▇
▇▇▇▇▇ PRO RATA based on each RL Bank's RL Percentage, and the proceeds thereof
shall be applied directly to repay BTCo for such outstanding Swingline Loans.
Each RL Bank hereby irrevocably agrees to make Base Rate Loans upon one Business
Day's notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the date specified in writing
by BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may not
comply with the Minimum Borrowing Amount otherwise required hereunder, (ii)
whether any conditions specified in Section 5 are then satisfied, (iii) whether
a Default or an Event of Default has occurred and is continuing, (iv) the date
of such Mandatory Borrowing and (v) any reduction in the Total Revolving Loan
Commitment after any such Swingline Loans were made. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Borrower), each RL Bank
(other than BTCo) hereby agrees that it shall forthwith purchase from BTCo
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the ▇▇ ▇▇▇▇▇ to share in such Swingline
Loans ratably based upon their respective RL Percentages, PROVIDED that all
interest payable on the Swingline Loans shall be for the account of BTCo until
the date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the RL Bank purchasing same
from and after such date of purchase.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount of
each Borrowing under a Facility shall not be less than the Minimum Borrowing
Amount for such Facility. More than one Borrowing may be incurred on any day;
PROVIDED, that at no time shall there be outstanding more than eight Borrowings
of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur
Loans under any Facility (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Administrative Agent at its Notice Office, prior
to 1:00 P.M. (New York time), at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing of
Eurodollar Loans and at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in
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writing) of each Borrowing of Base Rate Loans to be made hereunder. Each such
notice (each, a "Notice of Borrowing") shall, except as provided in Section
1.10, be irrevocable, and, in the case of each written notice and each
confirmation of telephonic notice, shall be in the form of Exhibit A-1,
appropriately completed to specify (i) the Facility pursuant to which such
Borrowing is to be made, (ii) the aggregate principal amount of the Loans to be
made pursuant to such Borrowing, (iii) the date of such Borrowing (which shall
be a Business Day) and (iv) whether the respective Borrowing shall consist of
Base Rate Loans or, to the extent permitted hereunder, Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Bank written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing, of such Bank's
proportionate share thereof, if any, and of the other matters covered by the
Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of Swingline
Loans hereunder, it shall give BTCo not later than 1:00 P.M. (New York time) on
the day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(C), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(c) Without in any way limiting the obligation of the Borrower to confirm
in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
the respective Letter of Credit Issuer (in the case of Letters of Credit), as
the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or such Letter of Credit Issuer, as the case may be,
in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Borrower hereby waives the right to dispute the Administrative
Agent's, BTCo's or such Letter of Credit Issuer's record of the terms of such
telephonic notice.
1.04 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (New York time)
on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 3:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(C)), each Bank
with a Commitment under the respective Facility will make available its pro rata
share, if any, of each Borrowing requested to be made on such date (or in the
case of Swingline Loans, BTCo shall make available the full amount thereof) in
the manner provided below. All amounts shall be made available to the
Administrative Agent in U.S.
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Dollars and immediately available funds at the Payment Office and the
Administrative Agent promptly will make available to the Borrower by depositing
to its account at the Payment Office the aggregate of the amounts so made
available in the type of funds received. Unless the Administrative Agent shall
have been notified by any Bank prior to the date of Borrowing that such Bank
does not intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent may
assume that such Bank has made such amount available to the Administrative Agent
on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank
and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from
such Bank. If such Bank does not pay such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the
overnight Federal Funds rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08, for the respective
Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its obligation
to fulfill its commitments hereunder or to prejudice any rights which the
Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal of, and
interest on, all the Loans made to it by each Bank shall be evidenced (i) if A
Term Loans, by a promissory note substantially in the form of Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, an "A Term Note"
and, collectively, the "A Term Notes"), (ii) if B Term Loans, by a promissory
note substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each, a "B Term Note" and, collectively, the
"B Term Notes"), (iii) if C Term Loans, by a promissory note substantially in
the form of Exhibit B-3 with blanks appropriately completed in conformity
herewith (each, a "C Term Note" and, collectively, the "C Term Notes"), (iv) if
D Term Loans, by a promissory note substantially in the form of Exhibit B-4 with
blanks appropriately completed in conformity herewith (each, a "D Term Note"
and, collectively, the "D Term Notes"), (v) if Revolving Loans, by a promissory
note substantially in the form of Exhibit B-5 with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the "Revolving Notes") and (vi) if Swingline Loans, by a promissory note
substantially in the form of Exhibit B-6 with blanks appropriately completed in
conformity herewith (the "Swingline Note").
-6-
(b) The A Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the A Term Loans made by such Bank, (iv) mature on the A Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(c) The B Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the B Term Loans made by such Bank, (iv) mature on the B Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(d) The C Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the C Term Loans made by such Bank, (iv) mature on the C Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(e) The D Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the D Term Loans made by such Bank, (iv) mature on the D Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii)
be entitled to the benefits of this Agreement and the other Credit Documents.
(f) The Revolving Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the Revolving Loan Commitment of such Bank and be payable in the
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Maturity Date, (v) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (vi) be subject to voluntary prepayment
as provided in Section 4.01 and
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mandatory repayment as provided in Section 4.02, and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(g) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to the order of BTCo or its registered assigns and be
dated the Initial Borrowing Date, (iii) be in a stated principal amount equal to
the Maximum Swingline Amount and be payable in the principal amount of the
Swingline Loans evidenced thereby, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in Section 1.08 in respect of the Base Rate Loans
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02, and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(h) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
any of its Notes endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation shall not
affect the Borrower's obligations in respect of such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to convert on any
Business Day occurring on or after the earlier of (x) the 30th day after the
Initial Borrowing Date and (y) the Syndication Date, all or a portion at least
equal to the applicable Minimum Borrowing Amount of the outstanding principal
amount of the Loans (other than Swingline Loans which at all times shall be
maintained as Base Rate Loans) owing by the Borrower pursuant to a single
Facility into a Borrowing or Borrowings of another Type of Loan under such
Facility; PROVIDED, that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable thereto and no partial conversion of a Borrowing
of Eurodollar Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made pursuant to such Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of the conversion and (iii) Borrowings of Eurodollar Loans resulting from
this Section 1.06 shall be limited in number as provided in Section 1.02. Each
such conversion shall be effected by the Borrower by giving the Administrative
Agent at its Notice Office, prior to 1:00 P.M. (New York time), at least three
Business Days' (or one Business Day's in the case of a conversion into Base Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing)
(each a "Notice of Conversion") specifying the Loans to be so converted, the
Type of Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Loans (other than Swingline
Loans) under this Agreement shall be made by the Banks PRO RATA on the basis of
their A Term Loan Commitments, B Term Loan Commitments, C Term Loan Commitments,
D Term Loan Commitments or Revolving Loan Commitments, as the case may be. It
is understood that no Bank shall be responsible for any default by any other
Bank of its obligation to make Loans
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hereunder and that each Bank shall be obligated to make the Loans to be made by
it hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.08 INTEREST. (a) The unpaid principal amount of each Base Rate Loan
shall bear interest from the date of the Borrowing thereof until the earlier of
(i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan
and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to
Section 1.06, at a rate per annum which shall at all times be the Applicable
Base Rate Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (i) the rate which is 2% in excess of the rate otherwise
applicable to Base Rate Loans of such Facility from time to time and (ii) the
rate which is 2% in excess of the rate then borne by such Loan; PROVIDED, that
principal in respect of Eurodollar Loans shall bear interest after the same
becomes due (whether by acceleration or otherwise) until the end of the
applicable Interest Period for such Eurodollar Loan at a per annum rate equal to
2% in excess of the rate of interest applicable on the due date therefor.
Interest which accrues under this Section 1.08(c) shall be payable on demand.
(d) Interest shall accrue from and including the date of any Borrowing to
but excluding the date of any repayment thereof and shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on (x) the date of any prepayment
or repayment thereof (on the amount prepaid or repaid) and (y) the last day of
each Interest Period applicable thereto and, in the case of an Interest Period
in excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in accordance
with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for any
Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify the
Borrower and the Banks thereof.
1.09 INTEREST PERIODS. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 1:00 P.M. (New York
-9-
time) on the third Business Day prior to the expiration of an Interest Period
applicable to a Borrowing of Eurodollar Loans, it shall have the right to elect
by giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three or
six month period or, to the extent approved by all the Banks with a Commitment
and/or outstanding Loans, as the case may be, of the respective Facility, a nine
or twelve-month period. Notwithstanding anything to the contrary contained
above:
(i) all Eurodollar Loans comprising a Borrowing shall have the same
Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED, that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period for a Borrowing under a Facility may be
elected if it would extend beyond the respective Maturity Date for such
Facility;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence; and
(vii) no Interest Period with respect to any Borrowing of Term Loans
shall extend beyond any date upon which a mandatory prepayment of such Term
Loans is required to be made under Section 4.02(A)(b)(i), (ii), (iii) or
(iv), as the case may be, if, after giving effect to the selection of such
Interest Period, the aggregate principal amount of such Term Loans
maintained as Eurodollar Loans with Interest Periods ending after such date
of mandatory repayment would exceed the aggregate principal amount of such
Term Loans permitted to be outstanding after such mandatory prepayment.
If upon the expiration of any Interest Period, the Borrower has failed to elect,
or is not permitted to elect by virtue of the application of clause (vi) above,
a new Interest Period to be
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applicable to the respective Borrowing of Eurodollar Loans as provided above,
the Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Base Rate Loans effective as of the expiration date of such current
Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in the
case of clause (i) below, the Administrative Agent or (y) in the case of clauses
(ii) and (iii) below, any Bank, shall have determined (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period, that, by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of net income taxes or similar charges) because of (x) any
change since the date of this Agreement in any applicable law, governmental
rule, regulation, guideline, order or request (whether or not having the
force of law), or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline, order or request (such as, for example, but not limited to a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate) and/or (y) other circumstances
affecting such Bank, the interbank Eurodollar market or the position of
such Bank in such market; or
(iii) at any time since the date of this Agreement, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law but with which
such Bank customarily complies even though the failure to comply therewith
would not be unlawful), or has become impracticable as a result of a
contingency occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within 10 Business Days of
the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the
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Administrative Agent notifies the Borrower and the Banks that the circumstances
giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower agrees to
pay to such Bank, upon written demand therefor (accompanied by the written
notice referred to below), such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Bank in its sole discretion shall determine) as shall be required to compensate
such Bank for such increased costs or reductions in amounts received or
receivable hereunder (a written notice as to the additional amounts owed to such
Bank, showing the basis for the calculation thereof, submitted to the Borrower
by such Bank shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and, in the case of
a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the Borrower shall)
either (i) if the affected Eurodollar Loan is then being made pursuant to a
Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii)), or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Administrative Agent, require the affected Bank to
convert each such Eurodollar Loan into a Base Rate Loan (which conversion, in
the case of the circumstances described in Section 1.10(a)(iii), shall occur no
later than the last day of the Interest Period then applicable to such
Eurodollar Loan (or such earlier date as shall be required by applicable law));
PROVIDED, that if more than one Bank is affected at any time, then all affected
Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the date hereof, the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, 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 such Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then from
time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), accompanied by the notice referred to in the last
sentence of this clause (c), the Borrower agrees to pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
Each Bank, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
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thereof to the Borrower, which notice shall set forth the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt
of such notice.
1.11 COMPENSATION. The Borrower agrees to compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding loss of anticipated profit with respect
to any Loans) which such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Administrative Agent) a Borrowing of Eurodollar
Loans does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any
repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of the Loans pursuant to Section 9) or conversion of any Eurodollar
Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any Eurodollar Loans is not made
on any date specified in a notice of prepayment given by the Borrower; or (iv)
as a consequence of (x) any other default by the Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement or (y) an election
made pursuant to Section 1.10(b). Calculation of all amounts payable to a Bank
under this Section 1.11 shall be made as though that Bank had actually funded
its relevant Eurodollar Loan through the purchase of a Eurodollar deposit
bearing interest at the Eurodollar Rate in an amount equal to the amount of that
Loan, having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of that Bank to
a domestic office of that Bank in the United States of America; PROVIDED,
HOWEVER, that each Bank may fund each of its Eurodollar Loans in any manner it
sees fit and the foregoing assumption shall be utilized only for the calculation
of amounts payable under this Section 1.11. It is further understood and agreed
that if any repayment of Eurodollar Loans pursuant to Section 4.01 or any
conversion of Eurodollar Loans pursuant to Section 1.06 in either case occurs on
a date which is not the last day of an Interest Period applicable thereto, such
repayment or conversion shall be accompanied by any amounts owing to any Bank
pursuant to this Section 1.11.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the occurrence
of any event giving rise to the operation of Section 1.10(a)(ii) or (iii),
1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Bank) to designate another lending office for any Loans or Letters of
Credit affected by such event; PROVIDED, that such designation is made on such
terms that, in the sole judgment of such Bank, such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequences of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Section 1.10,
2.05 or 4.04.
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1.13 REPLACEMENT OF BANKS. (x) If any Bank becomes a Defaulting Bank,
(y) upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect
to any Bank which results in such Bank charging to the Borrower increased costs
in excess of those being generally charged by the other Banks or (z) in the case
of a refusal by a Bank to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Banks as provided in Section 12.12(b), the Borrower shall have the
right, if no Default or Event of Default then exists or, in the case of clause
(z) above, would exist after giving effect to such replacement, to replace such
Bank (the "Replaced Bank") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank") reasonably acceptable to the
Administrative Agent, PROVIDED, that (i) at the time of any replacement pursuant
to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all
fees payable pursuant to said Section 12.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Bank and, in connection therewith, shall pay to (x)
the Replaced Bank in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Bank, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 3.01, (y) the respective Letter of Credit Issuer an amount equal to such
Replaced Bank's RL Percentage of any Unpaid Drawing (which at such time remains
an Unpaid Drawing) with respect to a Letter of Credit issued by it to the extent
such amount was not theretofore funded by such Replaced Bank and (z) BTCo an
amount equal to such Replaced Bank's RL Percentage of any Mandatory Borrowing to
the extent such amount was not theretofore funded by such Replaced Bank and (ii)
all obligations (including, without limitation, all such amounts, if any, owing
under Section 1.11) of the Borrower owing to the Replaced Bank (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution of
the respective Assignment and Assumption Agreements, the payment of amounts
referred to in clauses (i) and (ii) above, recordation of the assignment on the
Register by the Administrative Agent pursuant to Section 7.12 and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note or Notes executed by the Borrower, the Replacement Bank shall
become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank.
SECTION 2. LETTERS OF CREDIT.
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2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and conditions
herein set forth, the Borrower may request a Letter of Credit Issuer at any time
and from time to time after the Initial Borrowing Date and prior to the Business
Day (or the 30th day in the case of trade Letters of Credit) preceding the
Revolving Loan Maturity Date to issue, for the account of the Borrower and in
support of, (A) trade obligations of the Borrower or any of its Subsidiaries
that arise in the ordinary course of business and are in respect of general
corporate purposes of the Borrower or its Subsidiaries, as the case may be,
and/or (B) on a standby basis, L/C Supportable Indebtedness, and subject to and
upon the terms and conditions herein set forth each Letter of Credit Issuer
agrees to issue from time to time, irrevocable letters of credit in such form as
may be approved by such Letter of Credit Issuer (each such letter of credit, a
"Letter of Credit" and, collectively, the "Letters of Credit"). Notwithstanding
the foregoing, no Letter of Credit Issuer shall be under any obligation to issue
any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good ▇▇▇▇▇ ▇▇▇▇▇
material to it; or
(ii) such Letter of Credit Issuer shall have received notice from the
Required Banks prior to the issuance of such Letter of Credit of the type
described in clause (vi) of Section 2.01(b).
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit
which are repaid on the date of, and prior to the issuance of, the respective
Letter of Credit) at such time, would exceed either (x) $15,000,000 or (y)
when added to the aggregate principal amount of all Revolving Loans and
Swingline Loans then outstanding, the Total Revolving Loan Commitment at such
time; (ii) (x) each standby Letter of Credit shall have an expiry date
occurring not later than one year after such standby Letter of Credit's date
of issuance, PROVIDED, that any standby Letter of Credit may be automatically
extendable for periods of up to one year so long as such standby Letter of
Credit provides that the respective Letter of Credit Issuer retains an
option, satisfactory to such Letter of Credit Issuer, to terminate such
standby Letter of Credit within a specified period of time prior to each
scheduled extension date and (y) each trade Letter of Credit shall have an
expiry
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date occurring not later than 180 days after such trade Letter of Credit's
date of issuance; (iii) (x) no standby Letter of Credit shall have an expiry
date occurring later than the Business Day next preceding the Revolving Loan
Maturity Date and (y) no trade Letter of Credit shall have an expiry date
occurring later than 30 days prior to the Revolving Loan Maturity Date; (iv)
each Letter of Credit shall be denominated in U.S. Dollars and be payable on
a sight basis; (v) the Stated Amount of each Letter of Credit shall not be
less than $100,000 or such lesser amount as is acceptable to the Letter of
Credit Issuer; and (vi) no Letter of Credit Issuer will issue any Letter of
Credit after it has received written notice from the Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time as
such Letter of Credit Issuer shall have received a written notice of (i)
rescission of such notice from the party or parties originally delivering the
same or (ii) a waiver of such Default or Event of Default by the Required
Banks (or all the Banks to the extent required by Section 12.12).
(c) Notwithstanding the foregoing, in the event a Bank Default exists, no
Letter of Credit Issuer shall be required to issue any Letter of Credit unless
the respective Letter of Credit Issuer has entered into arrangements
satisfactory to it and the Borrower to eliminate such Letter of Credit Issuer's
risk with respect to the participation in Letters of Credit of the Defaulting
Bank or Banks, including by cash collateralizing such Defaulting Bank's or
Banks' applicable RL Percentage of the applicable Letter of Credit Outstandings.
2.02 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the respective Letter of Credit Issuer written notice
thereof prior to 1:00 P.M. (New York time) at least five Business Days (or such
shorter period as may be acceptable to such Letter of Credit Issuer) prior to
the proposed date of issuance (which shall be a Business Day) which written
notice shall be in the form of Exhibit A-2 (each, a "Letter of Credit Request").
Each Letter of Credit Request shall include any other documents as the
respective Letter of Credit Issuer customarily requires in connection therewith.
(b) (i) In the case of standby Letters of Credit, each Letter of Credit
Issuer shall, on the date of each issuance of or amendment or modification to a
standby Letter of Credit by it, give the Administrative Agent, each RL Bank and
the Borrower written notice of the issuance of or amendment or modification to
such Letter of Credit, accompanied by a copy to the Administrative Agent and
each RL Bank of the Letter of Credit or Letters of Credit issued by it and each
such amendment or modification thereto.
(ii) As to any Letters of Credit issued by a Letter of Credit Issuer
other than BTCo, the respective Letter of Credit Issuer shall send to the
Administrative Agent, on the first Business Day of each week, by telefax, its
outstanding trade Letter of Credit daily balances for the previous week. The
Administrative Agent shall deliver to each RL Bank by the end of each calendar
month and upon each Letter of Credit fee payment date a report setting forth for
such period the aggregate daily amount available to be drawn under trade Letters
of Credit issued by all Letter of Credit Issuers that were outstanding during
such period.
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2.03 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse each respective Letter of Credit Issuer, by making
payment to the Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by such Letter of Credit
Issuer under any Letter of Credit issued by it (each such amount so paid or
disbursed until reimbursed, an "Unpaid Drawing") no later than one Business Day
following the date of such payment or disbursement, with interest on the amount
so paid or disbursed by such Letter of Credit Issuer, to the extent not
reimbursed prior to 1:00 P.M. (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but not including
the date such Letter of Credit Issuer is reimbursed therefor at a rate per annum
which shall be the Applicable Base Rate Margin plus the Base Rate as in effect
from time to time for Revolving Loans (plus an additional 2% per annum if not
reimbursed by the third Business Day after the date of such payment or
disbursement), such interest also to be payable on demand. Each Letter of
Credit Issuer shall provide the Borrower prompt notice of any payment or
disbursement made by it under any Letter of Credit issued by it, although the
failure of, or delay in, giving any such notice shall not release or diminish
the obligations of the Borrower under this Section 2.03(a) or under any other
Section of this Agreement.
(b) The Borrower's obligation under this Section 2.03 to reimburse the
respective Letter of Credit Issuer with respect to Unpaid Drawings (including,
in each case, interest thereon) shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against such Letter of Credit
Issuer, the Administrative Agent or any Bank, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit issued by
it to substantially conform to the terms of the Letter of Credit or any non-
application or misapplication by the beneficiary of the proceeds of such
drawing; PROVIDED, HOWEVER, that the Borrower shall not be obligated to
reimburse such Letter of Credit Issuer for any wrongful payment made by such
Letter of Credit Issuer under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer.
2.04 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the issuance
by a Letter of Credit Issuer of any Letter of Credit, such Letter of Credit
Issuer shall be deemed to have sold and transferred to each other RL Bank, and
each such RL Bank (each a "Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such RL Bank's RL Percentage, in such Letter of Credit, each
substitute letter of credit, each drawing made thereunder and the obligations of
the Borrower under this Agreement with respect thereto (although Letter of
Credit Fees shall be payable directly to the Administrative Agent for the
account of the ▇▇ ▇▇▇▇▇ as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees) and any security
therefor or guaranty pertaining thereto. Upon any change in the Revolving Loan
Commitments of the ▇▇ ▇▇▇▇▇ pursuant to Section 1.13 or 12.04(b) or otherwise,
it is hereby agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings relating to Letters of
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Credit, there shall be an automatic adjustment to the participations pursuant to
this Section 2.04(a) to reflect the new RL Percentages of the assigning and
assignee Banks.
(b) In determining whether to pay under any Letter of Credit, the
respective Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Letter of Credit Issuer
under or in connection with any Letter of Credit issued by it if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for such Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment under
any Letter of Credit issued by it and the Borrower shall not have reimbursed
such amount in full to such Letter of Credit Issuer pursuant to Section 2.03(a),
such Letter of Credit Issuer shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify each Participant of such failure,
and each such Participant shall promptly and unconditionally pay to the
Administrative Agent for the account of such Letter of Credit Issuer, the amount
of such Participant's applicable RL Percentage of such payment in U.S. Dollars
and in same day funds; PROVIDED, HOWEVER, that no Participant shall be obligated
to pay to the Administrative Agent its applicable RL Percentage of such
unreimbursed amount for any wrongful payment made by such Letter of Credit
Issuer under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer. If the Administrative Agent so notifies any Participant
required to fund a payment under a Letter of Credit prior to 11:00 A.M. (New
York time) on any Business Day, such Participant shall make available to the
Administrative Agent for the account of the respective Letter of Credit Issuer
such Participant's applicable RL Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant
shall not have so made its applicable RL Percentage of the amount of such
payment available to the Administrative Agent for the account of the respective
Letter of Credit Issuer, such Participant agrees to pay to the Administrative
Agent for the account of such Letter of Credit Issuer, forthwith on demand such
amount, together with interest thereon, for each day from such date until the
date such amount is paid to the Administrative Agent for the account of such
Letter of Credit Issuer at the overnight Federal Funds rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
respective Letter of Credit Issuer its applicable RL Percentage of any payment
under any Letter of Credit issued by it shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its applicable RL Percentage of any
payment under any such Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to the Administrative Agent for the account of
such Letter of Credit Issuer such other Participant's applicable RL Percentage
of any such payment.
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(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
applicable Participant which has paid its applicable RL Percentage thereof, in
U.S. Dollars and in same day funds, an amount equal to such Participant's
applicable RL Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
(e) The obligations of each respective Participant to make payments to the
Administrative Agent for the account of each respective Letter of Credit Issuer
with respect to Letters of Credit issued by it which such Participant has a
participation in shall be irrevocable and not subject to counterclaim, set-off
or other defense or any other qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, any
Letter of Credit Issuer, any Bank, any Participant or other Person, whether
in connection with this Agreement, any Letter of Credit, the transactions
contemplated herein (including the Transaction) or any unrelated
transactions (including any underlying transaction between the Borrower or
any of its Subsidiaries and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 INCREASED COSTS. If after the date hereof, the adoption or
effectiveness of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters
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of Credit issued by such Letter of Credit Issuer or such Participant's
participation therein, or (ii) impose on any Letter of Credit Issuer or any
Participant any other conditions affecting this Agreement, any Letter of Credit
or such Participant's participation therein; and the result of any of the
foregoing is to increase the cost to such Letter of Credit Issuer or such
Participant of issuing, maintaining or participating in any Letter of Credit, or
to reduce the amount of any sum received or receivable by such Letter of Credit
Issuer or such Participant hereunder, then, upon written demand to the Borrower
by such Letter of Credit Issuer or such Participant (a copy of which notice
shall be sent by such Letter of Credit Issuer or such Participant to the
Administrative Agent), accompanied by the certificate described in the last
sentence of this Section 2.05, the Borrower shall pay to such Letter of Credit
Issuer or such Participant such additional amount or amounts as will compensate
such Letter of Credit Issuer or such Participant for such increased cost or
reduction. A certificate submitted to the Borrower by such Letter of Credit
Issuer or such Participant, as the case may be (a copy of which certificate
shall be sent by such Letter of Credit Issuer or such Participant to the
Administrative Agent), setting forth the basis for the determination of such
additional amount or amounts necessary to compensate such Letter of Credit
Issuer or such Participant as aforesaid shall be final and conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 2.05 upon subsequent receipt of
such certificate.
SECTION 3. FEES; COMMITMENTS.
3.01 FEES. (a) The Borrower shall pay to the Administrative Agent for
distribution to each Bank a commitment fee (the "Commitment Fee") for the period
from the Effective Date to and including the date the Total Commitment has been
terminated, computed at a per annum rate equal to the Applicable Commitment Fee
Percentage on the daily Aggregate Unutilized Commitment of such Bank. Accrued
Commitment Fees shall be due and payable in arrears on the Initial Borrowing
Date and thereafter, in arrears on each Quarterly Payment Date and the date upon
which the Total Commitment is terminated.
(b) The Borrower shall pay to the Administrative Agent for the account of
the ▇▇ ▇▇▇▇▇ PRO RATA on the basis of their RL Percentages, a fee in respect of
each Letter of Credit (the "Letter of Credit Fee") computed at a rate per annum
equal to the Applicable Eurodollar Margin then in effect with respect to
Revolving Loans on the daily Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower shall pay to the Administrative Agent for the account of
the respective Letter of Credit Issuer a fee in respect of each Letter of Credit
issued by such Letter of Credit Issuer (the "Facing Fee") computed at the rate
of 1/4 of 1% per annum on the daily Stated Amount of such Letter of Credit;
PROVIDED, that in no event shall the annual Facing Fee with respect to each
Letter of Credit be less than $500; it being agreed that, on the date of
issuance of any Letter of Credit and on each anniversary thereof prior to the
termination of such
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Letter of Credit, if $500 will exceed the amount of Facing Fees that will accrue
with respect to such Letter of Credit for the immediately succeeding 12-month
period, the full $500 shall be payable on the date of issuance of such Letter of
Credit and on each such anniversary thereof prior to the termination of such
Letter of Credit. Except as provided in the immediately preceding sentence,
accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(d) The Borrower hereby agrees to pay directly to the respective Letter of
Credit Issuer upon each issuance of, payment under, and/or amendment of, a
Letter of Credit issued by it such amount as shall at the time of such issuance,
payment or amendment be the administrative charge which such Letter of Credit
Issuer is customarily charging for issuances of, payments under or amendments
of, letters of credit issued by it.
(e) The Borrower shall pay to the Administrative Agent, the Documentation
Agent and each Syndication Agent, for their own account, such fees as may be
agreed to from time to time between the Borrower and the Administrative Agent,
the Documentation Agent or the Syndication Agents, when and as due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
3.02 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. (a) Upon at
least two Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Banks),
the Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Revolving Loan Commitment; PROVIDED, that
(x) any such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each of the ▇▇ ▇▇▇▇▇ and (y)
any partial reduction pursuant to this Section 3.02 shall be in the amount of at
least $1,000,000.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Borrower shall have the right, upon five Business Days' prior
written notice to the Administrative Agent at its Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks), to
terminate the entire Revolving Loan Commitment of such Bank, so long as all
Loans, together with accrued and unpaid interest, Fees and all other amounts,
owing to such Bank are repaid concurrently with the effectiveness of such
termination pursuant to Section 4.01(b), and the Borrower shall pay to the
Administrative Agent at such time an amount in cash and/or Cash Equivalents
equal to such Bank's applicable RL Percentages of the outstanding Letters of
Credit which it has a participation in (which cash and/or Cash Equivalents shall
be held by the Administrative Agent as security for the obligations of the
Borrower hereunder in respect of such outstanding Letters of Credit pursuant to
a cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent, which shall permit certain investments
in
-21-
Cash Equivalents reasonably satisfactory to the Administrative Agent until the
proceeds are applied to the secured obligations) (at which time Annex I shall be
deemed modified to reflect such changed amounts), and at such time, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06), which shall survive as to
such repaid Bank.
3.03 MANDATORY ADJUSTMENTS OF COMMITMENTS, ETC. (a) The Total Commitment
(and the A Term Loan Commitment, B Term Loan Commitment, C Term Loan Commitment,
D Term Loan Commitment and Revolving Loan Commitment of each Bank) shall
terminate on November 30, 1996 unless the Initial Borrowing Date has occurred on
or before such date.
(b) Each of the Total A Term Loan Commitment, the Total B Term Loan
Commitment, the Total C Term Loan Commitment and the Total D Term Loan
Commitment shall terminate on the Initial Borrowing Date, after giving effect to
the making of the Term Loans on such date.
(c) The Total Revolving Loan Commitment (and the Revolving Loan Commitment
of each Bank) shall terminate on the earlier of (i) the date on which a Change
of Control Event occurs and (ii) the Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, on each date upon which a mandatory repayment of Term Loans
pursuant to Section 4.02(A)(c), (d), (e), (f), (g) and (h) is required (and
exceeds in amount the aggregate principal amount of Term Loans then outstanding)
or would be required if Term Loans were then outstanding, the Total Revolving
Loan Commitment shall be permanently reduced by the amount, if any, by which the
amount required to be applied pursuant to said Sections (determined as if an
unlimited amount of Term Loans were actually outstanding) exceeds the aggregate
principal amount of Term Loans then outstanding.
(e) Each reduction or adjustment of the Total A Term Loan Commitment, the
Total B Term Loan Commitment, the Total C Term Loan Commitment, the Total D Term
Loan Commitment or the Total Revolving Loan Commitment pursuant to this
Section 3.03 shall apply proportionately to the A Term Loan Commitment, the B
Term Loan Commitment, the C Term Loan Commitment, the Total D Term Loan
Commitment or the Revolving Loan Commitment, as the case may be, of each Bank.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. (a) The Borrower shall have the right to
prepay the Loans made to it, in whole or in part, without premium or penalty
except as otherwise provided in this Agreement, from time to time on the
following terms and conditions: (i) the Borrower shall give the Administrative
Agent at its Notice Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay such Loans, whether such Loans are
A
-22-
Term Loans, B Term Loans, C Term Loans, D Term Loans, Revolving Loans or
Swingline Loans, the amount of such prepayment and (in the case of Eurodollar
Loans) the specific Borrowing(s) pursuant to which made, which notice shall be
given by the Borrower prior to 1:00 P.M. (New York time) (x) at least one
Business Day prior to the date of such prepayment in the case of Term Loans or
Revolving Loans maintained as Base Rate Loans, (y) on the date of such
prepayment in the case of Swingline Loans and (z) at least three Business Days
prior to the date of such prepayment in the case of Eurodollar Loans, which
notice shall, except in the case of Swingline Loans, promptly be transmitted by
the Administrative Agent to each of the Banks; (ii) each prepayment shall be in
an aggregate principal amount of at least $1,000,000 (or $500,000 in the case of
Swingline Loans); PROVIDED, that no partial prepayment of Eurodollar Loans made
pursuant to a Borrowing shall reduce the aggregate principal amount of the Loans
outstanding pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount applicable thereto; (iii) Eurodollar Loans may only be prepaid
pursuant to this Section 4.01(a) on the last day of an Interest Period
applicable thereto, unless the Borrower pays all amounts owing under Section
1.11 as a result of repaying such Eurodollar Loans on a day other than the last
day of the Interest Period applicable thereto; (iv) each prepayment in respect
of any Loans made pursuant to a Borrowing shall be applied PRO RATA among such
Loans; PROVIDED, that at the Borrower's election in connection with any
prepayment of Revolving Loans pursuant to this Section 4.01(a), such prepayment
shall not be applied to any Revolving Loans of a Defaulting Bank at any time
when the aggregate amount of Revolving Loans of any Non-Defaulting Bank exceeds
such Non-Defaulting Bank's RL Percentage of all Revolving Loans then
outstanding; (v) each prepayment of Term Loans pursuant to this Section 4.01(a)
must consist of a prepayment of A Term Loans (in an amount equal to the A TL
Percentage of such prepayment), B Term Loans (in an amount equal to the B TL
Percentage of such prepayment), C Term Loans (in an amount equal to the C TL
Percentage of such prepayment) and D Term Loans (in an amount equal to the D TL
Percentage of such prepayment); (vi) each prepayment of A Term Loans pursuant to
this Section 4.01(a) shall be applied (x) first, to reduce the next two
Scheduled A Repayments to occur after the date of such prepayment in direct
order of maturity and (y) thereafter, to reduce the then remaining Scheduled A
Repayments on a PRO RATA basis (based upon the then remaining principal amount
of each such Scheduled A Repayment); (vii) each prepayment of B Term Loans
pursuant to this Section 4.01(a) shall be applied (x) first, to reduce the next
two Scheduled B Repayments to occur after the date of such prepayment in direct
order of maturity and (y) thereafter, to reduce the then remaining Scheduled B
Repayments on a PRO RATA basis (based upon the then remaining principal amount
of each such Scheduled B Repayment); (viii) each prepayment of C Term Loans
pursuant to this Section 4.01(a) shall be applied (x) first, to reduce the next
two Scheduled C Repayments to occur after the date of such prepayment in direct
order of maturity and (y) thereafter, to reduce the then remaining Scheduled C
Repayments on a PRO RATA basis (based upon the then remaining principal amount
of each such Scheduled C Repayment); and (ix) each prepayment of D Term Loans
pursuant to this Section 4.01(a) shall be applied (x) first to reduce the next
two Scheduled D Repayments to occur after the date of such prepayment in direct
order of maturity and (y) thereafter, to reduce the then remaining Scheduled D
Repayments on a PRO RATA basis (based upon the then remaining principal amount
of each such Scheduled D Repayment).
