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EXHIBIT 10.5
REVOLVING CREDIT AGREEMENT
dated as of May 18, 1999
among
MINIMED INC., as Borrower,
THE REVOLVING CREDIT LENDERS PARTIES HERETO
and
ING (U.S.) CAPITAL LLC,
as Agent
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TABLE OF CONTENTS
ARTICLE I DEFINED TERMS 1
Section 1.02. Computations 1
Section 1.03. Interpretation 1
ARTICLE II REVOLVING CREDIT FACILITIES 2
Section 2.01. The Commitments 2
Section 2.02. Types and Amount of Revolving Credit Advances 2
Section 2.03. Manner of Borrowing 2
Section 2.04. Repayment of Principal 3
Section 2.05. Payment of Interest 3
Section 2.06. Optional Prepayment 4
Section 2.07. Funding Indemnities 4
Section 2.08. Revolving Notes 5
ARTICLE III CHANGE IN CIRCUMSTANCES 5
Section 3.01. Increased Costs 5
Section 3.02. Illegality 7
Section 3.03. Unavailability of LIBOR Advances 8
ARTICLE IV FEES; PAYMENTS; REDUCTION ANDINCREASE OF COMMITMENTS 9
Section 4.01. Fees 9
Section 4.02. Manner of Payments 9
Section 4.03. Extension of Payments 10
Section 4.04. Computation of Interest and Fees 10
Section 4.05. Reduction, Increase and Termination of the Commitments 10
Section 4.06. Intentionally Omitted. 11
ARTICLE V CONDITIONS PRECEDENT 11
Section 5.01. Initial Conditions 11
Section 5.02. Conditions to each Credit Event 13
ARTICLE VI REPRESENTATIONS AND WARRANTIES 14
Section 6.01. Corporate Existence 14
Section 6.02. Corporate Power; Authorization; Enforceable Obligations 14
Section 6.03. No Legal Bar 14
Section 6.04. Litigation 14
Section 6.05. ERISA 15
Section 6.06. Subsidiary Guarantors 15
Section 6.07. Taxes 15
Section 6.08. Financial Statements 16
Section 6.09. Compliance with Laws 16
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Section 6.10. No Default 16
Section 6.11. Labor Controversies 16
Section 6.12. Ownership of Properties; Collateral 16
Section 6.13. Intellectual Property 17
Section 6.14. Accuracy of Information 17
Section 6.15. Insurance 17
Section 6.16. Condition of Property 17
Section 6.17. Trade Relations 17
Section 6.18. Indebtedness 18
Section 6.19. Consents 18
Section 6.20. No Burdensome Agreement 18
Section 6.21. Year 2000 Compliance 18
ARTICLE VII AFFIRMATIVE COVENANTS 18
Section 7.01. Compliance with Laws 18
Section 7.02. Payment of Taxes 18
Section 7.03. Maintenance of Insurance 18
Section 7.04. Preservation of Corporate Existence, Etc 19
Section 7.05. Delivery of Financial Statements, Compliance Certificate
and Reporting Requirements 19
Section 7.06. Keeping of Books and Records 21
Section 7.07. Visitation Rights 21
Section 7.08. Foreign Qualification 22
Section 7.09. Maintenance of Properties, Etc 22
Section 7.10. Maintenance of Licenses and Permits 22
Section 7.11. Real Estate 22
Section 7.12. Employee Plans 22
ARTICLE VIII NEGATIVE COVENANTS 23
Section 8.01. Business Activities 23
Section 8.02. Limitation on Indebtedness 23
Section 8.03. Liens, Etc 24
Section 8.04. Capital Expenditures 25
Section 8.05. Investments 25
Section 8.06. Restricted Payments 26
Section 8.07. Limitation on Restrictions on Subsidiary Dividends 26
Section 8.08. Take or Pay Contracts; Sale/Leasebacks 27
Section 8.09. Change of Control 27
Section 8.10. Mergers, Etc 27
Section 8.11. Compliance with ERISA 28
Section 8.12. Subsidiaries 29
Section 8.13. Asset Dispositions, etc. 29
Section 8.14. Modification of Organic Documents, etc. 29
Section 8.15. Transactions with Affiliates 29
Section 8.16. Inconsistent Agreements 30
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Section 8.17. Change in Accounting Method 30
Section 8.18. Change in Fiscal Year End 30
Section 8.19. Amendments to Certain Agreements 30
Section 8.20. Financial Condition 30
ARTICLE IX EVENTS OF DEFAULT 34
Section 9.01. Events of Default 34
Section 9.02. Default Remedies 36
Section 9.03. Set-off 36
Section 9.04. Funding Indemnities 37
Section 9.05. Default Interest 37
ARTICLE X THE AGENT 37
Section 10.01. Appointment and Authorization. 37
Section 10.02. Same Rights as a Revolving Credit Lender 37
Section 10.03. Actions by the Agent 37
Section 10.04. Consultation with Experts 38
Section 10.05. Liability 38
Section 10.06. Indemnification 38
Section 10.07. Credit Decision 39
Section 10.08. Successor Agents; Removal 39
Section 10.09. Sharing by Revolving Credit Lenders 39
ARTICLE XI GENERAL PROVISIONS 40
Section 11.01. Assignment 40
Section 11.02. Amendments and Waivers 42
Section 11.03. Notices 42
Section 11.04 Cumulative Rights; No Waiver 44
Section 11.05 Counterparts 44
Section 11.06 Severability 44
Section 11.07 Headings 44
Section 11.08. Termination by Borrower 44
Section 11.09. Several Obligations; Remedies Independent 44
Section 11.11. Tax Forms 46
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EXHIBITS
A Form of Revolving Credit Note
B Form of Notice of Borrowing
C Form of Notice of Continuation/Conversion
D Form of Revolving Credit Lender Assignment
Schedule 6.05 - ERISA
Schedule 6.12 - Ownership of Properties; Collateral
Schedule 6.13 - Intellectual Property
Schedule 6.15 - Insurance
Schedule 6.18 - Indebtedness
Schedule 6.19 - Consents
Schedule 8.04 - Investments
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REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of May 18, 1999, by and among MINIMED
INC., a Delaware corporation (the "Borrower"), the Revolving Credit Lenders now
or hereafter parties hereto (as more fully defined below, the "Revolving Credit
Lenders"), and ING (U.S.) CAPITAL LLC, as the agent for the Revolving Credit
Lenders (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Revolving Credit Lenders
establish a $15,000,000 revolving credit facility in favor of the Borrower; and
WHEREAS, the Revolving Credit Lenders are willing to establish the
requested revolving credit facility in favor of the Borrower on the terms and
subject to the conditions contained herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions Incorporated by Reference. For purposes of this
Agreement (including, without limitation, the "WHEREAS" clauses set forth
above), capitalized terms used in this Agreement and not otherwise defined shall
have the meanings assigned to them in Appendix A to the Participation Agreement.
Unless otherwise indicated, references in this Agreement to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in this Agreement.
Section 1.02. Computations. In the computation of interest and fees payable
from a specified date to a later specified date, unless otherwise indicated, the
word "from" means "from and including" and the words "to" and "until" both mean
"to but not including".
Section 1.03. Interpretation. The rules of usage set forth in Appendix A to
the Participation Agreement shall apply to this Agreement.
Section 1.04. Use of Defined Terms. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
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Section 1.05. Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference.
Section 1.06. Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
ARTICLE II
REVOLVING CREDIT FACILITIES
Section 2.01. The Commitments. On the terms and subject to the conditions
of this Agreement, each Revolving Credit Lender, for itself alone and not
jointly with any other Revolving Credit Lender, shall make Revolving Credit
Advances from time to time, from and after the Effective Date until the Final
Date, in an aggregate principal amount not to exceed the amount of its
Commitment. The Borrower shall be entitled to repay and reborrow under the terms
of this Agreement without premium or penalty (other than those amounts set forth
in Section 2.07 below), provided that (i) the sum of the aggregate principal
amount of all Outstanding Revolving Credit Advances immediately after the making
of each Revolving Credit Advance and giving effect to the application of the
proceeds thereof will not exceed the then applicable Total Revolving Credit
Commitment and (ii) the Borrower may neither borrow nor reborrow should there
exist a Potential Default or an Event of Default.
Section 2.02. Types and Amount of Revolving Credit Advances. Each Borrowing
shall consist of the same type of Revolving Credit Advances which shall, at the
option of the Borrower, be made or continued as part of one or more Borrowings
that shall consist entirely of Base Rate Advances or LIBOR Advances, as
specified by the Borrower in the Notice of Borrowing requesting such Borrowing.
Each Borrowing shall be in the minimum amount of not less than (a) $500,000 for
a Borrowing comprised of LIBOR Advances, and (b) $250,000 for a Borrowing
comprised of Base Rate Advances.
Section 2.03. Manner of Borrowing.
(a) Notice. The Borrower shall give the Agent a duly completed Notice of
Borrowing (i) for each Borrowing consisting of Base Rate Advances, not later
than 4:00 P.M. (New York time) one Business Day before the date of such
Borrowing, and (ii) for each Borrowing consisting of LIBOR Advances, not later
than 11:00 A.M. (New York time) three Business Days before the date of such
Borrowing (each a "Date of Borrowing"). Each such Notice of Borrowing shall be
in the form of Exhibit B hereto and shall specify: (i) the type of such
Revolving Credit Advances comprising such Borrowing; (ii) the amount of such
Borrowing; and (iii) the date of such Borrowing, which shall be a
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Business Day prior to the Final Date. Each Borrowing shall be made ratably from
the Revolving Credit Lenders in proportion to each Revolving Credit Lender's
Commitment Percentage. Upon receipt by the Agent of a Notice of Borrowing as
aforesaid, the Agent shall promptly advise each Revolving Credit Lender thereof
by telephone, telex or telecopier (which notice, if by telephone, shall be
promptly confirmed in writing). Each Revolving Credit Lender shall make the
Revolving Credit Advance to be made by it hereunder by transferring the proceeds
thereof in Dollars to the Agent not later than 2:00 P.M. (New York time) on the
relevant Date of Borrowing; provided, however, that the failure of any Revolving
Credit Lender to make any Revolving Credit Advance to be made by it on the Date
of Borrowing shall not relieve any other Revolving Credit Lender of its
obligation to make its Revolving Credit Advance on such date, but no Revolving
Credit Lender shall be responsible for the failure of any other Revolving Credit
Lender to make an Revolving Credit Advance. Not later than 11:00 A.M. (New York
time) on the day which is three Business Days prior to the end of the LIBOR
Period on each Borrowing of LIBOR Advances, the Borrower shall give the Agent a
duly completed Notice of Continuation/Conversion in the form of Exhibit C hereto
to continue such Borrowing as a Borrowing of LIBOR Advances for an additional
LIBOR Period or to convert such Borrowing of LIBOR Advances into a Borrowing of
Base Rate Advances; provided, however, that if the Borrower fails to so notify
the Agent such Borrowing of Revolving Credit Advances shall on the last day of
such LIBOR Period be continued as a Borrowing of LIBOR Advances for an
additional LIBOR Period. Not later than 11:00 A.M. (New York City time) on the
day which is three Business Days prior thereto, the Borrower may give the Agent
a duly completed Notice of Continuation/Conversion in the form of Exhibit C
hereto to convert any Borrowing of Advances that are Base Rate Advances to a
Borrowing of LIBOR Advances, subject in each case to the provisions of Section
2.02. The Borrower shall not be permitted to select LIBOR Periods to be in
effect at any one time which have expiration dates occurring on more than three
(3) different dates.
(b) Disbursement of Revolving Credit Advances. Subject to the conditions of
this Agreement, the Agent shall make the amounts received from the Revolving
Credit Lenders pursuant to Section 2.03(a) hereof available to the Borrower by
transferring the amount thereof on the Date of Borrowing to MiniMed, Inc.,
General Account, City National Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, A/C #001-979388, ABA #▇▇▇▇▇▇▇▇▇, or as otherwise
instructed by the Borrower.
Section 2.04. Repayment of Principal.
(a) Payment on Final Date. To the extent any Revolving Credit Advance has
not been fully repaid by prepayment before the Final Date, the Borrower shall
repay the principal amount of each Revolving Credit Advance on the Final Date.
(b) Mandatory Payment upon Change of Control. To the extent any Revolving
Credit Advance has not been fully repaid by prepayment prior thereto, the
Borrower shall
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repay the principal amount of each Revolving Credit Advance upon the occurrence
of a Change of Control.
Section 2.05. Payment of Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance from the date of such
Revolving Credit Advance to the date on which such Revolving Credit Advance is
paid in full at the applicable rate provided in this Section 2.05. Accrued
interest on each Revolving Credit Advance shall be payable (i) in the case of a
LIBOR Advance, on the last day of the applicable LIBOR Period (and, if such
LIBOR Period is longer than three (3) months, also on the numerically
corresponding day of the third calendar month after the commencement of such
LIBOR Period), (ii) in the case of a Base Rate Advance, on the last Business Day
of each calendar quarter and on the Final Date, commencing with the last
Business Day of the calendar quarter in which the Effective Date shall occur,
and (iii) in the case of a LIBOR Advance or Base Rate Advance, on any day on
which such Advance is repaid or prepaid on the amount so repaid or prepaid.
(a) Base Rate Advances. Each Base Rate Advance shall bear interest at a
fluctuating rate equal to (i) the Base Rate in effect from time to time plus
(ii) the Applicable Margin in effect from time to time for Base Rate Advances.
(b) LIBOR Advances. Each LIBOR Advance shall bear interest at a rate equal
to the sum of (i) LIBOR for such Revolving Credit Advance plus (ii) the
Applicable Margin in effect from time to time for LIBOR Advances.
The Agent shall promptly notify the Borrower and the Revolving Credit Lenders of
its determination of the interest rate applicable to each LIBOR Advance, which
determination shall be conclusive, absent manifest error. Upon the request of
the Borrower, the Agent shall advise the Borrower of the Base Rate from time to
time in effect.
