Exhibit 10.10
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LOAN AND SECURITY AGREEMENT
by and among
VENTIV HEALTH, INC.
and
VENTIV HEALTH U.S. SALES LLC
as Borrowers,
THE LENDERS THAT ARE SIGNATORIES HERETO
as the Lenders,
and
FOOTHILL CAPITAL CORPORATION
as the Arranger and Administrative Agent
Dated as of March 29, 2002
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LOAN AND SECURITY AGREEMENT
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THIS LOAN AND SECURITY AGREEMENT (this "Agreement"), is entered into
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as of March 29, 2002, between and among, on the one hand, the lenders identified
on the signature pages hereof (such lenders, together with their respective
successors and assigns, are referred to hereinafter each individually as a
"Lender" and collectively as the "Lenders"), and FOOTHILL CAPITAL CORPORATION, a
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California corporation, as the arranger and administrative agent for the Lenders
("Agent"), and, on the other hand, VENTIV HEALTH, INC., a Delaware corporation
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("Parent"), and VENTIV HEALTH U.S. SALES LLC, a New Jersey limited liability
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company ("U.S. Sales" and together with Parent, each individually a "Borrower",
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and individually and collectively, jointly and severally, the "Borrowers").
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The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. As used in this Agreement, the following terms shall
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have the following definitions:
"Account Debtor" means any Person who is or who may become obligated
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under, with respect to, or on account of, an Account, chattel paper, or a
General Intangible.
"Accounts" means all of Borrowers' now owned or hereafter acquired
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right, title, and interest with respect to "accounts" (as that term is defined
in the Code), and any and all supporting obligations in respect thereof.
"ACH Transactions" means any cash management or related services
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(including the Automated Clearing House processing of electronic funds transfers
through the direct Federal Reserve Fedline system) provided by ▇▇▇▇▇ Fargo or
its Affiliates for the account of Administrative Borrower or its Subsidiaries.
"Additional Documents" has the meaning set forth in Section 4.4.
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"Administrative Borrower" has the meaning set forth in Section 17.9.
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"Advances" has the meaning set forth in Section 2.1.
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"Affiliate" means, as applied to any Person, any other Person who,
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directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of Stock, by contract, or
otherwise; provided, however, that, for purposes of the definitions of Eligible
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Billed Accounts and Eligible Unbilled Accounts and Section 7.13 hereof: (a) any
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Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other members of the
governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person) shall be
deemed to control such Person; (b) each director (or comparable manager) of a
Person shall be
deemed to be an Affiliate of such Person; and (c) each partnership or joint
venture in which a Person is a partner or joint venturer shall be deemed to be
an Affiliate of such Person.
"Agent" means Foothill, solely in its capacity as agent for the
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Lenders hereunder, and any successor thereto.
"Agent's Account" means the account identified on Schedule A-1.
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"Agent Advances" has the meaning set forth in Section 2.2(e)(i).
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"Agent's Liens" means the Liens granted by Borrowers to Agent for the
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benefit of the Lender Group under this Agreement or the other Loan Documents.
"Agent-Related Persons" means Agent together with its Affiliates,
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officers, directors, employees, and agents.
"Agreement" has the meaning set forth in the preamble hereto.
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"Applicable Prepayment Premium" means, as of any date of
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determination, an amount equal to (a) during the period of time from and after
the date of the execution and delivery of this Agreement up to the date that is
the first anniversary of the Closing Date, 2% times the Maximum Revolver Amount,
(b) during the period of time from and including the date that is the first
anniversary of the Closing Date up to the date that is the second anniversary of
the Closing Date, 1.5% times the Maximum Revolver Amount, and (c) during the
period of time from and including the date that is the second anniversary of the
Closing Date up to the Maturity Date, 1% times the Maximum Revolver Amount.
"Assignee" has the meaning set forth in Section 14.1.
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"Assignment and Acceptance" means an Assignment and Acceptance in the
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form of Exhibit A-1.
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"Authorized Person" means any officer or other employee of
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Administrative Borrower.
"Availability" means, as of any date of determination, if such date is
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a Business Day, and determined at the close of business on the immediately
preceding Business Day, if such date of determination is not a Business Day, the
amount that Borrowers are entitled to borrow as Advances under Section 2.1
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(after giving effect to all then outstanding Obligations (other than Bank
Products Obligations) and all sublimits and reserves applicable hereunder).
"Bank Product Agreements" means those certain cash management service
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agreements entered into from time to time by Administrative Borrower or its
Subsidiaries in connection with any of the Bank Products.
"Bank Product Obligations" means all obligations, liabilities,
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contingent reimbursement obligations, fees, and expenses owing by Administrative
Borrower or its Subsidiaries to ▇▇▇▇▇ Fargo or its Affiliates pursuant to or
evidenced by the Bank Product
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Agreements and irrespective of whether for the payment of money, whether direct
or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and including all such amounts that a Borrower is obligated
to reimburse to Agent or any member of the Lender Group as a result of Agent or
such member of the Lender Group purchasing participations or executing
indemnities or reimbursement obligations with respect to the Bank Products
provided to Administrative Borrower or its Subsidiaries pursuant to the Bank
Product Agreements.
"Bank Products" means any service or facility extended to
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Administrative Borrower or its Subsidiaries by ▇▇▇▇▇ Fargo or any Affiliate of
▇▇▇▇▇ Fargo including: (a) credit cards, (b) credit card processing services,
(c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash management,
including controlled disbursement, accounts or services, or (g) Hedge
Agreements.
"Bank Product Reserves" means, as of any date of determination, the
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amount of reserves that Agent has established (based upon ▇▇▇▇▇ Fargo's or its
Affiliate's reasonable determination of the credit exposure in respect of then
extant Bank Products) for Bank Products then provided or outstanding.
"Bankruptcy Code" means the United States Bankruptcy Code, as in
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effect from time to time.
"Base LIBOR Rate" means the rate per annum, determined by Agent in
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accordance with its customary procedures, and utilizing such electronic or other
quotation sources as it considers appropriate (rounded upwards, if necessary, to
the next 1/16%), on the basis of the rates at which Dollar deposits are offered
to major banks in the London interbank market on or about 11:00 a.m. (California
time) 2 Business Days prior to the commencement of the applicable Interest
Period, for a term and in amounts comparable to the Interest Period and amount
of the LIBOR Rate Loan requested by Administrative Borrower in accordance with
this Agreement, which determination shall be conclusive in the absence of
manifest error.
"Base Rate" means, the rate of interest announced within ▇▇▇▇▇ Fargo
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at its principal office in San Francisco as its "prime rate", with the
understanding that the "prime rate" is one of ▇▇▇▇▇ Fargo's base rates (not
necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such
internal publication or publications as ▇▇▇▇▇ Fargo may designate.
"Base Rate Loan" means each portion of an Advance that bears interest
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at a rate determined by reference to the Base Rate.
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"Base Rate Margin" means (i) for the period from the Closing Date up
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to and including March 31, 2003, 0.75 percentage points and (ii) for each 12
month period commencing on each April 1 thereafter, the following margin which
shall be based upon EBITDA of the Parent and its Subsidiaries for the
immediately preceding fiscal year as determined based upon Borrowers' audited
financial statements for the immediately preceding fiscal year:
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EBITDA Base Rate Margin
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Greater than $27,500,000 0.25 percentage points
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$22,500,000 to $27,500,000 0.50 percentage points
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Less than $22,500,000 0.75 percentage points
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"Bayer" means Bayer Corporation, an Indiana corporation.
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"Bayer Contract" means the Contract Sales Force and Co-Promotion
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Agreement dated as of June 7, 2001 between Bayer and U.S. Sales.
"Benefit Plan" means a "defined benefit plan" (as defined in Section
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3(35) of ERISA) for which any Borrower or any Subsidiary or ERISA Affiliate of
any Borrower has been an "employer" (as defined in Section 3(5) of ERISA) within
the past six years.
"Billed Subline" means the subline under the Maximum Revolver Amount
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for Advances made against Eligible Billed Accounts equal to (i) $30,000,000
prior to the date that Agent approves the initial Advances under the Unbilled
Subline and (ii) the Maximum Revolver Amount from and after the date that there
are one or more lenders, in addition to Foothill, that have aggregate
commitments of $20,000,000 or more under this Agreement.
"Board of Directors" means the board of directors (or comparable
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managers) of Parent or any committee thereof duly authorized to act on behalf
thereof.
"Books" means all of each Borrower's and its Subsidiaries' now owned
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or hereafter acquired books and records (including all of its Records
indicating, summarizing, or evidencing its assets (including the Collateral) or
liabilities, all of each Borrower's or its Subsidiaries' Records relating to its
or their business operations or financial condition, and all of its or their
goods or General Intangibles related to such information).
"Borrower" and "Borrowers" have the respective meanings set forth in
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the preamble to this Agreement.
"Borrowing" means a borrowing hereunder consisting of Advances made on
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the same day by the Lenders (or Agent on behalf thereof), or by Swing Lender in
the case of a Swing Loan, or by Agent in the case of an Agent Advance, in each
case, to Administrative Borrower.
"Borrowing Base" has the meaning set forth in Section 2.1.
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"Business Day" means any day that is not a Saturday, Sunday, or other
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day on which national banks are authorized or required to close, except that, if
a determination of a Business Day shall relate to a LIBOR Rate Loan, the term
"Business Day" also shall exclude any day on which banks are closed for dealings
in Dollar deposits in the London interbank market.
"Capital Lease" means a lease that is required to be capitalized for
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financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means any Indebtedness represented by
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obligations under a Capital Lease.
"Cash Equivalents" means (a) marketable direct obligations issued or
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unconditionally guaranteed by the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case
maturing within 1 year from the date of acquisition thereof, (b) marketable
direct obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within 1 year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either S&P or ▇▇▇▇▇'▇,
(c) commercial paper maturing no more than 270 days from the date of acquisition
thereof and, at the time of acquisition, having a rating of A-1 or P-1, or
better, from S&P or ▇▇▇▇▇'▇, and (d) certificates of deposit or bankers'
acceptances maturing within 1 year from the date of acquisition thereof either
(i) issued by any bank organized under the laws of the United States or any
state thereof which bank has a rating of A or A2, or better, from S&P or
▇▇▇▇▇'▇, or (ii) certificates of deposit less than or equal to $100,000 in the
aggregate issued by any other bank insured by the Federal Deposit Insurance
Corporation.
"Cash Management Bank" has the meaning set forth in Section 2.6(a).
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"Cash Management Account" has the meaning set forth in Section 2.6(a).
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"Cash Management Agreements" means those certain cash management
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service agreements, in form and substance reasonably satisfactory to
Administrative Borrower and Agent, each of which is among Administrative
Borrower, Agent, and one of the Cash Management Banks.
"Cellegy" means Cellegy Pharmaceuticals, Inc., a California
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corporation.
"Change of Control" means (a) any "person" or "group" (within the
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meaning of Sections 13(d) and 14(d) of the Exchange Act), becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 49%, or more, of the Stock of Parent having the right to vote for the
election of members of the Board of Directors, or (b) a majority of the members
of the Board of Directors do not constitute Continuing Directors, or (c) except
in connection with a Permitted Disposition or a Permitted Dissolution, any
Borrower ceases to directly own and control 100% of the outstanding capital
Stock of each of its Subsidiaries extant as of the Closing Date.
"Closing Date" means the date of the making of the Initial Advance (or
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other extension of credit) hereunder or the date on which Agent sends
Administrative Borrower a
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written notice that each of the conditions precedent set forth in Section 3.1
either have been satisfied or have been waived.
"Closing Date Business Plan" means the set of Projections of Borrowers
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for the 2 year period following the Closing Date (on a year by year basis, and
for the 2002 calendar year, on a month by month basis), in form and substance
(including as to scope and underlying assumptions) reasonably satisfactory to
Agent.
"Code" means the New York Uniform Commercial Code, as in effect from
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time to time.
"Collateral" means all of each Borrower's now owned or hereafter
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acquired right, title, and interest in and to each of the following:
(a) Accounts,
(b) Books,
(c) Equipment,
(d) General Intangibles,
(e) Inventory,
(f) Investment Property, provided that only 66-2/3% of the shares
of capital Stock of each Borrower's Subsidiaries organized outside of the
United States shall be included in the Collateral,
(g) Negotiable Collateral,
(h) Real Property Collateral,
(i) money or other assets of each such Borrower that now or
hereafter come into the possession, custody, or control of any member of
the Lender Group, and
(j) the proceeds and products, whether tangible or intangible, of
any of the foregoing, including proceeds of insurance covering any or all
of the foregoing, and any and all Accounts, Books, Equipment, General
Intangibles, Inventory, Investment Property, Negotiable Collateral, Real
Property, money, deposit accounts, or other tangible or intangible property
resulting from the sale, exchange, collection, or other disposition of any
of the foregoing, or any portion thereof or interest therein, and the
proceeds thereof.
"Collateral Access Agreement" means a landlord waiver, bailee letter,
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or acknowledgement agreement of any lessor, warehouseman, processor, consignee,
or other Person in possession of, having a Lien upon, or having rights or
interests in the Equipment or other Collateral, in each case, in form and
substance reasonably satisfactory to Agent.
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"Collections" means all cash, checks, notes, instruments, and other
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items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) to Borrowers.
"Commercial Tort Claim Assignment" has the meaning set forth in
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Section 4.4(b).
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"Commitment" means, with respect to each Lender, its Commitment, and,
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with respect to all Lenders, their Commitments, in each case as such Dollar
amounts are set forth beside such Lender's name on Schedule C-1 or on the
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signature page of the Assignment and Acceptance pursuant to which such Lender
became a Lender hereunder in accordance with the provisions of Section 14.1.
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"Compliance Certificate" means a certificate substantially in the form
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of Exhibit C-1 delivered by the chief financial officer of Parent to Agent.
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"Continuing Director" means (a) any member of the Board of Directors
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who was a director (or comparable manager) of Parent on the Closing Date, and
(b) any individual who becomes a member of the Board of Directors after the
Closing Date if such individual was appointed or nominated for election to the
Board of Directors by a majority of the Continuing Directors, but excluding any
such individual originally proposed for election in opposition to the Board of
Directors in office at the Closing Date in an actual or threatened election
contest relating to the election of the directors (or comparable managers) of
Parent (as such terms are used in Rule 14a-11 under the Exchange Act) and whose
initial assumption of office resulted from such contest or the settlement
thereof.
"Contribution Agreement" means a contribution agreement executed and
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delivered by each Borrower and Guarantor, the form and substance of which is
reasonably satisfactory to Agent.
"Control Agreement" means a control agreement, in form and substance
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reasonably satisfactory to Agent, executed and delivered by the applicable
Borrower, Agent, and the applicable securities intermediary with respect to a
Securities Account or a bank with respect to a deposit account.
"Daily Balance" means, with respect to each day during the term of
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this Agreement, the amount of an Obligation owed at the end of such day.
"DDA" means any checking or other demand deposit account maintained by
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any Borrower.
"Default" means an event, condition, or default that, with the giving
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of notice, the passage of time, or both, would be an Event of Default.
"Defaulting Lender" means any Lender that fails to make any Advance
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(or other extension of credit) that it is required to make hereunder on the date
that it is required to do so hereunder.
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"Defaulting Lender Rate" means (a) the Base Rate for the first 3 days
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from and after the date the relevant payment is due, and (b) thereafter, at the
interest rate then applicable to Advances that are Base Rate Loans (inclusive of
the Base Rate Margin applicable thereto).
"Designated Account" means certain DDA of Administrative Borrower
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identified on Schedule D-1.
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"Designated Account Bank" has the meaning set forth on Schedule D-1.
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"Dilution" means, as of any date of determination, a percentage, based
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upon the experience of the immediately prior 90 days, that is the result of
dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising
allowances, credits, or other dilutive items with respect to Borrowers' Accounts
during such period, by (b) Borrowers' Accounts that were created and billed
during such period.
"Dilution Reserve" means, as of any date of determination, an amount
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sufficient to reduce the advance rate against Eligible Billed Accounts specified
in Section 2.1(x)(i)(A) by one percentage point for each percentage point by
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which Dilution is in excess of 5%.
"Disbursement Letter" means an instructional letter executed and
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delivered by Administrative Borrower to Agent regarding the extensions of credit
to be made on the Closing Date, the form and substance of which is reasonably
satisfactory to Agent.
"Distribution Agreement" means that certain Distribution Agreement
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dated as of September 27, 1999, by and between ▇▇▇▇▇▇ Communications, Inc., a
Delaware corporation and Parent.
"Dollars" or "$" means United States dollars.
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"Domestic Subsidiary" means any direct or indirect Subsidiary of the
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Parent organized under the laws of a state of the United States.
"Due Diligence Letter" means the due diligence letter sent by Agent's
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counsel to Administrative Borrower, together with Administrative Borrower's
completed responses to the inquiries set forth therein, the form and substance
of such responses to be reasonably satisfactory to Agent.
"EBITDA" means, with respect to any fiscal period, Parent's and its
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Subsidiaries consolidated net earnings (or loss), minus extraordinary gains,
plus interest expense, income taxes, depreciation and amortization, and non-cash
charges related to a restructuring, divestiture or asset impairment for such
period, as determined in accordance with GAAP.
"Eligible Billed Accounts" means those Accounts created by one of
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Borrowers in the ordinary course of its business, that arise out of its sale of
goods or rendition of services, that comply with each of the representations and
warranties respecting Eligible Billed Accounts made by Borrowers under the Loan
Documents and that are not excluded as ineligible by virtue of one or more of
the criteria set forth below; provided, however, that such criteria may be fixed
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and revised from time to time by Agent in Agent's Permitted Discretion to
address the results of any
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audit performed by Agent from time to time after the Closing Date. In
determining the amount to be included, Eligible Billed Accounts shall be
calculated net of customer deposits, client advances and unapplied cash remitted
to Borrowers. Eligible Billed Accounts shall not include the following:
(a) Accounts that the Account Debtor has failed to pay within 90
days of original invoice date or, except as consented to in writing by
Agent, Accounts with terms of more than 60 days,
(b) Accounts owed by an Account Debtor (or its Affiliates) where
50% or more of all Accounts owed by that Account Debtor (or its Affiliates)
are deemed ineligible under clause (a) above,
(c) Accounts with respect to which the Account Debtor is (i) an
employee, Affiliate, vendor, or agent of any Borrower or (ii) Bayer;
provided, that upon the renegotiation of the Bayer Contract, Agent will
consider the inclusion of the Accounts from the Bayer Contract as Eligible
Billed Accounts based upon the results of Agent's due diligence of such
renegotiated Bayer Contract, provided that the determination to include
such Accounts as Eligible Billed Accounts shall be made in Agent's
Permitted Discretion,
(d) Accounts arising in a transaction wherein there are
conditions to payment by the Account Debtor that are unsatisfied,
(e) Accounts that are not payable in Dollars,
(f) Accounts with respect to which the Account Debtor either (i)
does not maintain its chief executive office in the United States, or (ii)
is not organized under the laws of the United States or any state thereof,
or (iii) is the government of any foreign country or sovereign state, or of
any state, province, municipality, or other political subdivision thereof,
or of any department, agency, public corporation, or other instrumentality
thereof, unless (y) the Account is supported by an irrevocable letter of
credit reasonably satisfactory to Agent (as to form, substance, and issuer
or domestic confirming bank) that has been delivered to Agent and is
directly drawable by Agent, or (z) the Account is covered by credit
insurance in form, substance, and amount, and by an insurer, reasonably
satisfactory to Agent,
(g) Accounts with respect to which the Account Debtor is either
(i) the United States or any department, agency, or instrumentality of the
United States (exclusive, however, of Accounts with respect to which the
applicable Borrower has complied, to the reasonable satisfaction of Agent,
with the Assignment of Claims Act, 31 USC Section 3727), or (ii) any state
of the United States (exclusive, however, of (y) Accounts owed by any state
that does not have a statutory counterpart to the Assignment of Claims Act
or (z) Accounts owed by any state that does have a statutory counterpart to
the Assignment of Claims Act as to which the applicable Borrower has
complied to Agent's reasonable satisfaction),
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(h) Accounts with respect to which the Account Debtor is a
creditor of any Borrower, has or has asserted a right of setoff, has
disputed its liability, or has made any claim with respect to its
obligation to pay the Account, to the extent of such claim, right of
setoff, or dispute,
(i) Accounts with respect to an Account Debtor whose total
obligations owing to Borrowers exceed 10% (or, in the case of Bristol ▇▇▇▇▇
Squibb and Reliant, 20%) (such percentage as applied to a particular
Account Debtor being subject to reduction by Agent in its Permitted
Discretion if the creditworthiness of such Account Debtor deteriorates) of
all Eligible Billed Accounts and Eligible Unbilled Accounts, to the extent
of the obligations owing by such Account Debtor in excess of such
percentage,
(j) Accounts with respect to which the Account Debtor is subject
to an Insolvency Proceeding, is not Solvent, has gone out of business, or
as to which a Borrower has received notice of an imminent Insolvency
Proceeding,
(k) Accounts with respect to which the Account Debtor is located
in the states of New Jersey, Minnesota, or West Virginia (or any other
state that requires a creditor to file a business activity report or
similar document in order to bring suit or otherwise enforce its remedies
against such Account Debtor in the courts or through any judicial process
of such state), unless the applicable Borrower has qualified to do business
in New Jersey, Minnesota, West Virginia, or such other states, or has filed
a business activities report with the applicable division of taxation, the
department of revenue, or with such other state offices, as appropriate,
for the then-current year, or is exempt from such filing requirement,
(l) Accounts, the collection of which, Agent, in its Permitted
Discretion, believes to be doubtful by reason of the Account Debtor's
financial condition,
(m) Accounts that are not subject to a valid and perfected first
priority Agent's Lien,
(n) Accounts with respect to which the services giving rise to
such Account have not been performed and billed to the Account Debtor,
(o) Accounts that represent the right to receive progress
payments or other advance ▇▇▇▇▇▇▇▇ that are due prior to the completion of
performance by the applicable Borrower of the subject contract for goods or
services, provided that the amount of such Account not included in Eligible
Billed Accounts as a result of this clause (o) shall be equal to the amount
of such progress payment or other advance billing due prior to the
completion of such performance, or
(p) prior to the Agent's completion of its due diligence with
respect to Accounts from any customer contracts generated by VIS and the
Agent's satisfaction, in its Permitted Discretion, with the results of such
due diligence, Accounts from any customer contracts generated by VIS (which
due diligence will be conducted by Agent as promptly as practicable upon a
request by Parent).
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"Eligible Transferee" means (a) a commercial bank organized under the
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laws of the United States, or any state thereof, and having total assets in
excess of $250,000,000, (b) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development or a political subdivision of any such country and which has total
assets in excess of $250,000,000, provided that such bank is acting through a
branch or agency located in the United States, (c) a finance company, insurance
company, or other financial institution or fund that is engaged in making,
purchasing, or otherwise investing in commercial loans in the ordinary course of
its business and having (together with its Affiliates) total assets in excess of
$250,000,000, (d) any Affiliate (other than individuals) of a Lender that was
party hereto as of the Closing Date, provided that such Affiliate is able to
perform its obligations under this Agreement, (e) so long as no Event of Default
has occurred and is continuing, any other Person approved by Agent and
Administrative Borrower, and (f) during the continuation of an Event of Default,
any other Person approved by Agent.
"Eligible Unbilled Accounts" means those Accounts of Borrowers that
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(a) are not more than 45 days past billing, (b) do not qualify as Eligible
Billed Accounts solely because such Accounts have not been billed to the Account
Debtor, and (c) are acceptable to Agent in its sole and absolute discretion.
"Environmental Actions" means any complaint, summons, citation,
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notice, directive, order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter, or other communication from any
Governmental Authority, or any third party involving violations of Environmental
Laws or releases of Hazardous Materials from (a) any assets, properties, or
businesses of any Borrower or any predecessor in interest, (b) from adjoining
properties or businesses, or (c) from or onto any facilities which received
Hazardous Materials generated by any Borrower or any predecessor in interest.
"Environmental Law" means any applicable federal, state, provincial,
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foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on Borrowers, relating
to the environment, employee health and safety, or Hazardous Materials,
including CERCLA; RCRA; the Federal Water Pollution Control Act, 33 USC Section
1251 et seq; the Toxic Substances Control Act, 15 USC, Section 2601 et seq; the
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Clean Air Act, 42 USC Section 7401 et seq.; the Safe Drinking Water Act, 42 USC.
-- ---
Section 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. Section 2701 et
-- --- --
seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
---
USC. Section 11001 et seq.; the Hazardous Material Transportation Act, 49 USC
-- ---
Section 1801 et seq.; and the Occupational Safety and Health Act, 29 USC.
-- ---
Section 651 et seq. (to the extent it regulates occupational exposure to
-- ---
Hazardous Materials); any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
"Environmental Liabilities and Costs" means all liabilities, monetary
-----------------------------------
obligations, Remedial Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties,
-11-
sanctions, and interest incurred as a result of any claim or demand by any
Governmental Authority or any third party, and which relate to any Environmental
Action.
"Environmental Lien" means any Lien in favor of any Governmental
------------------
Authority for Environmental Liabilities and Costs.
"Equipment" means all of Borrowers' now owned or hereafter acquired
---------
right, title, and interest with respect to equipment, machinery, machine tools,
motors, furniture, furnishings, fixtures, vehicles (including motor vehicles),
tools, parts, goods (other than consumer goods, farm products, or Inventory),
wherever located, including all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any Person subject to ERISA whose
---------------
employees are treated as employed by the same employer as the employees of a
Borrower under IRC Section 414(b), (b) any trade or business subject to ERISA
whose employees are treated as employed by the same employer as the employees of
a Borrower under IRC Section 414(c), (c) solely for purposes of Section 302 of
ERISA and Section 412 of the IRC, any organization subject to ERISA that is a
member of an affiliated service group of which a Borrower is a member under IRC
Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any Person subject to ERISA that is a party to an arrangement
with a Borrower and whose employees are aggregated with the employees of a
Borrower under IRC Section 414(o).
"Event of Default" has the meaning set forth in Section 8.
---------------- ---------
"Excess Availability" means the amount, as of the date any
-------------------
determination thereof is to be made, equal to Availability minus the aggregate
amount, if any, of all trade payables of Borrowers aged in excess of their
historical levels with respect thereto and all book overdrafts in excess of
their historical practices with respect thereto, in each case as determined by
Agent in its Permitted Discretion.
"Exchange Act" means the Securities Exchange Act of 1934, as in effect
------------
from time to time.
"Existing Lender" means Bank of America, N.A., as administrative agent
---------------
for certain lenders to Parent.
"Fee Letter" means that certain fee letter, dated as of even date
----------
herewith, between Borrowers and Agent, in form and substance reasonably
satisfactory to Agent.
"FEIN" means Federal Employer Identification Number.
----
"Foothill" means Foothill Capital Corporation, a California
--------
corporation.
"Foreign Subsidiary" means any direct or indirect Subsidiary of the
------------------
Parent other than Domestic Subsidiaries.
-12-
"Funding Date" means the date on which a Borrowing occurs.
------------
"Funding Losses" has the meaning set forth in Section 2.12(b)(ii).
-------------- -------------------
"GAAP" means generally accepted accounting principles as in effect
----
from time to time in the United States, consistently applied.
"General Intangibles" means all of Borrowers' now owned or hereafter
-------------------
acquired right, title, and interest with respect to general intangibles
(including Intellectual Property, payment intangibles, contract rights, rights
to payment, rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, blueprints, drawings, purchase orders, customer
lists, monies due or recoverable from pension funds, route lists, rights to
payment and other rights under any royalty or licensing agreements, computer
programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, money, deposit accounts, insurance premium
rebates, tax refunds, and tax refund claims), and any and all supporting
obligations in respect thereof, and any other personal property other than
goods, Accounts, Investment Property, and Negotiable Collateral.
"Governing Documents" means, with respect to any Person, the
-------------------
certificate or articles of incorporation, by-laws, or other organizational
documents of such Person.
"Governmental Authority" means any federal, state, local, or other
----------------------
governmental or administrative body, instrumentality, department, or agency or
any court, tribunal, administrative hearing body, arbitration panel, commission,
or other similar dispute-resolving panel or body.
"Guarantor Security Agreement" means that certain security agreement
----------------------------
made by Guarantors in favor of Agent for the benefit of the Lender Group in the
form attached as Exhibit G-1.
-----------
"Guarantors" means, collectively, Ventiv Health, LLC, VIS, HPR,
----------
Promotech, Imedex, VHC and Scientific Exchange.
"Guaranty" means that certain general continuing guaranty executed and
--------
delivered by each Guarantor in favor of Agent, for the benefit of the Lender
Group, in the form of Exhibit G-2.
-----------
"Hazardous Materials" means (a) substances that are defined or listed
-------------------
in, or otherwise classified pursuant to, any applicable laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
-13-
"Hedge Agreement" means any and all transactions, agreements, or
---------------
documents now existing or hereafter entered into between Administrative Borrower
or its Subsidiaries and ▇▇▇▇▇ Fargo or its Affiliates, which provide for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging Administrative Borrower's or its
Subsidiaries' exposure to fluctuations in interest or exchange rates, loan,
credit exchange, security or currency valuations or commodity prices.
"HPR" means Health Products Research, Inc., a New Jersey corporation.
---
"Indebtedness" means with respect to any Person (a) all obligations
------------
for borrowed money, (b) all obligations evidenced by bonds, debentures, notes,
or other similar instruments and all reimbursement or other obligations in
respect of letters of credit, bankers acceptances, interest rate swaps, or other
financial products, (c) all obligations under Capital Leases, (d) all
obligations or liabilities of others secured by a Lien on any asset of
Administrative Borrower or its Subsidiaries, irrespective of whether such
obligation or liability is assumed, (e) all obligations for the deferred
purchase price of assets (other than trade debt incurred in the ordinary course
of business and repayable in accordance with customary trade practices), and (f)
any obligation guaranteeing or intended to guarantee (whether directly or
indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse, but
excluding any endorsement of instruments or items of payment for deposit into
any DDA of any Borrower) any obligation of any other Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.3.
----------------------- ------------
"Indemnified Person" has the meaning set forth in Section 11.3.
------------------ ------------
"Initial Advance" has the meaning set forth in Section 2.1.
--------------- -----------
"Initial Advance Account" has the meaning set forth in Section 2.1.
----------------------- -----------
"Insolvency Proceeding" means any proceeding commenced by or against
---------------------
any Person under any provision of the Bankruptcy Code or under any other state
or federal bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
"Intangible Assets" means, with respect to any Person, that portion of
-----------------
the book value of all of such Person's assets that would be treated as
intangibles under GAAP.
"Intellectual Property" means all foreign and domestic (i) trademarks,
---------------------
service marks, brand names, certification marks, collective marks, d/b/a's,
Internet domain names, logos, symbols, trade dress, assumed names, fictitious
names, trade names, and other indicia of origin, all applications and
registrations for all of the foregoing, and all goodwill associated therewith
and symbolized thereby, including without limitation all extensions,
modifications and renewals of same; (ii) inventions, discoveries and ideas,
whether patentable or not, and all patents, registrations, and applications
therefor, including without limitation divisions, continuations,
continuations-in-part and renewal applications, and including without limitation
renewals,
-14-
extensions and reissues; (iii) confidential and proprietary information, trade
secrets and know-how, including without limitation processes, schematics,
databases, formulae, drawings, prototypes, models, designs and customer lists;
(iv) published and unpublished works of authorship, whether copyrightable or
not, copyrights therein and thereto, and registrations and applications
therefor, and all renewals, extensions, restorations and reversions thereof; and
(v) all other intellectual property or proprietary rights and claims or causes
of action arising out of or related to any infringement, misappropriation or
other violation of any of the foregoing, including without limitation rights to
recover for past, present and future violations thereof.
"Intercompany Subordination Agreement" means a subordination agreement
------------------------------------
executed and delivered by Borrowers, Guarantors, and Agent in the form of
Exhibit I-1.
-----------
"Interest Period" means, with respect to each LIBOR Rate Loan, a
---------------
period commencing on the date of the making of such LIBOR Rate Loan and ending
1, 2, or 3 months thereafter; provided, however, that (a) if any Interest Period
-------- -------
would end on a day that is not a Business Day, such Interest Period shall be
extended (subject to clauses (c)-(e) below) to the next succeeding Business Day,
(b) interest shall accrue at the applicable rate based upon the LIBOR Rate from
and including the first day of each Interest Period to, but excluding, the day
on which any Interest Period expires, (c) any Interest Period that would end on
a day that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day, (d) with
respect to an Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period), the Interest Period shall
end on the last Business Day of the calendar month that is 1, 2, or 3 months
after the date on which the Interest Period began, as applicable, and (e)
Borrowers (or Administrative Borrower on behalf thereof) may not elect an
Interest Period which will end after the Maturity Date.
"Imedex" means International Medical Experience Exchange U.S.A., Inc.,
------
a Georgia corporation.
"Inventory" means all Borrowers' now owned or hereafter acquired
---------
right, title, and interest with respect to inventory, including goods held for
sale or lease or to be furnished under a contract of service, goods that are
leased by a Borrower as lessor, goods that are furnished by a Borrower under a
contract of service, and raw materials, work in process, or materials used or
consumed in a Borrower's business.