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(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in
Section 12.12(b), the Borrower shall have the right, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Banks)
to repay all Loans, together with accrued and unpaid interest, Fees and all
other amounts owing to such Bank in accordance with said Section 12.12(b) so
long as (A) in the case of the repayment of Revolving Loans of any RL Bank
pursuant to this clause (b) the Revolving Loan Commitment of such RL Bank is
terminated concurrently with such repayment pursuant to Section 3.02(b) (at
which time Annex I shall be deemed modified to reflect the changed Revolving
Loan Commitments) and (B) in the case of the repayment of Loans of any Bank,
the consents required by Section 12.12(b) in connection with the repayment
pursuant to this clause (b) shall have been obtained.
4.02 MANDATORY PREPAYMENTS.
(A) REQUIREMENTS:
(a) If on any date the sum of (i) the aggregate outstanding principal
amount of Revolving Loans and Swingline Loans (after giving effect to all other
repayments thereof on such date) plus (ii) the Letter of Credit Outstandings on
such date exceeds the Total Revolving Loan Commitment as then in effect, the
Borrower shall repay on such date the principal of Swingline Loans, and if no
Swingline Loans are or remain outstanding, Revolving Loans, in an aggregate
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of Letter
of Credit Outstandings exceeds the Total Revolving Loan Commitment as then in
effect, the Borrower agrees to pay to the Administrative Agent an amount in cash
and/or Cash Equivalents equal to such excess (up to the aggregate amount of
Letter of Credit Outstandings at such time) and the Administrative Agent shall
hold such payment as security for the obligations of the Borrower hereunder
pursuant to a cash collateral agreement to be entered into in form and substance
satisfactory to the Administrative Agent (which shall permit certain investments
in Cash Equivalents satisfactory to the Administrative Agent until the proceeds
are applied to the secured obligations).
(b) (i) The Borrower shall be required to repay the principal amount of A
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(B), a "Scheduled A Repayment"):
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SCHEDULED A REPAYMENT DATE AMOUNT
the first Business Day in February, 1998 $ 2,600,000
the first Business Day in May, 1998 $ 2,600,000
the first Business Day in August, 1998 $ 2,600,000
the first Business Day in November, 1998 $ 2,600,000
the first Business Day in February, 1999 $ 2,800,000
the first Business Day in May, 1999 $ 2,800,000
the first Business Day in August, 1999 $ 2,800,000
the first Business Day in November, 1999 $ 2,800,000
the first Business Day in February, 2000 $ 3,100,000
the first Business Day in May, 2000 $ 3,100,000
the first Business Day in August, 2000 $ 3,100,000
the first Business Day in November, 2000 $ 3,100,000
the first Business Day in February, 2001 $ 5,100,000
the first Business Day in May, 2001 $ 5,100,000
the first Business Day in August, 2001 $ 5,100,000
the first Business Day in November, 2001 $ 5,100,000
the first Business Day in February, 2002 $ 6,900,000
the first Business Day in May, 2002 $ 6,900,000
A Term Loan Maturity Date $ 6,800,000
(ii) The Borrower shall be required to repay the principal amount of B
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(B), a "Scheduled B Repayment"):
SCHEDULED B REPAYMENT DATE AMOUNT
the first Business Day in February, 1997 $ 106,250
the first Business Day in May, 1997 $ 106,250
the first Business Day in August, 1997 $ 106,250
the first Business Day in November, 1997 $ 106,250
the first Business Day in February, 1998 $ 106,250
the first Business Day in May, 1998 $ 106,250
the first Business Day in August, 1998 $ 106,250
the first Business Day in November, 1998 $ 106,250
-25-
the first Business Day in February, 1999 $ 106,250
the first Business Day in May, 1999 $ 106,250
the first Business Day in August, 1999 $ 106,250
the first Business Day in November, 1999 $ 106,250
the first Business Day in February, 2000 $ 106,250
the first Business Day in May, 2000 $ 106,250
the first Business Day in August, 2000 $ 106,250
the first Business Day in November, 2000 $ 106,250
the first Business Day in February, 2001 $ 106,250
the first Business Day in May, 2001 $ 106,250
the first Business Day in August, 2001 $ 106,250
the first Business Day in November, 2001 $ 106,250
the first Business Day in February, 2002 $ 1,900,000
the first Business Day in May, 2002 $ 1,900,000
the first Business Day in August, 2002 $ 1,900,000
the first Business Day in November, 2002 $ 1,900,000
the first Business Day in February, 2003 $ 8,193,750
the first Business Day in May, 2003 $ 8,193,750
the first Business Day in August, 2003 $ 8,193,750
B Term Loan Maturity Date $ 8,193,750
(iii) The Borrower shall be required to repay the principal amount of C
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(B), a "Scheduled C Repayment"):
SCHEDULED C REPAYMENT DATE AMOUNT
the first Business Day in February, 1997 $ 106,250
the first Business Day in May, 1997 $ 106,250
the first Business Day in August, 1997 $ 106,250
the first Business Day in November, 1997 $ 106,250
the first Business Day in February, 1998 $ 106,250
the first Business Day in May, 1998 $ 106,250
the first Business Day in August, 1998 $ 106,250
the first Business Day in November, 1998 $ 106,250
the first Business Day in February, 1999 $ 106,250
the first Business Day in May, 1999 $ 106,250
-26-
the first Business Day in August, 1999 $ 106,250
the first Business Day in November, 1999 $ 106,250
the first Business Day in February, 2000 $ 106,250
the first Business Day in May, 2000 $ 106,250
the first Business Day in August, 2000 $ 106,250
the first Business Day in November, 2000 $ 106,250
the first Business Day in February, 2001 $ 106,250
the first Business Day in May, 2001 $ 106,250
the first Business Day in August, 2001 $ 106,250
the first Business Day in November, 2001 $ 106,250
the first Business Day in February, 2002 $ 106,250
the first Business Day in May, 2002 $ 106,250
the first Business Day in August, 2002 $ 106,250
the first Business Day in November, 2002 $ 106,250
the first Business Day in February, 2003 $ 106,250
the first Business Day in May, 2003 $ 106,250
the first Business Day in August, 2003 $ 106,250
the first Business Day in November, 2003 $ 106,250
the first Business Day in February, 2004 $ 9,881,250
the first Business Day in May, 2004 $ 9,881,250
the first Business Day in August, 2004 $ 9,881,250
C Term Loan Maturity Date $ 9,881,250
(iv) The Borrower shall be required to repay the principal amount of D
Term Loans on each date set forth below in the amount set forth opposite such
date below (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(B), a "Scheduled D Repayment"):
SCHEDULED D REPAYMENT DATE AMOUNT
the first Business Day in February, 1997 $ 100,000
the first Business Day in May, 1997 $ 100,000
the first Business Day in August, 1997 $ 100,000
the first Business Day in November, 1997 $ 100,000
the first Business Day in February, 1998 $ 100,000
the first Business Day in May, 1998 $ 100,000
the first Business Day in August, 1998 $ 100,000
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the first Business Day in November, 1998 $ 100,000
the first Business Day in February, 1999 $ 100,000
the first Business Day in May, 1999 $ 100,000
the first Business Day in August, 1999 $ 100,000
the first Business Day in November, 1999 $ 100,000
the first Business Day in February, 2000 $ 100,000
the first Business Day in May, 2000 $ 100,000
the first Business Day in August, 2000 $ 100,000
the first Business Day in November, 2000 $ 100,000
the first Business Day in February, 2001 $ 100,000
the first Business Day in May, 2001 $ 100,000
the first Business Day in August, 2001 $ 100,000
the first Business Day in November, 2001 $ 100,000
the first Business Day in February, 2002 $ 100,000
the first Business Day in May, 2002 $ 100,000
the first Business Day in August, 2002 $ 100,000
the first Business Day in November, 2002 $ 100,000
the first Business Day in February, 2003 $ 100,000
the first Business Day in May, 2003 $ 100,000
the first Business Day in August, 2003 $ 100,000
the first Business Day in November, 2003 $ 100,000
the first Business Day in February, 2004 $ 100,000
the first Business Day in May, 2004 $ 100,000
the first Business Day in August, 2004 $ 100,000
the first Business Day in November, 2004 $ 100,000
the first Business Day in February, 2005 $18,400,000
D Term Loan Maturity Date $18,400,000
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(c) On the third Business Day after the date of receipt thereof by
Holdings and/or any of its Subsidiaries (other than Fidata) of Proceeds from
any Asset Sale, an amount equal to 100% of the Net Proceeds from such Asset
Sale shall be applied as a mandatory repayment of principal of the Term Loans
(with the A TL Percentage of such amount to be applied as a repayment of the
A Term Loans, the B TL Percentage of such amount to be applied as a repayment of
the B Term Loans, the C TL Percentage of such amount to be applied as a
repayment of the C Term Loans and the D TL Percentage of such amount to be
applied as a repayment of the D Term Loans, in each case subject to modification
of such application as set forth in Section 4.02(C)), PROVIDED, that with
respect to no more than $5,000,000 in the aggregate of such Proceeds in any
fiscal year of the Borrower, the Net Proceeds therefrom shall not be required
to be so applied on such date to the extent that no Default or Event of Default
then exists and the Borrower delivers a certificate to the Administrative Agent
on or prior to such date stating that such Net Proceeds shall be (1) used to
purchase assets used or to be used in the businesses referred to in
Section 8.01(a) (including, without limitation (but only to the extent permitted
by Section 8.02), capital stock of a corporation engaged in any such business)
within 367 days following the date of such Asset Sale (which certificate shall
set forth the estimates of the proceeds to be so expended) and (2) deposited in
an escrow account with the Collateral Agent for the benefit of the Secured
Creditors (the "Asset Sale Escrow Account"), to the extent such Net Proceeds
have not been reinvested as provided in clause (1) of this proviso within 180
days, during which time such proceeds may be only withdrawn to repay the Loans
or to be used for purposes described in clause (1) of this proviso, PROVIDED,
FURTHER, that (1) if all or any portion of such Net Proceeds not so applied to
the repayment of Term Loans are not so used (or contractually committed to be
used) within such 367 day period or, if after such 180 day period, have not been
placed in the Asset Sale Escrow Account, as provided above, such remaining
portion shall be applied on the last day of the respective period as a mandatory
repayment of principal of outstanding Term Loans as provided above in this
Section 4.02(A)(c) and (2) if all or any portion of such Net Proceeds are not
required to be applied on the 367th day referred to in clause (1) above because
such amount is contractually committed to be used and subsequent to such date
such contract is terminated or expires without such portion being so used, then
such remaining portion shall be applied on the date of such termination or
expiration as a mandatory repayment of principal of outstanding Term Loans as
provided in this Section 4.02(A)(c).
(d) On the third Business Day after the receipt thereof by Holdings and/or
any of its Subsidiaries (other than Fidata), an amount equal to 100% of the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of the sale or issuance of preferred or common
equity of (or cash capital contributions to) Holdings or any of its Subsidiaries
(other than (t) issuances of Holdings Common Stock by Holdings as consideration
in connection with any Permitted Acquisitions, (u) issuances of Holdings Common
Stock by Holdings on or prior to the Initial Borrowing Date as consideration in
connection with the Equity Exchange, (v) equity contributions received by
Holdings on or prior to the Initial Borrowing Date as part of the Equity
Financing, (w) issuances of Holdings Common Stock (including as a result of
the exercise of any options with regard thereto) to management or other
employees of Holdings and its Subsidiaries, (x) equity contributions to
-29-
the Borrower or any of its Subsidiaries made by Holdings or any of its
Subsidiaries, (y) the first $20,000,000 of net cash proceeds received by
Holdings after the Initial Borrowing Date from the issuance of preferred or
common equity other than as provided in clauses (t) through (x) above or clause
(z) below, and (z) up to $16,800,000 net cash proceeds received by Holdings
(1) from a capital contribution by Picower and/or any of his Affiliates,
(2) from the issuance of Holdings Common Stock to Picower and/or any of his
Affiliates or (3) from the issuance of Holdings Common Stock in any public
offering which occurs after June 30, 2001, to the extent used to repay,
repurchase or acquire the 7-1/4% Debentures pursuant to Section 8.15(i)), shall
be applied as a mandatory repayment of principal of the Term Loans (with the A
TL Percentage of such amount to be applied as a repayment of the A Term Loans,
the B TL Percentage of such amount to be applied as a repayment of the B Term
Loans, the C TL Percentage of such amount to be applied as a repayment of the
C Term Loans and the D TL Percentage of such amount to be applied as a repayment
of the D Term Loans, in each case subject to modification of such application as
set forth in Section 4.02(C)).
(e) On the third Business Day after the receipt thereof by Holdings and/or
any of its Subsidiaries (other than Fidata), an amount equal to 100% of the
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of the incurrence of Indebtedness by Holdings and/or
any of its Subsidiaries (other than Indebtedness permitted to be incurred by
Section 8.04 as in effect on the Effective Date) shall be applied as a mandatory
repayment of principal of the Term Loans (with the A TL Percentage of such
amount to be applied as a repayment of the A Term Loans, the B TL Percentage of
such amount to be applied as a repayment of the B Term Loans, the C TL
Percentage of such amount to applied as a repayment of the C Term Loans and the
D TL Percentage of such amount to be applied as a repayment of the D Term Loans,
in each case subject to modification of such application as set forth in
Section 4.02(C)).
(f) On each Excess Cash Payment Date, an amount equal to 75% of Excess
Cash Flow of the Borrower and its Subsidiaries for the most recent Excess Cash
Flow Period ending prior to such Excess Cash Payment Date shall be applied as
a mandatory repayment of principal of the Term Loans (with the A TL Percentage
of such amount to be applied as a repayment of the A Term Loans, the B TL
Percentage of such amount to be applied as a repayment of the B Term Loans, the
C TL Percentage of such amount to be applied as a repayment of the C Term Loans
and the D TL Percentage of such amount to be applied as a repayment of the
D Term Loans, in each case subject to modification of such application as set
forth in Section 4.02(C)); PROVIDED, that so long as no Default or Event of
Default then exists, if the Leverage Ratio as of the last day of such most
recent Excess Cash Flow Period is less than 3.0:1.0, then, instead of 75%, an
amount equal to 50% of Excess Cash Flow of the Borrower and its Subsidiaries for
such Excess Cash Flow Period shall be applied as a mandatory repayment of Term
Loans as provided above in this Section 4.02(A)(f)).
(g) Within 10 days following each date on which Holdings or any of its
Subsidiaries (other than Fidata) receives any proceeds from any Recovery Event,
an amount equal to 100% of the proceeds of such Recovery Event (net of
reasonable costs and taxes incurred in connec-
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tion with such Recovery Event) shall be applied as a mandatory repayment of
principal of the Term Loans (with the A TL Percentage of such amount to be
applied as a repayment of the A Term Loans, the B TL Percentage of such amount
to be applied as a repayment of the B Term Loans, the C TL Percentage of such
amount to be applied as a repayment of the C Term Loans and the D TL Percentage
of such amount to be applied as a repayment of the D Term Loans, in each case,
subject to modification of such application as set forth in Section 4.02(C)),
PROVIDED that (1) so long as no Default or Event of Default then exists, if the
net proceeds from any Recovery Event are less than $500,000, then no prepayment
shall be required pursuant to this Section 4.02(A)(g), and (2) so long as no
Default or Event of Default then exists, with respect to any single or series of
related Recovery Events the net proceeds from which are equal to or greater than
$500,000 but less than $5,000,000, such proceeds shall not be required to be so
applied on such date to the extent that (x) the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used to replace or restore any properties or assets in
respect of which such proceeds were paid within 367 days following the date of
the receipt of such proceeds (which certificate shall set forth the estimates
of the proceeds to be so expended) and (y) such proceeds are deposited in an
escrow account with the Collateral Agent for the benefit of the Secured
Creditors (the "Recovery Event Escrow Account"), from which escrow account
amounts may be withdrawn only to repay the Loans or to be used for the purposes
described in clause (x) above, PROVIDED, FURTHER, that (i) if the amount of such
proceeds from any single or series of related Recovery Events exceeds
$5,000,000, then the entire amount and not just the portion in excess of
$5,000,000 shall be applied as a mandatory repayment of Term Loans as provided
above in this Section 4.02(A)(g), (ii) if all or any portion of such proceeds
not required to be applied to the repayment of Term Loans pursuant to the first
proviso of this Section 4.02(A)(g) are not so used (or contractually committed
to be used) within 367 days after the date of the receipt of such proceeds, such
remaining portion shall be applied on the last day of such period as a
mandatory repayment of principal of the Term Loans as provided in this
Section 4.02(A)(g) and (iii) if all or any portion of such proceeds are not
required to be applied on the 367th day referred to in clause (ii) above because
such amount is contractually committed to be used and subsequent to such date
such contract is terminated or expires without such portion being so used, then
such remaining portion shall be applied on the date of such termination or
expiration as a mandatory repayment of principal of outstanding Term Loans as
provided in this Section 4.02(A)(g).
(h) On the third Business Day after the receipt thereof by Holdings and/or
any of its Subsidiaries (other than Fidata) of a Pension Plan Refund, an amount
equal to 100% of such Pension Plan Refund shall be applied as a mandatory
repayment of principal of the Term Loans (with the A TL Percentage of such
amount to be applied as a repayment of the A Term Loans, the B TL Percentage of
such amount to be applied as a repayment of the B Term Loans, the C TL
Percentage of such amount to be applied as a repayment of the C Term Loans and
the D TL Percentage of such amount to be applied as a repayment of the D Term
Loans, in each case subject to modification of such application as set forth in
Section 4.02(C)).
(i) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, (i) all then outstanding Swingline Loans shall be repaid in full on
the Swingline Expiry Date
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and (ii) all other then outstanding Loans of the respective Facility shall be
repaid in full on the Maturity Date for such Facility.
(j) On the date upon which any Change of Control Event occurs, the
outstanding amount of all Term Loans shall become due and payable in full.
(B) APPLICATION:
(a) All repayments of A Term Loans, B Term Loans, C Term Loans and D Term
Loans shall be applied, if required pursuant to Section 4.02(A)(c),(d),(e),(f),
(g) or (h), to reduce the then remaining Scheduled Repayments of the respective
Facility PRO RATA based on the then remaining Scheduled Repayments of the
respective Facility.
(b) With respect to each repayment of Loans required by this Section 4.02,
the Borrower may designate the Types of Loans which are to be repaid and the
specific Borrowing(s) under the affected Facility pursuant to which made;
PROVIDED, that (i) Eurodollar Loans made pursuant to a specific Facility may be
designated for repayment pursuant to this Section 4.02 only on the last day of
an Interest Period applicable thereto unless all Eurodollar Loans made pursuant
to such Facility with Interest Periods ending on such date of required
prepayment and all Base Rate Loans made pursuant to such Facility have been paid
in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount, such Borrowing shall be
immediately converted into Base Rate Loans; and (iii) each repayment of any
Loans made pursuant to a Borrowing shall be applied PRO RATA among such Loans;
PROVIDED, that no repayment pursuant to Section 4.02(A) (a) shall be applied
to any Revolving Loans of a Defaulting Bank at any time when the aggregate
amount of the Revolving Loans of any Non-Defaulting Bank exceeds such
Non-Defaulting Bank's RL Percentage of Revolving Loans then outstanding. In the
absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11. Notwithstanding the foregoing
provisions of this Section 4.02(B)(b), if at any time the mandatory prepayment
of Loans pursuant to Section 4.02(A)(c), (d), (e), (g) or (h) would result,
after giving effect to the procedures set forth above in this clause (b), in
the Borrower incurring breakage costs under Section 1.11 as a result of
Eurodollar Loans being repaid other than on the last day of an Interest Period
applicable thereto (the "Affected Eurodollar Loans"), then the Borrower may in
its sole discretion initially deposit a portion (up to 100%) of the amounts that
otherwise would have been paid in respect of the Affected Eurodollar Loans with
the Administrative Agent to be held as security for the obligations of the
Borrower hereunder pursuant to a cash collateral agreement to be entered into in
form and substance satisfactory to the Administrative Agent, with such cash
collateral to be released from such cash collateral account upon the first
occurrence (or occurrences) thereafter of the last day of an Interest Period
applicable to the relevant Loans that are Eurodollar Loans (or such earlier date
or dates as shall be requested by the Borrower), to repay an aggregate
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principal amount of such Loans equal to the Affected Eurodollar Loans not
initially repaid pursuant to this sentence.
(C) WAIVER OF CERTAIN MANDATORY
REPAYMENTS BY B, C AND D BANKS:
Notwithstanding anything to the contrary contained in this Section 4.02 or
elsewhere in this Agreement (including, without limitation, in Section 12.12),
the Borrower shall have the option, in its sole discretion, to give the Banks
with outstanding B Terms Loans (the "B Banks"), C Term Loans (the "C Banks")
and D Term Loans (the "D Banks") the option to (i) waive the voluntary repayment
application requirements of such Loans pursuant to Section 4.01(a)(vii), (viii)
or (ix) (each such repayment, a "Waivable Voluntary Repayment") or (ii) waive
a mandatory repayment of such Loans pursuant to Section 4.02(A)(c), (d), (e),
(f), (g) and/or (h) (each such repayment, a "Waivable Mandatory Repayment"), in
each case, upon the terms and provisions set forth in this Section 4.02(C). If
the Borrower elects to exercise either option referred to in the preceding
sentence, the Borrower shall give to the Administrative Agent written notice of
its intention to give the B Banks, the C Banks and the D Banks the right to
waive a Waivable Mandatory Repayment and/or Waivable Voluntary Repayment, as
the case may be, at least five Business Days prior to such repayment, which
notice the Administrative Agent shall promptly forward to all B Banks, C Banks
and D Banks (indicating in such notice the amount of such repayment to be
applied to each such Bank's outstanding Term Loans under such Facilities). The
Borrower's offer to permit such Banks to waive any such Waivable Mandatory
Repayment and/or Waivable Voluntary Repayment, as the case may be, may apply to
all or part of such repayment, PROVIDED, that any offer to waive part of such
repayment must be made ratably to such Banks on the basis of their outstanding
B Term Loans, C Term Loans and D Term Loans. In the event any such B Bank,
C Bank or D Bank desires to waive such Bank's right to receive any such Waivable
Mandatory Repayment and/or Waivable Voluntary Repayment, as the case may be, in
whole or in part, such Bank shall so advise the Administrative Agent no later
than the close of business two Business Days after the date of such notice from
the Administrative Agent, which notice shall also include the amount such Bank
desires to receive in respect of such repayment. If any Bank does not reply to
the Administrative Agent within the two Business Days, it will be deemed not to
have waived any part of such repayment. If any Bank does not specify an amount
it wishes to receive, it will be deemed to have accepted 100% of the total
payment. In the event that any such Bank waives all or part of such right to
receive any such Waivable Mandatory Repayment, and/or Waivable Voluntary
Repayment, as the case may be, the Administrative Agent shall apply 100% of the
amount so waived by such Bank to the A Term Loans in accordance with
Section 4.02(B).
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable account of the Banks entitled thereto, not
later than 12:00 Noon (New York time) on the date when due and shall be made in
immediately available funds and in U.S. Dollars at the Payment Office, it being
understood that written, telex or facsimile transmission notice by the Borrower
to the Administrative Agent to make a payment from the funds in the Borrower's
account at the
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Payment Office shall constitute the making of such payment to the extent of
such funds held in such account. Any payments under this Agreement which are
made later than 12:00 Noon (New York time) shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at
the applicable rate in effect immediately prior to such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. If any
amounts are payable in respect of Taxes pursuant to the preceding sentence,
the Borrower agrees to reimburse each Bank, upon the written request of such
Bank, for taxes imposed on or measured by the net income or net profits of
such Bank pursuant to the laws of the jurisdiction in which such Bank is
organized or in which the principal office or applicable lending office of such
Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Bank is organized or in which
the principal office or applicable lending office of such Bank is located and
for any withholding of taxes as such Bank shall determine are payable by, or
withheld from, such Bank, in respect of such amounts so paid to or on behalf of
such Bank pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Bank pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment
of any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Bank, and reimburse such Bank upon its written request, for
the amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees
to deliver to the Borrower and the Administrative Agent on or prior to the
Effective Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section
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1.13 or 12.04(b) (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit C (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest (including any original
issue discount) to be made under this Agreement and under any Note. Each Bank
that is a United States person (as such term is defined in Section 7701(a)(30)
of the Code) and is a party hereto on the Initial Borrowing Date (and each Bank
that is a United States person (as such term is defined in Section 7701(a)(30)
of the Code) and becomes a party hereto after the Initial Borrowing Date), in
each case, that is not a corporation (as such term is defined in
Section 7701(a)(3) of the Code) agrees to deliver to the Borrower and the
Administrative Agent on or prior to the first interest payment date on the Loans
(or in the case of an assignee or transferee Bank, promptly after becoming a
party hereto) two accurate and complete original signed copies of Internal
Revenue Service Form W-9 (or a substitute form) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note. In
addition, each Bank agrees that from time to time after the Effective Date, when
a lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect or otherwise renders the previous
certification ineffective in establishing such Bank's complete exemption from
United States withholding tax, such Bank will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver
any such Form or Certificate, in which case such Bank shall not be required to
deliver any such Form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 12.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest
(including any original issue discount), Fees or other amounts payable hereunder
for the account of any Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
and any Bank which is a United States person (as such term is defined in Section
7701(a)(30) of the Code) that is not a corporation as such term is defined in
Section 7701(a)(3) of the Code, to the extent that such Bank has not provided
to the Borrower U.S. Internal Revenue Service Forms that establish (to the
reasonable satisfaction of the
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Borrower) a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Bank in respect of income or similar taxes
imposed by the United States if (I) such Bank has not provided to the
Borrower the Internal Revenue Service Forms required to be provided to the
Borrower pursuant to this Section 4.04(b) or (II) in the case of a payment,
other than interest, to a Bank described in clause (ii) above, to the extent
that such Forms do not establish a complete exemption from withholding of
such taxes. Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 12.04(b), the Borrower agrees to pay any additional amounts and to
indemnify each Bank in the manner set forth in Section 4.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the
deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this Section
4.04 to a Bank and such Bank determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to
the taxable year in which the additional amount is paid, such Bank shall pay
to the Borrower an amount that such Bank shall, in its sole discretion,
determine is equal to the net benefit, after tax, which was obtained by such
Bank in such year as a consequence of such refund, reduction or credit.
SECTION 5. CONDITIONS PRECEDENT. The obligation of each Bank to make
each Loan to the Borrower hereunder, and the obligation of any Letter of
Credit Issuer to issue each Letter of Credit hereunder, is subject, at the
time of each such Credit Event (except as otherwise hereinafter indicated),
to the satisfaction of the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the Initial
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there
shall have been delivered to the Administrative Agent for the account of each
Bank the appropriate A Term Note, B Term Note, C Term Note, D Term Note and
Revolving Note, if any, and to BTCo the Swingline Note, in each case executed
by the Borrower and in the amount, maturity and as otherwise provided herein.
5.02 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Credit Event, unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date.
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5.03 OFFICER'S CERTIFICATE. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate dated such date signed
by an appropriate officer of the Borrower stating that all of the applicable
conditions set forth in Sections 5.02, 5.06, 5.07, 5.08 and 5.09 exist as of
such date.
5.04 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the Agents
shall have received opinions, addressed to the Agents and each of the Banks
and dated the Initial Borrowing Date, from (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky ▇▇▇▇▇▇▇
Shalov & ▇▇▇▇, counsel to the Credit Parties, which opinion shall cover the
matters contained in Exhibit D and such other matters incident to the
transactions contemplated herein as the Agents or the Required Banks may
reasonably request and (ii) local counsel to the Credit Parties reasonably
satisfactory to the Agents, which opinions shall cover such matters incident
to the transactions contemplated herein and in the other Credit Documents as
the Agents or the Required Banks may reasonably request and shall be in form
and substance reasonably satisfactory to the Agents or the Required Banks.
5.05 CORPORATE PROCEEDINGS. (a) On the Initial Borrowing Date, the
Administrative Agent shall have received from each Credit Party a
certificate, dated the Initial Borrowing Date, signed by the chairman, a vice
chairman, the president or any vice-president of such Credit Party, and
attested to by the secretary or any assistant secretary of such Credit Party,
in the form of Exhibit E with appropriate insertions, together with copies of
the Certificate of Incorporation and By-Laws of such Credit Party and the
resolutions of such Credit Party referred to in such certificate and all of
the foregoing (including each such Certificate of Incorporation and By-Laws)
shall be satisfactory to the Agents or the Required Banks.
(b) On the Initial Borrowing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Agents or the Required Banks, and
the Agents or the Required Banks shall have received all information and
copies of all certificates, documents and papers, including good standing
certificates, bring-down certificates and any other records of corporate
proceedings and governmental approvals, if any, which the Agents or the
Required Banks reasonably may have requested in connection therewith, such
documents and papers, where appropriate, to be certified by proper corporate
or governmental authorities.
(c) On the Initial Borrowing Date, the ownership and capital structure
(including, without limitation, the terms of any capital stock, options,
warrants or other securities issued by Holdings or any of its Subsidiaries)
and management of Holdings and its Subsidiaries and the Borrower and its
Subsidiaries shall be in form and substance reasonably satisfactory to the
Agents or the Required Banks.
5.06 ADVERSE CHANGE, ETC. On or prior to the Initial Borrowing Date,
nothing shall have occurred since December 31, 1995 (and neither the Banks
nor the Agents shall have become aware of any facts or conditions not
previously known) which the Agents or the
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Required Banks shall determine (a) has, or could reasonably be expected to
have, a material adverse effect on the rights or remedies of the Banks or the
Agents and Required Banks, or on the ability of any Credit Party to perform
its obligations to them hereunder or under any other Credit Document or (b)
has, or could reasonably be expected to have, a Material Adverse Effect.
5.07 LITIGATION. On the Initial Borrowing Date, there shall be no
actions, suits or proceedings pending or threatened (a) with respect to the
Transaction, this Agreement or any other Document or (b) which the Agents or
the Required Banks shall determine could reasonably be expected to (i) have a
Material Adverse Effect or (ii) have a material adverse effect on the
Transaction, the rights or remedies of the Banks or the Agents hereunder or
under any other Credit Document or on the ability of any Credit Party to
perform its respective obligations to the Banks or the Agents hereunder or
under any other Credit Document.
5.08 APPROVALS. On or prior to the Initial Borrowing Date, all
necessary governmental (domestic and foreign) and third party approvals in
connection with the Transaction, the transactions contemplated by the
Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, except those approvals required in connection
with the Acquisition, the IMED Merger and the IVAC Merger, the failure to
obtain which is not reasonably likely to have a Material Adverse Effect, and
all applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes
materially adverse conditions upon the consummation of the Transaction, the
transactions contemplated by the Documents and otherwise referred to herein
or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing
materially adverse conditions upon the consummation of the Transaction or the
making of Loans or the issuance of Letters of Credit.
5.09 CONSUMMATION OF THE TRANSACTION. (a) On the Initial Borrowing
Date, concurrently with the incurrence of Loans on such date, the Acquisition
shall have been consummated in accordance with the Acquisition Documents and
all applicable laws, and each of the conditions precedent to the consummation
of the Acquisition (other than the incurrence of Loans under this Agreement
but including, without limitation, the accuracy in all material respects of
the representations and warranties contained in the Acquisition Agreement)
shall have been satisfied and not waived except with the consent of the
Agents and the Required Banks to the satisfaction of the Agents and the
Required Banks.
(b) On or prior to the Initial Borrowing Date, (i) Holdings shall have
received proceeds of at least $87,500,000 from the Equity Financing,
consisting of (x) $40,000,000 in cash in connection with the Cash Equity
Issuance, (y) conversion to equity in connection with the Equity Exchange
valued at $37,500,000 and (z) the equity issuance valued at $10,000,000 in
connection with the Picower Payment, (ii) Holdings shall have used (x) such
cash proceeds received in respect of the Cash Equity Issuance and (y) the
available cash on its books, to make certain payments owing in connection
with the Transaction (including payments to fund the
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Account referred to in Section 5.09(f) below and to fund
the Preferred Stock Escrow Account referred to in Section 5.09(g) below) and
after making such payments, shall have contributed the full amount of the
remaining net cash proceeds and the available cash (other than an amount
equal to the Permitted Fidata Amount) to the common equity of the Borrower
and (iii) the Borrower shall have utilized the full amount of such common
capital contribution to make payments owing in connection with the
Transaction prior to or concurrently with utilizing any proceeds of the Loans.
(c) On or prior to the Initial Borrowing Date, (i) the Borrower shall
have received gross cash proceeds of at least $200,000,000 from the issuance
of the Senior Subordinated Notes (it being understood that such cash proceeds
shall include all amounts directly applied to pay underwriting and placement
commissions and discounts and related fees) and (ii) the Borrower shall have
utilized the full amount of such cash proceeds to make payments owing in
connection with the Transaction prior to or concurrently with utilizing any
proceeds of the Loans for such purpose.
(d)(i) On the Initial Borrowing Date, the total commitments in respect
of the Indebtedness to be Refinanced shall have been terminated, and all
loans and notes with respect thereto shall have been repaid in full, together
with interest thereon, all letters of credit issued thereunder shall have
been terminated and all other amounts (including premiums) owing pursuant to
the Indebtedness to be Refinanced shall have been repaid in full and all
documents in respect of the Indebtedness to be Refinanced and all guarantees
with respect thereto shall have been terminated (except as to indemnification
provisions, which may survive) and be of no further force and effect.