Section 2.06. Optional Prepayment. The Borrower may, upon not less than two
(2) days' irrevocable prior notice to the Agent, prepay any Revolving Credit
Advances in whole or in part at any time without premium or penalty (other than
the amounts payable under Section 2.07 below), provided that (a) any partial
prepayment must be in a minimum principal amount of $250,000 or any greater
amount which is an integral multiple of $50,000, (b) each prepayment must be
accompanied by the payment of accrued interest on the amount prepaid to the date
of prepayment, (c) each prepayment shall be made to Agent, who shall be
responsible for distributing all amounts received from Borrower to each
Revolving Credit Lender ratably in accordance with its Commitment Percentage
actually funded and (d) each prepayment of a Borrowing comprised of LIBOR
Advances must be accompanied by the payment of any additional amount owing under
Section 2.07 hereof. In addition, the Borrower shall have the obligation to
prepay LIBOR Advances as required by Section 3.02 hereof.
Section 2.07. Funding Indemnities. The Borrower will indemnify and hold
harmless each Revolving Credit Lender against, and on demand reimburse each
Revolving
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Credit Lender for, any loss, premium, penalty or expense which such Revolving
Credit Lender may pay or incur (including, without limitation, any loss or
expense incurred by reason of the, depositing or other employment of
funds acquired by such Revolving Credit Lender to fund a LIBOR Advance) as a
result of (i) any prepayment, repayment or conversion of a LIBOR Advance on a
date prior to the last day of the LIBOR Period applicable thereto, (ii) any
failure by the Borrower to borrow any Revolving Credit Advance on a date
specified therefor in a Notice of Borrowing pursuant to Section 2.03 hereof,
except to the extent such failure results from a default by such Revolving
Credit Lender in making the requisite funds available to the Borrower hereunder
or (iii) any failure by the Borrower to prepay any Revolving Credit Advance on
the date specified therefor in a notice of prepayment pursuant to Section 2.06
hereof. Each Revolving Credit Lender shall furnish the Borrower with a
certificate setting forth the basis for determining any additional amount to be
paid to it hereunder, and such certificate shall be conclusive, absent manifest
error, as to the contents thereof.
Section 2.08. Revolving Notes. The Revolving Credit Advances by each
Revolving Credit Lender shall be evidenced by a Revolving Credit Note payable to
the order of such Revolving Credit Lender. The amount and type of each Revolving
Credit Advance, the LIBOR Period applicable thereto and each repayment or
prepayment of principal shall be endorsed by each Revolving Credit Lender on the
schedule annexed to and constituting a part of such Revolving Credit Lender's
Revolving Credit Note, provided that the failure to make or any error in making
any such endorsement on such schedule shall not limit, extinguish or in any way
modify the obligation of the Borrower to repay such Revolving Credit Advance.
Such endorsements shall be prima facie evidence of the aggregate unpaid
principal amount of all Revolving Credit Advances made by each Revolving Credit
Lender. Upon any increase in the Commitment of any Revolving Credit Lender
pursuant to Section 4.05(b) hereof, the Borrower will immediately deliver to
such Revolving Credit Lender a new Revolving Credit Note, having a maximum
principal amount equal to the amount of the Commitment as so increased, in
exchange for its Revolving Credit Note outstanding prior to such increase.
ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 3.01. Increased Costs.
(a) If, after the date of this Agreement, (i) the introduction of, or any
change in, any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority or (ii) compliance by any
Revolving Credit Lender with any request, guideline, policy or directive of any
governmental authority (whether or not having the force of law) shall:
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(A) subject any Revolving Credit Lender to any tax, duty or
other charge or shall change the basis of taxation of payments to
any Revolving Credit Lender of any amount due under this
Agreement or any Revolving Credit Note (except for changes in the
taxes on the overall net income of any Revolving Credit Lender,
including, without limitation, taxes based on capital gains and
minimum taxes);
(B) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets or liabilities of,
deposits with or for the account of, or commitments issued by,
any Revolving Credit Lender (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal
Reserve System); or
(C) impose on any Revolving Credit Lender any other
condition affecting any Commitment, any Revolving Credit Advance
or any Revolving Credit Note;
and the result of any of the foregoing is to increase the cost to any Revolving
Credit Lender of making or maintaining its Commitment or any Revolving Credit
Advance, or to reduce the amount of any sum received or receivable by any
Revolving Credit Lender under this Agreement or under any Revolving Credit Note,
then the Borrower shall from time to time pay to any such Revolving Credit
Lender within five Business Days of its demand therefor such additional amount
or amounts as will compensate it for such increased cost or reduction.
(b) If any Revolving Credit Lender shall have determined in good faith that
the adoption 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, or compliance by any
Revolving Credit Lender (or, without duplication, the bank holding company of
which such Revolving Credit Lender is a Subsidiary) with any request, guideline,
policy or directive regarding capital adequacy (whether or not having the force
of law) of any such governmental authority, has or would have the effect of
reducing the rate of return on such Revolving Credit Lender's or such bank
holding company's capital as a consequence of the Revolving Credit Advances or
its obligations hereunder to a level below that which such Revolving Credit
Lender or such bank holding company could have achieved but for such adoption,
change or compliance (taking into consideration such Revolving Credit Lender's
or such bank holding company's policies with respect to capital adequacy), then
the Borrower shall from time to time pay to such Revolving Credit Lender within
five Business Days of its demand therefor such additional amount or amounts as
will compensate such Revolving Credit Lender or such bank holding company for
such reduction.
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(c) Each Revolving Credit Lender will promptly give the Borrower notice (a
copy of which shall be sent to the Agent and the other Revolving Credit Lenders)
of the occurrence of any event of which the Revolving Credit Lender has
knowledge which will entitle it to compensation pursuant to this Section 3.01,
and will designate a different Lending Office if, in the sole and absolute
opinion of such Revolving Credit Lender, such designation will avoid the need
for, or reduce the amount of, such compensation and will not be otherwise
disadvantageous to it, provided that the failure of such Revolving Credit Lender
so to notify timely the Borrower will not discharge the Borrower of its
obligations under this Section 3.01. Each Revolving Credit Lender shall furnish
the Borrower with a certificate setting forth the basis for determining any
additional amount or amounts to be paid to it hereunder, and such certificate
shall be conclusive, absent manifest error, as to the contents thereof.
(d) Each Revolving Credit Lender shall use its reasonable efforts to reduce
or eliminate any claim for compensation pursuant to this Section 3.01,
including, without limitation, any change in the office of such Revolving Credit
Lender at which its obligations related to this Agreement are maintained if such
change will avoid the need for, or reduce the amount of such compensation and
will not, in the sole judgement of such Revolving Credit Lender, be otherwise
disadvantageous to it.
(e) The Agent shall, at the request of the Borrower, demand that any
Revolving Credit Lender which has sent a certificate to the Borrower claiming
compensation as described in (a) or (b) above assign in accordance with Section
11.01(a) hereof, to one or more assignees designated by the Borrower and
reasonably satisfactory to the Agent, all (but not less than all) of such
Revolving Credit Lender's Commitment, Revolving Credit Advances, participations
and other rights and obligations hereunder. If any such assignee so designated
shall fail to consummate such assignment within 45 days of the demand by the
Agent, the Borrower may, at its sole discretion and so long as no Event of
Default has occurred and is continuing, prepay to the Agent for the account of
the relevant Revolving Credit Lender within ten Business Days after the end of
the 45-day period, all of such Revolving Credit Lender's Revolving Credit
Advances and all interest accrued thereon together with all other amounts owing
to such Revolving Credit Lender under this Agreement and the Related Documents
(including, without limitation, under this Section 3.01), whereupon such
Revolving Credit Lender's Commitment shall terminate and be canceled and such
Revolving Credit Lender shall cease to be a party to this Agreement; provided,
however, that the Borrower may not so prepay the amounts owing to such Revolving
Credit Lender or terminate and cancel such Revolving Credit Lender's Commitment
if, after giving effect thereto, the aggregate principal amount of Outstanding
Revolving Credit Advances would exceed the Total Revolving Credit Commitment.
(f) Notwithstanding anything in this Agreement to the contrary, the provisions
of this Section 3.01 shall survive the termination of this Agreement and of any
Revolving Credit Lender's Commitment.
Section 3.02. Illegality.
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(a) If, after the date of this Agreement, the introduction of, or any
change in, any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority shall, in the good faith
opinion of counsel to any Revolving Credit Lender, make it unlawful for such
Revolving Credit Lender to make or maintain any LIBOR Advance, then such
Revolving Credit Lender may, by notice to the Borrower and the Agent, declare
that such LIBOR Advance shall be converted to a Base Rate Advance. Any LIBOR
Advance which is so declared by a Revolving Credit Lender to be converted to a
Base Rate Advance shall be automatically converted to a Base Rate Advance on the
last day of the LIBOR Period applicable thereto unless such Revolving Credit
Advance is required by law to be sooner converted, in which case such Revolving
Credit Advance shall be converted into a Base Rate Advance on the date required
by law. Any such conversion shall, in any case, be made together with accrued
and unpaid interest on the LIBOR Advance so converted. Each Revolving Credit
Lender will promptly notify the Borrower (a copy of which shall be sent to the
Agent and the other Revolving Credit Lenders) of any event of which such
Revolving Credit Lender has knowledge which will require a conversion of LIBOR
Advances to Base Rate Advances pursuant to this Section 3.02(a) and will
designate a different Lending Office if, in the sole and absolute opinion of
such Revolving Credit Lender, such designation will avoid the need for such
conversion and will not be otherwise disadvantageous to such Revolving Credit
Lender. In the event of any such illegality, no such Revolving Credit Lender
shall be under any obligation to make additional LIBOR Advances unless such
Revolving Credit Lender shall have notified the Borrower and the Agent that such
illegality no longer prevents such Revolving Credit Lender from making or
maintaining LIBOR Advances. If in the good faith opinion of counsel to any such
Revolving Credit Lender (which opinion shall be requested by such Revolving
Credit Lender at the expense of Borrower, following the reasonable request by
Borrower therefor), any such illegality shall no longer impede the making or
maintenance of LIBOR Advances by such Revolving Credit Lender, then provided no
Event of Default shall have occurred and be continuing, such Revolving Credit
Lender shall notify the Borrower and the Agent that LIBOR Advances are again
available from such Revolving Credit Lender.
(b) If the Borrower is required under Section 3.02(a) above to convert any
LIBOR Advance on the last day of the LIBOR Period applicable thereto or to
convert any LIBOR Advance prior to the last day of the LIBOR Period applicable
thereto, then such Base Rate Advance shall be considered to be part of the same
Borrowing as the LIBOR Advance that was so converted, and the Borrower shall
repay the principal of and interest on such Base Rate Advance at the same time
or times as required for the other LIBOR Advances comprising such Borrowing.
Section 3.03. Unavailability of LIBOR Advances. If, with respect to any
Borrowing consisting of LIBOR Advances requested by the Borrower, the Agent or
the Majority Revolving Credit Lenders shall have determined in good faith (which
determination shall, save for manifest error, be conclusive and binding upon the
Borrower) that (a) deposits of sufficient amount and maturity for funding such
Borrowing are not
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available to the Revolving Credit Lenders in the relevant market in the ordinary
course of business or (b) by reason of circumstances affecting the relevant
market, adequate and fair means do not exist for ascertaining the rate of
interest to be applicable to such Borrowing, then (i) the Agent or the Majority
Revolving Credit Lenders, as the case may be, shall promptly give notice thereof
to the Borrower, (ii) the notice requesting such Borrowing shall, unless the
Borrower otherwise notifies the Agent, automatically be amended to request Base
Rate Advances instead of LIBOR Advances, and (iii) no Revolving Credit Lender
shall be under any obligation to make additional LIBOR Advances to the Borrower,
unless and until the Agent shall have notified the Borrower that such LIBOR
Advances are again available hereunder.
Section 3.04. Replacement of Revolving Credit Lender. If (i) as a result of
the requirements of Section 3.01 hereof or Section 13.2 of the Participation
Agreement the Borrower shall be required to pay any Revolving Credit Lender any
additional costs or taxes referred to herein or therein, which costs or taxes
are not imposed by the other Revolving Credit Lenders, and the Borrower deems
such additional amounts to be material, or (ii) any Revolving Credit Lender
shall fail to make available to the Agent such Revolving Credit Lender's ratable
portion of any Borrowing, then, in each such case, the Borrower shall be
entitled to designate a replacement to such Revolving Credit Lender reasonably
acceptable to the Agent, and such Revolving Credit Lender shall execute and
deliver to such replacement Revolving Credit Lender an assignment agreement
between such Revolving Credit Lender and such replacement Revolving Credit
Lender substantially in the form of Exhibit D hereto with respect to such
Revolving Credit Lenders' entire interest under this Agreement and such
Revolving Credit Lender's Notes and the other Related Documents, and upon the
execution by such replacement Revolving Credit Lender of such assignment
agreement in compliance with the requirements of Section 11.01 hereof, such
replacement Revolving Credit Lender shall succeed to all of such Revolving
Credit Lender's rights and duties under this Agreement and the other Related
Documents. If the Borrower exercises its election under this Section 3.04 to
replace a Revolving Credit Lender, the Borrower shall pay the assignment fee
payable to the Agent under Section 11.01 hereof.
Section 3.05. Notice of Certain Obligations; Survival. Notwithstanding
anything in this Agreement to the contrary, to the extent that notice is given
by any Revolving Credit Lender to the Borrower of any obligation owing to such
Revolving Credit Lender under Section 3.01 hereof or Section 13.2 of the
Participation Agreement, more than one (1) year after the occurrence of the
event giving rise to such obligation, such Revolving Credit Lender shall not be
entitled to compensation under Section 3.01 hereof or Section 13.2 of the
Participation Agreement, as the case may be, for any such amounts incurred or
accruing prior to one (1) year prior to the giving of such notice to the
Borrower. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Section 3.01 hereof and Section 13.2 of the Participation Agreement, subject to
the limitations set forth above in this Section 3.05, shall survive the payment
in full of principal, interest and other amounts
15
payable hereunder and under the Revolving Credit Notes and the other Related
Documents.
ARTICLE IV
FEES; PAYMENTS; REDUCTION AND
INCREASE OF COMMITMENTS
Section 4.01. Fees.