"Investment" means, with respect to any Person, any investment by such
----------
Person in any other Person (including Affiliates) in the form of loans,
guarantees, advances, or capital contributions (excluding (a) commission,
travel, and similar advances to officers and employees of such Person made in
the ordinary course of business, and (b) bona fide Accounts arising in the
ordinary course of business consistent with past practices), purchases or other
acquisitions for consideration of Indebtedness or Stock, and any other items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
-15-
"Investment Property" means all of Borrowers' now owned or hereafter
-------------------
acquired right, title, and interest with respect to "investment property" as
that term is defined in the Code, and any and all supporting obligations in
respect thereof.
"IRC" means the Internal Revenue Code of 1986, as in effect from time
---
to time.
"Issuing Lender" means Foothill or any other Lender that, at the
--------------
request of Administrative Borrower and with the consent of Agent agrees, in such
Lender's sole discretion, to become an Issuing Lender for the purpose of issuing
L/Cs or L/C Undertakings pursuant to Section 2.11.
------------
"L/C" has the meaning set forth in Section 2.11(a).
--- -------
"L/C Disbursement" means a payment made by the Issuing Lender pursuant
----------------
to a Letter of Credit.
"L/C Undertaking" has the meaning set forth in Section 2.11(a).
--------------- ---------------
"Lender" and "Lenders" have the respective meanings set forth in the
------ -------
preamble to this Agreement, and shall include any other Person made a party to
this Agreement in accordance with the provisions of Section 14.1.
------------
"Lender Group" means, individually and collectively, each of the
------------
Lenders (including the Issuing Lender) and Agent.
"Lender Group Expenses" means all (a) costs or expenses (including
---------------------
taxes, and insurance premiums) required to be paid by a Borrower under any of
the Loan Documents that are paid or incurred by the Lender Group, (b) reasonable
fees or charges paid or incurred by Agent in connection with the Lender Group's
transactions with Borrowers, including, fees or charges for photocopying,
notarization, couriers and messengers, telecommunication, public record searches
(including tax lien, litigation, and UCC searches and including searches with
the patent and trademark office, the copyright office, or the department of
motor vehicles), filing, recording, publication, appraisal (including periodic
Collateral appraisals or business valuations to the extent of the fees and
charges (and up to the amount of any limitation) contained in this Agreement),
real estate surveys, real estate title policies and endorsements, and
environmental audits, (c) costs and expenses incurred by Agent in the
disbursement of funds to or for the account of Borrowers (by wire transfer or
otherwise), (d) charges paid or incurred by Agent resulting from the dishonor of
checks, (e) reasonable costs and expenses paid or incurred by the Lender Group
to correct any default or enforce any provision of the Loan Documents, or in
gaining possession of, maintaining, handling, preserving, storing, shipping,
selling, preparing for sale, or advertising to sell the Collateral, or any
portion thereof, irrespective of whether a sale is consummated, (f) audit fees
and expenses of Agent related to audit examinations of the Books to the extent
of the fees and charges (and up to the amount of any limitation) contained in
this Agreement, (g) reasonable costs and expenses of third party claims or any
other suit paid or incurred by the Lender Group in enforcing or defending the
Loan Documents or in connection with the transactions contemplated by the Loan
Documents or the Lender Group's relationship with any Borrower or any guarantor
of the Obligations, (h) Agent's and each Lender's reasonable fees and expenses
(including attorneys fees) incurred in advising, structuring, drafting,
-16-
reviewing, administering, or amending the Loan Documents, and (i) Agent's and
each Lender's reasonable fees and expenses (including attorneys fees) incurred
in terminating, enforcing (including attorneys fees and expenses incurred in
connection with a "workout," a "restructuring," or an Insolvency Proceeding
concerning any Borrower or in exercising rights or remedies under the Loan
Documents), or defending the Loan Documents, irrespective of whether suit is
brought, or in taking any Remedial Action concerning the Collateral, provided
that Lender Group shall not be entitled to include their ordinary course
overhead expenses as of part of Lender Group Expenses.
"Lender-Related Person" means, with respect to any Lender, such
---------------------
Lender, together with such Lender's Affiliates, and the officers, directors,
employees, and agents of such Lender.
"Letter of Credit" means an L/C or an L/C Undertaking, as the context
----------------
requires.
"Letter of Credit Usage" means, as of any date of determination, the
----------------------
aggregate undrawn amount of all outstanding Letters of Credit plus 100% of the
amount of outstanding time drafts accepted by an Underlying Issuer as a result
of drawings under Underlying Letters of Credit.
"LIBOR Deadline" has the meaning set forth in Section 2.12(b)(i).
-------------- ------------------
"LIBOR Notice" means a written notice in the form of Exhibit L-1.
------------ -----------
"LIBOR Rate" means, for each Interest Period for each LIBOR Rate Loan,
----------
the rate per annum determined by Agent (rounded upwards, if necessary, to the
next 1/16%) by dividing (a) the Base LIBOR Rate for such Interest Period, by (b)
100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and as of
the effective day of any change in the Reserve Percentage.
"LIBOR Rate Loan" means each portion of an Advance that bears interest
---------------
at a rate determined by reference to the LIBOR Rate.
"LIBOR Rate Margin" means (i) for the period from the Closing Date up
-----------------
to and including March 31, 2003, 2.75 percentage points (ii) and for each 12
month period commencing on each April 1 thereafter, the following margin which
shall be based upon EBITDA of the Parent and its Subsidiary for the immediately
preceding fiscal year as determined based upon Borrowers' audited financial
statements for the immediately preceding fiscal year:
===================================================
EBITDA LIBOR Rate Margin
------ -----------------
===================================================
Greater than $27,500,000 2.25 percentage points
---------------------------------------------------
$22,500,000 to $27,500,000 2.50 percentage points
---------------------------------------------------
Less than $22,500,000 2.75 percentage points
===================================================
-17-
"Lien" means any interest in an asset securing an obligation owed to,
----
or a claim by, any Person other than the owner of the asset, whether such
interest shall be based on the common law, statute, or contract, whether such
interest shall be recorded or perfected, and whether such interest shall be
contingent upon the occurrence of some future event or events or the existence
of some future circumstance or circumstances, including the lien or security
interest arising from a mortgage, deed of trust, encumbrance, pledge,
hypothecation, assignment, deposit arrangement, security agreement, conditional
sale or trust receipt, or from a lease, consignment, or bailment for security
purposes and also including reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title
exceptions and encumbrances affecting Real Property.
"Lighthouse Software" means the Lighthouse Software and the Lighthouse
-------------------
Intellectual Property related to the Lighthouse Software (in each case as
defined in the Membership Interest Redemption Agreement dated as of May 31, 2001
among Administrative Borrower, Diginet LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇).
"Loan Account" has the meaning set forth in Section 2.9.
------------ -----------
"Loan Documents" means this Agreement, the Bank Product Agreements,
--------------
the Cash Management Agreements, the Contribution Agreement, the Control
Agreements, the Copyright Security Agreement, the Disbursement Letter, the Due
Diligence Letter, the Fee Letter, the Guaranty, the Guarantor Security
Agreement, the Letters of Credit, the Mortgages, the Officers' Certificate, the
Patent Security Agreement, the Pledge Agreement, the Trademark Security
Agreement, the Intercompany Subordination Agreement, any note or notes executed
by a Borrower in connection with this Agreement and payable to a member of the
Lender Group, and any other agreement entered into, now or in the future, by any
Borrower and the Lender Group in connection with this Agreement.
"Material Adverse Change" means (a) a material adverse change in the
-----------------------
business, operations, results of operations, assets, liabilities or condition
(financial or otherwise) of Borrowers taken as a whole or of Borrowers and
Guarantors taken as a whole, (b) a material impairment of a Borrower's ability
to perform its obligations under the Loan Documents to which it is a party or of
the ability of Borrowers and Guarantors, taken as a whole, to perform their
obligations under the Loan Documents to which they are a party, or of the Lender
Group's ability to enforce the Obligations or realize upon the Collateral, other
than as a result of an action or failure to act on the part of a Lender, or (c)
a material impairment of the enforceability or priority of the Agent's Liens
with respect to the Collateral as a result of an action or failure to act on the
part of a Borrower.
"Material Contract" means any agreement or contract of any Borrower or
-----------------
any Subsidiary of a Borrower which (a)(i) in the case of a Borrower, involves
consideration to such Borrower of $250,000 or more in any year and (ii) in the
case of a Subsidiary of a Borrower (other than U.S. Sales), involves
consideration to such Subsidiary of $2,000,000 or more in any year, (b) involves
consideration by such Borrower or Subsidiary of $250,000 or more in any year,
(c) imposes financial obligations on any Borrower or any Subsidiary of $250,000
or more in any year, or (d) is otherwise material (or together with related
agreements and contracts, is material) to the business, operations, financial
condition, performance or properties of the Parent and its
-18-
Subsidiaries, taken as a whole; provided that employment agreements shall not
constitute Material Contracts.
"Maturity Date" has the meaning set forth in Section 3.4.
------------- -----------
"Maximum Revolver Amount" means $50,000,000.
-----------------------
"Mortgages" means, individually and collectively, one or more
---------
mortgages, deeds of trust, or deeds to secure debt, executed and delivered by a
Borrower in favor of Agent, for the benefit of the Lender Group, in form and
substance reasonably satisfactory to Agent, that encumber the Real Property
Collateral and the related improvements thereto.
"Negotiable Collateral" means all of Borrowers' now owned and
---------------------
hereafter acquired right, title, and interest with respect to letters of credit,
letter of credit rights, instruments, promissory notes, drafts, documents, and
chattel paper (including electronic chattel paper and tangible chattel paper),
and any and all supporting obligations in respect thereof.
"Obligations" means (a) all loans, Advances, debts, principal,
-----------
interest (including any interest that, but for the provisions of the Bankruptcy
Code, would have accrued), contingent reimbursement obligations with respect to
outstanding Letters of Credit, premiums, liabilities (including all amounts
charged to Borrowers' Loan Account pursuant hereto), obligations, fees
(including the fees provided for in the Fee Letter), charges, costs, Lender
Group Expenses (including any fees or expenses that, but for the provisions of
the Bankruptcy Code, would have accrued), lease payments, guaranties, covenants,
and duties of any kind and description owing by Borrowers to the Lender Group
pursuant to or evidenced by the Loan Documents and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter arising, and including all interest not
paid when due and all Lender Group Expenses that Borrowers are required to pay
or reimburse by the Loan Documents, by law, or otherwise, and (b) all Bank
Product Obligations. Any reference in this Agreement or in the Loan Documents to
the Obligations shall include all amendments, changes, extensions,
modifications, renewals replacements, substitutions, and supplements, thereto
and thereof, as applicable, both prior and subsequent to any Insolvency
Proceeding.
"Officers' Certificate" means the representations and warranties of
---------------------
officers forms submitted by Agent to Administrative Borrower, together with
Borrowers' completed responses to the inquiries set forth therein, in the form
of Exhibit O-1.
-----------
"Originating Lender" has the meaning set forth in Section 14.1(e).
------------------ ---------------
"Overadvance" has the meaning set forth in Section 2.4.
----------- -----------
"Overhead" means costs and expenses of Parent and its Subsidiaries for
--------
corporate management, oversight and support of Parent's operating divisions.
Such overhead is identified on the Closing Date Business Plan as "Corporate",
and totals $6.071 million for 2002 and $6.071 for 2003, respectively, in that
plan.
"Parent" has the meaning set forth in the preamble to this Agreement.
------
-19-
"Participant" has the meaning set forth in Section 14.1(e).
----------- ---------------
"Pay-Off Letter" means a letter, in form and substance reasonably
--------------
satisfactory to Agent, from Existing Lender to Agent confirming that all of the
obligations of Borrowers owing to Existing Lender (other than obligations with
respect to letters of credit that have been fully cash collateralized) have been
paid in full.
"Permitted Discretion" means a determination made in good faith and in
--------------------
the exercise of reasonable (from the perspective of a secured asset-based
lender) business judgment.
"Permitted Dispositions" means (a) sales or other dispositions by
----------------------
Administrative Borrower or its Subsidiaries of Equipment that is substantially
worn, damaged, or obsolete or is no longer used in any Borrower's business, (b)
the use or transfer of money or Cash Equivalents by Administrative Borrower or
its Subsidiaries in a manner that is not prohibited by the terms of this
Agreement or the other Loan Documents, (c) the licensing by Administrative
Borrower or its Subsidiaries, on a non-exclusive basis, of patents, trademarks,
copyrights, and other intellectual property rights in the ordinary course of
business, (d) the sale or other disposition of all or substantially all of the
assets of, or 100% of the Stock of, VHC, Scientific Exchange, Promotech, Imedex
and/or any Foreign Subsidiary, provided that (i) no Event of Default has
occurred and is continuing or would result from such sale or disposition, (ii)
the proceeds of such sale or disposition are deposited into a Cash Management
Account in accordance with Section 2.6, (iii) the net cash proceeds of such sale
-----------
or disposition equal or exceed the aggregate amount of outstanding loans,
advances and other investments made by the Borrowers to such Person since the
Closing Date (after deducting the aggregate amount of cash repayments of such
loans, advances or other investments made by such Persons to Borrowers), (iv)(A)
in the case of a sale or other disposition of Stock, the Person subject to such
sale or other disposition shall be released as a Guarantor under the Loan
Documents pursuant to documentation acceptable to Agent, and (B) in the case of
a sale or other disposition of assets, Agent shall release its Lien on such
assets pursuant to documentation acceptable to Agent, and (v) in the case of a
sale or other disposition of all or substantially all of the assets of, or 100%
of the Stock of, VHC, such sale may include the Lighthouse Software owned by the
Parent and all agreements related thereto, and (e) the sale or other disposition
by the Parent of its equity investment in ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., provided that (i)
no Event of Default has occurred and is continuing or would result from such
sale or disposition and (ii) the proceeds of such sale or disposition are
deposited into a Cash Management Account in accordance with Section 2.6.
-----------
"Permitted Dissolution" means a liquidation or dissolution of a
---------------------
Foreign Subsidiary, provided that (i) after the satisfaction of third party
creditor claims, (a) at or prior to the time such Foreign Subsidiary ceases to
exist as a result of such liquidation or dissolution, all cash of such Foreign
Subsidiary is distributed to a Borrower or a Guarantor, (b) all cash distributed
to a Borrower or Guarantor in connection therewith is placed in a Cash
Management Account and (c) at or prior to the time such Subsidiary ceases to
exist as a result of such liquidation or dissolution, any Stock, promissory
notes, other instruments of indebtedness or other assets held by such Subsidiary
are distributed to the equityholders thereof and (ii) if the Stock of such
Subsidiary had been pledged to the Agent pursuant to the Pledge Agreement, the
holders of the Stock, promissory notes, other instruments of indebtedness or
other assets
-20-
distributed in connection with the liquidation or dissolution become parties to
the Pledge Agreement pursuant to documentation reasonably satisfactory to
Lender.
"Permitted Investments" means (a) investments in Cash Equivalents, (b)
---------------------
investments in negotiable instruments for collection, (c) advances made in
connection with purchases of goods or services in the ordinary course of
business, (d) loans, advances or other investments by any Borrower to any other
Borrower; provided that if any such loan, advance or other investment is in the
--------
form of Indebtedness, such Indebtedness shall be subject to the terms and
conditions of the Intercompany Subordination Agreement, (e) loans, advances or
other investments by the Borrowers to any Guarantor; provided that (i) no Event
--------
of Default has occurred and is continuing or would result from such loan,
advance or other investment, (ii) if any such loan, advance or other investment
is in the form of Indebtedness, (A) the repayment of each such intercompany
loan, advance or other investment shall be subordinated to the payment of the
Obligations pursuant to the terms and conditions of the Intercompany
Subordination Agreement, and evidenced by one or more promissory notes, in form
and substance reasonably satisfactory to Agent, and (B) such promissory notes
shall be pledged to Agent for the benefit of the Lender Group pursuant to the
Pledge Agreement, (iii) immediately prior to and immediately following such
loan, advance or other investment, there is Excess Availability and Unrestricted
Cash of at least $10,000,000 in the aggregate, and (iv) the aggregate amount of
all such loans, advances and other investments made on or after the Closing Date
to all Guarantors at any one time outstanding (after deducting the aggregate
amount of cash repayments of such loans, advances or other investments made by
such Persons to Borrowers) shall not exceed $5,000,000, and (f) loans, advances
or other investments by a Borrower or a Guarantor to any Foreign Subsidiary and
by any Foreign Subsidiary to a Borrower or a Guarantor; provided that in the
--------
cash of any such loan, advance or other investment to a Foreign Subsidiary (i)
no Event of Default has occurred and is continuing or would result from such
loan, advance or other investment, (ii) the aggregate amount of all such loans,
advances and other investments made on or after the Closing Date to all Foreign
Subsidiaries at any one time outstanding (after deducting the aggregate amount
of cash repayments of such loans, advances or other investments made by all
Foreign Subsidiaries to Borrowers) shall not exceed $5,000,000, (iii)
immediately prior to and immediately following such loan, advance or other
investment, there is Excess Availability and Unrestricted Cash of at least
$15,000,000 in the aggregate, and (iv) if any such loan, advance or other
investment is in the form of Indebtedness, (A) the repayment of each such
intercompany loan, advance or other investment shall be subordinated to the
payment of the Obligations pursuant to the terms and conditions of the
Intercompany Subordination Agreement, and evidenced by one or more promissory
notes, in form and substance reasonably satisfactory to Agent, and (B) such
promissory notes shall be pledged to Agent for the benefit of the Lender Group
pursuant to the Pledge Agreement.
"Permitted Liens" means (a) Liens held by Agent for the benefit of
---------------
Agent and the Lenders, (b) Liens for unpaid taxes that either (i) are not yet
delinquent, or (ii) do not constitute an Event of Default hereunder and are the
subject of Permitted Protests, (c) Liens set forth on Schedule P-1, (d) the
------------
interests of lessors under operating leases, (e) purchase money Liens or the
interests of lessors under Capital Leases to the extent that such Liens or
interests secure Permitted Purchase Money Indebtedness and so long as such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, (f)
Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in
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the ordinary course of business and not in connection with the borrowing of
money, and which Liens either (i) are for sums not yet delinquent, or (ii) are
the subject of Permitted Protests, (g) Liens arising from deposits made in
connection with obtaining worker's compensation or other unemployment insurance,
(h) Liens or deposits to secure performance of bids, tenders, or leases incurred
in the ordinary course of business and not in connection with the borrowing of
money, (i) Liens granted as security for surety or appeal bonds in connection
with obtaining such bonds in the ordinary course of business, (j) Liens
resulting from any judgment or award that is not an Event of Default hereunder,
(k) Liens with respect to the Real Property Collateral that are exceptions to
the commitments for title insurance issued in connection with the Mortgages, as
accepted by Agent, (l) with respect to any Real Property that is not part of the
Real Property Collateral, easements, rights of way, and zoning restrictions that
do not materially interfere with or impair the use or operation thereof, (m)
security deposits with respect to leases of property (real or personal) in the
ordinary course of business, and with respect to precautionary Uniform
Commercial Code filings made with respect to operating leases, and (n) Liens in
favor of Existing Lender in a certain deposit account at Bank of America, N.A.,
provided that (i) the funds on deposit in such account shall not exceed
--------
$1,500,000 (which is the initial amount deposited into such account) plus
interest accruing thereon and (ii) upon release of any or all funds from such
account by the Existing Lender, such funds shall be deposited into a Cash
Management Account in accordance with Section 2.6.
-----------
"Permitted Protest" means the right of Administrative Borrower or any
-----------------
of its Subsidiaries, as applicable) to protest any Lien (other than any such
Lien that secures the Obligations), taxes (other than payroll taxes or taxes
that are the subject of a United States federal tax lien), or rental payment,
provided that (a) a reserve with respect to such obligation is established on
the Books in such amount as is required under GAAP, (b) any such protest is
instituted promptly and prosecuted diligently by Administrative Borrower or any
of its Subsidiaries, as applicable, in good faith, and (c) Agent is satisfied
that, while any such protest is pending, there will be no impairment of the
enforceability, validity, or priority of any of the Agent's Liens.
"Permitted Purchase Money Indebtedness" means, as of any date of
-------------------------------------
determination, Purchase Money Indebtedness incurred after the Closing Date in an
aggregate amount outstanding at any one time not in excess of $500,000.
"Person" means natural persons, corporations, limited liability
------
companies, limited partnerships, general partnerships, limited liability
partnerships, joint ventures, trusts, land trusts, business trusts, or other
organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"Personal Property Collateral" means all Collateral other than Real
----------------------------
Property.
"Pledge Agreement" means a pledge and security agreement, in the form
----------------
of Exhibit P-1, executed and delivered by each Borrower and each Guarantor that
-----------
owns Stock of a Subsidiary of Parent or that is the holder of any promissory
notes.
"Projections" means Parent's forecasted (a) balance sheets, (b) profit
-----------
and loss statements, and (c) cash flow statements, all prepared on a consistent
basis with Parent's
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historical financial statements, together with appropriate supporting details
and a statement of underlying assumptions.
"Promotech" means Promotech Research Associates, Inc., a Colorado
---------
corporation.
"Pro Rata Share" means:
--------------
(a) with respect to a Lender's obligation to make Advances and
receive payments of principal, interest, fees, costs, and expenses with
respect thereto, (x) prior to the Commitments being reduced to zero, the
percentage obtained by dividing (i) such Lender's Commitment, by (ii) the
aggregate Commitments of all Lenders, and (y) from and after the time that
the Commitment has been terminated or reduced to zero, the percentage
obtained by dividing (i) the aggregate principal amount of such Lender's
Advances, by (ii) the aggregate principal amount of all Advances,
(b) with respect to a Lender's obligation to participate in
Letters of Credit, to reimburse the Issuing Lender, and to receive payments
of fees with respect thereto, (x) prior to the Commitments being reduced to
zero, the percentage obtained by dividing (i) such Lender's Commitment, by
(ii) the aggregate Commitments of all Lenders, and (y) from and after the
time that the Commitment has been terminated or reduced to zero, the
percentage obtained by dividing (i) the aggregate principal amount of such
Lender's Advances, by (ii) the aggregate principal amount of all Advances,
and
(c) with respect to all other matters (including the
indemnification obligations arising under Section 16.7), the percentage
------------
obtained by dividing (i) such Lender's Commitment, by (ii) the aggregate
amount of Commitments of all Lenders; provided, however, that, in each
-------- -------
case, in the event all Commitments have been terminated or reduced to zero,
Pro Rata Share shall be the percentage obtained by dividing (A) the
principal amount of such Lender's Advances, by (B) the principal amount of
all outstanding Advances.
"Purchase Money Indebtedness" means Indebtedness (other than the
---------------------------
Obligations, but including Capitalized Lease Obligations (other than Capitalized
Lease Obligations in connection with automobile leases)), incurred at the time
of, or within 20 days after, the acquisition of any fixed assets for the purpose
of financing all or any part of the acquisition cost thereof.
"Real Property" means any estates or interests in real property now
-------------
owned or hereafter acquired by any Borrower and the improvements thereto.
"Real Property Collateral" means the parcel or parcels of Real
------------------------
Property identified on Schedule R-1 and any Real Property hereafter acquired by
------------
a Borrower.
"Record" means information that is inscribed on a tangible medium or
------
which is stored in an electronic or other medium and is retrievable in
perceivable form.
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"Registered" means issued, registered, renewed or the subject of a
----------
pending application.
"Reliant" means Reliant Pharmaceuticals, LLC, a Delaware limited
-------
liability company.
"Remedial Action" means all actions taken to (a) clean up, remove,
---------------
remediate, contain, treat, monitor, assess, evaluate, or in any way address
Hazardous Materials in the indoor or outdoor environment, (b) prevent or
minimize a release or threatened release of Hazardous Materials so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (c) perform any pre-remedial studies,
investigations, or post-remedial operation and maintenance activities, or (d)
conduct any other actions authorized by 42 USC Section. 9601.
"Report" has the meaning set forth in Section 16.17.
------ -------------
"Required Availability" means Excess Availability and Unrestricted
---------------------
Cash, in an aggregate amount of not less than $30,000,000.
"Required Lenders" means, at any time, (a) Agent, and (b) Lenders
----------------
whose Pro Rata Shares aggregate 51% of the Commitments, or if the Commitments
have been terminated irrevocably, 51% of the Obligations (other than Bank
Product Obligations) then outstanding.
"Reserve Percentage" means, on any day, for any Lender, the maximum
------------------
percentage prescribed by the Board of Governors of the Federal Reserve System
(or any successor Governmental Authority) for determining the reserve
requirements (including any basic, supplemental, marginal, or emergency
reserves) that are in effect on such date with respect to eurocurrency funding
(currently referred to as "eurocurrency liabilities") of that Lender, but so
long as such Lender is not required or directed under applicable regulations to
maintain such reserves, the Reserve Percentage shall be zero.
"Revolver Usage" means, as of any date of determination, the sum of
--------------
(a) the then extant amount of outstanding Advances, plus (b) the then extant
amount of the Letter of Credit Usage.
"Risk Participation Liability" means, as to each Letter of Credit, all
----------------------------
reimbursement obligations of Borrowers to the Issuing Lender with respect to an
L/C Undertaking, consisting of (a) the amount available to be drawn or which may
become available to be drawn, (b) all amounts that have been paid by the Issuing
Lender to the Underlying Issuer to the extent not reimbursed by Borrowers,
whether by the making of an Advance or otherwise, and (c) all accrued and unpaid
interest, fees, and expenses payable with respect thereto.
"Scientific Exchange" means Scientific Exchange, Inc., a Connecticut
-------------------
corporation.
"SEC" means the United States Securities and Exchange Commission and
---
any successor thereto.
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"Securities Account" means a "securities account" as that term is
------------------
defined in the Code.
"Settlement" has the meaning set forth in Section 2.2(f)(i).
---------- -----------------
"Settlement Date" has the meaning set forth in Section 2.2(f)(i).
--------------- -----------------
"Solvent" means, with respect to any Person on a particular date, that
-------
such Person is not insolvent (as such term is defined in the Uniform Fraudulent
Transfer Act).
"Stock" means all shares, options, warrants, interests,
-----
participations, or other equivalents (regardless of how designated) of or in a
Person, whether voting or nonvoting, including common stock, preferred stock, or
any other "equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the SEC under the Exchange Act).
"Subsidiary" of a Person means a corporation, partnership, limited
----------
liability company, or other entity in which that Person directly or indirectly
owns or controls the shares of Stock having ordinary voting power to elect a
majority of the board of directors (or appoint other comparable managers) of
such corporation, partnership, limited liability company, or other entity.
"Swing Lender" means Foothill or any other Lender that, at the request
------------
of Administrative Borrower and with the consent of Agent agrees, in such
Lender's sole discretion, to become the Swing Lender hereunder.
"Swing Loan" has the meaning set forth in Section 2.2(d)(i).
---------- -----------------
"Tax Sharing Agreement" means that certain Tax Sharing Agreement dated
---------------------
as of September 27, 1999, by and between ▇▇▇▇▇▇ Communications, Inc., a Delaware
corporation and Parent.
"Taxes" has the meaning set forth in Section 16.11(e).
----- ----------------
"Trademark Security Agreement" means a trademark security agreement
----------------------------
executed and delivered by each Borrower, each Guarantor, and Agent, the form and
substance of which is reasonably satisfactory to Agent.
"UCC Filing Authorization Letter" means a letter executed by each
-------------------------------
Borrower and Guarantor authorizing Agent to file appropriate financing
statements on Form UCC-1 in such office or offices as may be necessary or, in
the opinion of Agent, desirable to perfect the Liens to be created by each
applicable Loan Document.
"Unbilled Subline" means the subline under the Maximum Revolver Amount
----------------
for Advances made against Eligible Unbilled Accounts equal to $12,500,000.
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"Underlying Issuer" means a third Person which is the beneficiary of
-----------------
an L/C Undertaking and which has issued a letter of credit at the request of the
Issuing Lender for the benefit of Borrowers.
"Underlying Letter of Credit" means a letter of credit that has been
---------------------------
issued by an Underlying Issuer.
"Unrestricted Cash" means unrestricted cash and Cash Equivalents and
-----------------
all amounts on deposit in the Initial Advance Account.
"U.S. EBIT" means, with respect to any fiscal period, Parent's and its
---------
Domestic Subsidiaries' consolidated net earnings (or loss), minus extraordinary
gains, plus interest expense and income taxes for such period, as determined in
accordance with GAAP.
"U.S. Sales" has the meaning set forth in the preamble to this
----------
Agreement.
"VHC" means Ventiv Health Communications, Inc., a Delaware
---
corporation.
"VIS" means VIS FINANCIAL LLC, a Delaware limited liability company.
---
"Voidable Transfer" has the meaning set forth in Section 17.7.
----------------- ------------
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association, a national
-----------
banking association.
1.2 Accounting Terms. All accounting terms not specifically defined
----------------
herein shall be construed in accordance with GAAP. When used herein, the term
"financial statements" shall include the notes and schedules thereto. Whenever
the term "Borrowers" or the term "Parent" is used in respect of a financial
covenant or a related definition, it shall be understood to mean Parent and its
Subsidiaries on a consolidated basis unless the context clearly requires
otherwise.
1.3 Code. Any terms used in this Agreement that are defined in the
----
Code shall be construed and defined as set forth in the Code unless otherwise
defined herein.
1.4 Construction. Unless the context of this Agreement or any other
------------
Loan Document clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the term "including" is
not limiting, and the term "or" has, except where otherwise indicated, the
inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and similar terms in this Agreement or any
other Loan Document refer to this Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular provision of this Agreement or
such other Loan Document, as the case may be. Section, subsection, clause,
schedule, and exhibit references herein are to this Agreement unless otherwise
specified. Any reference in this Agreement or in the other Loan Documents to any
agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders,
-26-
and supplements, thereto and thereof, as applicable (subject to any restrictions
on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to any Person shall be construed to include such Person's
successors and assigns. Any requirement of a writing contained herein or in the
other Loan Documents shall be satisfied by the transmission of a Record and any
Record transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.
1.5 Schedules and Exhibits. All of the schedules and exhibits attached
----------------------
to this Agreement shall be deemed incorporated herein by reference.
2. LOAN AND TERMS OF PAYMENT.
2.1 Revolver Advances. Subject to the terms and conditions of this
-----------------
Agreement, and during the term of this Agreement, each Lender agrees (severally,
not jointly or jointly and severally) to make advances ("Advances") to Borrowers
--------
in an amount at any one time outstanding not to exceed such Lender's Pro Rata
Share of an amount equal to the lesser of (i) the Maximum Revolver Amount less
the Letter of Credit Usage, provided that (A) Advances made against Eligible
--------
Billed Accounts shall not exceed the Billed Subline less the Letter of Credit
Usage and (B) Advances made against Eligible Unbilled Accounts shall not exceed
the Unbilled Subline and will be available in the sole discretion of the
Lenders, and (ii) the Borrowing Base less the Letter of Credit Usage. For
purposes of this Agreement, "Borrowing Base," as of any date of determination,
--------------
shall mean an amount equal to the lesser of:
(x) the result of
(i) the sum of
(A) in the case of the Billed Subline, 85% of the
amount of Eligible Billed Accounts, less the amount, if any,
of the Dilution Reserve, plus
(B) in the case of the Unbilled Subline, 75% of
the amount of Eligible Unbilled Accounts, provided that, the
--------
aggregate amount of Advances under the Unbilled Subline
shall in no event exceed the total aggregate amount of
Advances under the Billed Subline pursuant to subclause (A)
above, less
(ii) $7,500,000, provided that, the amount under this
--------
clause (ii) shall be decreased to $5,000,000 beginning in
September 2002 and continuing thereafter at any time that no
Event of Default shall have occurred and be continuing, and
(y) an amount equal to Borrowers' Collections with respect
to Accounts for the immediately preceding 60 day period,
in each case minus, the sum of (i) the Bank Products Reserve, (ii) an amount
equal to 2 times the reserve established for performance metrics on the balance
sheet of the Borrowers, and (iii) the aggregate amount of reserves, if any,
established by Agent under Section 2.1(b).
--------------
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(a) In addition, aggregate Advances shall not at any time exceed
the difference between (i) EBITDA for the most recent twelve months period times
2 and (ii) the Letter of Credit Usage. For purposes of this Section 2.1(a),
--------------
EBITDA shall be calculated without giving effect to (A) Foreign Subsidiaries,
(B) 20% of Overhead of the Parent and its Subsidiaries, which is assumed to be
allocated to the Foreign Subsidiaries, and (C) the expenses for Borrowers'
initial investments in Cellegy and VIS, each up to a maximum of $10,000,000.