(ii) On the Initial Borrowing Date, the creditors in respect of the
Indebtedness to be Refinanced shall have terminated and released all security
interests and Liens on the assets owned by Holdings and its Subsidiaries and
IVAC Holdings and its Subsidiaries. The Administrative Agent shall have
received such releases of security interests in and Liens on the assets owned
by Holdings and its Subsidiaries and IVAC Holdings and its Subsidiaries as
may have been requested by the Administrative Agent, which releases shall be
in form and substance reasonably satisfactory to the Agents and Required
Banks. Without limiting the foregoing, there shall have been delivered (i)
proper termination statements (Form UCC-3 or the appropriate equivalent) for
filing under the UCC of each jurisdiction where a financing statement (Form
UCC-1 or the appropriate equivalent) was filed with respect to Holdings or
any of its Subsidiaries or IVAC Holdings or any of its Subsidiaries in
connection with the security interests created with respect to the
Indebtedness to be Refinanced and the documentation related thereto, (ii)
termination or reassignment of any security interest in, or Lien on, any
patents, trademarks, copyrights, or similar interests of Holdings or any of
its Subsidiaries or IVAC Holdings or any of its Subsidiaries on which filings
have been made, (iii) terminations of all mortgages, leasehold mortgages,
deeds of trust and leasehold deeds of trust created with respect to property
of Holdings or any of its Subsidiaries or IVAC Holdings or any of its
Subsidiaries, in each case, to secure the obligations in respect of the
Indebtedness to be Refinanced, all of which shall be in form and substance
reasonably satisfactory to the Agents
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and Required Banks, and (iv) all collateral owned by Holdings or any of its
Subsidiaries or IVAC Holdings or any of its Subsidiaries in the possession of
any of the creditors in respect of the Indebtedness to be Refinanced or any
collateral agent or trustee under any related security document shall have
been returned to Holdings or such Subsidiary or IVAC Holdings or any of its
Subsidiaries, as the case may be.
(e) On or prior to the Initial Borrowing Date, IVAC shall have
commenced the Existing Senior Notes Tender Offer/Consent Solicitation,
pursuant to which IVAC shall have offered to repurchase all Existing Senior
Notes, such repurchase to take place on the Initial Borrowing Date,
immediately following the Acquisition, pursuant to Section 7.18. On or prior
to the Initial Borrowing Date, IVAC shall have received sufficient Existing
Senior Notes Consents pursuant to the Existing Senior Notes Tender
Offer/Consent Solicitation to permit the Acquisition, the IMED Merger, the
IVAC Merger and all other elements of the Transaction.
(f) On or prior to the Initial Borrowing Date, Holdings shall have
initiated the redemption of the 15% Debentures in the principal amount of
$21,924,000 (the "Debentures Redemption"), whereby (a) Holdings shall have
created an escrow account with the Administrative Agent the terms and
conditions of which shall be satisfactory to the Agents (the "Debentures
Escrow Account") into which Holdings shall have deposited $24,116,400 plus
accrued but unpaid interest on the 15% Debentures through the respective
redemption date for the purpose of consummating the Debentures Redemption and
(b) on the Initial Borrowing Date, notices of redemption in accordance with
the terms of the indentures governing the 15% Debentures (the "Notice of
Debentures Redemption") shall have been delivered to the trustee relating
thereto and the holders of such 15% Debentures, notifying such trustee and
holders of the Debentures Redemption to take place 30 days after the Notices
of Debentures Redemption have been delivered to the holders of such 15%
Debentures.
(g) On or prior to the Initial Borrowing Date, Holdings shall have
initiated the redemption of all of its outstanding Holdings Preferred Stock
(the "Holdings Preferred Stock Redemption") for consideration equal to
$7,349,561.21 whereby (a) Holdings shall have created an escrow account with
the Administrative Agent the terms and conditions of which shall be
satisfactory to the Agents (the "Preferred Stock Escrow Account") into which
Holdings shall have deposited $7,349,561.21 for the purpose of consummating
the Holdings Preferred Stock Redemption and (b) on or prior to the Initial
Borrowing Date, notices of redemption in accordance with the terms of the
Holdings Preferred Stock (the "Notice of Preferred Stock Redemption") shall
have been delivered to the holders of the Holdings Preferred Stock notifying
such holders of the Holdings Preferred Stock Redemption to take place no
later than December 16, 1996.
(h) On the Initial Borrowing Date, all applicable laws, and each of the
conditions precedent to the consummation of the IVAC Merger (other than the
incurrence of Loans under this Agreement, to the extent a condition precedent
thereunder but including, without limitation, the accuracy in all material
respects of the representations and warranties contained in the
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IVAC Merger Documents) shall have been satisfied and not waived except with
the consent of the Agents and the Required Banks to the satisfaction of the
Agents and the Required Banks.
(i) On the Initial Borrowing Date, all applicable laws, and each of the
conditions precedent to the consummation of the IMED Merger (other than the
incurrence of Loans under this Agreement, to the extent a condition precedent
thereunder but including, without limitation, the accuracy in all material
respects of the representations and warranties contained in the IMED Merger
Documents) shall have been satisfied and not waived except with the consent
of the Agents and the Required Banks to the satisfaction of the Agents and
the Required Banks.
(j) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Banks true and correct copies of all Documents entered into
in connection with the Transaction (including, without limitation,
Acquisition Documents, the Existing Senior Notes Tender Offer/Consent
Solicitation Documents, the Refinancing Documents, the Senior Subordinated
Notes Documents, the Equity Financing Documents, the IVAC Merger Documents,
the IMED Merger Documents and the documents relating to the Debentures
Redemption and the Holdings Preferred Stock Redemption), and all of the terms
and conditions of such Documents (including, without limitation, with respect
to the Senior Subordinated Notes Documents, amortization, maturities,
interest rates, covenants, defaults, remedies, sinking fund provisions, and
subordination provisions), as well as the structure of the Transaction, shall
be in form and substance satisfactory to the Agents and the Required Banks.
(k) All conditions precedent to the consummation of the Transaction as
set forth in the documentation related thereto shall have been satisfied
(except as otherwise provided in this Section 5.09).
5.10 PLEDGE AGREEMENT. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered a Pledge Agreement
in the form of Exhibit F, together with such changes (or with such other
documents) as may be requested by the Collateral Agent in connection with
local law (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Pledge Agreement") and
shall have delivered to the Collateral Agent, as pledgee thereunder, all of
the Pledged Securities referred to therein, endorsed in blank in the case of
promissory notes or accompanied by executed and undated stock powers in the
case of capital stock, and the Pledge Agreement and such other documents
shall be in full force and effect.
5.11 SECURITY AGREEMENT. On the Initial Borrowing Date, each Credit
Party shall have duly authorized, executed and delivered a Security Agreement
in the form of Exhibit G, together with such changes (or with such other
documents) as may be requested by the Collateral Agent in connection with
local law (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Security Agreement")
covering all of the Security Agreement Collateral, together with:
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(A) executed copies of Financing Statements (Form UCC-1 and/or
UCC-3) or appropriate local equivalent in appropriate form for filing
under the UCC or appropriate local equivalent of each jurisdiction as
may be necessary to perfect the security interests purported to be
created by the Security Agreement;
(B) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all
effective financing statements that name Holdings, the Borrower or any
of their respective Subsidiaries or a division or operating unit of any
such Person, as debtor, and that are filed in the jurisdictions
referred to in clause (A) above, together with copies of such financing
statements (none of which shall cover the Collateral except (x) those
with respect to which appropriate termination statements executed by
the secured lender thereunder have been delivered to the Administrative
Agent and (y) to the extent evidencing Permitted Liens);
(C) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interests intended to be created by the Security
Agreement; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the Security Agreement
have been taken;
and the Security Agreement and such other documents shall be in full force
and effect.
5.12 MORTGAGES; TITLE INSURANCE; SURVEYS, ETC. (a) On the Initial
Borrowing Date, the Collateral Agent shall have received fully executed
counterparts of deeds of trust, mortgages and similar documents in each case
in form and substance satisfactory to the Collateral Agent (as amended,
modified or supplemented from time to time in accordance with the terms
hereof and thereof, each a "Mortgage" and collectively, the "Mortgages") with
respect to each of the Mortgaged Properties located in the United States, and
arrangements reasonably satisfactory to the Collateral Agent shall be in
place to provide that counterparts of such Mortgages shall be recorded on the
Initial Borrowing Date in all places to the extent necessary or desirable, in
the judgment of the Collateral Agent, effectively to create a valid and
enforceable first priority Lien, subject only to Permitted Encumbrances, on
each such Mortgaged Property in favor of the Collateral Agent (or such other
trustee as may be required or desired under local law) for the benefit of the
Secured Creditors.
(b) On the Initial Borrowing Date, the Collateral Agent shall have
received mortgagee title insurance policies (or binding commitments to issue
such title insurance policies) issued by title insurers reasonably
satisfactory to the Collateral Agent (the "Mortgage Policies") in amounts
reasonably satisfactory to the Collateral Agent and assuring the Collateral
Agent that the Mortgages are valid and enforceable first priority mortgage
Liens on the respective Mortgaged Properties, free and clear of all defects
and encumbrances except Permitted Encum-
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brances. Such Mortgage Policies shall be in form and substance reasonably
satisfactory to the Collateral Agent and (i) shall include an endorsement for
future advances under this Agreement, the Notes and the Mortgages and for any
other matter that the Collateral Agent in its discretion may reasonably
request (to the extent available in the respective jurisdiction of each
Mortgaged Property), (ii) shall not include an exception for mechanics'
liens, and (iii) shall provide for affirmative insurance and such reinsurance
(including direct access agreements) as the Collateral Agent in its
discretion may reasonably request.
(c) On the Initial Borrowing Date, the Collateral Agent shall have also
received surveys in form and substance reasonably satisfactory to the
Collateral Agent of each Mortgaged Property designated as "owned" on Annex
III hereto, dated a recent date reasonably acceptable to the Collateral
Agent, certified in a manner reasonably satisfactory to the Collateral Agent
by a licensed professional surveyor reasonably satisfactory to the Collateral
Agent. The Collateral Agent shall also have received such estoppel letters,
landlord waiver letters, non-disturbance letters and similar assurances as
may have been requested by the Collateral Agent, which letters shall be in
form and substance reasonably satisfactory to the Collateral Agent.
5.13 PLANS; COLLECTIVE BARGAINING AGREEMENTS; EXISTING INDEBTEDNESS
AGREEMENTS; SHAREHOLDERS' AGREEMENTS; MANAGEMENT AGREEMENTS; EMPLOYMENT
AGREEMENTS; NON-COMPETE AGREEMENTS; TAX SHARING AGREEMENTS; MATERIAL
CONTRACTS. On or prior to the Initial Borrowing Date, there shall have been
delivered to the Banks copies, certified as true and correct by an
appropriate officer of the Borrower, of:
(a) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial valuation
therefor) and any other "employee benefit plans," as defined in Section
3(3) of ERISA, and any other material agreements, plans or
arrangements, with or for the benefit of current or former employees of
the Borrower or any of its Subsidiaries or IVAC Holdings or any of its
Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
apply in the case of any multiemployer plan, as defined in 4001(a)(3)
of ERISA, only to the extent that any document described therein is in
the possession of the Borrower or any Subsidiary of the Borrower or
IVAC Holdings or any Subsidiary of IVAC Holdings or any ERISA Affiliate
or reasonably available thereto from the sponsor or trustee of any such
plan);
(b) any collective bargaining agreements or any other similar
agreement or arrangement covering the employees of Holdings or any of
its Subsidiaries or IVAC Holdings or any of its Subsidiaries
(collectively, the "Collective Bargaining Agreements");
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(c) all agreements evidencing or relating to the Indebtedness to
Remain Outstanding that are to remain in effect after giving effect to
the consummation of the Transaction (collectively, the "Existing
Indebtedness Agreements");
(d) all other agreements entered into by Holdings or any of
its Subsidiaries or IVAC Holdings or any of its Subsidiaries governing
the terms and relative rights of its capital stock, and any agreements
entered into by shareholders relating to any such entity with respect
to their capital stock, in each case that are to remain in effect after
giving effect to the consummation of the Transaction (collectively, the
"Shareholders' Agreements");
(e) any material agreements (or the forms thereof) with members
of, or with respect to, the management of Holdings or any of its
Subsidiaries or IVAC Holdings or any of its Subsidiaries that are to
remain in effect after giving effect to the consummation of the
Transaction, (collectively, the "Management Agreements");
(f) any employment agreements entered into by Holdings or any of
its Subsidiaries or IVAC Holdings or any of its Subsidiaries
(collectively, the "Employment Agreements");
(g) any non-compete agreement entered into by Holdings or any of
its Subsidiaries or IVAC Holdings or any of its Subsidiaries
(collectively, the "Non-Compete Agreements");
(h) any tax sharing, tax allocation agreements or similar
agreements entered into by Holdings or any of its Subsidiaries or IVAC
Holdings or any of its Subsidiaries (collectively, the "Tax Sharing
Agreements"); and
(i) all material contracts and licenses of Holdings or any of its
Subsidiaries or IVAC Holdings or any of its Subsidiaries that are to
remain in effect after giving effect to the consummation of the
Transaction (collectively, the "Material Contracts");
all of which Plans, Collective Bargaining Agreements, Existing Indebtedness
Agreements, Shareholders' Agreements, Management Agreements, Employment
Agreements, Non-Compete Agreements, Tax Sharing Agreements and Material
Contracts shall be in form and substance reasonably satisfactory to the
Agents and Required Banks and shall be in full force and effect on the
Initial Borrowing Date.
5.14 SOLVENCY OPINION; ENVIRONMENTAL ANALYSES; EVIDENCE OF INSURANCE.
On the Initial Borrowing Date, the Banks shall have received:
(a) a solvency opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇,
addressed to the Agents and each of the Banks and dated the Initial
Borrowing Date and supporting the conclusions, that, after giving
effect to the Transaction and the incurrence of all
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financings contemplated herein, each of Holdings and its Subsidiaries
(including, without limitation, IVAC Holdings and its Subsidiaries) (on
a consolidated basis), the Borrower and its Subsidiaries (including,
without limitation, IVAC Holdings and its Subsidiaries) (on a
consolidated basis) and the Borrower (on a stand-alone-basis) are not
insolvent and will not be rendered insolvent by the indebtedness
incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in their respective businesses and
will not have incurred debts beyond their ability to pay such debts as
they mature and become due;
(b) environmental assessments from ▇▇▇▇▇ Associates, the results
of which shall be in form and substance reasonably satisfactory to the
Agents and the Required Banks; and
(c) evidence of insurance complying with the requirements of
Section 7.03 for the business and properties of Holdings and its
Subsidiaries (including, without limitation, IVAC Holdings and its
Subsidiaries), in scope, form and substance reasonably satisfactory to
the Agents and the Required Banks and naming the Collateral Agent as an
additional insured, mortgagee and/or loss payee, and stating that such
insurance shall not be cancelled or revised without 30 days prior
written notice by the insurer to the Collateral Agent.
5.15 PRO FORMA BALANCE SHEETS. On or prior to the Initial Borrowing
Date, there shall have been delivered to the Agents and the Required Banks,
an unaudited PRO FORMA consolidated balance sheet of each of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries after giving effect to the
Transaction, prepared in accordance with Regulation S-X, together with a
related funds flow statement, which PRO FORMA balance sheets and funds flow
statement shall be reasonably satisfactory in form and substance to the
Agents and the Required Banks.
5.16 PROJECTIONS. On or prior to the Initial Borrowing Date, the Banks
shall have received the financial projections (the "Projections") set forth
on Annex IV hereto, for the eight fiscal years ended after the Initial
Borrowing Date.
5.17 INDEBTEDNESS TO REMAIN OUTSTANDING. On the Initial Borrowing Date
and after giving effect to the Transaction and the Loans incurred on the
Initial Borrowing Date, neither Holdings nor any of its Subsidiaries shall
have any preferred stock or Indebtedness outstanding except for the Loans,
the Senior Subordinated Notes, the 15% Debentures (but only for 30 days
following the Initial Borrowing Date), the Indebtedness to Remain
Outstanding, the Holdings Preferred Stock (but only until December 16, 1996)
and Indebtedness permitted pursuant to Sections 8.04(d), (f), (g), (h), (i),
(j), (k) and (o). On and as of the Initial Borrowing Date, all of the
Indebtedness to Remain Outstanding shall remain outstanding after giving
effect to the Transaction and the other transactions contemplated hereby
without any default or events of default existing thereunder or arising as a
result of the Transaction and the other transactions contemplated hereby
(except to the extent amended or waived by the parties thereto on terms and
conditions satisfactory to the Agents and the Required Banks), and there
shall not be any
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amendments or modifications to the Existing Indebtedness Agreements other
than as requested or approved by the Agents or the Required Banks. On and as
of the Initial Borrowing Date, the Agents and the Required Banks shall be
satisfied with the amount of and the terms and conditions of all Indebtedness
to Remain Outstanding.
5.18 PAYMENT OF FEES. On the Initial Borrowing Date, all costs, fees
and expenses, and all other compensation contemplated by this Agreement, due
to the Administrative Agent, the Documentation Agent, the Syndication Agents
or the Banks (including, without limitation, legal fees and expenses) shall
have been paid to the extent due.
5.19 NOTICE OF BORROWING. The Administrative Agent shall have received
a Notice of Borrowing satisfying the requirements of Section 1.03 with
respect to each incurrence of Loans, and the Administrative Agent and the
respective Letter of Credit Issuer shall have received a Letter of Credit
Request satisfying the requirements of Section 2.02 with respect to each
issuance of a Letter of Credit.
5.20 SUBSIDIARY GUARANTY. On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiary Guaranty in the form of Exhibit H (as modified, amended or
supplemented from time to time in accordance with the terms hereof and
thereof, the "Subsidiary Guaranty"), and the Subsidiary Guaranty shall be in
full force and effect.
5.21 FINANCIAL STATEMENTS. On or prior to the Initial Borrowing Date,
the Agents shall have received audited consolidated financial statements for
IVAC Holdings (excluding River Medical) for the fiscal year ending December
31, 1995, which shall be in form and substance satisfactory to the Agents.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Banks that
all of the applicable conditions specified above exist as of the date of such
Credit Event. All of the certificates, legal opinions and other documents
and papers referred to in this Section 5, unless otherwise specified, shall
be delivered to the Administrative Agent at its Notice Office for the account
of each of the Banks and, except for the Notes, in sufficient counterparts
for each of the Banks and shall be satisfactory in form and substance to the
Administrative Agent and the Required Banks.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans and issue
and/or participate in the Letters of Credit provided for herein, each of
Holdings and the Borrower makes the following representations, warranties and
agreements with the Banks in each case after giving effect to the
Transaction, all of which shall survive the execution and delivery of this
Agreement, the making of the Loans and the issuance of the Letters of Credit
(with the occurrence of each Credit Event being deemed to constitute a
representation and warranty that the matters specified in this Section 6 are
true and correct in all material respects on and as of the date of each such
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Credit Event, unless stated to relate to a specific earlier date in which all
representations and warranties shall be true and correct in all material
respects as of such earlier date):
6.01 CORPORATE STATUS. Holdings and each of its Subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the
laws of the jurisdiction of its organization, (ii) has the corporate power
and authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure
to be so qualified would have a Material Adverse Effect.
6.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party has
duly executed and delivered each Document to which it is a party and each
such Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
6.03 NO VIOLATION. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party nor compliance by
them with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any
applicable provision of any law, statute, rule or regulation (other than
those restricting the transfer of government contracts, the non-compliance
with which is not reasonably likely to have a Material Adverse Effect), or
any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or (other than pursuant to the Security
Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of Holdings or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, credit agreement or any other material
agreement or instrument to which Holdings or any of its Subsidiaries is a
party (except agreements breached as a result of the IMED Merger, which
breaches are not reasonably likely to have a Material Adverse Effect) or by
which it or any of its property or assets are bound or to which it may be
subject or (iii) will violate any provision of the Certificate of
Incorporation or By-Laws of Holdings or any of its Subsidiaries.
6.04 LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of Holdings or any of its Subsidiaries, threatened, with
respect to Holdings or any of its Subsidiaries (i) that are likely to have a
Material Adverse Effect or (ii) that could reasonably be expected to have a
material adverse effect on the rights or remedies of the Banks
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or on the ability of any Credit Party to perform its respective obligations
to the Banks hereunder and under the other Credit Documents to which it is,
or will be, a party. Additionally, there does not exist any judgment, order
or injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all
Term Loans shall be utilized (i) to finance the Transaction and (ii) to pay
fees and expenses incurred in connection therewith.
(b) The proceeds of Revolving Loans may be utilized (i) in amounts of
up to $10,000,000 on the Initial Borrowing Date (x) to finance the
Transaction and (y) to pay fees and expenses incurred in connection therewith
and (ii) after the Initial Borrowing Date, for the general corporate and
working capital purposes of the Borrower and its Subsidiaries.
(c) The proceeds of all Swingline Loans shall be utilized for the
general corporate and working capital purposes of the Borrower and its
Subsidiaries.
(d) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate the provisions of Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit for the purpose of purchasing or carrying any Margin Stock.
6.06 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to authorize or is
required in connection with (i) the execution, delivery and performance of
any Document or (ii) the legality, validity, binding effect or enforceability
of any Document (except those consents and approvals required in connection
with the IMED Merger, the failure to obtain which is not reasonably like to
have a Material Adverse Effect).
6.07 INVESTMENT COMPANY ACT. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
6.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Holdings nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.09 TRUE AND COMPLETE DISCLOSURE. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of Holdings
or any of its Subsidiaries in writing to the Agents or any Bank (including,
without limitation, all information contained in the Documents) for purposes
of or in connection with this Agreement or any transaction contemplated
herein is, and all other such factual information (taken as a whole)
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hereafter furnished by or on behalf of any such Persons in writing to either
Agent or any Bank will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under
which such information was provided.
6.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of the
Initial Borrowing Date, on a PRO FORMA basis after giving effect to the
Transaction and to all Indebtedness incurred, and to be incurred (including,
without limitation, the Loans and the Senior Subordinated Notes), and Liens
created, and to be created, by each Credit Party in connection therewith,
with respect to the Borrower (on a stand-alone basis) and each of Holdings
and its Subsidiaries and of the Borrower and its Subsidiaries (each on a
consolidated basis), (x) the sum of the assets, at a fair valuation, of the
Borrower (on a stand-alone basis) and each of Holdings and its Subsidiaries
and of the Borrower and its Subsidiaries (each on a consolidated basis), will
exceed its debts, (y) it has not incurred nor intended to, nor believes that
it will, incur debts beyond its ability to pay such debts as such debts
mature and (z) it will have sufficient capital with which to conduct its
business. For purposes of this Section 6.10, "debt" means any liability on a
claim, and "claim" means (i) right to payment whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or
(ii) right to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(b) The audited consolidated balance sheet of the Borrower for the
fiscal year ended December 31, 1995, and the unaudited consolidated balance
sheet of the Borrower at September 30, 1996, and the related consolidated
statements of operations and cash flows of the Borrower for the fiscal year
or nine-month period, as the case may be, ended as of said dates, which
annual financial statements have been examined by Price Waterhouse LLP,
certified public accountants, who delivered an unqualified opinion with
respect thereto and copies of which have heretofore been delivered to each
Bank, present fairly in all material respects the financial position of the
Borrower and its Subsidiaries on a consolidated basis at the date of said
statements and the results for the periods covered thereby. All such
financial statements have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes to said financial
statements and subject, in the case of the September 30, 1996 statements, to
normal year-end audit adjustments and the absence of footnotes.
(c) The audited consolidated balance sheet of IVAC Holdings for the
fiscal year ended December 31, 1995, and the unaudited consolidated balance
sheet of IVAC Holdings at September 30, 1996, and the related consolidated
statements of operations and cash flows of IVAC Holdings for the fiscal year
or nine-month period, as the case may be, ended as of said dates, which
annual financial statements have been examined by Price Waterhouse LLP,
certified public accountants, who delivered an unqualified opinion with
respect thereto and copies of which have heretofore been delivered to each
Bank, present fairly in all material
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respects the financial position of IVAC Holdings and its Subsidiaries on a
consolidated basis at the date of said statements and the results for the
periods covered thereby. All such financial statements have been prepared in
accordance with GAAP consistently applied except to the extent provided in
the notes to said financial statements and subject, in the case of the
September 30, 1996 statements, to normal year-end audit adjustments and the
absence of footnotes.
(d) The audited consolidated balance sheet of IVAC Holdings (excluding
River Medical) for the fiscal year ended December 31, 1995, and the related
consolidated statements of operations and cash flows of IVAC Holdings
(excluding River Medical) for the fiscal year ended as of said date, which
annual financial statements have been examined by Price Waterhouse LLP,
certified public accountants, who delivered an unqualified opinion with
respect thereto and copies of which have heretofore been delivered to each
Bank pursuant to Section 5.21 of this Agreement, present fairly in all
material respects the financial position of IVAC Holdings and its
Subsidiaries (excluding River Medical) on a consolidated basis at the date of
said statements and the results for the period covered thereby. All such
financial statements have been prepared in accordance with GAAP consistently
applied except to the extent provided in the notes to said financial
statements.
(e) Since December 31, 1995, nothing has occurred that has had or could
reasonably be expected to have a Material Adverse Effect.
(f) Except as fully reflected in the financial statements described in
Sections 6.10(b) and (c) and the Indebtedness incurred under this Agreement
and the Senior Subordinated Notes, there were as of the Initial Borrowing
Date (and after giving effect to any Loans made on such date), no liabilities
or obligations (excluding current obligations incurred in the ordinary course
of business) with respect to Holdings or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due), and neither Holdings nor the Borrower know of any basis
for the assertion against Holdings or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, are
or would be reasonably likely to have, a Material Adverse Effect.
(g) The Projections are based on good faith estimates and assumptions
made by the management of the Borrower, and on the Initial Borrowing Date
such management believed that the Projections were reasonable and attainable,
it being recognized by the Banks, however, that projections as to future
events are not to be viewed as facts and that the actual results during the
period or periods covered by the Projections may differ from the projected
results and that the differences may be material. There is no fact known to
Holdings or any of its Subsidiaries which would have a Material Adverse
Effect, which has not been disclosed herein or in such other documents,
certificates and statements furnished to the Banks for use in connection with
the transactions contemplated hereby.
6.11 SECURITY INTERESTS. On and after the Initial Borrowing Date, each
of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the
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Obligations, a valid and enforceable perfected security interest in and Lien
on all of the Collateral subject thereto, superior to and prior to the rights
of all third Persons and subject to no other Liens (except that the Security
Agreement Collateral, the Mortgaged Properties and the collateral covered by
the Additional Security Documents may be subject to Permitted Liens relating
thereto), in favor of the Collateral Agent. No filings or recordings are
required in order to perfect the security interests created under any
Security Document except for filings or recordings required in connection
with any such Security Document which shall have been made as contemplated by
Section 5.11 or on or prior to the execution and delivery thereof as
contemplated by Sections 7.11, 7.14 and 8.17.
6.12 REPRESENTATIONS AND WARRANTIES IN OTHER DOCUMENTS. All
representations and warranties set forth in the other Documents were true and
correct in all material respects as of the time such representations and
warranties were made and shall be true and correct in all material respects
as of the Initial Borrowing Date as if such representations and warranties
were made on and as of such date, unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date.
6.13 TRANSACTION. At the time of consummation thereof, the Transaction
shall have been consummated in accordance with the terms of the respective
Documents and all applicable laws. At the time of consummation thereof, all
consents and approvals of, and filings and registrations with, and all other
actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction
have been obtained, given, filed or taken or waived and are or will be in
full force and effect (or effective judicial relief with respect thereto has
been obtained) except where the failure to obtain, give, file, or take would
not reasonably be expected to have a Material Adverse Effect. All applicable
waiting periods with respect thereto have or, prior to the time when
required, will have, expired without, in all such cases, any action being
taken by any competent authority which restrains, prevents, or imposes
material adverse conditions upon the Transaction. Additionally, there does
not exist any judgment, order or injunction prohibiting or imposing material
adverse conditions upon the Transaction, or the performance by Holdings and
its Subsidiaries of their obligations under the Documents and all applicable
laws. Notwithstanding the foregoing provisions of this Section 6.13, in
accordance with customary government practices certain government contracts
which are being transferred as part of the Transaction will be novated after
the Initial Borrowing Date.
6.14 COMPLIANCE WITH ERISA IN CONNECTION WITH DOMESTIC PENSION PLANS.
Annex VI sets forth each Plan; each Plan (and each related trust, insurance
contract or fund) is in substantial compliance with its terms and with all
applicable laws, including without limitation ERISA and the Code; each Plan
(and each related trust, if any) which is intended to be qualified under
Section 401(a) of the Code has received or applied for a determination letter
from the Internal Revenue Service to the effect that it meets the
requirements of Sections 401(a) and 501(a) of the Code; no Reportable Event
has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a) (3) of ERISA) is insolvent or in reorganization; no Plan has
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an Unfunded Current Liability; no Plan which is subject to Section 412 of the
Code or Section 302 of ERISA has an accumulated funding deficiency, within
the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been timely made; neither Holdings nor any Subsidiary of Holdings
nor any ERISA Affiliate has incurred any material liability (including any
indirect, contingent or secondary liability) to or on account of a Plan
pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201,
4204, or 4212 of ERISA or Section 401(a) (29), 4971 or 4975 of the Code or
expects to incur any such liability under any of the foregoing sections with
respect to any Plan; no condition exists which presents a material risk to
Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of
ERISA; no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; using actuarial assumptions and computation methods consistent
with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of
Holdings and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a) (3) of ERISA) in the event
of a complete withdrawal therefrom, as of the close of the most recent fiscal
year of each such Plan ended prior to the date of the most recent Credit
Event, would not exceed $500,000; no group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has
covered employees or former employees of Holdings, any Subsidiary of
Holdings, or any ERISA Affiliate has incurred any material liability under
the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B
of the Code; no lien imposed under the Code or ERISA on the assets of
Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists or is
likely to arise on account of any Plan; and Holdings and its Subsidiaries may
cease contributions to or terminate any employee benefit plan maintained by
any of them without incurring any material liability.
6.15 COMPLIANCE WITH APPLICABLE LAWS IN CONNECTION WITH FOREIGN PENSION
PLANS. Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither Holdings nor any of its Subsidiaries has incurred
any obligation in connection with the termination of or withdrawal from any
Foreign Pension Plan. No Foreign Pension Plan has a material unfunded
liability.
6.16 CAPITALIZATION. (a) On the Initial Borrowing Date and after giving
effect to the Transaction and the other transactions contemplated hereby, the
authorized capital stock of Holdings shall consist of: (i) 75,000,000 shares
of common stock, $.01 par value per share (such authorized shares of common
stock, together with any subsequently authorized shares of
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common stock of Holdings, the "Holdings Common Stock"), of which 58,979,650
shares shall be issued and outstanding ; (ii) 3,000,000 shares of preferred
stock, $.01 par value per share, of which (x) 1,800,000 shares are designated
as 10% cumulative preferred stock (the "10% Preferred Stock"), of which
329,928 shares shall be issued and outstanding and will be redeemed on
December 16, 1996, and (y) 333,000 shares are designated as convertible
preferred stock, of which 333,000 shares shall be issued and outstanding and
will be redeemed on December 17, 1996, immediately after redemption of the
10% Preferred Stock; and (iii) 6,000,000 shares of preferred stock, $.01 par
value per share, of which there shall be no shares issued and outstanding.
(b) On the Initial Borrowing Date and after giving effect to the
Transaction and the other transactions contemplated hereby, the authorized
capital stock of the Borrower shall consist of 3,000 shares of common stock,
$0.01 par value per share, and all of the issued and outstanding shares of
such common stock are owned by Holdings. All such outstanding shares have
been duly and validly issued, are fully paid and nonassessable. The Borrower
does not have outstanding any securities convertible into or exchangeable for
its capital stock or outstanding any rights to subscribe for or to purchase,
or any options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, its capital stock.
6.17 SUBSIDIARIES. On and as of the Initial Borrowing Date and after
giving effect to the consummation of the Transaction, Holdings has no
Subsidiaries other than the Borrower and its Subsidiaries, and the Borrower
has no Subsidiaries other than those Subsidiaries listed on Annex V. Annex V
correctly sets forth, as of the Initial Borrowing Date and after giving
effect to the Transaction, the percentage ownership (direct and indirect) of
Holdings in each class of capital stock of each of its Subsidiaries and also
identifies the direct owner thereof.
6.18 INTELLECTUAL PROPERTY. Holdings and each of its Subsidiaries owns
or holds a valid license to use all the material patents, trademarks,
permits, service marks, trade names, technology, know-how and formulas or
other rights with respect to the foregoing, free from restrictions that are
materially adverse to the use thereof, that are used in the operation of the
business of Holdings and each of its Subsidiaries as presently conducted.
6.19 COMPLIANCE WITH STATUTES, ETC. Holdings and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including compliance with all applicable
Environmental Laws with respect to any Real Property or governing its
business and the requirements of any permits issued under such Environmental
Laws with respect to any such Real Property or the operations of Holdings or
any of its Subsidiaries), except such non-compliance as is not likely to,
individually or in the aggregate, have a Material Adverse Effect.
6.20 ENVIRONMENTAL MATTERS. (a) Each of Holdings and each of its
Subsidiaries has complied with, and on the date of each Credit Event are in
compliance with, all applicable
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Environmental Laws and the requirements of any permits issued under such
Environmental Laws. There are no pending, past or, to the best knowledge of
Holdings and its Subsidiaries, threatened Environmental Claims against
Holdings or any of its Subsidiaries or any Real Property owned or operated by
Holdings or any of its Subsidiaries. There are no facts, circumstances,
conditions or occurrences regarding Holdings or its Subsidiaries, their
operations or any Real Property at any time owned or operated by Holdings or
any of its Subsidiaries or on any property adjoining or in the vicinity of
any such Real Property that would reasonably be expected (i) to form the
basis of an Environmental Claim against Holdings or any of its Subsidiaries
or any such Real Property or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by Holdings or any of its Subsidiaries
under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by Holdings or any of its Subsidiaries except in amounts necessary
for the operation of the business of Holdings and its Subsidiaries, in
compliance with applicable Environmental Laws and so as not to give rise to
an Environmental Claim. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by Holdings or any of
its Subsidiaries. There are not now any underground storage tanks located on
any Real Property owned or operated by Holdings or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section 6.20, the
representations made in this Section 6.20 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Releases and presence of underground storage tanks, in each case of
the types described above, would reasonably be expected to have a Material
Adverse Effect.