(a) Agent's Fee. The Borrower shall pay to the Agent for its own account
the fees set forth in the letter agreement, dated the date hereof, between the
Borrower and the Agent (the "Revolving Credit Fee Agreement").
(b) Unused Fees. The Borrower agrees to pay to the Agent for the account of
each Revolving Credit Lender, a nonrefundable fee for the period from the
Effective Date to and including the Final Date, equal to such Revolving Credit
Lender's Commitment Percentage of 1/2 of 1% (0.50%) per annum on the difference
between (A) the aggregate amount of the Commitment of such Revolving Credit
Lender and (B) the average daily aggregate Outstanding Revolving Credit Advances
of such Revolving Credit Lender. The fee described in this Section 4.01(b) shall
be calculated on a daily basis and shall be payable by the Borrower in arrears
on the last Business Day of each calendar quarter and on the Final Date,
commencing with the last Business Day of the calendar quarter in which the
Effective Date shall occur.
Section 4.02. Manner of Payments. Each payment required to be made by the
Borrower under this Agreement or the Revolving Credit Fee Agreement shall be
made by transferring the amount thereof in Dollars to the Agent not later than
2:00 P.M. (New York time) on the date on which such payment shall become due.
Each such payment shall be made without set-off or counterclaim provided that no
payment by the Borrower to the Agent pursuant to this Section 4.02 shall be
deemed a waiver of any rights the Borrower may have against any Revolving Credit
Lender or the Agent. Subject to Section 11.11 hereof, each such payment shall
also be made free and clear of, and without deduction for, any Impositions
except as required by law and, in the event that any deduction for any taxes
(other than taxes on overall net income and franchise taxes), duties, levies,
imposts or other charges shall be so required, the Borrower shall pay such
additional amounts as may be necessary so that the net amount of the payment
hereunder, after reduction by the amount of such Impositions is equal to the
amount that the Borrower was obligated to pay absent the requirement to deduct
such Impositions. The Agent shall have the right to determine the order in which
amounts paid by the Borrower are applied to the amounts then due and payable
hereunder, regardless of any application designated by the Borrower. Any payment
received after 2:00 P.M. (New York time) on any Business Day shall be deemed to
have been received on the next following Business Day. Each payment received by
the Agent for the account of the Revolving Credit
16
Lenders or any of them shall be promptly distributed by the Agent to the
Revolving Credit Lenders in accordance with their entitlements thereto.
Section 4.03. Extension of Payments. If any payment under this Agreement or
the Revolving Credit Fee Agreement shall become due on a day which is not a
Business Day, the due date thereof shall be extended to the next following day
which is a Business Day, and such extension shall be taken into account in
computing the amount of any interest or fees then due and payable hereunder.
Section 4.04. Computation of Interest and Fees. Interest on LIBOR Advances
and all fees payable under this Agreement and the Revolving Credit Fee Agreement
shall be computed on the basis of a year of 360 days and the actual number of
days elapsed. Interest on Base Rate Advances shall be computed on the basis of a
year of 365 or 366 days, as applicable, and the actual number of days elapsed.
Section 4.05. Reduction, Increase and Termination of the Commitments.
(a) The Borrower may, upon not less than three Business Days' irrevocable
prior notice to the Agent, reduce all or any portion of the unused Commitments,
provided that (i) any partial reduction of the unused Commitments must be in an
amount of $100,000 or any greater amount which is an integral multiple thereof,
(ii) each such reduction of the Commitments shall be applied to the Commitments
of the Revolving Credit Lenders pro rata to the respective amounts thereof, and
(iii) no such reduction shall result in the Total Revolving Credit Commitment
being less than the aggregate principal amount of Outstanding Revolving Credit
Advances. The Agent shall give prompt notice of any such reduction to the
Revolving Credit Lenders.
(b) The Commitments may be increased from time to time to such amount and
upon such terms as the Borrower and all of the Revolving Credit Lenders may
agree. Such consent may be given or withheld in the sole and absolute discretion
of each such party. Nothing contained herein shall be deemed to obligate any
party to agree to any increase proposed by any other party. Upon any such
increase, the Borrower will deliver a new Revolving Credit Note to each
Revolving Credit Lender whose Commitment has increased in exchange for the
Revolving Credit Note of such Revolving Credit Lender outstanding prior to such
increase.
(c) The Commitments shall be terminated upon the earlier of (i) the
occurrence of a Change of Control, and (ii) the Final Date.
Section 4.06. Intentionally Omitted.
Section 4.07. Assumed Payments. Unless the Agent shall have been notified
by a Revolving Credit Lender or the Borrower prior to 10:00 A.M. (New York time)
on the date on which such Revolving Credit Lender or the Borrower is scheduled
to make payment to the Agent of (in the case of a Revolving Credit Lender) the
proceeds of an
17
Revolving Credit Advance to be made by it hereunder or (in the case of the
Borrower) a payment to the Agent for the account of one or more of the Revolving
Credit Lenders hereunder (such payment being herein called the "Required
Payment") that it does not intend to make the Required Payment to the Agent, the
Agent may assume that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date, and, if such Revolving
Credit Lender or the Borrower (as the case may be) has not in fact made the
Required Payment to the Agent, the recipient(s) of such payment shall, on
demand, repay to the Agent the amount so made available. In addition, the party
that failed to make the Required Payment shall, on demand, pay interest to the
Agent for its own account in respect of each day during the period commencing on
the date such amount was so made available by the Agent until the date the Agent
recovers such amount at the Base Rate (in the case of any Required Payment of a
Revolving Credit Lender) and the Base Rate plus the Applicable Margin in effect
from time to time for Base Rate Advances (in the case of a Required Payment of
the Borrower). The obligation to pay interest to the Agent as provided in the
immediately preceding sentence shall, in the case of the Borrower, be in
addition to any obligation to pay default interest in respect of the Required
Payment as provided in Section 9.05 hereof.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01. Initial Conditions. As a condition precedent to the
occurrence of the initial Credit Event hereunder, the Agent and each Revolving
Credit Lender shall have received the following items in form and substance
satisfactory to it:
(a) Related Documents. A counterpart of this Agreement and of each of the
Related Documents, each duly executed by the Borrower and each of the other
respective parties thereto (except that counterpart number 1 of the Master Lease
shall be delivered to the Collateral Agent and counterparts of the Revolving
Credit Fee Agreement shall be delivered only to the Agent);
(b) Borrower. (i) A certificate from the Secretary of State of Delaware
certifying that the Borrower is in good standing in such state and certificates
from the Secretary of State of California and the Secretary of State of Florida
certifying that the Borrower is authorized to do business in such states; (ii) a
certificate from the Secretary or an Assistant Secretary of the Borrower
certifying (A) as to the incumbency and signature of the officer of the Borrower
authorized to execute and deliver this Agreement and the Related Documents to
which the Borrower is a party and any certificate to be furnished pursuant
thereto, (B) that attached thereto are true and complete copies of the charter
and by-laws of the Borrower and (C) that attached thereto is a true and complete
copy of the resolutions of the Board of Directors of the Borrower authorizing
the execution, delivery and performance of this Agreement and the Related
Documents to which the Borrower is
18
a party and the transactions contemplated thereby, together with a certification
by another officer of the Borrower as to the incumbency and signature of such
Secretary or Assistant Secretary, and (iii) a certificate from an appropriate
officer of the Borrower certifying that, to the best knowledge of such officer,
the representations and warranties contained herein are Accurate and Complete
and that the Borrower is in compliance with each of the covenants set forth in
Articles VII and VIII of this Agreement;
(c) Subsidiary Guarantors. (i) A certificate from the Secretary of State of
the state of incorporation of each of the Subsidiary Guarantors certifying that
such Subsidiary Guarantor is in good standing in such state and certificates
from the Secretary of State of each state in which a Subsidiary Guarantor is
required to be in good standing, certifying that such Subsidiary Guarantor is
authorized to do business in such state; and (ii) a certificate from the
Secretary or an Assistant Secretary of each Subsidiary Guarantor certifying (A)
as to the incumbency and signature of the officer of such Subsidiary Guarantor
authorized to execute and deliver the Related Documents to which such Subsidiary
Guarantor is a party and any certificate to be furnished thereto, (B) that
attached thereto are true and complete of the charter and by-laws of such
Subsidiary Guarantor and (C) that attached thereto is a true and complete copy
of the Resolutions of the Board of Directors of such Subsidiary Guarantor
authorizing the execution, delivery and performance of the Related Documents to
which such Subsidiary Guarantor is a party and the transactions contemplated
thereby, together with a certification by another officer of such Subsidiary
Guarantor as to the incumbency and signature of such Secretary or Assistant
Secretary;
(d) Legal Opinions. Legal opinions, in form and substance acceptable to the
Agent, addressed to the Collateral Agent, the Agent and the Revolving Credit
Lenders from (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, California and New York counsel
for the Borrower and each of the Subsidiary Guarantors (ii) ▇▇▇▇ ▇▇▇▇▇▇, Esq.,
General Counsel to the Borrower and its Subsidiaries, and (iii) special Florida
counsel to the Collateral Agent, the Agent and the Revolving Credit Lenders;
(e) Filings. Evidence that (i) all filings necessary to perfect the
Collateral Agent's security interest in the Collateral in existence on the date
hereof have been made and (ii) the Lien perfected by such filings has priority
over any other Liens except as otherwise permitted under Section 8.03 hereof;
(f) Conditions in Participation Agreement. The conditions set forth in
Section 5.3 of the Participation Agreement shall have been satisfied.
(g) Supporting Documents. Such other documents, certificates, information,
or opinions as the Agent or any Revolving Credit Lender may reasonably request.
19
Section 5.02. Conditions to each Credit Event. As a condition precedent to
the occurrence of each Credit Event hereunder, including the initial Credit
Event, the following conditions shall be satisfied on the date of such Credit
Event:
(a) Representations of Borrower True. The representations and warranties
made by the Borrower under Article VI hereof and in any other Related Document
to which the Borrower is a party shall be Accurate and Complete with the same
force and effect as though made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier date;
(b) Representations of Lessee True. The representations and warranties made
by the Lessee in the Master Lease and in any other Related Document to which the
Lessee is a party shall be Accurate and Complete with the same force and effect
as though made on and as of such date;
(c) No Event of Default. No Event of Default shall have occurred and be
continuing, or would result from the occurrence of such Credit Event; and
(d) No Potential Default. No Potential Default shall have occurred and be
continuing, or would result from the occurrence of such Credit Event.
On the date of each Credit Event, the Borrower shall be deemed to have
represented that all of the conditions to the occurrence of such Credit Event
have been satisfied.
20
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and Revolving Credit
Lenders that:
Section 6.01. Corporate Existence. The Borrower (i) is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) has the corporate power, authority and legal right to own or operate its
properties or to lease the properties it operates and to conduct the business in
which it is currently engaged, and (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except where such failure to qualify would not have
a Material Adverse Effect.
Section 6.02. Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power, authority and legal right to make, deliver and
perform this Agreement and the Revolving Credit Notes, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement and the Revolving Credit Notes. No consent of any other Person
(including, without limitation, stockholders and creditors of the Borrower), and
no authorization of, notice to, or other act by any governmental authority,
agency or instrumentality is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement and the
Revolving Credit Notes. This Agreement and the Revolving Credit Notes have been
duly executed and delivered on behalf of the Borrower, and this Agreement and
the Revolving Credit Notes constitute legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their terms,
except as such enforceability may be limited by bankruptcy and other similar
laws affecting the rights of creditors generally or by general principles of
equity.
Section 6.03. No Legal Bar. The execution, delivery and performance by the
Borrower of this Agreement and the Revolving Credit Notes will not violate any
provision of any existing Law or regulation applicable to the Borrower or of any
award, order or decree applicable to the Borrower of any court, arbitrator or
governmental authority, or of the Certificate of Incorporation or By-Laws of the
Borrower, or of any security issued by the Borrower or of any mortgage,
indenture, lease, contract or other agreement or undertaking to which the
Borrower is a party or by which the Borrower or any of its properties or assets
may be bound.
Section 6.04. Litigation. Except as disclosed in Schedule 6.04, there is no
action, suit, proceeding or investigation at law or in equity by or before any
court, governmental body, agency, commission or other tribunal now pending or,
to the best knowledge of the Borrower, threatened against or affecting the
Borrower or any property
21
or rights of the Borrower which questions the enforceability of this Agreement
and the Revolving Credit Notes or which as of the date hereof could reasonably
be expected to exceed $1,000,000, or after the date hereof could reasonably be
expected to have a Material Adverse Effect.
Section 6.05. ERISA. Except as disclosed on Schedule 6.05:
(a) neither the Borrower, its Subsidiaries nor any ERISA Affiliate
maintains or contributes to, or has during the past two years maintained or
contributed to, any Plan that is subject to Title IV of ERISA;
(b) each Plan maintained by the Borrower or any of its Subsidiaries has at
all times been maintained, by its terms and in operation, in compliance with all
applicable laws, and neither the Borrower nor any of its Subsidiaries is subject
to any tax or penalty with respect to any Plan of the Borrower, any of its
Subsidiaries or any ERISA Affiliate, including, without limitation, any tax or
penalty under Title I or Title IV of ERISA or under Chapter 43 of the Internal
Revenue Code, or any tax or penalty arising from a loss of deduction under
Sections 162, 404 or 419 of the Internal Revenue Code;
(c) neither the Borrower nor any of its Subsidiaries is subject to any
liabilities (including withdrawal liabilities) with respect to any Plans of the
Borrower, any of its Subsidiaries or any ERISA Affiliate, including, without
limitation, any liabilities arising under Titles I or IV of ERISA, other than
obligations to fund benefits under an ongoing Plan and to pay current
contributions, expenses and premiums with respect to such Plans;
(d) the Borrower and its Subsidiaries and, with respect to any Plan which
is subject to Title IV of ERISA, each ERISA Affiliate have made full and timely
payment of all amounts (A) required to be contributed under the terms of each
Plan and applicable law, and (B) required to be paid as expenses (including PBGC
or other premiums) of each Plan, and no Plan subject to Title IV of ERISA has an
"amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA), determined as if such Plan terminated on any date on which this
representation or warranty is made or deemed to be made; and
(e) the Borrower and its Subsidiaries are subject to no liabilities with
respect to post-retirement medical benefits.