(b) Anything to the contrary in this Section 2.1 notwithstanding,
-----------
Agent shall have the right to establish reserves in such amounts, and with
respect to such matters, as Agent in its Permitted Discretion shall deem
necessary or appropriate, against the Borrowing Base, including reserves with
respect to (i) sums that Borrowers are required to pay (such as payroll and
other taxes, assessments, insurance premiums, or, in the case of leased assets,
rents or other amounts payable under such leases) and has failed to pay under
any Section of this Agreement or any other Loan Document, and (ii) amounts owing
by Borrowers to any Person to the extent secured by a Lien on, or trust over,
any of the Collateral (other than any existing Permitted Lien set forth on
Schedule P-1 which is specifically identified thereon as entitled to have
------------
priority over the Agent's Liens), which Lien or trust, in the Permitted
Discretion of Agent likely would have a priority superior to the Agent's Liens
(such as Liens or trusts in favor of landlords or suppliers, or Liens or trusts
for ad valorem, excise, sales, or other taxes where given priority under
applicable law) in and to such item of the Collateral.
(c) Notwithstanding anything to the contrary contained herein, on
the Closing Date the Borrowers shall request, and the Lenders shall, subject to
Section 3.1, fund their respective Pro Rata Shares of, an Advance in an amount
-----------
equal to $15,000,000 (the "Initial Advance"). The proceeds of the Initial
---------------
Advance shall be deposited in a deposit account maintained at ▇▇▇▇▇ Fargo and
such deposit account shall be subject to a Control Agreement (the "Initial
Advance Account"). Amounts deposited in the Initial Advance Account may only be
invested in Cash Equivalents or other securities satisfactory to Agent. The
Initial Advance shall be repaid in full on the 90th day after the Closing Date
by Agent's application of all funds held in the Initial Advance Account to the
repayment of the Obligations then outstanding. The Initial Advance shall not be
deemed an Advance or other extension of credit for purposes of Section 6.2 or
-----------
Section 7.19 hereof.
------------
(d) The Lenders shall have no obligation to make additional
Advances hereunder to the extent such additional Advances would cause the
Revolver Usage to exceed the Maximum Revolver Amount.
(e) Amounts borrowed pursuant to this Section may be repaid and,
subject to the terms and conditions of this Agreement, reborrowed at any time
during the term of this Agreement.
2.2 Borrowing Procedures and Settlements.
------------------------------------
(a) Procedure for Borrowing. Each Borrowing shall be made by an
irrevocable written request by an Authorized Person delivered to Agent (which
notice must be received by Agent no later than 10:00 a.m. (California time) on
the Business Day prior to the date that is the requested Funding Date in the
case of a request for an Advance specifying (i) the
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amount of such Borrowing, and (ii) the requested Funding Date, which shall be a
Business Day; provided, however, that in the case of a request for Swing Loan in
-------- -------
an amount of $5,000,000, or less, such notice will be timely received if it is
received by Agent no later than 10:00 a.m. (California time) on the Business Day
that is the requested Funding Date) specifying (i) the amount of such Borrowing,
and (ii) the requested Funding Date, which shall be a Business Day. At Agent's
election, in lieu of delivering the above-described written request, any
Authorized Person may give Agent telephonic notice of such request by the
required time, with such telephonic notice to be confirmed in writing within 24
hours of the giving of such notice.
(b) Agent's Election. Promptly after receipt of a request for a
Borrowing pursuant to Section 2.2(a), Agent shall elect, in its discretion, (i)
--------------
to have the terms of Section 2.2(c) apply to such requested Borrowing, or (ii)
--------------
if the Borrowing is for an Advance, to request Swing Lender to make a Swing Loan
pursuant to the terms of Section 2.2(d) in the amount of the requested
--------------
Borrowing; provided, however, that if Swing Lender declines in its sole
-------- -------
discretion to make a Swing Loan pursuant to Section 2.2(d), Agent shall elect to
--------------
have the terms of Section 2.2(c) apply to such requested Borrowing.
--------------
(c) Making of Advances.
(i) In the event that Agent shall elect to have the terms of
this Section 2.2(c) apply to a requested Borrowing as described in Section
------------- -------
2.2(b), then promptly after receipt of a request for a Borrowing pursuant
------
to Section 2.2(a), Agent shall notify the Lenders, not later than 1:00 p.m.
--------------
(California time) on the Business Day immediately preceding the Funding
Date applicable thereto, by telecopy, telephone, or other similar form of
transmission, of the requested Borrowing. Each Lender shall make the amount
of such Lender's Pro Rata Share of the requested Borrowing available to
Agent in immediately available funds, to Agent's Account, not later than
10:00 a.m. (California time) on the Funding Date applicable thereto. After
Agent's receipt of the proceeds of such Advances, upon satisfaction of the
applicable conditions precedent set forth in Section 3 hereof, Agent shall
---------
make the proceeds thereof available to Administrative Borrower on the
applicable Funding Date by transferring immediately available funds equal
to such proceeds received by Agent to Administrative Borrower's Designated
Account; provided, however, that, subject to the provisions of Section
-------- ------- -------
2.2(i), Agent shall not request any Lender to make, and no Lender shall
------
have the obligation to make, any Advance if Agent shall have actual
knowledge that (1) one or more of the applicable conditions precedent set
forth in Section 3 will not be satisfied on the requested Funding Date for
---------
the applicable Borrowing unless such condition has been waived, or (2) the
requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior
to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least 1 Business Day prior to the date of such Borrowing, that
such Lender will not make available as and when required hereunder to Agent
for the account of Borrowers the amount of that Lender's Pro Rata Share of
the Borrowing, Agent may assume that each Lender has made or will make such
amount available to Agent in immediately available funds on the Funding
Date and Agent may (but shall not be so required), in reliance upon
-29-
such assumption, make available to Borrowers on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to Agent in immediately available funds and Agent in such
circumstances has made available to Borrowers such amount, that Lender
shall on the Business Day following such Funding Date make such amount
available to Agent, together with interest at the Defaulting Lender Rate
for each day during such period. A notice submitted by Agent to any Lender
with respect to amounts owing under this subsection shall be conclusive,
absent manifest error. If such amount is so made available, such payment to
Agent shall constitute such Lender's Advance on the date of Borrowing for
all purposes of this Agreement. If such amount is not made available to
Agent on the Business Day following the Funding Date, Agent will notify
Administrative Borrower of such failure to fund and, upon demand by Agent,
Borrowers shall pay such amount to Agent for Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at
a rate per annum equal to the interest rate applicable at the time to the
Advances composing such Borrowing. The failure of any Lender to make any
Advance on any Funding Date shall not relieve any other Lender of any
obligation hereunder to make an Advance on such Funding Date, but no Lender
shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a
Defaulting Lender any payments made by Borrowers to Agent for the
Defaulting Lender's benefit, and, in the absence of such transfer to the
Defaulting Lender, Agent shall transfer any such payments to each other
non-Defaulting Lender member of the Lender Group ratably in accordance with
their Commitments (but only to the extent that such Defaulting Lender's
Advance was funded by the other members of the Lender Group) or, if so
directed by Administrative Borrower and if no Default or Event of Default
had occurred and is continuing (and to the extent such Defaulting Lender's
Advance was not funded by the Lender Group), retain same to be re-advanced
to Borrowers as if such Defaulting Lender had made Advances to Borrowers.
Subject to the foregoing, Agent may hold and, in its Permitted Discretion,
re-lend to Borrowers for the account of such Defaulting Lender the amount
of all such payments received and retained by it for the account of such
Defaulting Lender. Solely for the purposes of voting or consenting to
matters with respect to the Loan Documents, such Defaulting Lender shall be
deemed not to be a "Lender" and such Lender's Commitment shall be deemed to
be zero. This Section shall remain effective with respect to such Lender
until (x) the Obligations under this Agreement shall have been declared or
shall have become immediately due and payable, (y) the non-Defaulting
Lenders, Agent, and Administrative Borrower shall have waived such
Defaulting Lender's default in writing, or (z) the Defaulting Lender makes
its Pro Rata Share of the applicable Advance and pays to Agent all amounts
owing by Defaulting Lender in respect thereof. The operation of this
Section shall not be construed to increase or otherwise affect the
Commitment of any Lender, to relieve or excuse the performance by such
Defaulting Lender or any other Lender of its duties and obligations
hereunder, or to relieve or excuse the performance by Borrowers of their
duties and obligations hereunder to Agent or to the Lenders other than such
Defaulting Lender. Any such failure to fund by any Defaulting Lender shall
constitute a material breach by such Defaulting Lender of this Agreement
and shall entitle Administrative Borrower at its option, upon written
notice to Agent, to arrange for a substitute Lender to assume the
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Commitment of such Defaulting Lender, such substitute Lender to be
acceptable to Agent. In connection with the arrangement of such a
substitute Lender, the Defaulting Lender shall have no right to refuse to
be replaced hereunder, and agrees to execute and deliver a completed form
of Assignment and Acceptance Agreement in favor of the substitute Lender
(and agrees that it shall be deemed to have executed and delivered such
document if it fails to do so) subject only to being repaid its share of
the outstanding Obligations (other than Bank Product Obligations)
(including an assumption of its Pro Rata Share of the Risk Participation
Liability) without any premium or penalty of any kind whatsoever; provided
--------
further, however, that any such assumption of the Commitment of such
------- -------
Defaulting Lender shall not be deemed to constitute a waiver of any of the
Lender Groups' or Borrowers' rights or remedies against any such Defaulting
Lender arising out of or in relation to such failure to fund.
(d) Making of Swing Loans.
(i) In the event Agent shall elect, with the consent of
Swing Lender, as a Lender, to have the terms of this Section 2.2(d) apply
--------------
to a requested Borrowing as described in Section 2.2(b), Swing Lender as a
--------------
Lender shall make such Advance in the amount of such Borrowing (any such
Advance made solely by Swing Lender as a Lender pursuant to this Section
-------
2.2(d) being referred to as a "Swing Loan" and such Advances being referred
------ ----------
to collectively as "Swing Loans") available to Borrowers on the Funding
-----------
Date applicable thereto by transferring immediately available funds to
Administrative Borrower's Designated Account. Each Swing Loan is an Advance
hereunder and shall be subject to all the terms and conditions applicable
to other Advances, except that all payments on any Swing Loan shall be
payable to Swing Lender as a Lender solely for its own account (and for the
account of the holder of any participation interest with respect to such
Swing Loan). Subject to the provisions of Section 2.2(i), Agent shall not
--------------
request Swing Lender as a Lender to make, and Swing Lender as a Lender
shall not make, any Swing Loan if Agent has actual knowledge that (i) one
or more of the applicable conditions precedent set forth in Section 3 will
---------
not be satisfied on the requested Funding Date for the applicable Borrowing
unless such condition has been waived, or (ii) the requested Borrowing
would exceed the Availability on such Funding Date. Swing Lender as a
Lender shall not otherwise be required to determine whether the applicable
conditions precedent set forth in Section 3 have been satisfied on the
---------
Funding Date applicable thereto prior to making, in its sole discretion,
any Swing Loan.
(ii) The Swing Loans shall be secured by the Agent's Liens,
shall constitute Advances and Obligations hereunder, and shall bear
interest at the rate applicable from time to time to Advances that are Base
Rate Loans.
(e) Agent Advances.
(i) Agent hereby is authorized by Borrowers and the Lenders,
from time to time in Agent's sole discretion, (1) after the occurrence and
during the continuance of a Default or an Event of Default, or (2) at any
time that any of the other applicable conditions precedent set forth in
Section 3 have not been satisfied, to make
---------
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Advances to Borrowers on behalf of the Lenders that Agent, in its Permitted
Discretion deems necessary or desirable (A) to preserve or protect the
Collateral, or any portion thereof, (B) to enhance the likelihood of
repayment of the Obligations (other than the Bank Product Obligations), or
(C) to pay any other amount chargeable to Borrowers pursuant to the terms
of this Agreement, including Lender Group Expenses and the costs, fees, and
expenses described in Section 10 (any of the Advances described in this
----------
Section 2.2(e) shall be referred to as "Agent Advances"). Each Agent
-------------- --------------
Advance is an Advance hereunder and shall be subject to all the terms and
conditions applicable to other Advances, except that no such Agent Advance
shall be eligible for the LIBOR Option and all payments thereon shall be
payable to Agent solely for its own account (and for the account of the
holder of any participation interest with respect to such Agent Advance).
(ii) The Agent Advances shall be repayable on demand and
secured by the Agent's Liens granted to Agent under the Loan Documents,
shall constitute Advances and Obligations hereunder, and shall bear
interest at the rate applicable from time to time to Advances that are Base
Rate Loans.
(f) Settlement. It is agreed that each Lender's funded portion of
the Advances is intended by the Lenders to equal, at all times, such Lender's
Pro Rata Share of the outstanding Advances. Such agreement notwithstanding,
Agent, Swing Lender, and the other Lenders agree (which agreement shall not be
for the benefit of or enforceable by Borrowers) that in order to facilitate the
administration of this Agreement and the other Loan Documents, settlement among
them as to the Advances, the Swing Loans, and the Agent Advances shall take
place on a periodic basis in accordance with the following provisions:
(i) Agent shall request settlement ("Settlement") with the
----------
Lenders on a weekly basis, or on a more frequent basis if so determined by
Agent, (1) on behalf of Swing Lender, with respect to each outstanding
Swing Loan, (2) for itself, with respect to each Agent Advance, and (3)
with respect to Collections received, as to each by notifying the Lenders
by telecopy, telephone, or other similar form of transmission, of such
requested Settlement, no later than 2:00 p.m. (California time) on the
Business Day immediately prior to the date of such requested Settlement
(the date of such requested Settlement being the "Settlement Date"). Such
---------------
notice of a Settlement Date shall include a summary statement of the amount
of outstanding Advances, Swing Loans, and Agent Advances for the period
since the prior Settlement Date. Subject to the terms and conditions
contained herein (including Section 2.2(c)(iii)): (y) if a Lender's balance
-------------------
of the Advances, Swing Loans, and Agent Advances exceeds such Lender's Pro
Rata Share of the Advances, Swing Loans, and Agent Advances as of a
Settlement Date, then Agent shall, by no later than 12:00 p.m. (California
time) on the Settlement Date, transfer in immediately available funds to
the account of such Lender as such Lender may designate, an amount such
that each such Lender shall, upon receipt of such amount, have as of the
Settlement Date, its Pro Rata Share of the Advances, Swing Loans, and Agent
Advances, and (z) if a Lender's balance of the Advances, Swing Loans, and
Agent Advances is less than such Lender's Pro Rata Share of the Advances,
Swing Loans, and Agent Advances as of a Settlement Date, such Lender shall
no later than 12:00 p.m. (California time) on the Settlement Date transfer
in immediately available funds to the Agent's Account, an amount such that
each such Lender shall, upon transfer of such amount, have as of the
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Settlement Date, its Pro Rata Share of the Advances, Swing Loans, and Agent
Advances. Such amounts made available to Agent under clause (z) of the
immediately preceding sentence shall be applied against the amounts of the
applicable Swing Loan or Agent Advance and, together with the portion of
such Swing Loan or Agent Advance representing Swing Lender's Pro Rata Share
thereof, shall constitute Advances of such Lenders. If any such amount is
not made available to Agent by any Lender on the Settlement Date applicable
thereto to the extent required by the terms hereof, Agent shall be entitled
to recover for its account such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate.
(ii) In determining whether a Lender's balance of the
Advances, Swing Loans, and Agent Advances is less than, equal to, or
greater than such Lender's Pro Rata Share of the Advances, Swing Loans, and
Agent Advances as of a Settlement Date, Agent shall, as part of the
relevant Settlement, apply to such balance the portion of payments actually
received in good funds by Agent with respect to principal, interest, fees
payable by Borrowers and allocable to the Lenders hereunder, and proceeds
of Collateral. To the extent that a net amount is owed to any such Lender
after such application, such net amount shall be distributed by Agent to
that Lender as part of such next Settlement.
(iii) Between Settlement Dates, Agent, to the extent no
Agent Advances or Swing Loans are outstanding, may pay over to Swing Lender
any payments received by Agent, that in accordance with the terms of this
Agreement would be applied to the reduction of the Advances, for
application to Swing Lender's Pro Rata Share of the Advances. If, as of any
Settlement Date, Collections received since the then immediately preceding
Settlement Date have been applied to Swing Lender's Pro Rata Share of the
Advances other than to Swing Loans, as provided for in the previous
sentence, Swing Lender shall pay to Agent for the accounts of the Lenders,
and Agent shall pay to the Lenders, to be applied to the outstanding
Advances of such Lenders, an amount such that each Lender shall, upon
receipt of such amount, have, as of such Settlement Date, its Pro Rata
Share of the Advances. During the period between Settlement Dates, Swing
Lender with respect to Swing Loans, Agent with respect to Agent Advances,
and each Lender (subject to the effect of letter agreements between Agent
and individual Lenders) with respect to the Advances other than Swing Loans
and Agent Advances, shall be entitled to interest at the applicable rate or
rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or the Lenders, as applicable.
(g) Notation. Agent shall record on its books the principal
amount of the Advances owing to each Lender, including the Swing Loans owing to
Swing Lender, and Agent Advances owing to Agent, and the interests therein of
each Lender, from time to time. In addition, each Lender is authorized, at such
Lender's option, to note the date and amount of each payment or prepayment of
principal of such Lender's Advances in its books and records, including computer
records, such books and records constituting conclusive evidence, absent
manifest error, of the accuracy of the information contained therein.
(h) Lenders' Failure to Perform. All Advances (other than Swing
Loans and Agent Advances) shall be made by the Lenders contemporaneously and in
accordance
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with their Pro Rata Shares. It is understood that (i) no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make any Advance (or other extension of credit) hereunder, nor shall any
Commitment of any Lender be increased or decreased as a result of any failure by
any other Lender to perform its obligations hereunder, and (ii) no failure by
any Lender to perform its obligations hereunder shall excuse any other Lender
from its obligations hereunder.
(i) Optional Overadvances. Any contrary provision of this
Agreement notwithstanding, the Lenders hereby authorize Agent or Swing Lender,
as applicable, and Agent or Swing Lender, as applicable, may, but is not
obligated to, knowingly and intentionally, continue to make Advances (including
Swing Loans) to Borrowers notwithstanding that an Overadvance exists or thereby
would be created, so long as (i) after giving effect to such Advances (including
a Swing Loan), the Revolver Usage does not exceed the Borrowing Base by more
than $5,000,000, (ii) after giving effect to such Advances (including a Swing
Loan) the outstanding Revolver Usage (except for and excluding amounts charged
to the Loan Account for interest, fees, or Lender Group Expenses) does not
exceed the Maximum Revolver Amount, and (iii) at the time of the making of any
such Advance (including a Swing Loan), Agent does not believe, in good faith,
that the Overadvance created by such Advance will be outstanding for more than
90 days. The foregoing provisions are for the exclusive benefit of Agent, Swing
Lender, and the Lenders and are not intended to benefit Borrowers in any way.
The Advances and Swing Loans, as applicable, that are made pursuant to this
Section 2.2(i) shall be subject to the same terms and conditions as any other
--------------
Advance or Swing Loan, as applicable, except that they shall not be eligible for
the LIBOR Option and the rate of interest applicable thereto shall be the rate
applicable to Advances that are Base Rate Loans under Section 2.5(c) hereof
--------------
without regard to the presence or absence of a Default or Event of Default.
(i) In the event Agent obtains actual knowledge that the
Revolver Usage exceeds the amounts permitted by the preceding paragraph,
regardless of the amount of, or reason for, such excess, Agent shall notify
Lenders as soon as practicable (and prior to making any (or any additional)
intentional Overadvances (except for and excluding amounts charged to the
Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the
Collateral or its value), and the Lenders thereupon shall, together with
Agent, jointly determine the terms of arrangements that shall be
implemented with Borrowers and intended to reduce, within a reasonable
time, the outstanding principal amount of the Advances to Borrowers to an
amount permitted by the preceding paragraph. In the event Agent or any
Lender disagrees over the terms of reduction or repayment of any
Overadvance, the terms of reduction or repayment thereof shall be
implemented according to the determination of the Required Lenders.
(ii) Each Lender shall be obligated to settle with Agent as
provided in Section 2.2(f) for the amount of such Lender's Pro Rata Share
--------------
of any unintentional Overadvances by Agent reported to such Lender, any
intentional Overadvances made as permitted under this Section 2.2(i), and
--------------
any Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.
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2.3 Payments.
--------
(a) Payments by Borrowers.
(i) Except as otherwise expressly provided herein, all
payments by Borrowers shall be made to Agent's Account for the account of
the Lender Group and shall be made in immediately available funds, no later
than 11:00 a.m. (California time) on the date specified herein. Any payment
received by Agent later than 11:00 a.m. (California time), shall be deemed
to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue until such following Business Day.
(ii) Unless Agent receives notice from Administrative
Borrower prior to the date on which any payment is due to the Lenders that
Borrowers will not make such payment in full as and when required, Agent
may assume that Borrowers have made (or will make) such payment in full to
Agent on such date in immediately available funds and Agent may (but shall
not be so required), in reliance upon such assumption, distribute to each
Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent Borrowers do not make such payment in full to Agent on
the date when due, each Lender severally shall repay to Agent on demand
such amount distributed to such Lender, together with interest thereon at
the Defaulting Lender Rate for each day from the date such amount is
distributed to such Lender until the date repaid.
(b) Apportionment and Application.
(i) Except as otherwise provided with respect to Defaulting
Lenders and except as otherwise provided in the Loan Documents (including
letter agreements between Agent and individual Lenders), aggregate
principal and interest payments shall be apportioned ratably among the
Lenders (according to the unpaid principal balance of the Obligations to
which such payments relate held by each Lender) and payments of fees and
expenses (other than fees or expenses that are for Agent's separate
account, after giving effect to any letter agreements between Agent and
individual Lenders) shall be apportioned ratably among the Lenders having a
Pro Rata Share of the type of Commitment or Obligation to which a
particular fee relates. All payments shall be remitted to Agent and all
such payments (other than payments received while no Default or Event of
Default has occurred and is continuing and which relate to the payment of
principal or interest of specific Obligations or which relate to the
payment of specific fees), and all proceeds of Accounts or other Collateral
received by Agent, shall be applied as follows:
A. first, to pay any Lender Group Expenses then due to
-----
Agent under the Loan Documents, until paid in full,
B. second, to pay any Lender Group Expenses then due to
------
the Lenders under the Loan Documents, on a ratable basis, until
paid in full,
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C. third, to pay any fees then due to Agent (for its
-----
separate accounts, after giving effect to any letter agreements
between Agent and the individual Lenders) under the Loan
Documents until paid in full,
D. fourth, to pay any fees then due to any or all of
------
the Lenders (after giving effect to any letter agreements between
Agent and individual Lenders) under the Loan Documents, on a
ratable basis, until paid in full,
E. fifth, to pay interest due in respect of all Agent
-----
Advances, until paid in full,
F. sixth, ratably to pay interest due in respect of the
-----
Advances (other than Agent Advances) and the Swing Loans until
paid in full,
G. seventh, to pay the principal of all Agent Advances
-------
until paid in full,
H. eighth, to pay the principal of all Swing Loans
------
until paid in full,
I. ninth, so long as no Event of Default has occurred
-----
and is continuing, and at Agent's election (which election Agent
agrees will not be made if an Overadvance would be created
thereby), to pay amounts then due and owing by Administrative
Borrower or its Subsidiaries in respect of Bank Products, until
paid in full,
J. tenth, so long as no Event of Default has occurred
-----
and is continuing, to pay the principal of all Advances until
paid in full,
K. eleventh, if an Event of Default has occurred and is
--------
continuing, ratably (i) to pay the principal of all Advances
until paid in full, and (ii) to Agent, to be held by Agent, for
the benefit of ▇▇▇▇▇ Fargo or its Affiliates, as applicable, as
cash collateral in an amount up to the amount of the Bank
Products Reserve established prior to the occurrence of, and not
in contemplation of, the subject Event of Default until
Administrative Borrower's and its Subsidiaries' obligations in
respect of the then extant Bank Products have been paid in full
or the cash collateral amount has been exhausted,
L. twelfth, if an Event of Default has occurred and is
-------
continuing, to Agent, to be held by Agent, for the ratable
benefit of Issuing Lender and the other Lenders, as cash
collateral in an amount up to 105% of the then extant Letter of
Credit Usage until paid in full,
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M. thirteenth, to pay any other Obligations (including
----------
Bank Product Obligations) until paid in full, and
N. fourteenth, to Borrowers (to be wired to the
----------
Designated Account) or such other Person entitled thereto under
applicable law.
(ii) Agent promptly shall distribute to each Lender,
pursuant to the applicable wire instructions received from each Lender in
writing, such funds as it may be entitled to receive, subject to a
Settlement delay as provided in Section 2.2.
-----------
(iii) In each instance, so long as no Event of Default has
occurred and is continuing, Section 2.3(b) shall not be deemed to apply to
--------------
any payment by Borrowers specified by Borrowers to be for the payment of
specific Obligations then due and payable (or prepayable) under any
provision of this Agreement.
(iv) For purposes of the foregoing, "paid in full" means
payment of all amounts owing under the Loan Documents according to the
terms thereof, including loan fees, service fees, professional fees,
interest (and specifically including interest accrued after the
commencement of any Insolvency Proceeding), default interest, interest on
interest, and expense reimbursements, whether or not the same would be or
is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority
provisions of this Section 2.3 and other provisions contained in any other
-----------
Loan Document, it is the intention of the parties hereto that such priority
provisions in such documents shall be read together and construed, to the
fullest extent possible, to be in concert with each other. In the event of
any actual, irreconcilable conflict that cannot be resolved as aforesaid,
the terms and provisions of this Section 2.3 shall control and govern.
-----------
2.4 Overadvances. If, at any time or for any reason, the amount of
------------
Obligations (other than Bank Product Obligations) owed by Borrowers to the
Lender Group pursuant to Sections 2.1 and 2.11 is greater than either the Dollar
---------------------
or percentage limitations set forth in Sections 2.1 or 2.11, (an "Overadvance"),
-------------------- -----------
Borrowers immediately shall pay to Agent, in cash, the amount of such excess,
which amount shall be used by Agent to reduce the Obligations in accordance with
the priorities set forth in Section 2.3(b). In addition, Borrowers hereby
--------------
promise to pay the Obligations (including principal, interest, fees, costs, and
expenses) in Dollars in full to the Lender Group as and when due and payable
under the terms of this Agreement and the other Loan Documents.
2.5 Interest Rates and Letter of Credit Fee: Rates, Payments, and
-------------------------------------------------------------
Calculations.
------------
(a) Interest Rates. Except as provided in clause (c) below, all
Obligations (except for undrawn Letters of Credit and except for Bank Product
Obligations) that have been charged to the Loan Account pursuant to the terms
hereof shall bear interest on the Daily Balance thereof as follows (i) if the
relevant Obligation is an Advance that is a LIBOR
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Rate Loan, at a per annum rate equal to the LIBOR Rate plus the LIBOR Rate
Margin and (ii) otherwise, at a per annum rate equal to the Base Rate plus the
Base Rate Margin.
The foregoing notwithstanding, at no time shall any portion of the
Obligations (other than Bank Product Obligations) bear interest on the Daily
Balance thereof at a per annum rate less than 4.75%. To the extent that interest
accrued hereunder at the rate set forth herein would be less than the foregoing
minimum daily rate, the interest rate chargeable hereunder for such day
automatically shall be deemed increased to the minimum rate.
(b) Letter of Credit Fee. Borrowers shall pay Agent (for the
ratable benefit of the Lenders, subject to any letter agreement between Agent
and individual Lenders), a Letter of Credit fee (in addition to the charges,
commissions, fees, and costs set forth in Section 2.11(e)) which shall accrue at
---------------
a rate equal to 2% per annum times the Daily Balance of the undrawn amount of
all outstanding Letters of Credit.
(c) Default Rate. Upon the occurrence and during the continuation
of an Event of Default (and at the election of Agent or the Required Lenders),
(i) all Obligations (except for undrawn Letters of Credit
and except for Bank Product Obligations) that have been charged to the Loan
Account pursuant to the terms hereof shall bear interest on the Daily
Balance thereof at a per annum rate equal to 3 percentage points above the
per annum rate otherwise applicable hereunder, and
(ii) the Letter of Credit fee provided for above shall be
increased to 3 percentage points above the per annum rate otherwise
applicable hereunder.
(d) Payment. Interest, Letter of Credit fees, and all other fees
payable hereunder shall be due and payable, in arrears, on the first day of each
month at any time that Obligations or Commitments are outstanding. Borrowers
hereby authorize Agent, from time to time, without prior notice to Borrowers, to
charge such interest and fees, all Lender Group Expenses (as and when incurred),
the charges, commissions, fees, and costs provided for in Section 2.11(e) (as
---------------
and when accrued or incurred), the fees and costs provided for in Section 2.10
------------
(as and when accrued or incurred), and all other payments as and when due and
payable under any Loan Document (including any amounts due and payable to ▇▇▇▇▇
Fargo or its Affiliates in respect of Bank Products up to the amount of the then
extant Bank Products Reserve) to Borrowers' Loan Account, which amounts
thereafter shall constitute Advances hereunder and shall accrue interest at the
rate then applicable to Advances hereunder. Any interest not paid when due shall
be compounded by being charged to Borrowers' Loan Account and shall thereafter
constitute Advances hereunder and shall accrue interest at the rate then
applicable to Advances that are Base Rate Loans hereunder.
(e) Computation. All interest and fees chargeable under the Loan
Documents shall be computed on the basis of a 360 day year for the actual number
of days elapsed. In the event the Base Rate is changed from time to time
hereafter, the rates of interest
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hereunder based upon the Base Rate automatically and immediately shall be
increased or decreased by an amount equal to such change in the Base Rate.
(f) Intent to Limit Charges to Maximum Lawful Rate. In no event
shall the interest rate or rates payable under this Agreement, plus any other
amounts paid in connection herewith, exceed the highest rate permissible under
any law that a court of competent jurisdiction shall, in a final determination,
deem applicable. Borrowers and the Lender Group, in executing and delivering
this Agreement, intend legally to agree upon the rate or rates of interest and
manner of payment stated within it; provided, however, that, anything contained
-------- -------
herein to the contrary notwithstanding, if said rate or rates of interest or
manner of payment exceeds the maximum allowable under applicable law, then, ipso
facto, as of the date of this Agreement, Borrowers are and shall be liable only
for the payment of such maximum as allowed by law, and payment received from
Borrowers in excess of such legal maximum, whenever received, shall be applied
to reduce the principal balance of the Obligations to the extent of such excess.
2.6 Cash Management.
---------------
(a) On or before the time required by Section 3.2(c), Borrowers
shall (i) establish and maintain cash management services of a type and on terms
reasonably satisfactory to Agent at one or more of the banks set forth on
Schedule 2.6(a) (each a "Cash Management Bank"), and shall request in writing
--------------- --------------------
and otherwise take such reasonable steps to ensure that all of its Account
Debtors forward payment of the amounts owed by them directly to such Cash
Management Bank, and (ii) deposit or cause to be deposited promptly, and in any
event no later than the first Business Day after the date of receipt thereof,
all Collections (including, without limitation, (A) those sent directly by
Account Debtors to a Cash Management Bank, (B) the proceeds of any sale or other
disposition of the assets or Stock of VHC, Scientific Exchange, Promotech,
Imedex or the Foreign Subsidiaries, (C) the proceeds of any disposition of the
equity of ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., and (D) funds released from that certain deposit
account described in clause (n) of the definition of Permitted Liens) into a
bank account in Agent's name (a "Cash Management Account") at one of the Cash
Management Banks.
(b) Each Cash Management Bank shall establish and maintain Cash
Management Agreements with Agent and Borrowers, in form and substance acceptable
to Agent. Each such Cash Management Agreement shall provide, among other things,
that (i) all items of payment deposited in such Cash Management Account and
proceeds thereof are held by such Cash Management Bank agent or
bailee-in-possession for Agent, (ii) the Cash Management Bank has no rights of
setoff or recoupment or any other claim against the applicable Cash Management
Account, other than for payment of its service fees and other charges directly
related to the administration of such Cash Management Account and for returned
checks or other items of payment, and (iii) it will remit all proceeds received
therein to the Agent's Account at all times after the Agent has provided a
notice (a "Triggering Event Notice") to the applicable Cash Management Bank. The
-----------------------
Agent may provide a Triggering Event Notice to the applicable Cash Management
Bank if either (1) an Event of Default has occurred and is continuing hereunder,
or (2) Borrowers' Excess Availability plus Unrestricted Cash is less than
$25,000,000 in the aggregate. Upon the terms and subject to the conditions set
forth in the Cash Management Agreements, from and after the receipt by a Cash
Management Bank of a Triggering Event
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Notice, all amounts received in the applicable Cash Management Account, shall be
wired each Business Day into the Agent's Account.
(c) So long as no Default or Event of Default has occurred and is
continuing, Administrative Borrower may amend Schedule 2.6(a) to add or replace
---------------
a Cash Management Account Bank or Cash Management Account; provided, however,
-------- -------
that (i) such prospective Cash Management Bank shall be reasonably satisfactory
to Agent and Agent shall have consented in writing in advance to the opening of
such Cash Management Account with the prospective Cash Management Bank, and (ii)
prior to the time of the opening of such Cash Management Account, Borrowers and
such prospective Cash Management Bank shall have executed and delivered to Agent
a Cash Management Agreement. Borrowers shall close any of their Cash Management
Accounts (and establish replacement cash management accounts in accordance with
the foregoing sentence) promptly and in any event within 30 days of notice from
Agent that the creditworthiness of any Cash Management Bank is no longer
acceptable in Agent's reasonable judgment, or as promptly as practicable and in
any event within 60 days of notice from Agent that the operating performance,
funds transfer, or availability procedures or performance of the Cash Management
Bank with respect to Cash Management Accounts or Agent's liability under any
Cash Management Agreement with such Cash Management Bank is no longer acceptable
in Agent's reasonable judgment.
(d) The Cash Management Accounts shall be cash collateral
accounts, with all cash, checks and similar items of payment in such accounts
securing payment of the Obligations, and in which Borrowers are hereby deemed to
have granted a Lien to Agent.
2.7 Crediting Payments; Float Charge. The receipt of any payment item
--------------------------------
by Agent (whether from transfers to Agent by the Cash Management Banks pursuant
to the Cash Management Agreements or otherwise) shall not be considered a
payment on account unless such payment item is a wire transfer of immediately
available federal funds made to the Agent's Account or unless and until such
payment item is honored when presented for payment. Should any payment item not
be honored when presented for payment, then Borrowers shall be deemed not to
have made such payment and interest shall be calculated accordingly. Anything to
the contrary contained herein notwithstanding, any payment item shall be deemed
received by Agent only if it is received into the Agent's Account on a Business
Day on or before 11:00 a.m. (California time). If any payment item is received
into the Agent's Account on a non-Business Day or after 11:00 a.m. (California
time) on a Business Day, it shall be deemed to have been received by Agent as of
the opening of business on the immediately following Business Day. From and
after the Closing Date, Agent shall be entitled to charge Borrowers for 1
Business Day of 'clearance' or 'float' at the rate applicable to Base Rate Loans
under Section 2.5 on all Collections that are received by Borrowers (regardless
-----------
of whether forwarded by the Cash Management Banks to Agent). This
across-the-board 1 Business Day clearance or float charge on all Collections is
acknowledged by the parties to constitute an integral aspect of the pricing of
the financing of Borrowers and shall apply irrespective of whether or not there
are any outstanding monetary Obligations; the effect of such clearance or float
charge being the equivalent of charging 1 Business Day of interest on such
Collections. The parties acknowledge and agree that the economic benefit of the
foregoing provisions of this Section 2.7 shall be for the exclusive benefit of
-----------
Agent.
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2.8 Designated Account. Agent is authorized to make the Advances, and
------------------
Issuing Lender is authorized to issue the Letters of Credit, under this
Agreement based upon telephonic or other instructions received from anyone
purporting to be an Authorized Person, or without instructions if pursuant to
Section 2.5(d). Administrative Borrower agrees to establish and maintain the
--------------
Designated Account with the Designated Account Bank for the purpose of receiving
the proceeds of the Advances requested by Borrowers and made by Agent or the
Lenders hereunder. Unless otherwise agreed by Agent and Administrative Borrower,
any Advance, Agent Advance, or Swing Loan requested by Borrowers and made by
Agent or the Lenders hereunder shall be made to the Designated Account.
2.9 Maintenance of Loan Account; Statements of Obligations. Agent
------------------------------------------------------
shall maintain an account on its books in the name of Borrowers (the "Loan
----
Account") on which Borrowers will be charged with all Advances (including Agent
-------
Advances and Swing Loans) made by Agent, Swing Lender, or the Lenders to
Borrowers or for Borrowers' account, the Letters of Credit issued by Issuing
Lender for Borrowers' account, and with all other payment Obligations hereunder
or under the other Loan Documents (except for Bank Product Obligations),
including, accrued interest, fees and expenses, and Lender Group Expenses. In
accordance with Section 2.7, the Loan Account will be credited with all payments
-----------
received by Agent from Borrowers or for Borrowers' account, including all
amounts received in the Agent's Account from any Cash Management Bank. Agent
shall render statements regarding the Loan Account to Administrative Borrower,
including principal, interest, fees, and including an itemization of all charges
and expenses constituting Lender Group Expenses owing, and such statements shall
be conclusively presumed to be correct and accurate absent manifest error and
constitute an account stated between Borrowers and the Lender Group unless,
within 30 days after receipt thereof by Administrative Borrower, Administrative
Borrower shall deliver to Agent written objection thereto describing the error
or errors contained in any such statements.
2.10 Fees. Borrowers shall pay to Agent the following fees and
----
charges, which fees and charges shall be non-refundable when paid (irrespective
of whether this Agreement is terminated thereafter) and shall be apportioned
among the Lenders in accordance with the terms of letter agreements between
Agent and individual Lenders:
(a) Unused Line Fee. On the first day of each month during the
term of this Agreement, an unused line fee in the amount equal to 0.375% per
annum times the result of (1) prior to the date that Agent approves the initial
Advances requested by Administrative Borrower under the Unbilled Subline, (a)
the Billed Subline, less (b) the sum of (i) the average Daily Balance of
Advances made under the Billed Subline that were outstanding during the
immediately preceding month, plus (ii) the average Daily Balance of the Letter
of Credit Usage during the immediately preceding month, and (2) from and after
the date that there are one or more Lenders, in addition to Foothill, that have
aggregate commitments of $20,000,000 or more under this Agreement, (a) the
Maximum Revolver Amount, less (b) the sum of (c) the average Daily Balance of
Advances that were outstanding during the immediately preceding month, plus (d)
the average Daily Balance of the Letter of Credit Usage during the immediately
preceding month,
(b) Fee Letter Fees. As and when due and payable under the terms
of the Fee Letter, Borrowers shall pay to Agent the fees set forth in the Fee
Letter, and
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(c) Audit, Appraisal, and Valuation Charges. For the separate
account of Agent, audit, appraisal, and valuation fees and charges as follows,
(i) a fee of $850 per day, per auditor, plus out-of-pocket expenses for each
financial audit of a Borrower performed by personnel employed by Agent, (ii) if
implemented, a one time charge of $3,000 plus out-of-pocket expenses for
expenses for the establishment of electronic collateral reporting systems, and
(iii) the actual charges paid or incurred by Agent if it elects to employ the
services of one or more third Persons to perform financial audits of Borrowers,
to appraise the Collateral, or any portion thereof, or to assess a Borrower's
business valuation; provided, that so long as no Event of Default has occurred
--------
and is continuing, Borrowers shall only be obligated to pay for fees and charges
incurred for financial audits performed no more frequently than four (4) times
per calendar year.
2.11 Letters of Credit.
-----------------
(a) Subject to the terms and conditions of this Agreement, the
Issuing Lender agrees to issue letters of credit for the account of Borrowers
(each, an "L/C") or to purchase participations or execute indemnities or
---
reimbursement obligations (each such undertaking, an "L/C Undertaking") with
---------------
respect to letters of credit issued by an Underlying Issuer (as of the Closing
Date, the prospective Underlying Issuer is to be ▇▇▇▇▇ Fargo) for the account of
Borrowers. To request the issuance of an L/C or an L/C Undertaking (or the
amendment, renewal, or extension of an outstanding L/C or L/C Undertaking),
Administrative Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the
Issuing Lender) to the Issuing Lender and Agent (reasonably in advance of the
requested date of issuance, amendment, renewal, or extension) a notice
requesting the issuance of an L/C or L/C Undertaking, or identifying the L/C or
L/C Undertaking to be amended, renewed, or extended, the date of issuance,
amendment, renewal, or extension, the date on which such L/C or L/C Undertaking
is to expire, the amount of such L/C or L/C Undertaking, the name and address of
the beneficiary thereof (or of the Underlying Letter of Credit, as applicable),
and such other information as shall be necessary to prepare, amend, renew, or
extend such L/C or L/C Undertaking. If requested by the Issuing Lender,
Borrowers also shall be an applicant under the application with respect to any
Underlying Letter of Credit that is to be the subject of an L/C Undertaking. The
Issuing Lender shall have no obligation to issue an L/C if any of the following
would result after giving effect to the requested L/C:
(i) the Letter of Credit Usage would exceed the Borrowing
Base less the amount of outstanding Advances, or
(ii) the Letter of Credit Usage would exceed $5,000,000, or
(iii) the Letter of Credit Usage would exceed the Maximum
Revolver Amount less the then extant amount of outstanding Advances, or
(iv) the Letter of Credit Usage would exceed the Billed
Subline less the then extant amount of outstanding Advances made under the
Billed Subline, or
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(v) the Letter of Credit Usage would exceed the difference
between (A) EBITDA for the most recent twelve month period times 2 and (B)
the then extant amount of outstanding Advances.
Borrowers and the Lender Group acknowledge and agree that certain
Underlying Letters of Credit may be issued to support letters of credit that
already are outstanding as of the Closing Date. Each Letter of Credit (and
corresponding Underlying Letter of Credit) shall be in form and substance
acceptable to the applicable Borrower and the Issuing Lender (in the exercise of
its Permitted Discretion), including the requirement that the amounts payable
thereunder must be payable in Dollars. If Issuing Lender is obligated to advance
funds under an L/C, Borrowers immediately shall reimburse such L/C Disbursement
to Issuing Lender by paying to Agent an amount equal to such L/C Disbursement
not later than 11:00 a.m., California time, on the date that such L/C
Disbursement is made, if Administrative Borrower shall have received written or
telephonic notice of such L/C Disbursement prior to 10:00 a.m., California time,
on such date, or, if such notice has not been received by Administrative
Borrower prior to such time on such date, then not later than 11:00 a.m.,
California time, on (i) the Business Day that Administrative Borrower receives
such notice, if such notice is received prior to 10:00 a.m., California time, on
the date of receipt, and, in the absence of such reimbursement, the L/C
Disbursement immediately and automatically shall be deemed to be an Advance
hereunder and, thereafter, shall bear interest at the rate then applicable to
Advances that are Base Rate Loans under Section 2.5. To the extent an L/C
-----------
Disbursement is deemed to be an Advance hereunder, Borrowers' obligation to
reimburse such L/C Disbursement shall be discharged and replaced by the
resulting Advance. Subject to the applicable standards of liability set forth in
this Agreement, any reimbursement payments made by a Borrower with respect to a
Letter of Credit Disbursement (including by way of an Advance) shall be without
prejudice to, and shall not constitute a waiver of, any right any Borrower may
have or might acquire as a result of any payment by the Issuing Bank or the
Underlying Issuer under or with respect to a Letter of Credit, the reimbursement
thereof by such Borrower or any action taken or omitted to be taken by such
Issuing Bank or Underlying Issuer under or in connection with a Letter of
Credit. Promptly following receipt by Agent of any payment from Borrowers
pursuant to this paragraph, Agent shall distribute such payment to the Issuing
Lender or, to the extent that Lenders have made payments pursuant to Section
-------
2.11(c) to reimburse the Issuing Lender, then to such Lenders and the Issuing
-------
Lender as their interest may appear.
(b) Promptly following receipt of a notice of L/C Disbursement
pursuant to Section 2.11(a), each Lender agrees to fund its Pro Rata Share of
---------------
any Advance deemed made pursuant to the foregoing subsection on the same terms
and conditions as if Borrowers had requested such Advance and Agent shall
promptly pay to Issuing Lender the amounts so received by it from the Lenders.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of the
Issuing Lender or the Lenders, the Issuing Lender shall be deemed to have
granted to each Lender, and each Lender shall be deemed to have purchased, a
participation in each Letter of Credit, in an amount equal to its Pro Rata Share
of the Risk Participation Liability of such Letter of Credit, and each such
Lender agrees to pay to Agent, for the account of the Issuing Lender, such
Lender's Pro Rata Share of any payments made by the Issuing Lender under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to Agent, for the
account of the Issuing Lender,
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such Lender's Pro Rata Share of each L/C Disbursement made by the Issuing Lender
and not reimbursed by Borrowers on the date due as provided in clause (a) of
this Section, or of any reimbursement payment required to be refunded to
Borrowers for any reason. Each Lender acknowledges and agrees that its
obligation to deliver to Agent, for the account of the Issuing Lender, an amount
equal to its respective Pro Rata Share pursuant to this Section 2.11(b) shall be
---------------
absolute and unconditional and such remittance shall be made notwithstanding the
occurrence or continuation of an Event of Default or Default or the failure to
satisfy any condition set forth in Section 3 hereof. If any such Lender fails to
---------
make available to Agent the amount of such Lender's Pro Rata Share of any
payments made by the Issuing Lender in respect of such Letter of Credit as
provided in this Section, Agent (for the account of the Issuing Lender) shall be
entitled to recover such amount on demand from such Lender together with
interest thereon at the Defaulting Lender Rate until paid in full.
(c) Each Borrower hereby agrees to indemnify, save, defend, and
hold the Lender Group harmless from any loss, cost, expense, or liability, and
reasonable attorneys fees incurred by the Lender Group arising out of or in
connection with any L/C; provided, however, that no Borrower shall be obligated
-------- -------
hereunder to indemnify for any loss, cost, expense, or liability that is caused
by the gross negligence or willful misconduct of the Issuing Lender or any other
member of the Lender Group. Each Borrower agrees to be bound by the Underlying
Issuer's regulations and interpretations of any Underlying Letter of Credit or
by Issuing Lender's interpretations of any L/C issued by Issuing Lender to or
for such Borrower's account, even though this interpretation may be different
from such Borrower's own, and each Borrower understands and agrees that the
Lender Group shall not be liable for any error, negligence, or mistake, whether
of omission or commission, in following Borrowers' instructions or those
contained in the Letter of Credit or any modifications, amendments, or
supplements thereto. Each Borrower understands that the L/C Undertakings may
require Issuing Lender to indemnify the Underlying Issuer for certain costs or
liabilities arising out of claims by Borrowers against such Underlying Issuer.
Each Borrower hereby agrees to indemnify, save, defend, and hold the Lender
Group harmless with respect to any loss, cost, expense (including reasonable
attorneys fees), or liability incurred by the Lender Group under any L/C
Undertaking as a result of the Lender Group's indemnification of any Underlying
Issuer; provided, however, that no Borrower shall be obligated hereunder to
-------- -------
indemnify for any loss, cost, expense, or liability that is caused by the gross
negligence or willful misconduct of the Issuing Lender or any other member of
the Lender Group or the Underlying Issuer.
(d) Each Borrower hereby authorizes and directs any Underlying
Issuer to deliver to the Issuing Lender all instruments, documents, and other
writings and property received by such Underlying Issuer pursuant to such
Underlying Letter of Credit and to accept and rely upon the Issuing Lender's
instructions with respect to all matters arising in connection with such
Underlying Letter of Credit and the related application.
(e) Any and all charges, commissions, fees, and costs incurred by
the Issuing Lender relating to Underlying Letters of Credit shall be Lender
Group Expenses for purposes of this Agreement and immediately shall be
reimbursable by Borrowers to Agent for the account of the Issuing Lender; it
being acknowledged and agreed by each Borrower that, as of the Closing Date, the
issuance charge imposed by the prospective Underlying Issuer is .825% per annum
times the face amount of each Underlying Letter of Credit, that such issuance
charge
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may be changed from time to time, and that the Underlying Issuer also imposes a
schedule of charges for amendments, extensions, drawings, and renewals.
(f) If by reason of (i) any change in any applicable law, treaty,
rule, or regulation or any change in the interpretation or application thereof
by any Governmental Authority, or (ii) compliance by the Underlying Issuer or
the Lender Group with any direction, request, or requirement (irrespective of
whether having the force of law) of any Governmental Authority or monetary
authority including, Regulation D of the Federal Reserve Board as from time to
time in effect (and any successor thereto):
(i) any reserve, deposit, or similar requirement is or shall
be imposed or modified in respect of any Letter of Credit issued hereunder,
or
(ii) there shall be imposed on the Underlying Issuer or the
Lender Group any other condition regarding any Underlying Letter of Credit
or any Letter of Credit issued pursuant hereto;
and the result of the foregoing is to increase, directly or indirectly, the cost
to the Lender Group of issuing, making, guaranteeing, or maintaining any Letter
of Credit or to reduce the amount receivable in respect thereof by the Lender
Group, then, and in any such case, Agent may, at any time within a reasonable
period after the additional cost is incurred or the amount received is reduced,
notify Administrative Borrower, and Borrowers shall pay on demand such amounts
as Agent may specify to be necessary to compensate the Lender Group for such
additional cost or reduced receipt, together with interest on such amount from
the day after such demand until payment in full thereof at the rate then
applicable to Base Rate Loans hereunder. The determination by Agent of any
amount due pursuant to this Section, as set forth in a certificate setting forth
the calculation thereof in reasonable detail, shall, in the absence of manifest
or demonstrable error, be final and conclusive and binding on all of the parties
hereto.
2.12 LIBOR Option.
------------
(a) Interest and Interest Payment Dates. In lieu of having
interest charged at the rate based upon the Base Rate, Borrowers shall have the
option (the "LIBOR Option") to have interest on all or a portion of the Advances
------------
be charged at a rate of interest based upon the LIBOR Rate. Interest on LIBOR
Rate Loans shall be payable on the earliest of (i) the last day of the Interest
Period applicable thereto, (ii) the occurrence of an Event of Default in
consequence of which the Required Lenders or Agent on behalf thereof elect to
accelerate the maturity of all or any portion of the Obligations, or (iii)
termination of this Agreement pursuant to the terms hereof. On the last day of
each applicable Interest Period, unless Administrative Borrower properly has
exercised the LIBOR Option with respect thereto, the interest rate applicable to
such LIBOR Rate Loan automatically shall convert to the rate of interest then
applicable to Base Rate Loans of the same type hereunder. At any time that an
Event of Default has occurred and is continuing, Borrowers no longer shall have
the option to request that Advances bear interest at the LIBOR Rate and Agent
shall have the right to convert the interest rate on all outstanding LIBOR Rate
Loans to the rate then applicable to Base Rate Loans hereunder
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(b) LIBOR Election.
(i) Administrative Borrower may, at any time and from time
to time, so long as no Event of Default has occurred and is continuing,
elect to exercise the LIBOR Option by notifying Agent prior to 11:00 a.m.
(California time) at least 3 Business Days prior to the commencement of the
proposed Interest Period (the "LIBOR Deadline"). Notice of Administrative
--------------
Borrower's election of the LIBOR Option for a permitted portion of the
Advances and an Interest Period pursuant to this Section shall be made by
delivery to Agent of a LIBOR Notice received by Agent before the LIBOR
Deadline, or by telephonic notice received by Agent before the LIBOR
Deadline (to be confirmed by delivery to Agent of a LIBOR Notice received
by Agent prior to 5:00 p.m. (California time) on the same day. Promptly
upon its receipt of each such LIBOR Notice, Agent shall provide a copy
thereof to each of the Lenders.
(ii) Each LIBOR Notice shall be irrevocable and binding on
Borrowers. In connection with each LIBOR Rate Loan, each Borrower shall
indemnify, defend, and hold Agent and the Lenders harmless against any
loss, cost, or expense incurred by Agent or any Lender as a result of (a)
the payment of any principal of any LIBOR Rate Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any LIBOR Rate Loan other than on
the last day of the Interest Period applicable thereto, or (c) the failure
to borrow, convert, continue or prepay any LIBOR Rate Loan on the date
specified in any LIBOR Notice delivered pursuant hereto (such losses,
costs, and expenses, collectively, "Funding Losses"). Funding Losses shall,
--------------
with respect to Agent or any Lender, be deemed to equal the amount
determined by Agent or such Lender to be the excess, if any, of (i) the
amount of interest that would have accrued on the principal amount of such
LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would
have been applicable thereto, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period therefor), minus (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate
which Agent or such Lender would be offered were it to be offered, at the
commencement of such period, Dollar deposits of a comparable amount and
period in the London interbank market. A certificate of Agent or a Lender
delivered to Administrative Borrower setting forth any amount or amounts
that Agent or such Lender is entitled to receive pursuant to this Section
shall be conclusive absent manifest error.
(iii) Borrowers shall have not more than 5 LIBOR Rate Loans
in effect at any given time. Borrowers only may exercise the LIBOR Option
for LIBOR Rate Loans of at least $1,000,000 and integral multiples of
$500,000 in excess thereof.
(c) Prepayments. Borrowers may prepay LIBOR Rate Loans at any
time, without premium or penalty except as otherwise provided in this Section
-------
2.12 and Section 3.6; provided, however, that in the event that LIBOR Rate Loans
---- ----------- -------- -------
are prepaid on any date that is not the last day of the Interest Period
applicable thereto, including as a result of any automatic prepayment through
the required application by Agent of proceeds of Collections in accordance with
Section 2.3(b) or for any other reason, including early termination of the term
--------------
of this
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Agreement or acceleration of all or any portion of the Obligations pursuant to
the terms hereof, each Borrower shall indemnify, defend, and hold Agent and the
Lenders and their Participants harmless against any and all Funding Losses in
accordance with clause (b) above.
(d) Special Provisions Applicable to LIBOR Rate.
(i) The LIBOR Rate may be adjusted by Agent with respect to
any Lender on a prospective basis to take into account any additional or
increased costs to such Lender of maintaining or obtaining any eurodollar
deposits or increased costs due to changes in applicable law occurring
subsequent to the commencement of the then applicable Interest Period,
including changes in tax laws (except changes of general applicability in
corporate income tax laws) and changes in the reserve requirements imposed
by the Board of Governors of the Federal Reserve System (or any successor),
excluding the Reserve Percentage, which additional or increased costs would
increase the cost of funding loans bearing interest at the LIBOR Rate. In
any such event, the affected Lender shall give Administrative Borrower and
Agent notice of such a determination and adjustment and Agent promptly
shall transmit the notice to each other Lender and, upon its receipt of the
notice from the affected Lender, Administrative Borrower may, by notice to
such affected Lender (y) require such Lender to furnish to Administrative
Borrower a statement setting forth the basis for adjusting such LIBOR Rate
and the method for determining the amount of such adjustment, or (z) repay
the LIBOR Rate Loans with respect to which such adjustment is made
(together with any amounts due under clause (b)(ii) above).
(ii) In the event that any change in market conditions or
any law, regulation, treaty, or directive, or any change therein or in the
interpretation of application thereof, shall at any time after the date
hereof, in the reasonable opinion of any Lender, make it unlawful or
impractical for such Lender to fund or maintain LIBOR Advances or to
continue such funding or maintaining, or to determine or charge interest
rates at the LIBOR Rate, such Lender shall give notice of such changed
circumstances to Agent and Administrative Borrower and Agent promptly shall
transmit the notice to each other Lender and (y) in the case of any LIBOR
Rate Loans of such Lender that are outstanding, the date specified in such
Lender's notice shall be deemed to be the last day of the Interest Period
of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such
Lender thereafter shall accrue interest at the rate then applicable to Base
Rate Loans, and (z) Borrowers shall not be entitled to elect the LIBOR
Option until such Lender determines that it would no longer be unlawful or
impractical to do so.
(e) No Requirement of Matched Funding. Anything to the contrary
contained herein notwithstanding, neither Agent, nor any Lender, nor any of
their Participants, is required actually to acquire eurodollar deposits to fund
or otherwise match fund any Obligation as to which interest accrues at the LIBOR
Rate. The provisions of this Section shall apply as if each Lender or its
Participants had match funded any Obligation as to which interest is accruing at
the LIBOR Rate by acquiring eurodollar deposits for each Interest Period in the
amount of the LIBOR Rate Loans.
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2.13 Capital Requirements. If, after the date hereof, any Lender
--------------------
determines that (i) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies, or
any change in the interpretation or application thereof by any Governmental
Authority charged with the administration thereof, or (ii) compliance by such
Lender or its parent bank holding company with any guideline, request or
directive of any such entity regarding capital adequacy (whether or not having
the force of law), the effect of reducing the return on such Lender's or such
holding company's capital as a consequence of such Lender's Commitments
hereunder to a level below that which such Lender or such holding company could
have achieved but for such adoption, change, or compliance (taking into
consideration such Lender's or such holding company's then existing policies
with respect to capital adequacy and assuming the full utilization of such
entity's capital) by any amount deemed by such Lender to be material, then such
Lender may notify Administrative Borrower and Agent thereof. Following receipt
of such notice, Borrowers agree to pay such Lender on demand the amount of such
reduction of return of capital as and when such reduction is determined, payable
within 90 days after presentation by such Lender of a statement in the amount
and setting forth in reasonable detail such Lender's calculation thereof and the
assumptions upon which such calculation was based (which statement shall be
deemed true and correct absent manifest error). In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
2.14 Joint and Several Liability of Borrowers.
----------------------------------------
(a) Each of Borrowers is accepting joint and several liability
hereunder and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Agent and the Lenders under this Agreement,
for the mutual benefit, directly and indirectly, of each of Borrowers and in
consideration of the undertakings of the other Borrowers to accept joint and
several liability for the Obligations.
(b) Each of Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this Section 2.14), it being the
------------
intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each Person composing Borrowers without preferences or
distinction among them.
(c) If and to the extent that any of Borrowers shall fail to make
any payment with respect to any of the Obligations as and when due or to perform
any of the Obligations in accordance with the terms thereof, then in each such
event the other Persons composing Borrowers will make such payment with respect
to, or perform, such Obligation.
(d) The Obligations of each Person composing Borrowers under the
provisions of this Section 2.14 constitute the absolute and unconditional, full
------------
recourse Obligations of each Person composing Borrowers enforceable against each
such Borrower to the full extent of its properties and assets, irrespective of
the validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
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(e) Except as otherwise expressly provided in this Agreement,
each Person composing Borrowers hereby waives notice of acceptance of its joint
and several liability, notice of any Advances or Letters of Credit issued under
or pursuant to this Agreement, notice of the occurrence of any Default, Event of
Default, or of any demand for any payment under this Agreement, notice of any
action at any time taken or omitted by Agent or Lenders under or in respect of
any of the Obligations, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and
other formalities of every kind in connection with this Agreement (except as
otherwise provided in this Agreement). Each Person composing Borrowers hereby
assents to, and waives notice of, any extension or postponement of the time for
the payment of any of the Obligations, the acceptance of any payment of any of
the Obligations, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by Agent or Lenders at any time or times
in respect of any default by any Person composing Borrowers in the performance
or satisfaction of any term, covenant, condition or provision of this Agreement,
any and all other indulgences whatsoever by Agent or Lenders in respect of any
of the Obligations, and the taking, addition, substitution or release, in whole
or in part, at any time or times, of any security for any of the Obligations or
the addition, substitution or release, in whole or in part, of any Person
composing Borrowers. Without limiting the generality of the foregoing, each of
Borrowers assents to any other action or delay in acting or failure to act on
the part of any Agent or Lender with respect to the failure by any Person
composing Borrowers to comply with any of its respective Obligations, including,
without limitation, any failure strictly or diligently to assert any right or to
pursue any remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 2.14 afford
------------
grounds for terminating, discharging or relieving any Person composing
Borrowers, in whole or in part, from any of its Obligations under this Section
-------
2.14, it being the intention of each Person composing Borrowers that, so long as
----
any of the Obligations hereunder remain unsatisfied, the Obligations of such
Person composing Borrowers under this Section 2.14 shall not be discharged
------------
except by performance and then only to the extent of such performance. The
Obligations of each Person composing Borrowers under this Section 2.14 shall not
------------
be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
any Person composing Borrowers or any Agent or Lender. The joint and several
liability of the Persons composing Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, constitution or place of formation of any
of the Persons composing Borrowers or any Agent or Lender.
(f) Each Person composing Borrowers represents and warrants to
Agent and Lenders that such Borrower is currently informed of the financial
condition of Borrowers and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Obligations. Each
Person composing Borrowers further represents and warrants to Agent and Lenders
that such Borrower has read and understands the terms and conditions of the Loan
Documents. Each Person composing Borrowers hereby covenants that such Borrower
will continue to keep informed of Borrowers' financial condition, the financial
condition of other guarantors, if any, and of all other circumstances which bear
upon the risk of nonpayment or nonperformance of the Obligations.
(g) The provisions of this Section 2.14 are made for the benefit
------------
of the Agent, the Lenders and their respective successors and assigns, and may
be enforced by it or
-49-
them from time to time against any or all of the Persons composing Borrowers as
often as occasion therefor may arise and without requirement on the part of any
such Agent, Lender, successor or assign first to marshal any of its or their
claims or to exercise any of its or their rights against any of the other
Persons composing Borrowers or to exhaust any remedies available to it or them
against any of the other Persons composing Borrowers or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder or to
elect any other remedy. The provisions of this Section 2.14 shall remain in
------------
effect until all of the Obligations shall have been paid in full or otherwise
fully satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be restored or
returned by any Agent or Lender upon the insolvency, bankruptcy or
reorganization of any of the Persons composing Borrowers, or otherwise, the
provisions of this Section 2.14 will forthwith be reinstated in effect, as
------------
though such payment had not been made.
(h) Each of the Persons composing Borrowers hereby agrees that it
will not enforce any of its rights of contribution or subrogation against the
other Persons composing Borrowers with respect to any liability incurred by it
hereunder or under any of the other Loan Documents, any payments made by it to
the Agent or the Lenders with respect to any of the Obligations or any
collateral security therefor until such time as all of the Obligations have been
paid in full in cash. Any claim which any Borrower may have against any other
Borrower with respect to any payments to any Agent or Lender hereunder or under
any other Loan Documents are hereby expressly made subordinate and junior in
right of payment, without limitation as to any increases in the Obligations
arising hereunder or thereunder, to the prior payment in full in cash of the
Obligations and, in the event of any insolvency, bankruptcy, receivership,
liquidation, reorganization or other similar proceeding under the laws of any
jurisdiction relating to any Borrower, its debts or its assets, whether
voluntary or involuntary, all such Obligations shall be paid in full in cash
before any payment or distribution of any character, whether in cash, securities
or other property, shall be made to any other Borrower therefor.
(i) Each of the Persons composing Borrowers hereby agrees that,
after the occurrence and during the continuance of any Default or Event of
Default, the payment of any amounts due with respect to the indebtedness owing
by any Borrower to any other Borrower is hereby subordinated to the prior
payment in full in cash of the Obligations. Each Borrower hereby agrees that
after the occurrence and during the continuance of any Default or Event of
Default, such Borrower will not demand, ▇▇▇ for or otherwise attempt to collect
any indebtedness of any other Borrower owing to such Borrower until the
Obligations shall have been paid in full in cash. If, notwithstanding the
foregoing sentence, such Borrower shall collect, enforce or receive any amounts
in respect of such indebtedness, such amounts shall be collected, enforced and
received by such Borrower as trustee for the Agent, and the Agent shall deliver
any such amounts to the Administrative Agent for application to the Obligations
in accordance with Section 2.3(b).
--------------
3. CONDITIONS; TERM OF AGREEMENT.
3.1 Conditions Precedent to the Closing Date and the Initial Extension
------------------------------------------------------------------
of Credit. The obligation of the Lender Group (or any member thereof) to make
---------
the initial Advance (or otherwise to make an initial extension of credit
provided for hereunder), is subject
-50-
to the fulfillment, to the satisfaction of Agent, of each of the conditions
precedent set forth below:
(a) the Closing Date shall occur on or before March 31, 2002;
(b) Agent shall have received the UCC Filing Authorization Letter
duly executed by each Borrower and Guarantor and Agent shall have received
satisfactory evidence of the filing of all financing statements on Form UCC-1 in
such office or offices as may be necessary or, in the opinion of Agent,
desirable to perfect the security interests purported to be created by each
applicable Loan Document;
(c) Agent shall have received each of the following documents, in
form and substance satisfactory to Agent, duly executed, and each such document
shall be in full force and effect:
(i) the Control Agreement with respect to the Initial
Advance Account;
(ii) the Disbursement Letter,
(iii) the Due Diligence Letter,
(iv) the Fee Letter,
(v) the Guaranty,
(vi) the Officers' Certificate,
(vii) the Pledge Agreement, together with (i) all
certificates representing the shares of Stock pledged thereunder (other
than Stock referenced in Section 3.2(d)), as well as Stock powers with
--------------
respect thereto endorsed in blank, and (ii) all promissory notes pledged
thereunder, as well as allonges thereto or other appropriate transfer
certificates endorsed in blank,
(viii) the Trademark Security Agreement,
(ix) the Intercompany Subordination Agreement,
(x) the Contribution Agreement, and
(xi) the Guarantor Security Agreement;
(d) Agent shall have received a certificate from the Secretary of
each Borrower attesting to the resolutions of such Borrower's Board of Directors
authorizing its execution, delivery, and performance of this Agreement and the
other Loan Documents to which such Borrower is a party and authorizing specific
officers of such Borrower to execute the same;
(e) Agent shall have received copies of each Borrower's Governing
Documents, as amended, modified, or supplemented to the Closing Date, certified
by the
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Secretary of such Borrower and, as of a recent date not more than 30 days prior
to the Closing Date, by an appropriate official of the state of organization of
such Borrower;
(f) Agent shall have received a certificate of status with
respect to each Borrower, dated within 10 days of the Closing Date, such
certificate to be issued by the appropriate officer of the jurisdiction of
organization of such Borrower, which certificate shall indicate that such
Borrower is in good standing in such jurisdiction;
(g) Agent shall have received certificates of status with respect
to each Borrower, each dated within 30 days of the Closing Date, such
certificates to be issued by the appropriate officer of the jurisdictions (other
than the jurisdiction of organization of such Borrower) in which its failure to
be duly qualified or licensed would constitute a Material Adverse Change, which
certificates shall indicate that such Borrower is in good standing in such
jurisdictions;
(h) Agent shall have received a certificate from the Secretary of
each Guarantor attesting to the resolutions of such Guarantor's Board of
Directors authorizing its execution, delivery, and performance of the Loan
Documents to which such Guarantor is a party and authorizing specific officers
of such Guarantor to execute the same;
(i) Agent shall have received copies of each Guarantor's
Governing Documents, as amended, modified, or supplemented to the Closing Date,
certified by the Secretary of such Guarantor and, as of a recent date not more
than 30 days prior to the Closing Date, by an appropriate official of the state
of organization of such Guarantor;
(j) Agent shall have received a certificate of status with
respect to each Guarantor, dated within 10 days of the Closing Date, such
certificate to be issued by the appropriate officer of the jurisdiction of
organization of such Guarantor, which certificate shall indicate that such
Guarantor is in good standing in such jurisdiction;
(k) Agent shall have received certificates of status with respect
to each Guarantor, each dated within 30 days of the Closing Date, such
certificates to be issued by the appropriate officer of the jurisdictions (other
than the jurisdiction of organization of such Guarantor) in which its failure to
be duly qualified or licensed would constitute a Material Adverse Change, which
certificates shall indicate that such Guarantor is in good standing in such
jurisdictions;
(l) Agent shall have received a certificate of insurance,
together with the endorsements thereto, as are required by Section 6.7, the form
-----------
and substance of which shall be reasonably satisfactory to Agent;
(m) Agent shall have received opinions of Borrowers' counsel in
form and substance satisfactory to Agent;
(n) Agent shall have received satisfactory evidence (including a
certificate of the chief financial officer of Parent) that all tax returns
required to be filed by Borrowers have been timely filed and all taxes upon
Borrowers or their properties, assets,
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income, and franchises (including Real Property taxes and payroll taxes) have
been paid prior to delinquency, except such taxes that are the subject of a
Permitted Protest;
(o) Agent shall have received a certificate from the chief
financial officer of each Borrower certifying as to the truth and accuracy of
the representations and warranties of Borrowers contained in Article 5 and as to
the absence of any Defaults or Events of Default;
(p) Borrowers shall have the Required Availability after giving
effect to the initial extensions of credit hereunder and the payment of all fees
and expenses required to be paid by Borrowers on the Closing Date under this
Agreement and the other Loan Documents and Borrowers' trade payables shall be at
a level and aged consistent with Borrowers' historical practices;
(q) Agent shall have received Borrowers' Closing Date Business
Plan;
(r) Borrowers shall pay all Lender Group Expenses incurred in
connection with the transactions evidenced by this Agreement;
(s) Agent shall have received copies of each of the Material
Contracts, together with a certificate of the Secretary of the applicable
Borrower certifying each such document as being a true, correct, and complete
copy thereof;
(t) The outstanding standby letter of credit no. ▇▇▇▇▇▇▇ issued
by Bank of America, N.A. with an undrawn amount not to exceed $1,500,000 shall
be cash collateralized in accordance with the terms of the Pay-Off Letter;
(u) Borrowers shall have received all licenses, approvals or
evidence of other actions required by any Governmental Authority in connection
with the execution and delivery by Borrowers of this Agreement or any other Loan
Document or with the consummation of the transactions contemplated hereby and
thereby; and
(v) all other documents and legal matters in connection with the
transactions contemplated by this Agreement shall have been delivered, executed,
or recorded and shall be in form and substance reasonably satisfactory to Agent.
3.2 Conditions Subsequent to the Closing Date. The obligation of the
-----------------------------------------
Lender Group (or any member thereof) to continue to make Advances (or otherwise
extend credit hereunder) is subject to the fulfillment, on or before the date
applicable thereto, of each of the conditions subsequent set forth below (the
failure by Borrowers to so perform or cause to be performed constituting an
Event of Default):
(a) within 30 days of the Closing Date, deliver to Agent
certified copies of the policies of insurance, together with the endorsements
thereto, as are required by Section 6.7, the form and substance of which shall
-----------
be satisfactory to Agent and its counsel;
(b) upon the earlier to occur of (i) 30 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial
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Advance made on the Closing Date) is made, the delivery to Agent of an updated
Schedule 5.6(c), which shall include all information required by Section 5.6(c)
--------------- --------------
with respect to all Foreign Subsidiaries and an updated Schedule II to the
Pledge Agreement, which shall include all information required by the Pledge
Agreement with respect to the Foreign Subsidiaries;
(c) upon the earlier to occur of (i) 60 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial Advance made on the Closing Date) is made, the delivery
to Agent of fully-executed Cash Management Agreements and Control Agreements;
(d) upon the earlier to occur of (i) 30 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial Advance made on the Closing Date) is made, the delivery
to Agent of certificates representing 66-2/3% of the outstanding shares of Stock
of Sliver Blue, Ventiv Health Germany GmbH and Ventiv Holding UK, together with
Stock powers (or other appropriate share transfer forms) with respect thereto,
undated and endorsed in blank;
(e) upon the earlier to occur of (i) 30 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial Advance made on the Closing Date) is made, the delivery
to Agent of Collateral Access Agreements with respect to the following
locations: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇;
(f) upon the earlier to occur of (i) 30 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial Advance made on the Closing Date) is made, the delivery
to Agent of Uniform Commercial Code, tax and judgment lien searches for ▇▇▇▇▇▇
HCP Acquisition, Inc., the results of which are reasonably satisfactory to
Agent;
(g) upon the earlier to occur of (i) 60 days after the Closing
Date and (ii) the date upon which the first Advance or other extension of credit
(other than the Initial Advance made on the Closing Date) is made, the delivery
to the Agent of evidence reasonably satisfactory to Agent that U.S. Sales is
qualified to do business in each states in which it is located and each state in
which the Account Debtor with respect to any of its Accounts is located;
(h) upon the earlier to occur of (i) Friday, April 5, 2002 and
(ii) the date the Initial Advance is made, the delivery to Agent of the Pay-Off
Letter and each item set forth on Schedule 3.2(h);
---------------
(i) on or before the date upon which the first Advance or other
extension of credit (other than the Initial Advance made on the Closing Date) is
made, the completion by Agent of its take-over audit, the results of which shall
be satisfactory to Agent; and
(j) on the date on which the first Advance or other extension of
credit (other than the Initial Advance made on the Closing Date) is made,
Borrowers shall have the
-54-
Required Availability after giving effect to the Initial Advance and the
extensions of credit to be made on such date.
3.3 Conditions Precedent to all Extensions of Credit. The obligation
------------------------------------------------
of the Lender Group (or any member thereof) to make all Advances (or to extend
any other credit hereunder) shall be subject to the following conditions
precedent:
(a) the representations and warranties contained in this
Agreement and the other Loan Documents shall be true and correct in all material
respects on and as of the date of such extension of credit, as though made on
and as of such date (except to the extent that such representations and
warranties relate solely to an earlier date);
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such extension of credit, nor shall either result from
the making thereof;
(c) no injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the extending of such credit shall
have been issued and remain in force by any Governmental Authority against any
Borrower, Agent, any Lender, or any of their Affiliates;
(d) no Material Adverse Change shall have occurred; and
(e) if pursuant to Section 7.19(a)(i) or 7.19(a)(ii) EBITDA and
------------------ -----------
U.S. EBIT have not been required to be tested for the immediately preceding
month or quarter, as applicable, EBITDA and U.S. EBIT shall be in compliance
with the minimum amounts set forth in such Sections for the immediately
preceding month or quarter, as applicable.
3.4 Term. This Agreement shall become effective upon the execution and
----
delivery hereof by Borrowers, Agent, and the Lenders and shall continue in full
force and effect for a term ending on March 31, 2005 (the "Maturity Date"). The
-------------
foregoing notwithstanding, the Lender Group, upon the election of the Required
Lenders, shall have the right to terminate its obligations under this Agreement
immediately and without notice upon the occurrence and during the continuation
of an Event of Default.
3.5 Effect of Termination. On the date of termination of this
---------------------
Agreement, all Obligations (other than contingent reimbursement obligations of
Borrowers with respect to any outstanding L/C or Underlying Letters of Credit,
provided that the Borrowers have provided cash collateral to be held by Agent
for the benefit of the Lenders in an amount equal to 105% of the then extant
Letter of Credit Usage, and other than Bank Products Obligations, provided that
the Borrowers have provided cash collateral to be held by Agent for the benefit
of ▇▇▇▇▇ Fargo or its Affiliates with respect to such Bank Products Obligations)
immediately shall become due and payable without notice or demand. No
termination of this Agreement, however, shall relieve or discharge Borrowers of
their duties, Obligations, or covenants hereunder and the Agent's Liens in the
Collateral shall remain in effect until all Obligations have been fully and
finally discharged and the Lender Group's obligations to provide additional
credit hereunder have been terminated. When this Agreement has been terminated
and all of the Obligations have been fully and finally discharged and the Lender
Group's obligations to provide additional credit under the Loan
-55-
Documents have been terminated irrevocably, Agent will, at Borrowers' sole
expense, execute and deliver any UCC termination statements, lien releases,
mortgage releases, re-assignments of trademarks, discharges of security
interests, and other similar discharge or release documents (and, if applicable,
in recordable form) as are reasonably necessary to release, as of record, the
Agent's Liens and all notices of security interests and liens previously filed
by Agent with respect to the Obligations.
3.6 Early Termination by Borrowers. Borrowers have the option, at any
------------------------------
time upon 90 days prior written notice by Administrative Borrower to Agent, to
terminate this Agreement by paying to Agent, for the benefit of the Lender
Group, in cash, the Obligations (including (a) either (i) providing cash
collateral to be held by Agent for the benefit of the Lenders in an amount equal
to 105% of the then extant Letter of Credit Usage, or (ii) causing the original
Letters of Credit to be returned to the Issuing Lender, and (b) providing cash
collateral to be held by Agent for the benefit of ▇▇▇▇▇ Fargo or its Affiliates
with respect to the then extant Bank Products Obligations), in full, together
with the Applicable Prepayment Premium (to be allocated based upon letter
agreements between Agent and individual Lenders). If Administrative Borrower has
sent a notice of termination pursuant to the provisions of this Section, then
the Commitments shall terminate and Borrowers shall be obligated to repay the
Obligations (including (a) either (i) providing cash collateral to be held by
Agent for the benefit of the Lenders in an amount equal to 105% of the then
extant Letter of Credit Usage, or (ii) causing the original Letters of Credit to
be returned to the Issuing Lender, and (b) providing cash collateral to be held
by Agent for the benefit of ▇▇▇▇▇ Fargo or its Affiliates with respect to the
then extant Bank Products Obligations), in full, together with the Applicable
Prepayment Premium, on the date set forth as the date of termination of this
Agreement in such notice. In the event of the termination of this Agreement and
repayment of the Obligations at any time prior to the Maturity Date, for any
other reason, including (a) termination upon the election of the Required
Lenders to terminate after the occurrence of an Event of Default, (b)
foreclosure and sale of Collateral, (c) sale of the Collateral in any Insolvency
Proceeding, or (iv) restructure, reorganization or compromise of the Obligations
by the confirmation of a plan of reorganization, or any other plan of
compromise, restructure, or arrangement in any Insolvency Proceeding, then, in
view of the impracticability and extreme difficulty of ascertaining the actual
amount of damages to the Lender Group or profits lost by the Lender Group as a
result of such early termination, and by mutual agreement of the parties as to a
reasonable estimation and calculation of the lost profits or damages of the
Lender Group, Borrowers shall pay the Applicable Prepayment Premium to Agent (to
be allocated based upon letter agreements between Agent and individual Lenders),
measured as of the date of such termination. Notwithstanding anything to the
contrary contained herein, Borrowers shall not be obligated to pay any
Applicable Prepayment Premium if this Agreement is terminated as a direct result
of a refinancing by ▇▇▇▇▇ Fargo or any of its Affiliates.
4. CREATION OF SECURITY INTEREST.
4.1 Grant of Security Interest. Each Borrower hereby grants to Agent,
--------------------------
for the benefit of the Lender Group, a continuing security interest in all of
its right, title, and interest in all currently existing and hereafter acquired
or arising Personal Property Collateral in order to secure prompt repayment of
any and all of the Obligations in accordance with the terms and conditions of
the Loan Documents and in order to secure prompt performance by Borrowers of
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each of their covenants and duties under the Loan Documents. The Agent's Liens
in and to the Personal Property Collateral shall attach to all Personal Property
Collateral without further act on the part of Agent or Borrowers. Anything
contained in this Agreement or any other Loan Document to the contrary
notwithstanding, except for Permitted Dispositions, Borrowers have no authority,
express or implied, to dispose of any item or portion of the Collateral.
4.2 Negotiable Collateral. In the event that any Collateral, including
---------------------
proceeds, is evidenced by or consists of Negotiable Collateral, and if and to
the extent that perfection or priority of Agent's security interest is dependent
on or enhanced by possession, the applicable Borrower, immediately upon the
request of Agent, shall endorse and deliver physical possession of such
Negotiable Collateral to Agent.
4.3 Collection of Accounts, General Intangibles, and Negotiable
-----------------------------------------------------------
Collateral. At any time after the occurrence and during the continuation of an
----------
Event of Default, Agent or Agent's designee may (a) notify Account Debtors of
Borrowers that the Accounts, chattel paper, or General Intangibles have been
assigned to Agent or that Agent has a security interest therein, or (b) collect
the Accounts, chattel paper, or General Intangibles directly and charge the
collection costs and expenses to the Loan Account. Each Borrower agrees that it
will hold in trust for the Lender Group, as the Lender Group's trustee, any
Collections that it receives and immediately will deliver said Collections to
Agent or a Cash Management Bank in their original form as received by the
applicable Borrower.
4.4 Filing of Financing Statements; Commercial Tort Claims; Delivery
of Additional Documentation Required.
(a) Each Borrower authorizes Agent to file any financing
statement required hereunder, and any continuation statement or amendment with
respect thereto, in any appropriate filing office without the signature of such
Borrower where permitted by applicable law. Each Borrower hereby ratifies the
filing of any financing statement, and any continuation statement or amendment
with respect thereto, filed without the signature of such Borrower prior to the
date hereof.
(b) If any Borrower acquires any commercial tort claims after the
date hereof, such Borrower shall promptly (but in any event within 3 Business
Days after such acquisition) deliver to Agent a written description of such
commercial tort claim and shall deliver a written agreement, in form and
substance reasonably satisfactory to Agent, pursuant to which such Borrower
shall pledge and collaterally assign all of its right, title and interest in and
to such commercial tort claim to Agent, for the benefit of the Lender Group, as
security for the Obligations (a "Commercial Tort Claim Assignment").
--------------------------------
(c) At any time upon the request of Agent, Borrowers shall
execute and deliver to Agent, and cause its Subsidiaries to execute and deliver
to Agent, any and all financing statements, original financing statements in
lieu of continuation statements, amendments to financing statements, fixture
filings, security agreements, pledges, assignments, Commercial Tort Claim
Assignments, endorsements of certificates of title, and all other documents
(collectively, the "Additional Documents") that Agent may request in its
--------------------
Permitted Discretion, in form and substance reasonably satisfactory to Agent, to
perfect and continue
-57-
perfected or better perfect the Agent's Liens in the Collateral (whether now
owned or hereafter arising or acquired), to create and perfect Liens in favor of
Agent in any Real Property acquired after the Closing Date, and in order to
fully consummate all of the transactions contemplated hereby and under the other
Loan Documents. To the maximum extent permitted by applicable law, each Borrower
authorizes Agent to execute any such Additional Documents in the applicable
Borrower's name and authorize Agent to file such executed Additional Documents
in any appropriate filing office. To the maximum extent permitted by applicable
law, each Borrower authorizes the filing of any such Additional Documents
without the signature of such Borrower in any appropriate filing office. In
addition, on such periodic basis as Agent shall reasonably require, Borrowers
shall (i) provide Agent with a report of all new patentable, copyrightable, or
trademarkable materials acquired or generated by Borrowers during the prior
period, (ii) cause all patents, copyrights, and trademarks acquired or generated
by Borrowers that are not already the subject of a registration with the
appropriate filing office (or an application therefor diligently prosecuted) to
be registered with such appropriate filing office in a manner sufficient to
impart constructive notice of Borrowers' ownership thereof, (iii) cause to be
prepared, executed, and delivered to Agent supplemental schedules to the
applicable Loan Documents to identify such patents, copyrights, and trademarks
as being subject to the security interests created thereunder, and (iv) comply
with all applicable provisions of the Patent Security Agreement, Copyright
Security Agreement and Trademark Security Agreement relating to the foregoing.
4.5 Power of Attorney. Each Borrower hereby irrevocably makes,
-----------------
constitutes, and appoints Agent (and any of Agent's officers, employees, or
agents designated by Agent) as such Borrower's true and lawful attorney, with
power to (a) if such Borrower refuses to, or fails timely to execute and deliver
any of the documents described in Section 4.4, sign the name of such Borrower on
-----------
any of the documents described in Section 4.4, (b) at any time that an Event of
-----------
Default has occurred and is continuing, sign such Borrower's name on any invoice
or ▇▇▇▇ of lading relating to the Collateral, drafts against Account Debtors, or
notices to Account Debtors, (c) send requests for verification of Accounts, (d)
endorse such Borrower's name on any Collection item that may come into the
Lender Group's possession, (e) at any time that an Event of Default has occurred
and is continuing, make, settle, and adjust all claims under such Borrower's
policies of insurance and make all determinations and decisions with respect to
such policies of insurance, and (f) at any time that an Event of Default has
occurred and is continuing, settle and adjust disputes and claims respecting the
Accounts, chattel paper, or General Intangibles directly with Account Debtors,
for amounts and upon terms that Agent determines to be reasonable, and Agent may
cause to be executed and delivered any documents and releases that Agent
determines to be necessary. The appointment of Agent as each Borrower's
attorney, and each and every one of its rights and powers, being coupled with an
interest, is irrevocable until all of the Obligations have been fully and
finally repaid and performed and the Lender Group's obligations to extend credit
hereunder are terminated.
4.6 Right to Inspect. Agent and each Lender (through any of their
----------------
respective officers, employees, or agents) shall have the right, from time to
time hereafter to inspect the Books and to check, test, and appraise the
Collateral in order to verify Borrowers' financial condition or the amount,
quality, value, condition of, or any other matter relating to, the Collateral.
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4.7 Control Agreements. Each Borrower agrees that it will not transfer
------------------
assets out of any Securities Accounts other than as permitted under Section 7.18
------------
and, if to another securities intermediary, unless each of the applicable
Borrower, Agent, and the substitute securities intermediary have entered into a
Control Agreement. No arrangement contemplated hereby or by any Control
Agreement in respect of any Securities Accounts or other Investment Property
shall be modified by Borrowers without the prior written consent of Agent. Upon
the occurrence and during the continuance of a Default or Event of Default,
Agent may notify any securities intermediary to liquidate the applicable
Securities Account or any related Investment Property maintained or held thereby
and remit the proceeds thereof to the Agent's Account.
5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender Group to enter into this Agreement, each
Borrower makes the following representations and warranties to the Lender Group
which shall be true, correct, and complete, in all material respects, as of the
date hereof, and shall be true, correct, and complete, in all material respects,
as of the Closing Date, and at and as of the date of the making of each Advance
(or other extension of credit) made thereafter, as though made on and as of the
date of such Advance (or other extension of credit) (except to the extent that
such representations and warranties relate solely to an earlier date) and such
representations and warranties shall survive the execution and delivery of this
Agreement:
5.1 No Encumbrances. Each Borrower has good and indefeasible title to
---------------
its Collateral and the Real Property, free and clear of Liens except for
Permitted Liens.
5.2 Eligible Accounts. The Eligible Billed Accounts and Eligible
-----------------
Unbilled Accounts are bona fide existing payment obligations of Account Debtors
created by the rendition of services to such Account Debtors in the ordinary
course of Borrowers' business, owed to Borrowers without defenses, disputes,
offsets, counterclaims, or rights of return or cancellation. As to each Account
that is identified by Administrative Borrower as an Eligible Billed Account or a
proposed Eligible Unbilled Account in a borrowing base report submitted to
Agent, such Account is not excluded as ineligible by virtue of one or more of
the excluding criteria set forth in the definition of Eligible Billed Accounts
(other than, in the case of an Eligible Unbilled Account, the requirement that
the applicable Account Debtor be billed for the services giving rise to such
Account).
5.3 Equipment. All of the Equipment is used or held for use in
---------
Borrowers' business and is fit for such purposes.
5.4 Location of Equipment. The Equipment is not stored with a bailee,
---------------------
warehouseman, or similar party and is located only at the locations identified
on Schedule 5.4, as the same may have been amended in accordance with Section
------------ --------
6.8.
---
5.5 State of Incorporation; Location of Chief Executive Office; FEIN;
----------------------------------------------------------------
Organizational ID Number; Commercial Tort Claims.
-------------------------------------------------
(a) The state of incorporation of each Borrower is set forth in
Schedule 5.5(a).
---------------
-59-
(b) As of the date hereof, the chief executive office of each
Borrower is located at the address indicated in Schedule 5.5(b).
--------------
(c) Each Borrower's FEIN and organizational identification
number, if any, are identified in Schedule 5.5(c).
---------------
(d) None of the Borrowers holds any commercial tort claims as of
the date hereof, except as set forth in Schedule 5.5(d).
---------------
5.6 Due Organization and Qualification; Subsidiaries.
------------------------------------------------
(a) Each Borrower is duly organized and existing and in good
standing under the laws of the jurisdiction of its organization and qualified to
do business in any state where the failure to be so qualified reasonably could
be expected to have a Material Adverse Change.
(b) [Intentionally Omitted.]
(c) As of the date hereof, set forth on Schedule 5.6(c), is a
--------------
complete and accurate list of Parent's direct and indirect Subsidiaries,
showing: (i) the jurisdiction of their organization; (ii) the number of shares
of each class of common and preferred Stock authorized for each of such
Subsidiaries; and (iii) the number and the percentage of the outstanding shares
of each such class owned directly or indirectly by Parent. All of the
outstanding capital Stock of each such Subsidiary has been validly issued and is
fully paid and non-assessable.
(d) Except as set forth on Schedule 5.6(c), there are no
---------------
subscriptions, options, warrants, or calls relating to any shares of Parent's
Subsidiaries' capital Stock, including any right of conversion or exchange under
any outstanding security or other instrument. Neither Parent nor any of its
Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of Parent's Subsidiaries'
capital Stock or any security convertible into or exchangeable for any such
capital Stock.
5.7 Due Authorization; No Conflict.
------------------------------
(a) As to each Borrower, the execution, delivery, and performance
by such Borrower of this Agreement and the Loan Documents to which it is a party
have been duly authorized by all necessary action on the part of such Borrower.
(b) As to each Borrower, the execution, delivery, and performance
by such Borrower of this Agreement and the Loan Documents to which it is a party
do not and will not (i) violate any provision of federal, state, or local law or
regulation applicable to any Borrower, the Governing Documents of any Borrower,
or any order, judgment, or decree of any court or other Governmental Authority
binding on any Borrower, (ii) conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any
Material Contract of any Borrower, (iii) result in or require the creation or
imposition of any Lien of any nature whatsoever upon any properties or assets of
Borrower, other than Permitted Liens, or (iv) require any approval of any
Borrower's interestholders or any approval or consent of any Person under any
Material Contract of any Borrower.
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(c) Other than the filing of financing statements, fixture
filings, and Mortgages, the execution, delivery, and performance by each
Borrower of this Agreement and the Loan Documents to which such Borrower is a
party do not and will not require any registration with, consent, or approval
of, or notice to, or other action with or by, any Governmental Authority or
other Person.
(d) As to each Borrower, this Agreement and the other Loan
Documents to which such Borrower is a party, and all other documents
contemplated hereby and thereby, when executed and delivered by such Borrower
will be the legally valid and binding obligations of such Borrower, enforceable
against such Borrower in accordance with their respective terms, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally.
(e) The Agent's Liens are validly created, perfected, and first
priority Liens, subject only to Permitted Liens
(f) The execution, delivery, and performance by each Guarantor of
the Loan Documents to which it is a party have been duly authorized by all
necessary action on the part of Guarantor.
(g) The execution, delivery, and performance by each Guarantor of
the Loan Documents to which it is a party do not and will not (i) violate any
provision of federal, state, or local law or regulation applicable to any
Guarantor, the Governing Documents of any Guarantor, or any order, judgment, or
decree of any court or other Governmental Authority binding on any Guarantor,
(ii) conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any Material Contract of any Guarantor,
(iii) result in or require the creation or imposition of any Lien of any nature
whatsoever upon any properties or assets of any Guarantor, other than Permitted
Liens, or (iv) require any approval of any Guarantor's interestholders or any
approval or consent of any Person under any Material Contract of any Guarantor.
(h) The execution, delivery, and performance by each Guarantor of
the Loan Documents to which such Guarantor is a party do not and will not
require any registration with, consent, or approval of, or notice to, or other
action with or by, any Governmental Authority or other Person.
(i) The Loan Documents to which each Guarantor is a party, and
all other documents contemplated hereby and thereby, when executed and delivered
by such Guarantor will be legally valid and binding obligations of such
Guarantor, enforceable against such Guarantor in accordance with their
respective terms, except as enforcement may be limited by equitable principles
or by bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or limiting creditors' rights generally.
5.8 Litigation. Other than those matters disclosed on Schedule 5.8,
----------
there are no actions, suits, or proceedings pending or, to the knowledge of
Borrowers, threatened against Borrowers, or any of their Subsidiaries, as
applicable, except for (a) matters that are fully
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covered by insurance (subject to customary deductibles), and (b) matters arising
after the Closing Date that, if decided adversely to Borrowers, or any of their
Subsidiaries, as applicable, reasonably could not be expected to result in a
Material Adverse Change.
5.9 No Material Adverse Change. All financial statements relating to
--------------------------
Borrowers or Guarantors that have been delivered by Borrowers or Guarantors to
the Lender Group have been prepared in accordance with GAAP (except, in the case
of unaudited financial statements, for the lack of footnotes and being subject
to year-end audit adjustments) and present fairly in all material respects,
Borrowers' (or Guarantors', as applicable) financial condition as of the date
thereof and results of operations for the period then ended. There has not been
a Material Adverse Change) since the date of the latest financial statements
submitted to the Lender Group on or before the Closing Date.
5.10 Fraudulent Transfer.
-------------------
(a) each Borrower and each Guarantor is Solvent.
(b) No transfer of property is being made by any Borrower and no
obligation is being incurred by any Borrower in connection with the transactions
contemplated by this Agreement or the other Loan Documents with the intent to
hinder, delay, or defraud either present or future creditors of Borrowers.
5.11 Employee Benefits. None of Borrowers, any of their Subsidiaries,
-----------------
or any of their ERISA Affiliates maintains or contributes to any Benefit Plan.
5.12 Environmental Condition. Except as set forth on Schedule 5.12,
----------------------- -------------
(a) to Borrowers' knowledge, none of Borrowers' properties or assets has ever
been used by Borrowers or by previous owners or operators in the disposal of, or
to produce, store, handle, treat, release, or transport, any Hazardous
Materials, where such production, storage, handling, treatment, release or
transport was in violation, in any material respect, of applicable Environmental
Law, (b) to Borrowers' knowledge, none of Borrowers' properties or assets has
ever been designated or identified in any manner pursuant to any environmental
protection statute as a Hazardous Materials disposal site, (c) none of Borrowers
have received notice that a Lien arising under any Environmental Law has
attached to any revenues or to any Real Property owned or operated by Borrowers,
and (d) none of Borrowers have received a summons, citation, notice, or
directive from the Environmental Protection Agency or any other federal or state
governmental agency concerning any action or omission by any Borrower resulting
in the releasing or disposing of Hazardous Materials into the environment.
5.13 Brokerage Fees. Borrowers have not utilized the services of any
--------------
broker or finder in connection with Borrowers' obtaining financing from the
Lender Group under this Agreement and no brokerage commission or finders fee is
payable by Borrowers in connection herewith.
5.14 Intellectual Property. Each Borrower owns, or holds valid
---------------------
licenses in, all Intellectual Property that is necessary to the conduct of its
business as currently conducted. Attached hereto as Schedule 5.14 is a true,
-------------
correct, and complete listing as of the date hereof of
-62-
all Registered or otherwise material patents, trademarks and copyrights as to
which each Borrower is the owner or is an exclusive licensee.
5.15 Leases. Borrowers enjoy peaceful and undisturbed possession under
------
all leases material to the business of Borrowers and to which Borrowers are a
party or under which Borrowers are operating. All of such leases are valid and
subsisting and no material default by Borrowers exists under any of them.
5.16 DDAs. Set forth on Schedule 5.16 are all of the DDAs as of the
---- -------------
date hereof of each Borrower, including, with respect to each depository (i) the
name and address of that depository, and (ii) the account numbers of the
accounts maintained with such depository.
5.17 Complete Disclosure. All factual information (taken as a whole)
-------------------
furnished by or on behalf of Borrowers in writing to Agent or any Lender
(including all information contained in the Schedules hereto or in the other
Loan Documents) for purposes of or in connection with this Agreement, the other
Loan Documents or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of Borrowers in writing to the Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided. On the Closing Date, the Closing Date Projections represent, and as of
the date on which any other Projections are delivered to Agent, such additional
Projections represent Borrowers' good faith best estimate of its future
performance for the periods covered thereby, based on the assumptions stated
therein.
5.18 Indebtedness. Set forth on Schedule 5.18 is a true and complete
------------ -------------
list of all Indebtedness of each Borrower outstanding immediately prior to the
Closing Date that is to remain outstanding after the Closing Date and such
Schedule accurately reflects the aggregate principal amount of such Indebtedness
and the principal terms thereof.
5.19 Regulation U. No Borrower is or will be engaged in the business
-------------
of extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulations T, U or X of the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to purchase
or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
5.20 Permits, Etc. Each Borrower has, and is in compliance with, all
------------
permits, licenses, authorizations, approvals, entitlements and accreditations
required for such Person lawfully to own, lease, manage or operate, or to
acquire, the business currently owned, leased, managed or operated, or to be
acquired, by such Person except for such permits, licenses, authorizations,
approvals, entitlements and accreditations the absence of which could not
reasonably be expected to result in a Material Adverse Change. To each
Borrower's knowledge, no condition exists or event has occurred which, in itself
or with the giving of notice or lapse of time or both, would result in the
suspension, revocation, impairment, forfeiture or non-renewal of any such
permit, license, authorization, approval, entitlement or accreditation, and
there is no claim that any thereof is not in full force and effect.
-63-
5.21 Material Contracts. Set forth on Schedule 5.21 is a complete and
------------------ -------------
accurate list as of the date hereof of all Material Contracts of each Borrower
and each Subsidiary of Borrowers, showing the parties and amendments and
modifications thereto. Each such Material Contract (i) is in full force and
effect and is binding upon and enforceable against each Borrower or Subsidiary
that is party thereto and, to the best of such Borrowers' knowledge after
diligent inquiry, all other parties thereto in accordance with its terms except
to the extent terminated in accordance with its terms after the date hereof and
except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally, (ii) has not been otherwise amended or modified,
and (iii) is not in default due to the action of any Borrower or Subsidiary that
is party thereto or, to Borrowers' knowledge, any other party thereto.
5.22 Customers. Except as set forth on Schedule 5.22, there exists no
--------- -------------
actual or, to Borrowers' knowledge, threatened termination, cancellation or
limitation of, or modification to or change in, the business relationship
between any Borrower, on the one hand, and any municipality, customer or any
group thereof, on the other hand, which termination, cancellation, limitation,
modification or change could, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
5.23 Properties. (a) Each Borrower has good and marketable title to,
----------
or valid leasehold interests in, all property and assets material to its
business, free and clear of all Liens except Permitted Liens. The properties are
in good working order and condition, ordinary wear and tear excepted.
(b) Schedule 5.23 sets forth a complete and accurate list as of the
-------------
Closing Date of the location, by state and street address, of all real property
owned or leased by each Borrower.
5.24 Employee and Labor Matters. Except as set forth on Schedule 5.24,
-------------------------- -------------
there is (a) to the knowledge of Borrowers, no unfair labor practice complaint
pending or, to Borrowers' knowledge, threatened against any Borrower or any of
its Subsidiaries before any Governmental Authority and no grievance or
arbitration proceeding pending or threatened against any Borrower or any of its
Subsidiaries which arises out of or under any collective bargaining agreement,
(b) no strike, labor dispute, slowdown, stoppage or similar action or grievance
pending or, to the knowledge of Borrowers, threatened against any Borrower or
any of its Subsidiaries and (c) to the knowledge of Borrowers, no union
representation question existing with respect to the employees of any Borrower
or any of its Subsidiaries and no union organizing activity taking place with
respect to any of the employees of any of them. Neither any Borrower nor any
ERISA Affiliate of any Borrower has incurred any liability or obligation under
the Worker Adjustment and Retraining Notification Act ("WARN") or similar state
law, which remains unpaid or unsatisfied. The hours worked and payments made to
employees of each Borrower or their Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable legal requirements. All
material payments due from any Borrower and its Subsidiaries on account of wages
and employee health and welfare insurance and other benefits have been paid or
accrued as a liability on the books of such Borrower or such Subsidiaries.
-64-
5.25 Certain Subsidiaries. Neither MMD, Inc. nor Clinical
--------------------
Communications UK Ltd. (i) conducts any business, (ii) owns any material assets,
or (iii) except as set forth on Schedule 5.25, has any Indebtedness. Except as
-------------
set forth on Schedule 5.25, there are no Liens on the assets or property of MMD,
-------------
Inc. or Clinical Communications UK Ltd. and they are not a party to any
agreement or contract.
5.26 HPR UK Ltd. HPR UK Ltd. does not (i) except as set forth on
----------
Schedule 5.26, conduct any business, (ii) own any assets with a value greater
-------------
than $100,000, or (iii) have any Indebtedness. There are no Liens on the assets
or property of HPR UK Ltd. and, except as set forth on Schedule 5.26, it is not
-------------
a party to any agreement or contract.
5.27 Obligations to ▇▇▇▇▇▇. Except as disclosed to the Agent in
---------------------
writing on or prior to the Closing Date, neither the Parent nor any of its
Subsidiaries has incurred, or is reasonably likely to incur, any obligation for
the payment of money in excess of $100,000 under the Tax Sharing Agreement
and/or the Distribution Agreement.
6. AFFIRMATIVE COVENANTS.
Each Borrower covenants and agrees that, so long as any credit
hereunder shall be available and until full and final payment of the
Obligations, Borrowers shall and shall cause each of their respective
Subsidiaries, as applicable, to do all of the following:
6.1 Accounting System. Maintain a system of accounting that enables
-----------------
Borrowers to produce financial statements in accordance with GAAP and maintain
records pertaining to the Collateral that contain information as from time to
time reasonably may be requested by Agent.
6.2 Collateral Reporting. (i) Prior to the date of the first Advance
--------------------
or extension of credit hereunder (other than the Initial Advance), provide Agent
(and, if so requested by Agent, with copies for each Lender) monthly (not later
than the 20th day of each month) with a summary aging, by total, of the
Accounts, in form satisfactory to Agent, and (ii) after the making of the first
Advance or other extension of credit hereunder (other than the Initial Advance),
provide Agent (and, if so requested by Agent, with copies for each Lender) with
the following documents at the following times in form satisfactory to Agent:
--------------------------------------------------------------------------------
Daily (a) [Reserved]
--------------------------------------------------------------------------------
Weekly (b) a sales journal, collection journal, and credit register
since the last such schedule and a calculation of the
Borrowing Base as of such date, and
(c) notice of all disputes or claims.
-------------------------------------------------------------------------------
-65-
--------------------------------------------------------------------------------
Monthly (not (d) a detailed calculation of the Borrowing Base (including
later than the detail regarding those Accounts that are not Eligible
20th day of each Billed Accounts or Eligible Unbilled Accounts),
month)
(e) a detailed aging, by total, of the Accounts, together
with a reconciliation to the detailed calculation of
the Borrowing Base previously provided to Agent,
(f) a summary aging, by vendor, of Borrowers' accounts
payable and any book overdraft,
(g) a calculation of Dilution for the prior month, and
(h) a summary report of all customer contracts that
constitute Material Contracts.
--------------------------------------------------------------------------------
Quarterly (i) a detailed list of each Borrower's customers,
(j) a report regarding each Borrower's accrued, but unpaid,
ad valorem taxes, and
(k) evidence reasonably satisfactory to Agent establishing
the payment of any payroll taxes required to be paid by
Borrowers and Guarantors.
--------------------------------------------------------------------------------
Upon request by (l) copies of invoices in connection with the Accounts,
Agent credit memos, remittance advices and deposit slips, in
connection with the Accounts and, for Equipment, and
(m) such other reports as to the Collateral, or the
financial condition of Borrowers as Agent may reasonably
request.
--------------------------------------------------------------------------------
In addition, each Borrower agrees to cooperate fully with Agent to
facilitate and implement a system of electronic collateral reporting in order to
provide electronic reporting of each of the items set forth above.
6.3 Financial Statements, Reports, Certificates. Deliver to Agent,
-------------------------------------------
with copies to each Lender:
(a) as soon as available, but in any event within 30 days (45
days in the case of a month that is the end of one of the first 3 fiscal
quarters in a fiscal year) after the end of each month during each of Parent's
fiscal years,
(i) a company prepared consolidated balance sheet and
income statement covering Parent's and its Subsidiaries' operations during
such period,
-66-
(ii) a certificate signed by the chief financial officer of
Parent to the effect that:
A. the financial statements delivered hereunder
have been prepared in accordance with GAAP (except for the lack
of footnotes and being subject to year-end audit adjustments) and
fairly present in all material respects the financial condition
of Parent and its Subsidiaries,
B. the representations and warranties of Borrowers
contained in this Agreement and the other Loan Documents are true
and correct in all material respects on and as of the date of
such certificate, as though made on and as of such date (except
to the extent that such representations and warranties relate
solely to an earlier date), and
C. there does not exist any condition or event
that constitutes a Default or Event of Default (or, to the extent
of any non-compliance, describing such non-compliance as to which
he or she may have knowledge and what action Borrowers have
taken, are taking, or propose to take with respect thereto), and
(iii) for each month that is the date on which a financial
covenant in Section 7.19 is to be tested, a Compliance Certificate
------------
demonstrating, in reasonable detail, compliance at the end of such period
with the applicable financial covenants contained in Section 7.19,
------------
(b) as soon as available, but in any event within 45 days (or 90
days in the case of the fourth fiscal quarter in a fiscal year) after the end of
each fiscal quarter during each of Parent's fiscal years, a company prepared
statement of cash flow covering Parent's and its Subsidiaries' operations during
such period,
(c) as soon as available, but in any event within 90 days after
the end of each of Parent's fiscal years,
(i) financial statements of Parent and its Subsidiaries for
each such fiscal year, audited by independent certified public accountants
reasonably acceptable to Agent and certified, without any qualifications,
by such accountants to have been prepared in accordance with GAAP (such
audited financial statements to include a balance sheet, income statement,
and statement of cash flow and, if prepared, such accountants' letter to
management),
(ii) a certificate of such accountants addressed to Agent
and the Lenders stating that such accountants do not have knowledge of the
existence of any Default or Event of Default under Section 7.19,
------------
-67-
(d) as soon as available, but in any event within 30 days prior
to the start of each of Parent's fiscal years,
(i) copies of Borrowers' Projections, in the form delivered
to Agent on or before the Closing Date and in substance (including as to
scope and underlying assumptions) satisfactory to Agent, in its sole
discretion, for the forthcoming 3 years, year by year, and for the
forthcoming fiscal year, month by month, certified by the chief financial
officer of Parent as being such officer's good faith best estimate of the
financial performance of Parent and its Subsidiaries during the period
covered thereby,
(e) if and when filed by any Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and
Form 8-K current reports,
(ii) any other filings made by any Borrower with the SEC,
and
(iii) any other information that is provided by Parent to
its shareholders generally,
(f) if and when filed by any Borrower and as requested by Agent,
reasonably satisfactory evidence of payment of applicable excise taxes in each
jurisdictions in which (i) any Borrower conducts business or is required to pay
any such excise tax, (ii) where any Borrower's failure to pay any such
applicable excise tax would result in a Lien on the properties or assets of any
Borrower, or (iii) where any Borrower's failure to pay any such applicable
excise tax reasonably could be expected to result in a Material Adverse Change,
(g) upon the request of Agent, copies of Borrowers' federal
income tax returns, and any amendments thereto, filed with the Internal Revenue
Service,
(h) within 5 Business Days of receipt thereof, copies of any
notices delivered to Parent or any of its Subsidiaries indicating any liability
or potential liability under the Tax Sharing Agreement or the Distribution
Agreement,
(i) as soon as a Borrower has knowledge of any event or condition
that constitutes a Default or an Event of Default, notice thereof and a
statement of the curative action that Borrowers propose to take with respect
thereto,
(j) as soon as available but in any event within 10 days of the
date of (i) any change in the information contained in Schedules 5.6(c), 5.14
and 5.16 to this Agreement or (ii) any facts or circumstances that would require
a change in Schedules 5.6(c), 5.14 and 5.16 to this Agreement if such facts or
circumstances had occurred on or before the date of this Agreement, notice of
such change in information, facts or circumstances, and
(k) upon the request of Agent, any other report reasonably
requested relating to the financial condition of Borrowers.
-68-
In addition to the financial statements referred to above, Borrowers
agree to deliver financial statements prepared on both a consolidated and
consolidating basis and that no Borrower, or any Subsidiary of a Borrower, will
have a fiscal year different from that of Parent. Borrowers agree that their
independent certified public accountants are authorized to communicate with
Agent and to release to Agent whatever financial information concerning
Borrowers that Agent reasonably may request. Each Borrower waives the right to
assert a confidential relationship, if any, it may have with any accounting firm
or service bureau in connection with any information requested by Agent pursuant
to or in accordance with this Agreement, and agree that Agent may contact
directly any such accounting firm or service bureau in order to obtain such
information.
6.4 Guarantor Reports. Cause each Guarantor to deliver its annual
-----------------
financial statements at the time when Parent provides its audited financial
statements to Agent and, to the extent requested by the Agent, copies of all
federal income tax returns as soon as the same are available and in any event no
later than 30 days after the same are required to be filed by law.
6.5 Maintenance of Properties. Maintain and preserve all of its
-------------------------
properties which are necessary or useful in the proper conduct of its business
in good working order and condition, ordinary wear and tear excepted, and comply
at all times with the provisions of all leases necessary or useful in the proper
conduct of its business to which it is a party as lessee, so as to prevent any
loss or forfeiture thereof or thereunder.
6.6 Taxes. Cause all assessments and taxes, whether real, personal, or
-----
otherwise, due or payable by, or imposed, levied, or assessed against Borrowers
or any of their assets to be paid in full, before delinquency or before the
expiration of any extension period, except to the extent that the validity of
such assessment or tax shall be the subject of a Permitted Protest. Borrowers
will make timely payment or deposit of all tax payments and withholding taxes
required of it by applicable laws, including those laws concerning F.I.C.A.,
F.U.T.A., state disability, and local, state, and federal income taxes, and
will, upon request, furnish Agent with proof reasonably satisfactory to Agent
indicating that the applicable Borrower has made such payments or deposits.
Borrowers shall deliver reasonably satisfactory evidence of payment of
applicable excise taxes in each jurisdictions in which any Borrower is required
to pay any such excise tax.
6.7 Insurance.
---------
(a) At Borrowers' expense, maintain insurance respecting its
property and assets wherever located, covering loss or damage by fire, theft,
explosion, and all other hazards and risks as ordinarily are insured against by
other Persons engaged in the same or similar businesses. Borrowers also shall
maintain business interruption, public liability, and product liability
insurance, as well as insurance against larceny, embezzlement, and criminal
misappropriation. All such policies of insurance shall be in such amounts and
with such insurance companies as are reasonably satisfactory to Agent. Borrowers
shall deliver copies of all such policies to Agent with a satisfactory lender's
loss payable endorsement naming Agent as sole loss payee or additional insured,
as appropriate. Each policy of insurance or endorsement shall contain a clause
requiring the insurer to give not less than 30 days prior written notice to
Agent in the event of cancellation of the policy for any reason whatsoever.
-69-
(b) Administrative Borrower shall give Agent prompt notice of any
loss covered by such insurance. Agent shall have the exclusive right to adjust
any losses payable under any such insurance policies in excess of (i) $500,000
absent an Event of Default or (ii) $50,000 after the occurrence and during the
continuance of an Event of Default, in each case, without any liability to
Borrowers whatsoever in respect of such adjustments. Any monies received as
payment for any loss under any insurance policy mentioned above (other than
liability insurance policies) or as payment of any award or compensation for
condemnation or taking by eminent domain, shall be paid over to Agent to be
applied at the option of the Required Lenders either to the prepayment of the
Obligations or shall be disbursed to Administrative Borrower under staged
payment terms reasonably satisfactory to the Required Lenders for application to
the cost of repairs, replacements, or restorations. Any such repairs,
replacements, or restorations shall be effected with reasonable promptness and
shall be of a value at least equal to the value of the items or property
destroyed prior to such damage or destruction.
(c) Borrowers shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Section 6.7, unless Agent is included thereon as named insured with
the loss payable to Agent under a lender's loss payable endorsement or its
equivalent. Administrative Borrower immediately shall notify Agent whenever such
separate insurance is taken out, specifying the insurer thereunder and full
particulars as to the policies evidencing the same, and copies of such policies
promptly shall be provided to Agent.
6.8 Location of Equipment. Keep the Equipment only at the locations
---------------------
identified on Schedule 5.4; provided, however, that Administrative Borrower may
------------ -------- -------
amend Schedule 5.4 so long as such amendment occurs by written notice to Agent
------------
not less than 30 days prior to the date on which the Equipment is moved to such
new location, so long as such new location is within the continental United
States, and so long as, at the time of such written notification, the applicable
Borrower provides any financing statements necessary to perfect and continue
perfected the Agent's Liens on such assets and, if required by Agent, also
provides to Agent a Collateral Access Agreement.
6.9 Compliance with Laws. Comply with the requirements of all
--------------------
applicable laws, rules, regulations, and orders of any Governmental Authority,
including the Fair Labor Standards Act and the Americans With Disabilities Act,
other than laws, rules, regulations, and orders the non-compliance with which,
individually or in the aggregate, would not result in and reasonably could not
be expected to result in a Material Adverse Change.
6.10 Leases. Pay when due all rents and other amounts payable under
------
any leases to which any Borrower is a party or by which any Borrower's
properties and assets are bound, unless such payments are (i) the subject of a
Permitted Protest or (ii) in an aggregate amount of not more than $100,000 in
any calendar year.
6.11 Brokerage Commissions. Pay any and all brokerage commission or
---------------------
finders fees incurred in connection with or as a result of Borrowers' obtaining
financing from the Lender Group under this Agreement. Borrowers agree and
acknowledge that payment of all such brokerage commissions or finders fees shall
be the sole responsibility of Borrowers, and each Borrower agrees to indemnify,
defend, and hold Agent and the Lender Group harmless
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from and against any claim of any broker or finder arising out of actions by
Borrowers and their Subsidiaries in connection with Borrowers' obtaining
financing from the Lender Group under this Agreement.
6.12 Existence. At all times preserve and keep in full force and
---------
effect each Borrower's valid existence and good standing and any rights and
franchises material to Borrowers' businesses.
6.13 Environmental.
-------------
(a) Keep any property either owned or operated by any Borrower
free of any Environmental Liens or post bonds or other financial assurances
sufficient to satisfy the obligations or liability evidenced by such
Environmental Liens, (b) comply, in all material respects, with Environmental
Laws and provide to Agent documentation of such compliance which Agent
reasonably requests, (c) promptly notify Agent of any release of a Hazardous
Material of any reportable quantity from or onto property owned or operated by
any Borrower and take any Remedial Actions required to ▇▇▇▇▇ said release or
otherwise to come into compliance with applicable Environmental Law, and (d)
promptly provide Agent with written notice within 10 days of the receipt of any
of the following: (i) notice that an Environmental Lien has been filed against
any of the real or personal property of any Borrower, (ii) commencement of any
Environmental Action or notice that an Environmental Action will be filed
against any Borrower, and (iii) notice of a violation, citation, or other
administrative order which reasonably could be expected to result in a Material
Adverse Change.
6.14 Commercial Tort Claims; Organizational ID Number. Promptly, but
------------------------------------------------
in any event with 3 Business Days, upon obtaining any commercial tort claim,
deliver an updated Schedule 5.5(d) and the other documents required under
--------------
Section 4.4. Promptly, but in any event with 3 Business Days, upon obtaining an
-----------
organizational identification number (to the extent that any Borrower has not
been issued such number on or prior to the Closing Date), notify Agent in
writing and deliver an updated Schedule 5.5(c).
--------------
6.15 Other Disclosure Updates. Promptly and in no event later than 5
------------------------
Business Days after obtaining knowledge thereof, (a) notify Agent if any written
information, exhibit, or report furnished to the Lender Group contained any
untrue statement of a material fact or omitted to state any material fact
necessary to make the statements contained therein not misleading in light of
the circumstances in which made, and (b) correct any defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgement,
filing, or recordation thereof.
7. NEGATIVE COVENANTS.
Each Borrower covenants and agrees that, so long as any credit
hereunder shall be available and until full and final payment of the
Obligations, Borrowers will not and will not permit any of their respective
Subsidiaries to do any of the following:
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7.1 Indebtedness. Create, incur, assume, permit, guarantee, or
------------
otherwise become or remain, directly or indirectly, liable with respect to any
Indebtedness, except:
(a) Indebtedness evidenced by this Agreement and the other Loan
Documents, together with Indebtedness owed to the Issuing Lender with respect to
L/C's and to Underlying Issuers with respect to Underlying Letters of Credit;
(b) Indebtedness set forth on Schedule 5.18;
-------------
(c) Permitted Purchase Money Indebtedness;
(d) Bank Product Obligations;
(e) Unsecured Indebtedness in respect of indemnities provided by
Borrowers in connection with dispositions permitted under clause (d) of the
definition of the term "Permitted Disposition",
(f) Unsecured Indebtedness that is contractually subordinated to
the Obligations pursuant to documentation in form and substance reasonably
acceptable to Agent in an aggregate principal amount outstanding at any time not
exceeding $20,000,000;
(g) Unsecured Indebtedness not otherwise described in the
preceding clauses (a) through (f) in an aggregate principal amount outstanding
at any time not exceeding $2,500,000;
(h) Refinancings, renewals, or extensions of Indebtedness
permitted under clauses (b) and (c) of this Section 7.1 (and continuance or
-----------
renewal of any Permitted Liens associated therewith) so long as: (i) the terms
and conditions of such refinancings, renewals, or extensions do not, in Agent's
Permitted Discretion, materially impair the prospects of repayment of the
Obligations by Borrowers or materially impair Borrowers' creditworthiness, (ii)
such refinancings, renewals, or extensions do not result in an increase in the
principal amount of, or interest rate with respect to, the Indebtedness so
refinanced, renewed, or extended, (iii) such refinancings, renewals, or
extensions do not result in a shortening of the average weighted maturity of the
Indebtedness so refinanced, renewed, or extended, nor are they on terms or
conditions, that, taken as a whole, are materially more burdensome or
restrictive to the applicable Borrower, and (iv) if the Indebtedness that is
refinanced, renewed, or extended was subordinated in right of payment to the
Obligations, then the terms and conditions of the refinancing, renewal, or
extension Indebtedness must be include subordination terms and conditions that
are at least as favorable to the Lender Group as those that were applicable to
the refinanced, renewed, or extended Indebtedness;
(i) Indebtedness composing Permitted Investments;
(j) Indebtedness secured by the Lien described in clause (n) of
the definition of Permitted Liens; and
(k) Capital Lease Obligations in connection with automobile
leases to the extent permitted by Section 7.19(b)(ii).
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7.2 Liens. Create, incur, assume, or permit to exist, directly or
-----
indirectly, any Lien on or with respect to any of its assets, of any kind,
whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens (including Liens that are replacements of Permitted
Liens to the extent that the original Indebtedness is refinanced, renewed, or
extended under Section 7.1(h) and so long as the replacement Liens only encumber
--------------
those assets that secured the refinanced, renewed, or extended Indebtedness).
7.3 Restrictions on Fundamental Changes.
-----------------------------------
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock.
(b) Other than a Permitted Dissolution, liquidate, wind up, or
dissolve itself (or suffer any liquidation or dissolution).
(c) Other than Permitted Dispositions or Permitted Dissolutions,
convey, sell, lease, license, assign, transfer, or otherwise dispose of, in one
transaction or a series of transactions, all or any substantial part of its
assets.
7.4 Disposal of Assets. Other than Permitted Dispositions, convey,
------------------
sell, lease, license, assign, transfer, or otherwise dispose of any of the
assets of any Borrower.
7.5 Change Name. Change any Borrower's name, FEIN, corporate structure
-----------
or identity, or add any new fictitious name; provided, however, that a Borrower
-------- -------
may change its name upon at least 30 days prior written notice by Administrative
Borrower to Agent of such change and so long as, at the time of such written
notification, such Borrower provides any financing statements or fixture filings
necessary to perfect and continue perfected Agent's Liens.
7.6 Guarantee. Guarantee or otherwise become in any way liable with
---------
respect to the obligations of any third Person except (i) by endorsement of
instruments or items of payment for deposit to the account of Borrowers or which
are transmitted or turned over to Agent, (ii) guarantees of operating lease
obligations of Foreign Subsidiaries organized in the United Kingdom, provided
that, the aggregate amount of the operating lease obligations so guaranteed does
not exceed $2,500,000 at any one time outstanding, (iii) guarantees of rental
obligations in connection with the subleasing of real property by any of its
Subsidiaries, provided that, the aggregate amount of such rental obligations so
guaranteed does not exceed $5,000,000 at any one time outstanding, and (iv)
guarantees of indemnity, purchase price adjustments and similar obligations
relating to Permitted Dispositions.
7.7 Nature of Business. Make any change in the principal nature of
------------------
Borrowers' business.
7.8 Prepayments and Amendments.
--------------------------
(a) Except in connection with a refinancing permitted by Section
7.1(h), prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness
of any Borrower, other than the Obligations in accordance with this Agreement,
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(b) Except in connection with a refinancing permitted by Section
--------
7.1(h), directly or indirectly, amend, modify, alter, increase, or change any of
-----
the terms or conditions of any agreement, instrument, document, indenture, or
other writing evidencing or concerning Indebtedness permitted under Sections
--------
7.1(b), (c), (f), or (g), except to the extent that any such amendment,
----- --- --- ---
modification, alteration or change (i) would not be adverse to the rights or
interests of Agent or any Lender, (ii) would not impair any Borrower's ability
to conduct any aspect of its business or perform or satisfy any representation,
warranty or covenant contained in this Agreement or any other Loan Document, or
(iii) would not adversely affect the financial condition of any Borrower or any
Guarantor, and
(c) (i) Amend, modify or otherwise change its Governing
Documents, including, without limitation, by the filing or modification of any
certificate of designation, or any agreement or arrangement entered into by it
with respect to any of its Stock (including any shareholders' agreement), or
enter into any new agreement with respect to any of its Stock, or (ii) amend,
modify or otherwise change any Material Contract, except any such amendments,
modifications or changes or any such new agreements or arrangements pursuant to
this paragraph (c) that, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Change.
7.9 Change of Control. Cause, permit, or suffer, directly or
-----------------
indirectly, any Change of Control.
7.10 Distributions. Other than distributions or declaration and
-------------
payment of dividends by a Borrower or Guarantor to another Borrower or Guarantor
that owns 100% of the equity interests of such Borrower or Guarantor, or from a
Foreign Subsidiary to another Foreign Subsidiary or a Guarantor make any
distribution or declare or pay any dividends (in cash or other property, other
than common Stock) on, or purchase, acquire, redeem, or retire any of any
Borrower's or Guarantor's Stock, of any class, whether now or hereafter
outstanding; provided that Imedex may make distributions or declare and pay
--------
dividends directly or indirectly to HPR.
7.11 Accounting Methods. Modify or change its method of accounting
------------------
(other than as may be required to conform to GAAP) or enter into, modify, or
terminate any agreement currently existing, or at any time hereafter entered
into with any third party accounting firm or service bureau for the preparation
or storage of Borrowers' accounting records without said accounting firm or
service bureau agreeing to provide Agent information regarding the Collateral or
Borrowers' financial condition.
7.12 Investments. Except for Permitted Investments and equity
-----------
investments in Cellegy and VIS to the extent permitted by Section 7.19(b)(iii)
--------------------
and 7.19(b)(iv), directly or indirectly, make or acquire any Investment, or
-----------
incur any liabilities (including contingent obligations) for or in connection
with any Investment; provided, however, that Administrative Borrower and its
-------- -------
Subsidiaries shall not have Permitted Investments (other than in the Cash
Management Accounts) in deposit accounts or Securities Accounts in excess of
$250,000 outstanding at any one time unless the Administrative Borrower or any
of its Subsidiaries, as applicable, and the applicable securities intermediary
or bank have entered into Control Agreements or similar arrangements governing
such Permitted Investments, as Agent shall
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determine in its Permitted Discretion, to perfect (and further establish) the
Agent's Liens in such Permitted Investments.
7.13 Transactions with Affiliates. Directly or indirectly enter into
----------------------------
or permit to exist any transaction with any Affiliate of any Borrower except for
(i) transactions that are in the ordinary course of Borrowers' business, upon
fair and reasonable terms, that are fully disclosed to Agent, and that are no
less favorable to Borrowers than would be obtained in an arm's length
transaction with a non-Affiliate, (ii) Permitted Investments and (iii)
transactions between Borrowers or between Borrowers and Guarantors to the extent
otherwise permitted by the terms of this Agreement.
7.14 Suspension. Other than a Permitted Disposition or a Permitted
----------
Dissolution, suspend or go out of a substantial portion of its business.
7.15 [Intentionally Omitted].
-----------------------
7.16 Use of Proceeds. Use the proceeds of the Advances for any purpose
---------------
other than (a) on the Closing Date, to pay transactional fees, costs, and
expenses incurred in connection with this Agreement, the other Loan Documents,
and the transactions contemplated hereby and thereby, and (b) thereafter,
consistent with the terms and conditions hereof, for its lawful and permitted
purposes, including, without limitation, for the general working capital
purposes of Borrowers, which shall include joint ventures, new product launches
and capital expenditures.
7.17 Change in Location of Chief Executive Office; Equipment with
------------------------------------------------------------
Bailees. Relocate its chief executive office to a new location without
-------
Administrative Borrower providing 30 days prior written notification thereof to
Agent and so long as, at the time of such written notification, the applicable
Borrower provides any financing statements or fixture filings necessary to
perfect and continue perfected the Agent's Liens and, if required by Agent, also
provides to Agent a Collateral Access Agreement with respect to such new
location. The Equipment shall not at any time now or hereafter be stored with a
bailee, warehouseman, or similar party without Agent's prior written consent.
7.18 Securities Accounts. Establish or maintain any Securities Account
-------------------
unless Agent shall have received a Control Agreement in respect of such
Securities Account. Borrowers agree to not transfer assets out of any Securities
Account; provided, however, that, so long as no Event of Default has occurred
-------- -------
and is continuing or would result therefrom, Borrowers may use such assets (and
the proceeds thereof) to the extent not prohibited by this Agreement.
7.19 Financial Covenants.
-------------------
(a) Fail to maintain:
(i) Minimum EBITDA. (A) EBITDA, measured on a month-end
basis for the cumulative period from January 1, 2002 through the end of
each month set forth below and thereafter on a rolling twelve month basis,
of not less than the required amount set forth in the following table for
the applicable period set forth opposite thereto:
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---------------------------------------------------------------------------
Applicable Amount Applicable Period
---------------------------------------------------------------------------
$338,000 1 month ending January 31, 2002
---------------------------------------------------------------------------
$630,000 2 months ending February 28, 2002
---------------------------------------------------------------------------
$2,300,000 3 months ending March 31, 2002
---------------------------------------------------------------------------
$2,343,000 4 months ending April 30, 2002
---------------------------------------------------------------------------
$3,036,000 5 months ending May 31, 2002
---------------------------------------------------------------------------
$3,944,000 6 months ending June 30, 2002
---------------------------------------------------------------------------
$5,542,000 7 months ending July 31, 2002
---------------------------------------------------------------------------
$7,139,000 8 months ending August 31, 2002
---------------------------------------------------------------------------
$8,737,000 9 months ending September 30, 2002
---------------------------------------------------------------------------
$10,334,000 10 months ending October 31, 2002
---------------------------------------------------------------------------
$11,932,000 11 months ending November 30, 2002
---------------------------------------------------------------------------
$13,529,000 12 months ending December 31, 2002
---------------------------------------------------------------------------
, provided that, upon receipt of the Projections for the 2003 and 2004 calendar
--------
years required to be delivered to Agent pursuant to Section 6.3(d), Parent and
--------------
Agent shall negotiate in good faith to determine the minimum EBITDA for the 12
month period ending each calendar month in the 2003 and 2004 calendar years and,
in the event Parent and Agent are unable to agree upon such amounts on or before
January 15 of each such year, the minimum EBITDA for the 12 month period ending
each calendar month in the 2003 and 2004 calendar years shall not be less than
$13,529,000.
(B) Notwithstanding the foregoing, (x) at all times during which
the aggregate, the Excess Availability under the Billed Subline and Unrestricted
Cash is greater than $20,000,000, EBITDA will be tested on a calendar
quarter-end basis rather than a month-end basis and (y) if no Advances or
Letters of Credit (which are not cash collateralized on terms and conditions
reasonably satisfactory to Agent) are outstanding at the time EBITDA is required
to be tested under this Section 7.19(a)(i) EBITDA will not be tested at such
------------------
time.
(C) For purposes of calculating EBITDA for this Section
-------
7.19(a)(i) (x) EBITDA will be calculated without giving effect to expenses for
----------
Borrowers' initial investments in Cellegy and VIS, each up to a maximum of
$10,000,000, (y) to the extent that the $1,800,000 Reliant compensation
adjustment accrual has not been reversed in March 2002, then the "Applicable
Amount" for the 3 months ending March 31, 2002 and the 4 months ending April 30,
2002, each as set forth above, will be reduced by $1,800,000; provided that, the
--------
"Applicable Amount" will then be increased by $1,800,000 upon the earlier to
occur of (1) the month when the $1,800,000 Reliant compensation adjustment is
reversed and (2) May 2002, and (z) to the extent that the $1,300,000 Bayer
settlement is not completed in May 2002, then the
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"Applicable Amount" for each Applicable Period set forth above that includes May
2002, will be reduced by $1,300,000 only until such time as the Bayer settlement
is completed.
(ii) Minimum U.S. EBIT. (A) U.S. EBIT, measured on a
month-end basis for the cumulative period from January 1, 2002 through the
end of each month set forth below and thereafter on a rolling twelve month
basis, of not less than the required amount set forth in the following
table for the applicable period set forth opposite thereto:
---------------------------------------------------------------------------
Applicable Amount Applicable Period
---------------------------------------------------------------------------
($1,409,000) 1 month ending January 31, 2002
---------------------------------------------------------------------------
($2,763,000) 2 months ending February 28, 2002
---------------------------------------------------------------------------
($997,000) 3 months ending March 31, 2002
---------------------------------------------------------------------------
($2,791,000) 4 months ending April 30, 2002
---------------------------------------------------------------------------
($2,946,000) 5 months ending May 31, 2002
---------------------------------------------------------------------------
($2,011,000) 6 months ending June 30, 2002
---------------------------------------------------------------------------
($1,210,000) 7 months ending July 31, 2002
---------------------------------------------------------------------------
($410,000) 8 months ending August 31, 2002
---------------------------------------------------------------------------
$391,000 9 months ending September 30, 2002
---------------------------------------------------------------------------
$1,192,000 10 months ending October 31, 2002
---------------------------------------------------------------------------
$1,992,000 11 months ending November 30, 2002
---------------------------------------------------------------------------
$2,793,000 12 months ending December 31, 2002
---------------------------------------------------------------------------
, provided that, upon receipt of the Projections for the 2003 and 2004 calendar
--------
years required to be delivered to Agent pursuant to Section 6.3(d), Parent and
--------------
Agent shall negotiate in good faith to determine the minimum U.S. EBIT for the
12 month period ending each calendar month in the 2003 and 2004 calendar years
and, in the event Parent and Agent are unable to agree upon such amounts on or
before January 15 of each such year, the minimum U.S. EBIT for the 12 month
period ending each calendar month in the 2003 and 2004 calendar years shall not
be less than $2,793,000.
(B) Notwithstanding the foregoing (x) at all times during which
the aggregate Excess Availability under the Billed Subline and Unrestricted Cash
is greater than $20,000,000, U.S. EBIT will be tested on a calendar quarter-end
basis rather than a month-end basis and (y) if no Advances or Letters of Credit
(which are not cash collateralized on terms and conditions reasonably
satisfactory to Agent) are outstanding at the time EBITDA is required to be
tested under this Section 7.19(a)(ii), U.S. EBIT will not be tested at such
-------------------
time.
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(C) For purposes of calculating U.S. EBIT for this Section
7.19(a)(ii) (x) U.S. EBIT will be calculated without giving effect to expenses
for Borrowers' initial investments in Cellegy and VIS, each up to a maximum of
$10,000,000, (y) to the extent that the $1,800,000 Reliant compensation
adjustment accrual has not been reversed in March 2002, then the "Applicable
Amount" for the 3 months ending March 31, 2002 and the 4 months ending April 30,
2002, each set forth above, will be reduced by $1,800,000; provided that, the
"Applicable Amount" will then be increased by $1,800,000 upon the earlier to
occur of (1) the month when the $1,800,000 Reliant compensation adjustment is
reversed and (2) May 2002, and (z) to the extent that the $1,300,000 Bayer
settlement is not completed in May 2002, then the "Applicable Amount" for each
Applicable Period set forth above that includes May 2002 will be reduced by
$1,300,000, only until such time as the Bayer settlement is completed.
(b) Make:
(i) Capital Expenditures. Capital expenditures (other than
(x) equity investments in Cellegy and VIS and (y) capital expenditures in
respect of automobile leases) in calendar year 2002 in excess of
$5,800,000; provided that, upon receipt of Projections for the 2003 and
--------
2004 calendar years required to be delivered to Agent pursuant to Section
-------
6.3(d), Parent and Agent shall negotiate in good faith to determine the
------
maximum capital expenditures for the 2003 and 2004 calendar years and, in
the event that Parent and Agent are unable to agree upon such amounts on or
before January 15 of each such year, the maximum capital expenditures for
the 2003 and 2004 calendar years shall not exceed $7,500,000.
(ii) Annual Lease Payments in respect of Automobile Leases.
Lease payments in respect of automobile leases entered into by Borrowers
and their Subsidiaries after the Closing Date in excess of $6,000,000 in
any calendar year; provided that upon written request from the
--------
Administrative Borrower to Agent, the maximum amount of lease payments
permitted under this Section 7.19(b)(ii) in any calendar year may be
-------------------
increased by the amount requested by Administrative Borrower; provided
--------
further that on the date of such increase, the minimum EBITDA amounts set
-------
forth in Section 7.19(a)(i) for each period set forth therein shall be
------------------
increased by an amount equal to 1.5 times the amount of the requested
increase in such maximum annual lease payment amount.
(iii) Equity Investments in Cellegy. Revolving equity
investments in Cellegy at any one time outstanding in excess of
$10,000,000, provided that, no such investments shall be made if, after
--------
giving effect to such investment, aggregate Excess Availability under the
Billed Subline and Unrestricted Cash would be less than $10,000,000.
(iv) Equity Investments in VIS. Revolving equity investments
in VIS at any one time outstanding in excess of $10,000,000, provided that,
--------
no such investments shall be made (A) if after giving effect to such
investment, aggregate Excess Availability under the Billed Subline and
Unrestricted Cash would be less than $15,000,000 and (B) without the prior
written approval of Agent which may be withheld in its sole discretion,
provided further that, at any time that there are no Advances or
-------- -------
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Letters of Credit outstanding (other than Letters of Credit that are cash
collateralized on terms and conditions satisfactory to Agent), revolving
equity investments in VIS may be made without the prior written approval of
Agent in an amount not to exceed $7,500,000 outstanding at any one time, if
after giving effect to such investments, aggregate Excess Availability
under the Billed Subline and Unrestricted Cash would not be less than
$22,500,000. Notwithstanding the foregoing, if equity investments in
Cellegy are paid down to less than $10,000,000 by Cellegy contributions,
then, with the prior written approval of Agent, and if there is aggregate
Excess Availability under the Billed Subline and Unrestricted Cash of not
less than $15,000,000 after giving effect to such investments, equity
investments in VIS at any one time outstanding may be increased beyond
$10,000,000 by an amount equal to the difference between (x) $10,000,000
and (y) the actual amount of outstanding equity investments in Cellegy.
(v) Settlement Charges to Account Debtors. Payments of
settlement charges to any Account Debtor under any contract in excess of
the amounts set forth on Schedule 7.19(b)(v), without the prior written
-------------------
approval of Agent, which approval will not be unreasonably withheld.
7.20 Certain Subsidiaries. Permit MMD, Inc. or Clinical Communications
--------------------
UK Ltd. to (i) conduct any business, (ii) own any material assets, (iii) except
as set forth on Schedule 5.25, incur any Indebtedness or grant or suffer to
-------------
exist any Lien on its assets or property or (iv) enter into any agreement or
contract.
7.21 HPR UK Ltd. Permit HPR UK Ltd. to (i) except as set forth on
----------
Schedule 5.26, conduct any business, (ii) own any assets with a value of greater
-------------
than $100,000, (iii) incur any Indebtedness or grant or suffer to exist any Lien
on its assets or property, or (iv) enter into any agreement or contract that is
not in effect on the Closing Date.
8. EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an event of
default (each, an "Event of Default") under this Agreement:
----------------
8.1 If Borrowers fail to pay when due and payable or when declared due
and payable, all or any portion of the Obligations (whether of principal,
interest (including any interest which, but for the provisions of the Bankruptcy
Code, would have accrued on such amounts), fees and charges due the Lender
Group, reimbursement of Lender Group Expenses, or other amounts constituting
Obligations);
8.2 (i) If Borrowers fail to perform, keep, or observe any term,
provision, condition, covenant, or agreement contained in Sections 6.1, 6.4,
------------ ---
6.5, 6.11, 6.14, and 6.15 of this Agreement, or comparable provisions of the
--- ---- ---- ----
other Loan Documents, within 15 days of the date when required, (ii) if
Borrowers fail to perform, keep, or observe any term, provision, condition,
covenant or agreement contained in Sections 6.2 (but only up to three times
------------
during any 12-month period), 6.3, 6.8 and 6.10 of this Agreement, or comparable
--- --- ----
provisions of the other Loan Documents, within 5 days of the date when required,
or (iii) if a Borrower or Guarantor
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otherwise fails to perform, keep, or observe any other term, provision,
condition, covenant, or agreement contained in this Agreement or in any of the
other Loan Documents;
8.3 If any material portion of any Borrower's or any of its
Subsidiaries' assets is attached, seized, subjected to a writ or distress
warrant, levied upon, or comes into the possession of any third Person;
8.4 If an Insolvency Proceeding is commenced by any Borrower or any of
its Subsidiaries;
8.5 If an Insolvency Proceeding is commenced against any Borrower, or
any of its Subsidiaries, and any of the following events occur: (a) the
applicable Borrower or the Subsidiary consents to the institution of the
Insolvency Proceeding against it, (b) the petition commencing the Insolvency
Proceeding is not timely controverted, (c) the petition commencing the
Insolvency Proceeding is not dismissed within 60 calendar days of the date of
the filing thereof; provided, however, that, during the pendency of such period,
Agent (including any successor agent) and each other member of the Lender Group
shall be relieved of their obligation to extend credit hereunder, (d) an interim
trustee is appointed to take possession of all or any substantial portion of the
properties or assets of, or to operate all or any substantial portion of the
business of, any Borrower or any of its Subsidiaries, or (e) an order for relief
shall have been entered therein;
8.6 If any Borrower or any of its Subsidiaries is enjoined,
restrained, or in any way prevented by court order from continuing to conduct
all or any material part of its business affairs;
8.7 If one or more notices of Lien, levy, or assessment securing or
otherwise with respect to Indebtedness or an obligation for the payment of money
in an aggregate amount in excess of $250,000 is filed of record with respect to
any Borrower's or any of its Subsidiaries' assets by the United States, or any
department, agency, or instrumentality thereof, or by any state, county,
municipal, or governmental agency, or if any taxes or debts owing at any time
hereafter to any one or more of such entities becomes a Lien, whether ▇▇▇▇▇▇ or
otherwise, upon any Borrower's or any of its Subsidiaries' assets and the same
is not paid on the payment date thereof;
8.8 If one or more judgments or other claims for an aggregate amount
in excess of $250,000 becomes a Lien or encumbrance upon any material portion of
any Borrower's or any of its Subsidiaries' properties or assets;
8.9 If there is a default in any material agreement to which any
Borrower or any of its Subsidiaries is a party and such default (a)(i) occurs at
the final maturity of the obligations thereunder, or (ii) results in a right by
the other party thereto, irrespective of whether exercised, to accelerate the
maturity of the applicable Borrower's or its Subsidiaries' obligations
thereunder, to terminate such agreement, or to refuse to renew such agreement
pursuant to an automatic renewal right therein, and (b) involved Indebtedness or
an obligation for the payment of money in an aggregate amount in excess of
$250,000;
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8.10 If any Borrower or any of its Subsidiaries makes any payment on
account of Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations, except to the extent such payment is
permitted by the terms of the subordination provisions applicable to such
Indebtedness;
8.11 If any material misstatement or misrepresentation exists now or
hereafter in any warranty, representation, statement, or Record made to the
Lender Group by any Borrower, its Subsidiaries, or any officer, employee, agent,
or director of any Borrower or any of its Subsidiaries;
8.12 If the obligation of any Guarantor under its Guaranty is limited
or terminated by operation of law or by such Guarantor thereunder;
8.13 If this Agreement or any other Loan Document that purports to
create a Lien, shall, for any reason, fail or cease to create a valid and
perfected and, except to the extent permitted by the terms hereof or thereof,
first priority Lien on or security interest in the Collateral with an aggregate
value in excess of $250,000 covered hereby or thereby; or
8.14 Any provision of any Loan Document shall at any time for any
reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by any Borrower, or a proceeding shall be commenced
by any Borrower, or by any Governmental Authority having jurisdiction over any
Borrower, seeking to establish the invalidity or unenforceability thereof, or
any Borrower shall deny that any Borrower has any liability or obligation
purported to be created under any Loan Document.
9. THE LENDER GROUP'S RIGHTS AND REMEDIES.
9.1 Rights and Remedies. Upon the occurrence, and during the
-------------------
continuation, of an Event of Default, the Required Lenders (at their election
but without notice of their election and without demand) may authorize and
instruct Agent to do any one or more of the following on behalf of the Lender
Group (and Agent, acting upon the instructions of the Required Lenders, shall do
the same on behalf of the Lender Group), all of which are authorized by
Borrowers:
(a) Declare all Obligations, whether evidenced by this Agreement,
by any of the other Loan Documents, or otherwise, immediately due and payable;
(b) Cease advancing money or extending credit to or for the
benefit of Borrowers under this Agreement, under any of the Loan Documents, or
under any other agreement between Borrowers and the Lender Group;
(c) Terminate this Agreement and any of the other Loan Documents
as to any future liability or obligation of the Lender Group, but without
affecting any of the Agent's Liens in the Collateral and without affecting the
Obligations;
(d) Settle or adjust disputes and claims directly with Account
Debtors for amounts and upon terms which Agent considers advisable, and in such
cases, Agent will credit the Loan Account with only the net amounts received by
Agent in payment of such
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disputed Accounts after deducting all Lender Group Expenses incurred or expended
in connection therewith;
(e) Without notice to or demand upon any Borrower or any
Guarantor, make such payments and do such acts as Agent considers necessary or
reasonable to protect its security interests in the Collateral. Each Borrower
agrees to assemble the Personal Property Collateral if Agent so requires, and to
make the Personal Property Collateral available to Agent at a place that Agent
may designate which is reasonably convenient to both parties. Each Borrower
authorizes Agent to enter the premises where the Personal Property Collateral is
located, to take and maintain possession of the Personal Property Collateral, or
any part of it, and to pay, purchase, contest, or compromise any Lien that in
Agent's determination appears to conflict with the Agent's Liens and to pay all
expenses incurred in connection therewith and to charge Borrowers' Loan Account
therefor. With respect to any of Borrowers' owned or leased premises, each
Borrower hereby grants Agent a license to enter into possession of such premises
and to occupy the same, without charge, in order to exercise any of the Lender
Group's rights or remedies provided herein, at law, in equity, or otherwise;
(f) Without notice to any Borrower (such notice being expressly
waived), and without constituting a retention of any collateral in satisfaction
of an obligation (within the meaning of the Code), set off and apply to the
Obligations any and all (i) balances and deposits of any Borrower held by the
Lender Group (including any amounts received in the Cash Management Accounts),
or (ii) Indebtedness at any time owing to or for the credit or the account of
any Borrower held by the Lender Group;
(g) Hold, as cash collateral, any and all balances and deposits
of any Borrower held by the Lender Group, and any amounts received in the Cash
Management Accounts, to secure the full and final repayment of all of the
Obligations;
(h) Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell (in the manner provided for
herein) the Personal Property Collateral. Each Borrower hereby grants to Agent a
license or other right to use, without charge, such Borrower's labels, patents,
copyrights, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any property of a similar nature, as it pertains to the
Personal Property Collateral, in completing production of, advertising for sale,
and selling any Personal Property Collateral and such Borrower's rights under
all licenses and all franchise agreements shall inure to the Lender Group's
benefit;
(i) Sell the Personal Property Collateral at either a public or
private sale, or both, by way of one or more contracts or transactions, for cash
or on terms, in such manner and at such places (including Borrowers' premises)
as Agent determines is commercially reasonable. It is not necessary that the
Personal Property Collateral be present at any such sale;
(j) Agent shall give notice of the disposition of the Personal
Property Collateral as follows:
(i) Agent shall give Administrative Borrower (for the
benefit of the applicable Borrower) a notice in writing of the time and
place of public sale, or, if
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the sale is a private sale or some other disposition other than a public
sale is to be made of the Personal Property Collateral, the time on or
after which the private sale or other disposition is to be made; and
(ii) The notice shall be personally delivered or mailed,
postage prepaid, to Administrative Borrower as provided in Section 12, at
----------
least 10 days before the earliest time of disposition set forth in the
notice; no notice needs to be given prior to the disposition of any portion
of the Personal Property Collateral that is perishable or threatens to
decline speedily in value or that is of a type customarily sold on a
recognized market;
(k) Agent, on behalf of the Lender Group may credit bid and
purchase at any public sale;
(l) Agent may seek the appointment of a receiver or keeper to
take possession of all or any portion of the Collateral or to operate same and,
to the maximum extent permitted by law, may seek the appointment of such a
receiver without the requirement of prior notice or a hearing;
(m) The Lender Group shall have all other rights and remedies
available to it at law or in equity pursuant to any other Loan Documents; and
(n) Any deficiency that exists after disposition of the Personal
Property Collateral as provided above will be paid immediately by Borrowers. Any
excess will be returned, without interest and subject to the rights of third
Persons, by Agent to Administrative Borrower (for the benefit of the applicable
Borrower).
9.2 Remedies Cumulative. The rights and remedies of the Lender Group
-------------------
under this Agreement, the other Loan Documents, and all other agreements shall
be cumulative. The Lender Group shall have all other rights and remedies not
inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by the Lender Group of one right or remedy shall be deemed an election,
and no waiver by the Lender Group of any Event of Default shall be deemed a
continuing waiver. No delay by the Lender Group shall constitute a waiver,
election, or acquiescence by it.
10. TAXES AND EXPENSES.
If any Borrower fails to pay any monies (whether taxes, assessments,
insurance premiums, or, in the case of leased properties or assets, rents or
other amounts payable under such leases) due to third Persons, or fails to make
any deposits or furnish any required proof of payment or deposit, all as
required under the terms of this Agreement, then, Agent, in its sole discretion
and without prior notice to any Borrower, may do any or all of the following:
(a) make payment of the same or any part thereof, (b) set up such reserves in
Borrowers' Loan Account as Agent deems necessary to protect the Lender Group
from the exposure created by such failure, or (c) in the case of the failure to
comply with Section 6.7 hereof, obtain and maintain insurance policies of the
-----------
type described in Section 6.7 and take any action with respect to such policies
-----------
as Agent deems prudent. Any such amounts paid by Agent shall constitute Lender
Group Expenses and any such payments shall not constitute an agreement by the
Lender
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Group to make similar payments in the future or a waiver by the Lender
Group of any Event of Default under this Agreement. Agent need not inquire as
to, or contest the validity of, any such expense, tax, or Lien and the receipt
of the usual official notice for the payment thereof shall be conclusive
evidence that the same was validly due and owing.
11. WAIVERS; INDEMNIFICATION.
11.1 Demand; Protest; etc. Each Borrower waives demand, protest,
---------------------
notice of protest, notice of default or dishonor, notice of payment and
nonpayment, nonpayment at maturity, release, compromise, settlement, extension,
or renewal of documents, instruments, chattel paper, and guarantees at any time
held by the Lender Group on which any such Borrower may in any way be liable.
11.2 The Lender Group's Liability for Collateral. Each Borrower hereby
-------------------------------------------
agrees that: (a) so long as the Lender Group complies with its obligations, if
any, under the Code, Agent shall not in any way or manner be liable or
responsible for: (i) the safekeeping of the Collateral, (ii) any loss or damage
thereto occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of
loss, damage, or destruction of the Collateral shall be borne by Borrowers.
11.3 Indemnification. Each Borrower shall pay, indemnify, defend, and
---------------
hold the Agent-Related Persons, the Lender-Related Persons with respect to each
Lender, each Participant, and each of their respective officers, directors,
employees, agents, and attorneys-in-fact (each, an "Indemnified Person")
------------------
harmless (to the fullest extent permitted by law) from and against any and all
claims, demands, suits, actions, investigations, proceedings, and damages, and
all reasonable attorneys fees and disbursements and other costs and expenses
actually incurred in connection therewith (as and when they are incurred and
irrespective of whether suit is brought), at any time asserted against, imposed
upon, or incurred by any of them (a) in connection with or as a result of or
related to the execution, delivery, enforcement, performance, or administration
of this Agreement, any of the other Loan Documents, or the transactions
contemplated hereby or thereby, and (b) with respect to any investigation,
litigation, or proceeding related to this Agreement, any other Loan Document, or
the use of the proceeds of the credit provided hereunder (irrespective of
whether any Indemnified Person is a party thereto), or any act, omission, event,
or circumstance in any manner related thereto (all the foregoing, collectively,
the "Indemnified Liabilities"). The foregoing to the contrary notwithstanding,
-----------------------
Borrowers shall have no obligation to any Indemnified Person under this Section
-------
11.3 with respect to any Indemnified Liability that a court of competent
----
jurisdiction finally determines to have resulted from the gross negligence or
willful misconduct of such Indemnified Person. This provision shall survive the
termination of this Agreement and the repayment of the Obligations. If any
Indemnified Person makes any payment to any other Indemnified Person with
respect to an Indemnified Liability as to which Borrowers were required to
indemnify the Indemnified Person receiving such payment, the Indemnified Person
making such payment is entitled to be indemnified and reimbursed by Borrowers
with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO
EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE
OR IN PART
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CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED
PERSON OR OF ANY OTHER PERSON.
12. NOTICES.
Unless otherwise provided in this Agreement, all notices or demands by
Borrowers or Agent to the other relating to this Agreement or any other Loan
Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by registered or certified mail (postage
prepaid, return receipt requested), overnight courier, electronic mail (at such
email addresses as Administrative Borrower or Agent, as applicable, may
designate to each other in accordance herewith), or telefacsimile to Borrowers
in care of Administrative Borrower or to Agent, as the case may be, at its
address set forth below:
If to Administrative
Borrower: VENTIV HEALTH, INC.
Vantage Court North
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & DEUTSCHE LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
If to Agent: FOOTHILL CAPITAL CORPORATION
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Business Finance Division Manager
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
Agent and Borrowers may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given to
the other party. All notices or demands sent in accordance with this Section 12,
----------
other than notices by Agent in connection with enforcement rights against the
Collateral under the provisions of the Code, shall be deemed received (i) if
sent by registered or certified mail, return receipt requested, when received or
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three (3) Business Days after mailing, whichever first occurs, (ii) if
telecopied, when transmitted and confirmation is received, provided same is on a
Business Day and, if not, on the next Business Day, (iii) if sent by overnight
courier, one Business Day after being deposited with an overnight courier, (iv)
if delivered, upon delivery, provided same is on a Business Day and, if not, on
the next Business Day, or (v) if sent by electronic mail, when transmitted so
long as no message indicating delivery failure is received, provided same is on
a Business Day and, if not, on the next Business Day. Each Borrower acknowledges
and agrees that notices sent by the Lender Group in connection with the exercise
of enforcement rights against Collateral under the provisions of the Code shall
be deemed sent when deposited in the mail or personally delivered, or, where
permitted by law, transmitted by telefacsimile or any other method set forth
above.
13. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH
RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES OF
SUCH STATE.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
-------- -------
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BORROWERS AND THE LENDER GROUP
WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
----- --- ----------
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13(b).
------------
BORROWERS AND THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. BORROWERS AND THE LENDER GROUP REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
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LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
14. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
14.1 Assignments and Participations.
------------------------------
(a) Any Lender may, with the written consent of Agent (provided
that no written consent of Agent shall be required in connection with any
assignment and delegation by a Lender to an Eligible Transferee), assign and
delegate to one or more assignees (each an "Assignee") all, or any ratable part
--------
of all, of the Obligations, the Commitments and the other rights and obligations
of such Lender hereunder and under the other Loan Documents, in a minimum amount
of $5,000,000; provided, however, that Borrowers and Agent may continue to deal
-------- -------
solely and directly with such Lender in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses, and related information with respect to the
Assignee, have been given to Administrative Borrower and Agent by such Lender
and the Assignee, (ii) such Lender and its Assignee have delivered to
Administrative Borrower and Agent an Assignment and Acceptance in form and
substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has
paid to Agent for Agent's separate account a processing fee in the amount of
$5,000. Anything contained herein to the contrary notwithstanding, the consent
of Agent shall not be required (and payment of any fees shall not be required)
if such assignment is in connection with any merger, consolidation, sale,
transfer, or other disposition of all or any substantial portion of the business
or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor
Lender (with a copy to Administrative Borrower) that it has received an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(except with respect to Section 11.3 hereof) and be released from its
------------
obligations under this Agreement (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement and the other Loan Documents, such Lender
shall cease to be a party hereto and thereto), and such assignment shall affect
a novation between Borrowers and the Assignee.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (1) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto, (2) such assigning Lender makes no representation or warranty
and assumes no responsibility
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with respect to the financial condition of Borrowers or the performance or
observance by Borrowers of any of their obligations under this Agreement or any
other Loan Document furnished pursuant hereto, (3) such Assignee confirms that
it has received a copy of this Agreement, together with such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance, (4) such Assignee will,
independently and without reliance upon Agent, such assigning Lender or any
other 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 action under this Agreement, (5) such Assignee appoints and
authorizes Agent to take such actions and to exercise such powers under this
Agreement as are delegated to Agent, by the terms hereof, together with such
powers as are reasonably incidental thereto, and (6) such Assignee agrees that
it will perform all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance and receipt and acknowledgment by
Agent of such fully executed Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of
Agent, sell to one or more commercial banks, financial institutions, or other
Persons not Affiliates of such Lender (a "Participant") participating interests
-----------
in its Obligations, the Commitment, and the other rights and interests of that
Lender (the "Originating Lender") hereunder and under the other Loan Documents
------------------
(provided that no written consent of Agent shall be required in connection with
any sale of any such participating interests by a Lender to an Eligible
Transferee); provided, however, that (i) the Originating Lender shall remain a
-------- -------
"Lender" for all purposes of this Agreement and the other Loan Documents and the
Participant receiving the participating interest in the Obligations, the
Commitments, and the other rights and interests of the Originating Lender
hereunder shall not constitute a "Lender" hereunder or under the other Loan
Documents and the Originating Lender's obligations under this Agreement shall
remain unchanged, (ii) the Originating Lender shall remain solely responsible
for the performance of such obligations, (iii) Borrowers, Agent, and the Lenders
shall continue to deal solely and directly with the Originating Lender in
connection with the Originating Lender's rights and obligations under this
Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant
any participating interest under which the Participant has the right to approve
any amendment to, or any consent or waiver with respect to, this Agreement or
any other Loan Document, except to the extent such amendment to, or consent or
waiver with respect to this Agreement or of any other Loan Document would (A)
extend the final maturity date of the Obligations hereunder in which such
Participant is participating, (B) reduce the interest rate applicable to the
Obligations hereunder in which such Participant is participating, (C) release
all or a material portion of the Collateral or guaranties (except to the extent
expressly provided herein or in any of the Loan Documents) supporting the
Obligations hereunder in which such Participant is participating, (D) postpone
the payment of, or reduce the amount of, the interest or fees payable to such
Participant through such Lender, or (E) change the amount or due dates of
scheduled principal repayments or prepayments or premiums; and (v) all amounts
payable by Borrowers hereunder shall be
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determined as if such Lender had not sold such participation; except that, if
amounts outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement. The rights of any Participant
only shall be derivative through the Originating Lender with whom such
Participant participates and no Participant shall have any rights under this
Agreement or the other Loan Documents or any direct rights as to the other
Lenders, Agent, Borrowers, the Collections, the Collateral, or otherwise in
respect of the Obligations. No Participant shall have the right to participate
directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or
proposed assignment or participation, a Lender may, subject to Section 16.17,
disclose all documents and information which it now or hereafter may have
relating to Borrowers or Borrowers' business.
(g) Any other provision in this Agreement notwithstanding, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank
or U.S. Treasury Regulation 31 CFR Section.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
14.2 Successors. This Agreement shall bind and inure to the benefit of
----------
the respective successors and assigns of each of the parties; provided, however,
-------- -------
that Borrowers may not assign this Agreement or any rights or duties hereunder
without the Lenders' prior written consent and any prohibited assignment shall
be absolutely void ab initio. No consent to assignment by the Lenders shall
release any Borrower from its Obligations. A Lender may assign this Agreement
and the other Loan Documents and its rights and duties hereunder and thereunder
pursuant to Section 14.1 hereof and, except as expressly required pursuant to
------------
Section 14.1 hereof, no consent or approval by any Borrower is required in
------------
connection with any such assignment.
15. AMENDMENTS; WAIVERS.
15.1 Amendments and Waivers. No amendment or waiver of any provision
----------------------
of this Agreement or any other Loan Document, and no consent with respect to any
departure by Borrowers therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by Agent at the written request
of the Required Lenders) and Administrative Borrower (on behalf of all
Borrowers) and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
--------
however, that no such waiver, amendment, or consent shall, unless in writing and
-------
signed by all of the Lenders affected thereby and Administrative Borrower (on
behalf of all Borrowers) and acknowledged by Agent, do any of the following:
(a) increase or extend any Commitment of any Lender,
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(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees, or other
amounts due hereunder or under any other Loan Document,
(c) reduce the principal of, or the rate of interest on, any loan
or other extension of credit hereunder, or reduce any fees or other amounts
payable hereunder or under any other Loan Document,
(d) change the percentage of the Commitments that is required to
take any action hereunder,
(e) amend this Section or any provision of the Agreement
providing for consent or other action by all Lenders,
(f) release Collateral other than as permitted by Section 16.12,
-------------
(g) change the definition of "Required Lenders",
(h) contractually subordinate any of the Agent's Liens,
(i) release any Borrower or any Guarantor from any obligation for
the payment of money, or
(j) change the definition of Borrowing Base or the definitions of
Eligible Billed Accounts, Eligible Unbilled Accounts, Maximum Revolver Amount,
Billed Subline, Unbilled Subline or change Section 2.1(b); or
--------------
(k) amend any of the provisions of Section 16.
----------
and, provided further, however, that no amendment, waiver or consent shall,
---------------- -------
unless in writing and signed by Agent, Issuing Lender, or Swing Lender, affect
the rights or duties of Agent, Issuing Lender, or Swing Lender, as applicable,
under this Agreement or any other Loan Document. The foregoing notwithstanding,
any amendment, modification, waiver, consent, termination, or release of, or
with respect to, any provision of this Agreement or any other Loan Document that
relates only to the relationship of the Lender Group among themselves, and that
does not affect the rights or obligations of Borrowers, shall not require
consent by or the agreement of Borrowers.
15.2 Replacement of Holdout Lender. If any action to be taken by the
-----------------------------
Lender Group or Agent hereunder requires the unanimous consent, authorization,
or agreement of all Lenders, and a Lender ("Holdout Lender") fails to give its
consent, authorization, or agreement, then Agent, upon at least 5 Business Days
prior irrevocable notice to the Holdout Lender, may permanently replace the
Holdout Lender with one or more substitute Lenders (each, a "Replacement
Lender"), and the Holdout Lender shall have not right to refuse to be replaced
hereunder. Such notice to replace the Holdout Lender shall specify an effective
date for such replacement, which date shall not be later than 15 Business Days
after the date such notice is given.
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Prior to the effective date of such replacement, the Holdout Lender
and each Replacement Lender shall execute and deliver an Assignment and
Acceptance Agreement, subject only to the Holdout Lender being repaid its share
of the outstanding Obligations (including an assumption of its Pro Rata Share of
the Risk Participation Liability) without any premium or penalty of any kind
whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver
any such Assignment and Acceptance Agreement prior to the effective date of such
replacement, the Holdout Lender shall be deemed to have executed and delivered
such Assignment and Acceptance Agreement. The replacement of any Holdout Lender
shall be made in accordance with the terms of Section 14.1. Until such time as
-------------
the Replacement Lenders shall have acquired all of the Obligations, the
Commitments, and the other rights and obligations of the Holdout Lender
hereunder and under the other Loan Documents, the Holdout Lender shall remain
obligated to make the Holdout Lender's Pro Rata Share of Advances and to
purchase a participation in each Letter of Credit, in an amount equal to its Pro
Rata Share of the Risk Participation Liability of such Letter of Credit.
15.3 No Waivers; Cumulative Remedies. No failure by Agent or any
-------------------------------
Lender to exercise any right, remedy, or option under this Agreement or, any
other Loan Document, or delay by Agent or any Lender in exercising the same,
will operate as a waiver thereof. No waiver by Agent or any Lender will be
effective unless it is in writing, and then only to the extent specifically
stated. No waiver by Agent or any Lender on any occasion shall affect or
diminish Agent's and each Lender's rights thereafter to require strict
performance by Borrowers of any provision of this Agreement. Agent's and each
Lender's rights under this Agreement and the other Loan Documents will be
cumulative and not exclusive of any other right or remedy that Agent or any
Lender may have.
16. AGENT; THE LENDER GROUP.
16.1 Appointment and Authorization of Agent. Each Lender hereby
--------------------------------------
designates and appoints Foothill as its representative under this Agreement and
the other Loan Documents and each Lender hereby irrevocably authorizes Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to Agent by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Agent
agrees to act as such on the express conditions contained in this Section 16.
----------
The provisions of this Section 16 are solely for the benefit of Agent, and the
----------
Lenders, and Borrowers shall have no rights as a third party beneficiary of any
of the provisions contained herein. Any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against Agent; it being expressly understood and
agreed that the use of the word "Agent" is for convenience only, that Foothill
is merely the representative of the Lenders, and only has the contractual duties
set forth herein. Except as expressly otherwise provided in this Agreement,
Agent shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining from
taking any actions that Agent expressly is entitled to take or assert under or
pursuant to this Agreement and the other Loan Documents.
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Without limiting the generality of the foregoing, or of any other provision of
the Loan Documents that provides rights or powers to Agent, Lenders agree that
Agent shall have the right to exercise the following powers as long as this
Agreement remains in effect: (a) maintain, in accordance with its customary
business practices, ledgers and records reflecting the status of the
Obligations, the Collateral, the Collections, and related matters, (b) execute
or file any and all financing or similar statements or notices, amendments,
renewals, supplements, documents, instruments, proofs of claim, notices and
other written agreements with respect to the Loan Documents, (c) make Advances,
for itself or on behalf of Lenders as provided in the Loan Documents, (d)
exclusively receive, apply, and distribute the Collections as provided in the
Loan Documents, (e) open and maintain such bank accounts and cash management
accounts as Agent deems necessary and appropriate in accordance with the Loan
Documents for the foregoing purposes with respect to the Collateral and the
Collections, (f) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to Borrowers, the Obligations, the
Collateral, the Collections, or otherwise related to any of same as provided in
the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent
may deem necessary or appropriate for the performance and fulfillment of its
functions and powers pursuant to the Loan Documents.
16.2 Delegation of Duties. Agent may execute any of its duties under
--------------------
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects as
long as such selection was made without gross negligence or willful misconduct.
16.3 Liability of Agent. None of the Agent-Related Persons shall (i)
------------------
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by any Borrower or any Subsidiary or
Affiliate of any Borrower, or any officer or director thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the Books or properties of Borrowers or the books or
records or properties of any of Borrowers' Subsidiaries or Affiliates.
16.4 Reliance by Agent. Agent shall be entitled to rely, and shall be
-----------------
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent, or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to Borrowers
or counsel to any Lender), independent accountants and other experts selected by
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Agent. Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless Agent shall first receive
such advice or concurrence of the Lenders as it deems appropriate and until such
instructions are received, Agent shall act, or refrain from acting, as it deems
advisable. If Agent so requests, it shall first be indemnified to its reasonable
satisfaction by Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
16.5 Notice of Default or Event of Default. Agent shall not be deemed
-------------------------------------
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest,
fees, and expenses required to be paid to Agent for the account of the Lenders,
except with respect to Events of Default of which Agent has actual knowledge,
unless Agent shall have received written notice from a Lender or Administrative
Borrower referring to this Agreement, describing such Default or Event of
Default, and stating that such notice is a "notice of default." Agent promptly
will notify the Lenders of its receipt of any such notice or of any Event of
Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other
Lenders and Agent of such Event of Default. Each Lender shall be solely
responsible for giving any notices to its Participants, if any. Subject to
Section 16.4, Agent shall take such action with respect to such Default or Event
------------
of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, however, that unless and until Agent has received any such
--------- -------- -------
request, Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable.
16.6 Credit Decision. Each Lender acknowledges that none of the
---------------
Agent-Related Persons has made any representation or warranty to it, and that no
act by Agent hereinafter taken, including any review of the affairs of Borrowers
and their Subsidiaries or Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers and any other Person (other than the Lender Group)
party to a Loan Document, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to Borrowers. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers and any other Person (other than the Lender Group)
party to a Loan Document. Except for notices, reports, and other documents
expressly herein required to be furnished to the Lenders by Agent, Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations,
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property, financial and other condition or creditworthiness of Borrowers and any
other Person party to a Loan Document that may come into the possession of any
of the Agent-Related Persons.
16.7 Costs and Expenses; Indemnification. Agent may incur and pay
-----------------------------------
Lender Group Expenses to the extent Agent reasonably deems necessary or
appropriate for the performance and fulfillment of its functions, powers, and
obligations pursuant to the Loan Documents, including court costs, reasonable
attorneys fees and expenses, costs of collection by outside collection agencies
and auctioneer fees and costs of security guards or insurance premiums paid to
maintain the Collateral, whether or not Borrowers are obligated to reimburse
Agent or Lenders for such expenses pursuant to the Loan Agreement or otherwise.
Agent is authorized and directed to deduct and retain sufficient amounts from
Collections received by Agent to reimburse Agent for such out-of-pocket costs
and expenses prior to the distribution of any amounts to Lenders. In the event
Agent is not reimbursed for such costs and expenses from Collections received by
Agent, each Lender hereby agrees that it is and shall be obligated to pay to or
reimburse Agent for the amount of such Lender's Pro Rata Share thereof. Whether
or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by
or on behalf of Borrowers and without limiting the obligation of Borrowers to do
so), according to their Pro Rata Shares, from and against any and all
Indemnified Liabilities; provided, however, that no Lender shall be liable for
-------- -------
the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct nor shall any Lender be liable for the obligations of any Defaulting
Lender in failing to make an Advance or other extension of credit hereunder.
Without limitation of the foregoing, each Lender shall reimburse Agent upon
demand for such Lender's ratable share of any costs or out-of-pocket expenses
(including attorneys fees and expenses) incurred by Agent in connection with the
preparation, execution, delivery, administration, modification, amendment, or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that Agent is not reimbursed for such expenses by or on behalf of
Borrowers. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Agent.
16.8 Agent in Individual Capacity. Foothill and its Affiliates may
----------------------------
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in, and generally engage in any kind of banking, trust,
financial advisory, underwriting, or other business with Borrowers and their
Subsidiaries and Affiliates and any other Person (other than the Lender Group)
party to any Loan Documents as though Foothill were not Agent hereunder, and, in
each case, without notice to or consent of the other members of the Lender
Group. The other members of the Lender Group acknowledge that, pursuant to such
activities, Foothill or its Affiliates may receive information regarding
Borrowers or their Affiliates and any other Person (other than the Lender Group)
party to any Loan Documents that is subject to confidentiality obligations in
favor of Borrowers or such other Person and that prohibit the disclosure of such
information to the Lenders, and the Lenders acknowledge that, in such
circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver Agent will use its reasonable best efforts to obtain),
Agent shall not be under any obligation to provide such
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information to them. The terms "Lender" and "Lenders" include Foothill in its
individual capacity.
16.9 Successor Agent. Agent may resign as Agent upon 45 days notice to
---------------
the Lenders. If Agent resigns under this Agreement, the Required Lenders shall
appoint a successor Agent for the Lenders. If no successor Agent is appointed
prior to the effective date of the resignation of Agent, Agent may appoint,
after consulting with the Lenders, a successor Agent. If Agent has materially
breached or failed to perform any material provision of this Agreement or of
applicable law, the Required Lenders may agree in writing to remove and replace
Agent with a successor Agent from among the Lenders. In any such event, upon the
acceptance of its appointment as successor Agent hereunder, such successor Agent
shall succeed to all the rights, powers, and duties of the retiring Agent and
the term "Agent" shall mean such successor Agent and the retiring Agent's
appointment, powers, and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 16 shall
----------
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor Agent has accepted
appointment as Agent by the date which is 45 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
Agent hereunder until such time, if any, as the Lenders appoint a successor
Agent as provided for above.
16.10 Lender in Individual Capacity. Any Lender and its respective
-----------------------------
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with
Borrowers and their Subsidiaries and Affiliates and any other Person (other than
the Lender Group) party to any Loan Documents as though such Lender were not a
Lender hereunder without notice to or consent of the other members of the Lender
Group. The other members of the Lender Group acknowledge that, pursuant to such
activities, such Lender and its respective Affiliates may receive information
regarding Borrowers or their Affiliates and any other Person (other than the
Lender Group) party to any Loan Documents that is subject to confidentiality
obligations in favor of Borrowers or such other Person and that prohibit the
disclosure of such information to the Lenders, and the Lenders acknowledge that,
in such circumstances (and in the absence of a waiver of such confidentiality
obligations, which waiver such Lender will use its reasonable best efforts to
obtain), such Lender not shall be under any obligation to provide such
information to them. With respect to the Swing Loans and Agent Advances, Swing
Lender shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the sub-agent of the
Agent.
16.11 Withholding Taxes.
-----------------
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the IRC and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the IRC, such
Lender agrees with and in favor of Agent and Borrowers, to deliver to Agent and
Administrative Borrower:
(i) if such Lender claims an exemption from withholding tax
pursuant to its portfolio interest exception, (a) a statement of the
Lender, signed under
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penalty of perjury, that it is not a (I) a "bank" as described in Section
881(c)(3)(A) of the IRC, (II) a 10% shareholder (within the meaning of
Section 881(c)(3)(B) of the IRC), or (III) a controlled foreign corporation
described in Section 881(c)(3)(C) of the IRC, and (B) a properly completed
IRS Form W-8BEN, before the first payment of any interest under this
Agreement and at any other time reasonably requested by Agent or
Administrative Borrower;
(ii) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly completed
IRS Form W-8BEN before the first payment of any interest under this
Agreement and at any other time reasonably requested by Agent or
Administrative Borrower;
(iii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form W-8ECI
before the first payment of any interest is due under this Agreement and at
any other time reasonably requested by Agent or Administrative Borrower;
(iv) such other form or forms as may be required under the
IRC or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Lender agrees promptly to notify Agent and Administrative Borrower of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form W-8BEN
and such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of Borrowers to such Lender, such
Lender agrees to notify Agent of the percentage amount in which it is no longer
the beneficial owner of Obligations of Borrowers to such Lender. To the extent
of such percentage amount, Agent will treat such Lender's IRS Form W-8BEN as no
longer valid.
(c) If any Lender is entitled to a reduction in the applicable
withholding tax, Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to Agent, then Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.
(d) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify and hold Agent harmless for all amounts
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paid, directly or indirectly, by Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to Agent under this Section, together with all costs and expenses
(including attorneys fees and expenses). The obligation of the Lenders under
this subsection shall survive the payment of all Obligations and the resignation
or replacement of Agent.
(e) All payments made by Borrowers hereunder or under any note or
other Loan Document will be made without setoff, counterclaim, or other defense,
except as required by applicable law other than for Taxes (as defined below).
All such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction (other than the United States) or by any political subdivision or
taxing authority thereof or therein (other than of the United States) with
respect to such payments (but excluding, any tax imposed by any jurisdiction or
by any political subdivision or taxing authority thereof or therein (i) measured
by or based on the net income or net profits of a Lender, or (ii) to the extent
that such tax results from a change in the circumstances of the Lender,
including a change in the residence, place of organization, or principal place
of business of the Lender, or a change in the branch or lending office of the
Lender participating in the transactions set forth herein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed,
-----
each Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any note, including any amount paid pursuant to this Section
-------
16.11(e) after withholding or deduction for or on account of any Taxes, will not
--------
be less than the amount provided for herein; provided, however, that Borrowers
-------- -------
shall not be required to increase any such amounts payable to Agent or any
Lender (i) that is not organized under the laws of the United States, if such
Person fails to comply with the other requirements of this Section 16.11
-------------
establishing a complete exemption from or reduction of U.S. withholding tax, or
(ii) if the increase in such amount payable results from Agent's or such
Lender's own willful misconduct or gross negligence. Borrowers will furnish to
Agent as promptly as possible after the date the payment of any Taxes is due
pursuant to applicable law certified copies of tax receipts evidencing such
payment by Borrowers.
16.12 Collateral Matters.
------------------
(a) The Lenders hereby irrevocably authorize Agent, at its option
and in its sole discretion, to release any Lien on any Collateral (i) upon the
termination of the Commitments and payment and satisfaction in full by Borrowers
of all Obligations, (ii) constituting property being sold or disposed of if a
release is required or desirable in connection therewith and if Administrative
Borrower certifies to Agent that the sale or disposition is permitted under
Section 7.4 of this Agreement or the other Loan Documents (and Agent may rely
-----------
conclusively on any such certificate, without further inquiry), (iii)
constituting property in which no Borrower owned any interest at the time the
security interest was granted or at any time thereafter, or (iv) constituting
property leased to a Borrower under a lease that has expired or is terminated in
a transaction permitted under this Agreement. Except as provided above, Agent
will not execute and deliver a release of any Lien on any Collateral without the
prior written authorization of (y) if the release is of all or substantially all
of the Collateral, all of
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the Lenders, or (z) otherwise, the Required Lenders. Upon request by Agent or
Administrative Borrower at any time, the Lenders will confirm in writing Agent's
authority to release any such Liens on particular types or items of Collateral
pursuant to this Section 16.12; provided, however, that (1) Agent shall not be
------------- -------- -------
required to execute any document necessary to evidence such release on terms
that, in Agent's opinion, would expose Agent to liability or create any
obligation or entail any consequence other than the release of such Lien without
recourse, representation, or warranty, and (2) such release shall not in any
manner discharge, affect, or impair the Obligations or any Liens (other than
those expressly being released) upon (or obligations of Borrowers in respect of)
all interests retained by Borrowers, including, the proceeds of any sale, all of
which shall continue to constitute part of the Collateral.
(b) Agent shall have no obligation whatsoever to any of the
Lenders to assure that the Collateral exists or is owned by Borrowers or is
cared for, protected, or insured or has been encumbered, or that the Agent's
Liens have been properly or sufficiently or lawfully created, perfected,
protected, or enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Agent pursuant to any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its
sole discretion given Agent's own interest in the Collateral in its capacity as
one of the Lenders and that Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing, except as otherwise
provided herein.
16.13 Restrictions on Actions by Lenders; Sharing of Payments.
-------------------------------------------------------
(a) Each of the Lenders agrees that it shall not, without the
express consent of Agent, and that it shall, to the extent it is lawfully
entitled to do so, upon the request of Agent, set off against the Obligations,
any amounts owing by such Lender to Borrowers or any deposit accounts of
Borrowers now or hereafter maintained with such Lender. Each of the Lenders
further agrees that it shall not, unless specifically requested to do so by
Agent, take or cause to be taken any action, including, the commencement of any
legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce
any security interest in, any of the Collateral the purpose of which is, or
could be, to give such Lender any preference or priority against the other
Lenders with respect to the Collateral.
(b) If, at any time or times any Lender shall receive (i) by
payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations arising under, or relating to, this
Agreement or the other Loan Documents, except for any such proceeds or payments
received by such Lender from Agent pursuant to the terms of this Agreement, or
(ii) payments from Agent in excess of such Lender's ratable portion of all such
distributions by Agent, such Lender promptly shall (1) turn the same over to
Agent, in kind, and with such endorsements as may be required to negotiate the
same to Agent, or in immediately available funds, as applicable, for the account
of all of the Lenders and for application to the Obligations in accordance with
the applicable provisions of this Agreement, or (2) purchase, without recourse
or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably
as among the
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Lenders in accordance with their Pro Rata Shares; provided, however, that if all
or part of such excess payment received by the purchasing party is thereafter
recovered from it, those purchases of participations shall be rescinded in whole
or in part, as applicable, and the applicable portion of the purchase price paid
therefor shall be returned to such purchasing party, but without interest except
to the extent that such purchasing party is required to pay interest in
connection with the recovery of the excess payment.
16.14 Agency for Perfection. Agent hereby appoints each other Lender
---------------------
as its agent (and each Lender hereby accepts such appointment) for the purpose
of perfecting the Agent's Liens in assets which, in accordance with Article 9 of
the UCC can be perfected only by possession. Should any Lender obtain possession
of any such Collateral, such Lender shall notify Agent thereof, and, promptly
upon Agent's request therefor shall deliver such Collateral to Agent or in
accordance with Agent's instructions.
16.15 Payments by Agent to the Lenders. All payments to be made by
--------------------------------
Agent to the Lenders shall be made by bank wire transfer or internal transfer of
immediately available funds pursuant to such wire transfer instructions as each
party may designate for itself by written notice to Agent. Concurrently with
each such payment, Agent shall identify whether such payment (or any portion
thereof) represents principal, premium, or interest of the Obligations.
16.16 Concerning the Collateral and Related Loan Documents. Each
----------------------------------------------------
member of the Lender Group authorizes and directs Agent to enter into this
Agreement and the other Loan Documents relating to the Collateral, for the
benefit of the Lender Group. Each member of the Lender Group agrees that any
action taken by Agent in accordance with the terms of this Agreement or the
other Loan Documents relating to the Collateral and the exercise by Agent of its
powers set forth therein or herein, together with such other powers that are
reasonably incidental thereto, shall be binding upon all of the Lenders.
16.17 Field Audits and Examination Reports; Confidentiality;
------------------------------------------------------
Disclaimers by Lenders; Other Reports and Information. By becoming a party to
-----------------------------------------------------
this Agreement, each Lender:
(a) is deemed to have requested that Agent furnish such Lender,
promptly after it becomes available, a copy of each field audit or examination
report (each a "Report" and collectively, "Reports") prepared by Agent, and
------ -------
Agent shall so furnish each Lender with such Reports,
(b) expressly agrees and acknowledges that Agent does not (i)
make any representation or warranty as to the accuracy of any Report, and (ii)
shall not be liable for any information contained in any Report,
(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that Agent or other party performing any
audit or examination will inspect only specific information regarding Borrowers
and will rely significantly upon the Books, as well as on representations of
Borrowers' personnel,
(d) agrees to keep all Reports and other material, non-public
information regarding Borrowers and their Subsidiaries and their operations,
assets, and existing
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and contemplated business plans in a confidential manner; it being understood
and agreed by Borrowers that in any event such Lender may make disclosures (a)
to counsel for and other advisors, accountants, and auditors to such Lender, (b)
reasonably required by any bona fide potential or actual Assignee or Participant
in connection with any contemplated or actual assignment or transfer by such
Lender of an interest herein or any participation interest in such Lender's
rights hereunder, (c) of information that has become public by disclosures made
by Persons other than such Lender, its Affiliates, assignees, transferees, or
Participants, or (d) as required or requested by any court, governmental or
administrative agency, pursuant to any subpoena or other legal process, or by
any law, statute, regulation, or court order; provided, however, that, unless
-------- -------
prohibited by applicable law, statute, regulation, or court order, such Lender
shall notify Administrative Borrower of any request by any court, governmental
or administrative agency, or pursuant to any subpoena or other legal process for
disclosure of any such non-public material information concurrent with, or where
practicable, prior to the disclosure thereof, and
(e) without limiting the generality of any other indemnification
provision contained in this Agreement, agrees: (i) to hold Agent and any such
other Lender preparing a Report harmless from any action the indemnifying Lender
may take or conclusion the indemnifying Lender may reach or draw from any Report
in connection with any loans or other credit accommodations that the
indemnifying Lender has made or may make to Borrowers, or the indemnifying
Lender's participation in, or the indemnifying Lender's purchase of, a loan or
loans of Borrowers; and (ii) to pay and protect, and indemnify, defend and hold
Agent, and any such other Lender preparing a Report harmless from and against,
the claims, actions, proceedings, damages, costs, expenses, and other amounts
(including, attorneys fees and costs) incurred by Agent and any such other
Lender preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.
In addition to the foregoing: (x) any Lender may from time to time request of
Agent in writing that Agent provide to such Lender a copy of any report or
document provided by Borrowers to Agent that has not been contemporaneously
provided by Borrowers to such Lender, and, upon receipt of such request, Agent
shall provide a copy of same to such Lender, (y) to the extent that Agent is
entitled, under any provision of the Loan Documents, to request additional
reports or information from Borrowers, any Lender may, from time to time,
reasonably request Agent to exercise such right as specified in such Lender's
notice to Agent, whereupon Agent promptly shall request of Administrative
Borrower the additional reports or information reasonably specified by such
Lender, and, upon receipt thereof from Administrative Borrower, Agent promptly
shall provide a copy of same to such Lender, and (z) any time that Agent renders
to Administrative Borrower a statement regarding the Loan Account, Agent shall
send a copy of such statement to each Lender.
16.18 Several Obligations; No Liability. Notwithstanding that certain
---------------------------------
of the Loan Documents now or hereafter may have been or will be executed only by
or in favor of Agent in its capacity as such, and not by or in favor of the
Lenders, any and all obligations on the part of Agent (if any) to make any
credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their
respective Commitments, to make an amount of such credit not to exceed, in
principal amount, at any one time outstanding, the amount of their respective
Commitments. Nothing contained herein shall
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confer upon any Lender any interest in, or subject any Lender to any liability
for, or in respect of, the business, assets, profits, losses, or liabilities of
any other Lender. Each Lender shall be solely responsible for notifying its
Participants of any matters relating to the Loan Documents to the extent any
such notice may be required, and no Lender shall have any obligation, duty, or
liability to any Participant of any other Lender. Except as provided in Section
-------
16.7, no member of the Lender Group shall have any liability for the acts or any
----
other member of the Lender Group. No Lender shall be responsible to any Borrower
or any other Person for any failure by any other Lender to fulfill its
obligations to make credit available hereunder, nor to advance for it or on its
behalf in connection with its Commitment, nor to take any other action on its
behalf hereunder or in connection with the financing contemplated herein.
17. GENERAL PROVISIONS.
17.1 Effectiveness. This Agreement shall be binding and deemed
-------------
effective when executed by Borrowers, Agent, and each Lender whose signature is
provided for on the signature pages hereof.
17.2 Section Headings. Headings and numbers have been set forth herein
----------------
for convenience only. Unless the contrary is compelled by the context,
everything contained in each Section applies equally to this entire Agreement.
17.3 Interpretation. Neither this Agreement nor any uncertainty or
--------------
ambiguity herein shall be construed or resolved against the Lender Group or
Borrowers, whether under any rule of construction or otherwise. On the contrary,
this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto.
17.4 Severability of Provisions. Each provision of this Agreement
--------------------------
shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
17.5 Amendments in Writing. This Agreement only can be amended by a
---------------------
writing in accordance with Section 15.1.
------------
17.6 Counterparts; Telefacsimile Execution. This Agreement may be
-------------------------------------
executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one and
the same Agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement. The foregoing shall apply to each other Loan Document mutatis
mutandis.
17.7 Revival and Reinstatement of Obligations. If the incurrence or
----------------------------------------
payment of the Obligations by any Borrower or any Guarantor or the transfer to
the Lender Group of any property should for any reason subsequently be declared
to be void or voidable under any state or
-101-
federal law relating to creditors' rights, including provisions of the
Bankruptcy Code relating to fraudulent conveyances, preferences, or other
voidable or recoverable payments of money or transfers of property
(collectively, a "Voidable Transfer"), and if the Lender Group is required to
-----------------
repay or restore, in whole or in part, any such Voidable Transfer, or elects to
do so upon the reasonable advice of its counsel, then, as to any such Voidable
Transfer, or the amount thereof that the Lender Group is required or elects to
repay or restore, and as to all reasonable costs, expenses, and attorneys fees
of the Lender Group related thereto, the liability of Borrowers or Guarantors
automatically shall be revived, reinstated, and restored and shall exist as
though such Voidable Transfer had never been made.
17.8 Integration. This Agreement, together with the other Loan
-----------
Documents, reflects the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, before the date hereof.
17.9 Parent as Agent for Borrowers. Each Borrower hereby irrevocably
-----------------------------
appoints Ventiv Health, Inc. as the borrowing agent and attorney-in-fact for all
Borrowers (the "Administrative Borrower") which appointment shall remain in full
-----------------------
force and effect unless and until Agent shall have received prior written notice
signed by each Borrower that such appointment has been revoked and that another
Borrower has been appointed Administrative Borrower. Each Borrower hereby
irrevocably appoints and authorizes the Administrative Borrower (i) to provide
Agent with all notices with respect to Advances and Letters of Credit obtained
for the benefit of any Borrower and all other notices and instructions under
this Agreement and (ii) to take such action as the Administrative Borrower deems
appropriate on its behalf to obtain Advances and Letters of Credit and to
exercise such other powers as are reasonably incidental thereto to carry out the
purposes of this Agreement. It is understood that the handling of the Loan
Account and Collateral of Borrowers in a combined fashion, as more fully set
forth herein, is done solely as an accommodation to Borrowers in order to
utilize the collective borrowing powers of Borrowers in the most efficient and
economical manner and at their request, and that Lender Group shall not incur
liability to any Borrower as a result hereof. Each Borrower expects to derive
benefit, directly or indirectly, from the handling of the Loan Account and the
Collateral in a combined fashion since the successful operation of each Borrower
is dependent on the continued successful performance of the integrated group. To
induce the Lender Group to do so, and in consideration thereof, each Borrower
hereby jointly and severally agrees to indemnify each member of the Lender Group
and hold each member of the Lender Group harmless against any and all liability,
expense, loss or claim of damage or injury, made against the Lender Group by any
Borrower or by any third party whosoever, arising from or incurred by reason of
(a) the handling of the Loan Account and Collateral of Borrowers as herein
provided, (b) the Lender Group's relying on any instructions of the
Administrative Borrower, or (c) any other action taken by the Lender Group
hereunder or under the other Loan Documents, except that Borrowers will have no
liability to the relevant Agent-Related Person or Lender-Related Person under
this Section 17.9 with respect to any liability that has been finally determined
------------
by a court of competent jurisdiction to have resulted solely from the gross
negligence or willful misconduct of such Agent-Related Person or Lender-Related
Person, as the case may be.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
VENTIV HEALTH, INC.,
a Delaware corporation
By:
---------------------------------------------
Name:
Title:
VENTIV HEALTH U.S. SALES LLC,
a New Jersey limited liability company
By:
---------------------------------------------
Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and as a Lender
By:
---------------------------------------------
Name:
Title:
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TABLE OF CONTENTS
Page
----
1. DEFINITIONS AND CONSTRUCTION.......................................................................1
1.1 Definitions........................................................................................1
1.2 Accounting Terms..................................................................................26
1.3 Code..............................................................................................26
1.4 Construction......................................................................................26
1.5 Schedules and Exhibits............................................................................27
2. LOAN AND TERMS OF PAYMENT.........................................................................27
2.1 Revolver Advances.................................................................................27
2.2 Borrowing Procedures and Settlements..............................................................28
2.3 Payments..........................................................................................35
2.4 Overadvances......................................................................................37
2.5 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.......................37
2.6 Cash Management...................................................................................39
2.7 Crediting Payments; Float Charge..................................................................40
2.8 Designated Account................................................................................41
2.9 Maintenance of Loan Account; Statements of Obligations............................................41
2.10 Fees..............................................................................................41
2.11 Letters of Credit.................................................................................42
2.12 LIBOR Option......................................................................................45
2.13 Capital Requirements..............................................................................48
2.14 Joint and Several Liability of Borrowers..........................................................48
3. CONDITIONS; TERM OF AGREEMENT.....................................................................50
3.1 Conditions Precedent to the Closing Date and the Initial Extension of Credit......................50
3.2 Conditions Subsequent to the Closing Date.........................................................53
3.3 Conditions Precedent to all Extensions of Credit..................................................55
3.4 Term..............................................................................................55
3.5 Effect of Termination.............................................................................55
3.6 Early Termination by Borrowers....................................................................56
4. CREATION OF SECURITY INTEREST.....................................................................56
4.1 Grant of Security Interest........................................................................56
4.2 Negotiable Collateral.............................................................................57
4.3 Collection of Accounts, General Intangibles, and Negotiable Collateral............................57
4.4 Filing of Financing Statements; Commercial Tort Claims; Delivery of Additional
Documentation Required..........................................................................57
4.5 Power of Attorney.................................................................................58
4.6 Right to Inspect..................................................................................58
4.7 Control Agreements................................................................................59
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5. REPRESENTATIONS AND WARRANTIES....................................................................59
5.1 No Encumbrances...................................................................................59
5.2 Eligible Accounts.................................................................................59
5.3 Equipment.........................................................................................59
5.4 Location of Equipment.............................................................................59
5.5 State of Incorporation; Location of Chief Executive Office; FEIN; Organizational ID
Number; Commercial Tort Claims..................................................................59
5.6 Due Organization and Qualification; Subsidiaries..................................................60
5.7 Due Authorization; No Conflict....................................................................60
5.8 Litigation........................................................................................61
5.9 No Material Adverse Change........................................................................62
5.10 Fraudulent Transfer...............................................................................62
5.11 Employee Benefits.................................................................................62
5.12 Environmental Condition...........................................................................62
5.13 Brokerage Fees....................................................................................62
5.14 Intellectual Property.............................................................................62
5.15 Leases............................................................................................63
5.16 DDAs..............................................................................................63
5.17 Complete Disclosure...............................................................................63
5.18 Indebtedness......................................................................................63
5.19 Regulation U......................................................................................63
5.20 Permits, Etc......................................................................................63
5.21 Material Contracts................................................................................64
5.22 Customers.........................................................................................64
5.23 Properties........................................................................................64
5.24 Employee and Labor Matters........................................................................64
5.25 Certain Subsidiaries..............................................................................65
5.26 HPR UK Ltd........................................................................................65
5.27 Obligations to ▇▇▇▇▇▇.............................................................................65
6. AFFIRMATIVE COVENANTS.............................................................................65
6.1 Accounting System.................................................................................65
6.2 Collateral Reporting..............................................................................65
6.3 Financial Statements, Reports, Certificates.......................................................66
6.4 Guarantor Reports.................................................................................69
6.5 Maintenance of Properties.........................................................................69
6.6 Taxes.............................................................................................69
6.7 Insurance.........................................................................................69
6.8 Location of Equipment.............................................................................70
6.9 Compliance with Laws..............................................................................70
6.10 Leases............................................................................................70
6.11 Brokerage Commissions.............................................................................70
6.12 Existence.........................................................................................71
6.13 Environmental.....................................................................................71
6.14 Commercial Tort Claims; Organizational ID Number..................................................71
6.15 Other Disclosure Updates..........................................................................71
-ii-
7. NEGATIVE COVENANTS................................................................................71
7.1 Indebtedness......................................................................................72
7.2 Liens.............................................................................................73
7.3 Restrictions on Fundamental Changes...............................................................73
7.4 Disposal of Assets................................................................................73
7.5 Change Name.......................................................................................73
7.6 Guarantee.........................................................................................73
7.7 Nature of Business................................................................................73
7.8 Prepayments and Amendments........................................................................73
7.9 Change of Control.................................................................................74
7.10 Distributions.....................................................................................74
7.11 Accounting Methods................................................................................74
7.12 Investments.......................................................................................74
7.13 Transactions with Affiliates......................................................................75
7.14 Suspension........................................................................................75
7.15 [Intentionally Omitted]...........................................................................75
7.16 Use of Proceeds...................................................................................75
7.17 Change in Location of Chief Executive Office; Equipment with Bailees..............................75
7.18 Securities Accounts...............................................................................75
7.19 Financial Covenants...............................................................................75
7.20 Certain Subsidiaries..............................................................................79
7.21 HPR UK Ltd........................................................................................79
8. EVENTS OF DEFAULT.................................................................................79
9. THE LENDER GROUP'S RIGHTS AND REMEDIES............................................................81
9.1 Rights and Remedies...............................................................................81
9.2 Remedies Cumulative...............................................................................83
10. TAXES AND EXPENSES................................................................................83
11. WAIVERS; INDEMNIFICATION..........................................................................84
11.1 Demand; Protest; etc..............................................................................84
11.2 The Lender Group's Liability for Collateral.......................................................84
11.3 Indemnification...................................................................................84
12. NOTICES...........................................................................................85
13. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER........................................................86
14. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS........................................................87
14.1 Assignments and Participations....................................................................87
14.2 Successors........................................................................................89
15. AMENDMENTS; WAIVERS...............................................................................89
15.1 Amendments and Waivers............................................................................89
15.2 Replacement of Holdout Lender.....................................................................90
15.3 No Waivers; Cumulative Remedies...................................................................91
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16. AGENT; THE LENDER GROUP...........................................................................91
16.1 Appointment and Authorization of Agent............................................................91
16.2 Delegation of Duties..............................................................................92
16.3 Liability of Agent................................................................................92
16.4 Reliance by Agent.................................................................................92
16.5 Notice of Default or Event of Default.............................................................93
16.6 Credit Decision...................................................................................93
16.7 Costs and Expenses; Indemnification...............................................................94
16.8 Agent in Individual Capacity......................................................................94
16.9 Successor Agent...................................................................................95
16.10 Lender in Individual Capacity.....................................................................95
16.11 Withholding Taxes.................................................................................95
16.12 Collateral Matters................................................................................97
16.13 Restrictions on Actions by Lenders; Sharing of Payments...........................................98
16.14 Agency for Perfection.............................................................................99
16.15 Payments by Agent to the Lenders..................................................................99
16.16 Concerning the Collateral and Related Loan Documents..............................................99
16.17 Field Audits and Examination Reports; Confidentiality; Disclaimers by Lenders;
Other Reports and Information.....................................................................99
16.18 Several Obligations; No Liability................................................................100
17. GENERAL PROVISIONS...............................................................................101
17.1 Effectiveness....................................................................................101
17.2 Section Headings.................................................................................101
17.3 Interpretation...................................................................................101
17.4 Severability of Provisions.......................................................................101
17.5 Amendments in Writing............................................................................101
17.6 Counterparts; Telefacsimile Execution............................................................101
17.7 Revival and Reinstatement of Obligations.........................................................101
17.8 Integration......................................................................................102
17.9 Parent as Agent for Borrowers....................................................................102
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EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Assignment and Acceptance
Exhibit C-1 Form of Compliance Certificate
Exhibit G-1 Form of Guarantor Security Agreement
Exhibit G-2 Form of Guaranty
Exhibit I-1 Form of Intercompany Subordination Agreement
Exhibit L-1 Form of LIBOR Notice
Exhibit O-1 Form of Officers' Certificate
Exhibit P-1 Form of Pledge Agreement
Schedule A-1 Agent's Account
Schedule C-1 Commitments
Schedule D-1 Designated Account
Schedule P-1 Permitted Liens
Schedule R-1 Real Property Collateral
Schedule 2.6(a) Cash Management Banks
Schedule 3.2(h) Post-Closing Deliveries
Schedule 5.4 Locations of Equipment
Schedule 5.5(a) State of Incorporation
Schedule 5.5(b) Chief Executive Office
Schedule 5.5(c) FEIN; Organizational ID Number
Schedule 5.5(d) Commercial Tort Claims
Schedule 5.6(c) Capitalization of Parent's Subsidiaries
Schedule 5.8 Litigation
Schedule 5.12 Environmental Matters
Schedule 5.14 Intellectual Property
Schedule 5.16 Demand Deposit Accounts
Schedule 5.18 Permitted Indebtedness
Schedule 5.21 Material Contracts
Schedule 5.22 Customer Contract Cancellations
Schedule 5.23 Real Property
Schedule 5.24 Labor Matters
Schedule 5.25 Indebtedness and Liens of Certain Subsidiaries
Schedule 5.26 HPR UK Ltd. Business
Schedule 7.19(b)(v) Settlement Charges to Account Debtors
-v-
Schedule A-1
------------
Agent's Account
An account at a bank designated by Agent from time to time as the
account into which Borrowers shall make all payments to Agent for the benefit of
the Lender Group and into which the Lender Group shall make all payments to
Agent under this Agreement and the other Loan Documents; unless and until Agent
notifies Administrative Borrower and the Lender Group to the contrary, Agent's
Account shall be that certain deposit account bearing account number 323-266193
and maintained by Agent with JPMorgan Chase Bank, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇.
Schedule C-1
------------
Commitments
-------------------------------------------------
Lender Commitment
-------------------------------------------------
Foothill Capital Corporation $50,000,000
-------------------------------------------------
All Lenders $50,000,000
-------------------------------------------------
Schedule D-1
------------
Designated Account
Account number 134-718623 of Administrative Borrower maintained with
Administrative Borrower's Designated Account Bank, or such other deposit account
of Administrative Borrower (located within the United States) that has been
designed as such, in writing, by Administrative Borrower to Agent.
"Designated Account Bank" means The Chase Manhattan Bank, whose office
-----------------------
is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and whose ABA
number is ▇▇▇▇▇▇▇▇▇.