6.21 PROPERTIES. All Real Property owned by Holdings or any of its
Subsidiaries and all material Leaseholds leased by Holdings or any of its
Subsidiaries, in each case as of the Initial Borrowing Date and after giving
effect to the Transaction, and the nature of the interest therein, is
correctly set forth in Annex III. Holdings and each of its Subsidiaries has
good and marketable title to, or a validly subsisting leasehold interest in,
all material properties owned or leased by it, including all Real Property
reflected in Annex III or in the financial statements referred to in Section
6.10(b) or (c), free and clear of all Liens, other than Permitted Liens.
6.22 LABOR RELATIONS. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending against Holdings or any of its Subsidiaries or before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending or
threatened against Holdings or any of its Subsidiaries, (ii) no strike, labor
dispute, slowdown or stoppage pending against Holdings or any of its
Subsidiaries and (iii) no union representation question existing with respect
to the employees of Holdings or any of its Subsidiaries and no union
organizing activities are taking place, except (with respect to any matter
specified in clause (i),
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(ii) or (iii) above, either individually or in the aggregate) such as is not
reasonably likely to have a Material Adverse Effect.
6.23 TAX RETURNS AND PAYMENTS. Each of Holdings and each of its
Subsidiaries has filed all federal income tax returns and all other material
tax returns, domestic and foreign, required to be filed by it and has paid
all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of Holdings and its Subsidiaries in
accordance with generally accepted accounting principles. Holdings and each
of its Subsidiaries have at all times paid, or have provided adequate
reserves (in the good faith judgment of the management of Holdings) for the
payment of, all federal, state and foreign income taxes applicable for all
prior fiscal years and for the current fiscal year to date. Except as
provided on Annex XI, there is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the knowledge of Holdings
or any of its Subsidiaries, threatened by any authority regarding any taxes
relating to Holdings or any of its Subsidiaries. Except as provided on Annex
XI, neither Holdings nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of
Holdings or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
6.24 INDEBTEDNESS TO REMAIN OUTSTANDING. Annex VIII sets forth a true
and complete list of all Indebtedness of Holdings and its Subsidiaries as of
the Initial Borrowing Date and which is to remain outstanding after giving
effect to the Transaction and the incurrence of Loans on such date (excluding
the Loans, the Letters of Credit, the Senior Subordinated Notes, the 15%
Debentures and Indebtedness permitted pursuant to Sections 8.04(d), (f), (g),
(h), (i), (j), (k) and (o), the "Indebtedness to Remain Outstanding" in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly
guaranteed such debt.
6.25 SUBORDINATION. The subordination provisions contained in the
Senior Subordinated Note Documents are enforceable against the Borrower and
the holders thereof, and all Obligations are within the definition of "Senior
Debt" included in such subordination provisions.
6.26 FDA MATTERS. (a) Holdings and each of its Subsidiaries is, and
the products sold by Holdings and each of its Subsidiaries are, in compliance
in all material respects with all current applicable statutes, rules,
regulations, standards, guides, policies or orders administered or issued by
the FDA.
(b) Neither Holdings nor any of its Subsidiaries has received, or has
knowledge of any facts which furnish any reasonable basis for, any Notice of
Adverse Findings, Warning Letters, Regulatory Letters, Section 305 Notices,
or other similar communications, and there have been
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no recalls, field notifications, alerts or seizures requested or threatened
relating to the products sold by Borrower and each of its Subsidiaries.
(c) The premarket approval ("PMA") and premarket notification ("510(k)")
documents and related documents and information for each of the products of
Holdings and each of its Subsidiaries are in compliance in all material
respects with the applicable federal statutes, rules, regulations, standards,
guides, policies or orders administered or promulgated by the FDA and
Holdings has no reason to believe that the FDA is considering limiting,
suspending or revoking any such approvals or clearances. All preclinical and
clinical studies have been conducted with recognized good clinical and good
laboratory practices in all material respects.
(d) Neither Holdings nor any of its Subsidiaries is aware of any facts
which are reasonably likely to cause (i) the denial, withdrawal, recall or
suspension of any product sold or intended to be sold by Holdings or any of
its Subsidiaries, or (ii) a change in the marketing classification or
labeling of any such products, or (iii) a termination or suspension of
marketing of any such products.
(e) Annex IX hereto contains an accurate and complete list of (i) all
products currently manufactured, marketed or sold by Holdings and each of its
Subsidiaries which have been recalled or subject to a field notification
(whether voluntarily or otherwise); and (ii) all proceedings of which
Holdings or any of its Subsidiaries has received notice (whether completed or
pending) at any time seeking recall, suspension or seizure of any product
sold or proposed to be sold by Holdings or any of its Subsidiaries.
(f) Holdings has conducted all internal audits, has prepared all
internal audit reports, has conducted all management reviews of such audit
reports and has taken all such follow up corrective action indicated by such
audit reports as are required by 21 C.F.R. Section 820.20.
(g) Holdings and each of its Subsidiaries has timely filed all medical
device reports (the "Medical Device Report Policy") required to be filed by
21 C.F.R. Section 803.24. Annex X hereto sets forth Holdings' and each of
its Subsidiary's corporate policy for filing such reports.
(h) Holdings has obtained all necessary regulatory approvals from any
foreign regulatory agencies related to the products distributed and sold by
Holdings or any of its Subsidiaries.
(i) Holdings reasonably believes that it will be able to obtain
authorization from the FDA to market all products proposed as of the Initial
Borrowing Date to be introduced by it under a 510(k) clearance, and will not
be required to file a PMA application with the FDA with respect to any such
products.
SECTION 7. AFFIRMATIVE COVENANTS. Holdings and the Borrower hereby
covenant and agree that on the Effective Date and thereafter for so long as
this Agreement is in effect and until the Commitments have terminated, no
Letters of Credit or Notes are outstanding and the
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Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations (other than any indemnities described in Section 12.13 hereof
which are not then due and payable) incurred hereunder, are paid in full:
7.01 INFORMATION COVENANTS. Holdings will furnish to each Bank:
(a) MONTHLY REPORTS. Within 30 days after the end of each fiscal
month of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such month and the
related consolidated statements of income and retained earnings and of
cash flows for such month and for the elapsed portion of the fiscal year
ended with the last day of such month, in each case setting forth
comparative figures for the corresponding month in the prior fiscal
year, all of which shall be certified by the chief financial officer or
other Authorized Officer of the Borrower, subject to normal year-end
audit adjustments and the absence of footnotes.
(b) QUARTERLY FINANCIAL STATEMENTS. Within 55 days after the close
of each quarterly accounting period in each fiscal year of each of
Holdings and the Borrower, the consolidated and consolidating balance
sheets of each of Holdings and its Subsidiaries and the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated and consolidating statements of income and retained
earnings and of cash flows for such quarterly accounting period and for
the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period; all of which shall be in reasonable detail
and certified by the chief financial officer or other Authorized Officer
of Holdings or the Borrower, as the case may be, that they fairly
present the financial condition of Holdings and its Subsidiaries or the
Borrower and its Subsidiaries, as the case may be, as of the dates
indicated and the results of their operations and changes in their cash
flows for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes.
(c) ANNUAL FINANCIAL STATEMENTS. Within 100 days after the close of
each fiscal year of each of Holdings and the Borrower, the consolidated
and consolidating balance sheets of each of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated and consolidating statements of
income and retained earnings and of cash flows for such fiscal year and,
in the case of such consolidated financial statements, setting forth
comparative figures for the preceding fiscal year and comparable
budgeted figures for such fiscal year and certified by Price Waterhouse
LLP or such other independent certified public accountants of recognized
national standing as shall be reasonably acceptable to the
Administrative Agent, in each case to the effect that such statements
fairly present in all material respects the financial condition of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries, as
the case may be, as of the dates indicated and the results of their
operations and changes, together with a certificate of such accounting
firm stating that in the course of its regular audit of the business of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries,
which audit was conducted in accordance
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with generally accepted auditing standards, no Default or Event of
Default which has occurred and is continuing has come to their attention
or, if such a Default or Event of Default has come to their attention a
statement as to the nature thereof.
(d) BUDGETS, ETC. Not more than 30 days after the commencement of
each fiscal year of Holdings (90 days in the case of the fiscal year
commencing January 1, 1997), budgets of the Borrower and its
Subsidiaries in reasonable detail for each of the four fiscal quarters
of such fiscal year, in each case as customarily prepared by management
for its internal use setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based. Together with
each delivery of financial statements pursuant to Section 7.01(b) and
(c), a comparison of the current year to date financial results (other
than in respect of the balance sheets included therein) against the
budgets required to be submitted pursuant to this clause (d) shall be
presented.
(e) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 7.01(b) and (c), a
certificate of the chief financial officer or other Authorized Officer
of Holdings to the effect that no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall set forth the calculations
required to establish whether Holdings and its Subsidiaries were in
compliance with the provisions of Sections 8.04 and 8.08 through and
including 8.13, as at the end of such fiscal quarter or year, as the
case may be. In addition, at the time of the delivery of the financial
statements provided for in Section 7.01(c), a certificate of the chief
financial officer or other Authorized Officer of Holdings setting forth
the amount of, and calculations required to establish the amount of,
Excess Cash Flow for the Excess Cash Flow Period ending on the last day
of the respective fiscal year.
(f) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after any officer of Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of (x) the occurrence of
any event which constitutes a Default or an Event of Default, which
notice shall specify the nature thereof, the period of existence thereof
and what action Holdings or the Borrower proposes to take with respect
thereto and (y) the commencement of, or threat of, any litigation or
governmental proceeding pending against Holdings or any of its
Subsidiaries which is likely to have a Material Adverse Effect, or a
material adverse effect on the ability of any Credit Party to perform
its respective obligations hereunder or under any other Credit Document.
(g) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of each
report or "management letter" submitted to Holdings or any of its
Subsidiaries by its independent accountants in connection with any
annual, interim or special audit made by them of the books of Holdings
or any of its Subsidiaries.
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(h) ENVIRONMENTAL MATTERS. Promptly after obtaining knowledge of
any of the following, written notice of any of the following
environmental matters which could reasonably be expected to result in a
cost to Holdings or any of its Subsidiaries in excess of $500,000:
(i) any pending or threatened material Environmental Claim
against Holdings or any of its Subsidiaries or any Real Property
owned or operated by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property at any
time owned or operated by Holdings or any of its Subsidiaries that
(x) results in a material noncompliance by Holdings or any of its
Subsidiaries with any applicable Environmental Law or (y) could
reasonably be anticipated to form the basis of a material
Environmental Claim against Holdings or any of its Subsidiaries or
any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that could
reasonably be anticipated to cause such Real Property to be subject
to any material restrictions on the ownership, occupancy, use or
transferability by Holdings or its Subsidiary, as the case may be,
of its interest in such Real Property under any Environmental Law;
and
(iv) the taking of any material removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by Holdings or any
of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Holdings' or the Borrower's response thereto. In addition,
Holdings agrees to provide the Banks with copies of all material written
communications by Holdings or any of its Subsidiaries with any Person,
government or governmental agency relating to any of the matters set
forth in clauses (i)-(iv) above, and such detailed reports relating to
any of the matters set forth in clauses (i)-(iv) above as may reasonably
be requested by the Administrative Agent or the Required Banks.
(i) OTHER INFORMATION. Promptly upon transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by Holdings
or any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as Holdings or any of its Subsidiaries
shall generally send to analysts or the holders of their capital stock
or of the Senior Subordinated Notes in their capacity as such holders
(in each case to the extent not theretofore delivered to the Banks
pursuant to this Agreement) and, with reasonable promptness, such other
information or documents
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(financial or otherwise) as the Administrative Agent on its own behalf
or on behalf of any Bank may reasonably request from time to time.
7.02 BOOKS, RECORDS AND INSPECTIONS. Holdings will, and will cause
each of its Subsidiaries to, permit, upon notice to the chief financial
officer or other Authorized Officer of Holdings or the Borrower, (x) officers
and designated representatives of the Administrative Agent or any Bank to
visit and inspect any of the properties or assets of Holdings and any of its
Subsidiaries in whomsoever's possession, and to examine the books of account
of Holdings and any of its Subsidiaries and discuss the affairs, finances and
accounts of Holdings and of any of its Subsidiaries with, and be advised as
to the same by, their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent or any Bank may desire and (y) the Administrative Agent,
at the request of the Required Banks, to conduct, at Holdings' and the
Borrower's expense, an audit of the accounts receivable and/or inventories of
Holdings and its Subsidiaries at such times (but no more frequently than once
a year unless an Event of Default has occurred and is continuing) as the
Required Banks shall reasonably require.
7.03 INSURANCE. Holdings will, and will cause each of its Subsidiaries
to, at all times from and after the Effective Date maintain in full force and
effect insurance with reputable and solvent insurance carriers in such
amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice.
At any time that insurance at the levels described in Annex VII is not being
maintained by Holdings and its Subsidiaries, Holdings will notify the Banks
in writing thereof and, if thereafter notified by the Administrative Agent to
do so (it being understood and agreed that in determining whether to give any
such notice the Administrative Agent will take into account applicable
premium levels at such time), Holdings will obtain insurance at such levels
to the extent then generally available (but in any event within the
deductible or self-insured retention limitations set forth in the preceding
sentence) or otherwise as are reasonably acceptable to the Administrative
Agent. Holdings will furnish to the Administrative Agent on the Initial
Borrowing Date and on each date on which financial statements are delivered
pursuant to Section 7.01(c) a summary of the insurance carried in respect of
Holdings and its Subsidiaries and the assets of Holdings and its Subsidiaries
together with certificates of insurance and other evidence of such insurance,
if any, naming the Collateral Agent as mortgagee with respect to real
property, lenders loss payee with respect to personal property, additional
insured with respect to general liability and umbrella liability coverage and
certificate holder with respect to workers' compensation insurance.
7.04 PAYMENT OF TAXES. Holdings will pay and discharge, and will cause
each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims for sums that have become due and
payable which, if unpaid, might become a Lien not otherwise permitted under
Section 8.03(a); PROVIDED, that neither Holdings nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim
which is being contested in good faith and by
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proper proceedings if it has maintained adequate reserves with respect
thereto in accordance with GAAP.
7.05 CORPORATE FRANCHISES. Holdings will do, and will cause each of its
Subsidiaries to do, or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights,
franchises and authority to do business; PROVIDED, HOWEVER, that any
transaction permitted by Section 8.02 will not constitute a breach of this
Section 7.05.
7.06 COMPLIANCE WITH STATUTES, ETC. Holdings will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls)
except for such non-compliance as would not have a Material Adverse Effect or
a material adverse effect on the ability of any Credit Party to perform its
obligations under any Credit Document to which it is a party.
7.07 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) Holdings will, and will
cause each of its Subsidiaries to, comply in all material respects with all
Environmental Laws applicable to the operation of its business and the
ownership or use of all Real Property now or hereafter owned or operated by
Holdings or any of its Subsidiaries, and Holdings promptly will pay, and will
cause each of its Subsidiaries to pay, all costs and expenses incurred in
keeping in material compliance with all Environmental Laws, and will keep or
cause to be kept all Real Properties owned or operated by Holdings or any of
its Subsidiaries free and clear of any Liens imposed pursuant to such
Environmental Laws; and neither Holdings nor any of its Subsidiaries will
generate, use, treat, store, release or dispose of, or permit the generation,
use, treatment, storage, release or disposal of, Hazardous Materials on any
Real Property owned or operated by Holdings or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except in amounts necessary for the operation of the
business, in compliance with all applicable Environmental Laws and so as not
to give rise to an Environmental Claim.
(b) If Holdings or any of its Subsidiaries, or any tenant or occupant of
any Real Property owned or operated by Holdings or any of its Subsidiaries,
cause or permit any intentional or unintentional act or omission resulting in
the Release or threatened Release of any Hazardous Material, each of Holdings
and the Borrower agrees to undertake, and/or to cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole expense, any
clean up, removal, remedial or other action required pursuant to
Environmental Laws to remove and clean up any Hazardous Materials from any
Real Property; PROVIDED, that neither Holdings nor any of its Subsidiaries
shall be required to comply with any such order or directive issued by any
governmental authority which is being contested in good faith and by proper
proceedings so long as it has maintained adequate reserves with respect to
such compliance to the extent required in accordance with GAAP.
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(c) At the written request of the Agents or the Required Banks, which
request shall specify in reasonable detail the basis therefor, at any time
and from time to time, the Borrower will provide, at the sole expense of the
Borrower, an environmental site assessment report concerning any Real
Property owned or operated by the Borrower or any of its Subsidiaries or
joint ventures, prepared by an environmental consulting firm reasonably
approved by the Agents, indicating the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property, PROVIDED that
unless a Default or Event of Default exists at such time, such request may
only be made if the Agents or Required Banks have a reasonable basis for
requesting same. If the Borrower fails to provide the same within 90 days
after such request was made, the Agents may order the same, the cost of which
shall be borne by the Borrower, and the Borrower shall grant and hereby
grants to the Agents and the Banks and their agents access to such Real
Property and specifically grants the Agents and the Banks an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment at any reasonable time upon reasonable notice to the Borrower, all
at the sole and reasonable expense of the Borrower.
7.08 ERISA. As soon as possible and, in any event, within 10 days after
Holdings, any Subsidiary of Holdings or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, Holdings will
deliver to each of the Banks a certificate of the chief financial officer of
Holdings setting forth the full details as to such occurrence and the action,
if any, that Holdings, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given
to or filed with or by Holdings, the Subsidiary, the ERISA Affiliate, the
PBGC, a Plan participant or the Plan administrator with respect thereto:
that a Reportable Event has occurred; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has
been incurred or an application may be or has been made for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a
Plan; that any contribution required to be made with respect to a Plan or
Foreign Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability which, when added to the
aggregate amount of Unfunded Current Liabilities with respect to all other
Plans, exceeds $500,000; that proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title
IV of ERISA; that a proceeding has been instituted pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Plan; that Holdings, any
Subsidiary of Holdings or any ERISA Affiliate will or may incur any material
liability (including any indirect, contingent, or secondary liability) to or
on account of the termination of or withdrawal from a Plan under Section
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA or with respect to a group health plan (as defined
in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section
4980B of the Code; or that Holdings or any Subsidiary of Holdings may incur
any material liability pursuant to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides benefits to retired employees
or other former
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employees (other than as required by Section 601 of ERISA) or any Plan or any
Foreign Pension Plan. At the request of any Bank, Holdings will deliver to
such Bank a complete copy of the annual report (on Internal Revenue Service
Form 5500-series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed
with the Internal Revenue Service. In addition to any certificates or
notices delivered to the Banks pursuant to the first sentence hereof, copies
of any material notices received by Holdings, any Subsidiary of Holdings or
any ERISA Affiliate with respect to any Plan or Foreign Pension Plan shall be
delivered to the Banks no later than 10 days after the date such notice has
been received by Holdings, the Subsidiary or the ERISA Affiliate, as
applicable.
7.09 GOOD REPAIR. Holdings will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used in
its business are kept in good repair, working order and condition, normal
wear and tear excepted, and, subject to Section 8.08, that from time to time
there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary for
companies in similar businesses.
7.10 END OF FISCAL YEARS; FISCAL QUARTERS. Holdings will, for financial
reporting purposes, cause (i) each of its, and each of its Subsidiaries',
fiscal years to end on December 31 of each year, provided that Foreign
Subsidiaries may have fiscal years ending on November 30 of each year, and
(ii) each of its, and each of its Subsidiaries', fiscal quarters to end on
March 31, June 30, September 30 and December 31 of each year, provided that
Foreign Subsidiaries may have fiscal quarters ending on February 28 (or
February 29, as the case may be), May 31, August 31 and November 30 of each
year.
7.11 ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) Holdings will, and
will cause each of its Domestic Subsidiaries (other than Fidata and River
Medical) (and, subject to Section 7.14, each of its Foreign Subsidiaries) to,
grant to the Collateral Agent security interests and mortgages in such assets
and properties of Holdings and such Subsidiaries as are not covered by the
original Security Documents and as may be requested from time to time by the
Administrative Agent or the Required Banks (collectively, the "Additional
Security Documents") provided that neither Holdings nor any such Subsidiary
shall be required to grant any security interest or mortgage in any asset
subject to a Lien permitted under Section 8.03(k), (m), (n) or (p). All such
security interests and mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Administrative Agent and
shall constitute valid and enforceable perfected security interests and
mortgages superior to and prior to the rights of all third Persons and
subject to no other Liens except for Permitted Liens. The Additional Security
Documents or instruments related thereto shall have been duly recorded or
filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Security Documents, and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full.
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(b) Holdings will, and will cause each of its Subsidiaries (other than
Fidata and River Medical) to, at the expense of Holdings and the Borrower,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral
Agent from time to time such vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers
of attorney, certificates, real property surveys, reports and other
assurances or instruments and take such further steps relating to the
collateral covered by any of the Security Documents as the Collateral Agent
may reasonably require. Furthermore, Holdings shall cause to be delivered to
the Collateral Agent such opinions of counsel, title insurance and other
related documents as may be reasonably requested by the Administrative Agent
to assure themselves that this Section 7.11 has been complied with.
(c) If the Collateral Agent or the Required Banks determine that they
are required by law or regulation to have appraisals prepared in respect of
the Real Property of Holdings and its Subsidiaries (other than Fidata and
River Medical) constituting Collateral, the Borrower shall provide to the
Administrative Agent appraisals which satisfy the applicable requirements of
the Real Estate Appraisal Reform Amendments of the Financial Institution
Reform, Recovery and Enforcement Act of 1989, as amended, and which shall be
in form and substance reasonably satisfactory to the Administrative Agent.
(d) Holdings and the Borrower agree that each action required above by
this Section 7.11 shall be completed as soon as possible, but in no event
later than 180 days after such action is either requested to be taken by the
Administrative Agent or the Required Banks or required to be taken by
Holdings and its Subsidiaries pursuant to the terms of this Section 7.11;
PROVIDED, that in no event shall Holdings or the Borrower be required to take
any action, other than using its reasonable efforts, to obtain consents from
third parties with respect to its compliance with this Section 7.11.
7.12 REGISTRY. The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for purposes of this Section 7.12,
to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans
of each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Bank, the transfer of the Commitments of such
Bank and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect
to ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans
shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative
Agent for acceptance and registration of assignment or transfer of all or
part of a Loan, or as soon thereafter as practicable, the
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assigning or transferor Bank shall surrender the Note evidencing such Loan,
and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Bank and/or the new Bank. The
Borrower agrees to indemnify the Administrative Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature which
may be imposed on, asserted against or incurred by the Administrative Agent
in performing its duties under this Section 7.12.
7.13 CONTRIBUTIONS; PAYMENTS. (a) Holdings will contribute as an
equity contribution to the capital of the Borrower upon its receipt thereof,
any net cash proceeds received by Holdings after the Initial Borrowing Date
from any sale or issuance of its equity or any cash capital contributions
received by Holdings after the Initial Borrowing Date (other than the net
proceeds received from any cash capital contributions from Picower and/or any
of his Affiliates or the sale or issuance of any Holdings Common Stock to the
extent that (i) such net proceeds are not required to be applied to prepay
the Loans pursuant to clause (z) of Section 4.02(A)(d) and (ii) such net
proceeds are applied to redeem, repurchase or prepay the 7-1/4% Debentures
pursuant to Section 8.15(i)).
(b) the Borrower will use the proceeds of all equity contributions
received by it from Holdings as provided in clause (a) above toward the
repayment of Term Loans to the extent required by Section 4.02.
7.14 FOREIGN SUBSIDIARIES SECURITY. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
the Borrower acceptable to the Administrative Agent and the Required Banks
does not within 30 days after a request from the Administrative Agent or the
Required Banks deliver evidence, in form and substance mutually satisfactory
to the Administrative Agent and the Borrower, with respect to any Foreign
Subsidiary which has not already had all of its stock pledged pursuant to the
Pledge Agreement that (i) a pledge (x) of 66-2/3% or more of the total
combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, and (y) of any promissory note issued by such
Foreign Subsidiary to Holdings or any of its Domestic Subsidiaries, (ii) the
entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the Security Agreement and (iii) the entering into
by such Foreign Subsidiary of a guaranty in substantially the form of the
Subsidiary Guaranty, in any such case would cause the undistributed earnings
of such Foreign Subsidiary as determined for Federal income tax purposes to
be treated as a deemed dividend to such Foreign Subsidiary's United States
parent for Federal income tax purposes, then in the case of a failure to
deliver the evidence described in clause (i) above, that portion of such
Foreign Subsidiary's outstanding capital stock or any promissory notes so
issued by such Foreign Subsidiary, in each case not theretofore pledged
pursuant to the Pledge Agreement shall be pledged to the Collateral Agent for
the benefit of the Secured Creditors pursuant to the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), and in
the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary shall execute and deliver the Security Agreement (or
another security agreement in substantially similar form, if needed),
granting the Secured Creditors a security interest in all
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of such Foreign Subsidiary's assets and securing the Obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the Subsidiary
Guaranty shall have been executed by such Foreign Subsidiary, the obligations
of such Foreign Subsidiary thereunder, and in the case of a failure to
deliver the evidence described in clause (iii) above, such Foreign Subsidiary
shall execute and deliver the Subsidiary Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the Obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement, in each case to the extent that the
entering into such Security Agreement or Subsidiary Guaranty is permitted by
the laws of the respective foreign jurisdiction and with all documents
delivered pursuant to this Section 7.14 to be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Banks.
7.15 INTEREST RATE PROTECTION. The Borrower shall no later than 100
days following the Initial Borrowing Date enter into Interest Rate Protection
Agreements, satisfactory to the Agents, with a term of at least three years,
establishing a fixed or maximum interest rate acceptable to the Agents in
respect of at least 50% of the then outstanding Term Loans.
7.16 DEBENTURES REDEMPTION. No later than the 30th day after the
Initial Borrowing Date, Holdings shall redeem in full all of its outstanding
15% Debentures, and shall pay all accrued interest thereon and other amounts
owing in respect thereof.
7.17 HOLDINGS PREFERRED STOCK REDEMPTION. No later than December 16,
1996, Holdings shall redeem in full all of its outstanding Holdings Preferred
Stock, and shall pay all accrued but unpaid regularly scheduled dividends
thereon and other amounts owing in respect thereof.
7.18 SENIOR NOTES TENDER OFFER/DEFEASANCE. Immediately following the
Acquisition, and in any event on the Initial Borrowing Date, IVAC shall
consummate the Existing Senior Notes Tender Offer/Consent Solicitation
pursuant to which IVAC shall repurchase all Existing Senior Notes, to the
extent tendered and not withdrawn pursuant to the Existing Senior Notes
Tender Offer/Consent Solicitation and shall duly cancel all Existing Senior
Notes so purchased. The Existing Senior Notes Tender Offer/Consent
Solicitation shall be consummated in accordance with all applicable law and
in accordance with the Existing Senior Notes Tender Offer/Consent
Solicitation Documents. In the event that 100% of the Existing Senior Notes
are not accepted for payment by IVAC pursuant to the Existing Senior Notes
Tender Offer/Consent Solicitation, all Existing Senior Notes which have not
been tendered shall be defeased on the Initial Borrowing Date, immediately
following the Acquisition, in a manner satisfactory to the Agents and the
Required Banks.
7.19 MAINTENANCE OF CORPORATE SEPARATENESS. Holdings will, and will
cause each of its Subsidiaries to, satisfy customary corporate formalities,
including the maintenance of corporate records. Neither Holdings nor any
Subsidiary of Holdings (other than Fidata and River Medical) shall make any
payment to a creditor of Fidata or River Medical in respect of
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any liability of Fidata or River Medical, as the case may be, and no bank
account of Fidata or River Medical shall be commingled with any bank account
of Holdings or any such Subsidiary of Holdings. Any financial statements
distributed to any creditors of Fidata or River Medical shall clearly
establish the corporate separateness of Fidata or River Medical, as the case
may be, from Holdings and each of Holdings' Subsidiaries. Finally, neither
Holdings nor any of its Subsidiaries shall take any action, or conduct its
affairs in a manner, which is likely to result in the corporate existence of
Fidata or River Medical on the one hand and of Holdings or any such
Subsidiary of Holdings on the other hand being ignored, or in the assets and
liabilities of Holdings or any such Subsidiary of Holdings being
substantively consolidated with those of Fidata or River Medical in a
bankruptcy, reorganization or other insolvency proceeding.
7.20 IVAC MERGER AND IMED MERGER. On the Initial Borrowing Date,
immediately following the consummation of the Acquisition, Holdings and the
Borrower shall cause the IVAC Merger and the IMED Merger to be consummated
(in the case of the IMED Merger, in accordance with Section 12.17), and all
aspects thereof (including, without limitation, regulatory, financial,
accounting and tax aspects) shall be satisfactory to the Required Banks and
in compliance with the terms of this Agreement and the IVAC Merger Documents
or the IMED Merger Documents, as the case may be, and all applicable laws.
No later than the Initial Borrowing Date, the Articles of Merger with respect
to the IVAC Merger and the IMED Merger shall have been filed to the
satisfaction of the Administrative Agent with the Secretary of State of the
State of Delaware.
7.21 FDA MATTERS. (a) Without limiting the generality of Section
7.06, Holdings and each of its Subsidiaries shall comply in all material
respects with all applicable statutes, rules, regulations, standards, guides,
policies or orders administered or issued by the FDA, and shall take all such
actions as shall reasonably be necessary to assure such compliance on an
ongoing basis, including, without limitation (A) retaining an independent
manufacturing practices consultant (should Holdings or any of its
Subsidiaries believe it prudent to do so) to audit Holdings' and each of its
Subsidiaries' manufacturing practices, and taking all such reasonable
remedial actions as any such consultant retained by Holdings or any of its
Subsidiaries shall recommend with respect to any significant deviations from
the FDA's Good Manufacturing Practices Regulations; (B) retaining experienced
FDA counsel to advise Holdings and its Subsidiaries on legal issues affecting
such compliance; and (C) requesting such FDA counsel (should Holdings or any
of its Subsidiaries believe it prudent to do so) to audit Holdings' and each
of its Subsidiaries' complaint and medical device reporting files, or other
areas regulated by the FDA, on a periodic basis and taking all such remedial
actions with respect thereto as such FDA counsel shall recommend.
(b) Holdings will, and will cause each of its Subsidiaries to, report
to the FDA all events that Holdings, any of its Subsidiaries or its counsel
conclude are required to be reported to the FDA under the FDA's medical
device reporting regulations and shall furnish promptly to the Agents copies
of all notices of adverse findings (including 485 observations and
establishment inspection reports), regulatory letters, Section 305 Notices,
recalls and FDA regulatory actions filed or threatened, relating to Holdings'
or any of its Subsidiaries' medical
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device products. Holdings agrees to provide quarterly summaries to the
Agents regarding the regulatory status of Holdings' and each of its
Subsidiaries' medical device products. Such summaries will contain
information regarding the status of PMA and 510(k) submissions; the status of
agency actions regarding such submissions (denial, withdrawal, etc.); the
termination or suspension of marketing of any of Holdings' or any of its
Subsidiaries' medical device products; the results of FDA inspections of
Holdings' and each of its Subsidiaries' manufacturing facilities; and the
results of any internal inspections and audits conducted by Holdings or any
of its Subsidiaries regarding its medical device products. Holdings will,
and will cause each of its Subsidiaries to, provide the Agents timely access
to all available documentation relating to any of the foregoing information.
7.22 FURTHER OPINIONS OF COUNSEL. On the Initial Borrowing Date,
Holdings and the Borrower shall deliver to the Agents opinions, addressed to
the Agents and each of the Banks and dated the Initial Borrowing Date, from
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky ▇▇▇▇▇▇▇ Shalov & ▇▇▇▇, counsel to the Credit
Parties, which opinion shall cover such matters incident to the IVAC Merger
and the IMED Merger and as contained in Exhibit O and (ii) local counsel to
the Credit Parties reasonably satisfactory to the Agents, which opinions
shall cover such matters incident to the IVAC Merger and the IMED Merger and
as the Agents or Required Banks may reasonably request and shall be in form
and substance reasonably satisfactory to the Agents and the Required Banks.
7.23 LIQUIDATION OF IMED B.V.I. No later than December 1, 1996,
Holdings shall cause IMED B.V.I. to liquidate with and into its parent
corporation (which shall be the Borrower or a Wholly-Owned Subsidiary of the
Borrower).
7.24 WIND-DOWN OF RIVER MEDICAL. As soon as practicable after the
Initial Borrowing Date, Holdings shall cause River Medical to wind-down its
operations and, in any event, shall not permit River Medical to engage in any
business or operations other than those engaged in by it on the Initial
Borrowing Date and those related to winding down its operations.
SECTION 8. NEGATIVE COVENANTS. Holdings and the Borrower hereby
covenant and agree that as of the Effective Date and thereafter for so long
as this Agreement is in effect and until the Commitments have terminated, no
Letters of Credit or Notes are outstanding and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations (other than any
indemnities described in Section 12.13 hereof which are not then due and
payable) incurred hereunder, are paid in full:
8.01 CHANGES IN BUSINESS. (a) Holdings and its Subsidiaries will not
engage in any business other than the same or similar lines of business
engaged in by Holdings and its Subsidiaries as of the Initial Borrowing Date
after giving effect to the Transaction, and such activities as are
complimentary to or are incidental, ancillary or related to the foregoing.
(b) Holdings will engage in no business other than (i) its ownership of
the capital stock of the Borrower, IMED Nominee, Fidata and those obligations
of officers and employees of
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Holdings and its Subsidiaries to the extent permitted by Section 8.05(e) and
having those liabilities which it is responsible for under this Agreement and
the other Documents to which it is a party, (ii) the issuance of shares of
Holdings Common Stock to the extent permitted by Section 8.15(iv),
(iii) holding the Permitted Holdings Investments and (iv) activities associated
with expenses paid with dividends made by the Borrower pursuant to
Section 8.06(iv). Notwithstanding the foregoing, Holdings may engage in those
activities that are incidental to (a) the maintenance of its corporate
existence in compliance with applicable law, (b) legal, tax and accounting
matters in connection with any of the foregoing activities and (c) the
entering into, and performing its obligations under, this Agreement and the
other Documents to which it is a party.