Section 6.06. Subsidiary Guarantors. The Borrower owns and holds,
beneficially and of record all of the issued and outstanding shares of capital
stock of each of the Subsidiary Guarantors. All such shares have been validly
issued, are fully paid and non-assessable, and are free and clear of any liens
or encumbrances.
Section 6.07. Taxes. The Borrower and each of its Subsidiaries has filed
all federal and other income tax returns and reports required by law to have
been filed by it
22
and has timely paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
Section 6.08. Financial Statements. The Borrower has furnished to the Agent
copies of its Annual Report on Form 10-K for the year ended January 1, 1999 and
copies of its Quarterly Report on Form 10-Q for the quarters ended April 3,
1998, July 3, 1998 and October 2, 1998. The financial statements contained in
such documents fairly present the financial position, results of operations and
consolidated statements of cash flows of the Borrower and its Subsidiaries as of
the dates and for the periods indicated therein and have been prepared in
accordance with GAAP applied on a consistent basis. Since the date of such
financial statements, there has been no material adverse change in the financial
condition or business of the Borrower and its Subsidiaries which could, when
taken as a whole, have a Material Adverse Effect.
Section 6.09. Compliance with Laws. The Borrower and each of its
Subsidiaries is in compliance with all applicable Laws (including, without
limitation, all Environmental Requirements and all applicable laws, rules,
regulations and orders relating to building and land use), except those the
non-compliance with which could not, either singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 6.10. No Default. No Event of Default has occurred and no condition
exists which, after notice and expiration of any cure period, would constitute,
an Event of Default under this Agreement.
Section 6.11. Labor Controversies. There are no organized labor
controversies pending or, to the best knowledge of the Borrower, threatened,
relating to the Borrower or any of its Subsidiaries. There is (i) no unfair
labor practice complaint pending against the Borrower or any of its Subsidiaries
or, to the best knowledge of the Borrower, threatened against any of them,
before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Borrower or any of its Subsidiaries or, to the best
knowledge of the Borrower, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage is pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries, and (iii) no union representation question
existing with respect to the employees of the Borrower or any of its
Subsidiaries. The Borrower and each of its Subsidiaries is in compliance in all
material respects with all collective bargaining agreements to which it is
subject.
Section 6.12. Ownership of Properties; Collateral.
(a) Each of the Borrower and its Subsidiaries has good title to all of its
material properties and assets of any nature whatsoever, free and clear of all
Liens except as
23
permitted pursuant to Section 8.03. All Liens attaching to property or assets of
the Borrower or any of its Subsidiaries as of the date hereof are identified in
Schedule 6.12.
(b) The provisions of the Security Agreement are effective to create in
favor of the Collateral Agent for the benefit of the Collateral Agent and the
Secured Parties (as such term is defined therein), a legal, valid and
enforceable security interest in all right, title and interest of the Borrower
and each of its Subsidiaries party thereto in the Collateral described therein,
and, upon the filing of the Financing Statements, the Security Agreement will
create a fully perfected first priority security interest in all right, title
and interest of the Borrower and each of its Subsidiaries party thereto in all
of the Collateral, subject to no other Liens other than Liens permitted by
Section 8.03.
Section 6.13. Intellectual Property. Except as disclosed on Schedule 6.13,
the Borrower owns, beneficially and of record, or licenses pursuant to valid and
binding licenses, all such Intellectual Property, and has obtained assignments
of all licenses and other rights, as the Borrower considers necessary for or as
are otherwise material to the conduct of the business of the Borrower as now
conducted without any infringement upon rights of other Persons.
Section 6.14. Accuracy of Information. All factual information heretofore
or contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries in writing to the Agent and the Revolving Credit Lenders for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is true and accurate in every material respect on the date as of which
such information is dated or certified and as of the date of execution and
delivery of this Agreement, and such information is not incomplete by omitting
to state any material fact necessary to make such information not misleading.
Neither this Agreement nor any document or statement furnished to the Agent and
the Revolving Credit Lenders by or on behalf of the Borrower or any of its
Subsidiaries contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements contained herein or
therein not materially misleading.
Section 6.15. Insurance. All policies of insurance in effect of any kind or
nature owned by or issued to the Borrower or any of its Subsidiaries, including
policies of life, fire, theft, product liability, public liability, property
damage, other casualty, employee fidelity, workers' compensation, property and
liability insurance, (a) as of the Effective Date are listed in Schedule 6.15,
(b) are, together with all policies of employee health and welfare and title
insurance, in full force and effect, (c) comply in all respects with the
applicable requirements set forth herein and in the Related Documents, and (d)
are of a nature and provide such coverage as is customarily carried by companies
engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower and its Subsidiaries operate their respective
businesses.
Section 6.16. Condition of Property. All of the assets and properties owned
by, leased to or used by the Borrower or any of its Subsidiaries and material to
the
24
conduct of the business of the Borrower and its Subsidiaries, taken as a whole,
are in good operating condition and repair, ordinary wear and tear excepted, and
are free and clear of known defects except for defects which do not
substantially interfere with the use thereof in the conduct of normal
operations.
Section 6.17. Trade Relations. As of the Effective Date, there exists no
actual or, to the best of Borrower's knowledge, threatened termination,
cancellation or limitation of, or any modification or change in, the business
relationship of the Borrower or any of its Subsidiaries with any material
customer or group of customers of the Borrower or any of its Subsidiaries or any
material supplier of goods or services to the Borrower which could reasonably be
expected to have a Material Adverse Effect.
Section 6.18. Indebtedness. Schedule 6.18 specifies all Indebtedness of the
Borrower and its Subsidiaries as of the Effective Date.
Section 6.19. Consents. Except as disclosed in Schedule 6.19, each of the
Borrower and its Subsidiaries has all material permits and governmental consents
and approvals necessary under all applicable Laws or, in the reasonable business
judgment of the Borrower, deemed advisable under all applicable Laws, in
connection with the transactions contemplated hereby and the ongoing business
and operations of the Borrower and its Subsidiaries.
Section 6.20. No Burdensome Agreement. Neither the Borrower nor any of its
Subsidiaries is a party to or has assumed any indenture, loan or credit
agreement or any lease or other agreement or instrument or is subject to any
charter or other corporate restriction that could reasonably be expected to have
a Material Adverse Effect.
Section 6.21. Year 2000 Compliance. The software and the hardware operated
by the Borrower and the Subsidiaries are capable of providing or being adapted
to provide the ability to process dates or store data within the twenty-first
century or between the twentieth and twenty-first century, or otherwise operate
without error with respect to twenty-first century dates in substantially the
same manner and with the same functionality as such software records, stores
processes and presents such data as of the date hereof ("Y2K Compliance"). All
adaptations and replacements of software and hardware required to achieve full
Y2K Compliance will be completed on or before September 30, 1999, except where a
failure to achieve full Y2K Compliance will not have a Materially Adverse
Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that until the Obligations and all
obligations of the Borrower under this Agreement have been paid or discharged in
full:
25
Section 7.01. Compliance with Laws. The Borrower shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
applicable Laws (including Environmental Requirements).
Section 7.02. Payment of Taxes. The Borrower shall, and shall cause each
Subsidiary to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and (ii) all lawful claims which, if unpaid, might become a
Lien upon its property; provided, however, that neither the Borrower nor any
Subsidiary shall be required to pay or discharge any such tax, assessment,
charge or claim which is being diligently contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained,
including, without limitation, a Permitted Contest.
Section 7.03. Maintenance of Insurance. The Borrower shall (i) maintain or
cause to be maintained, with financially sound and reputable independent
insurers, insurance with respect to its or any of its Subsidiaries' business or
material properties, as the case may be, against loss or damage of the kinds
customarily insured against by entities engaged in the same or similarly
situated business, and of such types and amounts (subject to customary
deductibles and retentions) as are customarily carried by companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Borrower and its Subsidiaries operate their respective businesses,
including, without limitation, such insurance as is required under Section 10 of
the Master Lease and such insurances as is described on Schedule 6.15, and (ii)
furnish to the Agent following written request therefor, a certificate of an
authorized officer setting forth the nature and extent of all insurance
maintained by the Borrower and its Subsidiaries in accordance with this section.
Each such policy shall be issued by an insurance company with a Best's rating of
"A" or better and a financial size category of not less than VII in the case of
Medmarc or a financial size category of not less than VIII in the case of all
other such insurance companies, shall be in effect on the Effective Date and the
premiums for each such policy shall be paid as such premiums shall come due. All
policies of casualty insurance shall contain an endorsement, in the form
submitted to the Borrower by the Collateral Agent, showing loss payable to the
Collateral Agent. All policies of liability insurance, including, without
limitation, all primary and umbrella liability policies, shall name the
Collateral Agent, as additional insured. The Borrower shall retain all the
incidents of ownership of the insurance maintained pursuant to this Section
7.13, but shall not borrow upon or otherwise impair its right to receive the
proceeds of such insurance.
Section 7.04. Preservation of Corporate Existence, Etc. The Borrower shall
preserve and maintain, and shall cause each Subsidiary to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises, except
as permitted under Section 8.10 below.
26
Section 7.05. Delivery of Financial Statements, Compliance Certificate and
Reporting Requirements. The Borrower shall furnish to the Agent on behalf of the
Revolving Credit Lenders, each of following:
(a) as soon as available, but in any event within 90 days after the end of
each Fiscal Year of the Borrower, a copy of the audited consolidated balance
sheet of the Borrower as at the end of such Fiscal Year and the related audited
consolidated statements of income, stockholders' investment and cash flows for
such year, in each case which shall be (A) in reasonable detail and set forth in
comparative form the figures as of the end of and for the previous year, (B)
certified without qualification by a firm of independent accountants of
nationally recognized standing, and (C) complete and correct in all material
respects and prepared in accordance with GAAP; (b) as soon as available, but in
any event not later than 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, a copy of the unaudited
consolidated balance sheet of the Borrower as at the end of each such Fiscal
Quarter and the related unaudited consolidated statements of income,
stockholders' investment and cash flows of the Borrower for such quarter and the
portion of the fiscal year through such date, in each case which shall be (A) in
reasonable detail and set forth in comparative form the figures as of the end of
and for the corresponding period of the previous Fiscal Year, (B) certified as
to fairness of presentation by the Chief Financial Officer, the Vice President
of Finance or the Controller of the Borrower, and (C) complete and correct in
all material respects (subject to normal year-end audit adjustments) and
prepared in accordance with GAAP (except that such financial statements need not
contain footnotes and shall be prepared substantially in accordance with GAAP);
(c) concurrently with the delivery of the financial statements referred to
in clauses (i) and (ii) above, a certificate signed by the Chief Financial
Officer, the Vice President of Finance or the Controller of the Borrower setting
forth computations in reasonable detail demonstrating compliance with the
financial covenants set forth in Section 8.20 hereof, together with a statement
that, to the best of such officer's knowledge, the Borrower during the relevant
period has observed and performed all of its covenants and other agreements
hereunder, and satisfied every condition contained herein to be observed,
performed or satisfied by it, and that such officer has obtained no knowledge of
any Potential Default or Event of Default hereunder except as described in such
certificate (any such description to be in reasonable detail and to include a
description of any action to be taken with respect to such default);
(d) as soon as possible and in any event within five days after the
occurrence of each Potential Default and each Event of Default continuing on the
date of such statement, a statement of the Chief Financial Officer, the Vice
President of Finance, the Controller or other responsible officer of the
Borrower setting forth details of such Potential Default and Event of Default
and the action which the Borrower has taken and proposes to take with respect
thereto;
27
(e) promptly and in any event within 30 days after the filing thereof with
the Internal Revenue Service, copies of each Schedule B (Actuarial Information)
to the annual report (Form 5500 Series) with respect to each Plan;
(f) promptly and in any event within 10 days after the Borrower or any
ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a
statement of the Chief Financial Officer, the Vice President of Finance, the
Controller or other responsible officer of the Borrower describing such ERISA
Event and the action, if any, which the Borrower or such ERISA Affiliate
proposes to take with respect thereto;
(g) promptly and in any event within two Business Days after receipt
thereof by the Borrower or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(h) promptly and in any event within five Business Days after receipt
thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability by a
Multiemployer Plan, (B) the reorganization or termination, within the meaning of
Title IV of ERISA, of any Multiemployer Plan, or (C) the amount of liability
incurred, or which may be incurred, by the Borrower or any ERISA Affiliate in
connection with any event described in clause (A) or (B) above;
(i) promptly after the commencement thereof, notice of all actions, suits
and proceedings before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, affecting the Borrower
or any Subsidiary which could reasonably be expected to have a Material Adverse
Effect;
(j) within ninety (90) days after the end of each Fiscal Year of the
Borrower, a business plan of the Borrower and its Subsidiaries, in form, scope
and detail reasonably satisfactory to the Agent and the Revolving Credit Lenders
for the twelve (12) months following the end of such Fiscal Year, including
consolidated and consolidating operating budgets prepared on a quarterly basis
for such Fiscal Year, which budgets shall include estimated Consolidated Capital
Expenditures and Research and Development Expenses and other costs to be
incurred by the Borrower and its Subsidiaries, on a consolidated and
consolidating basis, during such Fiscal Year, in each case, with accompanying
detail, together with a report containing management's discussion and analysis
of the projected financial condition and results of operations of the Borrower
and its Subsidiaries;
(k) within ninety (90) days after the end of each Fiscal Year of the
Borrower, projected balance sheets, statements of operations and changes in cash
flows of the Borrower and its Subsidiaries for such Fiscal Year and each of the
Fiscal Years of the Borrower hereafter commencing prior to May 18, 2004 prepared
on a quarterly basis for
28
the upcoming Fiscal Year and on an annual basis for all Fiscal Years thereafter,
together with supporting details and a statement of underlying assumptions;
(l) promptly after approval by the Borrower's Board of Directors, any
updates or revisions to any business plan described in the preceding clause (x)
of this Section 7.05;
(m) promptly upon the sending or filing thereof, copies of all reports that
the Borrower or any of its Subsidiaries sends to its security holders generally,
and copies of all reports and registration statements that the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(n) the condemnation or threat of condemnation with respect to any property
used or necessary in the conduct of the business of the Borrower or any of its
Subsidiaries (including, without limitation, the Property) which condemnation
could reasonably have a Material Adverse Effect; and
(o) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as the Agent
or any Revolving Credit Lender may from time to time reasonably request.