8.02 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. Holdings
will not, and will not permit any of its Subsidiaries to, wind up, liquidate
or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets (other than inventory in the ordinary course of business), or enter
into any partnerships, joint ventures or sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions)
any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person, except that the following shall be permitted:
(a) the Transaction;
(b) the Borrower and its Subsidiaries may lease as lessee or license
as licensee real or personal property (including, without limitation,
intellectual property) in the ordinary course of business and otherwise in
compliance with this Agreement;
(c) Capital Expenditures by the Borrower and its Subsidiaries to the
extent not in violation of Section 8.08;
(d) the advances, investments and loans permitted pursuant to
Section 8.05;
(e) each of the Borrower and its Subsidiaries may sell assets,
PROVIDED, that (i) each such sale shall be for an amount at least equal to
the fair market value thereof (as determined in good faith by senior
management of the Borrower), (ii) each such sale results in consideration
at least 80% of which (taking the amount of cash, the principal amount of
any promissory notes and the fair market value, as determined in good faith
by senior management of the Borrower, of any other consideration) shall be
in the form of cash or cash equivalents (it being understood that any
assumed debt shall be considered cash for this purpose), (iii) the
aggregate sale proceeds from all assets subject to such sales pursuant to
this clause (e), when combined with the value of the assets exchanged
pursuant to Section 8.02(j)(y), shall not exceed $5,000,000 in any fiscal
year of the Borrower and (iv) the Net Proceeds from assets sold pursuant to
this
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clause (e) are either applied to repay Term Loans as provided in
Section 4.02(A)(c) or reinvested in replacement assets to the extent
permitted by Section 4.02(A)(c);
(f) each of the Borrower and its Subsidiaries may sell assets,
PROVIDED, that (i) each such sale shall be for an amount at least equal to
the fair market value thereof (as determined in good faith by senior
management of the Borrower), (ii) each such sale results in consideration
at least 80% of which (taking the amount of cash, the principal amount of
any promissory notes and the fair market value, as determined in good faith
by senior management of the Borrower, of any other consideration) shall be
in the form of cash or cash equivalents (it being understood that any
assumed debt shall be considered cash for this purpose), and (iii) the
aggregate sale proceeds from all assets subject to such sales pursuant to
this clause (f) shall not exceed $200,000 in any fiscal year of the
Borrower;
(g) each of the Borrower and its Subsidiaries may enter into
sale-leaseback transactions, so long as (i) the sale portion of any such
transaction is permitted under Section 8.02(e) or (f), and (ii) the lease
portion of such transaction is permitted under this Agreement;
(h) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse, accounts receivables arising in the ordinary course
of business, but only in connection with the compromise or collection
thereof;
(i) the Borrower and its Subsidiaries may sell for cash or exchange
specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 180 days of such sale or
exchange in the acquisition of) replacement items of equipment which are
the functional equivalent of the item of equipment so sold or exchanged;
(j) (x) the Borrower and any of its Subsidiaries may sell, transfer or
otherwise dispose of assets in the ordinary course of business that, in the
reasonable business judgment of the Borrower or such Subsidiary, are
determined to be uneconomical or obsolete in the conduct of its business
and (y) the Borrower and any of its Subsidiaries may exchange assets with
third Persons, as long as the value of the assets exchanged pursuant to
this clause (j)(y), when combined with the amount of proceeds derived from
assets sold pursuant to Section 8.02(e), shall not exceed $5,000,000 in any
fiscal year of the Borrower;
(k) the Borrower and its Subsidiaries may, in the ordinary course of
business, license patents, trademarks, copyrights and know-how to third
Persons and to one another, so long as each such license is permitted to
be assigned pursuant to the Security Agreement (to the extent that a
security interest in such patents, trademarks, copyrights and know-how is
granted thereunder) and does not otherwise prohibit the
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granting of a Lien by the Borrower or any of its Subsidiaries pursuant to
the Security Agreement in the intellectual property covered by such
license;
(l) any Foreign Subsidiary of the Borrower may be merged with and
into, or be voluntarily dissolved or liquidated into, or transfer any of
its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower so long
as in each case at least 65% of the total combined voting power of all
classes of capital stock of all first-tier Foreign Subsidiaries of the
Borrower are pledged pursuant to the Pledge Agreement;
(m) the assets of any Foreign Subsidiary of the Borrower may be
transferred to the Borrower or any of its Wholly-Owned Domestic
Subsidiaries, and any Foreign Subsidiary of the Borrower may be merged with
and into, or be voluntarily dissolved or liquidated into, the Borrower or
any of its Wholly-Owned Domestic Subsidiaries so long as the Borrower or
such Wholly-Owned Domestic Subsidiary is the surviving corporation of any
such merger, dissolution or liquidation;
(n) the Borrower and its Wholly-Owned Domestic Subsidiaries may sell
or otherwise transfer inventory between or among themselves in the ordinary
course of business for resale by the Borrower or such Wholly-Owned Domestic
Subsidiaries, as the case may be, so long as the security interest granted
to the Collateral Agent for the benefit of the Secured Creditors pursuant
to the Security Agreement in the inventory so transferred shall remain in
full force and effect and perfected (to at least the same extent as in
effect immediately prior to such transfer);
(o) the Borrower and its Domestic Subsidiaries may sell or transfer
inventory to the Borrower's Foreign Subsidiaries in the ordinary course of
business for resale by such Foreign Subsidiary;
(p) the Borrower may lease as lessor equipment, machinery or its Real
Property to one or more Wholly-Owned Domestic Subsidiaries of the Borrower
so long as (x) such lease is for fair market value (determined in good
faith by the Board of Directors or senior management of the Borrower)
and (y) the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets so leased shall remain in full force and effect and perfected (to
at least the same extent as in effect immediately prior to such transfer);
(q) any Domestic Subsidiary of the Borrower may transfer assets to the
Borrower or to any other Wholly-Owned Domestic Subsidiary of the Borrower
so long as the security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets so transferred shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such
transfer);
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(r) any Wholly-Owned Domestic Subsidiary of the Borrower may merge
with and into, or be voluntarily dissolved or liquidated into, the Borrower
so long as (i) the Borrower is the surviving corporation of such merger,
dissolution or liquidation and (ii) the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets of such Wholly-Owned Domestic Subsidiary
so merged, dissolved or liquidated shall remain in full force and effect
and perfected (to at least the same extent as in effect immediately prior
to such merger, dissolution or liquidation);
(s) any Wholly-Owned Domestic Subsidiary of the Borrower may merge
with and into, or be voluntarily dissolved or liquidated into, any other
Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such
Wholly-Owned Domestic Subsidiary of the Borrower is the surviving
corporation of such merger, dissolution or liquidation and (ii) the
security interests granted to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Security Documents in the assets of such
Domestic Subsidiary so merged, dissolved or liquidated shall remain in full
force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolution or liquidation);
(t) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may acquire assets constituting all or
substantially all of a business, business unit, division or product line of
any Person not already a Subsidiary of the Borrower or the capital stock of
any such Person (any such acquisition permitted by this clause (t), a
"Permitted Acquisition"), PROVIDED, that (i) such Person (or the assets so
acquired) was, immediately prior to such acquisition, engaged (or used)
primarily in the business permitted pursuant to Section 8.01(a), (ii) if
such acquisition is structured as a stock acquisition, then either (A) the
Person so acquired becomes a Wholly-Owned Domestic Subsidiary of the
Borrower or (B) such Person is merged with and into a Wholly-Owned Domestic
Subsidiary of the Borrower (with such Wholly-Owned Domestic Subsidiary
being the surviving corporation of such merger), and in any case, all of
the provisions of Section 8.17 have been complied with in respect of such
Person, (iii) any Liens or Indebtedness assumed or issued in connection
with such acquisition are otherwise permitted under Section 8.03 or 8.04,
as the case may be, (iv) the only consideration paid by the Borrower in
respect of any such Permitted Acquisition consists of cash, Holdings Common
Stock permitted to be issued under Section 8.15 and/or Indebtedness to the
extent permitted by Section 8.04, (v) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct
in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Permitted Acquisition (both before and after giving effect thereto),
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date, and (vi) the aggregate amount paid
(including for this purpose all cash consideration paid, the face amount of
all Indebtedness incurred in connection with any such Permitted
Acquisition, and the
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fair market value (determined as of the proposed date of consummation of
such Permitted Acquisition in good faith by senior management of the
Borrower) of any Holdings Common Stock, if any, issued as consideration in
connection with such Permitted Acquisition), in connection with any such
acquisition (or series of related acquisitions) shall not exceed an amount
equal to the sum of (x) $6,500,000 less the aggregate amount of such
$6,500,000 previously utilized to make Permitted Acquisitions plus, unless
such amount is negative, (y) the Excess Proceeds Amount at the time of such
acquisition, PROVIDED that in no event shall the aggregate amount of
Permitted Acquisitions made in any fiscal year pursuant to this clause (t)
exceed $10,000,000 (or, during a Reduced Leverage Period, $20,000,000), and
provided further that without the prior written consent of the Required
Banks, no more than $6,500,000 (or, during a Reduced Leverage Period,
$10,000,000) may be used to consummate any single, or series of related
Permitted Acquisitions;
(u) as long as no Default or Event of Default then exists or would
result therefrom, Holdings may sell any of the investments which are listed
on Annex XV (the "Permitted Holdings Investments");
(v) IMED B.V.I. may be liquidated with and into its parent corporation
so long as such parent corporation is the Borrower or a Wholly-Owned
Subsidiary of the Borrower;
(w) the operations of River Medical may be wound down and/or
liquidated;
(x) the Borrower and any of its Subsidiaries may enter into
(1) Instruments on Contract in accordance with Section 8.08 and
(2) Instrument Capital Leases;
(y) the Borrower and/or any of its Subsidiaries party to any
Instrument Capital Lease may sell the assets subject to such Instrument
Capital Lease or the lease payment receivables arising pursuant to such
Instrument Capital Lease; and
(z) the Borrower and its Subsidiaries may sell the Creedmoor Property
so long as (i) such sale is for cash and at fair market value (as
determined by the Board of Directors of the Borrower in good faith),
(ii) the Net Proceeds therefrom are either applied to repay Term Loans as
provided in Section 4.02(A)(c) or reinvested in replacement assets to the
extent permitted by Section 4.02(A)(c), (iii) the Borrower or such
Subsidiary leases back such Creedmoor Property pursuant to a lease the
terms of which are satisfactory to the Administrative Agent and (iv) the
lease payments and obligations to be made by the Borrower and/or such
Subsidiary in respect of the lease referred to in clause (iii) above are
permitted under this Agreement.
To the extent the Required Banks waive the provisions of this Section 8.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 8.02,
such Collateral in each case shall be sold or otherwise
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disposed of free and clear of the Liens created by the Security Documents and
the Administrative Agent shall take such actions (including, without
limitation, directing the Collateral Agent to take such actions) as are
appropriate in connection therewith.
8.03 LIENS. Holdings will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets of any kind (real or personal,
tangible or intangible) of Holdings or any of its Subsidiaries, whether now
owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to Holdings or any of its Subsidiaries) or assign any right to
receive income, except for the following (collectively, the "Permitted
Liens"):
(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the ordinary course of
business, and which either (x) do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
(d) Liens in existence on the Initial Borrowing Date which are listed,
and the property subject thereto described, in Annex XIII, without giving
effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(f) Liens incurred or deposits made (x) in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money); and (y) to
secure the
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performance of leases of Real Property, to the extent incurred or made in
the ordinary course of business consistent with past practices;
(g) licenses, leases or subleases granted to third Persons not
interfering in any material respect with the business of the Borrower or
any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances
not interfering in any material respect with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
(j) any interest or title of a licensor, lessor or sublessor under
any lease permitted by this Agreement;
(k) Liens created pursuant to Capital Leases permitted pursuant to
Sections 8.04(d) and (n);
(l) Permitted Encumbrances;
(m) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 120 days after the respective
purchase) of assets acquired after the Initial Borrowing Date, PROVIDED,
that (i) any such Liens attach only to the assets so purchased, (ii) the
Indebtedness secured by any such Lien does not exceed 100%, nor is less
than 70% of the lesser of the fair market value or the purchase price of
the property being purchased at the time of the incurrence of such
Indebtedness, and (iii) the Indebtedness secured thereby is permitted to
be incurred pursuant to Section 8.04(d);
(n) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, PROVIDED, that (i) any Indebtedness that is secured by such
Liens is permitted to exist under Section 8.04(k) and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries;
(o) Liens securing Indebtedness permitted pursuant to, and subject
to the limitations set forth in, Section 8.04(i), so long as any such Lien
attaches only to the assets of the respective Foreign Subsidiary which is
the obligor under such Indebtedness;
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(p) Liens on (1) the instruments or other medical devices which are
the subject of any Instrument on Contract or (2) the Borrower's interest in
any Instrument Capital Lease or the property subject thereto; and
(q) additional Liens incurred by the Borrower and its Subsidiaries so
long as the value of the property subject to such Liens, and the
Indebtedness and other obligations secured thereby, do not exceed
$1,000,000.
In connection with the granting of Liens of the type described in
clauses (k), (m), (n) and (p) of this Section 8.03 by the Borrower or any of
its Subsidiaries, at the reasonable request of the Borrower, and at the
Borrower's expense, the Administrative Agent and the Collateral Agent shall
take (and are hereby authorized to take) any actions reasonably requested by
the Borrower in connection therewith (including, without limitation, by
executing appropriate lien releases in favor of the holder or holders of such
Liens, in either case solely with respect to the item or items of equipment
or other assets subject to such Liens).
8.04 INDEBTEDNESS. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Indebtedness to Remain Outstanding on the Initial Borrowing Date
and listed on Annex VIII, without giving effect to any subsequent
extension, renewal or refinancing thereof (other than a refinancing of the
7-1/4% Debentures on the terms and subject to the conditions provided in
Section 8.15(i));
(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the Borrower against fluctuations in interest rates in
respect of the Obligations;
(d) Indebtedness of the Borrower and its Subsidiaries incurred
pursuant to purchase money Liens permitted under Section 8.03(m) and
Capitalized Lease Obligations; PROVIDED, that (x) all such Capitalized
Lease Obligations are permitted under Section 8.08 and (y) the sum of
(i) the aggregate outstanding Capitalized Lease Obligations (other than
(a) Capitalized Lease Obligations in respect of the lease of the Creedmoor
Property if such Property is sold as permitted by Section 8.02(z) and
(b) Capitalized Lease Obligations incurred in connection with the
modernization of the Borrower's information systems) plus (ii) the
aggregate outstanding principal amount of such purchase money Indebtedness
at any time shall not exceed $5,000,000;
(e) Indebtedness of the Borrower (and (x) subordinated guaranties
thereof by Domestic Subsidiaries of the Borrower and (y) subordinated
guaranties thereof by Foreign Subsidiaries of the Borrower to the extent
such Foreign Subsidiaries have guaranteed the Obligations pursuant to
Section 7.14) incurred under the Senior
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Subordinated Notes in an aggregate principal amount not to exceed
$200,000,000 (as reduced by any repayments of principal thereof);
(f) Indebtedness constituting (1) Intercompany Loans to the extent
permitted by Section 8.05(g) or (2) other intercompany loans to the extent
permitted by 8.05(l);
(g) Indebtedness under Other Hedging Agreements providing protection
against fluctuations in currency values in connection with the Borrower's
or any of its Subsidiaries' operations so long as management of the
Borrower or such Subsidiary, as the case may be, has determined that the
entering into of such Other Hedging Agreements are BONA FIDE hedging
activities;
(h) Indebtedness of Foreign Subsidiaries to the Borrower or any of its
Domestic Subsidiaries as a result of any investment made pursuant to
Section 8.05(n);
(i) Indebtedness of Foreign Subsidiaries under lines of credit
extended by third Persons to any such Foreign Subsidiary the proceeds of
which Indebtedness are used for such Foreign Subsidiary's working capital
purposes, PROVIDED, that the aggregate principal amount of all such
Indebtedness outstanding at any time for all Foreign Subsidiaries shall not
exceed $15,000,000 (the "Foreign Subsidiary Working Capital Indebtedness"),
and such Indebtedness may be (i) secured by Liens permitted under
Section 8.03(o) and/or (ii) supported by Letters of Credit;
(j) Indebtedness consisting of guaranties (x) by the Borrower of
Indebtedness and leases permitted to be incurred by Wholly-Owned Domestic
Subsidiaries of the Borrower, (y) by Domestic Subsidiaries of the Borrower
of Indebtedness and leases permitted to be incurred by the Borrower or
other Wholly-Owned Domestic Subsidiaries of the Borrower and (z) by Foreign
Subsidiaries of Indebtedness and leases permitted to be incurred by other
Wholly-Owned Foreign Subsidiaries of the Borrower;
(k) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition
of an asset securing such Indebtedness), provided that (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, (ii) such Indebtedness does
not constitute debt for borrowed money, it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebtedness shall not
constitute debt for borrowed money for purposes of this clause (k), and
(iii) at the time of such Permitted Acquisition such Indebtedness does not
exceed 10% of the total value of the assets of the Subsidiary so acquired,
or of the assets so acquired, as the case may be;
(l) Indebtedness of Holdings incurred under the 15% Debentures in the
aggregate outstanding principal amount of $21,924,000, provided that such
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Indebtedness shall only be permitted to exist for 30 days following the
Initial Borrowing Date;
(m) Indebtedness of Holdings under the Shareholder Subordinated Notes;
(n) Capitalized Lease Obligations incurred in respect of (x) the lease
of the Creedmoor Property to the extent that (i) such Property is sold
pursuant to Section 8.02(z) and (ii) such Capitalized Lease Obligations are
permitted by Section 8.08 and (y) the modernization of the Borrower's
information systems;
(o) Indebtedness of the Borrower or any of its Subsidiaries consisting
of take-or-pay obligations contained in supply agreements entered into in
the ordinary course of business;
(p) Indebtedness of Fidata owing to Holdings to the extent permitted
by Section 8.05(v); and
(q) additional Indebtedness of the Borrower and its Domestic
Subsidiaries not otherwise permitted hereunder not exceeding $2,000,000 in
the aggregate principal amount at any time outstanding.
8.05 ADVANCES, INVESTMENTS AND LOANS. Holdings will not, and will not
permit any of its Subsidiaries to, lend money or credit or make advances to
any Person, or purchase or acquire any stock, obligations or securities of,
or any other interest in, or make any capital contribution to, any Person, or
purchase or own a futures contract or otherwise become liable for the
purchase or sale of currency or other commodities at a future date in the
nature of a futures contract, or hold any cash, Cash Equivalents or Foreign
Cash Equivalents, except:
(a) Holdings and its Subsidiaries may invest in cash and Cash
Equivalents;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 8.04(c) shall be permitted;
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(e) Holdings may acquire and hold obligations of one or more officers
or other employees of Holdings or its Subsidiaries in connection with such
officers' or employees' acquisition of shares of Holdings Common Stock so
long as no cash is paid by Holdings or any of its Subsidiaries in
connection with the acquisition of any such obligations;
(f) deposits made in the ordinary course of business consistent with
past practices to secure the performance of leases shall be permitted;
(g) the Borrower may make intercompany loans and advances to any of
its Subsidiaries, any Subsidiary of the Borrower may make intercompany
loans and advances to the Borrower, and any Subsidiary of the Borrower may
make intercompany loans and advances to any other Subsidiary of the
Borrower (collectively, "Intercompany Loans"), PROVIDED, that (w) at no
time shall the aggregate outstanding principal amount of all Intercompany
Loans made pursuant to this clause (g) by the Borrower and its Wholly-Owned
Domestic Subsidiaries to non-Wholly-Owned Domestic Subsidiaries and Foreign
Subsidiaries, when added to the amount of contributions, capitalizations
and forgiveness theretofore made pursuant to Section 8.05(m), exceed
$10,000,000 (determined without regard to any write-downs or write-offs of
such loans and advances), (x) each Intercompany Loan made by a Foreign
Subsidiary or a non-Wholly-Owned Domestic Subsidiary to the Borrower or a
Wholly-Owned Domestic Subsidiary of the Borrower shall contain the
subordination provisions set forth on Exhibit I, (y) each Intercompany Loan
shall be evidenced by an Intercompany Note and (z) each such Intercompany
Note (other than (1) Intercompany Notes issued by Foreign Subsidiaries of
the Borrower to the Borrower or any of its Domestic Subsidiaries and
(2) Intercompany Notes held by Foreign Subsidiaries of the Borrower, in
each case except to the extent provided in Section 7.14) shall be pledged
to the Collateral Agent pursuant to the Pledge Agreement;
(h) loans and advances by the Borrower and its Subsidiaries to
employees of Holdings and its Subsidiaries incurred in the ordinary course
of business, in an aggregate outstanding principal amount not to exceed
$1,000,000 at any time (determined without regard to any write-downs or
write-offs of such loans and advances), shall be permitted;
(i) Holdings may make equity contributions to the capital of the
Borrower;
(j) Foreign Subsidiaries of the Borrower may invest in Foreign Cash
Equivalents;
(k) Other Hedging Agreements may be entered into in compliance with
Section 8.04(g);
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(l) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Annex XIV shall be permitted, without giving
effect to any additions thereto or replacements thereof;
(m) the Borrower and its Wholly-Owned Domestic Subsidiaries may make
cash capital contributions to non-Wholly-Owned Domestic Subsidiaries and
Foreign Subsidiaries of the Borrower, and may capitalize or forgive any
Indebtedness owed to them by a non-Wholly-Owned Domestic Subsidiary or
Foreign Subsidiary of the Borrower and outstanding under clause (g) of this
Section 8.05, PROVIDED, that the aggregate amount of such contributions,
capitalizations and forgiveness, when added to the aggregate outstanding
principal amount of Intercompany Loans made to non-Wholly-Owned Domestic
Subsidiaries and Foreign Subsidiaries under such clause (g) (determined
without regard to any write-downs or write-offs thereof), shall not exceed
an amount equal to $10,000,000;
(n) the Borrower and its Subsidiaries may make investments in their
respective Subsidiaries in connection with the transfers of those assets
permitted to be transferred pursuant to Sections 8.02(l) and (m), it being
understood that the Borrower and its Subsidiaries may convert any
investment initially made as an equity investment to intercompany
Indebtedness held by the Borrower or such Subsidiary;
(o) the Borrower and its Domestic Subsidiaries may make and hold
investments in their respective Foreign Subsidiaries to the extent that
such investments arise from the sale of inventory in the ordinary course
of business by the Borrower or such Domestic Subsidiary to such Foreign
Subsidiaries for resale by such Foreign Subsidiaries (including any such
investments resulting from the extension of the payment terms with respect
to such sales);
(p) the Borrower and its Subsidiaries may make transfers of assets
to their respective Subsidiaries in accordance with Sections 8.02(n), (o)
and (q);
(q) the Borrower may contribute cash to one or more of its
Wholly-Owned Domestic Subsidiaries formed after the Initial Borrowing Date
in accordance with Section 8.17 so long as the aggregate amount of such
cash so contributed to all such Wholly-Owned Domestic Subsidiaries does not
exceed $5,000,000;
(r) Permitted Acquisitions shall be permitted in accordance with
Section 8.02(t);
(s) the Borrower and its Subsidiaries may acquire and hold debt
securities as partial consideration for a sale of assets pursuant to
Section 8.02(e) or (f) to the extent permitted by any such Section;
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(t) Holdings may hold the Permitted Holdings Investments, without
giving effect to any additions thereto or replacements thereof (other than
proceeds of the sale thereof to the extent held in the form of cash or Cash
Equivalents);
(u) the Borrower and its Subsidiaries may enter into Instruments on
Contract, to the extent permitted by Section 8.08;
(v) Holdings may make loans and/or capital contributions to Fidata to
enable Fidata to wind down its operations, provided that the aggregate
principal of such loans plus the aggregate amount of such capital
contributions shall not exceed $200,000; and
(w) in addition to investments permitted by clauses (a) through (v)
above, the Borrower and its Subsidiaries may make additional loans,
advances and investments to or in a Person, so long as the amount of any
such loan, advance or investment (at the time of the making thereof) does
not exceed an amount equal to the sum of (A) $2,000,000 less the aggregate
amount of such $2,000,000 previously used to make loans, advances and
investments pursuant to this clause (w) to the extent same are then still
outstanding (determined without regard to any write-downs or write-offs
thereof and net of cash repayments of principal in the case of loans and
cash equity returns (whether as a dividend or redemption) in the case of
equity investments), plus, unless such amount is negative, (B) an amount
equal to the Excess Proceeds Amount at such time, PROVIDED that in no event
shall the aggregate amount of loans, advances and investments made in any
fiscal year pursuant to this clause (w) with the Excess Proceeds Amount
exceed $2,000,000 (or, during a Reduced Leverage Period, $4,000,000), and
PROVIDED FURTHER, that neither the Borrower nor any of its Subsidiaries may
make or own any investment in Margin Stock.
8.06 DIVIDENDS, ETC. Holdings will not, and will not permit any of its
Subsidiaries to, declare or pay any dividends (other than dividends payable
solely in common stock of Holdings or any such Subsidiary, as the case may
be) or return any capital to, its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital
stock, now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or make any payment
pursuant to a tax sharing agreement, or set aside any funds for any of the
foregoing purposes, and Holdings will not permit any of its Subsidiaries to
purchase or otherwise acquire for consideration any shares of any class of
the capital stock of Holdings or any other Subsidiary, as the case may be,
now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock)
(all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower,
any Wholly-Owned Subsidiary of the Borrower, IMED Pty or IMED Ltd.;
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(ii) Holdings may redeem or purchase shares of Holdings Common Stock
or options to purchase Holdings Common Stock, respectively, held by former
employees of Holdings or any of its Subsidiaries following the termination
of their employment, provided that (w) the only consideration paid by
Holdings in respect of such redemptions and/or purchases shall be cash and
Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount
paid by Holdings in cash in respect of all such redemptions and/or
purchases plus (B) the aggregate amount of all principal and interest
payments made on Shareholder Subordinated Notes, shall not exceed
$1,000,000 in any fiscal year of Holdings, provided that to the extent an
amount less than $1,000,000 is used for such payments during any fiscal
year, then the unused portion may be applied cumulatively over the
following fiscal years as long as no more than $3,000,000 in the aggregate
is used for such payments in any one fiscal year, provided, further that
such amount shall be increased by an amount (not to exceed $1,000,000 for
purposes of this clause (ii)) equal to the proceeds received by Holdings
after the Initial Borrowing Date from the sale or issuance of Holdings
Common Stock to management of Holdings or any of its Subsidiaries and
(y) at the time of any cash payment permitted to be made pursuant to this
Section 8.06(ii), including any cash payment under a Shareholder
Subordinated Note, no Default or Event of Default shall then exist or
result therefrom;
(iii) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may pay cash Dividends to Holdings, so long
as Holdings promptly uses such proceeds for the purposes described in
clause (ii) of this Section 8.06;
(iv) the Borrower may pay cash Dividends to Holdings, so long as the
proceeds thereof are promptly used by Holdings to pay operating expenses
in the ordinary course of business (including, without limitation,
professional fees and expenses) and other similar corporate overhead costs,
expenses and expenditures, or to pay salaries or other compensation
of employees who perform services for Holdings and the Borrower, provided
that the aggregate amount of cash Dividends paid pursuant to this
Section 8.06(iv) shall not during any fiscal year of the Borrower exceed,
when added to any licensing agreement payments made by the Borrower or any
of its Subsidiaries to Holdings during such fiscal year, $1,500,000;
(v) the Borrower may pay cash Dividends to Holdings, so long as the
proceeds thereof are promptly interest (when and as due and payable) on
Indebtedness to Remain Outstanding of Holdings or (y) accrued but unpaid
interest on Indebtedness to Remain Outstanding permitted pursuant to
Section 8.15(i)(c), provided that in clauses (x) and (y) no Default or
Event of Default has occurred and is continuing at the time of any such
Dividend;
(vi) so long as no Default or Event of Default then exists or would
result therefrom, upon the final scheduled maturity of the
7-1/4 Debentures, the Borrower
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may pay cash Dividends to Holdings in an amount equal to the principal
amount of such 7-1/4% Debentures, so long as the proceeds thereof are
promptly used by Holdings to repay the principal of such 7-1/4% Debentures,
provided that the cash Dividends may only be paid pursuant to this
clause (vi) to the extent that the Leverage Ratio at such time (determined
both before and after giving effect to such Dividends (and the incurrence
of any Indebtedness to finance such Dividends)) is less than or equal
to 3.0:1.0;
(vii) the Borrower may pay cash Dividends to Holdings in the amounts
and at the times provided for under the Holdings Tax Allocation Agreement,
provided that the amount of cash Dividends so paid with respect to a
taxable year or other taxable period shall not exceed the sum of: (x) the
lesser of (A) the federal income taxes that the Borrower and its
Subsidiaries (the "Borrower Subgroup") would be required to pay with
respect to such taxable year if the Borrower Subgroup had filed a separate
consolidated federal income tax return for the current year and for all
prior taxable years (collectively, the "Hypothetical Separate Federal
Income Tax Liability"), and (B) the product of (I) the federal income tax
liability of the Holdings Consolidated Group for such year and (II) a
fraction, (a) the numerator of which is an amount equal to the Hypothetical
Separate Federal Income Tax Liability for such year and (b) the denominator
of which is the sum of (x) the Hypothetical Separate Federal Income Tax
Liability of the Borrower Subgroup for such year plus (y) the separate
federal income tax liability (or less the corresponding negative tax
liability) that each other member of the Holdings Consolidated Group would
have incurred for such year if such corporations had filed separate
federal income tax returns for such year and all prior years (provided that
the amount determined under this clause (y) shall not be less than zero),
PROVIDED that, in the event that the income tax liability of the Holdings
Consolidated Group for any taxable year exceeds the Hypothetical Separate
Federal Income Tax Liability of the Borrower Subgroup for such year (an
"Excess Tax Liability"), the Borrower may pay to Holdings (as an additional
Dividend) such Excess Tax Liability, PROVIDED, HOWEVER, that the Borrower
shall not pay to Holdings any amount in respect of an Excess Tax Liability
that is greater than (A) the sum of the Hypothetical Separate Federal
Income Tax Liability of the Borrower Subgroup for all taxable years ending
after the Effective Date minus (B) the sum of all amounts previously paid
by the Borrower to Holdings pursuant to this clause (x); and (y) if the
Borrower or any of its Subsidiaries file combined, consolidated or unitary
state tax returns with Holdings for any taxable year or other taxable
period, the amount of state income taxes in respect of which a combined,
consolidated or unitary return was filed, calculated under the same
methodology set forth in clause (x) with respect to federal income tax
liability. If Holdings receives a refund or a credit or is subject to any
final determination with respect to any audit adjustment (including
interest and penalties) with respect to tax liabilities which relates to
any taxable year or other taxable period in which the Borrower or its
Subsidiaries are included in the Holdings Consolidated Group or file
combined, consolidated or unitary state tax returns with Holdings, then the
amount of the payments provided for in this clause (vii) shall be
recomputed (and
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appropriate adjustments in payments shall be made) for all affected
taxable years in accordance with the principles enumerated above to take
into account any such refund, credit or final determination; and
(viii) Holdings may utilize the proceeds from the sale of any Permitted
Holdings Investments (net of the repayment of outstanding loans made by
Holdings to Fidata) to pay cash Dividends to its shareholders, PROVIDED
that the amount of Dividends permitted pursuant to this Section 8.06(viii)
shall be reduced by the amount of such net cash proceeds used for the
purposes set forth in clause (B) of the definition of Excess Proceeds
Amount.
8.07 TRANSACTIONS WITH AFFILIATES. Holdings will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate (other than any transactions between the
Borrower and any Wholly-Owned Subsidiary of the Borrower, except River
Medical, and any transactions between Wholly-Owned Subsidiaries of the
Borrower, except River Medical) other than in the ordinary course of business
and on terms and conditions substantially as favorable to Holdings or such
Subsidiary as would be obtainable by Holdings or such Subsidiary at the time
in a comparable arm's-length transaction with a Person other than an
Affiliate; PROVIDED, that the following shall in any event be permitted:
(i) the Transaction; (ii) Dividends may be paid to the extent provided in
Section 8.06 and (iii) Holdings and the Borrower and its Domestic Subsidiaries
may enter into the Holdings Tax Allocation Agreement and may make any payments
required thereunder.
8.08 CAPITAL EXPENDITURES. (a) (i) Holdings will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any fiscal year set forth below Holdings and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount so made by Holdings and
its Subsidiaries (on a consolidated basis) during any such fiscal year does
not exceed the amount set forth opposite such fiscal year below:
FISCAL YEAR ENDING AMOUNT
------------------ ------
December 31, 1997 $24,000,000
December 31, 1998 $22,000,000
December 31, 1999 and thereafter $18,000,000
(ii) If for any fiscal year of Holdings commencing with the fiscal year
ending on December 31, 1998, (x) the Consolidated EBITDA for the immediately
preceding fiscal year is more than the projected Consolidated EBITDA of
Holdings set forth on Annex XII for such immediately preceding fiscal year
(the amount by which such actual Consolidated EBITDA exceeds such projected
Consolidated EBITDA, the "Surplus"), then the amount of Capital Expenditures
permitted to be made in such fiscal year pursuant to this Section 8.08(a)
shall be (A)
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the amount set forth in clause (a)(i) above opposite such fiscal year
plus (B) the Surplus multiplied by 0.25.
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by Holdings and its Subsidiaries
pursuant to clause (a) above in any fiscal year (before giving effect to any
increase in such permitted expenditure amount pursuant to this clause (b)) is
greater than the amount of such Capital Expenditures made by Holdings and its
Subsidiaries during such fiscal year, such excess (the "Rollover Amount") may
be carried forward and utilized to make Capital Expenditures in succeeding
fiscal years, provided that in no event shall the aggregate amount of Capital
Expenditures made by Holdings and its Subsidiaries during any fiscal year
pursuant to Section 8.08(a) exceed 125% of the amount set forth in such
Section 8.08(a).
(c) Notwithstanding the foregoing, Holdings and its Subsidiaries may
make Capital Expenditures (which Capital Expenditures will not be included in
any determination under the foregoing clause (a)) with the insurance proceeds
received by Holdings or any of its Subsidiaries from any Recovery Event so
long as such Capital Expenditures are to replace or restore any properties or
assets in respect of which such proceeds were paid within 367 days following
the date of the receipt of such insurance proceeds to the extent such
insurance proceeds are not required to be applied to repay Term Loans
pursuant to Section 4.02(A)(g).
(d) Notwithstanding the foregoing, Holdings and its Subsidiaries may
make Capital Expenditures (which Capital Expenditures will not be included in
any determination under the foregoing clause (a)) with the Net Proceeds of
Asset Sales, to the extent such Net Proceeds are not required to be applied
to repay Term Loans pursuant to Section 4.02(A)(c).
(e) Notwithstanding the foregoing, Holdings may make Capital
Expenditures (which Capital Expenditures will not be included in any
determination under the foregoing clause (a)) constituting Permitted
Acquisitions.
(f) Notwithstanding the foregoing, Holdings and its Subsidiaries may
make Capital Expenditures at any time in an aggregate amount equal to the
Excess Proceeds Amount at such time (which Capital Expenditures will not be
included in any determination under the foregoing clause (a)), provided that
the aggregate amount of Capital Expenditures permitted to be made by Holdings
and its Subsidiaries pursuant to this clause (f) in any fiscal year shall be
$5,000,000 (or at any time during a Reduced Leverage Period, $10,000,000).
(g) The Borrower and its Subsidiaries may incur Capitalized Lease
Obligations in an aggregate amount not to exceed $6,000,000 under a lease of
the Creedmoor Property to the extent sold pursuant to Section 8.02(z) (which
Capitalized Lease Obligations will not be included in any determination under
the foregoing clause (a)).
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8.09 MINIMUM CONSOLIDATED EBITDA. Neither Holdings nor the Borrower
will permit Consolidated EBITDA for any Test Period ending on a date set
forth below to be less than the amount set forth opposite such date:
Minimum Consolidated
Date EBITDA
---- ---------------------
March 31, 1997 $ 14,700,000
June 30, 1997 $ 33,550,000
September 30, 1997 $ 54,300,000
December 31, 1997 $ 78,600,000
March 31, 1998
$ 81,600,000
June 30, 1998 $ 84,800,000
September 30, 1998 $ 86,200,000
December 31, 1998 $ 88,400,000
March 31, 1999
$ 89,200,000
June 30, 1999 $ 90,300,000
September 30, 1999 $ 91,300,000
December 31, 1999 $ 92,600,000
March 31, 2000
$ 93,600,000
June 30, 2000 $ 94,800,000
September 30, 2000 $ 96,100,000
December 31, 2000 $ 97,600,000
March 31, 2001
$ 99,600,000
June 30, 2001 $102,100,000
September 30, 2001 $104,500,000
December 31, 2001 $107,500,000
March 31, 2002
$109,500,000
June 30, 2002 $111,900,000
September 30, 2002 $114,300,000
December 31, 2002 $117,200,000
March 31, 2003
$118,600,000
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June 30, 2003 $120,300,000
September 30, 2003 $122,100,000
December 31, 2003 $124,200,000
March 31, 2004
$125,700,000
June 30, 2004 $127,500,000
September 30, 2004 $129,400,000
December 31, 2004 $131,600,000
March 31, 2005
$132,600,000
June 30, 2005 $133,900,000
8.10 INTEREST COVERAGE RATIO. Neither Holdings nor the Borrower will
permit the Interest Coverage Ratio for any Test Period ending on a date set
forth below to be less than the ratio set forth opposite such date:
Date Ratio
---- -----
June 30, 1997 1.55:1.00
September 30, 1997 1.70:1.00
December 31, 1997 1.85:1.00
March 31, 1998 1.95:1.00
June 30, 1998 2.00:1.00
September 30, 1998 2.05:1.00
December 31, 1998 2.10:1.00
March 31, 1999 2.15:1.00
June 30, 1999 2.20:1.00
September 30, 1999 2.25:1.00
December 31, 1999 2.30:1.00
March 31, 2000
2.35:1.00
June 30, 2000 2.40:1.00
September 30, 2000 2.45:1.00
December 31, 2000 2.50:1.00
March 31, 2001 2.60:1.00
June 30, 2001 2.70:1.00
September 30, 2001 2.75:1.00
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December 31, 2001 2.75:1.00
March 31, 2002 3.00:1.00
June 30, 2002 3.10:1.00
September 30, 2002 3.25:1.00
December 31, 2002 3.35:1.00
March 31, 2003 3.50:1.00
June 30, 2003 3.65:1.00
September 30, 2003 3.70:1.00
December 31, 2003 3.75:1.00
March 31, 2004
4.05:1.00
June 30, 2004 4.15:1.00
September 30, 2004 4.20:1.00
December 31, 2004 4.25:1.00
March 31, 2005 4.50:1.00
June 30, 2005 4.75:1.00
8.11 LEVERAGE RATIO. Neither Holdings nor the Borrower will permit the
Leverage Ratio at any time during a fiscal quarter set forth below to be more
than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1997 6.40:1.00
September 30, 1997 5.95:1.00
December 31, 1997 5.35:1.00
March 31, 1998
5.10:1.00
June 30, 1998 5.00:1.00
September 30, 1998 4.75:1.00
December 31, 1998 4.60:1.00
March 31, 1999 4.55:1.00
June 30, 1999 4.45:1.00
September 30, 1999 4.35:1.00
December 31, 1999 4.25:1.00
March 31, 2000
4.20:1.00
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June 30, 2000 4.10:1.00
September 30, 2000 4.05:1.00
December 31, 2000 4.00:1.00
March 31, 2001
3.80:1.00
June 30, 2001 3.65:1.00
September 30, 2001 3.50:1.00
December 31, 2001 3.35:1.00
March 31, 2002 3.20:1.00
June 30, 2002 3.10:1.00
September 30, 2002 2.95:1.00
December 31, 2002 2.85:1.00
March 31, 2003 2.75:1.00
June 30, 2003 2.65:1.00
September 30, 2003 2.55:1.00
December 31, 2003 2.50:1.00
March 31, 2004
2.40:1.00
June 30, 2004 2.35:1.00
September 30, 2004 2.30:1.00
December 31, 2004 2.25:1.00
March 31, 2005
2.05:1.00
June 30, 2005 1.75:1.00
8.12 FIXED CHARGE COVERAGE RATIO. Neither Holdings nor the Borrower
will permit the ratio of (i) (x) Consolidated EBITDA less (y) Capital
Expenditures of the Borrower and its Subsidiaries on a consolidated basis to
(ii) Consolidated Fixed Charges for any Test Period (commencing with the Test
Period ending on September 30, 1997) to be less than 1.00:1.00.
8.13 MINIMUM CONSOLIDATED NET WORTH. Neither Holdings nor the Borrower
will permit Consolidated Net Worth at any time to be less than the sum of (1)
$85,000,000 plus (2) if such amount is positive, an amount equal to 75% of
Consolidated Net Income for the period commencing January 1, 1997 through the
last day of the then most recently ended fiscal quarter.
8.14 DESIGNATED SENIOR DEBT. Holdings will not, and will not permit
any of its Subsidiaries to (i) designate any Indebtedness (other than the
Obligations) as "Designated
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Senior Debt" for purposes of, and as defined in, the Senior Subordinated
Notes Documents or (ii) designate any documents with respect to any
Indebtedness (other than this Agreement) as the "New Credit Facility" as
defined in the Senior Subordinated Notes Documents for purposes of the
receipt of notices by the Administrative Agent, and delivery of blockage
notices pursuant to the subordination provisions of the Senior Subordinated
Notes Documents.
8.15 LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF
INDEBTEDNESS; MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND
CERTAIN OTHER AGREEMENTS; ETC. Holdings will not, and will not permit any of
its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto or any other Person money or securities before due for the
purpose of paying when due) any Indebtedness to Remain Outstanding or
Senior Subordinated Notes, PROVIDED, that (a) the Series B Senior
Subordinated Notes may be issued in exchange for the Series A Senior
Subordinated Notes in accordance with the terms of the Senior Subordinated
Note Indenture, (b) Holdings shall be permitted to apply, or contribute to
the Borrower to apply, the net cash proceeds from the sale of any Permitted
Holdings Investments to repay, purchase or acquire any of the foregoing
Indebtedness, (c) Holdings shall be permitted to apply up to $16,800,000 of
the net cash proceeds of (1) any cash capital contributions by Picower
and/or any of his Affiliates to Holdings, and (2) any sale or issuance of
Holdings Common Stock (x) to Picower and/or any of his Affiliates or
(y) pursuant to a public offering consummated after June 30, 2001, to
repay, repurchase, redeem or acquire any of the 7-1/4% Debentures, and
(d) the 7-1/4% Debentures may be refinanced with the net cash proceeds of
any Permitted Refinancing Debt;
(ii) amend or modify, or permit the amendment or modification of, any
provision of any Indebtedness to Remain Outstanding, any Existing
Indebtedness Agreement or any Senior Subordinated Notes Document;
(iii) amend, modify or change in any way adverse to the interests of the
Banks, its Certificate of Incorporation (including, without limitation, by
filing or modification of any certificate of designation) or By-Laws, or
any agreement entered into by it, with respect to its capital stock
(including any Shareholders' Agreement), or enter into any new agreement
with respect to its capital stock which in any way could be adverse to the
interests of the Banks, provided that Holdings or any of its Subsidiaries
may amend its Certificate of Incorporation and By-Laws to change its name
so long as at least 15 days prior notice thereof is given to the
Administrative Agent and the Collateral Agent;
(iv) issue any class of capital stock other than (x) in the case of
the Borrower and its Subsidiaries, non-redeemable common stock and (y) in
the case of Holdings, issuances of Holdings Common Stock where, after
giving effect to such issuance, no
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Event of Default will exist under Section 9.10 and to the extent the
proceeds thereof are applied in accordance with this Agreement; or
(v) amend, modify, change, terminate, permit the amendment or
modification of, any provision of the Holding Tax Allocation Agreement,
or enter into any new Tax Sharing Agreements.
8.16 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. Holdings will
not, and will not permit any of its Subsidiaries (other than Fidata and River
Medical) to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of
any such Subsidiary to (a) pay dividends or make any other distributions on
its capital stock or any other interest or participation in its profits owned
by Holdings or any Subsidiary of Holdings, or pay any Indebtedness owed to
Holdings or a Subsidiary of Holdings, (b) make loans or advances to Holdings
or any of Holdings' Subsidiaries or (c) transfer any of its properties or
assets to Holdings or any of Holdings' Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) applicable
law, (ii) this Agreement and the other Credit Documents, (iii) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or a Subsidiary of the Borrower, (iv)
customary provisions restricting assignment of any licensing agreement
entered into by the Borrower or a Subsidiary of the Borrower in the ordinary
course of business, (v) customary provisions restricting the transfer of
assets subject to Liens permitted under Sections 8.03(k) and (m), (vi) the
Senior Subordinated Notes Documents, (vii) an agreement that has been entered
into for the sale or disposition of all or substantially all of the equity
interests or property or assets of a Subsidiary; PROVIDED that such
restrictions are limited to the Subsidiary that is the subject to such
agreement or (viii) restrictions applicable to any Foreign Subsidiary
pursuant to Indebtedness permitted to be incurred pursuant to Section
8.04(i), PROVIDED that such restrictions shall be limited to customary net
worth, leverage, cash flow and other financial ratios applicable to such
Foreign Subsidiary, customary restrictions on mergers and consolidations
involving such Foreign Subsidiary, customary restrictions on transactions
with affiliates of such Foreign Subsidiary and customary provisions
subordinating the payment of intercompany Indebtedness owed by such Foreign
Subsidiary to the Borrower or any of its Subsidiaries upon the occurrence of
a default in respect of Indebtedness of such Foreign Subsidiary or its
Subsidiaries and/or events of insolvency with respect to such Foreign
Subsidiary or its Subsidiaries; and PROVIDED, FURTHER that in no event shall
any Indebtedness incurred by a Foreign Subsidiary prohibit such Foreign
Subsidiary from making any dividend or other distribution to the Borrower or
its Subsidiary or from otherwise making any loan to the Borrower or its
Subsidiaries in the absence of a breach by such Foreign Subsidiary of the
covenants contained in such Indebtedness.
8.17 LIMITATION ON THE CREATION OF SUBSIDIARIES. Notwithstanding
anything to the contrary contained in this Agreement, Holdings will not, and
will not permit any of its Subsidiaries to, establish, create or acquire
after the Initial Borrowing Date any Subsidiary; PROVIDED that, the Borrower
and its Wholly-Owned Subsidiaries shall be permitted to establish, create or
acquire (x) Subsidiaries as a result of investments made pursuant to
Section 8.05(w)
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and (y) Wholly-Owned Subsidiaries so long as (i) at least 30 days' prior
written notice thereof is given to the Administrative Agent, (ii) the capital
stock of such new Subsidiary is pledged pursuant to, and to the extent
required by, the Pledge Agreement and the certificates representing such
stock, together with stock powers duly executed in blank, are delivered to
the Collateral Agent, (iii) such new Subsidiary (other than a Foreign
Subsidiary except to the extent otherwise required pursuant to Section 7.14)
executes a counterpart of the Subsidiary Guaranty, the Pledge Agreement and
the Security Agreement and (iv) to the extent requested by the Administrative
Agent or the Required Banks, takes all actions required pursuant to
Section 7.11. In addition, each new Wholly-Owned Subsidiary shall execute and
deliver, or cause to be executed and delivered, all other relevant
documentation of the type described in Section 5 as such new Subsidiary would
have had to deliver if such new Subsidiary were a Credit Party on the Initial
Borrowing Date.
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 PAYMENTS. The Borrower shall (i) default in the payment when due
of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any
Unpaid Drawing, any interest on the Loans or any Fees or any other amounts
owing hereunder or under any other Credit Document;
9.02 REPRESENTATIONS, ETC. Any representation, warranty or statement
made by Holdings, the Borrower or any other Credit Party herein or in any
other Credit Document or in any statement or certificate delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the
date as of which made or deemed made; or
9.03 COVENANTS. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained
in Sections 7.10, 7.11, 7.13 or 8, or (b) default in the due performance or
observance by it of any term, covenant or agreement (other than those
referred to in Section 9.01, 9.02 or clause (a) of this Section 9.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings or any of its
Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created
or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause any such Indebtedness to become due prior to its stated maturity; or
(b) any Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or shall be required to
be prepaid other than by a regularly scheduled required prepayment or as
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a mandatory prepayment (unless such required prepayment or mandatory
prepayment results from a default thereunder or an event of the type that
constitutes an Event of Default), prior to the stated maturity thereof;
PROVIDED, that it shall not constitute an Event of Default pursuant to
clause (a) or (b) of this Section 9.04 unless the principal amount of any one
issue of such Indebtedness, or the aggregate amount of all such Indebtedness
referred to in clauses (a) and (b) above, exceeds $7,500,000 at any one time;
or
9.05 BANKRUPTCY, ETC. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"), PROVIDED that any such voluntary
case shall not be an Event of Default if (x) the foregoing occurs with
respect to a Subsidiary of Holdings which is not a Significant Subsidiary and
(y) prior to commencing such a voluntary case, such Subsidiary shall have
given written notice of its intention to commence such a case to the Agents
and shall have received the prior written consent of the Agents; or an
involuntary case is commenced against Holdings or any of its Subsidiaries and
the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of Holdings or any of its Subsidiaries; or Holdings or
any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Holdings or any of its
Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the
benefit of creditors; or any corporate action is taken by Holdings or any of
its Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, any Plan
which is subject to Title IV of ERISA shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan which is subject to
Title IV of ERISA is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect
to a Plan or a Foreign Pension Plan has not been timely made, the Borrower or
any Subsidiary of the Borrower or any ERISA Affiliate has incurred or is
likely to incur any liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code, or the Borrower or any Subsidiary
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of the Borrower has incurred or is likely to incur liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or Plans or Foreign Pension
Plans; (b) there shall result from any such event or events the imposition of
a lien, the granting of a security interest, or a liability or a material
risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, in the opinion of the
Required Banks, has had, or could reasonably be expected to have, a Material
Adverse Effect; or
9.07 SECURITY DOCUMENTS. (a) Any Security Document shall cease to be
in full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in favor
of the Collateral Agent, or (b) any Credit Party shall default in the due
performance or observance of any material term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document and
such default shall continue beyond any cure or grace period specifically
applicable thereto pursuant to the terms of such Security Document; or
9.08 GUARANTIES. The Guaranties or any provision thereof shall cease
to be in full force and effect, or any Guarantor or any Person acting by or
on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty or any Guarantor shall default in the due
performance or observance of any material term, covenant or agreement on its
part to be performed or observed pursuant to any Guaranty; or
9.09 JUDGMENTS. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving a liability (to the
extent not paid or not fully covered by insurance) in excess of $7,500,000
for all such judgments and decrees and all such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
60 days from the entry thereof; or
9.10 OWNERSHIP. A Change of Control Event shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent shall, upon the
written request of the Required Banks, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights of
the Administrative Agent or any Bank to enforce its claims against any
Guarantor or the Borrower, except as otherwise specifically provided for in
this Agreement (PROVIDED, that if an Event of Default specified in Section 9.05
shall occur with respect to the Borrower, the result which would occur upon
the giving of written notice by the Administrative Agent as specified in
clauses (i) and (ii) below shall occur automatically without the giving of
any such notice): (i) declare the Total Commitment (or the unutilized
portion thereof) terminated, whereupon the Commitment of each Bank (or the
unutilized portion thereof) shall forthwith terminate immediately and any
Commitment Fees shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all Obligations owing hereunder (including Unpaid
Drawings) to be,
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whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) enforce, as Collateral Agent (or direct
the Collateral Agent to enforce), any or all of the Liens and security
interests created pursuant to the Security Documents; (iv) terminate any
Letter of Credit which may be terminated in accordance with its terms; and
(v) direct the Borrower to pay (and the Borrower hereby agrees upon receipt
of such notice, or upon the occurrence of any Event of Default specified in
Section 9.05, to pay) to the Collateral Agent at the Payment Office such
additional amounts of cash, to be held as security for the Borrower's
reimbursement obligations in respect of Letters of Credit then outstanding,
equal to the aggregate Stated Amount of all Letters of Credit then
outstanding.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the
plural and in the plural the singular:
"A Term Loan" shall have the meaning provided in Section 1.01(A)(a).
"A Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the
column entitled "A Term Loan Commitment," as the same may be reduced or
terminated pursuant to Section 3.02, 3.03 and/or 9.
"A Term Loan Facility" shall mean the Facility evidenced by the Total A
Term Loan Commitment.
"A Term Loan Maturity Date" shall mean August 1, 2002.
"A Term Note" shall have the meaning provided in Section 1.05(a).
"A TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage) the numerator of which is equal to the aggregate principal amount
of all A Term Loans outstanding at such time and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time.
"Acquisition" shall mean the acquisition by the Borrower of 100% of the
outstanding capital stock of IVAC Holdings indirectly through a merger of
IMED Merger Sub (a Wholly-Owned Subsidiary of the Borrower) with and into
IVAC Holdings.
"Acquisition Agreement" shall mean the Agreement and Plan of Merger,
dated as of August 24, 1996 by and among the Participating Stockholders (as
defined therein), IMED, IMED Merger Sub, IVAC Holdings and IVAC.
"Acquisition Documents" shall mean the Acquisition Agreement and all
other agreements and documents relating to the Acquisition.
"Additional Security Documents" shall have the meaning provided in
Section 7.11.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing (x)
the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market
as published in the most recent Federal Reserve System publication entitled
"Select Interest Rates," published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any
week, the weekly average offering rate determined by the Administrative Agent
on the basis of quotations for such certificates received by it from three
certificate of deposit dealers in New York of recognized standing or, if such
quotations are unavailable, then on the basis of other sources reasonably
selected by the Administrative Agent, by (y) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements as specified in
Regulation D applicable on such day to a three-month certificate of deposit
of a member bank of the Federal Reserve System in excess of $100,000
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves), plus (2) the then daily net annual assessment
rate as estimated by the Administrative Agent for determining the current
annual assessment payable by BTCo to the Federal Deposit Insurance
Corporation for insuring three month certificates of deposit.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.10.
"Affected Eurodollar Loans" shall have the meaning provided in Section
4.02(B)(b).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power (i) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such corporation or (ii) to direct or cause
the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor appointed pursuant to Section 11.10.
"Aggregate Unutilized Commitment" with respect to any Bank at any time
shall mean the sum of (i) such Bank's A Term Loan Commitment at such time, if
any, (ii) such Bank's B Term Loan Commitment at such time, if any, (iii) such
Bank's C Term Loan Commitment at such time, if any, (iv) such Bank's D Term
Loan Commitment at such time, if any, and (v) such Bank's Revolving Loan
Commitment at such time less the sum of (x) the aggregate out-
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standing principal amount of all Revolving Loans made by such Bank and (y)
such Bank's RL Percentage of the Letter of Credit Outstandings at such time.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"Applicable Base Rate Margin" shall mean (i) in the case of A Term Loans
and Revolving Loans, 1.25%, less the Applicable Performance Discount, if any,
(ii) in the case of B Term Loans, 1.75%, (iii) in the case of C Term Loans,
2.25% and (iv) in the case of D Term Loans, 2.50%.
"Applicable Commitment Fee Percentage" shall mean .50%, less the
Applicable Performance Discount, if any.
"Applicable Eurodollar Margin" shall mean (i) in the case of A Term
Loans and Revolving Loans, 2.50%, less the Applicable Performance Discount,
if any, (ii) in the case of B Term Loans, 3.00%, (iii) in the case of C Term
Loans, 3.50% and (iv) in the case of D Term Loans, 3.75%.
"Applicable Performance Discount" shall mean initially zero, PROVIDED
that during any Applicable Period the Applicable Performance Discount shall
be the respective percentage per annum set forth in clause (A) or (B) below
if, but only if, as of the Test Date with respect to such Applicable Period
the condition set forth in clause (A) or (B) below is met:
(A) .25 of 1% (0% for purposes of the Applicable
Commitment Fee Percentage) if the Leverage Ratio on
such Test Date is less than 3.0:1.0; or
(B) .50% of 1% (.125 of 1% for purposes of the
Applicable Commitment Fee Percentage) if the Leverage
Ratio on such Test Date is less than 2.5:1.0.
Notwithstanding anything to the contrary contained above in this definition,
the Applicable Performance Discount shall be zero at any time when an Event
of Default shall exist.
"Applicable Period" shall mean each period which shall commence on a
date on which the financial statements are delivered pursuant to Section
7.01(b) or (c), as the case may be, and which shall end on the earlier of
(i) the date of actual delivery of the next financial statements pursuant to
Section 7.01(b) or (c), as the case may be, and (ii) the latest date on which
the next financial statements are required to be delivered pursuant to
Section 7.01(b) or (c), as the case may be; PROVIDED that for purposes of the
definition of Applicable Performance Discount, no Applicable Period shall
commence on a date occurring prior to the date of delivery of financial
statements pursuant to Section 7.01(c) in respect of the fiscal year ending
December 31, 1997.
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"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than the Borrower or
any Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of another Person) of
Holdings or such Subsidiary other than (i) sales, transfers or other
dispositions of inventory made in the ordinary course of business and (ii)
sales of assets pursuant to Section 8.02(f), (h), (i), (j), (k), (u), (x) or
(y).
"Asset Sale Escrow Account" shall have the meaning provided in Section
4.02(A)(c).
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Assumption Acknowledgment" shall have the meaning provided in Section
12.17(ii).
"Authorized Officer" shall mean any senior officer of Holdings or the
Borrower designated as such in writing to the Administrative Agent by
Holdings or the Borrower, in each case to the extent reasonably acceptable to
the Administrative Agent.
"B Banks" shall have the meaning provided in Section 4.02(C).
"B Term Loan" shall have the meaning provided in Section 1.01(A)(b).
"B Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the
column entitled "B Term Loan Commitment," as the same may be terminated
pursuant to Section 3.03 and/or 9.
"B Term Loan Facility" shall mean the Facility evidenced by the Total B
Term Loan Commitment.
"B Term Loan Maturity Date" shall mean November 1, 2003.
"B Term Note" shall have the meaning provided in Section 1.05(a).
"B TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage) the numerator of which is equal to the aggregate principal amount
of all B Term Loans outstanding at such time and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been retracted)
of a Bank to make available its portion of any Borrowing (including any
Mandatory Borrowing) or to fund its portion of any unreimbursed payment under
Section 2.04(c) or (ii) a Bank having notified the Administrative Agent
and/or the Borrower that it does not intend to comply with the
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obligations under Section 1.01(A), 1.01(C) or 2.04(c), in the case of either
clause (i) or (ii) above as a result of the appointment of a receiver or
conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Adjusted Certificate of Deposit Rate and (y) the
Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement; provided that on and after the date of consummation of the
IMED Merger and execution of the Assumption Acknowledgment in accordance with
Section 12.17, the "Borrower" shall mean IVAC Holdings.
"Borrower Subgroup" shall have the meaning provided in Section 8.06(vii).
"Borrowing" shall mean the incurrence of one Type of Loan pursuant to a
single Facility by the Borrower from all of the Banks having Commitments with
respect to such Facility on a PRO RATA basis on a given date (or resulting
from conversions on a given date), having in the case of Eurodollar Loans the
same Interest Period; PROVIDED, that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by
and between banks in U.S. dollar deposits in the interbank Eurodollar market.
"C Banks" shall have the meaning provided in Section 4.02(C).
"C Term Loan" shall have the meaning provided in Section 1.01(A)(c).
"C Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the
column entitled "C Term Loan Commitment," as the same may be terminated
pursuant to Section 3.03 and/or 9.
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"C Term Loan Facility" shall mean the Facility evidenced by the Total C
Term Loan Commitment.
"C Term Loan Maturity Date" shall mean November 1, 2004.
"C Term Note" shall have the meaning provided in Section 1.05(a).
"C TL Percentage" shall mean, at any time a fraction (expressed as a
percentage) the numerator of which is equal to the aggregate principal amount
of all C Term Loans outstanding at such time and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time.
"Capital Expenditures" shall mean, with respect to any Person, without
duplication, (i) all expenditures by such Person which should be capitalized
in accordance with GAAP, including, without duplication, all such
expenditures with respect to fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with GAAP), (ii) all expenditures made by such
Person relating to instruments leased or transferred to customers pursuant to
Instruments on Contract, and (iii) the amount of all Capitalized Lease
Obligations incurred by such Person.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations under Capital
Leases of the Borrower or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equity Issuance" shall have the meaning provided in the definition
of "Equity Financing."
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (PROVIDED, that the full faith and credit of the
United States of America is pledged in support thereof) having maturities of
not more than six months from the date of acquisition, (ii) U.S. dollar
denominated time deposits, certificates of deposit and bankers acceptances of
(x) any Bank or (y) any bank whose short-term commercial paper rating from
S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1
or the equivalent thereof (any such bank or Bank, an "Approved Bank"), in
each case with maturities of not more than six months from the date of
acquisition, (iii) commercial paper issued by any Approved Bank or by the
parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least A-1 or the equivalent thereof by S&P or
at least P-1 or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long term unsecured debt rating of at least A or
A2, or the equivalent
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of each thereof, from S&P or Moody's, as the case may be, and in each case
maturing within six months after the date of acquisition, (iv) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within six months from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from
either S&P or Moody's and (v) investments in money market funds substantially
all the assets of which are comprised of securities of the types described in
clauses (i) through (iv) above.
"Change of Control Event" shall mean (a) Holdings shall cease to own
directly 100% on a fully diluted basis of the economic and voting interest in
the Borrower's capital stock, (b) any Person or "group" (within the meaning
of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as in
effect on the Effective Date), other than Picower and/or his Related Parties,
shall (i) have acquired beneficial ownership of 40% or more on a fully
diluted basis of the voting and/or economic interest in Holdings' capital
stock, (ii) have acquired a greater beneficial ownership on a fully diluted
basis of the voting and/or economic interest in Holdings' capital stock than
that of Picower and his Related Parties or (iii) obtained the power (whether
or not exercised) to elect a majority of Holdings' directors, (c) (i) Picower
and/or his Related Parties shall cease to be the beneficial owner of more
than 50% on a fully diluted basis of the voting interest in Holdings' capital
stock and (ii) the Board of Directors of Holdings shall cease to consist of a
majority of Continuing Directors, (d) Picower and his Related Parties cease
to hold beneficial ownership of at least 30% on a fully diluted basis of the
voting and/or economic interest in Holdings' capital stock or (e) any "Change
of Control" as such term is defined in the Senior Subordinated Note
Indenture, or any successor or similar provision, shall occur.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of
this Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of the
Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.13.
"Commitment" shall mean, with respect to each Bank, such Bank's A Term
Loan Commitment, B Term Loan Commitment, C Term Loan Commitment, D Term Loan
Commitment and Revolving Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
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"Consolidated Current Assets" shall mean, at any time, the current
assets of the Borrower and its Subsidiaries at such time determined on a
consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the current
liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis, but excluding deferred income taxes and the current portion of and
accrued but unpaid interest on any Indebtedness under this Agreement and any
other long-term Indebtedness which would otherwise be included therein.
"Consolidated Debt" shall mean, at any time, all Indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis.
"Consolidated EBIT" shall mean, for any period, Consolidated Net Income,
before (a) total interest expense (inclusive of amortization of deferred
financing fees and original issue discount) and interest income (other than
interest income earned in connection with any Instrument Capital Lease) of
the Borrower and its Subsidiaries determined on a consolidated basis, (b)
provisions for taxes based on income and foreign withholding taxes, (c)
Restructuring Expenditures to the extent deducted in determining Consolidated
Net Income for such period, PROVIDED that the aggregate amount of
Restructuring Expenditures added back pursuant to this clause (c) for all
periods shall not exceed $17,000,000 (less that portion of Restructuring
Expenditures, up to $11,000,000, which are accounted for through purchase
accounting), and (d) the write-off of inventory step-up and in-process
research and development costs in accordance with purchase accounting, and
determined (i) without giving effect to any extraordinary gains or losses but
with giving effect to gains or losses from sales of assets sold in the
ordinary course of business and (ii) without giving effect to any impact from
the LIFO method of inventory accounting.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all depreciation expense and
amortization expense and other non-cash charges that were deducted in
determining Consolidated EBIT for such period.
"Consolidated Fixed Charges" of any Person shall mean, for any period,
the sum, without duplication, for such Person of the amounts for such period
of (i) Consolidated Interest Expense, (ii) scheduled payments on Indebtedness
and (iii) taxes paid during such period.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Borrower and its Subsidiaries (net of any interest income
of such Person for such period arising out of Instrument Capital Leases)
determined on a consolidated basis with respect to all outstanding
Indebtedness of Holdings and its Subsidiaries, including, without limitation,
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs or benefits
under Interest Rate Protection Agreements, but excluding, however,
amortization of deferred financing costs and any interest expense on deferred
compensation arrangements to the extent included in total interest expense.
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"Consolidated Net Income" shall mean, for any period, the net income (or
loss), after provision for taxes, of the Borrower and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period;
PROVIDED, HOWEVER, that (A) there shall be excluded (without duplication)
(i) income (or loss) of any Person (other than a consolidated Subsidiary of
such Person) in which any other Person (other than such Person or any of its
consolidated Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or
(subject to subclause (iii) below) any of its consolidated Subsidiaries by
such other Person during such period, (ii) the income (or loss) of any Person
during such period accrued prior to the date it becomes a consolidated
Subsidiary of such Person or is merged into or consolidated with such Person
or any of its consolidated Subsidiaries, (iii) the income of any consolidated
Subsidiary of Holdings to the extent attributable to minority interests held
therein by Persons other than Holdings and its Wholly-Owned Subsidiaries, and
(iv) the income of any consolidated Subsidiary of Holdings during such period
to the extent that the declaration or payment of dividends or similar
distributions by that consolidated Subsidiary of such income is not at the
time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or Holdings or any of its other Subsidiaries.
"Consolidated Net Worth" shall mean the Net Worth of the Borrower and
its Subsidiaries determined on a consolidated basis after appropriate
deduction for any minority interests in Subsidiaries.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (x) for the purchase or payment of any such primary obligation or (y)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of such primary obligation against loss
in respect thereof; PROVIDED, HOWEVER, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection or
standard contractual indemnities entered into, in each case in the ordinary
course of business. The amount of any Contingent Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
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"Continuing Directors" shall mean the directors of Holdings on the
Effective Date and each other director if such director's nomination for the
election to the Board of Directors of Holdings is recommended by a majority
of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, the Notes, the New Term
Notes, the New Revolving Notes, the Guaranties, each Security Document, the
Subsidiary Assumption Agreement and the Assumption Acknowledgment.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean Holdings, the Borrower and each Subsidiary
Guarantor.
"Creedmoor Property" shall mean that property located at ▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Current Ratio" shall mean the ratio of Consolidated Current Assets to
Consolidated Current Liabilities.
"D Banks" shall have the meaning provided in Section 4.02(C).
"D Term Loan" shall have the meaning provided in Section 1.01(A)(d).
"D Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the
column entitled "D Term Loan Commitment," as the same may be terminated
pursuant to Section 3.03 and/or 9.
"D Term Loan Facility" shall mean the Facility evidenced by the Total D
Term Loan Commitment.
"D Term Loan Maturity Date" shall mean May 1, 2005.
"D Term Note" shall have the meaning provided in Section 1.05(a).
"D TL Percentage" shall mean, at any time a fraction (expressed as a
percentage) the numerator of which is equal to the aggregate principal amount
of all D Term Loans outstanding at such time and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time.
"Debentures Escrow Account" shall have the meaning provided in
Section 5.09(f).
"Debentures Redemption" shall have the meaning provided in
Section 5.09(f).
"Decisions" shall mean Decisions Incorporated, a Delaware corporation.
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"Decisions Note" shall mean those notes issued by Holdings and/or IMED
to Decisions in an aggregate outstanding principal amount of $37.5 million as
of the Initial Borrowing Date.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Dividends" shall have the meaning provided in Section 8.06.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Documents" shall mean the Credit Documents, the Equity Financing
Documents, the Senior Subordinated Note Documents, the Refinancing Documents,
the Existing Senior Notes Tender Offer/Consent Solicitation Documents and the
documents relating to the Debentures Redemption and the Holdings Preferred
Stock Redemption.