Section 7.06. Keeping of Books and Records. The Borrower shall keep, and
shall cause each Subsidiary that is not an Inactive Subsidiary to keep, proper
books of record and accounts, in which full, true and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with GAAP consistently applied.
Section 7.07. Visitation Rights. The Borrower shall and shall cause each
Domestic Subsidiary, upon at least two (2) Business Days' notice, to permit the
Agent, on behalf of the Revolving Credit Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and any Subsidiary with any of their officers or directors and with
their independent certified public accountants. The Borrower will pay all
reasonable costs and expenses incurred by the Agent or any Revolving Credit
Lender or their respective agents or representatives in connection with the
exercise of rights under this Section 7.07 during the existence of an Event of
Default.
Section 7.08. Foreign Qualification. The Borrower will, and will cause each
Subsidiary to, cause to be done at all times all things necessary to be duly
qualified to do business and be in good standing as a foreign corporation in
each jurisdiction where the failure to so qualify could have a Material Adverse
Effect.
Section 7.09. Maintenance of Properties, Etc. The Borrower will maintain
and preserve, and cause each of its Subsidiaries to maintain and preserve, all
of its
29
properties (real and personal and including all intangible assets), except
obsolete properties which are not used or necessary in the conduct of its
business, in good working order and condition, ordinary wear and tear excepted.
Section 7.10. Maintenance of Licenses and Permits. The Borrower will
maintain and preserve, and will cause each of its Subsidiaries to maintain and
preserve, all material Intellectual Property, rights, permits, licenses,
approvals and privileges issued under or arising under any applicable Law.
Section 7.11. Real Estate. If the Borrower or any of its Domestic
Subsidiaries shall acquire a fee or leasehold interest in real estate which the
Agent determines to be material to the Borrower or such Subsidiary, then the
Borrower or such Subsidiary, as the case may be, will execute a first priority
mortgage in favor of the Collateral Agent, in form and substance reasonably
satisfactory to the Collateral Agent, and shall deliver to the Collateral Agent
such title insurance policies, surveys and landlords' estoppel agreements with
respect thereto as the Collateral Agent shall reasonably request; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required
to execute any such mortgage or deliver any other items required under this
Section 7.11 (i) in respect of any such real estate purchased with the proceeds
of purchase money Indebtedness permitted to be incurred under Section 8.02
hereof or (ii) in respect of real estate purchased or leased by the Borrower or
any of its Subsidiaries (other than real estate described in clause (i)) if the
aggregate consideration paid or payable by the Borrower or such Subsidiary,
together with the aggregate consideration paid or payable by the Borrower and
its Subsidiaries in respect of all other real estate that is not subject to a
first-priority mortgage in favor of the Collateral Agent (other than real estate
described in clause (i)), does not exceed $5,000,000.
Section 7.12. Employee Plans. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with the provisions of ERISA and
the Code which are applicable to any Plan.
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that until the Obligations and all
obligations of the Borrower under this Agreement have been paid or discharged in
full:
Section 8.01. Business Activities. The Borrower will not, and will not
permit any Subsidiary to, engage in any business activity, except those in which
the Borrower is engaged on the Effective Date, such activities as may be
incidental or related thereto and any line of business that is similar or
complimentary to the business of the Borrower and its Subsidiaries as of the
Effective Date.
30
Section 8.02. Limitation on Indebtedness. The Borrower shall not create,
assume, incur, suffer to exist or otherwise become or remain liable in respect
of, or permit any of its Subsidiaries to create, assume, incur, suffer to exist
or otherwise become or remain liable in respect of, any Indebtedness except (i)
Indebtedness arising under the Related Documents, (ii) Indebtedness existing on
the date hereof and reflected in the financial statements delivered pursuant to
Section 7.05 hereof, and any extension, renewal or replacement of such
Indebtedness provided, that the principal amount thereof upon any such
extension, renewal or replacement shall not exceed the principal amount of
Indebtedness at the time of such extension, renewal or replacement or the terms
thereof, (iii) Indebtedness of a Person existing at the time such Person becomes
a Subsidiary of the Borrower and not incurred in connection with or in
contemplation of such Person becoming a Subsidiary of the Borrower, provided
that all such Indebtedness permitted under this clause (iii) does not exceed
$3,000,000 at any one time outstanding, and any extension, renewal or
replacement of such Indebtedness provided, that the principal amount thereof
upon any such extension, renewal or replacement shall not exceed the principal
amount of Indebtedness at the time of such extension, renewal or replacement,
(iv) Indebtedness of the Borrower or any of its Subsidiaries secured by a Lien
permitted under Section 8.03(d) or Capitalized Lease Obligations, provided that
the principal amount thereof (and the amount of such Capitalized Lease
Obligations attributable to principal) does not exceed in the aggregate
$3,000,000 at any one time outstanding, (iv) Indebtedness which, together with
all other Indebtedness permitted under clauses (ii), (iii) and (iv) of this
Section 8.02, does not exceed $5,000,000 at any one time outstanding, and (v)
Indebtedness that is subordinated to the obligations of the Credit Parties under
the Related Documents on terms and conditions satisfactory to the Majority
Secured Parties in their commercially reasonable discretion provided that no
Potential Default or Event of Default shall have occurred and be continuing or
would result therefrom and after giving pro forma effect to the incurrence of
such Indebtedness the Borrower shall be in compliance with and shall be
projected to be in compliance with each of the financial covenants set forth in
Section 8.20.
Section 8.03. Liens, Etc. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its
property, revenues or assets, whether now owned or hereafter acquired, except:
(a) Liens in favor of the Collateral Agent;
(b) Liens for taxes or assessments or other governmental charges or levies
not yet due or payable;
(c) Liens created by or resulting from obligations of the Borrower or any
Subsidiary as lessee under operating leases;
(d) (1) Liens on any property, acquired, constructed or improved by the
Borrower or its Subsidiaries after the date of this Agreement which are created
or assumed contemporaneously with, or within 120 days after, such acquisition or
31
completion of such construction or improvement, or within six months thereafter
pursuant to a firm commitment for financing arranged with a lender or investor
within such 120-day period, to secure or provide for the payment of all or any
part of the purchase price of such property or the cost of such construction or
improvement incurred after the date of this Agreement; (2) Liens on any property
of a corporation securing Indebtedness of such corporation which is merged into
the Borrower or a Subsidiary; or (3) Liens on property securing indebtedness of
a corporation existing at the time such corporation becomes a Subsidiary of the
Borrower; provided, that such Liens referred to in (1) shall not extend to any
property theretofore owned by the Borrower or any such Subsidiary other than, in
the case of any such construction or improvement, any theretofore unimproved
real property on which the property is so constructed or the improvement is
located and; provided, further, that the fair market value of the property or
assets subject to any of the Liens referred to in (1), (2) or (3) above is not
less than the related Indebtedness secured by any such Lien and such
Indebtedness is permitted under clause (iv) of Section 8.02 hereof.
(e) Liens incidental to and made in the ordinary course of business of the
Borrower or any Subsidiary (other than to secure Indebtedness) which consists of
(1) Liens of carriers, warehousemen, mechanics and materialmen incurred in the
ordinary course of business for sums not overdue or being diligently contested
in good faith by appropriate proceedings, (2) Liens (other than Liens arising
under ERISA or under Section 412(n) of the Internal Revenue Code in respect of
deposits made in connection with workmen's compensation, unemployment insurance
or other forms of governmental insurance or benefits, or to secured performance
of tenders, statutory obligations, leases and contracts or to secure obligations
on surety or appeal bonds, (3) Liens which arise by operation of law under
Article 2 of the Uniform Commercial Code in favor of unpaid sellers of goods, or
Liens in items or accompanying documents or proceeds of either arising by
operation of law under Article 4 of the Uniform Commercial Code in favor of a
collecting bank, (4) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and other restrictions, charges or
encumbrances (whether or not recorded) effecting the use of property, which do
not materially detract from the value of such property or impair the use
thereof, (5) Liens in the nature of leases and subleases granted to others which
do not interfere in any material respect with the business, and do not detract
in any material respect from the value of any property of the Borrower or any of
its Subsidiaries, and (6) Liens which constitute rights of set-off of a
customary nature or bankers' liens with respect to amounts on deposit, whether
arising by operation of law or by contract, in connection with deposit accounts
established at banks, in each case which do not materially and adversely affect
the financial condition, results of operations, operations, business, properties
or prospects of the Borrower and its Subsidiaries, taken as a whole and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books;
(f) Liens created by or resulting from any litigation or legal proceedings
(including without limitation any taxes or assessments), which are at such time
being diligently contested in good faith by the Borrower or any Subsidiary by
appropriate
32
proceedings, which proceedings in the reasonable judgment of Agent and any
assignee, (1) shall not involve any material danger that any Property or any
portion thereof would be subject to sale, forfeiture or loss, as a result of
failure to comply therewith, (2) shall not affect the payment of any sums due
and payable hereunder or result in any such sums being payable to any Person
other than the Agent or Revolving Credit Lenders or any assignee thereof, (3)
will not place Agent or any Revolving Credit Lender or any assignee thereof in
any danger of civil liability for which it is not adequately indemnified for or
to any criminal liability, (4) if involving taxes, shall suspend the collection
of the taxes and (E) do not result in an Event of Default;
(g) Liens existing on the date of this Agreement as set forth on Schedule
6.12 hereto; and
(h) Liens for the sole purposes of securing Indebtedness permitted by
clause (iii) of Section 8.02 hereof.
Section 8.04. Capital Expenditures. The Borrower will not, and will not
permit any of its Subsidiaries to, make or commit to make any Consolidated
Capital Expenditures, except the Borrower and its Subsidiaries may make
Consolidated Capital Expenditures during any Fiscal Year provided (x) no
Potential Default or Event of Default has occurred and is continuing, and (y)
the aggregate amount of Consolidated Capital Expenditures made during such
Fiscal Year does not exceed the greater of (i) $20,000,000 or (ii) twenty
percent (20%) of EBITDA for the immediately preceding Fiscal Year.
Section 8.05. Investments. The Borrower will not, and will not permit any
of its Subsidiaries to, make, incur, assume or suffer to exist any Investment in
any other Person except:
(a) Permitted Investments;
(b) deposits for utilities, security deposits under leases and similar
prepaid expenses;
(c) accounts receivable arising in the ordinary course of business;
(d) Investments existing on the Effective Date and disclosed on Schedule
8.05 hereto;
(e) Investments by the Borrower and its Subsidiaries in Domestic
Subsidiaries that are not Inactive Subsidiaries;
(f) Investments by the Borrower and its Subsidiaries in Foreign
Subsidiaries, provided that the aggregate consideration paid for such
Investments during the term of this Agreement shall not exceed an amount equal
to five percent (5%) of the Tangible Net Worth of the Borrower;
33
(g) Investments by the Borrower and its Subsidiaries in Inactive
Subsidiaries provided that the aggregate amount of such Investments during the
term of this Agreement shall not exceed $1,000,000;
(h) Investments by the Borrower and its Subsidiaries consisting of minority
investments in and joint ventures with Persons that are engaged in business
activities and lines of businesses that are incidental or related to, or similar
or complimentary with, the business of the Borrower and its Subsidiaries as of
the Effective Date, provided that the aggregate monetary consideration paid by
Borrower and its Subsidiaries for such Investments during the term of this
Agreement shall not exceed an amount equal to five percent (5%) of the Tangible
Net Worth of the Borrower;
(i) Investments arising under any interest rate swap, cap, collar or other
hedging arrangement provided that the net obligations of the Borrower and its
Subsidiaries thereunder constitute Indebtedness permitted under Section 8.02
hereof; and
(j) Investments consisting of deposit accounts of the Borrower and its
Subsidiaries maintained with banks in the ordinary course of business.
Section 8.06. Restricted Payments. The Borrower will not declare, pay or
make any dividend or distribution (in cash, property or obligations) on any
shares of any class of Capital Stock (now or hereafter outstanding) of the
Borrower or on any warrants, options or other rights in respect of any class of
Capital Stock (now or hereafter outstanding) of the Borrower or apply, or permit
any Subsidiary to apply, any of its funds, property or assets to the purchase,
redemption, sinking fund or other retirement of any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower or any rights,
options or warrants to subscribe for or purchase any shares of any class of
Capital Stock of the Borrower, or make any deposit for any of the foregoing.
Section 8.07. Limitation on Restrictions on Subsidiary Dividends. Except as
otherwise provided in this Agreement or any other Related Document, the Borrower
will not, and will not permit any of its Subsidiaries 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 other distributions on its Capital Stock or other interests or
participations in profits owned by the Borrower or any Subsidiary of the
Borrower or pay any Indebtedness owed to the Borrower or any Subsidiary of the
Borrower, (b) make loans or advances to the Borrower or any Subsidiary of the
Borrower or (c) transfer any of its property or assets to the Borrower or any
Subsidiary of the Borrower, except for such encumbrances and restrictions
existing under or by reason of this Agreement and the other Related Documents.
Section 8.08. Take or Pay Contracts; Sale/Leasebacks.
34
(a) The Borrower will not, and will not permit any of its Subsidiaries to,
enter into or be a party to any arrangement for the purchase of materials,
supplies, other property or services if such arrangement by its express terms
requires that payment be made by the Borrower or such Subsidiary regardless of
whether or not such materials, supplies, other properties or services are
delivered or furnished to it; and
(b) The Borrower will not, and will not permit any Subsidiary to, enter
into any arrangement with any Person providing for the leasing by the Borrower
or any of its Subsidiaries of any property or assets, which property or assets
has been or is to be sold or transferred by the Borrower or such Subsidiary to
such Person.