"Domestic Subsidiary" shall mean each Subsidiary of Holdings which is
not a Foreign Subsidiary.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Employment Agreements" shall have the meaning provided in Section 5.13.
"Environmental Claims" shall mean any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices
of non-compliance or violation, investigations or proceedings relating in any
way to any Environmental Law or any permit issued to Holdings or any of its
Subsidiaries under any such law (hereafter "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (b) any and all
Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" shall mean any applicable international, United
Kingdom, Canadian, Mexican, U.S. federal, state, provincial, territorial or
local statute, law, treaty, rule, regulation, ordinance, code, policy or rule
of common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any
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judicial or administrative order, consent, decree or judgment (for purposes
of this definition (collectively, "Laws")), relating to the environment or
Hazardous Materials or health and safety including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended ("CERCLA"), 42 U.S.C. Section 6901 ET SEQ.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Section 1801 ET SEQ.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 ET
SEQ.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251 ET SEQ.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section
2601 ET SEQ.; the Oil Pollution Act of 1990, as amended, 33 U.S.C. Section
2701 - 2761; the Clean Air Act, as amended, 42 U.S.C. Section 7401 ET SEQ.;
the Safe Drinking Water Act, as amended, 42 U.S.C. Section 3808 ET SEQ.; the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 ET
SEQ.; and their counterparts or equivalents under state or local law and
under the laws of the United Kingdom, Canada or Mexico.
"Equity Exchange" shall have the meaning provided in the definition of
the term "Equity Financing."
"Equity Financing" shall mean (i) the issuance by Holdings of Holdings
Common Stock to Picower and/or one of his affiliated companies for cash (the
"Cash Equity Issuance"), (ii) the exchange by Decisions of the Decisions
Notes for Holdings Common Stock (the "Equity Exchange") and (iii) the
issuance by Holdings of Holdings Common Stock to Picower and/or one of his
affiliated companies, in lieu of the payment of a premium in connection with
the Equity Exchange and the forgiveness of other obligations related to the
Decisions Notes (the "Picower Payment"), it being understood and acknowledged
that no cash shall be paid in connection with the Equity Exchange or Picower
Payment.
"Equity Financing Documents" shall mean each of the documents related to
the consummation of the Equity Financing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with Holdings or a Subsidiary of Holdings is deemed to
be a "single employer" (i) within the meaning of Section 414(b), (c), (m) or
(o) of the Code or (ii) as a result of Holdings or a Subsidiary of Holdings
being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for a
Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotation
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to first-class banks in the interbank Eurodollar market by the Administrative
Agent for U.S. dollar deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurodollar Loan of the Administrative
Agent for which an interest rate is then being determined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal
to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period (i) the sum of (A)
Consolidated Net Income for such period, plus (B) the amount of all non-cash
charges (including, without limitation or duplication, depreciation,
amortization and non-cash interest expense) included in determining
Consolidated Net Income for such period, plus (C) the decrease, if any, in
Working Capital from the first day to the last day of such period, plus (D)
provisions for taxes appearing on an income statement of the Borrower and its
Subsidiaries for such period, minus (ii) the sum (without duplication) of (A)
any non-cash credits (including from sales of assets) included in determining
Consolidated Net Income for such period, (B) gains from sales of assets
(other than sales of inventory in the ordinary course of business) included
in determining Consolidated Net Income for such period, (C) an amount equal
to (1) all Capital Expenditures (excluding Capital Expenditures made pursuant
to Section 8.08(c), (d), (e) or (f)) made during such period to the extent
not financed by Indebtedness (including Capitalized Lease Obligations but
excluding Loans hereunder) plus (or minus, if negative) (2) the Rollover
Amount for such period to be carried forward to the next period less the
Rollover Amount (if any) for the preceding period carried forward to the
current period, (D) the amount of cash expended in respect of Permitted
Acquisitions during such period, except to the extent constituting Capital
Expenditures or financed with Indebtedness, (E) the aggregate principal
amount of permanent principal payments of Indebtedness for borrowed money of
Holdings and its Subsidiaries (other than (1) repayments in respect of the
Indebtedness to be Refinanced, (2) repayments of Indebtedness with proceeds
of issuance or other Indebtedness or equity or equity contributions or with
proceeds of assets sales, Recovery Events or Pension Plan Refunds and (3)
repayments of Loans or other Obligations, provided that repayments of Loans
shall be deducted in determining Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Repayment under Section 4.02(A)(b) or (y)
made as a voluntary prepayment with internally generated funds (but in the
case of a voluntary prepayment of Revolving Loans or Swingline Loans, only to
the extent accompanied by a voluntary reduction to the Total Revolving Loan
Commitment)) during such period, (F) non-cash charges added back in a
previous period pursuant to clause (i)(B) above to the extent any such charge
has become a cash item in the current period, (G) the increase, if any, in
Working Capital from the first day to the last day of such period, (H) costs
incurred by Holdings during such period and paid for with the
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proceeds of dividends paid to Holdings pursuant to Section 8.06(iv), (v),
(vi) and (vii) to the extent not deducted in determining Consolidated Net
Income for such period, (I) any cash Restructuring Expenditures incurred
during such period to the extent not deducted in determining Consolidated Net
Income for such period, (J) any Restructuring Reserves as at the end of such
period, (K) taxes paid by the Borrower and its Subsidiaries during such
period, and (L) the principal portion of Capital Lease Obligations paid by
the Borrower and its Subsidiaries during such period.
"Excess Cash Flow Period" shall mean, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal
year of Holdings.
"Excess Cash Payment Date" shall mean the date occurring 100 days after
the last day of a fiscal year of Holdings (beginning with its fiscal year
ending on December 31, 1997).
"Excess Proceeds" shall mean (i) the portion of the net proceeds
received by Holdings after the Initial Borrowing Date from any equity
issuance by Holdings which is permitted to be retained by Holdings pursuant
to clause (y) or (z) of Section 4.02(A)(d), (ii) the portion of Excess Cash
Flow of the Borrower and its Subsidiaries which is permitted to be retained
by the Borrower pursuant to Section 4.02(A)(f) and (iii) the net cash
proceeds received by Holdings from the sale or disposition of any Permitted
Holdings Investment (to the extent not used to pay a dividend under Section
8.06(viii)).
"Excess Proceeds Amount" shall initially be zero, which amount shall be
(A) INCREASED (i) on each Excess Cash Payment Date (commencing with the
Excess Cash Payment Date occurring 100 days after the fiscal year ending
December 31, 1997) so long as any repayment required pursuant to Section
4.02(A)(f) has been made, by an amount equal to that portion of Excess Cash
Flow for the immediately preceding Excess Cash Flow Period which is permitted
to be retained pursuant to Section 4.02(A)(f), (ii) on the date of the
receipt by Holdings of the proceeds from any equity issuance by Holdings
which are permitted to be retained by Holdings pursuant to clause (y) of
Section 4.02(A)(d), by the amount of such net proceeds which are permitted to
be so retained and (iii) at the time any sale or liquidation of a Permitted
Holdings Investment is made pursuant to Section 8.02(u), by the net cash
proceeds thereof (to the extent not used to pay a dividend under Section
8.06(viii)) and (B) REDUCED (i) on each Excess Cash Payment Date (commencing
with the Excess Cash Payment Date occurring 100 days after the fiscal year
ending December 31, 1997) where Excess Cash Flow for the immediately
preceding Excess Cash Flow Period is a negative number, by such amount, (ii)
at the time any Capital Expenditure is made pursuant to Section 8.08(f) by
the amount thereof, (iii) at the time any Permitted Acquisition is made, by
the amount of Excess Proceeds expended in connection therewith and (iv) at
the time when any investment is made pursuant to Section 8.05(w), by the
amount of Excess Proceeds expended in connection therewith (it being
understood that the Excess Proceeds Amount may be reduced to an amount below
zero after giving effect to the reductions enumerated in clause (B) above).
"Excess Tax Liability" shall have the meaning provided in Section
8.06(vii).
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Credit Agreements" shall mean (a) the Amended and Restated
Loan Agreement, dated as of April 2, 1990 and amended and restated on August
12, 1994, between the Borrower and General Electric Capital Corporation and
(b) the Credit Agreement, dated as of December 30, 1994 as amended and
restated, by and among IVAC Holdings, IVAC, Chemical Bank and the lenders
named therein.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.13.
"Existing Senior Notes" shall mean IVAC's 9-1/4% Senior Notes due 2002,
as in effect on the Initial Borrowing Date and as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof.
"Existing Senior Notes Consent" shall mean each written consent
permitting IVAC to amend or supplement the Existing Senior Notes Indentures
in a manner satisfactory to the Agents so as to permit the Acquisition and
the IVAC Merger and all other elements of the Transaction and any other
related matters necessary in connection therewith.
"Existing Senior Notes Indenture" shall mean the Indenture entered into
by and between IVAC and Marine Midland Bank, as trustee thereunder, as in
effect on the Initial Borrowing Date.
"Existing Senior Notes Tender Offer/Consent Solicitation" shall mean (a)
the tender offer by the Borrower and/or IVAC to repurchase all outstanding
Existing Senior Notes and (b) the solicitation of the Existing Senior Notes
Consents from the holders of the Existing Senior Notes.
"Existing Senior Notes Tender Offer/Consent Solicitation Documents"
shall mean the Borrower's and/or IVAC's Offer to Purchase and Consent
Solicitation, dated as of October 16, 1996, as supplemented on October 31,
1996 and November 6, 1996, the Existing Senior Note Consents and each of the
other agreements and documents entered into in connection with the Existing
Senior Notes Tender Offer/Consent Solicitation.
"Facility" shall mean any of the credit facilities established under
this Agreement, I.E., the A Term Loan Facility, the B Term Loan Facility, the
C Term Loan Facility, the D Term Loan Facility or the Revolving Loan Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"FDA" shall mean the Federal Food and Drug Administration or any other
federal, foreign, state or local agency or governmental body having
regulatory authority over the products of Holdings and or any of its
Subsidiaries.
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"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Fidata" shall mean Fidata Trust Company New York, a New York
corporation.
"15% Debentures" shall mean Holdings' 15% Subordinated Debentures Due
1999, as in effect on the Initial Borrowing Date and as the same may be
modified, supplemented or amended from time to time pursuant to the terms
hereof.
"510(k)" shall have the meaning provided in Section 6.26(c).
"Foreign Cash Equivalents" shall mean certificates of deposit or bankers
acceptances of any bank organized under the laws of Canada, Japan or any
country that is a member of the European Economic Community whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof, in each case with
maturities of not more than six months from the date of acquisition.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or
more of its Subsidiaries primarily for the benefit of employees of Holdings
or such Subsidiaries residing outside the United States of America, which
plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA
or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of Holdings that is
incorporated under the laws of any jurisdiction other than the United States
of America, any State thereof, or any territory thereof.
"Foreign Subsidiary Working Capital Indebtedness" shall have the meaning
provided in Section 8.04(i).
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 8,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 12.07(a).
"Good Manufacturing Practices Regulations" shall mean those regulations
regulating the requirements for methods used in, and the facilities and
controls used for, the manufacture, packing, storage, and installation of
medical devices.
"Guaranteed Creditors" shall mean and include each of the Agents, the
Syndication Agents, the Banks and each Person (other than any Credit Party)
which is a party to an Interest Rate Protection Agreement or Other Hedging
Agreement to the extent such party constitutes a Secured Creditor under the
Security Documents.
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"Guaranteed Obligations" shall mean (i) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest (whether such interest is allowed as a claim in a
bankruptcy proceeding with respect to the Borrower or otherwise) on each Note
issued by the Borrower to each Bank, and Loans made under this Agreement and
all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, together with all the other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities (including, without limitation, indemnities, fees
and interest thereon) of the Borrower to such Bank now existing or hereafter
incurred under, arising out of or in connection with this Agreement or any
other Credit Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Credit Documents by the
Borrower and (ii) the full and prompt payment when due (whether by
acceleration or otherwise) of all obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) of the Borrower owing under any such Interest Rate Protection
Agreement or Other Hedging Agreement entered into by the Borrower or any of
its Subsidiaries with any Bank or any affiliate thereof (even if such Bank
subsequently ceases to be a Bank under this Agreement for any reason) so long
as such Bank or affiliate participates in such Interest Rate Protection
Agreement or Other Hedging Agreement, and their subsequent assigns, if any,
whether now in existence or hereafter arising, and the due performance and
compliance with all terms, conditions and agreements contained therein.
"Guarantor" shall mean Holdings and each Subsidiary Guarantor.
"Guaranty" shall mean and include each of the Holding Company Guaranties
and the Subsidiary Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "restricted hazardous materials," "extremely hazardous
wastes," "restrictive hazardous wastes," "toxic substances," "toxic
pollutants," "contaminants" or "pollutants," or words of similar meaning and
regulatory effect; or (c) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section 6.16.
"Holding Company Guaranty" shall mean the guaranty of Holdings pursuant
to Section 13.
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"Holdings Consolidated Group" shall mean Holdings and all direct and
indirect Subsidiaries of Holdings (present or future), if any, that are
eligible to be included in consolidated federal income tax returns with
Holdings.
"Holdings Preferred Stock" shall mean the preferred stock of Holdings
having an aggregate liquidation preference immediately prior to the Initial
Borrowing Date of up to $8,500,000.
"Holdings Preferred Stock Redemption" shall have the meaning provided in
Section 5.09(g).
"Holdings Tax Allocation Agreement" shall mean the Tax Sharing
Agreement, dated as of the Effective Date, among Holdings and the Borrower
and its Domestic Subsidiaries.
"Hypothetical Separate Federal Income Tax Liability" shall have the
meaning provided in Section 8.06(vii).
"IMED" shall mean IMED Corporation, a Delaware corporation.
"IMED B.V.I." shall mean IMED Holding Co. Ltd. British Virgin Islands, a
British Virgin Islands corporation.
"IMED Ltd." shall mean IMED Ltd., a British corporation.
"IMED Merger" shall have the meaning provided in Section 12.17.
"IMED Merger Documents" shall mean the certificate of merger, the
Assumption Acknowledgment and all other agreements and documents related to
the IMED Merger.
"IMED Merger Sub" shall mean IMED Merger Sub, Inc, a Delaware
corporation.
"IMED Pty" shall mean IMED Pty Limited, ACN 003 080 215, an Australian
corporation.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets or services payable to the sellers thereof or any of such
seller's assignees which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person but excluding deferred
rent as determined in accordance with GAAP, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person,
whether or not such Indebtedness has been assumed, (v) all Capitalized Lease
Obligations of such Person, (vi) 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 and similar obli-
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gations, provided that this clause (vi) shall not be included in the
definition of "Indebtedness" for purposes of Section 9.04), (vii) all
obligations under Interest Rate Protection Agreements and Other Hedging
Agreements (including indemnity obligations in connection therewith) and
(viii) all Contingent Obligations of such Person, PROVIDED, that Indebtedness
shall not include trade payables and accrued expenses, in each case arising
in the ordinary course of business.
"Indebtedness to be Refinanced" shall mean collectively, the
indebtedness arising pursuant to the Existing Credit Agreements.
"Indebtedness to Remain Outstanding" shall have the meaning provided in
Section 6.24.
"Initial Borrowing Date" shall mean the date upon which the Term Loans
are incurred hereunder.
"Instrument Capital Lease" shall mean any lease or transfer of an
instrument or other medical device to a third party customer of the Borrower
or any of its Subsidiaries which is not accounted for by the Borrower or such
Subsidiary as a capital expenditure in accordance with GAAP.
"Instrument on Contract" shall mean any lease of an instrument or other
medical device to a third party customer of the Borrower or any of its
Subsidiaries which is accounted for by the Borrower or such Subsidiary as a
capital expenditure, and not as a Capital Lease, in accordance with GAAP.
"Intercompany Loan" shall have the meaning provided in Section 8.05(g).
"Intercompany Notes" shall mean promissory notes, in the form of Exhibit
K, evidencing Intercompany Loans.
"Interest Coverage Ratio" shall mean, for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense for such period.
"Interest Period," with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"IVAC" shall mean IVAC Medical Systems, a Delaware corporation.
"IVAC Holdings" shall mean IVAC Holdings, Inc., a Delaware corporation.
"IVAC Merger" shall mean the merger of IVAC with and into IVAC Holdings.
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"IVAC Merger Documents" shall mean the certificate of merger and all
other agreements and documents related to the IVAC Merger.
"IVAC Overseas" shall mean IVAC Overseas Holdings, Inc., a Delaware
corporation.
"L/C Supportable Indebtedness" shall mean (i) obligations of Holdings or
its Subsidiaries incurred in the ordinary course of business with respect to
insurance obligations and workers' compensation, surety bonds and other
similar statutory obligations and (ii) such other obligations of Holdings or
any of its Subsidiaries as are reasonably acceptable to the Administrative
Agent and the respective Letter of Credit Issuer and otherwise permitted to
exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo, and any Bank which at the
request of Holdings and with the consent of the Administrative Agent agrees,
in such Bank's sole discretion, to become a Letter of Credit Issuer for the
purpose of issuing Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Leverage Ratio" shall mean, at any time, the ratio of Consolidated Debt
at such time to Consolidated EBITDA for the Test Period then last ended;
provided that solely in determining the Leverage Ratio (1) for the Test
Period ended March 31, 1997, Consolidated EBITDA for such Test Period shall
be multiplied by 4, (ii) for the Test Period ended June 30, 1997,
Consolidated EBITDA for such Test Period shall be multiplied by 2 and (iii)
for the Test Period ended September 30, 1997, Consolidated EBITDA, for such
period shall be multiplied by 4/3.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same
effect as the foregoing).
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"Loan" shall mean each and every Loan made by any Bank hereunder,
including A Term Loans, B Term Loans, C Term Loans, D Term Loans, Revolving
Loans or Swingline Loans.
"Majority Banks" of any Facility shall mean those Non-Defaulting Banks
which would constitute the Required Banks under, and as defined in, this
Agreement if all outstanding Obligations of the other Facilities under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section 5.13.
"Mandatory Borrowing" shall have the meaning provided in Section 1.01(C).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabilities, condition (financial or otherwise)
or prospects of Holdings, the Borrower, Holdings and its Subsidiaries taken
as a whole or the Borrower and its Subsidiaries (including, without
limitation, IVAC) taken as a whole.
"Material Contracts" shall have the meaning provided in Section 5.13(i).
"Maturity Date" with respect to any Facility shall mean either the A
Term Loan Maturity Date, the B Term Loan Maturity Date, the C Term Loan
Maturity Date, the D Term Loan Maturity Date or the Revolving Loan Maturity
Date, as the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Medical Device Reports" shall have the meaning provided in Section 6.26.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans (other
than Swingline Loans), $1,000,000; (ii) for Eurodollar Loans, $2,000,000 and
(iii) for Swingline Loans, $500,000.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" shall have the meaning provided in Section 5.12(a).
"Mortgage Policies" shall have the meaning provided in Section 5.12(b).
"Mortgaged Properties" shall mean and include (i) all Real Properties
owned by Holdings and its Domestic Subsidiaries to the extent designated as
such on Annex III and (ii) each Real Property subjected to a mortgage in
favor of the Collateral Agent for the benefit of the Secured Creditors
pursuant to Section 7.11.
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"Net Proceeds" shall mean, with respect to any Asset Sale, the Proceeds
resulting therefrom net of (a) cash expenses of sale (including brokerage
fees, if any, transfer taxes and payment of principal, premium and interest
of Indebtedness other than the Loans required to be repaid as a result of
such Asset Sale) and (b) incremental income taxes paid or payable as a result
thereof.
"Net Worth" shall mean, as to any Person, the sum of its capital stock,
capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other account which, in accordance with GAAP,
constitutes stockholders equity, excluding any treasury stock.
"New Revolving Notes" shall have the meaning provided in Section
12.17(ix).
"New Swingline Note" shall have the meaning provided in Section
12.17(ix).
"New Term Notes" shall have the meaning provided in Section 12.17(ix).
"Non-Compete Agreements" shall have the meaning provided in Section 5.13.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting Bank.
"Note" shall mean each A Term Note, each B Term Note, each C Term Note,
each D Term Note, each Revolving Note and the Swingline Note.
"Notice of Adverse Findings" shall mean a document issued by the FDA
each time a noncompliance is discovered pursuant to any routine inspection of
a device firm.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section 1.06.
"Notice of Debentures Redemption" shall have the meaning provided in
Section 5.09(f).
"Notice of Holdings Preferred Stock Redemption" shall have the meaning
provided in Section 5.09(g).
"Notice Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other
office as the Administrative Agent may designate to Holdings, the Borrower
and the Banks from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to
the Agents or any Bank pursuant to the terms of this Agreement or any other
Credit Document.
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"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed
to protect against fluctuations in currency values.
"Paribas" shall mean Banque Paribas, in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise.
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other
office as the Administrative Agent may designate to Holdings, the Borrower
and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan Refund" shall mean any cash payments (net of reasonable
costs associated therewith, including income, excise and other taxes payable
thereon) received by Holdings and/or of its Subsidiaries from any return of
any surplus assets from any single Plan or Foreign Pension Plan.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(t).
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Mortgaged Property listed in the
Mortgage Policies in respect thereof and found, on the date of delivery of
such Mortgage Policies to the Collateral Agent in accordance with the terms
hereof, reasonably acceptable by the Collateral Agent, (ii) as to any
particular Mortgaged Property at any time, such easements, encroachments,
covenants, rights of way, minor defects, irregularities or encumbrances on
title which do not, in the reasonable opinion of the Collateral Agent,
materially impair such Mortgaged Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent,
(iii) zoning and other municipal ordinances, which are not violated in any
material respect by the existing improvements and the present use made by the
mortgagor thereof of the Premises (as defined in the respective Mortgage),
(iv) general real estate taxes and assessments not yet delinquent, and (v)
such other items as the Collateral Agent may consent to (such consent not to
be unreasonably withheld).
"Permitted Fidata Amount" shall mean that amount which may be
contributed or loaned by Holdings to Fidata for the purpose of winding down
or liquidating Fidata, in an aggregate amount not to exceed $200,000.
"Permitted Holdings Investments" shall have the meaning provided in
Section 8.02(u).
"Permitted Liens" shall have the meaning provided in Section 8.03.
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"Permitted Refinancing Debt" shall mean Indebtedness issued by Holdings
in connection with a refinancing of the 7-1/4% Debentures; PROVIDED that (i)
such Indebtedness has a longer average life than the 7-1/4% Debentures, (ii)
such Indebtedness is not guaranteed or otherwise supported in any way by the
Borrower or any Subsidiary of the Borrower, and (iii) such Indebtedness, and
the agreements and other documents entered into by Holdings in connection
therewith shall, in the judgment of the Administrative Agent, contain terms
and conditions (including, without limitation, with respect to the obligor in
respect of such Indebtedness, amortization schedules, interest rates,
redemption provisions, maturities, covenants, defaults, security and
remedies) no less favorable to Holdings or to the Banks than the terms and
conditions of the 7-1/4% Debentures.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Picower" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"Picower Payment" shall have the meaning provided in the definition of
the term "Equity Financing."
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation
to contribute of) Holdings or a Subsidiary of Holdings or an ERISA Affiliate,
and each such plan for the five year period immediately following the latest
date on which Holdings, or a Subsidiary of Holdings or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.10.
"Pledged Securities" shall mean all the Pledged Securities as defined in
the Pledge Agreement.
"PMA" shall have the meaning provided in Section 6.26(c).
"Preferred Stock Escrow Account" shall have the meaning provided in
Section 5.09(g).
"Prime Lending Rate" shall mean the rate which the Administrative Agent
announces from time to time as its prime lending rate, the Prime Lending Rate
to change when and as such prime lending rate changes. The Prime Lending
Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Proceeds" shall mean with respect to any Asset Sale, the aggregate cash
payments (including any cash received by way of deferred payment pursuant to
a note receivable issued
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in connection with such Asset Sale, other than the portion of such deferred
payment constituting interest, but only as and when so received) received by
Holdings and/or any of its Subsidiaries from such Asset Sale.
"Projections" shall have the meaning provided in Section 5.16.
"Quarterly Payment Date" shall mean the last Business Day of each March,
June, September and December.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason
of any theft, physical destruction or damage or any other similar event with
respect to any properties or assets of Holdings or any of its Subsidiaries,
(ii) by reason any condemnation, taking, seizing or similar event with
respect to any properties or assets of Holdings or any of its Subsidiaries
and (iii) under any policy of insurance required to be maintained under
Section 7.03.
"Recovery Event Escrow Account" shall have the meaning provided in
Section 4.02(A)(g).
"Reduced Leverage Period" shall mean any Applicable Period if, and only
if, the Leverage Ratio was less than or equal to 3.0:1.0 on the Test Date
with respect thereto.
"Refinancing" shall mean the refinancing and repayment in full of all
amounts outstanding under, and the termination in full of all commitments and
letters of credit in respect of, the Indebtedness to be Refinanced.
"Refinancing Documents" shall mean each of the agreements, documents and
instruments entered into in connection with the Refinancing.
"Register" shall have the meaning provided in Section 7.12.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation S-X" shall mean Regulation S-X promulgated pursuant to the
Securities Act, as such Regulation is in effect on the date hereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
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"Regulatory Letter" shall mean regulatory action taken by the FDA in the
form of a letter, pursuant to discovery of any major violation of the Food,
Drug, and Cosmetic Act and other related regulations.
"Related Party" shall mean with respect to Picower, (i) any spouse or
immediate family member of Picower, or (ii) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners,
owners or Persons beneficially holding (directly or through one or more
Subsidiaries) an 80% or more controlling interest of which consist of the
Picower and/or such other Persons referred to in the immediately preceding
clause (i).
"Release" shall mean active or passive disposing, discharging,
injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping,
migrating, emptying, seeping, placing, pouring and the like, into or upon any
land or water or air, or otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived pursuant to
regulations under Section 4043 of ERISA.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or, if after the Total
Revolving Loan Commitment has been terminated, outstanding Revolving Loans
and RL Percentages of outstanding Swingline Loans and Letter of Credit
Outstandings) constitute greater than 50% of the sum of (i) the total
outstanding Term Loans of Non-Defaulting Banks and (ii) the Total Revolving
Loan Commitment less the aggregate Revolving Loan Commitments of Defaulting
Banks (or, if after the Total Revolving Loan Commitment has been terminated,
the total outstanding Revolving Loans of Non-Defaulting Banks and the
aggregate RL Percentages of all Non-Defaulting Banks of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"Restructuring Expenditures" shall mean nonrecurring expenditures and
charges arising out of the restructuring, consolidation, severance or
discontinuance of any portion of the operations of any entities or businesses
of Holdings and its Subsidiaries in connection with the Acquisition, the IVAC
Merger or the IMED Merger.
"Restructuring Reserves" shall mean, at any time, an amount equal to
$17,000,000 less all Restructuring Expenditures (to the extent accounted for
through purchase accounting) theretofore made after the Initial Borrowing
Date.
"Revolving Loan" shall have the meaning provided in Section 1.01(A)(e).
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"Revolving Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I directly below the
column entitled "Revolving Loan Commitment," as the same may be reduced from
time to time pursuant to Section 3.02, 3.03 and/or 9.
"Revolving Loan Facility" shall mean the Facility evidenced by the Total
Revolving Loan Commitment.
"Revolving Loan Maturity Date" shall mean August 1, 2002.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"River Medical" shall mean River Medical, Inc., a Delaware corporation.
"RL Bank" shall mean at any time each Bank with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"RL Percentage" shall mean at any time for each Bank, the percentage
obtained by dividing such Bank's Revolving Loan Commitment by the Total
Revolving Loan Commitment; PROVIDED, that if the Total Revolving Loan
Commitment has been terminated, the RL Percentage of each Bank shall be
determined by dividing such Bank's Revolving Loan Commitment immediately
prior to such termination by the Total Revolving Loan Commitment immediately
prior to such termination.
"Rollover Amount" shall have the meaning provided in Section 8.08(b).
"S&P" shall mean Standard & Poor's Corporation.
"Scheduled A Repayment" shall have the meaning provided in Section
4.02(A)(b)(i).
"Scheduled B Repayment" shall have the meaning provided in Section
4.02(A)(b)(ii).
"Scheduled C Repayment" shall have the meaning provided in Section
4.02(A)(b)(iii).
"Scheduled D Repayment" shall have the meaning provided in Section
4.02(A)(b)(iv).
"Scheduled Repayment" shall mean any Scheduled A Repayment, Scheduled B
Repayment, Scheduled C Repayment and Scheduled D Repayment.
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
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"Section 305 Notices" shall mean any notice which is required to be
given by the Secretary of the Department of Health and Human Services of the
United States of America to any person against whom a criminal proceeding is
contemplated for a violation of the Federal Food, Drug and Cosmetic Act.
"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall have the meaning provided in Section 5.11.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement, the
Pledge Agreement, each Mortgage, each Additional Security Document, if any
and each other document or instrument entered into pursuant to Sections 5.10,
5.11, 7.14 and 12.17(iv), if any, in each case as and when executed and
delivered in accordance with the terms of this Agreement.
"Senior Subordinated Note Documents" shall mean and include each of the
documents and other agreements entered into (including, without limitation,
the Senior Subordinated Note Indenture) relating to the issuance by the
Borrower of the Senior Subordinated Notes, as in effect on the Initial
Borrowing Date (to the extent thereof) and as the same may be entered into,
modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"Senior Subordinated Note Indenture" shall mean the Indenture entered
into by and between the Borrower and the United States Trust Company of New
York, as trustee thereunder, as in effect on the Initial Borrowing Date and
as the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes" shall mean the Series A Senior Subordinated
Notes and any Series B Senior Subordinated Notes issued in exchange therefor
in accordance with the terms of the Senior Subordinated Note Indenture.
"Series A Senior Subordinated Notes" shall mean the Borrower's ______%
Senior Subordinated Notes due 2006 as in effect on the Initial Borrowing Date
and as the same may be modified, supplemented or amended from time to time
pursuant to the terms hereof and thereof.
"Series B Senior Subordinated Notes" shall mean the Borrower's 9.75%
Series B Senior Subordinated Notes due 2006 issued in exchange for Series A
Senior Subordinated Notes, in the form set forth in the Senior Subordinated
Note Indenture as in effect on the Initial
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Borrowing Date, and as such Series B Senior Subordinated Notes may be
modified, supplemented or amended from time to time, pursuant to the terms
hereof and thereof.
"7-1/4% Debentures" shall mean Holdings' Convertible Subordinated
Debentures Due 2002, as in effect on the Initial Borrowing Date and as the
same may be modified, supplemented or amended from time to time pursuant to
the terms hereof.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any
other way by the Borrower or any of its Subsidiaries) in the form of Exhibit
L.
"Shareholders' Agreements" shall have the meaning set forth in Section
5.13(d).
"▇▇▇▇▇▇'▇ Obligations" shall mean those minimum royalty obligations
owing to ▇▇▇▇▇▇'▇ in an amount not to exceed $9,000,000 in the aggregate as
of the Initial Borrowing Date.
"Significant Subsidiary" shall mean any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X.
"Start Date" shall mean the first day of any Applicable Period.
"Stated Amount" of each Letter of Credit shall mean at any time the
maximum amount available to be drawn thereunder (regardless of whether any
conditions for drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (ii) any partnership,
association, joint venture, limited liability company or other entity in
which such Person directly or indirectly through Subsidiaries, has more than
a 50% equity interest at the time.
"Subsidiary Assumption Agreement" shall have the meaning provided in
Section 12.17(iii).
"Subsidiary Guarantor" shall mean each Subsidiary of Holdings (other
than (i) the Borrower, (ii) Fidata, (iii) River Medical and (iv) a Foreign
Subsidiary except to the extent otherwise provided in Section 7.14) that is
or becomes a party to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in Section 5.20.
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"Supermajority Banks" of any Facility shall mean those Non-Defaulting
Banks which would constitute the Required Banks under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Facilities
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated and (y) the percentage "50%" contained therein were
changed to "66-2/3%."
"Swingline Expiry Date" shall mean the date which is five Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(B).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agents" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndication Date" shall have the meaning provided in Section 1.01(A)(a).
"Tax Sharing Agreements" shall have the meaning provided in Section
5.13(h).
"Taxes" shall have the meaning provided in Section 4.04.
"10% Preferred Stock" shall have the meaning provided in Section 6.16(a).
"Term Loan" shall mean each A Term Loan, each B Term Loan, each C Term
Loan and each D Term Loan.
"Test Date" shall mean, with respect to any Applicable Period, the last
day of the most recent fiscal quarter or fiscal year, as the case may be,
ended immediately prior to the Start Date with respect to such Applicable
Period.
"Test Period" shall mean (i) for any determination made on and prior to
September 30, 1997, the period from January 1, 1997 to the last day of the
fiscal quarter of Holdings then last ended, PROVIDED that the first Test
Period shall end on March 31, 1997, and (ii) for any determination made
thereafter, the four consecutive fiscal quarters of Holdings then last ended.
"Total A Term Loan Commitment" shall mean the sum of the A Term Loan
Commitments of each of the Banks.
"Total B Term Loan Commitment" shall mean the sum of the B Term Loan
Commitments of each of the Banks.
"Total C Term Loan Commitment" shall mean the sum of the C Term Loan
Commitments of each of the Banks.
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"Total D Term Loan Commitment" shall mean the sum of the D Term Loan
Commitments of each of the Banks.
"Total Commitment" shall mean the sum of the Total Term Loan Commitment
and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean the sum of the Total A Term Loan
Commitment, the Total B Term Loan Commitment, the Total C Term Loan
Commitment and the Total D Term Loan Commitment.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans at such
time plus the Letter of Credit Outstandings at such time.
"Transaction" shall mean, collectively, (i) the Acquisition, (ii) the
issuance by the Borrower of the Senior Subordinated Notes on the Initial
Borrowing Date, (iii) the incurrence of the Loans hereunder on the Initial
Borrowing Date, (iv) the Refinancing, (v) the Existing Senior Notes Tender
Offer/Consent Solicitation, the purchase of Existing Senior Notes pursuant
thereto and the subsequent defeasance of any remaining Existing Senior Notes,
(vi) the Debentures Redemption, (vii) the Holdings Preferred Stock
Redemption, (viii) the IVAC Merger, (ix) the IMED Merger and (x) the payment
of fees and expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, I.E., a Base Rate Loan or a Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any,
by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year, determined in
accordance with actuarial assumptions at such time consistent with Statement
of Financial Accounting Standards No. 87, exceeds the market value of the
assets allocable thereto.