Section 8.09. Change of Control. The Borrower shall not permit a Change of
Control to occur.
Section 8.10. Mergers, Etc. The Borrower shall not merge into or
consolidate with, or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division or business unit thereof), or permit any of its Subsidiaries to do
any of the foregoing, except that:
(a) any Subsidiary of the Borrower (other than the Guaranteed Subsidiary),
may merge into or consolidate with or transfer all or substantially all of its
assets to any wholly-owned Domestic Subsidiary of the Borrower that is not an
Inactive Subsidiary (so long as such wholly-owned Domestic Subsidiary is the
surviving corporation);
(b) any Subsidiary of the Borrower (other than the Guaranteed Subsidiary)
may merge into or consolidate with or transfer all or substantially all of its
assets to the Borrower (so long as the Borrower is the surviving corporation);
(c) the Borrower or any of its Subsidiaries may purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any division
or business unit thereof) provided that (1) such Person or division or business
unit is in the same or similar or complementary lines of businesses as the
business of the Borrower and its Subsidiaries, (2) if the aggregate
consideration to be paid by the Borrower or any of its Subsidiaries in
connection with such purchase or other acquisition (including the fair market
value of any consideration payable other than in cash) is greater than
$5,000,000, the Borrower shall have given the Agent not less than 10 days prior
written notice thereof, (3) if the aggregate consideration payable by the
Borrower and its Subsidiaries in connection with any such purchase or
acquisition (including the fair market value of all consideration payable other
than in cash) exceeds $10,000,000, the Borrower shall have received the prior
written consent of the Majority Revolving Credit Lenders and (4) if the
aggregate amount of consideration for all such purchases and acquisitions
(including the fair market value of all consideration payable other than in
cash) exceeds $5,000,000, the Borrowers and its Subsidiaries shall execute and
deliver to the Collateral Agent such
35
additional Security Documents as the Collateral Agent shall deem reasonably
necessary or appropriate in order to obtain and effect a first-priority Lien on
all such assets and Capital Stock so acquired (including the assets of any
Person whose Capital Stock is so acquired);
(d) any Subsidiary may convey, transfer, lease or otherwise dispose of all
or substantially all of its assets to the extent such transaction is permitted
under clause (c) of Section 8.13; and
(e) the Borrower may merge with or consolidate into any other Person
provided that (1) (A) if the holders, immediately prior to such merger or
consolidation, of shares of Capital Stock of the Borrower entitled to vote in
the election of directors of the Borrower hold, immediately after giving effect
to such merger or consolidation, a majority of the issued and outstanding shares
of Capital Stock of the surviving corporation entitled to vote in the election
of directors of such surviving corporation, (B) such merger or consolidation
shall comply with the requirements of clause (iii) of this Section 8.10 as if
such merger or consolidation were the acquisition by the Borrower of the Capital
Stock of the surviving corporation, and (C) the surviving corporation shall have
assumed, pursuant to an instrument in form and substance reasonably satisfactory
to the Collateral Agent, all of the obligations of the Borrower under this
Agreement and the other Related Documents, or (2) the surviving corporation
shall have an unsecured long-term debt rating of not less than "BBB" (or its
equivalent) from Standard & Poors Corporation and not less than Baa2 (or its
equivalent) from Moodys Investors Service and such surviving corporation shall
have assumed, pursuant to an instrument in form and substance reasonably
satisfactory to the Collateral Agent, all of the obligations of the Borrower
under this Agreement and the other Related Documents (any such transaction
described in clause (2) of this Section 8.10(e), a "Permitted Change of
Control");
provided that in each such case, immediately after giving effect thereto, (x) no
Event of Default or Potential Default shall occur and be continuing or could
result therefrom, and (y) after giving pro forma effect to any such merger,
consolidation or transfer under this Section 8.10 the Borrower (or any successor
corporation) is, and is projected to be in compliance with Section 8.20.
Section 8.11. Compliance with ERISA. The Borrower shall not (i) terminate,
or permit any ERISA Affiliate to terminate, any Plan so as to result in any
material (in the opinion of the Agent and any assignee) liability of the
Borrower or any ERISA Affiliate to the PBGC or (ii) permit to exist any
occurrence of any Reportable Event (as defined in Title IV of ERISA), or any
other event or condition, that presents a material (in the opinion of the Agent
and any assignee) risk of such a termination by the PBGC of any Plan.
Section 8.12. Subsidiaries. The Borrower will not, and will not permit any
Subsidiary to create or acquire any Subsidiary, or to transfer assets to any
Subsidiary other than in compliance with Section 8.10 hereof.
36
Section 8.13. Asset Dispositions, etc. The Borrower will not, and will not
permit any Subsidiary to, sell, transfer, lease or otherwise dispose of, or
grant options, warrants or other rights with respect to, any of its assets to
any Person, unless (a) such disposition consists of the sale or lease of
inventory in the ordinary course of business, (b) such disposition constitutes a
disposition of obsolete or retired assets not used in the business of the
Borrower and its Subsidiaries, (c) the disposition is in the ordinary course of
business and the net book value of the asset to be disposed, together with the
net book value of all other assets disposed by the Borrower or any Subsidiary
pursuant to this clause (c) during any Fiscal Year does not exceed $10,000,000
and during the term of this Agreement, does not exceed $20,000,000 or (d) such
disposition consists of the sale by the Borrower of real property and
improvements comprising its current manufacturing facility and corporate
headquarters located at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
Section 8.14. Modification of Organic Documents, etc. The Borrower will not
consent to any amendment, supplement or other modification of any of the terms
or provisions contained in, or applicable to, the Certificate of Incorporation
or the By-Laws of the Borrower, except for any amendment, supplement or other
modification which does not adversely affect the Borrower's ability to pay or
perform its obligations under this Agreement.
Section 8.15. Transactions with Affiliates. The Borrower will not, and will
not permit any Subsidiary to, enter into, or cause, suffer or permit to exist
any transaction, arrangement or contract with any of its Affiliates other than
any such transaction arrangement or contract which is on terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary in a comparable arms-length transaction with a
Person that is not an Affiliate of the Borrower. To the extent that any
transactions or agreements between Borrower and any other Affiliate are
permitted by this Agreement or are consented to in writing by the Majority
Revolving Credit Lenders, with respect to such transaction or agreement,
Borrower will (a) reflect the separate legal existence of each entity party to
the transaction or agreement, (b) formally document such transaction or
agreement in writing, and (c) cause such transaction or agreement to be approved
in advance by the board of directors of Borrower. The pricing and other material
terms of all such transactions and agreements will be established at the
inception of the particular transaction or agreement on commercially reasonable
terms (substantially similar to the terms that would have been established in a
transaction between unrelated third parties) by written agreement and will not
be amendable except with the written consent of both Borrower and any Affiliates
party to the transaction or agreement.
Section 8.16. Inconsistent Agreements. The Borrower will not, and will not
permit any Subsidiary to, enter into any material agreement containing any
provision which would be violated or breached in any material respect by this
Agreement or any Related Document or by the performance by the Borrower or any
Subsidiary of its obligations hereunder or under any Related Document.
37
Section 8.17. Change in Accounting Method. The Borrower will not, and will
not permit any Subsidiary to, make any change in accounting treatment and
reporting practices except as required by GAAP.
Section 8.18. Change in Fiscal Year End. The Borrower will not change its
Fiscal Year end without the prior written consent of the Majority Revolving
Credit Lenders.
Section 8.19. Amendments to Certain Agreements. The Borrower will not, and
shall not permit any Subsidiary to, amend, restate or otherwise modify any
Related Document except as provided in the Participation Agreement.
Section 8.20. Financial Condition. The Borrower hereby covenants and agrees
as set forth below:
(a) Total Debt to EBITDA Ratio. The Borrower will not permit its Total Debt
to EBITDA Ratio with respect to the four consecutive Fiscal Quarter period
ending on the last day of any Fiscal Quarter to be greater than the ratio set
forth below opposite such Fiscal Quarter:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
1999 First 3.0 to 1
Second 2.9 to 1
Third 2.7 to 1
Fourth 2.5 to 1
2000 First 2.4 to 1
Second 2.4 to 1
Third 2.3 to 1
Fourth 2.2 to 1
2001 First 2.1 to 1
Second and each Fiscal Quarter
thereafter through the Final Date 2.0 to 1.
38
(b) Fixed Charge Coverage Ratio. The Borrower will not permit its Fixed
Charge Coverage Ratio with respect to the four consecutive Fiscal Quarter period
ending on the last day of any Fiscal Quarter to be less than the ratio set forth
below opposite such Fiscal Quarter:
Fiscal Year Fiscal Quarter Ratio
---------- -------------- -----
1999 First .8 to 1
Second .9 to 1
Third 1.1 to 1
Fourth 1.2 to 1
2000 First 1.2 to 1
Second 1.2 to 1
Third 1.2 to 1
Fourth 1.3 to 1
2001 First 1.3 to 1
Second 1.3 to 1
Third 1.3 to 1
Fourth 1.3 to 1
2002 First 1.3 to 1
Second 1.3 to 1
Third 1.3 to 1
Fourth 1.3 to 1
2003 First 1.3 to 1
Second 1.3 to 1
Third 1.3 to 1
Fourth 1.3 to 1
2004 First and each Fiscal Quarter
thereafter through the Final Date 1.5 to 1.
(c) Interest Coverage Ratio. The Borrower will not permit its Interest
Coverage Ratio with respect to the four consecutive Fiscal Quarter period ending
on the last day of any Fiscal Quarter to be less than the ratio set forth below
opposite such Fiscal Quarter:
Fiscal Year Fiscal Quarter Ratio
---------- -------------- -----
1999 First 10.0 to 1
Second 10.0 to 1
Third 10.0 to 1
39
Fourth 10.0 to 1
2000 First 10.0 to 1
Second 10.0 to 1
Third 10.0 to 1
Fourth 10.0 to 1
2001 First 10.0 to 1
Second 9.0 to 1
Third 8.0 to 1
Fourth 8.0 to 1
2002 First 8.2 to 1
Second 8.5 to 1
Third 9.0 to 1
Fourth 9.5 to 1
2003 First 10.0 to 1
Second 10.5 to 1
Third 11.0 to 1
Fourth 11.5 to 1
2004 First 12.0 to 1
Second 12.5 to 1
Third 13.0 to 1
Fourth 13.5 to 1
2005 First 14.0 to 1
Second 14.5 to 1
Third 15.0 to 1
Fourth 15.5 to 1
2006 First 15.5 to 1
(d) Minimum EBITDA. The Borrower will not permit EBITDA for the four
consecutive Fiscal Quarter period ending on the last day of any Fiscal Quarter
to be less than the amount set forth below opposite such Fiscal Quarter:
Fiscal Year Fiscal Quarter Minimum EBITDA
---------- -------------- --------------
1999 First $20,000,000
Second $22,000,000
Third $24,000,000
Fourth $29,000,000
2000 First $30,000,000
40
Second $31,000,000
Third $32,000,000
Fourth $35,000,000
2001 First $36,000,000
Second $38,000,000
Third $40,000,000
Fourth $45,000,000
2002 First $46,000,000
Second $48,000,000
Third $50,000,000
Fourth $55,000,000
2003 First $56,000,000
Second $58,000,000
Third $60,000,000
Fourth and each Fiscal Quarter
thereafter through the Final Date $65,000,000
(e) Minimum Tangible Net Worth. The Borrower will not permit its Tangible
Net Worth on the last day of any Fiscal Quarter to be less than the amount set
forth below opposite such Fiscal Quarter:
Fiscal Year Fiscal Quarter Minimum Tangible Net Worth
---------- -------------- --------------------------
1999 First $115,000,000
Second $115,000,000
Third $115,000,000
Fourth $125,000,000
2000 First $130,000,000
Second $135,000,000
Third $140,000,000
Fourth $150,000,000
2001 First $155,000,000
Second $160,000,000
Third $165,000,000
Fourth $175,000,000
2002 First $180,000,000
Second $185,000,000
Third $190,000,000
Fourth $200,000,000
41
2003 First $205,000,000
Second $210,000,000
Third $215,000,000
Fourth $225,000,000
2004 First $230,000,000
Second $235,000,000
Third $240,000,000
Fourth and each Fiscal Quarter
thereafter through the Final Date $250,000,000
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any one or more of the following events
(an "Event of Default") shall occur and be continuing, the Agent on behalf of
the Revolving Credit Lenders shall be entitled to exercise the remedies set
forth in Section 9.02 hereof.
(a) Any representation or warranty made or deemed made by the Borrower in
this Agreement, any Related Document to which it is a party, or any certificate,
financial statement or other document delivered pursuant hereto or thereto shall
not be Accurate and Complete on any date as of which made or deemed made; or
(b) The Borrower shall default in the payment when due of (i) the principal
of or interest on any Revolving Credit Advance, (ii) any fee payable hereunder
or (iii) any other amount payable to the Agent, the Collateral Agent or the
Revolving Credit Lenders hereunder or under any Related Document to which it is
a party, and the failure to pay such other amount referred to in this clause
(iii) shall continue for 10 days after receipt of notice thereof; or
(c) The Borrower shall fail to perform or observe (i) any covenant or
obligation contained in Article VII and such failure shall continue for a period
of thirty (30) days after the Borrower becomes aware of such failure or (ii) any
covenant or obligation contained in Article VIII hereof; or
(d) The Borrower shall fail to perform or observe any other covenant or
obligation of the Borrower the performance or observance of which is owed to the
Agent, the Collateral Agent or the Revolving Credit Lenders hereunder or under
any Related Document to which it is a party (other than any default described in
Subsection 9.01(b) or (c) above) , and such failure shall continue for thirty
(30) days after the Borrower becomes aware of such failure, provided that if
such failure is of such a nature that it is not capable
42
of being cured within such 30-day period, and the Borrower promptly commences
appropriate steps to cure such failure within such 30-day period and continues
to pursue such cure with diligence and good faith thereafter, unless the
Majority Revolving Credit Lenders shall determine that such delay could
reasonably be expected to have a Material Adverse Effect, such 30-day period
shall be extended to 90 days; or
(e) The Borrower shall default in the payment when due of any principal of
or premium (if any) or interest on any Indebtedness (other than Indebtedness
owing to the Revolving Credit Lenders under this Agreement) of $1,000,000 or
more and such default shall continue beyond any applicable grace period, or
shall fail to observe or perform any terms of any instrument pursuant to which
any such Indebtedness was created or of any mortgage, indenture or other
agreement relating thereto if the effect of such failure is to cause or permit
the acceleration of such Indebtedness and such failure shall not have been
waived pursuant thereto; or
(f) The entry of a decree or order for relief in respect of the Borrower by
a court having jurisdiction in the premises, or the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Borrower or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or other similar law; or the
commencement against the Borrower of an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, and the
continuance of any such case unstayed and in effect for a period of 60
consecutive days; or
(g) The commencement by the Borrower of a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or the consent by
it to the entry of an order for relief in an involuntary case under any such law
or the consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Borrower or of any substantial part of its property, or the
making by it of a general assignment for the benefit of creditors, or the
failure of the Borrower generally to pay its debts as such debts become due or
the taking of any corporate action in furtherance of any of the foregoing; or
(h) An "Event of Default" shall occur under Section 18 of the Master Lease
or Section 5.01 of the Construction Agency Agreement or an "Event of Default"
shall occur under any Security Document; or
(i) One or more final judgments for the payment of money shall be rendered
against the Borrower in an aggregate amount in excess of $1,000,000 and the same
shall remain undischarged for a period of 30 days during which execution of such
judgment shall not be effectively stayed; or
43
(j) The Master Lease, the Construction Agency Agreement, the Security
Agreement, the Guaranties or any of the other Security Documents shall cease to
be in full force and effect (except for any termination of the Construction
Agency Agreement or Master Lease in accordance with its terms not due to the
occurrence of a default thereunder).
Section 9.02. Default Remedies. If any Event of Default shall occur and be
continuing, then and in every such event, and at any time thereafter during the
continuance of such Event of Default, the Agent may, and at the request of the
Majority Revolving Credit Lenders shall, by written notice to the Borrower and
each Revolving Credit Lender, take one or more of the following actions: (a)
terminate the Commitments, and (b) declare the Obligations to be forthwith due
and payable, whereupon the Obligations shall become forthwith due and payable
both as to principal and interest together with all other amounts payable by the
Borrower under this Agreement which may be due or accrued and unpaid, without
presentment, demand, protest or any other notice of any kind, all of which are
expressly waived; provided, however, that if any of the Events of Default set
forth in paragraphs (f) or (g) of Section 9.01 hereof shall occur with respect
to the Borrower, then without any notice to the Borrower or any other act by the
Agent or any other Person (i) the Commitments shall immediately become
terminated, and (ii) the Obligations shall become forthwith due and payable, all
without presentment, demand, protest or notice of any kind, all of which are
expressly waived. In the event of a declaration by the Agent pursuant to clause
(b) above, the Agent may enforce its rights hereunder and under any other
instrument or agreement delivered in connection herewith and take any other
action to which it is entitled hereunder, thereunder, or by law, whether for the
specific performance of any covenant or agreement contained in this Agreement,
in any such instrument or agreement or to enforce payment as provided herein,
therein, or by law.
Section 9.03. Set-off. (a) The Agent and each Revolving Credit Lender
(without duplication) are hereby authorized at any time and from time to time,
upon the occurrence and during the continuance of any Event of Default, without
prior notice to the Borrower, to the fullest extent permitted by law, to set-off
and apply any and all balances, credits, deposits (general or special, time or
demand, provisional or final), accounts or monies at any time held and other
indebtedness at any time owing by the Agent or such Revolving Credit Lender at
any of its branches or affiliates to or for the account of the Borrower,
including any Permitted Investments held therein, against any and all of the
amounts owing by the Borrower under this Agreement or the Related Documents to
which it is a party, whether or not the Agent or such Revolving Credit Lender
shall have made any demand hereunder or thereunder. The rights of the Agent and
each Revolving Credit Lender under this Section 9.03 are in addition to, and do
not derogate from or impair, other rights and remedies (including, without
limitation, other rights of set-off) which the Agent or such Revolving Credit
Lender may have.
(b) Each Revolving Credit Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise receive payment of a proportion of
the aggregate amount of principal and interest due with respect to any Revolving
Credit Note held by it which is greater than the proportion received by any
other Revolving Credit Lender in respect of the aggregate amount of principal
and interest due with respect to any Revolving Credit Note
44
held by such other Revolving Credit Lender, the Revolving Credit Lender
receiving such proportionately greater payment shall purchase participations in
the Revolving Credit Notes held by the other Revolving Credit Lenders and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Revolving Credit Notes held by the
Revolving Credit Lenders shall be shared by the Revolving Credit Lenders pro
rata. The Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Revolving Credit Note,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other collection rights with respect to
such participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 9.04. Funding Indemnities. The Borrower will indemnify and hold
harmless each Revolving Credit Lender against, and on demand reimburse each
Revolving Credit Lender for, any loss, premium, penalty or expense which such
Revolving Credit Lender may pay or incur (including, without limitation, any
loss or expense incurred by reason of the relending, depositing or other
employment of funds acquired by such Revolving Credit Lender to fund a LIBOR
Advance) as a result of any acceleration of the Revolving Credit Advances
pursuant to Section 9.02 hereof. Each Revolving Credit Lender shall furnish the
Borrower with a certificate (a copy of which shall be sent to the Agent and the
other Revolving Credit Lenders) setting forth the basis for determining any
additional amount to be paid to it hereunder, and such certificate shall be
conclusive, absent manifest error, as to the contents thereof.
Section 9.05. Default Interest. Notwithstanding any other provision of this
Agreement to the contrary, to the extent permitted by law upon the occurrence
and during the continuance of an Event of Default, the Borrower will pay on
demand to the Revolving Credit Lenders interest on the principal amount of all
Outstanding Revolving Credit Advances at a rate equal to the rate otherwise
applicable plus an additional 2.00% per annum.
ARTICLE X
THE AGENT
Section 10.01. Appointment and Authorization. Each Revolving Credit Lender
appoints the Agent to act as its agent in connection herewith and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the Related Documents as are delegated to the Agent by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
Section 10.02. Same Rights as a Revolving Credit Lender. The Agent and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of
45
business with the Borrower, the Lessee or the Subsidiary Guarantor or any
affiliate of the foregoing as if it were not the Agent hereunder.
Section 10.03. Actions by the Agent. The obligations of the Agent hereunder
are only those expressly set forth herein or in the Related Documents. As to any
matters not expressly provided for by this Agreement or the Related Documents,
the Agent shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Majority Revolving Credit Lenders, and such instructions shall be binding upon
all Revolving Credit Lenders; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law. The Agent agrees to give
to each Revolving Credit Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement or the Related Documents.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Potential Default or Event of
Default, except as expressly provided in Article IX.
Section 10.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and, as between the Agent and the Revolving
Credit Lenders, shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance with the advice of such counsel, accountants
or experts.
Section 10.05. Liability. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to any Revolving Credit Lender
for any action taken or not taken by it in connection herewith or with any
Related Document (a) with the consent or at the request of the Majority
Revolving Credit Lenders or (b) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain, inquire
into or verify: (i) any statement, warranty or representation made by the
Borrower, or the Lessee or the Subsidiary Guarantors in connection with this
Agreement, any Related Document or any Credit Event hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower,
the Lessee or the Subsidiary Guarantors herein or in any Related Document; (iii)
the satisfaction of any condition specified in Article V, except receipt of
items required to be delivered to the Agent; or (iv) as between the Agent and
the Revolving Credit Lenders, the validity, effectiveness or genuineness of this
Agreement, any Related Document or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, facsimile or similar writing) reasonably believed by
it to be genuine or to be signed by the proper party or parties.
Section 10.06. Indemnification. Each Revolving Credit Lender shall, ratably
in accordance with its Commitment Percentage, indemnify the Agent (to the extent
not reimbursed by the Borrower) on demand from and against any and all costs,
expenses (including counsel fees and disbursements), claims, demands, actions,
losses or liabilities
46
(except such as result from the Agent's own gross negligence or willful
misconduct) that the Agent may suffer or incur in connection with this Agreement
or any Related Document or any action taken or omitted by the Agent hereunder or
thereunder. The obligations of each Revolving Credit Lender set forth in this
Section 10.06 shall survive any termination of this Agreement.
Section 10.07. Credit Decision. Each Revolving Credit Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Revolving Credit Lender, and based on such financial statements and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Revolving Credit Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Revolving Credit Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action permitted to be taken or
omitted under this Agreement and the Related Documents.
Section 10.08. Successor Agents; Removal. (a) The Agent may resign at any
time by giving written notice thereof to the Revolving Credit Lenders and the
Borrower, provided that no such resignation shall take effect until a successor
agent has been appointed and agreed to act as such under this Agreement. Upon
any such resignation, the Majority Revolving Credit Lenders shall appoint a
successor to the Agent.
(b) Upon the written request of Lenders holding not less than 80% of the
Total Commitment or, if all Commitments have been terminated, not less than 80%
of the aggregate amount of all Outstanding Advances, and provided that
immediately upon the effectiveness of such resignation, such Lenders appoint a
successor to the Agent, the Agent shall resign and effective immediately upon
such resignation, the Agent shall no longer be the Agent under this Agreement
and the successor to the Agent so appointed shall immediately and thereafter
become the Agent.
(c) The decision of the Majority Revolving Credit Lenders shall be binding
upon all of the Revolving Credit Lenders. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article X shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent.
Section 10.09. Sharing by Revolving Credit Lenders. (a) If any Revolving
Credit Lender shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of an obligation
owed to it under Section 2.01 hereof in excess of its ratable share, determined
in relation to the aggregate Commitment of all Revolving Credit Lenders, of
payments on account of like Obligations obtained by all Revolving Credit
Lenders, such Revolving Credit Lender shall immediately so notify (the
"Information Notice") the Agent. Promptly upon its receipt of an Information
Notice from any Revolving Credit Lender, the Agent shall notify (the "Sharing
Notice") all of the Revolving Credit Lenders (based upon information contained
in all Information Notices received by the Agent from the Revolving Credit
Lenders) of the amount or amounts (the "Excess Payment") received by one or more
of the Revolving
47
Credit Lenders in excess of its or their ratable share of payments received by
all of the Revolving Credit Lenders on account of the Obligations. Within two
Business Days of the giving of a Sharing Notice by the Agent, each Revolving
Credit Lender which has received an Excess Payment (each, an "Excess Revolving
Credit Lender") shall purchase from Revolving Credit Lenders which have not
received an Excess Payment (each, a "Deficit Revolving Credit Lender") such
participations in the Obligations, as the case may be, owed to each Deficit
Revolving Credit Lender as shall be necessary to cause such Excess Revolving
Credit Lender to share its Excess Payment ratably with each Deficit Revolving
Credit Lender; provided, however, that if all or any portion of such Excess
Payment is thereafter recovered from an Excess Revolving Credit Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(b) The Borrower agrees that any Revolving Credit Lender so purchasing a
participation from another Revolving Credit Lender pursuant to this Section
10.09 may exercise all its rights of payment with respect to such participation
as fully as if such Revolving Credit Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Revolving Credit Lender
receives a secured claim in lieu of a set-off to which this Section 10.09 would
apply, such Revolving Credit Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Revolving Credit Lenders entitled under this Section 10.09 to
share in the benefits of any recovery on such secured claim.
ARTICLE XI
GENERAL PROVISIONS
Section 11.01. Assignment. (a) The Borrower may not assign its rights or
obligations under this Agreement or any Related Documents except to the
surviving entity of any merger or consolidation of the Borrower with or into any
Person to the extent such constitutes a Permitted Change of Control, without the
prior written consent of the other parties hereto, which consent may be given or
withheld in the sole and absolute discretion of each such Person. Any Revolving
Credit Lender may, in the ordinary course of its business and in accordance with
applicable Law including, but not limited to, the Securities Act of 1933, and
with the prior written consent of the Borrower (which consent shall not be
unreasonably withheld or delayed) at any time assign to any Revolving Credit
Lender or to one or more additional banks or financial institutions (each an
"Assignee") all or a part of its rights and obligations under this Agreement
pursuant to an assignment agreement between such Assignee and such transferor
Revolving Credit Lender substantially in the form of Exhibit D hereto, provided
that (i) without the written consent of the Agent, any partial assignment shall
be in a minimum amount of $1,000,000 and immediately following any partial
assignment, the remaining Commitment of the transferor Revolving Credit Lender
shall not be less than$1,000,000 and (ii) the transferor Revolving Credit Lender
shall pay to the Agent an assignment fee of $3,000. Such
48
assignment agreement shall be executed by such Assignee and such transferor
Revolving Credit Lender and shall be delivered to the Agent for acceptance by
the Borrower before the proposed effective date of such assignment. Upon such
execution, delivery and acceptance, from and after the effective date specified
in such assignment agreement, (x) the Assignee thereunder shall be a party
hereto and, to the extent of the portion of the Commitment of the transferor
Revolving Credit Lender purchased by it, have the rights and obligations of a
Revolving Credit Lender hereunder and (y) the transferor Revolving Credit Lender
thereunder shall, to the extent of the portion of its Commitment so sold, be
released from its obligations under this Agreement (and, in the case of an
assignment agreement covering all or the remaining portion of a transferor
Revolving Credit Lender's rights and obligations under this Agreement, such
transferor Revolving Credit Lender shall cease to be a party hereto). On or
prior to the effective date specified in such assignment agreement, the Borrower
shall execute and deliver to the Agent in exchange for the Revolving Credit Note
previously delivered to such transferor Revolving Credit Lender a new Revolving
Credit Note to the order of such Assignee in an amount based upon the Commitment
assumed by it pursuant to such assignment agreement and, unless the transferor
Revolving Credit Lender has not retained a Commitment hereunder, a new Revolving
Credit Note to the order of the transferor Revolving Credit Lender in an amount
based upon the Commitment retained by it hereunder. Each such new Revolving
Credit Note shall be dated the effective date of such assignment and shall
otherwise be in the form of the Revolving Credit Note replaced thereby. The
Revolving Credit Note surrendered by the transferor Revolving Credit Lender
shall be returned by the Agent to the Borrower. Subject to the foregoing, all
provisions contained in this Agreement or any document or agreement referred to
herein or relating hereto shall inure to the benefit of, and shall be binding
upon, the Borrower, the Agent, the Revolving Credit Lenders and their respective
successors and permitted assigns.
(b) Any Revolving Credit Lender may from time to time change the Lending
Office of such Revolving Credit Lender at which the Revolving Credit Advances
are made or carried, provided that if at the time of any change from one Lending
Office to another, the effect thereof would be to increase any amount payable by
the Borrower under this Agreement then such change shall not be made without the
prior written consent of the Borrower, and no such change shall affect the
obligation of such Revolving Credit Lender to make Revolving Credit Advances in
accordance with the terms hereof. As between the Borrower and any Revolving
Credit Lender, it is understood that any action taken hereunder on behalf of
such Revolving Credit Lender by any Lending Office of such Revolving Credit
Lender shall be binding on such Revolving Credit Lender.
(c) Any Revolving Credit Lender may grant one or more financial
institutions (each, a "Participant"), on a participating basis but not as a
party to this Agreement, a participation or participations in all or any part of
such Revolving Credit Lender's rights and benefits under this Agreement or any
Related Document (a "Participation"). Ten days prior to granting any
Participation, the granting Revolving Credit Lender shall notify the Borrower
and the Agent of the identity of such Participant, provided, however, that the
failure to notify timely the Borrower or the Agent shall not affect the validity
of such Participation. In the event of any such grant by a Revolving
49
Credit Lender of a Participation to a Participant, such Revolving Credit Lender
shall remain responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and directly with such
Revolving Credit Lender in connection with such Revolving Credit Lender's rights
and obligations under this Agreement. Any agreement pursuant to which any
Revolving Credit Lender may grant such a participating interest shall provide
that such Revolving Credit Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Revolving Credit Lender will not agree to any modification,
amendment or waiver of this Agreement described in clauses (a) through (h),
inclusive, of the proviso contained in Section 11.02 without the consent of the
Participant. The Borrower agrees that each Participant shall, to the extent of
its Participation, be entitled to the benefits of Sections 3.01, 4.02 and 9.04
hereof as if such Participant were a Revolving Credit Lender; provided, however,
the amount of such benefit shall be limited to the amount in respect of the
interest sold to which the seller of such Participation would have been entitled
had it not sold such interest.
(d) Notwithstanding anything to the contrary contained in this Agreement,
any Revolving Credit Lender may at its sole cost and expense pledge, hypothecate
or otherwise grant a security interest in all or any part of its rights
hereunder or under its Revolving Credit Note to any Federal Reserve Bank;
provided that no such pledge, hypothecation or grant shall relieve such
Revolving Credit Lender of any of its obligations under this Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement,
(i) any Revolving Credit Lender may sell all or any part of its rights and
obligations hereunder and under its Revolving Credit Note and the other Related
Documents to any of its Affiliates and (ii) upon the occurrence and during the
continuance of an Event of Default, any Revolving Credit Lender may sell all or
any part of its rights and obligations hereunder and under its Revolving Credit
Notes and the other Related Documents to any third party, in each such case,
notwithstanding that the Borrower does not consent to such sale, provided that
such Revolving Credit Lender has obtained the consent of the Agent and otherwise
meets the requirements of this Section 11.01.
Section 11.02. Amendments and Waivers. Any provision of this Agreement or
any Related Document may be amended or waived if, but only if, such amendment or
waiver is in accordance with the provisions of Section 14.2 of the Participation
Agreement, in writing and is signed by the Borrower and the Agent, with the
approval of the Majority Revolving Credit Lenders (and, if the rights,
obligations or duties of the Agent are affected thereby, by the Agent); provided
that no such amendment or waiver shall, unless approved by all the Revolving
Credit Lenders, (a) increase the amount of any Commitment or the Commitment
Percentage of any Revolving Credit Lender or subject any Revolving Credit Lender
to any additional obligation, (b) reduce the principal of or rate of interest on
any Revolving Credit Advance or the rate at which any fees are payable
hereunder, (c) postpone the date fixed for any payment of principal of or
interest on any
50
Revolving Credit Advance or any fees hereunder or for any reduction or
termination of any Commitment, (d) change the percentage of the aggregate
Commitment Percentages which shall be required for the Revolving Credit Lenders
or any of them to take any action under this Section 11.02 or any other
provision of this Agreement, or (e) amend this Section 11.02, (f) release all or
any substantial portion of the Collateral, except as permitted under any of the
Related Documents. Any amendment or waiver made pursuant to the previous
sentence shall be binding upon the Revolving Credit Lenders upon delivery of an
executed or conformed copy of such waiver to the Revolving Credit Lenders.
Section 11.03. Notices. All notices, requests, demands and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party and the Borrower at its
address or telecopier number set forth below or such other address or telecopier
number as such party may hereafter specify by notice to the other parties listed
below. Any notice, request, demand or other communication sent by telecopier
shall be promptly confirmed with a copy of such notice sent by courier or by
first class mail.
If to the Agent: ING (U.S.)
Capital LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Credit Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With copies of each such notice to be simultaneously given, delivered or
served to the following addresses:
ING (U.S.) Capital LLC
Atlanta ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
51
If to a Revolving Credit
Lender: At the address set
forth on the signature pages hereof or
in the assignment agreement pursuant
to which such Revolving Credit
Lender became a party hereto
If to the Borrower: MiniMed Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of each such notice to be simultaneously given, delivered or
served to the following address:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective when
actually received.
Section 11.04 Cumulative Rights; No Waiver. The rights, powers and remedies
of the Agent and each Revolving Credit Lender hereunder are cumulative and in
addition to all rights, powers and remedies provided under any and all
agreements between the Borrower and the Agent and each Revolving Credit Lender
relating hereto, at law, in equity or otherwise. Neither any delay nor any
omission by the Agent or any Revolving Credit Lender to exercise any right,
power or remedy shall operate as a waiver thereof, nor shall a single or partial
exercise thereof preclude any other or further exercise thereof or any exercise
of any other right, power or remedy.
Section 11.05 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when executed and delivered, shall be deemed an original and
all of which counterparts, taken together, shall constitute one and the same
Agreement.
Section 11.06 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
52
Section 11.07 Headings. The Article and Section headings in this Agreement
are for convenience of reference only and shall not affect the interpretation
hereof.
Section 11.08. Termination by Borrower. The Borrower may terminate this
Agreement upon not less than 30 days' prior written notice to the Agent at any
time; provided, however, that on the date specified by the Borrower for
termination (a) there shall not be any Revolving Credit Advances then
Outstanding and (b) all amounts then due and payable to the Agent, the
Collateral Agent and the Revolving Credit Lenders under this Agreement or the
Related Documents shall have been paid in full. No termination of this
Agreement, for whatever reason, shall affect the obligations and liabilities of
the Borrower hereunder which arose prior to such termination or the Agent's or
any Revolving Credit Lender's rights, powers and remedies with respect thereto.
Section 11.09. Several Obligations; Remedies Independent. The failure of
any Revolving Credit Lender to make any Revolving Credit Advance to be made by
it on the date specified therefor shall not relieve any other Revolving Credit
Lender of its obligation to make its Revolving Credit Advance on such date, but
no Revolving Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make an Revolving Credit Advance. The amounts payable
by the Borrower at any time hereunder and under a Revolving Credit Note to each
Revolving Credit Lender shall be a separate and independent debt and each
Revolving Credit Lender shall be entitled to protect and enforce its rights
arising out of this Agreement and its Revolving Credit Note, and it shall not be
necessary for any other Revolving Credit Lender or the Agent to consent to, or
be joined as an additional party in, any proceedings for such purposes.
SECTION 11.10. GOVERNING LAW AND CONSENT TO JURISDICTION, WAIVER OF JURY
TRIAL, SERVICE OF PROCESS.
(a)THIS AGREEMENT HAS BEEN EXECUTED AND DELIVERED IN THE STATE OF NEW YORK.
THE BORROWER, THE REVOLVING CREDIT LENDERS AND THE AGENT AGREE THAT, TO THE
MAXIMUM EXTENT PERMITTED BY THE LAWS OF THE STATE OF NEW YORK, THIS AGREEMENT,
AND THE RIGHTS AND DUTIES OF THE BORROWER, THE REVOLVING CREDIT LENDERS AND THE
AGENT HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITATION, IN RESPECT OF ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. THE BORROWER HEREBY IRREVOCABLY SUBMITS, FOR ITSELF AND ITS
PROPERTIES, TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME COURT OF THE STATE OF NEW YORK IN
THE COUNTY OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN
53
CONNECTION WITH THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE BORROWER HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A
DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT,
ACTION OR PROCEEDING, IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF MAY NOT BE LITIGATED IN OR BY SUCH COURT. THIS SUBMISSION TO
JURISDICTION IS NONEXCLUSIVE AND DOES NOT PRECLUDE THE REVOLVING CREDIT LENDERS
OR THE AGENT FROM OBTAINING JURISDICTION OVER THE BORROWER IN ANY COURT
OTHERWISE HAVING JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER AGREES NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE
JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION
WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. THE BORROWER
AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED
MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD
AUTHORIZED BY THE LAWS OF NEW YORK. THE BORROWER , THE REVOLVING CREDIT LENDERS
AND THE AGENT EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM RELATED TO THIS AGREEMENT. THE BORROWER, THE
REVOLVING CREDIT LENDERS AND THE AGENT ACKNOWLEDGE THAT THE PROVISIONS OF THIS
SECTION 11.10 HAVE BEEN BARGAINED FOR AND THAT THEY HAVE BEEN REPRESENTED BY
COUNSEL IN CONNECTION THEREWITH.
(b) The Borrower hereby irrevocably designates, appoints and empowers CT
Corporation System, whose present address is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its authorized agent to receive, for and on its behalf and its
property, service of process in the State of New York when and as such legal
actions or proceedings may be brought in the courts of the State of New York or
of the United States of America sitting in New York, and such service of process
shall be deemed complete upon the date of delivery thereof to such agent whether
or not such agent gives notice thereof to the Borrower, or upon the earliest of
any other date permitted by applicable law. It is understood that a copy of said
process served on such agent will as soon as practicable be forwarded to the
Borrower, at its address set forth in Section 11.03, but its failure to receive
such copy shall not affect in any way the service of said process on said agent
as the agent of the Borrower. The Borrower irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of the copies thereof by certified mail, return
receipt requested, postage prepaid, to it at its address set forth in Section
11.03, such service to become effective upon the earlier of (i) the date ten
(10) calendar days after such mailing or (ii) any earlier date permitted by
applicable law. The Borrower agrees that it will at all times continuously
maintain an
54
agent to receive service of process in the State of New York on behalf of itself
and its properties and in the event that, for any reason, the agent named above
or its successor shall no longer serve as its agent to receive service of
process in the State of New York on its behalf, it shall promptly appoint a
successor so to serve and shall advise the Agent and the Revolving Credit
Lenders thereof (and shall furnish to the Agent and the Revolving Credit Lenders
the consent of any successor agent so to act). Nothing in this Section 11.10
shall affect the right of the Agent or the Revolving Credit Lenders to bring
proceedings against the Borrower in the courts of any other jurisdiction or to
serve process in any other manner permitted by applicable law.
Section 11.11. Tax Forms. On or before the date hereof or, if later, the
date on which it acquires the rights and obligations of a Revolving Credit
Lender pursuant to this Agreement, each Revolving Credit Lender which is not a
United States person (within the meaning of Section 7701 of the Internal Revenue
Code of 1986) will deliver to each of the Borrower and the Agent a fully
completed and duly executed copy of United States Internal Revenue Service Form
4224 or Form 1001 confirming that such Revolving Credit Lender is entitled under
Section 1442 of the Internal Revenue Code or any other applicable provision
thereof or under any applicable tax treaty or convention to receive payments
under this Agreement without deduction or withholding of United States federal
income tax. So long as the Commitments are outstanding and until the Obligations
have been paid and performed in full, each such Revolving Credit Lender shall
also deliver a further copy of such Form 4224 or Form 1001 or any successor
forms thereto to the Borrower and the Agent upon expiration of the form
previously delivered by such Revolving Credit Lender hereunder, unless any
change in law or regulation of the United States or any taxing authority thereof
has occurred prior to the date on which such delivery would otherwise be
required which renders such form inapplicable or which would prevent such
Revolving Credit Lender from completing and delivering such form.
Notwithstanding anything to the contrary in this Agreement, the Borrower shall
not be required to gross-up any payment for withholding taxes imposed on any
Revolving Credit Lender which has failed to comply with its obligations under
this Section 11.11 if such compliance would have avoided such withholding taxes.
55
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
MINIMED INC., a Delaware corporation,
as Borrower
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
ING (U.S.) CAPITAL LLC,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
56
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $2,339,062.00 ING (U.S.) CAPITAL LLC
Commitment Percentage: 15.59%
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Credit Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ING (U.S.) Capital LLC
Atlanta ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
57
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $937,500.00 CIBC INC.
Commitment Percentage: 6.25%
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Associate
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
58
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $2,460,938.00 THE BANK OF NOVA SCOTIA
Commitment Percentage: 16.41%
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Relationship Manager
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Relationship Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
59
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $1,640,625.00 ▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL
SERVICES INC.
Commitment Percentage: 10.94%
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Asst. Vice President
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
60
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $2,460,937.00 COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
Commitment Percentage: 16.41%
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇,
Vice President
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
61
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $1,640,625.00 SANWA BANK CALIFORNIA
Commitment Percentage: 10.94%
By: /s/ ▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇,
Vice President
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
62
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $1,059,375.00 COMERICA WEST INCORPORATED
Commitment Percentage: 7.06%
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Asst. Vice President
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
63
COMMITMENTS AND
COMMITMENT PERCENTAGES REVOLVING CREDIT LENDERS
Commitment: $2,460,938.00 CITY NATIONAL BANK
Commitment Percentage: 16.41%
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇,
Vice President
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]