"Unpaid Drawing" shall have the meaning provided in Section 2.03(a).
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
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"Waivable Mandatory Repayment" shall have the meaning provided in
Section 4.02(C).
"Waivable Voluntary Repayment" shall have the meaning provided in
Section 4.02(C).
"Warning Letter" shall mean a letter issued by the FDA for any violation
of regulatory significance.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Foreign Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares and/or other nominal amounts of shares required to be held other than
by such Person under applicable law) is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
"Working Capital" shall mean the excess of Consolidated Current Assets
(but excluding therefrom all cash, Cash Equivalents and deferred income taxes
to the extent included in current assets) over Consolidated Current
Liabilities.
"Written," "written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile device,
telegraph or cable.
SECTION 11. THE AGENTS.
11.01 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints BTCo and Paribas as Agents of such Bank (for purposes of this
Section 11, the term "Agents" shall mean BTCo acting as Administrative Agent
and Collateral Agent and Banque Paribas acting as Documentation Agent) to act
as specified herein and in the other Credit Documents. Each such Bank hereby
irrevocably authorizes Paribas and BTCo as Agent to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly
delegated to each Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Each Agent agrees to act as such upon the express conditions
contained in this Section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement or in any other Credit Document, no Agent shall
have any duties or responsibilities, except those expressly set forth herein
or in the other Credit Documents, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise
exist against any Agent. The provisions of this Section 11 are solely for
the benefit of the Agents and the Banks, and neither Holdings nor any
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of its Subsidiaries shall have any rights as a third party beneficiary of any
of the provisions hereof. In performing its functions and duties under this
Agreement, each Agent shall act solely as agent of the Banks and no Agent
assumes nor shall be deemed to have assumed any obligation or relationship of
agency or trust with or for Holdings or any of its Subsidiaries.
Notwithstanding anything to the contrary contained in this Agreement, each
Syndication Agent in its capacity as Syndication Agent shall have no
obligations or liabilities under this Agreement or any other Credit Document.
11.02 DELEGATION OF DUTIES. Each Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care except to the extent otherwise required by Section 11.03.
11.03 EXCULPATORY PROVISIONS. No Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by Holdings, any of
its Subsidiaries or any of their respective officers contained in this
Agreement or the other Credit Documents, any other Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by such Agent under or in connection with, this Agreement or
any other Document or for any failure of Holdings or any of its Subsidiaries
or any of their respective officers to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or the other Documents, or to
inspect the properties, books or records of Holdings or any of its
Subsidiaries. No Agent shall be responsible to any Bank for the
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Agreement or any other Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by such Agent to the Banks
or by or on behalf of Holdings or any of its Subsidiaries to such Agent or
any Bank or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Default or Event
of Default.
11.04 RELIANCE BY AGENTS. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram,
facsimile, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to
Holdings or any of its Subsidiaries), independent
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accountants and other experts selected by such Agent. Each Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate or it
shall first 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. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the other Credit Documents in accordance with a request of the Required
Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks.
11.05 NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has actually received notice from a Bank, Holdings or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that an
Agent receives such a notice, such Agent shall give prompt notice thereof to
the Banks. Each Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks;
PROVIDED, that, unless and until such Agent shall have received such
directions, such Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
11.06 NON-RELIANCE ON AGENT, AND OTHER BANKS. Each Bank expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of Holdings or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
such Agent to any Bank. Each Bank represents to each Agent that it has,
independently and without reliance upon any Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, assets, operations,
property, financial and other condition, prospects and creditworthiness of
Holdings and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon any Agent or any other Bank,
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of Holdings and its Subsidiaries. No Agent shall have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, assets, property, financial
and other condition, prospects or creditworthiness of Holdings or any of its
Subsidiaries which may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.07 INDEMNIFICATION. The Banks agree to indemnify each Agent in its
capacity as such ratably according to their respective "percentages" as used
in determining the Required
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Banks at such time (determined as if there are no Defaulting Banks), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against such Agent in its capacity as such in any way relating to or
arising out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby
or any action taken or omitted to be taken by such Agent under or in
connection with any of the foregoing, but only to the extent that any of the
foregoing is not paid by Holdings or any of its Subsidiaries; PROVIDED, that
no Bank shall be liable to any Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting primarily from the gross
negligence or willful misconduct of such Agent. To the extent any Bank would
be required to indemnify such Agent pursuant to the immediately preceding
sentence but for the fact that it is a Defaulting Bank, such Defaulting Bank
shall not be entitled to receive any portion of any payment or other
distribution hereunder until each other Bank shall have been reimbursed for
the excess, if any, of the aggregate amount paid by such Bank under this
Section 11.07 over the aggregate amount such Bank would have been obligated
to pay had such first Bank not been a Defaulting Bank. If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this Section 11.07
shall survive the payment of all Obligations and termination of all
Commitments.
11.08 AGENTS IN THEIR INDIVIDUAL CAPACITIES. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in
any kind of business with Holdings and its Subsidiaries as though such Agent
were not an Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, each Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were
not an Agent and the terms "Bank" and "Banks" shall include each Agent in its
individual capacity.
11.09 HOLDERS. Each Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice
of the assignment, transfer or endorsement thereof, as the case may be, shall
have been filed with the Administrative Agent. Any request, authority or
consent of any Person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
11.10 RESIGNATION OF AN AGENT; SUCCESSOR AGENT. Any Agent may resign
as an Agent upon 20 days' notice to the Banks. Upon the resignation of such
Agent, the Required Banks shall appoint from among the Banks a successor
Agent which is a bank or a trust company for the Banks subject, to the extent
that no Default or Event of Default has occurred and is then continuing, to
prior approval by Holdings (such approval not to be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of such
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Agent, and the term "Agent" shall include such successor agent effective upon
its appointment, and the resigning Agent's rights, powers and duties as an
Agent shall be terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement. If a
successor Agent shall not have been so appointed within such 20 day period
after the date such notice of resignation was given by such Agent, the
Agent's resignation shall become effective and the Banks shall thereafter
perform all duties of such Agent hereunder and/or under any other Credit
Documents until such time, if any, as the Required Banks appoint a successor
Agent as provided above. After the resignation of such Agent hereunder, the
provisions of this Section 11 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrower hereby agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agents (including, without
limitation, the reasonable fees and disbursements of White & Case and local
counsel) in connection with the negotiation, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred
to therein and any amendment, waiver or consent relating thereto and in
connection with the Agents' syndication efforts with respect to this
Agreement; (ii) pay all reasonable out-of-pocket costs and expenses of the
Agents and each of the Banks in connection with the enforcement of the Credit
Documents and the documents and instruments referred to therein and, after an
Event of Default shall have occurred and be continuing, the protection of the
rights of the Agents and each of the Banks thereunder (including, without
limitation, (x) any expenses incurred by the Agents and/or the Banks in
connection with the enforcement of any Credit Documents in any bankruptcy
proceeding involving Borrower and (y) the reasonable fees and disbursements
of counsel (including in-house counsel) for the Agents and for each of the
Banks); (iii) pay and hold each of the Banks harmless from and against any
and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes; and
(iv) indemnify each Agent, Administrative Agent, the Collateral Agent and
each Bank, its officers, directors, employees, representatives and agents
from and hold each of them harmless against any and all losses, liabilities,
claims, damages or expenses incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Agent, the
Collateral Agent or any Bank is a party thereto) related to the entering into
and/or performance of this Agreement or any other Document or the use of the
proceeds of any Loans hereunder or the Transaction or the consummation of any
other transactions contemplated in any Document (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified), or (b) the actual or alleged generation, presence or Release of
Hazardous Materials (i) on or from, or the transportation of Hazardous
Materials to or from, any Real Property at any time owned or operated by
Holdings or any of its Subsidiaries, or (ii) in the air, surface water or
groundwater or on the
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surface or subsurface of any Real Property or (c) any Environmental Claim
relating to Holdings or its Subsidiaries or any Real Property at any time
owned or operated by Holdings or any of its Subsidiaries, in each case,
including, without limitation, the reasonable fees and disbursements of
counsel and independent consultants incurred in connection with any such
investigation, litigation or other proceeding. Notwithstanding anything to
the contrary in this Agreement, the Borrower shall be permitted to pay all
fees in connection with the Transaction, regardless of whether such fees are
owing by Holdings, IVAC Holdings or any Wholly-Owned Subsidiary of Holdings.
12.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of
any such rights, upon the occurrence and continuance of an Event of Default,
each Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located)
to or for the credit or the account of such Credit Party against and on
account of the Obligations and liabilities of such Credit Party to such Bank
or any other Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations of
such Credit Party purchased by such Bank or any other Bank pursuant to
Section 12.06(b), and all other claims of any nature or description arising
out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall
be contingent or unmatured. Each Bank is hereby designated the agent of all
other Banks for purposes of effecting set off pursuant to this Section 12.02,
and each Credit Party hereby grants to each Bank for such Bank's own benefit
and as agent for all other Banks a continuing security interest in any and
all deposits, accounts or moneys of such Credit Party maintained from time to
time with such Bank.
12.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit
Party, at the address specified opposite its signature below or in the other
relevant Credit Documents, as the case may be; if to any Bank, at its address
specified for such Bank on Annex II; or, at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
telecopied or cabled or sent by overnight courier, and shall be effective
when received.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; PROVIDED, HOWEVER, no Credit Party may
assign or transfer any of its rights, obligations or interest hereunder or
under any other Credit Document without the prior written consent of all
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of the Banks and, PROVIDED FURTHER, that, although any Bank may transfer,
assign or grant participations in its rights hereunder, such Bank shall
remain a "Bank" for all purposes hereunder (and may not transfer or assign
all or any portion of its Commitments hereunder except as provided in Section
12.04(b)) and the transferee, assignee or participant, as the case may be,
shall not constitute a "Bank" hereunder and, PROVIDED FURTHER, that no Bank
shall transfer or grant any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement or any
other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan
Maturity Date) in which such participant is participating, or reduce the rate
or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the
amount of the participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default
or of a mandatory reduction in the Total Commitment shall not constitute a
change in the terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof),
(ii) consent to the assignment or transfer by Holdings or the Borrower of any
of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents
(except as expressly provided in the Credit Documents) supporting the Loans
hereunder in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights
against such Bank in respect of such participation to be those set forth in
the agreement executed by such Bank in favor of the participant relating
thereto) and all amounts payable by the Borrower hereunder shall be
determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together with
one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to its parent company and/or any affiliate of such
Bank which is at least 50% owned by such Bank or its parent company or to one
or more Banks or (y) assign all, or if less than all, a portion equal to at
least $5,000,000 in the aggregate for the assigning Bank or assigning Banks,
of such Revolving Loan Commitments and/or outstanding principal amount of
Term Loans hereunder to one or more Eligible Transferees, each of which
assignees shall become a party to this Agreement as a Bank by execution of an
Assignment and Assumption Agreement, PROVIDED that (i) at such time Annex I
shall be deemed modified to reflect the Commitments (and/or outstanding Term
Loans, as the case may be) of such new Bank and of the existing Banks, (ii)
upon surrender of the old Notes, new Notes will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments
(and/or outstanding Term Loans, as the case may be), (iii) the consent of the
Administrative Agent shall be required in connection with any such assignment
pursuant to clause (y) of this Section 12.04(b) (which consent shall not be
unreasonably withheld or delayed), (iv) the
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consent of each Letter of Credit Issuer shall be required in connection with
any such assignment of Revolving Loan Commitments pursuant to clause (y) of
this Section 12.04(b) (which consent shall not be unreasonably withheld) and
(v) the Administrative Agent shall receive at the time of each such
assignment, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500 and, PROVIDED FURTHER, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 7.12 hereof. To the
extent of any assignment pursuant to this Section 12.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this
Section 12.04(b) to a Person which is not already a Bank hereunder and which
is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) for Federal income tax purposes, the respective assignee Bank
shall provide to the Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii)
Certificate) described in Section 4.04(b). To the extent that an assignment
of all or any portion of a Bank's Commitments and related outstanding
Obligations pursuant to Section 1.13 or this Section 12.04(b) would, at the
time of such assignment, result in increased costs under Section 1.10, 1.11,
2.05 or 4.04 from those being charged by the respective assigning Bank prior
to such assignment, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Bank from such Federal Reserve Bank.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part
of any Agent, the Administrative Agent or any Bank in exercising any right,
power or privilege hereunder or under any other Credit Document and no course
of dealing between any Credit Party and any Agent or any Bank shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which any Agent, the Administrative Agent or any Bank would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Agent, the
Administrative Agent or the Banks to any other or further action in any
circumstances without notice or demand.
12.06 PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Credit
Party in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its PRO RATA
share of such payment) PRO RATA based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.
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(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or
interest on, the Loans, Unpaid Drawings or Fees, of a sum which with respect
to the related sum or sums received by other Banks is in a greater proportion
than the total of such Obligation then owed and due to such Bank bears to the
total of such Obligation then owed and due to all of the Banks immediately
prior to such receipt, then such Bank receiving such excess payment shall
purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of the respective Credit Party to such Banks in
such amount as shall result in a proportional participation by all of the
Banks in such amount; PROVIDED, that if all or any portion of such excess
amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in
writing by Holdings or the Borrower to the Banks); PROVIDED, that except as
otherwise specifically provided herein, all computations determining
compliance with Sections 4.02 and 8, including definitions used therein,
shall utilize accounting principles and policies in effect at the time of the
preparation of, and in conformity with those used to prepare, the December
31, 1995 financial statements delivered to the Banks pursuant to Section
6.10(b) and (c).
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK EXCEPT CERTAIN CREDIT
DOCUMENTS WHICH SHALL BE GOVERNED BY SUCH OTHER JURISDICTION AS SPECIFIED IN
EACH SUCH CREDIT DOCUMENT. Any legal action or proceeding with respect to
this Agreement or any other Credit Document may be brought in the courts of
the State of New York or of the United States for the Southern District of
New York, and, by execution and delivery of this Agreement, each Credit Party
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Each Credit Party hereby further irrevocably waives any claim that any such
courts lack jurisdiction over such Credit Party, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or
any other Credit Document brought in any of the aforesaid courts, that any
such court lacks jurisdiction over such Credit Party. Each Credit Party
irrevocably consents to the service of process in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such Credit Party, at its address for
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notices pursuant to Section 12.03, such service to become effective 30 days
after such mailing. Each Credit Party hereby irrevocably waives any
objection to such service of process and further irrevocably waives and
agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of any Agent,
the Administrative Agent, any Bank or the holder of any Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a)
above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set
of counterparts executed by all the parties hereto shall be lodged with
Holdings, the Borrower and each Agent.
12.10 EFFECTIVENESS. This Agreement shall become effective on the date
(the "Effective Date") on which Holdings, the Borrower and each of the Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent
at the Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written, telex or
facsimile notice (actually received) at such office that the same has been
signed and mailed to it. The Administrative Agent will give Holdings, the
Borrower and each Bank prompt written notice of the occurrence of the
Effective Date.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
12.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Credit Parties party thereto and the
Required Banks, PROVIDED that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected thereby in the case of
following clause (i)), (i) extend the final scheduled maturity of any Loan or
Note or extend the stated maturity of any Letter of Credit beyond the
Revolving Loan Maturity Date, or reduce the rate or extend the time of
payment of interest or Fees thereon, or reduce the principal amount thereof,
(ii) release all or
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substantially all of the Collateral (except as expressly provided in the
Security Documents) under all the Security Documents, (iii) amend, modify or
waive any provision of this Section 12.12, (iv) reduce the percentage
specified in the definition of Required Banks (it being understood that, with
the consent of the Required Banks, additional extensions of credit pursuant
to this Agreement may be included in the determination of the Required Banks
on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Effective Date) or (v) consent to the
assignment or transfer by Holdings or the Borrower of any of its rights and
obligations under this Agreement (other than such assignment or transfer
consummated in accordance with this Agreement as in effect on the Initial
Borrowing Date); PROVIDED, FURTHER, that no such change, waiver, discharge or
termination shall (1) increase the Commitments of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment shall
not constitute an increase of the Commitment of any Bank, and that an
increase in the available portion of any Commitment of any Bank shall not
constitute an increase in the Commitment of such Bank), (2) without the
consent of BTCo, amend, modify or waive any provision of Section 2 or alter
its rights or obligations with respect to Letters of Credit or Swingline
Loans, (3) without the consent of each Agent, amend, modify or waive any
provision of Section 11 as same applies to such Agent or any other provision
as same relates to the rights or obligations of such Agent, (4) without the
consent of the Collateral Agent, amend, modify or waive any provision
relating to the rights or obligations of the Collateral Agent, (5) without
the consent of the Majority Banks of each Facility which is being allocated a
lesser prepayment, repayment or commitment reduction as a result of the
actions described below (or without the consent of the Majority Banks of each
Facility in the case of an amendment to the definition of Majority Banks),
amend the definition of Majority Banks or alter the required application of
any prepayments or repayments (or commitment reduction), as between the
various Facilities pursuant to Section 4.01(a) or 4.02 (although the Required
Banks may waive, in whole or in part, any such prepayment, repayment or
commitment reduction so long as the application, as amongst the various
Facilities, of any such prepayment, repayment or commitment reduction which
is still required to be made is not altered) or (6) without the consent of
the Supermajority Banks of the respective Facility, amend the definition of
Supermajority Banks or amend, modify or waive any Scheduled Repayment of such
affected Facility.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clause (a)(i) through (v), inclusive, of the first proviso to Section
12.12(a), the consent of the Required Banks is obtained but the consent of
one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either
clause (A) or (B) below, to either (A) replace each such non-consenting Bank
or Banks with one or more Replacement Banks pursuant to Section 1.13 so long
as at the time of such replacement, each such Replacement Bank consents to
the proposed change, waiver, discharge or termination or (B) terminate all
of such non-consenting Bank's Commitments and repay in full its outstanding
Loans, in accordance with
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Sections 3.02(b) and/or 4.01(b), PROVIDED that, unless the Commitments
terminated and Loans repaid pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Banks or the
increase of the Commitments and/or outstanding Loans of existing Banks (who
in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) the Required Banks (determined before
giving effect to the proposed action) shall specifically consent thereto,
PROVIDED FURTHER, that the Borrower shall not have the right to replace a
Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to the second
proviso to Section 12.12(a).
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01, shall survive
the execution and delivery of this Agreement and the making and repayment of
the Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of
such Bank; PROVIDED, that the Borrower shall not be responsible for costs
arising under Section 1.10, 1.11, 2.05 or 4.04 resulting from any such
transfer (other than a transfer pursuant to Section 1.12) to the extent such
costs would not otherwise be applicable to such Bank in the absence of such
transfer.
12.15 CONFIDENTIALITY. (a) Each of the Banks agrees that it will use
its best efforts not to disclose without the prior consent of the Borrower
(other than to its employees, auditors, counsel or other professional
advisors, to affiliates or to another Bank if the Bank or such Bank's holding
or parent company in its sole discretion determines that any such party
should have access to such information) any information with respect to
Holdings, the Borrower or any of its Subsidiaries which is furnished pursuant
to this Agreement; PROVIDED, that any Bank may disclose any such information
(a) as has become generally available to the public or has become available
to such Bank on a non-confidential basis, (b) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have jurisdiction over
such Bank or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or the National Association of Insurance Commission or similar
organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation, (d) in order to comply with
any law, order, regulation or ruling applicable to such Bank, and (e) to any
prospective transferee in connection with any contemplated transfer of any of
the Notes or any interest therein by such Bank; PROVIDED, that such
prospective transferee agrees, for the benefit of such Bank and the Borrower,
to provisions substantially identical to those contained in this Section.
(b) Each of Holdings and the Borrower hereby acknowledges and agrees
that each Bank may share with any of its affiliates any information related
to Holdings or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of Holdings and
its Subsidiaries, provided that such Persons shall be subject to the
provisions of this Section 12.15 to the same extent as such Bank).
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12.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.17 IMED MERGER. Notwithstanding anything to the contrary contained
in this Agreement or in any other Credit Document, the Borrower shall, as
required by Section 7.20, on the Initial Borrowing Date, immediately
following the Acquisition, merge with and into IVAC Holdings (the "IMED
Merger"), at the time of which IMED Merger the following conditions shall
have been satisfied (it being understood and agreed that all documents and
instruments listed below shall be executed and delivered into an escrow
arrangement satisfactory to the Agents on the Initial Borrowing Date (before
the incurrence of the initial Loans on such date) pending consummation of the
IMED Merger):
(i) the Agents shall have received copies of the documents and
instruments of transfer in connection with the IMED Merger, certified as
true and correct by an officer of the Borrower, which documents and
instruments shall be satisfactory in form and substance to the Bank;
(ii) IVAC Holdings shall have duly authorized, executed and delivered
to the Agents the IMED Merger Documents which shall include an assumption
acknowledgment in the form of Exhibit M attached hereto (the "Assumption
Acknowledgment"), pursuant to which IVAC Holdings shall assume all of the
Borrower's rights, obligations and liabilities under this Agreement, the
Notes, the Security Agreement, the Pledge Agreement and the Mortgages and
shall become the "Borrower" for all purposes of this Agreement and the
other Credit Documents;
(iii) all Domestic Subsidiaries of IVAC Holdings (other than River
Medical) shall have duly authorized, executed and delivered to the
Administrative Agent an assumption agreement in the form of Exhibit N
attached hereto (the "Subsidiary Assumption Agreement"), pursuant to which
each such Domestic Subsidiary shall become a party to the Subsidiary
Guaranty, the Pledge Agreement and the Security Agreement;
(iv) (a) IVAC Holdings shall have executed and delivered forms of
the Pledge Agreement, conformed to satisfy all applicable German and
English law, and shall have delivered to the Collateral Agent, as Pledgee
the Pledged Securities referred to therein, endorsed in blank in the case
of promissory notes or accompanied by executed and undated stock powers in
the case of capital stock and (b) IVAC Overseas shall have executed and
delivered forms of the Pledge Agreement, conformed to satisfy all
applicable French and Spanish law, and shall have delivered to the
Collateral Agent, as Pledgee the Pledged Securities referred to therein,
endorsed in blank in the case of
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promissory notes or accompanied by executed and undated stock powers in the case
of capital stock;
(v) all steps shall have been taken, to the satisfaction of the
Agents in its sole discretion, to preserve and protect the security
interests created in the assets of IMED pursuant to this Agreement, the
Pledge Agreement, the Security Agreement and the Mortgages in favor of the
Collateral Agent;
(vi) IVAC Holdings shall have delivered to the Agents opinions
(a) substantially in the form of Exhibit O attached hereto, of counsel
▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky ▇▇▇▇▇▇▇ Shalov & ▇▇▇▇, and (b) in form and substance
satisfactory to the Agents, of the local counsel referred to in
Section 7.22, such opinions to the effect that the Administrative Agent for
the benefit of the Banks has a continued first priority fully perfected
Lien on the assets of IMED which shall become the assets of IVAC Holdings
pursuant to the IMED Merger and covering such other matters relating to
such transactions, the assumption by IVAC Holdings of the Borrower's
obligations and Liens upon the Borrower's properties as the Agents may
reasonably require;
(vii) the Borrower shall have delivered or caused to be delivered to
the Agents such other documents or instruments as the Agents may reasonably
require in connection with such transaction;
(viii) IVAC Holdings shall have delivered or caused to be delivered
to the Collateral Agent a Mortgage Policy not less favorable to the
Collateral Agent than the policy delivered pursuant to Section 5.12(b) (or
an acknowledgement from the issuer of such policy that the policy continues
in full force and effect as to IVAC Holdings);
(ix) IVAC Holdings shall have executed and delivered new Term Notes
(the "New Term Notes"), Revolving Notes (the "New Revolving Notes") and a
Swingline Note (the "New Swingline Note") substantially in the form
executed by the Borrower pursuant to Section 1.05;
(x) IVAC Holdings shall have executed and delivered to the Agents a
certificate signed by an appropriate officer of IVAC Holdings stating that
all of the applicable conditions set forth in Sections 5.02, 5.06, 5.07
and 5.08 exist as of such date;
(xi) IVAC Holdings and each of its Domestic Subsidiaries shall have
(a) executed and delivered to the Agents a certificate signed by the
chairman, a vice chairman, the president or any vice-president of such
Credit Party, and attested to by the secretary or any assistant secretary
of such Credit Party, in the form of Exhibit E with appropriate insertions,
together with copies of the Certificate of Incorporation and By-Laws of
such Credit Party and the resolutions of such Credit Party referred to in
such certificate and all of the foregoing (including each such Certificate
of Incorporation and By-Laws) shall be satisfactory to the Agents or the
Required Banks;
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(xii) the Agents or the Required Banks shall have received all
information and copies of all certificates, documents and papers, including
good standing certificates, bring-down certificates and any other records
of corporate proceedings and governmental approvals, if any, which the
Agents or the Required Banks reasonably may have requested in connection
therewith, such documents and papers, where appropriate, to be certified
by proper corporate or governmental authorities; and
(xiii) the ownership and capital structure (including, without
limitation, the terms of any capital stock, options, warrants or other
securities issued by IVAC Holdings or any of its Subsidiaries) and
management of IVAC Holdings and its Subsidiaries shall be in form and
substance reasonably satisfactory to the Agents or the Required Banks.
Upon the transfer in accordance with this Section 12.17, and provided that the
Borrower has assigned to IVAC Holdings its rights and powers hereunder, IVAC
Holdings shall succeed to, and be substituted for, and may exercise every right
and power of, the Borrower under this Agreement and the Notes with the same
effect as if IVAC Holdings had been named as the Borrower herein.
12.18 GERMAN PLEDGE AGREEMENT. In case an Event of Default shall
occur and BTCo exercises its rights, powers and remedies under the German
Pledge Agreement for the protection and enforcement of its rights in respect
of the Collateral thereunder, BTCo shall allocate such proceeds to the Banks
ratably according to their respective "percentages" as used in determining
the Required Banks at such time.
SECTION 13. HOLDING COMPANY GUARANTY.
13.01 THE GUARANTY. In order to induce the Banks to enter into this
Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Holdings from the proceeds of the Loans and the
issuance of the Letters of Credit, Holdings hereby agrees with the Banks as
follows: Holdings hereby unconditionally and irrevocably guarantees as
primary obligor and not merely as surety the full and prompt payment when
due, whether upon maturity, acceleration or otherwise, of any and all of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors. If any
or all of the Guaranteed Obligations of the Borrower to the Guaranteed
Creditors becomes due and payable hereunder, Holdings unconditionally
promises to pay such indebtedness to the Administrative Agent and/or the
Banks, or order, on demand, together with any and all expenses which may be
incurred by the Administrative Agent or the Banks in collecting any of the
Guaranteed Obligations. If claim is ever made upon any Guaranteed Creditor
for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over such payee
or any of its property or (ii) any settlement or compromise of any such claim
effected by such payee with any such claimant (including the Borrower), then
and in such event Holdings agrees that any such
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EX 10.1 K
judgment, decree, order, settlement or compromise shall be binding upon
Holdings, notwithstanding any revocation of this Guaranty or other instrument
evidencing any liability of the Borrower, and Holdings shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
13.02 BANKRUPTCY. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors whether or not due or
payable by the Borrower upon the occurrence of any of the events specified in
Section 9.05, and unconditionally, promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand, in lawful money of the United
States.
13.03 NATURE OF LIABILITY. The liability of Holdings hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower whether executed by Holdings, any
other guarantor or by any other party, and the liability of Holdings
hereunder is not affected or impaired by (a) any direction as to application
of payment by the Borrower or by any other party, or (b) any other continuing
or other guaranty, undertaking or maximum liability of a guarantor or of any
other party as to the Guaranteed Obligations of the Borrower, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d)
any dissolution, termination or increase, decrease or change in personnel by
the Borrower, or (e) any payment made to any Guaranteed Creditor on the
Guaranteed Obligations which any such Guaranteed Creditor repays to the
Borrower pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and Holdings
waives any right to the deferral or modification of its obligations hereunder
by reason of any such proceeding.
13.04 INDEPENDENT OBLIGATION. The obligations of Holdings hereunder
are independent of the obligations of any other guarantor, any other party or
the Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other
guarantor, any other party or the Borrower and whether or not any other
guarantor, any other party or the Borrower be joined in any such action or
actions. Holdings waives, to the full extent permitted by law, the benefit
of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate
to toll the statute of limitations as to Holdings.
13.05 AUTHORIZATION. Holdings authorizes the Guaranteed Creditors
without notice or demand (except as shall be required by applicable statute
and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in
the rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and
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the Guaranty herein made shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of Holdings or the Borrower
remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Guaranty.
13.06 RELIANCE. It is not necessary for any Guaranteed Creditor to
inquire into the capacity or powers of the Borrower or the officers,
directors, partners or agents acting or purporting to act on their behalf,
and any Guaranteed Obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
13.07 SUBORDINATION. Any of the indebtedness of the Borrower relating
to the Guaranteed Obligations now or hereafter owing to Holdings is hereby
subordinated to the Guaranteed Obligations of the Borrower owing to the
Guaranteed Creditors; and if the Administrative Agent so requests at a time
when an Event of Default exists, all such
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indebtedness relating to the Guaranteed Obligations of the Borrower to
Holdings shall be collected, enforced and received by Holdings for the
benefit of the Guaranteed Creditors and be paid over to the Administrative
Agent on behalf of the Guaranteed Creditors on account of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors, but without
affecting or impairing in any manner the liability of Holdings under the
other provisions of this Guaranty. Prior to the transfer by Holdings of any
note or negotiable instrument evidencing any of the indebtedness relating to
the Guaranteed Obligations of the Borrower to Holdings, Holdings shall ▇▇▇▇
such note or negotiable instrument with a legend that the same is subject to
this subordination. Without limiting the generality of the foregoing,
Holdings hereby agrees with the Guaranteed Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as
a result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
13.08 WAIVER. (a) Holdings waives any right (except as shall be
required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against the Borrower, any other guarantor
or any other party, (ii) proceed against or exhaust any security held from
the Borrower, any other guarantor or any other party or (iii) pursue any
other remedy in any Guaranteed Creditor's power whatsoever. Holdings waives
any defense based on or arising out of any defense of the Borrower, any other
guarantor or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment in full of the Guaranteed Obligations. The Guaranteed Creditors
may, at their election, foreclose on any security held by any Agent,
Administrative Agent, the Collateral Agent or any other Guaranteed Creditor
by one or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of Holdings
hereunder except to the extent the Guaranteed Obligations have been paid.
Holdings waives any defense arising out of any such election by the
Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of Holdings against the Borrower or any other party or any security.
(b) Holdings waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Holdings assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which
Holdings assumes and incurs hereunder, and agrees that the Administrative
Agent and the Banks shall have no duty to advise Holdings of information
known to them regarding such circumstances or risks.
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(c) Holdings hereby acknowledges and affirms that it understands that
to the extent the Guaranteed Obligations are secured by real property located
in the State of California, Holdings shall be liable for the full amount of
its liability hereunder notwithstanding foreclosure on such real property by
trustee sale or any other reason impairing Holdings' or any secured
creditor's right to proceed against the Borrower or any other guarantor of
the Guaranteed Obligations.
(d) Holdings hereby waives, to the fullest extent permitted by
applicable law, all rights and benefits under Sections 580a, 580b, 580d and
726 of the California Code of Civil Procedure. Holdings hereby further
waives, to the fullest extent permitted by applicable law, without limiting
the generality of the foregoing or any other provision hereof, all rights and
benefits which might otherwise be available to Holdings under Sections 2787
through 2855, inclusive, 2899 and 3433 of the California Civil Code.
(e) Holdings further understands, is aware and hereby acknowledges that
if the Guaranteed Creditors elect to nonjudicially foreclose on any real
property security located in the State of California any right of subrogation
of Holdings against any Credit Party may be impaired or extinguished and that
as a result of such impairment or extinguishment of subrogation rights,
Holdings may have a defense to a deficiency judgment arising out of the
operation of Section 580d of the California Code of Civil Procedure and
related principles of estoppel. Holdings waives all rights and defenses
arising out of an election of remedies by the Banks, even though that
election of remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed the guarantor's rights of
subrogation and reimbursement against the principal by the operation of
Section 580d of the Code of Civil Procedure or otherwise.
13.09 NATURE OF LIABILITY. It is the desire and intent of Holdings and
the Guaranteed Creditors that this Guaranty shall be enforced against
Holdings to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however,
and to the extent that, the obligations of Holdings under this Guaranty shall
be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating
to fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations of Holdings shall be deemed to be reduced and Holdings shall pay
the maximum amount of the Guaranteed Obligations which would be permissible
under applicable law.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
ADDRESSES:
ADVANCED MEDICAL, INC.
By ____________________________________
Title:
IMED CORPORATION
By ____________________________________
Title:
BANKERS TRUST COMPANY,
Individually, as Administrative Agent
and as Syndication Agent
By ____________________________________
Title:
BANQUE PARIBAS,
Individually, as Documentation Agent
and as Syndication Agent
By ____________________________________
Title:
By ____________________________________
Title:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION,
Individually and as Syndication Agent
By ____________________________________
Title:
ANNEX I
LIST OF BANKS
REVOLVING
BANK A TERM LOAN B TERM LOAN C TERM LOAN D TERM LOAN LOAN
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
---- ----------- ----------- ----------- ----------- ----------
Bankers Trust Company $ $ $ $ $
Banque Paribas $ $ $ $ $
▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇ Securities
Corporation $ $ $ $ $
Total: $75,000,000 $42,500,000 $42,500,000 $40,000,000 $50,000,000
ANNEX II
BANK ADDRESSES
BANK
ANNEX II
Page 2
ADDRESS
-------
Bankers Trust Company
ANNEX II
Page ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone No.:
Facsimile No.:
Banque Paribas
ANNEX II
Page 4
Attention:
Telephone No.:
Facsimile No.:
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
ANNEX II
Page 5
Attention:
Telephone No.:
Facsimile No.: