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EXHIBIT 4.1
CREDIT FACILITIES AGREEMENT
AMONG
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, N.A.,
AS A LENDER AND THE LETTER OF CREDIT ISSUER
AND
THE OTHER LENDERS
AS DEFINED HEREIN
AND
YOUNG INNOVATIONS, INC.
AS BORROWER
DATED AS OF MARCH 20, 2001
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TABLE OF CONTENTS
1. Effective Date..............................................................................................1
2. Definitions and Rules of Construction.......................................................................1
2.1. Listed Definitions.....................................................................................1
2.2. Other Definitions......................................................................................1
2.3. References to Covered Person...........................................................................1
2.4. References to Required Lenders.........................................................................1
2.5. Accounting Terms.......................................................................................1
2.6. Changes in Accounting Principles.......................................................................1
2.7. Meaning of Satisfactory................................................................................2
2.8. Computation of Time Periods............................................................................2
2.9. General................................................................................................2
3. Lenders' Commitments........................................................................................2
3.1. Revolving Loan Commitments.............................................................................2
3.1.1. Aggregate Amount; Reductions........................................................................2
3.1.2. Limitation on Revolving Loan Advances...............................................................3
3.1.3. Revolving Notes.....................................................................................3
3.2. Swingline Commitment...................................................................................3
3.2.1. Swingline Advances..................................................................................3
3.2.2. Limitations on Swingline Advances...................................................................4
3.2.3. Swingline Note......................................................................................4
3.2.4. Swingline Documents.................................................................................4
3.2.5. Swingline Loan......................................................................................4
3.3. Letter of Credit Commitment............................................................................4
4. Interest....................................................................................................5
4.1. Interest on Draws on Letters of Credit.................................................................5
4.2. Interest on the Swingline Loan.........................................................................5
4.3. Interest on Aggregate Revolving Loan...................................................................5
4.4. Adjusted Base Rate.....................................................................................5
4.5. Adjusted Eurodollar Rate...............................................................................5
4.6. Conversion of Loans....................................................................................5
4.7. Interest Periods for Eurodollar Loans..................................................................6
4.8. Time of Accrual........................................................................................6
4.9. Computation............................................................................................6
4.10. Rate After Maturity....................................................................................6
5. Fees........................................................................................................6
5.1. Revolving Loan Commitment Fee..........................................................................6
5.2. Standby Letter of Credit Fee...........................................................................7
5.3. Commercial Letter of Credit Fee........................................................................7
5.4. Letter of Credit Fronting Fee..........................................................................7
5.5. Other Letter of Credit Fees............................................................................7
5.6. Calculation of Fees....................................................................................7
6. Payments....................................................................................................7
6.1. Scheduled Payments on Aggregate Revolving Loan and Swingline Loan......................................7
6.1.1. Interest............................................................................................7
6.1.2. Principal; Maturity.................................................................................8
6.2. Prepayments............................................................................................8
6.2.1. Voluntary Prepayments...............................................................................8
6.2.2. Mandatory Prepayments When Over-Advances Exist......................................................8
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6.3. Reimbursement Obligations of Borrower..................................................................9
6.4. Manner of Payments and Timing of Application of Payments...............................................9
6.4.1. Payment Requirement.................................................................................9
6.4.2. Application of Payments and Proceeds................................................................9
6.4.3. Interest Calculation................................................................................9
6.5. Returned Instruments..................................................................................10
6.6. Compelled Return of Payments or Proceeds..............................................................10
6.7. Due Dates Not on Business Days........................................................................10
7. Procedure for Obtaining Advances and Letters of Credit.....................................................10
7.1. Initial Advances......................................................................................10
7.2. Subsequent Revolving Loan Advances....................................................................10
7.3. Swingline Advances....................................................................................10
7.4. Repayment of the Swingline Loan.......................................................................11
7.5. Administrative Agent's Right to Make Other Revolving Loan Advances -- Payment of Loan Obligations.....11
7.6. Letters of Credit.....................................................................................12
7.7. Fundings..............................................................................................12
7.7.1. Revolving Loan Advances............................................................................12
7.7.2. Draws on Letters of Credit.........................................................................12
7.7.3. All Fundings Ratable...............................................................................12
7.8. Administrative Agent's Availability Assumptions.......................................................13
7.9. Disbursement..........................................................................................13
7.10. Restrictions on Advances..............................................................................13
7.11. Restriction on Number of Eurodollar Loans.............................................................14
7.12. Each Advance Request and Letter of Credit Request a Certification.....................................14
7.13. Requirements for Every Advance Request................................................................14
7.14. Requirements for Every Letter of Credit Request.......................................................14
7.15. Exoneration of Administrative Agent and Lenders.......................................................14
8. Guaranties.................................................................................................15
9. Conditions of Lending......................................................................................15
9.1. Conditions to Initial Advance.........................................................................15
9.1.1. Listed Documents and Other Items...................................................................15
9.1.2. Financial Condition................................................................................15
9.1.3. No Default.........................................................................................15
9.1.4. Representations and Warranties.....................................................................15
9.1.5. No Material Adverse Change.........................................................................16
9.1.6. Pending Material Proceedings.......................................................................16
9.1.7. Payment of Fees....................................................................................16
9.1.8. Other Items........................................................................................16
9.2. Conditions to Subsequent Advances.....................................................................16
9.2.1. General Conditions.................................................................................16
9.2.2. Representations and Warranties.....................................................................16
9.2.3. Pending Material Proceedings.......................................................................16
9.2.4. No Default.........................................................................................16
10. Conditions to Issuance of Letters of Credit.............................................................16
10.1. Letter of Credit Application/Reimbursement Agreement..................................................16
10.2. No Prohibitions.......................................................................................17
10.3. Representations and Warranties........................................................................17
10.4. Pending Material Proceedings..........................................................................17
10.5. No Default............................................................................................17
10.6. Other Conditions......................................................................................17
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11. Representations and Warranties..........................................................................17
11.1. Organization and Existence............................................................................17
11.2. Authorization.........................................................................................17
11.3. Due Execution.........................................................................................18
11.4. Enforceability of Obligations.........................................................................18
11.5. Burdensome Obligations................................................................................18
11.6. Legal Restraints......................................................................................18
11.7. Labor Contracts and Disputes..........................................................................18
11.8. No Material Proceedings...............................................................................18
11.9. Material Licenses.....................................................................................18
11.10. Compliance with Material Laws......................................................................18
11.10.1. General Compliance with Environmental Laws......................................................18
11.10.2. Proceedings.....................................................................................19
11.10.3. Investigations Regarding Hazardous Materials....................................................19
11.10.4. Notices and Reports Regarding Hazardous Materials...............................................19
11.10.5. Hazardous Materials on Real Property............................................................19
11.11. Other Names........................................................................................19
11.12. Financial Statements...............................................................................19
11.13. No Change in Condition.............................................................................19
11.14. No Defaults........................................................................................20
11.15. Investments........................................................................................20
11.16. Indebtedness.......................................................................................20
11.17. Indirect Obligations...............................................................................20
11.18. Operating Leases...................................................................................20
11.19. Capital Leases.....................................................................................20
11.20. Tax Liabilities; Governmental Charges..............................................................20
11.21. Pension Benefit Plans..............................................................................20
11.21.1. Prohibited Transactions.........................................................................20
11.21.2. Claims..........................................................................................21
11.21.3. Reporting and Disclosure Requirements...........................................................21
11.21.4. Accumulated Funding Deficiency..................................................................21
11.21.5. Multi-employer Plan.............................................................................21
11.22. Welfare Benefit Plans..............................................................................21
11.23. Retiree Benefits...................................................................................21
11.24. Distributions......................................................................................21
11.25. State of Property..................................................................................21
11.26. Chief Place of Business; Locations of Records and Property; Places of Business.....................22
11.27. Subsidiaries and Affiliates........................................................................22
11.28. Margin Stock.......................................................................................22
11.29. Securities Matters.................................................................................22
11.30. Investment Company Act, Etc........................................................................22
11.31. No Material Misstatements or Omissions.............................................................22
11.32. Broker's Fees......................................................................................23
12. Modification and Survival of Representations............................................................23
13. Affirmative Covenants...................................................................................23
13.1. Use of Proceeds.......................................................................................23
13.2. Corporate Existence...................................................................................23
13.3. Maintenance of Property and Leases....................................................................23
13.4. Inventory.............................................................................................24
13.5. Insurance.............................................................................................24
13.6. Payment of Taxes and Other Obligations................................................................24
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13.7. Compliance With Laws..................................................................................24
13.7.1. Environmental Laws..............................................................................24
13.7.2. Plans...........................................................................................25
13.8. Discovery and Clean-Up of Hazardous Material..........................................................25
13.8.1. In General......................................................................................25
13.8.2. Asbestos Clean-Up...............................................................................25
13.9. Notice to Administrative Agent of Material Events.....................................................25
13.10. Borrowing Representatives..........................................................................27
13.11. Accounting System..................................................................................27
13.12. Tracing of Proceeds................................................................................27
13.13. Financial Statements...............................................................................28
13.13.1. Annual Financial Statements.....................................................................28
13.13.2. Quarterly Financial Statements..................................................................28
13.14. Other Financial Information........................................................................29
13.14.1. Other Reports or Information Concerning Accounts or Inventory...................................29
13.14.2. Stockholder and SEC Reports.....................................................................29
13.15. Other Information..................................................................................29
13.16. Audits by Administrative Agent.....................................................................29
13.17. Access to Officers and Auditors....................................................................29
13.18. Pro Formas for Permitted Acquisitions..............................................................30
13.19. Further Assurances.................................................................................30
14. Negative Covenants......................................................................................30
14.1. Investments...........................................................................................30
14.2. Indebtedness..........................................................................................31
14.3. Prepayments...........................................................................................31
14.4. Indirect Obligations..................................................................................32
14.5. Security Interests....................................................................................32
14.6. Acquisitions..........................................................................................32
14.6.1. Non-hostile Acquisitions; Similar Business Line.................................................33
14.6.2. Individual Acquisition Dollar Limitation........................................................33
14.6.3. Surviving Company Becomes a Guarantor...........................................................33
14.6.4. Due Diligence Materials; Pro Forma Financial Statements; Historical Financial
Statements; Agreements and Certificates....................................................................33
14.7. Distributions.........................................................................................34
14.8. Capital Structure; Equity Securities..................................................................34
14.9. Change of Business....................................................................................34
14.10. Transactions With Affiliates..........................................................................34
14.11. Disposal of Property..................................................................................35
14.12. Conflicting Agreements................................................................................35
14.13. Investment Banking and Finder's Fees..................................................................35
14.14. Sale and Leaseback Transactions.......................................................................35
14.15. New Subsidiaries......................................................................................35
14.16. Fiscal Year...........................................................................................35
14.17. Termination of Pension Benefit Plan...................................................................35
14.18. Transactions Having a Material Adverse Effect.........................................................35
15. Financial Covenants.....................................................................................36
15.1. Special Definitions...................................................................................36
15.2. Maximum Ratio of Total Funded Indebtedness to EBITDA..................................................36
15.3. Maximum Ratio of Total Funded Indebtedness to Total Capitalization....................................36
16. Default.................................................................................................36
16.1. Events of Default.....................................................................................36
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16.1.1. Failure to Pay Principal or Interest............................................................36
16.1.2. Failure to Pay or Other Amounts Owed to Lenders.................................................37
16.1.3. Failure to Pay Amounts Owed to Other Persons....................................................37
16.1.4. Representations or Warranties...................................................................37
16.1.5. Certain Covenants...............................................................................37
16.1.6. Other Covenants.................................................................................37
16.1.7. Acceleration of Other Indebtedness..............................................................37
16.1.8. Default Under Other Agreements..................................................................37
16.1.9. Bankruptcy; Insolvency; Etc.....................................................................37
16.1.10. Judgments; Attachment; Settlement; Etc..........................................................38
16.1.11. Pension Benefit Plan Termination, Etc...........................................................38
16.1.12. Liquidation or Dissolution......................................................................38
16.1.13. Seizure of Assets...............................................................................38
16.1.14. Loan Documents..................................................................................39
16.1.15. Guaranty; Guarantor.............................................................................39
16.1.16. Change of Control...............................................................................39
16.1.17. Delivery of Post-Closing Items..................................................................39
16.2. Cross Default.........................................................................................39
16.3. Rights and Remedies...................................................................................40
16.3.1. Termination of Commitments......................................................................40
16.3.2. Acceleration....................................................................................40
16.3.3. Right of Setoff.................................................................................40
16.3.4. Miscellaneous...................................................................................41
16.4. Application of Funds..................................................................................41
16.5. Notice................................................................................................41
17. Administrative Agent and Lenders........................................................................42
17.1. Appointment and Authorization of Administrative Agent.................................................42
17.2. Delegation of Duties..................................................................................42
17.3. Liability of Administrative Agent.....................................................................42
17.4. Reliance by Administrative Agent......................................................................43
17.5. Notice of Default.....................................................................................43
17.6. Credit Decision; Disclosure of Information by Administrative Agent....................................44
17.7. Indemnification of Administrative Agent...............................................................44
17.8. Administrative Agent in its Individual Capacity.......................................................44
17.9. Successor Administrative Agent........................................................................45
17.10. Collections and Distributions to Lenders by Administrative Agent......................................45
18. Change in Circumstances.................................................................................46
18.1. Compensation for Increased Costs and Reduced Returns..................................................46
18.1.1. Law Changes or Tax Impositions..................................................................46
18.1.2. Capital Adequacy................................................................................46
18.1.3. Notice to Borrower..............................................................................47
18.2. Market Failure........................................................................................47
18.3. Illegality............................................................................................47
18.4. Compensation..........................................................................................47
18.5. Treatment of Affected Loans...........................................................................48
18.6. Taxes.................................................................................................49
18.6.1. Gross-Up........................................................................................49
18.6.2. Lenders' Undertakings...........................................................................49
18.6.3. Survival of Borrower's Obligations..............................................................50
18.7. Usury.................................................................................................50
19. General.................................................................................................51
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19.1. Lenders' Right to Cure................................................................................51
19.2. Rights Not Exclusive..................................................................................51
19.3. Survival of Agreements................................................................................51
19.4. Assignments...........................................................................................51
19.4.1. Permitted Assignments...........................................................................51
19.4.2. Consequences and Effect of Assignments..........................................................52
19.4.3. Agreements Upon Assignment......................................................................52
19.4.4. Register........................................................................................52
19.4.5. Notice to Borrower of Assignment................................................................53
19.4.6. Assignment to Federal Reserve Bank..............................................................53
19.5. Sale of Participations................................................................................53
19.6. Information...........................................................................................54
19.7. Payment of Expenses...................................................................................54
19.8. General Indemnity.....................................................................................54
19.9. Letters of Credit.....................................................................................55
19.10. Loan Records..........................................................................................55
19.11. Other Security and Guaranties.........................................................................56
19.12. Loan Obligations Payable in Dollars...................................................................56
20. Miscellaneous...........................................................................................56
20.1. Notices...............................................................................................56
20.2. Amendments and Modifications; Waivers and Consents....................................................56
20.3. Rights Cumulative.....................................................................................57
20.4. Successors and Assigns................................................................................57
20.5. Severability..........................................................................................57
20.6. Counterparts..........................................................................................57
20.7. Governing Law; No Third Party Rights..................................................................57
20.8. Counterpart Facsimile Execution.......................................................................58
20.9. Reproductions as Evidence.............................................................................58
20.10. Negotiated Transaction................................................................................58
20.11. MANDATORY ARBITRATION.................................................................................58
20.11.1. SPECIAL RULES...................................................................................59
20.11.2. RESERVATION OF RIGHTS...........................................................................59
20.11.3. CONFIDENTIALITY.................................................................................59
20.12. CHOICE OF FORUM....................................................................................59
20.13. SERVICE OF PROCESS.................................................................................60
20.14. WAIVER OF JURY TRIAL...............................................................................60
20.15. Incorporation By Reference.........................................................................61
20.16. Statutory Notice - Oral Commitments................................................................61
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CREDIT FACILITIES AGREEMENT
In consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Young Innovations,
Inc., a Missouri corporation, (Borrower), Bank of America, N.A., a national
banking association (Bank of America), as Administrative Agent and Letter of
Credit Issuer, and Bank of America and the other lenders listed on Exhibit 3 to
this Agreement, as Lenders, agree as follows:
1. EFFECTIVE DATE. This Agreement is effective as of March 20, 2001.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.1. LISTED DEFINITIONS. Capitalized words defined in the Glossary
attached hereto as Exhibit 2.1 shall have such defined meanings
wherever used in this Agreement and the other Loan Documents. The
inclusion of a defined term in the Glossary that is not used elsewhere
in this Agreement or in the other Loan Documents shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
2.2. OTHER DEFINITIONS. If a capitalized word in this Agreement is not
defined in the Glossary, it shall have such meaning as defined
elsewhere herein, or if not defined elsewhere herein, the meaning
defined in the UCC.
2.3. REFERENCES TO COVERED PERSON. The words Covered Person, a Covered
Person, any Covered Person, each Covered Person and every Covered
Person refer to Borrower and each of its now existing or later
acquired, created or organized Subsidiaries, separately. The words
Covered Persons refers to Borrower and its now existing or later
acquired, created or organized Subsidiaries, collectively.
2.4. REFERENCES TO REQUIRED LENDERS. The words Required Lenders means
any one or more Lenders whose shares of Lenders' Exposure at the
relevant time aggregate at least 51%.
2.5. ACCOUNTING TERMS. Unless the context otherwise requires,
accounting terms herein that are not defined herein shall be
determined under GAAP. All financial measurements contemplated
hereunder respecting Borrower shall be made and calculated for
Borrower and all of its now existing or later acquired, created or
organized Subsidiaries, if any, on a consolidated basis in accordance
with GAAP unless expressly provided otherwise herein.
2.6. CHANGES IN ACCOUNTING PRINCIPLES. If any Covered Person, at the
end of its fiscal year and with the concurrence of its independent
certified public accountants, changes the method of valuing the
Inventory of such Covered Person, or if any other changes in
accounting principles from those used in the preparation of any of the
Financial Statements are required by or result from the promulgation
of principles, rules, regulations, guidelines, pronouncements or
opinions by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or
bodies with similar functions), and any of such changes result in a
change in the method of calculation of, or affect the results of such
calculation of, any of the financial covenants, standards or terms
found herein, then the parties hereto agree to enter into and
diligently pursue negotiations in order to amend such financial
covenants, standards or terms so as to equitably reflect such changes,
with the desired result that the criteria for
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evaluating the financial condition and results of operations of such
Covered Person shall be the same after such changes as if such changes
had not been made; provided, however, that until such changes are
made, all financial covenants herein and all the provisions hereof
which contemplate financial calculation hereunder shall remain in full
force and effect and compliance therewith shall be determined without
regard to such changes.
2.7. MEANING OF SATISFACTORY. Whenever herein a document or matter is
required to be satisfactory to Administrative Agent or satisfactory to
Lenders or satisfactory to Required Lenders, unless expressly stated
otherwise such document must be satisfactory to Administrative Agent,
Lenders or Required Lenders (as applicable) in both form and
substance, and unless expressly stated otherwise Administrative Agent,
Lenders or Required Lenders (as applicable) shall have the reasonable
discretion to determine whether the document or matter is
satisfactory.
2.8. COMPUTATION OF TIME PERIODS. In computing or defining periods of
time from a specified date to a later specified date, and in computing
the accrual of interest or fees, the word from shall mean from and
including and the words to and until shall each mean to but excluding.
Periods of days referred to in this Agreement shall be counted in
calendar days unless Business Days are expressly prescribed, and
references in this Agreement to months and years are to calendar
months and calendar years unless otherwise specified.
2.9. GENERAL. Unless the context of this Agreement clearly requires
otherwise: (i) references to the plural include the singular and vice
versa; (ii) references to any Person include such Person's successors
and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement; (iii) references to one gender
include all genders; (iv) including is not limiting; (v) or has the
inclusive meaning represented by the phrase and/or; (vi) the words
hereof, herein, hereby, hereunder and similar terms in this Agreement
refer to this Agreement as a whole, including its Exhibits, and not to
any particular provision of this Agreement; (vii) the word Section or
section and Page or page refer to a section or page, respectively, of,
and the word Exhibit refers to an Exhibit to, this Agreement unless it
expressly refers to something else; (viii) reference to any agreement,
document, or instrument (including this Agreement and any other Loan
Document or other agreement, document or instrument defined herein),
means such agreement, document, or instrument as amended, modified,
restated or replaced and in effect from time to time in accordance
with the terms thereof and, if applicable, the terms hereof, and
includes all attachments thereto and documents incorporated therein,
if any; and (ix) general and specific references to any Law means such
Law as amended, modified, codified or reenacted, in whole or in part,
and in effect from time to time. Section captions and the Table of
Contents are for convenience only and shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
3. LENDERS' COMMITMENTS. Subject to the terms and conditions hereof, and in
reliance upon the Representations and Warranties, Lenders make the following
commitments to Borrower:
3.1. REVOLVING LOAN COMMITMENTS.
3.1.1. AGGREGATE AMOUNT; REDUCTIONS. Subject to the limitations
in Section 3.1.2 and elsewhere herein, each Lender commits to
make available to Borrower, from the Effective Date to the
Revolving Loan Maturity Date, such Lender's pro-rata share (as
listed on Exhibit 3 hereto) of an Aggregate Revolving Loan
Commitment that is initially $20,000,000, but which may decrease
from time to time as provided herein, by funding such Lender's
pro-rata share of Revolving Loan Advances made from time to time
by Administrative Agent as provided herein. Subject to the
limitations in Section 3.1.2 and
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elsewhere herein, payments and prepayments that are applied to
reduce the Aggregate Revolving Loan may be re-borrowed through
Revolving Loan Advances. Borrower may also reduce the amount of
the Aggregate Revolving Loan Commitment in whole multiples of
$100,000, at any time and from time to time, but only if (i)
Borrower gives Administrative Agent written notice (which may be
mailed, personally delivered or telecopied as provided in Section
20.1) or telephonic notice (promptly confirmed in writing in the
manner provided in Section 20.1) of Borrower's intention to make
such reduction at least two Business Days prior to the effective
date of the reduction, and (ii) Borrower makes on the effective
date of the reduction any payment on the Aggregate Revolving Loan
required under Section 6.2.2 as a consequence of the reduction.
Any such reduction of the amount of the Aggregate Revolving Loan
Commitment shall be permanent. Each Lender's initial Revolving
Loan Commitment is its pro-rata share of the Aggregate Revolving
Loan Commitment. Upon any reduction of the Aggregate Revolving
Loan Commitment, each Lender's Revolving Loan Commitment will
automatically reduce by such Lender's pro-rata share of the
reduction of the Aggregate Revolving Loan Commitment.
3.1.2. LIMITATION ON REVOLVING LOAN ADVANCES. No Revolving Loan
Advance will be made which would result in the Aggregate
Revolving Loan exceeding the Maximum Available Amount and no
Revolving Loan Advance will be made on or after the Revolving
Loan Maturity Date. Lenders may, however, in their absolute
discretion make such Revolving Loan Advances, but shall not be
deemed by doing so to have increased the Maximum Available Amount
and shall not be obligated to make any such Revolving Loan
Advances thereafter. At any time that there is an Existing
Default, the Aggregate Revolving Loan Commitment may be canceled
as provided in Section 16.3. The Maximum Available Amount on any
date shall be a Dollar amount equal to (i) the amount of the
Aggregate Revolving Loan Commitment, minus (ii) (a) the Letter of
Credit Exposure on such date (except to the extent that such
Revolving Loan Advance will be used immediately to reimburse
Letter of Credit Issuer for unreimbursed draws on a Letter of
Credit) and (b) the Swingline Loan (except to the extent that
such Revolving Loan Advance will be used immediately to repay
Bank of America for a Swingline Loan).
3.1.3. REVOLVING NOTES. The obligation of Borrower to repay each
Lender's Revolving Loan shall be evidenced by a promissory note
payable to the order of such Lender in a maximum principal amount
equal to the amount of its Revolving Loan Commitment and
otherwise in the form attached hereto as Exhibit 3.1.3.
3.2. SWINGLINE COMMITMENT.
3.2.1. SWINGLINE ADVANCES. Subject to the limitations in Section
3.2.2 and elsewhere herein, Bank of America commits to make
available to Borrower, from the Effective Date to the Revolving
Loan Maturity Date, a Swingline Commitment that is initially
$3,000,000, but which may decrease from time to time as provided
herein, by funding Swingline Advances made from time to time by
Bank of America as provided herein. Subject to the limitations in
Section 3.2.2 and elsewhere herein, payments and prepayments that
are applied to reduce the Swingline Loan may be re-borrowed
through Swingline Advances. The Swingline Commitment shall
terminate automatically if the Required Lenders terminate the
Aggregate Revolving Loan Commitment; Bank of America, in its sole
discretion, may terminate the foregoing Swingline Commitment at
any time from and after the occurrence of an Event of Default
that has not been waived in writing.
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3.2.2. LIMITATIONS ON SWINGLINE ADVANCES. No Swingline Advance
will be made on or after the Revolving Loan Maturity Date, and no
Swingline Advance will be made which would result in the
Swingline Loan exceeding the Swingline Maximum Available Amount.
The Swingline Maximum Available Amount on any date shall be a
Dollar amount equal to the lesser of (i) $3,000,000, or (ii) an
amount equal to the Aggregate Revolving Loan Commitment minus the
sum of the Aggregate Revolving Loan and the Letter of Credit
Exposure immediately prior to the making of such Swingline
Advance.
3.2.3. SWINGLINE NOTE. The obligation of Borrower to repay the
Swingline Loan shall be evidenced by a promissory note payable to
the order of Bank of America in a maximum principal amount equal
to the Swingline Commitment and otherwise in a form satisfactory
to Bank of America.
3.2.4. SWINGLINE DOCUMENTS. To the extent that any of the terms
or provisions of the Swingline Documents are in conflict with the
terms of this Agreement or the other Loan Documents (other than
the Swingline Documents), the terms and provisions of this
Agreement and the other Loan Documents (other than the Swingline
Documents) shall govern and control in all respects.
3.2.5. SWINGLINE LOAN. Bank of America shall be permitted to take
all actions, or omit to take any actions, with respect to the
Swingline Loan, including, without limitation, acceleration of
the Swingline Loan, the termination of the Swingline Commitment,
or imposition of the Default Rate with respect to the Swingline
Loan in accordance with the terms hereof, the Swingline Documents
and applicable Law, in each case, without the consent of, or
notice to, Administrative Agent or any other Lender,
notwithstanding anything contained herein to the contrary;
provided, however, that Bank of America may not increase the
Swingline Commitment or impose the Default Rate on the Swingline
Loan without the prior consent of the Required Lenders. The
amount of the Swingline Commitment may be changed at the sole
discretion of Bank of America (or its assignee) without the
consent of the other Lenders or Administrative Agent. Bank of
America will use its reasonable efforts to give notice to the
other Lenders and the Administrative Agent of any change in the
amount of the Swingline Commitment, termination of the Swingline
Commitment or acceleration of the Swingline Loan, but the failure
to give any such notice, unless intentional, shall not result in
any liability to Bank of America.
3.3. LETTER OF CREDIT COMMITMENT. Bank of America commits to issue
standby letters of credit and commercial (documentary) letters of
credit for the account of Borrower from time to time from the
Effective Date to the Revolving Loan Maturity Date, but only if the
Letter of Credit Exposure will not as a result of such issuance exceed
the lesser of (i) $2,000,000 and (ii) any excess of the Maximum
Available Amount over the sum of the Aggregate Revolving Loan. The
expiration date of any Letter of Credit will be a Business Day that is
not more than one year after its issuance date and is not later than
the Revolving Loan Maturity Date. Immediately upon the issuance by
Letter of Credit Issuer of a Letter of Credit in accordance with the
terms and conditions of this Agreement, Letter of Credit Issuer shall
be deemed to have sold and transferred to each other Lender, and such
other Lender shall be deemed to have purchased and received from
Letter of Credit Issuer, a pro-rata undivided interest and
participation in such Letter of Credit, the reimbursement obligation
of Borrower with respect thereto, and any guaranty thereof or
collateral therefor. Such other Lender's pro-rata undivided interest
shall be the same as its pro-rata share of the Aggregate Revolving
Loan Commitment.
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4. INTEREST.
4.1. INTEREST ON DRAWS ON LETTERS OF CREDIT. The unreimbursed amount
of each draw on a Letter of Credit shall bear interest at a rate per
annum equal to the Adjusted Base Rate.
4.2. INTEREST ON THE SWINGLINE LOAN. The entire Swingline Loan shall
be a Base Rate Loan and shall bear interest at the Adjusted Base Rate.
4.3. INTEREST ON AGGREGATE REVOLVING LOAN. Except with respect to
Swingline Advances, Borrower may, as provided in Section 7, designate
the whole of an Advance or any part of an Advance to be either a Base
Rate Advance or a Eurodollar Advance; provided, however, during the
existence of an Existing Default, Borrower may not designate an
Advance or part of an Advance as a Eurodollar Advance. Each Base Rate
Advance when made will become a Base Rate Loan, which shall bear
interest at the Adjusted Base Rate. Each Eurodollar Advance when made
will become a Eurodollar Loan, which shall bear interest at the
Adjusted Eurodollar Rate. Borrower may also, as provided herein,
convert some or all of a Base Rate Loan into a Eurodollar Loan and
some or all of a Eurodollar Loan into a Base Rate Loan. For each
Eurodollar Loan, Borrower shall select an Interest Period as provided
in Section 4.7. A Eurodollar Loan shall bear interest at the Adjusted
Eurodollar Rate throughout the applicable Interest Period designated
by Borrower.
4.4. ADJUSTED BASE RATE. The Adjusted Base Rate for any Base Rate Loan
shall be the Base Rate plus the Base Rate Increment. The Base Rate
Increment is zero percent (0%).
4.5. ADJUSTED EURODOLLAR RATE. The Adjusted Eurodollar Rate for any
Eurodollar Loan shall be the Eurodollar Rate plus the Eurodollar
Increment. The Eurodollar Increment is one percent (1.00%).
4.6. CONVERSION OF LOANS. Borrower may (i) as of any Business Day
convert some or all of a Base Rate Loan (other than the Swingline
Loan) to a Eurodollar Loan, or (ii) at the end of any Interest Period
of a Eurodollar Loan, continue the Loan as a Eurodollar Loan for an
additional Interest Period or convert some or all of such Eurodollar
Loan to a Base Rate Loan; provided however, that if there is an
Existing Default, Borrower may not convert a Base Rate Loan to a
Eurodollar Loan or continue a Eurodollar Loan for an additional
Interest Period. The Swingline Loan may not be converted from a Base
Rate Loan to a Eurodollar Loan. To cause any conversion or
continuation, Borrower shall give Administrative Agent, prior to 11:00
a.m. (Local Time) three Business Days prior to the date the conversion
or continuation is to be effective in the case of a Eurodollar Loan or
on the same Business Day the conversion or continuation is to be
effective with respect to the conversion of a Eurodollar Loan into a
Base Rate Loan or continuation of a Base Rate Loan, a written request
(which may be mailed, personally delivered or telecopied as provided
in Section 20.1) or telephonic request (promptly confirmed in writing
in the manner provided in Section 20.1) (i) specifying whether a
conversion or continuation is requested, (ii) in the case of a
conversion, specifying the amount to be converted and whether it is to
be a Eurodollar Loan or a Base Rate Loan upon the conversion, and
(iii) in the case of any conversion to or continuation of a Eurodollar
Loan, specifying the Interest Period therefor. If such notice is not
given prior to 11:00 a.m. (Local Time) on the third Business Day
preceding the last day of the Interest Period of a Eurodollar Loan,
then Borrower shall be deemed to have timely given a notice to
Administrative Agent requesting to convert all of such Eurodollar Loan
to a Base Rate Loan. In the case of a Eurodollar Loan, any conversion
or continuation shall become effective on the day following the last
day of the current Interest Period.
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4.7. INTEREST PERIODS FOR EURODOLLAR LOANS. For each Eurodollar Loan
Borrower shall select an Interest Period that is either one, two,
three or six months; provided that:
(i) every such Interest Period shall commence on the date of such
Advance or on the date of the conversion or continuation of any
Loan as a Eurodollar Loan;
(ii) if any Interest Period would otherwise expire on a day of a
calendar month which is not a Business Day, then such Interest
Period shall expire on the next succeeding Business Day in that
calendar month; provided, however, that if the next succeeding
Business Day would be in the following calendar month, it shall
expire on the first preceding Business Day;
(iii) any 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) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iv) no Interest Period shall extend beyond the Revolving Loan
Maturity Date.
4.8. TIME OF ACCRUAL. Interest shall accrue on all principal amounts
outstanding from the date when first outstanding to the date when no
longer outstanding. Amounts shall be deemed outstanding until payments
are applied thereto as provided herein.
4.9. COMPUTATION. Interest shall be computed for the actual days
elapsed over a year deemed to consist of 360 days for all Eurodollar
Loans and 365 or 366 days, as applicable, for all Base Rate Loans.
Interest rates that are based on the Base Rate shall change
simultaneously with any change in the Base Rate and shall be effective
for the entire day on which such change becomes effective. The Base
Rate will be determined by Administrative Agent before the initial
Advance on the Effective Date and on each Business Day thereafter when
the Base Rate changes.
4.10. RATE AFTER MATURITY. Borrower shall pay interest on the
Aggregate Revolving Loan, the Swingline Loan and on the other Loan
Obligations after their Maturity, and, at the option of Required
Lenders, on the Aggregate Revolving Loan, the Swingline Loan and on
the principal amount of the other Loan Obligations and (to the extent
permitted by law) accrued and unpaid interest, after the occurrence of
an Event of Default (and notice from Administrative Agent that the
Default Rate is in effect) until it has been cured by Borrower or
waived in writing as permitted herein, at a rate per annum equal to
2.00% plus the interest rate otherwise in effect hereunder.
5. FEES.
5.1. REVOLVING LOAN COMMITMENT FEE. Borrower shall pay to
Administrative Agent for the account of Lenders a non-refundable,
recurring Revolving Loan Commitment Fee calculated by applying the
daily equivalent of an annual rate of 0.15% to the Unused Revolving
Loan Commitment on each day during the period from the Effective Date
to the Revolving Loan Maturity Date. The Unused Revolving Loan
Commitment on any day shall be the difference between (i) the amount
of the Aggregate Revolving Loan Commitment and (ii) the sum of (a) the
Aggregate Revolving Loan, and (b) the Letter of Credit Exposure. The
Revolving Loan Commitment Fee shall be payable quarterly in arrears
commencing on the first day of the first calendar quarter beginning
after the Effective Date and continuing on the first day of each
quarter thereafter and on the Revolving Loan Maturity Date.
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5.2. STANDBY LETTER OF CREDIT FEE. Borrower shall pay to
Administrative Agent for the account of Letter of Credit Issuer and
each other Lender, a non-refundable recurring Standby Letter of Credit
Fee for each standby Letter of Credit issued by Letter of Credit
Issuer. The Standby Letter of Credit Fee for any standby Letter of
Credit shall be an amount equal to the greater of (i) $300 and (ii) an
annual amount determined by applying the quarterly equivalent of the
Eurodollar Increment to the aggregate undrawn amount of such standby
Letter of Credit. The Standby Letter of Credit Fee for each standby
Letter of Credit shall be payable quarterly in arrears, commencing on
the first day of the first calendar quarter beginning after the
Effective Date and continuing on the first day of each calendar
quarter thereafter until the earlier of its expiration or the
Revolving Loan Maturity Date. The Standby Letter of Credit Fee will be
distributed by Administrative Agent to Lenders with Revolving Loan
Commitments in accordance with their pro rata shares of the Aggregate
Revolving Loan Commitment.
5.3. COMMERCIAL LETTER OF CREDIT FEE. Borrower shall pay to
Administrative Agent for the account of Letter of Credit Issuer and
each other Lender a non-refundable, recurring Commercial Letter of
Credit Fee for each Commercial Letter of Credit issued by Letter of
Credit Issuer that is equal to .25% of the original face amount of
such commercial Letter of Credit. Such Commercial Letter of Credit Fee
shall be payable in installments, in arrears, as follows: Upon
presentation of each draft with respect to such commercial Letter of
Credit, a portion of such Commercial Letter of Credit Fee equal to
.25% of the draft amount, but not less than $75, shall be due and
payable. Further, 30 days after the expiration of such commercial
Letter of Credit, a portion of such Commercial Letter of Credit Fee
equal to .25% of the undrawn amount of such Commercial Letter of
Credit, but not less than $75, shall be due and payable. Seventy-Five
Dollars ($75) of each installment of such Commercial Letter of Credit
Fee received by Administrative Agent will be paid to Letter of Credit
Issuer in consideration of Letter of Credit Issuer issuing and
managing such commercial Letter of Credit. The remainder of such
Commercial Letter of Credit Fee will be distributed by Administrative
Agent to Lenders in accordance with their pro rata shares of the
Aggregate Revolving Loan Commitment.
5.4. LETTER OF CREDIT FRONTING FEE. Borrower shall pay to Letter of
Credit Issuer a non-refundable, one-time Fronting Fee equal to the
greater of (i) $75, plus .125% of the undrawn amount of each Letter of
Credit issued by Letter of Credit Issuer, and (ii) $300, as of its
issuance date.
5.5. OTHER LETTER OF CREDIT FEES. Borrower shall pay to Letter of
Credit Issuer such Letter of Credit Issuer's other customary fees for
issuance, amendment or renewal of a Letter of Credit and, as Letter of
Credit Issuer and Borrower may agree with respect to each Letter of
Credit, for each negotiation of a draft drawn under such Letter of
Credit.
5.6. CALCULATION OF FEES. All of the foregoing fees and all other fees
payable to Administrative Agent or any Lender that are based on an
annual percentage shall be calculated on the basis of a year deemed to
consist of 360 days and for the actual number of days elapsed.
6. PAYMENTS.
6.1. SCHEDULED PAYMENTS ON AGGREGATE REVOLVING LOAN AND SWINGLINE
LOAN.
6.1.1. INTEREST. Borrower shall pay interest accrued on each Base
Rate Loan included in the Aggregate Revolving Loan and on the
Swingline Loan quarterly in arrears beginning on the first day of
the first calendar quarter beginning after the Effective Date
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and continuing on the first day of each calendar quarter
thereafter, and on the Revolving Loan Maturity Date. Borrower
shall pay interest accrued on each Eurodollar Loan included in
the Aggregate Revolving Loan at the end of its Interest Period
and, in addition, for each such Eurodollar Loan with an Interest
Period longer than 90 days, Borrower shall pay interest accrued
thereon quarterly on the first day of each calendar quarter
during such Interest Period. Borrower shall pay interest accrued
on each Revolving Loan and the Swingline Loan after the Revolving
Loan Maturity Date on demand.
6.1.2. PRINCIPAL; MATURITY. Borrower shall repay the entire
amount of the Aggregate Revolving Loan as then outstanding on
April 30, 2002, and Borrower shall repay the entire amount of the
Swingline Loan on the same Business Day as demand therefore, or
if no demand is made, on April 30, 2002; provided, however, that
if demand for payment of the Swingline Loan is made after 11:00
(Local Time) on any day (except for demand made under Section
16.3.2 or as a result of Bank of America's termination of the
Swingline Commitment), payment shall be made thereon by Borrower
on the following Business Day.
6.2. PREPAYMENTS.
6.2.1. VOLUNTARY PREPAYMENTS. Subject to the limitations in the
following sentences, Borrower may at any time wholly prepay the
Swingline Loan and any Base Rate Loan or Eurodollar Loan that is
included in the Aggregate Revolving Loan and may make partial
prepayments thereon from time to time, without penalty or premium
(except as provided in clause (iv) below), but only if (i)
Borrower gives Administrative Agent written notice (which may be
mailed, personally delivered or telecopied as provided in Section
20.1) or telephonic notice (promptly confirmed in writing in the
manner provided in Section 20.1) of Borrower's intention to make
such prepayment at least two Business Days prior to tendering
such prepayment in the case of a Eurodollar Loan and on the same
Business Day of the tender of such prepayment in the case of a
Base Rate Loan, (ii) the amount of such prepayment is at least
$100,000, and over that amount, is a whole multiple of $50,000,
(iii) Borrower pays any accrued interest on the amount prepaid at
the time of such prepayment, in the case of a Eurodollar Loan,
and (iv) Borrower pays any amount that is due under Section 18.4
as a consequence of the prepayment. All such prepayments (other
than prepayments on the Swingline Loan) shall be applied by
Lenders to reduce the Revolving Loans in accordance with their
respective pro-rata shares of the Aggregate Revolving Loan
Commitment. All prepayments on the Swingline Loan shall be
applied by Bank of America to reduce the Swingline Loan.
6.2.2. MANDATORY PREPAYMENTS WHEN OVER-ADVANCES EXIST.
6.2.2.1. AGGREGATE REVOLVING LOAN. If at any time the sum of
the Aggregate Revolving Loan exceeds the Maximum Available
Amount, whether as a result of optional Revolving Loan
Advances by Lenders as contemplated by Section 3.1.2,
Swingline Advances or otherwise, Borrower shall on demand
make a payment in the amount of the excess to Administrative
Agent for the account of Lenders on the Aggregate Revolving
Loan. Each such prepayment will be applied by Administrative
Agent and Lenders first to reduce the Base Rate Loans that
are included in the Aggregate Revolving Loan (and
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consequently a ratable portion of each Lender's Revolving
Loan) until they are reduced to zero and then to reduce the
Eurodollar Loans that are included in the Aggregate
Revolving Loan (and consequently a ratable portion of each
Lender's Revolving Loan). Borrower shall pay any amount that
is due under Section 18.4 as a consequence of such mandatory
prepayment.
6.2.2.2. SWINGLINE LOAN. If at any time the Swingline Loan
exceeds the Swingline Maximum Available Amount, Borrower
shall on demand make a payment in the amount of the excess
to Bank of America. Anything to the contrary in Section 7.4
notwithstanding, no Lender shall at any time have any
obligation to remit funds to Bank of America to pay the
amount of any excess of the Swingline Loan over the
Swingline Maximum Available Amount.
6.3. REIMBURSEMENT OBLIGATIONS OF BORROWER. Borrower hereby
unconditionally agrees to immediately pay to Letter of Credit Issuer
on demand at the Letter of Credit Issuer's Applicable Lending Office
all amounts required to pay all drafts drawn under Letters of Credit
issued for the account of Borrower and all reasonable expenses
incurred by Letter of Credit Issuer in connection with such Letters of
Credit and in any event and without demand to remit to Letter of
Credit Issuer (which may be through obtaining Advances if permitted
under Section 3.1.2) sufficient funds to pay all debts and liabilities
arising under any Letter of Credit issued for the account of Borrower;
provided, however, that if demand for payment of any draft drawn under
any Letter of Credit is made after 11:00 (Local Time) on any day
(except for demand made under Section 16.3.2), payment thereof shall
be made by Borrower on the following Business Day.
6.4. MANNER OF PAYMENTS AND TIMING OF APPLICATION OF PAYMENTS.
6.4.1. PAYMENT REQUIREMENT. Unless expressly provided to the
contrary elsewhere herein, Borrower shall make each payment on
the Loan Obligations to Administrative Agent for the account of
Lenders as required under the Loan Documents at Administrative
Agent's Applicable Lending Office on the date when due, without
deduction, setoff or counterclaim. All such payments will be
distributed by Administrative Agent to Lenders as provided in
Section 17.10 for application to the Loan Obligations as provided
herein.
6.4.2. APPLICATION OF PAYMENTS AND PROCEEDS. All payments
received by Administrative Agent in immediately available funds
at or before 12:00 noon (Local Time) on a Business Day will be
distributed by Administrative Agent to Lenders as provided in
Section 17.10 on the same Business Day. Such payments received on
a day that is not a Business Day or after 12:00 noon (Local Time)
on a Business Day will be distributed by Administrative Agent to
Lenders as provided in Section 17.10 on the next Business Day.
The amount so distributed to a Lender will be applied by such
Lender to the relevant Loan Obligation on the Business Day when
received.
6.4.3. INTEREST CALCULATION. Section 6.4.2 notwithstanding, for
purposes of interest calculation only, (i) a payment by check,
draft or other instrument received at or before 12:00 noon (Local
Time) on a Business Day shall be deemed to have been applied to
the relevant Loan Obligation on the second following Business
Day, (ii) a payment by check, draft or other instrument received
on a day that is not a Business Day or after 12:00 noon on a
Business Day shall be deemed to have been applied to the relevant
Loan Obligation on the third following Business Day, (iii) a
payment in cash (including by way of debit to an account of
Borrower with Administrative Agent) or by wire transfer received
at or before 12:00 noon (Local Time) on a Business Day shall be
deemed to have been applied to the relevant Loan Obligation on
the Business Day when it is received, and (iv) a
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payment in cash (including by way of debit to an account of
Borrower with Administrative Agent) or by wire transfer received
on a day that is not a Business Day or after 12:00 noon (Local
Time) on a Business Day shall be deemed to have been applied to
the relevant Loan Obligation on the next Business Day.
6.5. RETURNED INSTRUMENTS. If a payment is made by check, draft or
other instrument and the check, draft or other instrument is returned
unpaid, any application of the payment to the Loan Obligations will be
reversed and will be treated as never having been made.
6.6. COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If Administrative Agent
or any Lender is for any reason compelled to surrender any payment
because such payment is for any reason invalidated, declared
fraudulent, set aside, or determined to be void or voidable as a
preference, an impermissible setoff, or a diversion of trust funds,
then this Agreement and the Loan Obligations to which such payment or
proceeds was applied or intended to be applied shall be revived as if
such application was never made; and Borrower shall be liable to pay
to Administrative Agent or such Lender, and shall indemnify
Administrative Agent or such Lender for and hold Administrative Agent
or such Lender harmless from any actual loss with respect to, the
amount of such payment or proceeds surrendered. This Section shall be
effective notwithstanding any contrary action that Administrative
Agent or such Lender may take in reliance upon its receipt of any such
payment or proceeds. Any such contrary action so taken by
Administrative Agent or such Lender shall be without prejudice to
Administrative Agent's or such Lender's rights under this Agreement
and shall be deemed to have been conditioned upon the application of
such payment or proceeds having become final and indefeasible. The
provisions of this Section shall survive termination of the
Commitments, the expiration of the Letters of Credit and the payment
and satisfaction of all of the Loan Obligations.
6.7. DUE DATES NOT ON BUSINESS DAYS. If any payment required hereunder
becomes due on a date that is not a Business Day, then such due date
shall be deemed automatically extended to the next Business Day.
7. PROCEDURE FOR OBTAINING ADVANCES AND LETTERS OF CREDIT.
7.1. INITIAL ADVANCES. Provided that all conditions thereto hereunder
are satisfied and subject to the limitations contained herein, Lenders
will fund and Administrative Agent will make the initial Revolving
Loan Advance on the Effective Date in immediately available funds in
Dollars as directed by Borrower in a written direction delivered to
Administrative Agent.
7.2. SUBSEQUENT REVOLVING LOAN ADVANCES. Borrower may request a
subsequent Revolving Loan Advance at any time, but not more often than
once each Business Day, by submitting a request therefor to
Administrative Agent as provided in Section 7.13. Every request for an
Revolving Loan Advance shall be irrevocable. A request for a Revolving
Loan Advance received by Administrative Agent on a day that is not a
Business Day or that is received by Administrative Agent after 11:00
a.m. (Local Time) on a Business Day shall be treated as having been
received by Administrative Agent prior to 11:00 a.m. (Local Time) on
the next Business Day.
7.3. SWINGLINE ADVANCES. Swingline Advances will be made to Borrower
in accordance with the terms of the Swingline Documents and Bank of
America's standard procedures for autoborrow arrangements (to the
extent such procedures do not conflict with the terms of this
Agreement and the Swingline Documents), as such documents and
procedures may change from time to time in accordance with the terms
of this Agreement and the Swingline Documents.
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7.4. REPAYMENT OF THE SWINGLINE LOAN.
7.4.1. Bank of America shall once each week (or after an Event of
Default, if Bank of America in its sole discretion has not
terminated the Swingline Commitment, as often as Bank of America
may in its absolute discretion determine) give notice to Lenders
of the amount of the Swingline Loan after application of all
payments to be applied thereto as provided elsewhere herein. Such
notice shall be given no later than 1:00 p.m. (Local Time) on any
Business Day and shall include a demand that the Swingline Loan
be fully paid. Prior to 3:00 p.m. (Local Time) on such date,
Lenders shall remit funds to Bank of America sufficient to reduce
the Swingline Loan to zero; provided, however, that no Lender
will be required to remit funds to the extent such remittance
would cause such Lender's Revolving Loan to exceed such Lender's
pro rata share of the Maximum Available Amount, and in such
event, such Lender shall remit only so much of the requested
funds as would cause such Lender's Revolving Loan to equal such
Lender's pro rata share of the Maximum Available Amount. The
aggregate of such remittances shall be treated as a Revolving
Loan Advance and the Aggregate Revolving Loan increased
accordingly; each such Revolving Advance shall be deemed to be a
Base Rate Advance. Each such remittance by a Lender shall be made
in accordance with its pro-rata share of the Aggregate Revolving
Loan Commitment and shall be made notwithstanding that (i) the
amount of the aggregate of such remittances by Lenders may not be
in the minimum amount for Revolving Loan Advances otherwise
required hereunder, (ii) any conditions to Advances in Section 9
may not be then satisfied, (iii) there is an Existing Default, or
(iv) such remittances by Lenders may be made after the Revolving
Loan Maturity Date. Notwithstanding the foregoing, if the
Swingline Loan is repaid by Lenders upon the demand or request of
Bank of America, and the Borrower is thereby deemed to have
received the proceeds of a Revolving Loan Advance, for the date
such Revolving Loan Advance is deemed to have been made, Borrower
shall only pay interest on the amount of the Revolving Loan
Advance (and not on the amount of the Swingline Loan so repaid,
irrespective of the time of day Bank of America makes demand for
such payment).
7.4.2. If for any reason, including the commencement of a
proceeding in bankruptcy with respect to Borrower, remittances by
Lenders as provided above cannot be made on the date otherwise
required above, then each Lender shall be deemed automatically to
have purchased from Bank of America as of such date a pro-rata
undivided interest and participation in the Swingline Loan so as
to cause such Lender to share in the Swingline Loan in accordance
with its pro-rata share of the Aggregate Revolving Loan
Commitment. Each Lender shall remit its pro-rata share of the
Swingline Loan to Bank of America promptly on demand. All
interest payable with respect to such Lender's pro-rata share of
the Swingline Loan shall be for the account of Bank of America to
the date such remittance is made, and shall be for the account of
and remitted by Bank of America to such Lender as a participant
from such date. Further, until such remittance is made, such
Lender shall pay to Bank of America, on demand, interest on such
Lender's pro-rata share of the Swingline Loan at the Federal
Funds Rate.
7.5. ADMINISTRATIVE AGENT'S RIGHT TO MAKE OTHER REVOLVING LOAN
ADVANCES -- PAYMENT OF LOAN OBLIGATIONS. With the prior approval of
Required Lenders in each instance, Administrative Agent shall have the
right to make Revolving Loan Advances at any time and from time to
time to cause timely payment when due of any of the Loan Obligations;
provided, however, that no Lender will be required to remit funds in
an amount which would cause such Lender's Revolving Loan to exceed
such Lender's pro rata share of the Maximum Available Amount.
Administrative
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Agent may select the Advance Date for any such Revolving Loan Advance,
but such Advance Date may only be a Business Day. Administrative Agent
will give notice to Borrower after any such Revolving Loan Advance is
made. Any such Revolving Loan Advance will initially be a Base Rate
Advance.
7.6. LETTERS OF CREDIT. Borrower may request the issuance of a Letter
of Credit by submitting an issuance request to Letter of Credit Issuer
and executing the application/reimbursement agreement required under
Section 10.1 no less than five Business Days prior to the requested
issue date for such Letter of Credit.
7.7. FUNDINGS.
7.7.1. REVOLVING LOAN ADVANCES. Administrative Agent shall
promptly notify each Lender of the amount of the Advance to be
made on an Advance Date. Each Lender shall make immediately
available to Administrative Agent by 3:00 p.m. (Local Time) on
the Advance Date funds consisting solely of Dollars in the amount
of its pro-rata share of such Advance, rounded to the nearest
▇▇▇▇▇, in accordance with such remittance instructions as may be
given by Administrative Agent to Lenders from time to time.
7.7.2. DRAWS ON LETTERS OF CREDIT. In the event that a draw is
made on a Letter of Credit and Borrower does not reimburse the
amount of such draw in full to Letter of Credit Issuer
immediately on demand, Letter of Credit Issuer shall promptly
notify Administrative Agent of such failure. Upon Administrative
Agent's receipt of such notice from Letter of Credit Issuer,
Administrative Agent may notify each Lender thereof and shall
have the right to cause a Revolving Loan Advance to be made,
regardless whether such Revolving Loan Advance would result in
the Aggregate Revolving Loan exceeding the Maximum Available
Amount, by notifying each Lender of the draw, the amount of the
Revolving Loan Advance required to fund reimbursement of such
draw, and the amount of such Lender's ratable share of such
Revolving Loan Advance. Unless otherwise agreed by Lenders, the
Advance Date and time for such Revolving Loan Advance shall not
be later than 1:00 p.m. (Local Time) on the first Business Day
following Administrative Agent's delivery of such notice to
Lenders. By no later than such Advance Date and time, each Lender
shall make immediately available to Administrative Agent funds
consisting solely of Dollars in the amount of its pro-rata share
of such Revolving Loan Advance, rounded to the nearest ▇▇▇▇▇, in
accordance with such remittance instructions as may be given by
Administrative Agent to each Lender from time to time. Each
Revolving Loan Advance made by Administrative Agent pursuant to
this Section 7.7.2 shall initially be a Base Rate Advance.
Administrative Agent will give notice to Borrower after any such
Revolving Loan Advance is made. Notwithstanding the foregoing, if
any unreimbursed draw on a Letter of Credit is repaid by Lenders
upon the demand or request of Bank of America, and the Borrower
is thereby deemed to have received the proceeds of a Revolving
Loan Advance, for the date such Revolving Loan Advance is deemed
to have been made, Borrower shall only pay interest on the amount
of the Revolving Loan Advance (and not on the amount of the
unreimbursed Letter of Credit draw so repaid, irrespective of the
time of day Bank of America makes demand for such payment).
7.7.3. ALL FUNDINGS RATABLE. All fundings of Advances (other than
Swingline Advances) shall be made by Lenders as provided herein
in accordance with their pro-rata shares of the Aggregate
Revolving Loan Commitment. Except as otherwise expressly provided
herein, a Lender shall not be obligated to fund Revolving Loan
Advances that
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would result in the sum of (a) such Lender's Revolving Loan, plus
(b) such Lender's pro-rata share of the Letter of Credit Exposure
exceeding its Revolving Loan Commitment, or make available any
more than its pro-rata share of any Advance.
7.8. ADMINISTRATIVE AGENT'S AVAILABILITY ASSUMPTIONS.
7.8.1. Unless Administrative Agent has been given written notice
by a Lender prior to an Advance Date that such Lender does not
intend to make immediately available to Administrative Agent such
Lender's pro-rata share of the Advance which Administrative Agent
will be obligated to make on the Advance Date, Administrative
Agent may assume that such Lender has made the required amount
available to Administrative Agent on the Advance Date and
Administrative Agent may, in reliance upon such assumption, make
available to Borrower a corresponding amount. If such required
amount is not in fact made immediately available to
Administrative Agent by such Lender on the Advance Date,
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount immediately upon
Administrative Agent's demand therefor, then Administrative Agent
shall promptly notify Borrower and the other Lenders and Borrower
shall immediately pay such corresponding amount to Administrative
Agent. Administrative Agent shall also be entitled to recover,
either from such defaulting Lender or Borrower, interest on such
corresponding amount for each day from the date such
corresponding amount was made available by Administrative Agent
to Borrower to the date such corresponding amount is recovered by
Administrative Agent, at a rate per annum equal to (i) if paid by
such Lender, the cost to Administrative Agent of funding such
amount at the Federal Funds Rate, or (ii) if paid by Borrower,
the applicable rate for the Advance in question determined from
the request therefor (without duplication of any interest
accruing thereon under any other provision of this Agreement).
Each Lender shall be obligated only to fund its pro-rata share of
an Advance subject to the terms and conditions hereof, regardless
of the failure of another Lender to fund its pro-rata share
thereof.
7.8.2. Unless Administrative Agent has been given written notice
by Borrower prior to the date any payment to be made by it is
due, that it does not intend to remit such payment,
Administrative Agent may assume that the Borrower has timely
remitted such payment and Administrative Agent may, in reliance
upon such assumption, make available a corresponding amount or
pro-rata portion thereof to the Persons entitled thereto. If such
payment was not in fact remitted to the Administrative Agent in
immediately available funds, then, each Lender shall immediately
on demand repay to Administrative Agent the corresponding amount
or pro-rata portion thereof made available to such Lender,
together with interest thereon in respect of each day from the
date such amount was made available by Administrative Agent to
such Lender to the date such amount is repaid to Administrative
Agent, at the Federal Funds Rate.
7.9. DISBURSEMENT. Provided that all conditions precedent herein to a
requested Advance have been satisfied, Administrative Agent will make
the amount of such requested Advance available to Borrower on the
applicable Advance Date in immediately available funds in Dollars at
Administrative Agent's Applicable Lending Office.
7.10. RESTRICTIONS ON ADVANCES. No Eurodollar Advance will be made
unless it is at least $250,000, and, over that amount, unless it is a
whole multiple of $100,000. No Base Rate Advance will be made unless
it is a whole multiple of $100,000 and at least $100,000. No more than
one Revolving Loan Advance will be made on any one day pursuant to a
request for a
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Revolving Loan Advance. No more than one Swingline Advance will be
made on any day. Advances will only be made for the purposes permitted
in Section 13.1. No Eurodollar Advance will be made so long as there
is any Existing Default. Notwithstanding the foregoing, the Swingline
Documents will govern whether there are any minimum advance amount
requirements for Swingline Advances.
7.11. RESTRICTION ON NUMBER OF EURODOLLAR LOANS. No more than 8
Eurodollar Loans with different Interest Periods may be outstanding at
any one time.
7.12. EACH ADVANCE REQUEST AND LETTER OF CREDIT REQUEST A
CERTIFICATION. Each submittal of a request for an Advance and each
submittal of a request for the issuance of a Letter of Credit by a
Borrowing Representative shall constitute a certification by Borrower
that (i) there is no Existing Default, (ii) all conditions precedent
hereunder to the making of the requested Advance or issuance of the
requested Letter of Credit have been satisfied, and (iii) the
Representations and Warranties are then true, with such exceptions as
have been disclosed to Lenders in writing by Borrower or a Guarantor
from time to time and are satisfactory to Lenders, and will be true on
the Advance Date or issuance date, as applicable, as if then made with
such exceptions.
7.13. REQUIREMENTS FOR EVERY ADVANCE REQUEST. Only a written request
(which shall be in the form attached hereto as Exhibit 7.13 and
mailed, personally delivered or telecopied as provided in Section
20.1) or a telephonic request (promptly confirmed in writing in the
form attached hereto as Exhibit 7.13 in the manner provided in Section
20.1) from a Borrowing Representative to Administrative Agent that
specifies the amount of the Advance to be made, the Advance Date for
the requested Advance, the portion of the Advance which is requested
to be a Eurodollar Advance and the portion of the Advance which is
requested to be a Base Rate Advance, and the Interest Period to be
applicable to the Eurodollar Loan that will result from a requested
Eurodollar Advance, shall be treated as a request for an Advance. No
Advance Date for any requested Advance may be other than a Business
Day. A request for a Eurodollar Advance must be given prior to 11:00
a.m. (Local Time) at least two Business Days prior to the Advance Date
for such Eurodollar Advance. A request for a Base Rate Advance must be
given prior to 11:00 a.m. (Local Time) on the Advance Date for such
Base Rate Advance; provided, however, that with respect to any Advance
to be made on the Effective Date, the request for such Advance shall
be delivered to Administrative Agent prior to 11:00 a.m. (Local Time)
on the Effective Date and such Advance must be a Base Rate Advance
only.
7.14. REQUIREMENTS FOR EVERY LETTER OF CREDIT REQUEST. Only a written
request (which may be mailed, personally delivered or telecopied as
provided in Section 20.1) from a Borrowing Representative to
Administrative Agent or an electronic initiation over an online
service provided by Letter of Credit Issuer that specifies the amount,
requested issue date (which shall be a Business Day and in no event
later than 30 Business Days before the Revolving Loan Maturity Date)
and beneficiary of the requested Letter of Credit and other
information necessary for its issuance shall be treated as a request
for issuance of a Letter of Credit.
7.15. EXONERATION OF ADMINISTRATIVE AGENT AND LENDERS. Neither
Administrative Agent nor any Lender shall incur any liability to
Borrower for treating a request that meets the express requirements of
Section 7.13 or Section 7.14 as a request for an Advance or issuance
of a Letter of Credit, as applicable, if Administrative Agent believes
in good faith that the Person making the request is a Borrowing
Representative or if, in the case of a request for a Letter of Credit,
it is electronically initiated. Neither Administrative Agent nor any
Lender shall incur any liability to Borrower for failing to treat any
such request as a request for an Advance or issuance of a Letter
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of Credit, as applicable, if Administrative Agent believes in good
faith that the Person making the request is not a Borrowing
Representative.
8. GUARANTIES. Borrower shall on or before the Effective Date cause to be
executed and delivered to Administrative Agent the unconditional guaranty of the
Loan Obligations by each Person listed on Exhibit 8 (which Persons constitute
all of the Domestic Subsidiaries of Borrower as of the Execution Date) pursuant
to a guaranty satisfactory to Lenders. In addition, if any Domestic Subsidiary
is acquired, created or organized after the Execution Date, Borrower shall,
contemporaneously with the acquisition, creation or organization of such a
Subsidiary (but in no event later than 20 Business Days after such acquisition,
creation or organization), cause to be executed and delivered by such Subsidiary
an unconditional guaranty of the Loan Obligations in substantially the form of
an existing Guaranty (or, at the option of Administrative Agent, a joinder to an
existing Guaranty), along with, if such Subsidiary is a Material Subsidiary, the
following items: (i) the Charter Documents of such Material Subsidiary; (ii)
copies of all consents, licenses and approvals required in connection with the
execution, performance, and enforceability of the Guaranty or joinder by such
Material Subsidiary, (iii) a secretary's or members' certificate for such
Material Subsidiary (certifying resolutions authorizing the execution,
performance and delivery of such Guaranty or joinder, Charter Documents and
incumbency of officers to sign such Guaranty or joinder); (iv) good standing
certificates for such Material Subsidiary from the jurisdiction of its
organization and each jurisdiction where the nature of extent of its business
requires it to be qualified to do business; (v) a legal opinion of counsel to
such Material Subsidiary in form acceptable to Administrative Agent, (vi)
evidence of insurance for such Material Subsidiary in the form required by this
Agreement. The failure to deliver to Administrative Agent such Guaranty (or
joinder to an existing Guaranty) or, in the case of any Material Subsidiary, any
other item required by this Section within the time period set forth in this
Section will cause an immediate Event of Default.
9. CONDITIONS OF LENDING.
9.1. CONDITIONS TO INITIAL ADVANCE. Lenders will have no obligation to
fund the initial Revolving Loan Advance or the initial Swingline
Advance unless:
9.1.1. LISTED DOCUMENTS AND OTHER ITEMS. Administrative Agent
shall have received on or before the Effective Date all of the
documents and other items listed or described in Exhibit 9.1.1
hereto as being delivered or obtained on or before the Effective
Date, with each being satisfactory to Lenders and (as applicable)
duly executed and (also as applicable) sealed, attested,
acknowledged, certified, or authenticated.
9.1.2. FINANCIAL CONDITION. Lenders shall have determined to
their satisfaction that the financial statements of Borrower for
its fiscal year ended December 31, 1999 and the financial
statements of Borrower for its interim period ended September 30,
2000 as furnished to Administrative Agent and the other
information furnished to Administrative Agent by Borrower, fairly
and accurately reflect the business and financial condition of
Borrower on a consolidated basis, its cash flows and the results
of its operations for such periods.
9.1.3. NO DEFAULT. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such
Advance being requested or made or the application of the
proceeds thereof.
9.1.4. REPRESENTATIONS AND WARRANTIES. The Representations and
Warranties shall be true and correct in all material respects.
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9.1.5. NO MATERIAL ADVERSE CHANGE. Since the date of the Initial
Financial Statements delivered to Administrative Agent, there
shall not have been any change which has or is reasonably likely
to have a Material Adverse Effect.
9.1.6. PENDING MATERIAL PROCEEDINGS. There shall be no pending
Material Proceedings.
9.1.7. PAYMENT OF FEES. Borrower shall have paid and reimbursed
to Lenders all fees, costs and expenses that are payable or
reimbursable to Lenders hereunder on or before the Effective
Date.
9.1.8. OTHER ITEMS. Administrative Agent shall have received such
other consents, approvals, opinions, certificates, documents or
information as it reasonably deems necessary.
9.2. CONDITIONS TO SUBSEQUENT ADVANCES. Lenders will have no
obligation to fund any Advance after the initial Revolving Loan
Advance or the initial Swingline Advance unless:
9.2.1. GENERAL CONDITIONS. All of the conditions to the initial
Advances in Section 9.1 (except the conditions in Section 9.1.4,
9.1.5 and 9.1.6) shall have been and shall remain satisfied.
9.2.2. REPRESENTATIONS AND WARRANTIES. The Representations and
Warranties are then true in all material respects, with such
exceptions as have been disclosed to Lenders in writing by
Borrower or any Guarantor from time to time and are satisfactory
to Lenders, and will be true in all material respects as of the
time of such Advance, as if then made with such exceptions.
9.2.3. PENDING MATERIAL PROCEEDINGS. There shall be no pending
proceedings as covered by clauses (i) or (ii) of the definition
of Material Proceedings; there shall be no pending proceedings as
covered by clauses (iii) and (iv) of the definition of Material
Proceedings with respect to which there is a reasonable
likelihood that the outcome of such litigation, investigation or
other proceeding would be adverse to a Covered Person and there
is a reasonable likelihood that any relief or penalty expected to
be awarded or imposed as a result of such adverse outcome would
have a Material Adverse Effect.
9.2.4. NO DEFAULT. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such
Advance being requested or made or the application of the
proceeds thereof.
10. CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. As conditions precedent to the
issuance of any Letter of Credit:
10.1. LETTER OF CREDIT APPLICATION/REIMBURSEMENT AGREEMENT. Borrower
shall have executed and delivered to Letter of Credit Issuer a letter
of credit application/reimbursement agreement satisfactory to Letter
of Credit Issuer and Lenders under which Borrower further evidences
its obligation to reimburse to Letter of Credit Issuer on demand the
amount of each draw on such Letter of Credit as provided in Section
6.3, together with interest from the date of the draw at the rate
provided in Section 4.1 and (without duplication) all reasonable
expenses incurred by Letter of Credit Issuer in connection with such
Letter of Credit. Any pre-printed provisions in any Letter of Credit
application/reimbursement agreement which conflict with any
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of the express provisions of this Agreement shall be deemed superceded
by the provisions of this Agreement to the extent of the conflict,
regardless of the date of execution of such Letter of Credit
application/reimbursement agreement, unless Letter of Credit Issuer
and Borrower expressly agree otherwise therein.
10.2. NO PROHIBITIONS. No order, judgment or decree of any
Governmental Authority shall exist which purports by its terms to
enjoin or restrain Letter of Credit Issuer or any other Lender from
issuing such Letter of Credit, and no Law or request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over Letter of Credit Issuer or any other
Lender shall exist which prohibits, or requests that Letter of Credit
Issuer or any other Lender refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular, or imposes
upon Letter of Credit Issuer or any other Lender with respect to such
Letter of Credit any restriction or reserve or capital requirement
(for which Letter of Credit Issuer or any other Lender is not
otherwise compensable by Borrower hereunder).
10.3. REPRESENTATIONS AND WARRANTIES. The Representations and
Warranties are then true in all material respects, with such
exceptions as have been disclosed to Lenders in writing by Borrower or
any Guarantor from time to time and are satisfactory to Lenders, and
will be true in all material respects as of the time of the issuance
of such Letter of Credit, as if then made with such exceptions.
10.4. PENDING MATERIAL PROCEEDINGS. There shall be no pending
proceedings as covered by clauses (i) or (ii) of the definition of
Material Proceedings; there shall be no pending proceedings as covered
by clauses (iii) and (iv) of the definition of Material Proceedings
with respect to which there is a reasonable likelihood that the
outcome of such litigation, investigation or other proceeding would be
adverse to a Covered Person and there is a reasonable likelihood that
any relief or penalty expected to be awarded or imposed as a result of
such adverse outcome would have a Material Adverse Effect.
10.5. NO DEFAULT. There shall be no Existing Default and no Default or
Event of Default will occur as a result of such Letter of Credit being
issued or a draw thereon being made or paid.
10.6. OTHER CONDITIONS. All of the conditions to the initial Advances
in Section 9.1 (except the conditions in Section 9.1.4 and 9.1.6)
shall have been and shall remain satisfied.
11. REPRESENTATIONS AND WARRANTIES. Except as otherwise described in the
Disclosure Schedule attached hereto as Exhibit 11, Borrower represents and
warrants to Lenders, on its behalf and on behalf of each Covered Person, as
follows:
11.1. ORGANIZATION AND EXISTENCE. Each Covered Person is duly
organized and existing in good standing under the Laws of the state of
its organization, is duly qualified to do business and is in good
standing in every state where the nature or extent of its business or
properties require it to be qualified to do business, except where the
failure to so qualify or be in good standing will not have a Material
Adverse Effect. Each Covered Person has the power and authority to own
its properties and carry on its business as now being conducted.
11.2. AUTHORIZATION. Each Covered Person is duly authorized to execute
and perform every Loan Document to which such Covered Person is a
party, Borrower is duly authorized to borrow hereunder, and this
Agreement and the other Loan Documents have been duly authorized by
all requisite corporate action of each Covered Person who is a party
thereto. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any
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other Person, is required in connection with Borrower's execution,
delivery or performance of this Agreement and the other Loan
Documents, except for those Governmental Authority consents,
approvals, or authorizations already duly obtained and declarations or
filings already duly made, or, except for those consents of other
Persons which, if not obtained, could not reasonably be expected to
have a Material Adverse Effect.
11.3. DUE EXECUTION. Every Loan Document to which a Covered Person is
a party has been executed on behalf of such Covered Person by a Person
duly authorized to do so.
11.4. ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Covered Person is a party constitutes the legal, valid and
binding obligation of such Covered Person, enforceable against such
Covered Person in accordance with its terms, except to the extent that
the enforceability thereof against such Covered Person may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting creditors' rights generally or by equitable principles of
general application.
11.5. BURDENSOME OBLIGATIONS. No Covered Person is a party to or bound
by any Contract or is subject to any provision in the Charter
Documents of such Covered Person which would, if performed by such
Covered Person, result in a Default or Event of Default either
immediately or upon the elapsing of time.
11.6. LEGAL RESTRAINTS. The execution and performance of any Loan
Document by a Covered Person will not violate or constitute a default
under the Charter Documents of such Covered Person, any Material
Agreement of such Covered Person, or any Material Law, and will not
result in any Security Interest being imposed on any of such Covered
Person's property.
11.7. LABOR CONTRACTS AND DISPUTES. There is no collective bargaining
agreement or other labor contract covering employees of a Covered
Person which could reasonably be expected to have a Material Adverse
Effect; as of the Execution Date, there exists no collective
bargaining agreement or other labor contract covering employees of a
Covered Person. No union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of
employees of a Covered Person which could reasonably be expected to
have a Material Adverse Effect; as of the Execution Date, no union or
other labor organization is seeking to organize, or to be recognized
as, a collective bargaining unit of employees of a Covered Person.
There is no pending or, to Borrower's knowledge, threatened, strike,
work stoppage, material unfair labor practice claim or other material
labor dispute against or affecting any Covered Person or its employees
which has or could reasonably be expected to have a Material Adverse
Effect.
11.8. NO MATERIAL PROCEEDINGS. As of the Execution Date, there are no
Material Proceedings pending or, to the best knowledge of Borrower,
threatened.
11.9. MATERIAL LICENSES. All Material Licenses have been obtained or
exist for each Covered Person.
11.10. COMPLIANCE WITH MATERIAL LAWS. Each Covered Person is in
compliance in all material respects with all Material Laws except for
such noncompliance which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. Without
limiting the generality of the foregoing:
11.10.1. GENERAL COMPLIANCE WITH ENVIRONMENTAL LAWS. The
operations of every Covered Person comply in all material
respects with all applicable Environmental Laws,
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except for instances of noncompliance which individually or when
aggregated with all other such instances of noncompliance could
not reasonably be expected to have a Material Adverse Effect.
11.10.2. PROCEEDINGS. None of the operations of any Covered
Person are the subject of any judicial or administrative
complaint, order or proceeding alleging the violation of any
applicable Environmental Law which violation could reasonably be
expected to have a Material Adverse Effect.
11.10.3. INVESTIGATIONS REGARDING HAZARDOUS MATERIALS. None of
the operations of any Covered Person are the subject of
investigation by any Governmental Authority regarding the
improper transportation, storage, disposal, generation or release
into the environment of any Hazardous Material, the results of
which have or are reasonably likely to have a Material Adverse
Effect.
11.10.4. NOTICES AND REPORTS REGARDING HAZARDOUS MATERIALS. No
notice or report under any Environmental Law indicating a past or
present spill or release into the environment of any Hazardous
Material has been filed within the four years ending on the
Execution Date, or is required to be filed, by any Covered
Person, except for notices and reports of spills and releases
which could not reasonably be expected to have a Material Adverse
Effect.
11.10.5. HAZARDOUS MATERIALS ON REAL PROPERTY. No Covered Person,
nor to Borrower's actual knowledge, any other Person, has at any
time transported, stored, disposed of, generated or released any
Hazardous Material on the surface, below the surface, or within
the boundaries of any real property owned or operated by such
Covered Person or any improvements thereon in violation of any
applicable Environmental Law. Borrower has no actual knowledge of
the presence of any Hazardous Material on the surface, below the
surface, or within the boundaries of any real property owned or
operated by any Covered Person or any improvements thereon in
violation of any applicable Environmental Law. No property of any
Covered Person is subject to a Security Interest in favor of any
Governmental Authority for any liability under any Environmental
Law or damages arising from or costs incurred by such
Governmental Authority in response to a spill or release of
Hazardous Material into the environment.
11.11. OTHER NAMES. No Covered Person has used any name other than the
full name which identifies such Covered Person in this Agreement. The
only material trade name or style under which a Covered Person sells
Inventory or creates Accounts, or to which instruments in payment of
Accounts are made payable, is the name which identifies such Covered
Person in this Agreement.
11.12. FINANCIAL STATEMENTS. The Financial Statements are complete and
correct in all material respects and fairly reflect the financial
condition, results of operations and cash flows of the Persons covered
thereby as of the dates and for the periods stated therein, subject in
the case of interim Financial Statements to normal year-end
adjustments made in accordance with GAAP and the absence of footnotes.
11.13. NO CHANGE IN CONDITION. Since the date of the Financial
Statements delivered to Administrative Agent as required herein, there
has been no change which has or is reasonably likely to have a
Material Adverse Effect.
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11.14. NO DEFAULTS. No Covered Person has breached or violated or has
defaulted under any Material Agreement to which it is a party, or has
defaulted with respect to any Material Obligation of such Covered
Person. There is no Existing Default.
11.15. INVESTMENTS. No Covered Person has any Investments in other
Persons except Permitted Investments
11.16. INDEBTEDNESS. No Covered Person has any Indebtedness except
Permitted Indebtedness.
11.17. INDIRECT OBLIGATIONS. No Covered Person has any Indirect
Obligations except Permitted Indirect Obligations.
11.18. OPERATING LEASES. As of the Execution Date, no Covered Person
has an interest as lessee under any Operating Leases other than leases
of non-material items of office equipment.
11.19. CAPITAL LEASES. As of the Execution Date, no Covered Person has
an interest as a lessee under any Capital Leases other than Capital
Leases that are Permitted Indebtedness.
11.20. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered Person has
filed or caused to be filed all tax reports and returns required to be
filed by it with any Governmental Authority, except where extensions
have been properly obtained and except where the incremental liability
for failure to file all such reports or returns (in excess of the
Taxes due in respect thereof) is less than $100,000. Each Covered
Person has paid or made adequate provision for payment of all Taxes of
such Covered Person, except Taxes which are being diligently contested
in good faith by appropriate proceedings and as to which such Covered
Person has established adequate reserves in conformity with GAAP. No
Security Interest for any such Taxes has been filed for an amount
which, individually or in the aggregate (when added to the amounts of
all such other Security Interest filings), exceeds $100,000; and no
claim is being asserted with respect to any such Taxes which, if
adversely determined, has or is reasonably likely to have a Material
Adverse Effect. There are no material unresolved issues concerning any
liability of a Covered Person for any Taxes which, if adversely
determined, will have or is reasonably likely to have a Material
Adverse Effect.
11.21. PENSION BENEFIT PLANS. All Pension Benefit Plans maintained by
each Covered Person or an ERISA Affiliate of such Covered Person and
intended to qualify under Section 401 of the Code have received (or
have applied for and are awaiting) a favorable determination letter
from the IRS with respect to their tax-qualified status under Section
401 of the Code and, along with all Welfare Benefit Plans, are in
compliance with the provisions of ERISA, the Code and all other
applicable Laws in all material respects. For any Pension Benefit Plan
for which a determination letter is pending, no Covered Person knows
of any facts or circumstances which might reasonably be expected to
cause a favorable determination letter not to be issued. Except with
respect to events or occurrences which do not have and are not
reasonably likely to have a Material Adverse Effect:
11.21.1. PROHIBITED TRANSACTIONS. No Plan subject to ERISA has
participated in, engaged in or been a party to any non-exempt
PROHIBITED TRANSACTION as defined in ERISA or the Code, and no
officer, director or employee of such Covered Person or of an
ERISA Affiliate of such Covered Person has committed a breach of
any of the responsibilities or obligations imposed upon
fiduciaries by Title I of ERISA with respect to any such Plan.
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11.21.2. CLAIMS. There are no claims, pending or, to the
knowledge of the Covered Persons, threatened, involving any Plan
by a current or former employee (or beneficiary thereof) of such
Covered Person or ERISA Affiliate of such Covered Person, nor is
there any reasonable basis to anticipate any claims involving any
Plan which would likely be successfully maintained against such
Covered Person or such ERISA Affiliate.
11.21.3. REPORTING AND DISCLOSURE REQUIREMENTS. There are no
violations of any reporting or disclosure requirements with
respect to any Plan and no Plan has violated any applicable Law,
including ERISA and the Code.
11.21.4. ACCUMULATED FUNDING DEFICIENCY. No such Pension Benefit
Plan has (i) incurred an accumulated funding deficiency (within
the meaning of Section 412(a) of the Code), whether or not
waived; (ii) been a Pension Benefit Plan with respect to which a
Reportable Event (to the extent that the reporting of such events
to the PBGC within 30 days of the occurrence has not been waived)
has occurred and is continuing; or (iii) been a Pension Benefit
Plan with respect to which there exist conditions or events which
have occurred that present a significant risk of termination of
such Pension Benefit Plan by the PBGC.
11.21.5. MULTI-EMPLOYER PLAN. All Multi-employer Plans to which
any Covered Person contributes or is obligated to contribute are
listed in section 11.21.5 of the Disclosure Schedule. No Covered
Person or ERISA Affiliate of such Covered Person has received
notice that any such Multi-employer Plan is in reorganization or
has been terminated within the meaning of Title IV of ERISA, and
no such Multi-employer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of Title IV
of ERISA.
11.22. WELFARE BENEFIT PLANS. No Covered Person or ERISA Affiliate of
any Covered Person maintains a Welfare Benefit Plan that has a
liability which, if enforced or collected, has or is reasonably likely
to have a Material Adverse Effect. Each Covered Person and each ERISA
Affiliate of any Covered Person has complied in all material respects
with the applicable requirements of Section 4980B of the Code
pertaining to continuation coverage as mandated by COBRA.
11.23. RETIREE BENEFITS. No Covered Person or ERISA Affiliate of such
Covered Person has an obligation to provide any Person with any
medical, life insurance, or similar benefit following such Person's
retirement or termination of employment (or to such Person's
beneficiary subsequent to such Person's death) other than (i) such
benefits provided to Persons at such Person's sole expense and (ii)
obligations under COBRA or comparable state Law.
11.24. DISTRIBUTIONS. No Distribution as defined in Section 14.7 has
been declared, paid or made upon or in respect of any capital stock,
membership interests or other securities of Borrower on and after the
Execution Date, except as expressly permitted hereby.
11.25. STATE OF PROPERTY. Each Covered Person has good and marketable
or merchantable title to all of such Covered Person's real and
personal property purported to be owned by it or reflected as owned by
it in the Initial Financial Statements, except for property sold as
permitted herein after the date of the Initial Financial Statements.
There are no Security Interests on any of the property purported to be
owned by any Covered Person, except Permitted Security Interests.
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11.26. CHIEF PLACE OF BUSINESS; LOCATIONS OF RECORDS AND PROPERTY;
PLACES OF BUSINESS. As of the Execution Date,
11.26.1. the only chief executive office and the principal places
of business of each Covered Person are located at the places
listed and so identified in Section 11.26.1 of the Disclosure
Schedule;
11.26.2. the books and records of each Covered Person, and all of
such Covered Person's chattel paper and all records of Accounts,
are located only at the places listed and so identified in
Section 11.26.2 of the Disclosure Schedule; and
11.26.3. all property of each Covered Person (except for
Inventory which is in transit and real property) is located only
at the places listed and so identified in Section 11.26.3 of the
Disclosure Schedule with respect to such Person; no Covered
Person has an office or place of business other than as
identified in Section 11.26 of the Disclosure Schedule.
11.27. SUBSIDIARIES AND AFFILIATES. All of Borrower's direct and
indirect Subsidiaries and Affiliates (except for Affiliates that are
individuals or trusts of individuals created solely for estate
planning purposes) as of the Effective Date are listed in section
11.27 of the Disclosure Schedule. Every Subsidiary of Borrower that is
required under the terms of this Agreement to be a Guarantor has
timely executed and delivered a Guaranty as required hereby. Other
than the Persons listed in section 11.27 of the Disclosure Schedule
and such Persons which become Subsidiaries of Borrower pursuant to a
Permitted Acquisition, Borrower has no Subsidiaries or Affiliates.
11.28. MARGIN STOCK. No Covered Person is engaged or will engage,
principally or as one of its important activities, in the business of
extending credit for the purpose of PURCHASING or CARRYING MARGIN
STOCK (within the meaning of Regulation U), and no part of the
proceeds of any Advance will be used in any manner, for any purpose,
or under any circumstance which would result in a violation of, be
inconsistent with, or require any Lender to obtain from any Person any
statement or form or make any filing or report under, Regulation U.
11.29. SECURITIES MATTERS. No proceeds of any Advance will be used to
acquire any security in any transaction which is subject to Sections
13 and 14 of the Securities Exchange Act of 1934.
11.30. INVESTMENT COMPANY ACT, ETC. No Covered Person is an INVESTMENT
COMPANY registered or required to be registered under the Investment
Company Act of 1940, or a company CONTROLLED (within the meaning of
such Investment Company Act) by such an INVESTMENT COMPANY or an
AFFILIATED PERSON of, or PROMOTER or PRINCIPAL UNDERWRITER for, an
INVESTMENT COMPANY, as such terms are defined in the Investment
Company Act of 1940. No Covered Person is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act or any other Law limiting or regulating
its ability to incur Indebtedness for money borrowed.
11.31. NO MATERIAL MISSTATEMENTS OR OMISSIONS. Neither the Loan
Documents, any Acquisition Documents, any of the Financial Statements
nor any statement, list, certificate or other information furnished or
to be furnished by Borrower or any other Covered Person to
Administrative Agent or Lenders in connection with the Loan Documents
or any of the transactions contemplated thereby contains any untrue
statement of a material fact, or omits to state a material fact
necessary to make the statements therein not misleading. Borrower has
disclosed to Administrative Agent and Lenders everything regarding the
business, operations,
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property, financial condition, or business prospects or itself and
every Covered Person that has or is reasonably likely to have a
Material Adverse Effect.
11.32. BROKER'S FEES. No broker or finder is entitled to compensation
for services rendered with respect to the transactions contemplated by
this Agreement.
12. MODIFICATION AND SURVIVAL OF REPRESENTATIONS. Borrower may at any time after
the initial Advances are made propose to Lenders in writing to modify the
representations and warranties in Section 11, the representations and warranties
in any other Loan Document and any other representation or warranty made in any
certificate, report, opinion or other document delivered by Borrower pursuant to
the Loan Documents. If the proposed modifications are satisfactory to Lenders as
evidenced by their written assent thereto, then such representations and
warranties shall be deemed and treated as so modified, but only as of the date
of Borrower's written modification proposal. If such proposed modifications are
not satisfactory to Lenders, then such proposed modifications shall not be
deemed or treated as modifying such representations and warranties. All such
representations and warranties, as made or deemed made as of a particular time,
shall survive execution of each of the Loan Documents and the making of every
Advance, and may be relied upon by Administrative Agent and Lenders as being
true and correct as of the date when made or deemed made until all of the Loan
Obligations are fully and indefeasibly paid, no Letters of Credit are
outstanding and the Letter of Credit Exposure is irreversibly zero.
13. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that, while any of the
Commitments remains in effect and until all of the Loan Obligations are fully
and indefeasibly paid, no Letters of Credit are outstanding and the Letter of
Credit Exposure is irreversibly zero, Borrower shall do, or cause to be done,
the following:
13.1. USE OF PROCEEDS. Subject to the terms and conditions hereof, the
proceeds of Revolving Loan Advances and Swingline Advances shall be
used solely (i) for working capital, (ii) for Capital Expenditures,
(iii) for Permitted Acquisitions, (iv) for Permitted Redemptions, (v)
for general corporate purposes, and (vi) as the source for payment of
Borrower's reimbursement obligations with respect to Letters of
Credit, except that the proceeds of Revolving Loan Advances may also
be used to refinance existing Indebtedness.
13.2. CORPORATE EXISTENCE. Each Covered Person shall maintain its
existence in good standing and shall maintain in good standing its
right to transact business in those states in which it is now or
hereafter doing business, except where the failure to so qualify or be
in good standing will not have and will not be reasonably likely to
have a Material Adverse Effect and except for a Covered Person which
merges or consolidates with another Covered Person or which is
liquidated or dissolved with its assets distributed to another Covered
Person. Each Covered Person shall obtain and maintain all Material
Licenses for such Covered Person.
13.3. MAINTENANCE OF PROPERTY AND LEASES. Each Covered Person shall
maintain in good condition and working order, and repair and replace
as required, all buildings, equipment, machinery, fixtures and other
real and personal property whose useful economic life has not elapsed
and which are necessary for the ordinary conduct of the business of
such Covered Person, except where the failure to so maintain, repair
and replace such property would not be reasonably likely to have a
Material Adverse Effect. Each Covered Person shall maintain in good
standing and free of defaults all of its leases of buildings,
equipment, machinery, fixtures and other real and personal property
whose useful economic life has not elapsed and which are necessary for
the ordinary conduct of the business of such Covered Person, except
where the failure to so maintain such leases would not be reasonably
likely to have a Material Adverse Effect.
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13.4. INVENTORY. Each Covered Person shall keep its Inventory in good
and merchantable condition at its own expense and shall hold such
Inventory for sale or lease, or to be furnished in connection with the
rendition of services, in the ordinary course of such Covered Person's
business. All such Inventory shall be produced in accordance with the
Federal Fair Labor Standards Act of 1938 and all rules, regulations,
and orders thereunder.
13.5. INSURANCE. Each Covered Person shall at all times keep insured
or cause to be kept insured, in insurance companies having a rating of
at least "A" by Best's Rating Service, all property owned by it of a
character usually insured by others carrying on businesses similar to
that of such Covered Person in such manner and to such extent and
covering such risks as such properties are usually insured. Each
Covered Person shall carry, however, business interruption insurance
in such amounts as are satisfactory to Administrative Agent;
Administrative Agent acknowledges that the amount of business
interruption insurance reflected on the insurance certificates
Borrower has delivered to Administrative Agent as "Loss of Income"
coverage is satisfactory to Administrative Agent. Each Covered Person
shall at all times carry insurance, in insurance companies having a
rating of at least "A" by Best's Rating Service, against liability on
account of damage to persons or property (including product liability
insurance and insurance required under all Laws pertaining to workers'
compensation) and covering all other liabilities common to such
Covered Person's business, in such manner and to such extent as such
coverage is usually carried by others conducting businesses similar to
that of such Covered Person. All policies of liability insurance
maintained hereunder shall name Administrative Agent as an additional
insured for the benefit of Lenders. All policies of insurance
maintained hereunder shall contain a clause providing that prior to
the stated expiration date, such policies will not be canceled or
reduced in coverage without 30 days prior written notice to
Administrative Agent, at its address as reflected on the insurance
certificates Borrower has delivered to Administrative Agent. Borrower
shall upon request of Administrative Agent made at any time (but in
the absence of an Existing Default, no more often than annually),
furnish to Administrative Agent updated evidence of insurance (in the
form required as a condition to Administrative Agent's lending
hereunder) for such insurance.
13.6. PAYMENT OF TAXES AND OTHER OBLIGATIONS. Each Covered Person
shall promptly pay and discharge or cause to be paid and discharged,
as and when due, any and all income Taxes, federal or otherwise,
lawfully assessed and imposed upon it, and any and all lawful Taxes
whatsoever upon its properties and every part thereof, or upon the
income or profits therefrom and all claims of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons for labor,
materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of
its property; provided, however, that a Covered Person may diligently
contest in good faith by appropriate proceedings the validity of any
such Taxes or such claims if such Covered Person has established
adequate reserves therefor in conformity with GAAP on the books of
such Covered Person and if no Security Interest in respect of any such
unpaid Taxes or any such claim has been filed for an amount which,
individually or in the aggregate (when added to the amount of all such
other Security Interests), exceeds $100,000, other than a Permitted
Security Interest.
13.7. COMPLIANCE WITH LAWS. Each Covered Person shall comply in all
material respects with all Material Laws. Without limiting the
generality of the foregoing:
13.7.1. ENVIRONMENTAL LAWS. Each Covered Person shall comply in
all material respects and shall use commercially reasonable
efforts to ensure compliance in all material respects by all
tenants, subtenants and other occupants of such Covered Person,
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if any, with all Environmental Laws, except where the failure to
so comply could not reasonably be expected to have a Material
Adverse Effect.
13.7.2. PLANS. Each Covered Person and each ERISA Affiliate of
such Covered Person shall at all times make prompt payments or
contributions to meet the minimum funding standards under ERISA
and the Code with respect to any Plan maintained by such Covered
Person or such ERISA Affiliate, and shall comply in all material
respects with all reporting and disclosure requirements and all
provisions of the Code and ERISA applicable to any Plan
maintained by such Covered Person or such ERISA Affiliate.
13.8. DISCOVERY AND CLEAN-UP OF HAZARDOUS MATERIAL.
13.8.1. IN GENERAL. Upon any Covered Person receiving notice of
any violation of Environmental Laws or any similar notice
described in Section 11.10.3, or upon any Covered Person
otherwise discovering the presence of Hazardous Material on any
property owned or leased by such Covered Person which is in
violation of any Environmental Law, Borrower shall: (i) promptly
take such acts as are required by any applicable Environmental
Law to prevent danger or harm to the environment or any Person as
a result of such Hazardous Material; and (ii) take all steps
required under any applicable Environmental Law to complete all
removal, remedial, response, corrective and other action to
eliminate any such environmental problems, and keep
Administrative Agent informed of such actions and the results
thereof.
13.8.2. ASBESTOS CLEAN-UP. In the event that any property of any
Covered Person contains Asbestos Material such that an Operations
and Maintenance Program is required under applicable Law,
Borrower shall develop and implement, as soon as reasonably
possible, such an Operations and Maintenance Program (as
contemplated by EPA guidance document entitled Managing Asbestos
in Place; A Building Owner's Guide to Operations and Maintenance
Programs for Asbestos-Containing Materials) for managing in place
the Asbestos Material, and deliver a true, correct and complete
copy of such Operations and Maintenance Program to Administrative
Agent. In the event that the asbestos survey done in connection
with developing the Operations and Maintenance Program reveals
Asbestos Material which, due to its condition, location or
planned building renovation is required to be encapsulated or
removed, Borrower shall promptly cause the same to be
encapsulated or removed and disposed of offsite, in either case
by a licensed and experienced asbestos contractor, all in
accordance with applicable state, federal and local Laws. Upon
completion of any such encapsulation or removal, Borrower shall
deliver to Administrative Agent a certificate in such form as is
then customarily available signed by the consultant overseeing
the activity certifying to Administrative Agent that the work has
been completed in compliance with all applicable Laws. All costs
of such inspection, testing and remedial actions shall be paid by
Borrower.
13.9. NOTICE TO ADMINISTRATIVE AGENT OF MATERIAL EVENTS. Borrower
shall, promptly upon any Responsible Officer of Borrower obtaining
knowledge or notice thereof, give notice to Administrative Agent of
(i) any breach of any of the covenants in Section 13, 14, or 15; (ii)
any Default or Event of Default; (iii) the commencement of any
Material Proceeding; and (iv) any loss of or damage to any assets of a
Covered Person or the commencement of any proceeding for the
condemnation or other taking of any of the assets of a Covered Person
if such loss, damage or proceeding has or is reasonably likely to have
a Material Adverse Effect. In addition,
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13.9.1. Borrower shall furnish to Administrative Agent from time
to time all information which Administrative Agent requests with
respect to the status of any Material Proceeding.
13.9.2. Borrower shall furnish to Administrative Agent from time
to time all information known to Borrower with respect to any
fact, circumstance or event in connection with any Plan
established by a Covered Person or an ERISA Affiliate of any
Covered Person which could reasonably be expected to cause, or to
materially increase the likelihood of the occurrence of, a
Material Adverse Effect.
13.9.3. Borrower shall deliver notice to Administrative Agent of
the establishment of any Pension Benefit Plan by a Covered Person
or an ERISA Affiliate of such Covered Person.
13.9.4. Borrower shall promptly inform Administrative Agent of
its receipt of, and deliver to Administrative Agent a copy of,
any: (i) notice that any violation of any Environmental Law or
Employment Law may have been committed or is about to be
committed by any Covered Person, (ii) notice that any
administrative or judicial complaint or order has been filed or
is about to be filed against any Covered Person alleging
violations of any Environmental Law or Employment Law or
requiring such Covered Person to take any action in connection
with the release of any Hazardous Material into the environment,
(iii) notice from a Governmental Authority or private party
alleging that a Covered Person may be liable or responsible for
costs associated with a response to or cleanup of a release of
Hazardous Material into the environment or any damages caused
thereby, (iv) notice that a Covered Person is subject to federal,
state or local investigation regarding the improper
transportation, storage, disposal, generation or release into the
environment of any Hazardous Material, or (v) notice that any
properties or assets of a Covered Person are subject to a
Security Interest in favor of any Governmental Authority for any
liability under any Environmental Law or damages arising from or
costs incurred by such Governmental Authority in response to a
release of Hazardous Material into the environment.
13.9.5. Borrower shall deliver to Administrative Agent notice of
the following events promptly after they occur or, in the case of
clause (ii) below, promptly after Borrower receives notice or has
knowledge of their occurrence: (i) the failure of any Covered
Person or ERISA Affiliate of such Covered Person to make any
required installment or any other required payment to any Plan in
sufficient amount to comply with ERISA and the Code on or before
the due date for such installment or payment; (ii) the occurrence
of any Reportable Event, or a PROHIBITED TRANSACTION or
ACCUMULATED FUNDING DEFICIENCY (as those terms are defined in
ERISA), with respect to any Pension Benefit Plan maintained or
contributed to by a Covered Person or an ERISA Affiliate of such
Covered Person; (iii) receipt by a Covered Person or ERISA
Affiliate of such Covered Person of any notice from a
Multi-employer Plan regarding the imposition of withdrawal
liability; and (iv) receipt by a Covered Person or ERISA
Affiliate of such Covered Person of any notice of the institution
of any proceeding, or receipt by such Covered Person or such
ERISA Affiliate of any notice of the taking of any other action,
which is reasonably likely to result in the termination of any
Pension Benefit Plan maintained or contributed to by such Covered
Person or such ERISA Affiliate and subject to Title IV of ERISA
or in the termination of any Plan with respect to which the
funding obligations under such Plan would be accelerated pursuant
to Plan terms as a result of such termination, or the withdrawal
or partial withdrawal by a Covered Person or ERISA Affiliate of
such
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Covered Person from any Pension Benefit Plan subject to Title IV
of ERISA, and the filing or receipt by a Covered Person or ERISA
Affiliate of such Covered Person of any such notice and filing or
receipt of all subsequent reports or notices under ERISA with or
from the IRS, the PBGC, or the DOL relating to the same; and, in
addition to such notice, deliver to Administrative Agent a
certificate of a Responsible Officer of Borrower, setting forth
details as to such events and the action that the affected
Covered Person or ERISA Affiliate of such Covered Person proposes
to take with respect thereto as soon as reasonably practicable
after said detailed and proposed actions can be reasonably
determined. For purposes of this Section, each Covered Person and
any ERISA Affiliate of such Covered Person shall be deemed to
know all facts known by the administrator of any Plan of which
such Covered Person or such ERISA Affiliate is the plan sponsor.
13.9.6. Borrower shall promptly deliver to Administrative Agent
notice of any default or event of default, or the occurrence of
any event which would with the passage of time, giving of notice
or otherwise, constitute a default or event of default with
respect to any Permitted Indebtedness.
13.9.7. Borrower shall promptly deliver notice to Administrative
Agent of the assertion by the holder of any capital stock or any
other equity interest in a Covered Person or of any Indebtedness
of a Covered Person in the outstanding principal amount in excess
of $500,000 that a default exists with respect thereto or that
such Covered Person is not in compliance with the terms thereof,
or of the threat or commencement by such holder of any
enforcement action because of such asserted default or
noncompliance.
13.9.8. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of any pending or
threatened strike, work stoppage, material unfair labor practice
claim or other material labor dispute affecting a Covered Person.
13.9.9. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of any event that has or
is reasonably likely to have a Material Adverse Effect.
13.9.10. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of an actual, alleged, or
potential violation of any Material Law applicable to a Covered
Person or the property of a Covered Person.
13.9.11. Borrower shall promptly deliver notice to Administrative
Agent of the creation or acquisition of any Subsidiary after the
Effective Date, including the identity, nature, chief executive
office, and state of incorporation or organization thereof.
13.10. BORROWING REPRESENTATIVES. The Borrowing Representatives shall
be those Persons listed on Exhibit 13.10 unless and until some other
appropriate instrument naming Borrowing Representatives is
subsequently delivered to Administrative Agent by Borrower. Borrower
hereby designates ▇▇▇▇▇ ▇▇▇▇▇▇ as its agent for submitting requests
for Advances or the issuance of Letters of Credit on behalf of
Borrower under this Agreement.
13.11. ACCOUNTING SYSTEM. Each Covered Person shall maintain a system
of accounting established and administered in accordance with GAAP.
13.12. TRACING OF PROCEEDS. Each Covered Person shall maintain
detailed and accurate records of all transfers of any proceeds of the
Loans from Borrower to a Covered Person. Borrower and
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each Guarantor agrees that (a) the business operations thereof are
interrelated and complement one another, and such entities have a
common business purpose and common management, and (b) the proceeds of
Advances hereunder will benefit each of them regardless of who
requests or receives part or all of any Advance.
13.13. FINANCIAL STATEMENTS. Borrower shall deliver to Administrative
Agent for each Lender:
13.13.1. ANNUAL FINANCIAL STATEMENTS.
Within 120 days after the close of each fiscal year of Borrower,
year end consolidated financial statements of Borrower and its
Subsidiaries, containing a balance sheet, income statement,
statement of cash flows and an audit report without qualification
by an independent certified public accounting firm selected by
Borrower and satisfactory to Administrative Agent, and
accompanied by (i) a Compliance Certificate of the Chief
Financial Officer of Borrower, (ii) a certificate of the
independent certified public accounting firm that examined such
financial statements to the effect that they have reviewed and
are familiar with this Agreement and that, in examining such
financial statements, they did not become aware of any fact or
condition which then constituted a Default or Event of Default,
except for those, if any, described in reasonable detail in such
certificate, (iii) the management letter and report on internal
controls delivered by such independent certified public
accounting firm in connection with their audit, and (iv) if
requested by Administrative Agent, any summary prepared by such
independent certified public accounting firm of the adjustments
proposed by the members of its audit team. Notwithstanding the
foregoing requirements respecting financial statement delivery,
for any fiscal year of Borrower, delivery by Borrower to
Administrative Agent of Borrower's Annual Report on Form 10-K for
such fiscal year, as filed with the Securities and Exchange
Commission, on the earlier of (a) a date within the time period
set forth herein for delivery of Borrower's financial statements
for such fiscal year, or (b) the date of Borrower's filing of
such report with the Securities and Exchange Commission will
satisfy the financial statement delivery requirements under this
Section.
13.13.2. QUARTERLY FINANCIAL STATEMENTS. Within 60 days after the
end of each fiscal quarter of Borrower, unaudited consolidated
financial statements of Borrower and its Subsidiaries for each
fiscal quarter of Borrower, in each case containing a balance
sheet, income statement, and statement of cash flows and
accompanied by a Compliance Certificate of the Chief Financial
Officer of Borrower. Notwithstanding the foregoing requirements
respecting financial statement delivery, for any fiscal quarter
of Borrower, delivery by Borrower to Administrative Agent of
Borrower's Quarterly Report on Form 10-Q for such fiscal quarter,
as filed with the Securities and Exchange Commission, on the
earlier of (a) a date within the time period set forth herein for
delivery of Borrower's financial statements for such fiscal
quarter, or (b) the date of Borrower's filing of such report with
the Securities and Exchange Commission will satisfy financial
statement delivery requirements under this Section.
Each Compliance Certificate shall be in the form of Exhibit 13.13,
shall contain detailed calculations of the financial measurements
referred to in Section 15 for the relevant periods, and shall contain
statements by the signing officer to the effect that, except as
explained in reasonable detail in such Compliance Certificate, (i) the
attached Financial Statements are complete and correct in all material
respects (subject, in the case of Financial Statements other than
annual, to normal year-end audit adjustments made in accordance with
GAAP and the absence of footnotes) and have been prepared in
accordance with GAAP applied consistently throughout the periods
covered thereby and with prior periods (except as disclosed therein),
(ii) all of the
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Representations and Warranties are true and correct as of the date
such certification is given as if made on such date, and (iii) there
is no Existing Default. If any Compliance Certificate delivered to
under this Section discloses that a representation or warranty is not
true and correct, or that there is an Existing Default that has not
been waived in writing by Lenders or Required Lenders, as applicable,
such Compliance Certificate shall state what action Borrower has taken
or proposes to take with respect thereto.
13.14. OTHER FINANCIAL INFORMATION. Borrower shall also deliver the
following to Administrative Agent for each Lender:
13.14.1. OTHER REPORTS OR INFORMATION CONCERNING ACCOUNTS OR
INVENTORY. Such other reports and information, in form and detail
satisfactory to Administrative Agent, and documents as
Administrative Agent may request from time to time concerning
Accounts or Inventory.
13.14.2. STOCKHOLDER AND SEC REPORTS. Contemporaneously with
their filing by or on behalf of Borrower or any other Covered
Person, copies of any (i) proxy statements, financial statements
and reports which Borrower makes available to its stockholders,
members or partners, and (ii) reports, registration statements
and prospectuses filed by Borrower or any other Covered Person
with any securities exchange or the Securities and Exchange
Commission or any Governmental Authority succeeding to any of its
functions.
13.15. OTHER INFORMATION. Upon the request of Administrative Agent,
Borrower shall promptly deliver to Administrative Agent such other
information about the business, operations, revenues, financial
condition, property, or business prospects of Borrower and every other
Covered Person as Administrative Agent may, from time to time,
reasonably request.
13.16. AUDITS BY ADMINISTRATIVE AGENT. Administrative Agent or Persons
authorized by and acting on behalf of Administrative Agent or any
Lender may at any time during normal business hours audit the books
and records and inspect any of the property of each Covered Person
from time to time upon reasonable notice to such Covered Person, and
in the course thereof may make copies or abstracts of such books and
records and discuss the affairs, finances and books and records of
such Covered Person with its accountants, officers and employees. Each
Covered Person shall cooperate with Administrative Agent and such
Persons in the conduct of such audits and shall deliver to
Administrative Agent any instrument necessary for Administrative Agent
to obtain records from any service bureau maintaining records for such
Covered Person. Borrower shall reimburse Administrative Agent for all
costs and expenses by it in conducting each audit; provided however,
that, unless there exists an Event of Default that has not been waived
in writing, (i) such reimbursement for each such audit shall be
limited to $500 per day for each Person involved in conducting the
audit plus Administrative Agent's other actual out-of-pocket costs and
expenses, and (ii) no more than one such audit will be reimbursed by
Borrower during any fiscal year of Borrower.
13.17. ACCESS TO OFFICERS AND AUDITORS. Each Covered Person shall
permit any Lender and Persons authorized by Administrative Agent to
discuss, the business, operations, revenues, financial condition,
property, or business prospects of such Covered Person with its
officers, employees, accountants and independent auditors as often as
Administrative Agent may request in its discretion, and such Covered
Person shall direct such officers, employees, accountants and
independent auditors to cooperate with Administrative Agent and make
full disclosure to Administrative Agent of those matters that they may
deem relevant to the continuing ability of
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Borrower timely to pay and perform the Loan Obligations.
Administrative Agent and each Lender agrees that it will not disclose
to third Persons any information that it obtains about Borrower or its
operations or finances. Administrative Agent and any Lender may,
however, disclose such information to each other and all of their
respective officers, attorneys, auditors, accountants, bank examiners,
agents and representatives who have a need to know such information in
connection with the administration, interpretation or enforcement of
the Loan Documents or the lending and collection activity contemplated
therein or to the extent required by Law or a Governmental Authority
having jurisdiction over Administrative Agent or any Lender.
Administrative Agent or such Lender shall advise such Persons that
such information is to be treated as confidential. Administrative
Agent or a Lender may also disclose such information in any documents
that it files in any legal proceeding to pursue, enforce or preserve
its rights under the Loan Documents to the extent that its counsel
advises in writing that such disclosure is reasonably necessary.
Administrative Agent's and Lenders' non-disclosure obligation shall
not apply to any information that (i) is disclosed to Administrative
Agent or any Lender by a third Person not affiliated with or employed
by Borrower who does not have a commensurate duty of non-disclosure,
or (ii) is or becomes publicly known other than as a result of
disclosure by Administrative Agent or a Lender.
13.18. PRO FORMAS FOR PERMITTED ACQUISITIONS. Borrower shall, prior to
making any Permitted Acquisition, prepare and furnish to
Administrative Agent pro forma financial statements for the Surviving
Company, demonstrating to the satisfaction of Administrative Agent
that the Surviving Company will be Solvent upon consummation of the
Acquisition and upon the passage of time thereafter, and that none of
the covenants in Section 15 will be violated as a consequence of such
acquisition or with the passage of time thereafter. Such pro forma
financial statements shall contain quarterly balance sheets, income
statements, statements of cash flows and such other reports and
disclosures, and shall cover such forecast periods, as Administrative
Agent may in its discretion require. Borrower shall also provide to
Administrative Agent copies of the audited financial statements (if
available, or unaudited financial statements if no audited financial
statements exist) for the Target Company for the three fiscal years
most recently ended and for each of the completed fiscal quarters in
the then current fiscal year.
13.19. FURTHER ASSURANCES. Borrower shall execute and deliver, or
cause to be executed and delivered, to Administrative Agent such
documents and agreements, and shall take or cause to be taken such
actions, as Administrative Agent may from time to time request to
carry out the terms and conditions of this Agreement and the other
Loan Documents.
14. NEGATIVE COVENANTS. Borrower covenants and agrees that, while any of the
Commitments remains in effect and until all of the Loan Obligations are fully
and indefeasibly paid, no Letters of Credit are outstanding and the Letter of
Credit Exposure is zero, Borrower shall not, directly or indirectly, do any of
the following, or permit any Covered Person to do any of the following, without
the prior written consent of Required Lenders:
14.1. INVESTMENTS. Make any Investments in any other Person except the
following:
14.1.1. Investments in (i) interest-bearing United States
government obligations; (ii) certificates of deposit issued by
any Lender; (iii) prime commercial paper rated A1 or better by
Standard and Poor's Corporation or Prime P1 or better by ▇▇▇▇▇'▇
Investor Service, Inc.; (iv) agreements involving the sale to
Borrower of United States government securities and their
guarantied repurchase within 7 days by a commercial bank
chartered under the Laws of the United States or any state
thereof which has capital and surplus of not less than
$500,000,000, (v) tax-exempt municipal bonds with maturities of
less than
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180 days, or (vi) certificates of deposit issued by and time
deposits with any commercial bank chartered under the Laws of the
United States or any state thereof which has capital and surplus
of not less than $500,000,000.
14.1.2. Accounts arising in the ordinary course of business and
payable in accordance with Borrower's customary trade terms.
14.1.3. Investments by any Covered Person in another Covered
Person.
14.1.4. Any Investments that are Permitted Acquisitions.
14.1.5. Investments existing on the Execution Date and disclosed
in section 14.1 of the Disclosure Schedule.
14.1.6. Notes received by a Covered Person in settlement of
Indebtedness of other Persons to such Covered Person that was
incurred in the ordinary course of such Covered Person's
business.
14.1.7. Loans or advances to officers and employees of Borrower
to the extent that the aggregate amount of all such loans and
advances does not at any one time exceed $1,500,000.
14.1.8. Notes payable to any Covered Person in payment for the
assets of such Covered Person sold, transferred, exchanged,
leased or otherwise disposed of as permitted herein and
Investments of Persons acquired in a Permitted Acquisition which
do not fall within the Investments listed in Sections 14.1.1
through 14.1.7, to the extent the aggregate amount of such notes
and such Investments does not at any one time exceed $250,000.
14.2. INDEBTEDNESS. Create, incur, assume, or allow to exist any
Indebtedness of any kind or description, except the following:
14.2.1. Indebtedness to trade creditors incurred in the ordinary
course of business, to the extent that it is not overdue past the
original due date by more than 90 days.
14.2.2. The Loan Obligations.
14.2.3. Indebtedness secured by Permitted Security Interests.
14.2.4. Indebtedness existing on the Execution Date and disclosed
in section 11.16 of the Disclosure Schedule.
14.2.5. Capital Leases for capital assets whose aggregate cost if
purchased would not exceed $1,000,000.
14.2.6. Other Indebtedness (exclusive of other Indebtedness
permitted elsewhere in this Section 14.2) in an amount that does
not exceed $200,000 in aggregate principal amount outstanding at
any one time.
14.3. PREPAYMENTS. Voluntarily prepay any Indebtedness if there is an
Existing Default or if the making of such payment would cause or
result in a Default or Event of Default, except for (a) the Loan
Obligations in accordance with the terms of the Loan Documents, and
(b) trade payables and normal accruals in the ordinary course of
business.
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14.4. INDIRECT OBLIGATIONS. Create, incur, assume or allow to exist
any Indirect Obligations except Indirect Obligations existing on the
Execution Date and disclosed on Section 14.4 of the Disclosure
Schedule.
14.5. SECURITY INTERESTS. Create, incur, assume or allow to exist any
Security Interest upon all or any part of its property, real or
personal, now owned or hereafter acquired, except the following:
14.5.1. Security Interests for taxes, assessments or governmental
charges not delinquent or being diligently contested in good
faith and by appropriate proceedings and for which adequate
reserves in accordance with GAAP are maintained on the books of
Borrower and its Subsidiaries.
14.5.2. Security Interests arising out of deposits in connection
with workers' compensation insurance, unemployment insurance, old
age pensions, or other social security or retirement benefits
legislation.
14.5.3. Deposits or pledges to secure bids, tenders, contracts
(other than contracts for the payment of money), leases,
statutory obligations, surety and appeal bonds, and other
obligations of like nature arising in the ordinary course of
business.
14.5.4. Security Interests imposed by any Law, such as
mechanics', workmen's, materialmen's, landlords', carriers', or
other like Security Interests arising in the ordinary course of
business which secure payment of obligations which are not past
due or which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP are maintained on the books of Borrower and
its Subsidiaries.
14.5.5. Purchase money Security Interests (including filings and
interests in respect of Capital Leases) securing payment of the
purchase price of capital assets acquired by Borrower after the
Execution Date in an aggregate principal amount outstanding at
any one time that does not exceed $250,000.
14.5.6. Security Interests of customers of Borrower in items of
Inventory for the manufacture of which such customers have paid
deposits to Borrower, to the extent such Security Interests
secure only the repayment of such deposits.
14.5.7. Security Interests existing on the Execution Date that
are disclosed in section 11.25 of the Disclosure Schedule and are
satisfactory to Lenders.
14.5.8. Security Interests arising in connection with Permitted
Acquisitions that are acceptable to Lenders.
14.6. ACQUISITIONS. Acquire stock or membership interests of, or any
other equity interest in another Person sufficient for such Person to
become a Subsidiary or Affiliate of a Covered Person or a Joint
Venture, or acquire all or substantially all of the assets of a Person
or acquire a portion of the assets of a Person which constitute an
operating division or operating group of such Person, except for, if
there is no Existing Default and no Default or Event of Default will
occur as a result of thereof, (i) asset acquisitions in the ordinary
course of business that are not otherwise prohibited herein, (ii)
acquisitions not otherwise permitted under this Section as are
approved in
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writing by, and on terms and conditions satisfactory to, Required
Lenders, and (iii) any acquisition of stock or membership interests
of, or other equity interests in or assets of a Person with respect to
which all of the following requirements have been met (in each case a
Permitted Acquisition):
14.6.1. NON-HOSTILE ACQUISITIONS; SIMILAR BUSINESS LINE. The
acquisition must be non-hostile and must be of assets, or equity
interests in a Person, in the same or similar line of business as
Borrower or in a line of business that is synergistic with, or
reasonably related to, the line of business of Borrower.
14.6.2. INDIVIDUAL ACQUISITION DOLLAR LIMITATION. The total
consideration to be paid in any particular acquisition may not
exceed $7,500,000, unless otherwise approved by the Required
Lenders.
14.6.3. SURVIVING COMPANY BECOMES A GUARANTOR. The Surviving
Company, if not a Joint Venture or a Borrower or Guarantor under
this Agreement as of the time of the consummation of the
acquisition, contemporaneously with the consummation of the
acquisition, at the Lenders' option, shall become either (i) a
Guarantor by execution of a separate Guaranty or a joinder to an
existing Guaranty which is satisfactory to Administrative Agent
and the Lenders or (ii) a Borrower hereunder by execution and
delivery of an amendment to this Agreement and appropriate notes,
and other documents, and instruments which are satisfactory to
Administrative Agent and the Lenders.
14.6.4. DUE DILIGENCE MATERIALS; PRO FORMA FINANCIAL STATEMENTS;
HISTORICAL FINANCIAL STATEMENTS; AGREEMENTS AND CERTIFICATES.
Borrower shall have delivered to Administrative Agent and each of
the Lenders each of the following:
14.6.4.1. Copies of all documents, agreements, reports, and
studies that Borrower considers material or relevant to its
own due diligence investigation conducted in connection with
the proposed acquisition as well as any UCC lien search
results which Administrative Agent may reasonably request on
the party to the proposed acquisition which is not a Covered
Person.
14.6.4.2. Pro forma financial statements prepared by
Borrower for the Surviving Company, demonstrating to the
satisfaction of Administrative Agent and each of the Lenders
that the Surviving Company will be Solvent upon consummation
of the acquisition and upon the passage of time thereafter,
and that none of the covenants in Section 15 will be
violated as a consequence of such acquisition or with the
passage of time thereafter. Such pro forma financial
statements shall contain monthly balance sheets, income
statements, statements of cash flows and such other reports
and disclosures, and shall cover such forecast periods, as
Administrative Agent and the Lenders may in their discretion
require. Such pro forma financial statements shall be
accompanied by a certificate of the Chief Financial Officer
of Borrower that the projections therein represent
Borrower's reasonable business estimate of such Surviving
Company's future financial performance for the periods set
forth therein, that such projections have been prepared on
the basis of the assumptions described in the pro forma
financial statements, and that such Chief Financial Officer
believes such assumptions are fair and reasonable in light
of current and reasonably foreseeable business conditions.
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14.6.4.3. Copies of the audited financial statements (if
available, or unaudited financial statements if no audited
financial statements exist) for the Target Company for the
three fiscal years most recently ended and for each of the
completed fiscal quarters in the then current fiscal year.
14.6.4.4. Copies of all documents executed and delivered in
connection with the proposed acquisition in final form.
14.6.4.5. All of the conditions precedent to the proposed
acquisition, other than the funding of the purchase price,
shall have been either satisfied or waived by the parties
thereto to the satisfaction of Administrative Agent.
14.6.4.6. Payoff letters from all secured creditors having
Security Interests (other than Permitted Security Interests)
in any assets of the Surviving Company.
14.7. DISTRIBUTIONS. Directly or indirectly declare or make, or incur
any liability to make, any Distribution to any Person, except that a
Distribution may be made if there is no Existing Default that remains
unwaived and if the declaration or payment of such Distribution would
not be reasonably likely to cause a Default or Event of Default,
immediately or in the reasonably foreseeable future. For purposes of
this Section, a Distribution means and includes (i) any cash dividend
or payment by any Covered Person to any shareholder, or other equity
holder of any Covered Person, (ii) any acquisition or redemption by
any Covered Person of any of its outstanding stock, membership
interests or other equity interests, (iii) any retirement or
prepayment of debt securities of any Covered Person by any Covered
Person before the regularly scheduled maturity dates of such debt
securities, (iv) any loan or advance by any Covered Person to a
shareholder, partner or other equity holder of any Covered Person, (v)
any compensation payment (including any payment based upon Net Income
or other measures of economic performance, whether or not designated
as a bonus) to a shareholder, partner or other equity holder employee
of any Covered Person that is in excess of such employee's regular
compensation, and (vi) any management or other fees paid to any
Affiliate of a Covered Person that is not a Covered Person.
14.8. CAPITAL STRUCTURE; EQUITY SECURITIES. Make any change in the
capital structure of any Covered Person which has or is reasonably
likely to have a Material Adverse Effect (except in connection with
the merger or consolidation of a Covered Person and its assets into or
with another Covered Person and its assets or in connection with the
liquidation or dissolution of a Covered Person if the assets of such
Covered Person are distributed to another Covered Person); or issue or
create any stock, membership interest or other equity interest (or
class or series thereof) or non-equity interest that is convertible
into stock, membership interests or other equity interest (or class or
series thereof), in any Covered Person (other than Borrower), except
stock, membership interests or other equity interests (or class or
series thereof) that are subordinated in right of payment to all the
Loan Obligations in a manner satisfactory to Required Lenders.
14.9. CHANGE OF BUSINESS. Engage in any business if, as a result
thereof, the general nature of the business, on a consolidated basis,
which would then be principally engaged in by Borrower and its
Subsidiaries would be substantially changed from the general nature of
the business engaged in by Borrower and its Subsidiaries on the
Effective Date.
14.10. TRANSACTIONS WITH AFFILIATES. Enter into or be a party to any
transaction or arrangement, including the purchase, sale or exchange
of property of any kind or the rendering of any service, with any
Affiliate, or make any loans or advances to any Affiliate; provided,
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however, that a Covered Person may engage in such transactions if such
transactions are in the ordinary course of business and pursuant to
the reasonable requirements of such Covered Person's business and on
fair and reasonable terms substantially as favorable to it as those
which it could obtain in a comparable arm's-length transaction with a
non-Affiliate.
14.11. DISPOSAL OF PROPERTY. Sell, transfer, exchange, lease, or
otherwise dispose of any of its assets to any Person; provided,
however, that Covered Persons may (i) sell, transfer or otherwise
dispose of assets to Borrower or to any Guarantor; (ii) sell, transfer
or otherwise dispose of assets having an aggregate orderly liquidation
value (excluding the value of transactions permitted by clauses (i),
(iii), and (iv) of this Section) no greater than $2,500,000 in the
aggregate for all Covered Persons; (iii) sell Inventory in the
ordinary course of business in arm's-length transactions; and (iv)
sell assets if the net proceeds of such sale are expended by Borrower
within 180 days of the completion of such sale for replacement of such
asset by other assets of comparable type and utility.
14.12. CONFLICTING AGREEMENTS. Enter into any agreement, that would,
if fully complied with by it, result in a Default or Event of Default
either immediately or upon the elapsing of time (which Default or
Event of Default would arise prior to the full and indefeasible
repayment of the Loan Obligations).
14.13. INVESTMENT BANKING AND FINDER'S FEES. Pay or agree to pay, or
reimburse any other party with respect to, any investment banking or
similar or related fee, underwriter's fee, finder's fee, or broker's
fee to any Person in connection with this Agreement.
14.14. SALE AND LEASEBACK TRANSACTIONS. Enter into any agreement or
arrangement with any Person providing for any Covered Person to lease
or rent property that such Covered Person has sold or will sell or
otherwise transfer to such Person.
14.15. NEW SUBSIDIARIES. Organize, create or acquire any Subsidiary
except as part of a Permitted Acquisition and unless Borrower, in
accordance with Section 8 shall cause any such newly organized,
created or acquired Subsidiary to execute and deliver an unconditional
guaranty of the Loan Obligations and make such other deliveries
required by under Section 8 or unless Borrower has obtained the prior
written consent of Administrative Agent thereto.
14.16. FISCAL YEAR. Change its fiscal year.
14.17. TERMINATION OF PENSION BENEFIT PLAN. Terminate or amend any
Pension Benefit Plan maintained by a Covered Person or an ERISA
Affiliate of a Covered Person which is subject to Title IV of ERISA or
with respect to which funding obligations under such Pension Benefit
Plan would be accelerated pursuant to its terms if such termination or
amendment would result in any material liability to such Covered
Person or such ERISA Affiliate under ERISA or any material increase in
current liability for the plan year for which such Covered Person or
such ERISA Affiliate is required to provide security to such Pension
Benefit Plan under the Code.
14.18. TRANSACTIONS HAVING A MATERIAL ADVERSE EFFECT. Enter into any
transaction which has or is reasonably likely to have a Material
Adverse Effect; or enter into any transaction, or take or contemplate
taking any other action, or omit or contemplate omitting to take any
action, which any Responsible Officer knows, or reasonably should know
is likely to cause a Default or Event of Default hereunder (which
Default or Event of Default would arise prior to the full and
indefeasible repayment of the Loan Obligations).
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15. FINANCIAL COVENANTS.
15.1. SPECIAL DEFINITIONS. As used in this Section 15 and elsewhere
herein, the following capitalized terms have the following meanings:
EBITDA means, with respect to any fiscal period of Borrower, the net
income of Borrower for such fiscal period, as determined in accordance
with GAAP and reported on the Financial Statements for such period,
plus (i) (A) Interest Expense in such period, (B) income tax expense
in such period, (C) depreciation and amortization expense in such
period, and (D) any extraordinary loss in such period, minus (ii) any
extraordinary gain in such period, in each case calculated for
Borrower for such period.
Interest Expense means for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without
duplication, on Indebtedness of Borrower during such period.
Net Worth means net worth as determined in accordance with GAAP.
Total Capitalization means, as of the date of any determination, the
sum of Borrower's Total Funded Indebtedness and Borrower's Net Worth.
Total Funded Indebtedness means, as of any time, the sum of any
contractual obligations to pay borrowed money (including, without
limitation, any such Indebtedness incurred in connection with purchase
money financing) and to make payments or reimbursements with respect
to letters of credit (whether or not there have been drawings
thereunder) at such time including, without limitation, the Aggregate
Revolving Loan and the aggregate dollar amount of Capital Leases
presented in Borrower's most recent Financial Statements as
Liabilities.
All other capitalized terms used in this Section 15 shall have their
meanings and shall be determined under GAAP. All financial
measurements respecting Borrower shall be made and calculated for
Borrower and all of its now existing or later acquired, created or
organized Subsidiaries, if any, on a consolidated basis in accordance
with GAAP.
15.2. MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO EBITDA. The ratio
of Borrower's Total Funded Indebtedness to EBITDA, measured at the end
of each fiscal quarter of Borrower (for the four fiscal quarters then
ended) shall not be greater than 2.00 to 1.00.
15.3. MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO TOTAL
CAPITALIZATION. The ratio of Borrower's Total Funded Indebtedness to
Total Capitalization, measured at the end of each fiscal quarter of
Borrower, shall not be greater than 0.35 to 1.00.
16. DEFAULT.
16.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an event of default (an Event of Default) under this
Agreement:
16.1.1. FAILURE TO PAY PRINCIPAL OR INTEREST. Failure of Borrower
to pay any principal of the Loans when due or failure of Borrower
to pay any interest accrued thereon within three Business Days
after the date when due.
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16.1.2. FAILURE TO PAY OR OTHER AMOUNTS OWED TO LENDERS. Failure
of Borrower to pay any of the Loan Obligations (other than
principal of the Loans or interest accrued thereon) within five
Business Days after the date when due.
16.1.3. FAILURE TO PAY AMOUNTS OWED TO OTHER PERSONS. Failure of
Borrower to make any payments due on any Indebtedness of Borrower
to any Affiliate or Subsidiary of Bank of America Corporation or
to any Affiliate of any Lender which continues unwaived beyond
any applicable grace periods specified in the documents
evidencing such Indebtedness; or failure of any Covered Person to
make any payment due on Indebtedness of such Person over $250,000
to Persons (other than Lenders under the Loan Documents) which
continues unwaived beyond any applicable grace period specified
in the documents evidencing such Indebtedness.
16.1.4. REPRESENTATIONS OR WARRANTIES. Any of the Representations
and Warranties is discovered to have been false in any material
respect when made.
16.1.5. CERTAIN COVENANTS. Failure of any Covered Person to
comply with the covenants in Sections 13.1, 13.13, 13.16, 13.17,
13.18, 14 or 15.
16.1.6. OTHER COVENANTS. Failure of any Covered Person to comply
with any of the terms or provisions of any of the Loan Documents
applicable to it (other than a failure which constitutes an
immediate Event of Default under, or for which some other grace
period is specified in, any other Section of this Section 16.1)
which is not remedied or waived in writing by Administrative
Agent within 30 days after the initial occurrence of such
failure; provided, however, that no such grace period shall
apply, and an Event of Default shall exist promptly upon such
failure to comply if such failure may not, in Administrative
Agent's reasonable determination, be cured by Borrower or such
Covered Person within such 30-day period.
16.1.7. ACCELERATION OF OTHER INDEBTEDNESS. Any Obligation (other
than a Loan Obligation) of a Covered Person for the repayment of
$250,000 or more of borrowed money becomes or is declared to be
due and payable or required to be prepaid (other than by an
originally scheduled prepayment) prior to the original maturity.
16.1.8. DEFAULT UNDER OTHER AGREEMENTS. The occurrence of any
default or event of default under any agreement to which a
Covered Person is a party (other than the Loan Documents), which
default or event of default continues unwaived beyond any
applicable grace period provided therein and such default or
event of default would result in a liability to Borrower of
$250,000 or more.
16.1.9. BANKRUPTCY; INSOLVENCY; ETC. A Covered Person (i) fails
to pay, or admits in writing its inability to pay, its debts
generally as they become due, or otherwise becomes insolvent
(however evidenced); (ii) makes an assignment for the benefit of
creditors; (iii) files a petition in bankruptcy, is adjudicated
insolvent or bankrupt, petitions or applies to any tribunal for
any receiver or any trustee of itself or any substantial part of
its property; (iv) commences any proceeding relating to itself
under any reorganization, arrangement, readjustment of debt,
dissolution or liquidation Law of any jurisdiction, whether now
or hereafter in effect; (v) has commenced against it any such
proceeding which remains undismissed for a period of 60 days, or
by any act indicates its consent to, approval of, or acquiescence
in any such proceeding or the appointment of any receiver of or
any trustee for it or of any substantial part of its property, or
allows any such receivership or
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trusteeship to continue undischarged for a period of 60 days; or
(vi) takes any action to authorize any of the foregoing.
16.1.10. JUDGMENTS; ATTACHMENT; SETTLEMENT; ETC. Any one or more
judgments or orders is entered against a Covered Person or any
attachment or other levy is made against the property of a
Covered Person with respect to a claim or claims involving in the
aggregate liabilities (not paid or fully covered by insurance,
less the amount of reasonable deductibles in effect on the
Execution Date) in excess of $250,000 and such judgement or order
becomes final and non-appealable or if timely appealed is not
fully bonded and collection thereof stayed pending the appeal; or
any Covered Person enters into an agreement to settle any claim
or controversy and the total amount (at current value based on a
capitalization rate of 9%) of the monetary Obligations of such
Covered Person under such agreement is in excess of $250,000.
16.1.11. PENSION BENEFIT PLAN TERMINATION, ETC. (i) Any Pension
Benefit Plan termination by the PBGC or the appointment by the
appropriate United States District Court of a trustee to
administer any Pension Benefit Plan or to liquidate any Pension
Benefit Plan; (ii) any event which constitutes grounds either for
the termination of any Pension Benefit Plan by PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer or liquidate any Pension Benefit Plan shall
have occurred and be continuing for 30 days after Borrower has
notice of any such event; (iii) any (a) voluntary termination of
any Pension Benefit Plan which is subject to Title IV of ERISA
while such Pension Benefit Plan has an ACCUMULATED FUNDING
DEFICIENCY as defined in Section 412(a) of the Code and the
treasury regulations thereunder, or (b) voluntary termination of
any Pension Benefit Plan with respect to which the funding
obligations under such Plan would be accelerated pursuant to Plan
terms as a result of such termination and such termination would
result in any material liability to such Covered Person or such
ERISA Affiliate, unless in the case of clauses (iii)(a) and
(iii)(b), Administrative Agent has been notified of such intent
to voluntarily terminate such Plan and Lenders have given their
consent and agreed that such event shall not constitute a
Default; or (iv) the plan administrator of any Pension Benefit
Plan applies under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(1) of the Code and
Lenders reasonably determine that the substantial business
hardship upon which the application for such waiver is based is
reasonably likely to subject any Covered Person or ERISA
Affiliate of any Covered Person to a liability in excess of
$250,000.
16.1.12. LIQUIDATION OR DISSOLUTION. A Covered Person files a
certificate of dissolution under applicable state Law or is
liquidated or dissolved or suspends or terminates the operation
of its business, or has commenced against it any action or
proceeding for its liquidation or dissolution or the winding up
of its business, or takes any corporate action in furtherance
thereof, except in connection with the merger or consolidation of
such a Covered Person and its assets into or with another Covered
Person and its assets or in connection with the liquidation or
dissolution of a Covered Person if the assets of such Covered
Person are distributed to another Covered Person.
16.1.13. SEIZURE OF ASSETS. All or any part of the property of
any Covered Person is nationalized, expropriated, seized or
otherwise appropriated, or custody or control of such property or
of such Person shall be assumed by any Governmental Authority or
any court of competent jurisdiction at the instance of any
Governmental Authority, unless the same is being contested in
good faith by proper proceedings diligently pursued and a stay of
enforcement is in effect.
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16.1.14. LOAN DOCUMENTS. Any Loan Document ceases to be in full
force and effect or is terminated, revoked or declared void or
invalid.
16.1.15. GUARANTY; GUARANTOR. Any Guaranty ceases to be in full
force and effect or any action is taken to discontinue or assert
the invalidity or unenforceability of any Guaranty or any
Guarantor fails to comply with any of the terms or provisions of
any Guaranty, or any representation or warranty of any Guarantor
therein is false, or any Guarantor denies that it has any further
liability under any Guaranty or gives notice to Lender to such
effect, or any Guarantor fails to furnish the financial
statements required under any Guaranty.
16.1.16. CHANGE OF CONTROL.
(i) Any Covered Person merges or consolidates with or into
any Person other than Borrower or a Guarantor (or a
Surviving Corporation which, contemporaneously with its
becoming a Surviving Corporation, becomes a Borrower or a
Guarantor);
(ii) In the case of any Guarantor, any Person or Group,
other than Young Innovations, Inc. (or a wholly-owned
Subsidiary thereof) becomes the record or beneficial owner,
directly or indirectly, of any of the outstanding voting
securities (or warrants or options therefor) of such Person
or otherwise directs or has the power to direct the
day-to-day control of such Person; or
(iii) The execution by any Covered Person of any letter of
intent or written agreement with respect to any proposed
transaction or event or series of transactions or events
that, individually or in the aggregate, could reasonably be
expected to result in any of the actions set forth in either
of subsections (i) or (ii) of this Section 16.1.16 (except
for any such letter of intent or written agreement, the
effectiveness of which is conditioned upon receiving the
consent of the Required Lenders).
16.1.17. DELIVERY OF POST-CLOSING ITEMS. Any Covered Person fails
to deliver to Administrative Agent any document or other item
listed or described on Exhibit 9.1.1 as being delivered or
executed after the Execution Date (with each being satisfactory
to Administrative Agent and (as applicable) duly executed and
(also as applicable) sealed, attested, acknowledged, certified,
or authenticated) within the time period set forth for the
delivery of such document or other item on Exhibit 9.1.1.
16.2. CROSS DEFAULT. An Event of Default under this Agreement will
automatically and immediately constitute a default under any other
agreement between Borrower and any Lender, any Affiliate of any Lender
or any Affiliate or Subsidiary of Bank of America Corporation and
under any evidence of Indebtedness of Borrower held by any Lender, any
Affiliate of any Lender or any Affiliate or Subsidiary of Bank of
America Corporation, whether or not it is defined as such therein and
without regard to any requirement therein for the giving of notice or
the passing of time.
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16.3. RIGHTS AND REMEDIES.
16.3.1. TERMINATION OF COMMITMENTS. Upon an Event of Default
described in Section 16.1.9, the Commitments shall be deemed
canceled. From and after the occurrence of any other Event of
Default that has not been waived in writing, Required Lenders may
cancel the Commitments; provided, however, from and after the
occurrence of any such other Event of Default that has not been
waived in writing, Bank of America may cancel the Swingline
Commitment without the consent of the Required Lenders; provided
further, however, that any termination of the Revolving
Commitment by Required Lenders will result in the immediate
termination of the Swingline Commitment. Any such cancellation
may be, in either case, without presentment, demand or notice of
any kind, which Borrower expressly waives.
16.3.2. ACCELERATION. Upon an Event of Default described in
Section 16.1.9, all of the outstanding Loan Obligations shall
automatically become immediately due and payable. From and after
the occurrence of any other Event of Default that has not been
waived in writing, Required Lenders may declare all of the
outstanding Loan Obligations immediately due and payable;
provided, however, from and after the occurrence of any such
other Event of Default that has not been waived in writing, Bank
of America may declare the Swingline Loan immediately due and
payable without the consent of the Required Lenders. Such
acceleration may be, in either case, without presentment, demand
or notice of any kind, which Borrower expressly waives.
16.3.3. RIGHT OF SETOFF.
16.3.3.1. IN GENERAL. From and after the occurrence of any
Event of Default that has not been waived in writing, each
Lender is hereby authorized, without notice to Borrower (any
such notice being expressly waived by Borrower), to the
fullest extent permitted by law, to setoff and apply against
the Loan Obligations any and all deposits (general or
special, time or demand, provisional or final) at any time
held, or any other Indebtedness at any time owing by such
Lender (or its Affiliate) to or for the credit or the
account of Borrower, irrespective of whether or not such
Lender shall have made any demand under this Agreement or
the Notes or any Guaranty and although such Loan Obligations
may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff)
which such Lender may otherwise have.
16.3.3.2. SHARING OF RECOVERIES. (a) Each Lender agrees that
(i) if it shall exercise any right of counterclaim, setoff,
banker's lien or similar right or if under any applicable
bankruptcy, insolvency or other similar law, it receives any
secured claim, the security for which is a debt owed by it
to the Borrower, including any secured claim deemed secured
under Section 506 of the Bankruptcy Code, and (ii) if, as a
result of the exercise of a right or the receipt of any
secured claim described in clause (i) of this Section or
otherwise, it shall receive payment of a proportion of the
aggregate amount due and payable to it hereunder and under
the other Loan Documents as principal, interest, fees or
expense reimbursements that is greater than the proportion
received by any other Lender in respect to the aggregate of
such amounts due and payable to such other Lender hereunder
and under the other Loan Documents, the Lender receiving
such proportionately greater payment shall purchase
participations (which shall
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be deemed to have occurred simultaneously upon the receipt
of such payment) in the rights of the other Lenders
hereunder and under the other Loan Documents so that all
such recoveries with respect to such amounts due and payable
hereunder and under other Loan Documents by all of the
Lenders shall be pro rata; provided that if all or part of
such proportionately greater payment received by the
purchasing Lender is thereafter recovered by or on behalf of
the Borrower from such Lender, such purchases shall be
rescinded and the purchase prices paid for such
participations shall be returned to such Lender to the
extent of such recovery, but without interest (unless the
purchasing Lender is required to pay interest on the amount
recovered to the Person recovering such amount, in which
case the selling Lender shall be required to pay interest at
a like rate). Any Lender receiving any such secured claim
shall exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders
entitled under this Section to share in the benefits of any
recovery on such secured claim.
16.3.3.3. BORROWER CONSENT. The Borrower expressly consents
to the arrangements set forth in this Section and agrees
that any holder of a participation in any rights hereunder
or under any other Loan Document so purchased or acquired
pursuant to this Section may exercise any and all rights to
setoff and any other rights with respect to such
participation as fully as if such holder were a direct
creditor of the Borrower in the amount of such
participation.
16.3.4. MISCELLANEOUS. From and after the occurrence of any Event
of Default that has not been waived in writing, Lenders may
exercise any other rights and remedies available to Lenders under
the Loan Documents or otherwise available to Lenders at law or in
equity.
16.4. APPLICATION OF FUNDS. Any funds received by Lenders or
Administrative Agent for the benefit of Lenders with respect to any
Loan Obligation after its Maturity, shall be applied as follows: (i)
first, to reimburse Lenders pro-rata for any amounts due to Lenders
under Section 19.8; (ii) second, to reimburse to Administrative Agent
all unreimbursed costs and expenses paid or incurred by Administrative
Agent that are payable or reimbursable by Borrower hereunder; (iii)
third, to reimburse to Lenders pro-rata all unreimbursed costs and
expenses paid or incurred by Lenders (including costs and expenses
incurred by Administrative Agent as a Lender that are not reimbursable
as provided in the preceding clause) that are payable or reimbursable
by Borrower hereunder; (iv) fourth, to the payment of accrued and
unpaid fees due hereunder and all other amounts due hereunder (other
than the Loans and interest accrued thereon); (v) fifth, to the
payment of the Loans of each of the Lenders and interest accrued
thereon (which payments shall be pro rata to each of the Lenders in
accordance with the amount of the Loans outstanding) and to the
payment (pari passu with the foregoing) of any Hedging Obligations;
(vi) sixth, to Letter of Credit Issuer as cash collateral for the
Letter of Credit Exposure; and (vii) seventh, to the payment of the
other Loan Obligations. Any remaining amounts shall be applied to
payment of all the Obligations to Administrative Agent. Any further
remaining amounts shall be paid to Borrower or such other Persons as
shall be legally entitled thereto. Except as expressly provided
otherwise herein, after Maturity, Lenders may apply and reverse and
reapply, payments to the Loan Obligations in such order and manner as
Lenders determine in their absolute discretion.
16.5. NOTICE. Any notice of intended action required to be given by
Administrative Agent, if given as provided in Section 20.1 at least 10
days prior to such proposed action, shall be effective and constitute
reasonable and fair notice to Borrower.
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17. ADMINISTRATIVE AGENT AND LENDERS.
17.1. APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
17.1.1. Each Lender hereby irrevocably (subject to Section 17.9)
appoints, designates and authorizes Administrative 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 it by the terms
of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any
other Loan Document, Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, nor shall Administrative Agent have or be deemed to have
any fiduciary relationship with any Lender or participant, 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 Administrative
Agent. Without limiting the generality of the foregoing sentence,
the use of the terms Administrative Agent or agent herein and in
the other Loan Documents with reference to Administrative Agent
are not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an
administrative relationship between independent contracting
parties.
17.1.2. The Letter of Credit Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith until such time (and except
for so long) as Administrative Agent may agree at the request of
the Required Lenders to act for the Letter of Credit Issuer with
respect thereto; provided, however, that the Letter of Credit
Issuer shall have all of the benefits and immunities (i) provided
to Administrative Agent in this Section 17 with respect to any
acts taken or omissions suffered by the Letter of Credit Issuer
in connection with Letters of Credit issued by it or proposed to
be issued by it and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as if the
term Administrative Agent as used in this Section 17 included the
Letter of Credit Issuer with respect to such acts or omissions,
and (ii) as additionally provided herein with respect to the
Letter of Credit Issuer.
17.2. DELEGATION OF DUTIES. Administrative 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 and other consultants or experts concerning all
matters pertaining to such duties. Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or
willful misconduct.
17.3. LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall
(a) 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 in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation
or warranty made by any Covered Person or any officer thereof,
contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or
received by Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness,
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enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Covered Person 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 or participant 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 properties, books or records of any Covered Person or any
Affiliate thereof.
17.4. RELIANCE BY ADMINISTRATIVE AGENT.
17.4.1. Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication,
signature, resolution, representation, 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 any Covered
Person), independent accountants and other experts selected by
Administrative Agent. Administrative Agent shall be fully
justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and,
if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Administrative 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 Required Lenders or
all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and participants. Where this Agreement
expressly permits or prohibits an action unless the Required
Lenders otherwise determine, Administrative Agent shall, and in
all other instances, Administrative Agent may, but shall not be
required to, initiate any solicitation for the consent or a vote
of the Lenders.
17.4.2. For purposes of determining compliance with the
conditions specified in Section 9.1, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
either sent by Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to
be consented to or approved by or acceptable or satisfactory to a
Lender.
17.5. NOTICE OF DEFAULT. Administrative 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 and fees required to be paid to Administrative Agent for the
account of the Lenders, unless Administrative Agent shall have
received written notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a notice of default. Administrative Agent
will notify the Lenders of its receipt of any such notice.
Administrative Agent shall take such action with respect to such
Default or Event of Default as may be directed by the Required Lenders
in accordance with Section 16.3; provided, however, that unless and
until Administrative Agent has received any such direction,
Administrative 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 or in the best
interest of the Lenders.
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17.6. CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made
any representation or warranty to it, and that no act by
Administrative Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Covered
Person or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender
as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender
represents to Administrative 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 the Covered Persons and their respective
Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the
Borrower hereunder. 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 the
Borrower and the other Covered Persons. Except for notices, reports
and other documents expressly required to be furnished to the Lenders
by Administrative Agent herein, Administrative Agent shall not have
any duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of
the Covered Persons or any of their respective Affiliates which may
come into the possession of any Agent-Related Person.
17.7. INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Covered Person and without limiting
the obligation of any Covered Person to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no
Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such
Person's gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse Administrative Agent upon
demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by Administrative 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 or
therein, to the extent that Administrative Agent is not reimbursed for
such expenses by or on behalf of the Borrower. The undertaking in this
Section shall survive termination of the Commitments, the payment of
all Loan Obligations hereunder and the resignation or replacement of
Administrative Agent.
17.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in (such
equity interests not to exceed $10,000,000 in the aggregate for all
Covered Persons), and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with, each of the
Covered Persons and their respective Affiliates as though Bank of
America were not Administrative Agent or the Letter of Credit Issuer
hereunder and without
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notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may
receive information regarding any Covered Person or its Affiliates
(including information that may be subject to confidentiality
obligations in favor of such Covered Person or such Affiliate) and
acknowledge that Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of
America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it
were not Administrative Agent or the Letter of Credit Issuer, and the
Lender and Lenders include Bank of America in its individual capacity.
17.9. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders. If
Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative
agent shall be consented to by the Borrower at all times other than
from and after the occurrence of an Event of Default that has not been
waived in writing (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative
agent is appointed prior to the effective date of the resignation of
Administrative Agent, Administrative Agent may appoint, after
consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of
its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term
Administrative Agent shall mean such successor administrative agent
and the retiring Administrative Agent's appointment, powers and duties
as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 17 and other Sections benefiting
Administrative Agent shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has
accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform
all of the duties of Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided
for above. Notwithstanding the foregoing, however, Bank of America may
not be removed as Administrative Agent at the request of the Required
Lenders unless Bank of America shall also simultaneously be replaced
and fully released as Letter of Credit Issuer.
17.10. COLLECTIONS AND DISTRIBUTIONS TO LENDERS BY ADMINISTRATIVE
AGENT. Except as otherwise provided in this Agreement, all payments of
interest, fees, principal and other amounts received by Administrative
Agent for the account of Lenders shall be distributed by
Administrative Agent to Lenders in accordance with their pro rata
shares of the outstanding Loan Obligations at the time of such
distribution (or entirely to Bank of America in the case of payments
of interest, fees or principal with respect to the Swingline Loan) on
the same Business Day when received, unless received after 12:00 noon
(Local Time) in which case they shall be so distributed by 12:00 noon
(Local Time) on the next Business Day. All amounts received by any
Lender on account of the Loan Obligations, including amounts received
by way of setoff, shall be paid over promptly to Administrative Agent
for distribution to Lenders as provided above in this Section. Such
distributions shall be made according to instructions that each Lender
may give to Administrative Agent from time to time.
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18. CHANGE IN CIRCUMSTANCES.
18.1. COMPENSATION FOR INCREASED COSTS AND REDUCED RETURNS.
18.1.1. LAW CHANGES OR TAX IMPOSITIONS. If, after the Effective
Date, the adoption of any applicable Law or any change in any
applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority charged with
the interpretation or administration thereof, or compliance by
any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency:
(i) subjects such Lender (or its Applicable Lending Office)
to any Tax with respect to any Eurodollar Loans or its
obligation to make Eurodollar Loans, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement in respect
of any Eurodollar Loans (other than Taxes imposed on the
overall net income of such Lender or franchise taxes or
gross receipts taxes chargeable on the basis of income or
revenue of such Lender) by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) imposes, modifies, or deems applicable any reserve,
special deposit, assessment or similar requirement (other
than the reserve requirement utilized in the determination
of the Eurodollar Rate) relating to any extensions of credit
or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitment(s) of
such Lender hereunder; or
(iii) imposes on such Lender (or its Applicable Lending
Office) or on the United States market for certificates of
deposit or the London interbank market any other condition
affecting this Agreement, its Commitments or its Note or any
of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making,
converting into, continuing, or maintaining any Loans or to
reduce any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or any of its
Notes with respect to any Loans, then Borrower shall pay to such
Lender on demand such amount or amounts as will compensate such
Lender for such increased cost or reduction. If any Lender
requests compensation by Borrower under this Section 18.1.1,
Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to
make or continue Loans of the type with respect to which such
compensation is requested, or to convert Loans of any other type
into Loans of such type, until the event or condition giving rise
to such request ceases to be in effect (in which case the
provisions of Section 18.5 shall be applicable); provided,
however, that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
18.1.2. CAPITAL ADEQUACY. If, after the Effective Date, any
Lender shall have determined that the adoption of any applicable
Law regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or
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not having the force of law) of any such governmental authority,
central bank, or comparable agency, has or would have the effect
of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such
adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy),
then from time to time upon demand Borrower shall pay to such
Lender such additional amount or amounts as will compensate such
Lender for such reduction.
18.1.3. NOTICE TO BORROWER. Each Lender shall promptly notify
Borrower and Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle
such Lender to compensation pursuant to this Section 18.1 and
will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 18.1 shall furnish to Borrower
and Administrative Agent a statement setting forth in reasonable
detail the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest
error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
18.2. MARKET FAILURE. If on or prior to the first day of any Interest
Period for any Eurodollar Loan:
(i) Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
(ii) the Required Lenders determine (which determination shall be
conclusive) and notify Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Loans for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be
under no obligation to make additional Eurodollar Loans, continue
Eurodollar Loans, or to convert Eurodollar Loans and Borrower shall,
on the last day(s) of the then current Interest Period(s) for any
outstanding Eurodollar Loans either prepay such Loans or convert such
Loans into Base Rate Loans in accordance with the terms of this
Agreement.
18.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans
hereunder, then such Lender shall promptly notify Borrower thereof and
such Lender's obligation to make, continue Eurodollar Loans or convert
Base Rate Loans into Eurodollar Loans shall be suspended until such
time as such Lender may again make, maintain, and fund Eurodollar
Loans (in which case the provisions of Section 18.5 shall be
applicable).
18.4. COMPENSATION. Upon the request of any Lender, Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss,
cost, or expense incurred by it as a result of:
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(i) any payment, prepayment, or conversion of a Eurodollar Loan
for any reason (including, without limitation, the acceleration
of the Loans pursuant to the terms hereof) on a date other than
the last day of the Interest Period for such Eurodollar Loan; or
(ii) any failure by Borrower for any reason to borrow, convert,
continue, or prepay a Eurodollar Loan on the date for such
borrowing, conversion, continuation, or prepayment specified in
the relevant notice of borrowing, prepayment, continuation, or
conversion under this Agreement.
If a Lender claims compensation under this Section 18.4, such Lender
shall furnish a certificate to Borrower that states in reasonable
detail the amount to be paid to it hereunder and includes a
description of the method used by such Lender in calculating such
amount. Borrower shall have the burden of proving that the amount of
any such compensation calculated by a Lender is not correct. Any
compensation payable by Borrower to a Lender under this Section 18.4
shall be payable without regard to whether such Lender has funded its
pro-rata share of any Eurodollar Advance or Eurodollar Loan through
the purchase of deposits in an amount or of a maturity corresponding
to the deposits used as a reference in determining the Eurodollar
Rate.
18.5. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Loan or to continue any Eurodollar Loan, or to
convert any Base Rate Loan into a Eurodollar Loan shall be suspended
pursuant to Section 18.1, 18.2 or 18.3 (such Loans being herein called
Affected Loans), such Lender's Affected Loans shall be automatically
and immediately converted into Base Rate Loans on the last day(s) of
the then current Interest Period(s) for Affected Loans (or, in the
case of a conversion required by Section 18.3, on such earlier date as
such Lender may specify by written notice to Borrower with a copy to
Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 18.1,
18.2, or 18.3 that gave rise to such conversion no longer exist:
(i) to the extent that such Lender's Affected Loans have been so
converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall
continue to be made and applied as provided for herein; and
(ii) all Loans that would otherwise be made or continued by such
Lender as Eurodollar Loans shall be made or continued instead as
Base Rate Loans, and all Loans of such Lender that would
otherwise be converted into Eurodollar Loans shall be converted
instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to Administrative
Agent) that the circumstances specified in Section 18.1, 18.2 or 18.3
hereof that gave rise to the conversion of such Lender's Affected
Loans pursuant to this Section 18.5 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a
time when Loans of the type of the Affected Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Loans of the type of the
Affected Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Loans of the type of
the Affected Loans and by such Lender are held pro rata (as to
principal amounts, type of interest, and Interest Periods) in
accordance with their respective Revolving Loan Commitments.
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18.6. TAXES.
18.6.1. GROSS-UP. Any and all payments by Borrower to or for the
account of any Lender or the Administrative Agent hereunder or
under any other Loan Document shall be made free and clear of and
without deduction for any and all Taxes, whether imposed now or
in the future, excluding, in the case of each Lender and the
Administrative Agent, Taxes imposed on its income, and franchise
and gross receipts Taxes imposed on it, by the jurisdiction under
the Laws of which such Lender (or its Applicable Lending Office)
or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof. If Borrower is required by Law
to deduct any Taxes from or in respect of any sum payable under
this Agreement or any other Loan Document to any Lender or the
Administrative Agent, (i) the sum payable will be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 18.6) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions,
(iii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable Law, and (iv) Borrower shall furnish to Administrative
Agent, at its address referred to herein, the original or a
certified copy of a receipt evidencing payment thereof. In
addition, Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made
under this Agreement or any other Loan Document or from the
execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as
Impositions). Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Impositions
(including, without limitation, any Taxes or Impositions imposed
or asserted by any jurisdiction on amounts payable under this
Section 18.6) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. Within
30 days after the date of any payment of Taxes, Borrower shall
furnish to Administrative Agent the original or a certified copy
of the receipt evidencing such payment.
18.6.2. LENDERS' UNDERTAKINGS.
(i) Each Lender organized under the Laws of a jurisdiction
outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each
Lender listed on the signature pages hereof and on or prior
to the date on which it becomes a Lender in the case of each
other Lender, and from time to time thereafter if requested
in writing by Borrower or Administrative Agent (but only so
long as such Lender remains lawfully able to do so), shall
provide Borrower and Administrative Agent with (i) Internal
Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party
which reduces the rate of withholding Tax on payments of
interest or certifying that the income receivable pursuant
to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any
successor form prescribed by the Internal Revenue Service,
and (iii) any other form or certificate required by any
Governmental Authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled
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to an exemption from or a reduced rate of Tax on payments
pursuant to this Agreement or any of the other Loan
Documents. For any period with respect to which a Lender has
failed to provide Borrower and Administrative Agent with the
appropriate form pursuant to this Section 18.6.2 (unless
such failure is due to a change in treaty or Law occurring
subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled
to indemnification under Section 18.6.1 with respect to
Taxes imposed by the United States; provided, however, that
should a Lender, which is otherwise exempt from or subject
to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender
shall reasonably request (at such Lender's sole cost and
expense) to assist such Lender to recover such Taxes.
(ii) If Borrower is required to pay additional amounts to or
for the account of any Lender or Administrative Agent
pursuant to Section, then such Lender or the Administrative
Agent shall use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such
Lender or the Administrative Agent, as the case may be, is
not otherwise disadvantageous to such Lender or the
Administrative Agent, as the case may be. The Borrower shall
be entitled to be reimbursed by Administrative Agent or any
Lender, within a reasonable time after Borrower's request
therefor, for any additional amounts its pays to or for the
account of Administrative Agent or such Lender,
respectively, pursuant to this Section 18.6 to the extent
that Administrative Agent or such Lender actually receives
(either by refund, deduction, credit or otherwise)
additional monetary payments in respect of the Taxes in
respect of which such additional amounts were paid by
Borrower.
18.6.3. SURVIVAL OF BORROWER'S OBLIGATIONS. Without prejudice to
the survival of any other agreement of Borrower hereunder, the
agreements and obligations of Borrower contained in this Section
18.6 shall survive the termination of the Commitments, the
expiration of the Letters of Credit, and the indefeasible full
payment and satisfaction of all of the Loan Obligations.
18.7. USURY. Notwithstanding any provisions to the contrary in Section
4 or elsewhere in any of the Loan Documents, Borrower shall not be
obligated to pay interest at a rate which exceeds the maximum rate
permitted by applicable Law. If, but for this Section 18.7, Borrower
would be deemed obligated to pay interest at a rate which exceeds the
maximum rate permitted by Law, or if any of the Loan Obligations is
paid or becomes payable before the Revolving Loan Maturity Date and as
a result Borrower has paid or would be obligated to pay interest at
such an excessive rate, then (i) Borrower shall not be obligated to
pay interest to the extent it exceeds the interest that would be
payable at the maximum rate permitted by applicable Law; (ii) if the
outstanding Loan Obligations have not been accelerated as provided in
Section 16.3.2, any such excess interest that has been paid by
Borrower shall be refunded; (iii) if the outstanding Loan Obligations
have been accelerated as provided in Section 16.3.2, any such excess
that has been paid by Borrower shall be applied to the Loan
Obligations as provided in Section 16.4; and (iv) the effective rate
of interest shall be deemed automatically reduced to the maximum rate
permitted by applicable Law.
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19. GENERAL.
19.1. LENDERS' RIGHT TO CURE. Lenders may from time to time, in their
absolute discretion, for Borrower's account and at Borrower's expense,
pay (or, with the consent of Required Lenders, make a Revolving Loan
Advance to pay) any amount or do any act required of Borrower
hereunder or requested in accordance with the terms hereof by
Administrative Agent or Required Lenders to preserve, protect,
maintain or enforce the Loan Obligations, and which Borrower fails to
pay or do. All payments that Lenders make pursuant to this Section and
all out-of-pocket costs and expenses that Lenders pay or incur in
connection with any action taken by them hereunder shall be a part of
the Loan Obligations. Any payment made or other action taken by
Lenders pursuant to this Section shall be without prejudice to any
right to assert an Event of Default hereunder and to pursue Lender's
other rights and remedies with respect thereto.
19.2. RIGHTS NOT EXCLUSIVE. Every right granted to Administrative
Agent and Lenders hereunder or under any other Loan Document or
allowed to it at law or in equity shall be deemed cumulative and may
be exercised from time to time.
19.3. SURVIVAL OF AGREEMENTS. All covenants and agreements made herein
and in the other Loan Documents shall survive the execution and
delivery of this Agreement, the Notes and other Loan Documents and the
making of every Advance. All agreements, obligations and liabilities
of Borrower under this Agreement concerning the payment of money to
Administrative Agent and Lenders, including Borrower's obligations
under Sections 19.7 and 19.8, but excluding the obligation to repay
the Loans and interest accrued thereon, shall survive the repayment in
full of the Loans and interest accrued thereon, whether or not
indefeasible, the return of the Notes to Borrower, the termination of
the Commitments and the expiration of all Letters of Credit.
19.4. ASSIGNMENTS.
19.4.1. PERMITTED ASSIGNMENTS. At any time after the Execution
Date, any Lender may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement
(including all or a portion of the Notes payable to it, its
Commitments and its Loans), provided that the terms of assignment
satisfy the following requirements:
19.4.1.1. Administrative Agent shall have accepted the
assignment, which acceptance shall not be unreasonably
withheld.
19.4.1.2. Each such assignment shall be of a constant, and
not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement.
19.4.1.3. For each assignment involving the issuance and
transfer of Notes, the assigning Lender shall execute an
Assignment and Acceptance in the form attached hereto as
Exhibit 19.4.1 (an Assignment and Acceptance) together with
any Note subject to such assignment and a processing fee of
$3,500.
19.4.1.4. The minimum Commitment which shall be assigned
(which shall include the applicable portion of the assigning
Lender's Revolving Loan Commitment and its pro-rata
undivided interest and participation in Letters of Credit
(and in the case of an assignment by Bank of America of its
entire Commitments, the entire Swingline Commitment)) is
$5,000,000 or such lesser
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amount which constitutes such Lender's entire Commitment;
provided, however, that no such minimum shall apply between
a Lender and its Affiliates, or between one Lender and
another Lender or an assignment of all of a Lender's rights
and obligations under this Agreement. Notwithstanding the
foregoing, Bank of America may not assign less than its
entire Swingline Commitment.
19.4.1.5. The assignee shall have an office located in the
United States and is otherwise an Eligible Assignee.
19.4.2. CONSEQUENCES AND EFFECT OF ASSIGNMENTS. From and after
the effective date specified in any Assignment and Acceptance,
the assignee shall be deemed and treated as a party to this
Agreement and, to the extent that rights and obligations
hereunder and under the Notes held by the assignor have been
assigned or negotiated to the assignee pursuant to such
Assignment and Acceptance, to have the rights and obligations of
a Lender hereunder as fully as if such assignee had been named as
a Lender in this Agreement and of a holder of such Notes, and the
assignor shall, to the extent that rights and obligations
hereunder or under such Notes have been assigned or negotiated by
it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its future obligations under this
Agreement. Upon the consummation of any assignment pursuant to
this Section, the assignor, Administrative Agent and Borrower
shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall deliver to Borrower and
Administrative Agent certification as to the exemption from
deduction or withholding of Taxes in accordance with Section
18.6.
19.4.3. AGREEMENTS UPON ASSIGNMENT. By executing and delivering
an Assignment and Acceptance, the assignor thereunder and the
assignee confirm to and agree with each other and the other
parties hereto substantially as follows: (i) the assignment made
under such Assignment and Acceptance is made under such
Assignment and Acceptance without recourse; (ii) such assignor
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Covered Person or
the performance or observance by any Covered Person of any of its
Loan Obligations; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the
Financial Statements and such other Loan Documents and other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon Administrative Agent, such assignor, or
any other Lender, and based on such documents and information as
it deems appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and authorizes Administrative Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the other Loan Documents as are
delegated to Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender and a holder of a
Note.
19.4.4. REGISTER. Administrative Agent shall maintain at its
address referred to herein a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitments of and principal amount of Loans owing to, each
Lender from time to time (the Register).
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The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and Borrower, Administrative
Agent and Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice. Upon its receipt of an
Assignment and Acceptance executed by the parties thereto,
together with any Note subject to such assignment and payment of
the processing fee, Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 19.4.1 hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to
the parties thereto.
19.4.5. NOTICE TO BORROWER OF ASSIGNMENT. Upon its receipt of an
Assignment and Acceptance executed by an assigning Lender, if
Administrative Agent accepts the assignment contemplated thereby,
Administrative Agent shall give prompt notice thereof to
Borrower. Borrower shall execute and deliver replacement Notes to
the assignor and assignee as requested by Administrative Agent
and necessary to give effect to the assignment. If Borrower fails
or refuses to execute and deliver such replacement Notes,
Administrative Agent may, as agent and attorney-in-fact for
Borrower, execute and deliver such replacement Notes on behalf of
Borrower. Borrower hereby appoints Administrative Agent as its
agent and attorney-in-fact for such purpose and acknowledges that
such power is coupled with an interest and therefore irrevocable.
Administrative Agent shall not have any liability to Borrower or
anyone else, including any Lender, as a consequence of exercising
such power in any instance.
19.4.6. ASSIGNMENT TO FEDERAL RESERVE BANK. Notwithstanding any
other provision set forth in this Agreement, any Lender may at
any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
19.5. SALE OF PARTICIPATIONS. Each Lender may sell participations to
one or more Persons (other than Borrower or an Affiliate of Borrower)
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and its Loans);
provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of
the yield protection provisions contained in Section 18 to the same
extent as the Lender granting the participation (it being understood
that a participant's compensation in any particular instance under
Section 18 shall be limited to the amount the Lender granting the
participation is entitled to receive at such time in respect of such
participated amount) and the right of setoff contained in Section
16.3.3, (iv) the amount of the participation shall be in a minimum
amount of $5,000,000 or such lesser amount which constitutes the
entire amount of such Lender's Commitments, provided, however, that no
such minimum amount shall apply to participations between any of
Lenders or between any Lender and any of its Affiliates; and (v)
Borrower, the other Lenders and Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of Borrower
relating to its Loans, its Notes and its funding of Advances and to
approve any amendment, modification, or waiver of any provision of
this Agreement (other than amendments, modifications, or waivers that
(a) decrease the amount of principal of the Loans, (b) reduce the rate
at which interest is payable on the Loans, (c) extend the final
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maturity of the Notes, (d) increase its Commitments if such increase
is to be shared by any such Participant), or (e) release any
Guarantor. Notwithstanding the foregoing, the sale of any such
participations which require Borrower to file a registration statement
with the SEC or under the securities Laws of any state shall not be
permitted.
19.6. INFORMATION. Any Lender or Administrative Agent may furnish any
information concerning Borrower or any of its Subsidiaries in the
possession of such Lender or Administrative Agent, as the case may be,
from time to time to assignees and participants (including prospective
assignees and participants).
19.7. PAYMENT OF EXPENSES. Borrower agrees to pay or reimburse to
Administrative Agent all of Administrative Agent's out-of-pocket costs
incurred in connection with Administrative Agent's due diligence
review before execution of the Loan Documents; the negotiation and
preparation of proposals, a commitment letter and the Loan Documents;
the syndication of the Loans; the administration of this Agreement,
the Loan Documents and the Loans; the interpretation of any of the
Loan Documents; the enforcement of Administrative Agent's rights and
remedies under the Loan Documents after a Default or Event of Default;
any amendment of or supplementation to any of the Loan Documents; and
any waiver, consent or forbearance with respect to any Default or
Event of Default. Administrative Agent's out-of-pocket costs may
include but are not limited to the following, to the extent they are
actually paid or incurred by Administrative Agent: the cost of
searches for Security Interests existing against Covered Persons;
litigation costs; and all attorneys' and paralegals' expenses and
reasonable fees. Attorneys' and paralegals' expenses may include but
are not limited to filing charges; telephone, data transmission,
facsimile and other communication costs; courier and other delivery
charges; and photocopying charges. Litigation costs may include but
are not limited to filing fees, deposition costs, expert witness fees,
expenses of service of process, and other such costs paid or incurred
in any administrative, arbitration, or court proceedings involving a
Lender and any Covered Person, including proceedings under the Federal
Bankruptcy Code. All costs which Borrower is obligated to pay or
reimburse Administrative Agent are Loan Obligations payable to
Administrative Agent and are payable on demand by Administrative
Agent; provided, however, that if demand for payment of such costs is
made after 11:00 (Local Time) on any day (except for demand made under
Section 16.3.2), payment shall be made thereon by Borrower on the
following Business Day.
19.8. GENERAL INDEMNITY.
19.8.1. Borrower agrees to indemnify and hold harmless
Administrative Agent and each Lender and each of their affiliates
and their respective officers, directors, employees, agents, and
advisors (each, an Indemnified Party) from and against any and
all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of
the proceeds of the Loans, or the manufacture, storage,
transportation, release or disposal of any Hazardous Material on,
from, over or affecting any of the assets, properties, or
operations of any Covered Person or any predecessor in interest,
directly or indirectly, except to the extent such claim, damage,
loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an
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investigation, litigation or other proceeding to which the
indemnity in this Section 19.8 applies, such indemnity shall be
effective whether or not such investigation, litigation or
proceeding is brought by Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. Borrower
agrees not to assert any claim against Administrative Agent, any
Lender, any of their affiliates, or any of their respective
directors, officers, employees, attorneys, agents, and advisers,
on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the
Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
19.8.2. The obligations of Borrower under this Section 19.8 shall
survive the termination of the Commitments, the expiration of the
Letters of Credit, and the indefeasible full payment and
satisfaction of all of the Loan Obligations.
19.8.3. To the extent that any of the indemnities required from
Borrower under this Section are unenforceable because they
violate any Law or public policy, Borrower shall pay the maximum
amount which it is permitted to pay under applicable Law.
19.9. LETTERS OF CREDIT. Borrower assumes all risks of the acts or
omissions of any beneficiary of any of the Letters of Credit. Neither
Administrative Agent nor any of its directors, officers, employees,
agents, or representatives shall be liable or responsible for: (a) the
use which may be made of any of the Letters of Credit or for any acts
or omissions of beneficiary in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement(s)
thereon, even if such documents should in fact prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (c) payment
by Administrative Agent against presentation of documents which, on
their face, appear to comply with the terms of any Letter of Credit,
even though such documents may fail to bear any reference or adequate
reference to any such Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under any Letter of
Credit in connection with which Administrative Agent would, pursuant
to the Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 (as
amended from time to time) or the International Standby Practices
(ISP98), be absolved from liability. In furtherance and not in
limitation of the foregoing, Letter of Credit Issuer may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
19.10. LOAN RECORDS. The date and amount of all Advances to Borrower
and payments of amounts due from Borrower under the Loan Documents
will be recorded in the records that Administrative Agent normally
maintains for such types of transactions. The failure to record, or
any error in recording, any of the foregoing shall not, however,
affect the obligation of Borrower to repay the Loans and other amounts
payable under the Loan Documents. Borrower shall have the burden of
proving that such records are not correct. Borrower agrees that
Administrative Agent's and any Lender's books and records showing the
Loan Obligations and the transactions pursuant to this Agreement shall
be admissible in any action or proceeding arising therefrom, and shall
constitute prima facie proof thereof, irrespective of whether any Loan
Obligation is also evidenced by a promissory note or other instrument.
Administrative Agent will provide to Borrower a monthly statement of
Advances, payments, and other transactions pursuant to this Agreement.
Such statement shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reversals and
reapplications of payments as provided in Section 6.6 and corrections
of errors discovered by Administrative Agent or a Lender), unless
Borrower notifies
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Administrative Agent in writing to the contrary within 60 days after
such statement is rendered. In the event a timely written notice of
objections is given by Borrower, only the items to which exception is
expressly made will be considered to be disputed by Borrower
19.11. OTHER SECURITY AND GUARANTIES. Administrative Agent or any
Lender may, without notice or demand and without affecting Borrower's
obligations hereunder, from time to time: (a) take from any Person and
hold collateral for the payment of all or any part of the Loan
Obligations and exchange, enforce and release such collateral or any
part thereof; and (b) accept and hold any endorsement or guaranty of
payment of all or any part of the Loan Obligations and release or
substitute any such endorser or guarantor, or any Person who has given
any Security Interest in any other collateral as security for the
payment of all or any part of the Loan Obligations, or any other
Person in any way obligated to pay all or any part of the Loan
Obligations.
19.12. LOAN OBLIGATIONS PAYABLE IN DOLLARS. All Loan Obligations that
are payable in Dollars under the terms of the Loan Documents shall be
payable only in Dollars. If, however, to obtain a judgment in any
court it is necessary to convert a Loan Obligation payable in Dollars
into another currency, the rate of exchange used shall be that at
which Administrative Agent, using its customary procedures, could
purchase Dollars with such other currency in New York, New York on the
Business Day immediately preceding the day on which such judgment is
rendered. If any sum in another currency is paid to a Lender or
received by a Lender and applied to a Loan Obligation payable in
Dollars, such Loan Obligation shall be deemed paid and discharged only
to the extent of the amount of Dollars that Administrative Agent,
using its customary procedures, is able to purchase in New York, New
York with such sum on the Business Day immediately following receipt
thereof. Borrower agrees to indemnify each Lender against any loss in
Dollars that it may incur on such Loan Obligation as a result of such
payment or receipt and application to such Loan Obligation.
20. MISCELLANEOUS.
20.1. NOTICES. All notices, consents, requests and demands to or upon
the respective parties hereto shall be in writing, and shall be deemed
to have been given or made when delivered in person to those Persons
listed on Exhibit S or when deposited in the United States mail,
postage prepaid, or, in the case of telegraphic notice, or the
overnight courier services, when delivered to the telegraph company or
overnight courier service, or in the case of telex or telecopy notice,
when sent, verification received, in each case addressed as set forth
on Exhibit S, or such other address as either party may designate by
notice to the other in accordance with the terms of this Section. No
notice given to or demand made on Borrower by Administrative Agent or
any Lender in any instance shall entitle Borrower to notice or demand
in any other instance.
20.2. AMENDMENTS AND MODIFICATIONS; WAIVERS AND CONSENTS. Unless
otherwise provided herein, no amendment to or modification of any
provision of this Agreement, or of any of the other Loan Documents
shall be effective unless it is in writing and signed by authorized
officers of Borrower and Required Lenders. Unless otherwise provided
herein, no waiver of, or consent to any departure by Borrower from,
the requirements of any provision of this Agreement or any of the
other Loan Documents shall be effective unless it is in writing and
signed by authorized officers of Required Lenders. Any such amendment,
modification, waiver or consent shall be effective only in the
specific instance and for the purpose for which given. The foregoing
notwithstanding, no such amendment, modification or consent shall,
unless signed by authorized officers of all Lenders: (i) change any
Revolving Loan Commitment of any Lender, or change the Letter of
Credit Commitment or subject any Lender or the Letter of Credit Issuer
to a greater
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obligation than expressly provided for in this Agreement, (ii) reduce
or forgive the repayment of principal of any Advance or the
reimbursement of any draw on a Letter of Credit or change the rate, or
mechanism for determining the rate, of interest on any Advance or any
fees or other amounts payable by Borrower hereunder, (iii) change the
regularly scheduled dates for payments of principal or interest of any
Advance or other fees or amounts payable to any Lender under the Loan
Documents (including, without limitation, the Revolving Loan Maturity
Date), (iv) release any Guarantor or other Person liable, directly or
indirectly for the Loan Obligations, (v) change the provisions of
Section 17 to the detriment of any Lender, (vi) change the definition
of Required Lenders herein, (vii) change any requirement herein that
any particular action be taken by all Lenders or by Required Lenders,
(viii) change the provisions of this Section, (ix) release any Covered
Person from its obligations under the Loan Documents, or (x) change
any provisions of this Agreement requiring ratable distributions to
Lenders. No failure by Administrative Agent or any Lender to exercise,
and no delay by Administrative Agent or any Lender in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Administrative
Agent or any Lender of any right, remedy, power or privilege hereunder
preclude any other exercise thereof, or the exercise of any other
right, remedy, power or privilege existing under any Law or otherwise.
20.3. RIGHTS CUMULATIVE. Each of the rights and remedies of
Administrative Agent and Lenders under this Agreement shall be in
addition to all of its other rights and remedies under applicable Law,
and nothing in this Agreement shall be construed as limiting any such
rights or remedies.
20.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and all future holders of
the Notes and their respective successors and assigns, except that
Borrower may not assign, delegate or transfer any of its rights or
obligations under this Agreement without the prior written consent of
Administrative Agent and Required Lenders. With respect to Borrower's
successors and assigns, such successors and assigns shall include any
receiver, trustee or debtor-in-possession of or for Borrower.
20.5. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or lack of authorization without
invalidating the remaining provisions hereof or affecting the
validity, enforceability or legality of such provision in any other
jurisdiction unless the ineffectiveness of such provision would result
in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
20.6. COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of separate counterparts, and all such
counterparts taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one counterpart signed
by the party to be charged.
20.7. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement, the Notes
and the other Loan Documents and the rights and obligations of the
parties hereunder and thereunder shall be governed by and construed
and interpreted in accordance with the internal Laws of the State of
Missouri applicable to contracts made and to be performed wholly
within such state, without regard to choice or conflicts of law
principles. This Agreement is solely for the benefit of the parties
hereto and their respective successors and assigns, and no other
Person shall have any right, benefit, priority or interest under, or
because of the existence of, this Agreement.
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20.8. COUNTERPART FACSIMILE EXECUTION. For purposes of this Agreement,
a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original
document. The signature of any Person thereon, for purposes hereof, is
to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an
original signature on an original document. At the request of any
party hereto, any facsimile or telecopy document is to be re-executed
in original form by the Persons who executed the facsimile or telecopy
document. No party hereto may raise the use of a facsimile machine or
telecopier or the fact that any signature was transmitted through the
use of a facsimile or telecopier machine as a defense to the
enforcement of this Agreement or any amendment or other document
executed in compliance with this Section.
20.9. REPRODUCTIONS AS EVIDENCE. This Agreement and the other Loan
Documents, including but not limited to (a) consents, waivers,
amendments, and modifications which may hereafter be executed, and (b)
financial statements, certificates and other information previously or
hereafter furnished to Administrative Agent or any Lender, may be
reproduced by Administrative Agent or such Lender by any photographic,
photostatic, microfilm, microcard, miniature photographic, computer
imaging or other similar process and Administrative Agent or such
Lender may destroy any original document so reproduced. Any such
reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original
is in existence and whether or not such reproduction was made in the
regular course of business of Administrative Agent or such Lender) and
any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
20.10. NEGOTIATED TRANSACTION. Borrower, Administrative Agent and each
Lender represent each to the others that in the negotiation and
drafting of this Agreement and the other Loan Documents they have been
represented by and have relied upon the advice of counsel of their
choice. Borrower and Administrative Agent affirm that their counsel
have both had substantial roles in the drafting and negotiation of
this Agreement and each Lender affirms that its counsel has
participated in the drafting and negotiation of this Agreement;
therefore, this Agreement will be deemed drafted by all of Borrower,
Administrative Agent and Lenders, and the rule of construction to the
effect that any ambiguities are to be resolved against the drafter
will not be employed in the interpretation of this Agreement.
20.11. MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE
ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND
MEDIATION SERVICES, INC., PREDECESSOR IN INTEREST TO ENDISPUTE, INC.,
DOING BUSINESS AS "J.A.M.S./ENDISPUTE" AND THE "SPECIAL RULES" SET
FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING
AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
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20.11.1. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN ST.
LOUIS CITY OR COUNTY, MISSOURI AND ADMINISTERED BY
J.A.M.S./ENDISPUTE WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 CALENDAR DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN
ADDITIONAL 60 CALENDAR DAYS.
20.11.2. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT SHALL BE DEEMED TO (I) LIMIT THE
APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT; OR (II) BE A WAIVER BY ADMINISTRATIVE AGENT
OR ANY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC.
91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER (A) TO EXERCISE SELF
HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS
(BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE APPOINTMENT OF A
RECEIVER. ADMINISTRATIVE AGENT OR ANY LENDER MAY EXERCISE SUCH
SELF HELP RIGHTS OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES
BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS. NEITHER THE EXERCISE OF SELF HELP REMEDIES NOR
THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES. NO PROVISION IN THIS AGREEMENT OR IN ANY OTHER LOAN
DOCUMENT REGARDING SUBMISSION TO JURISDICTION, CHOICE OF FORUM,
WAIVER OF JURY TRIAL AND/OR VENUE IN ANY COURT IS INTENDED OR
SHALL BE CONSTRUED TO BE IN DEROGATION OF THE PROVISIONS IN THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT FOR ARBITRATION OF ANY
CONTROVERSY OR CLAIM.
20.11.3. CONFIDENTIALITY. ADMINISTRATIVE AGENT AND EACH LENDER
ACKNOWLEDGES AND AGREES THAT INFORMATION AND MATERIALS IT OBTAINS
IN THE COURSE OF ANY ARBITRATION PROCEEDING WILL BE SUBJECT TO
THE CONFIDENTIALITY STANDARDS CONTAINED IN SECTION 13.17.
20.12. CHOICE OF FORUM. IF THIS AGREEMENT IS FOUND NOT TO BE SUBJECT
TO ARBITRATION, THEN, SUBJECT ONLY TO THE EXCEPTION IN THE NEXT
SENTENCE, BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER
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HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURT OF
THE EASTERN DISTRICT OF MISSOURI AND THE STATE COURTS OF MISSOURI
LOCATED IN ST. LOUIS COUNTY AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN,
AND AGREES THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN
ADMINISTRATIVE AGENT, LENDERS, AND BORROWER OR THE CONDUCT OF ANY OF
THEM IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE HEARD
ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING: (1)
ADMINISTRATIVE AGENT OR ANY LENDER SHALL HAVE THE RIGHT TO BRING ANY
ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN ANY COURTS OF
ANY OTHER JURISDICTION ADMINISTRATIVE AGENT OR ANY LENDER DEEM
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL, REAL
ESTATE OR OTHER SECURITY FOR THE LOAN OBLIGATIONS, AND (2) EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED
IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE THOSE JURISDICTIONS.
20.13. SERVICE OF PROCESS. IF THIS AGREEMENT IS FOUND NOT BE TO
SUBJECT TO ARBITRATION, THEN, BORROWER HEREBY WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO BORROWER AT ITS ADDRESS SET FORTH ON EXHIBIT S, AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE
SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS; OR AT
ADMINISTRATIVE AGENT'S OR ANY LENDER'S OPTION, BY SERVICE UPON CT
CORPORATION, WHICH BORROWER IRREVOCABLY APPOINTS AS BORROWER'S AGENT
FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF
MISSOURI. ADMINISTRATIVE AGENT OR SUCH LENDER SHALL PROMPTLY FORWARD
BY REGISTERED MAIL ANY PROCESS SO SERVED UPON SAID AGENT TO BORROWER
AT ITS ADDRESS ON EXHIBIT S HERETO. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
20.14. WAIVER OF JURY TRIAL. IF THIS AGREEMENT IS FOUND NOT TO BE
SUBJECT TO ARBITRATION, THEN, WITHOUT INTENDING TO ALTER OR LIMIT THE
PROVISIONS OF SECTION 20.11, BORROWER, ADMINISTRATIVE AGENT, AND EACH
LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR EITHER OF THEM IN
RESPECT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE. BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
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WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
20.15. INCORPORATION BY REFERENCE. All of the terms of the other Loan
Documents are incorporated in and made a part of this Agreement by
this reference.
20.16. STATUTORY NOTICE - ORAL COMMITMENTS. The following notice is
given pursuant to Section 432.045 of the Missouri Revised Statutes;
nothing contained in such notice shall be deemed to limit or modify
the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO
MODIFY IT.
Borrower acknowledges that there are no other agreements between
Administrative Agent, Lenders, and Borrower, oral or written,
concerning the subject matter of the Loan Documents, and that all
prior agreements concerning the same subject matter, including any
proposal or commitment letter, are merged into the Loan Documents and
thereby extinguished.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the date first above
written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION CLAUSE WHICH MAY BE ENFORCED BY THE
PARTIES.
YOUNG INNOVATIONS, INC. BANK OF AMERICA, N.A., as Administrative
by its Executive Vice President and Chief Financial Agent
Officer by its Vice President
---------------------------------------------
---------------------------------------------------- Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
BANK OF AMERICA, N.A., as a Lender
by its Corporate Banking Officer
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE NORTHERN TRUST COMPANY, AS A LENDER ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS A LENDER
by its Vice President by its Vice President
--------------------------------------------------- ---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
70
EXHIBIT S
NOTICE ADDRESSES, ETC.
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NOTICE ADDRESS FOR BORROWER: APPLICABLE LENDING OFFICE FOR ADMINISTRATIVE AGENT AND
NOTICE ADDRESS FOR ADMINISTRATIVE AGENT FOR ADVANCES,
Young Innovations, Inc. CONVERSIONS, CONTINUATIONS, PAYMENTS, AND PREPAYMENTS:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ Bank of America, N.A.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Mail Code TX1-492-14-14
FAX #: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
FAX #: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COURTESY COPY TO: Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
-----------------------
▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. NOTICE ADDRESS FOR ADMINISTRATIVE AGENT FOR ALL OTHER
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ PURPOSES:
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FAX #: ▇▇▇-▇▇▇-▇▇▇▇ Bank of America, N.A., Administrative Agent
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code IL1-231-08-30
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
NOTICE ADDRESS FOR THE FOLLOWING ENTITIES UNDER ANY LOAN APPLICABLE LENDING OFFICE AND NOTICE ADDRESS FOR BANK
DOCUMENT: OF AMERICA, N.A., A LENDER:
Young Acquisitions Company Bank of America, ▇.▇.
▇▇▇▇▇ PS Acquisitions, LLC ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Dental Manufacturing I, LLC Mail Code MO1-800-12-20
Panoramic Rental Corp Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Athena Technology, LLC FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Denticator International, Inc. Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
Lorvic Holdings, Inc.
Lorvic Corporation
c/o Young Innovations, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COURTESY COPY TO:
▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
APPLICABLE LENDING OFFICE AND NOTICE ADDRESS FOR ▇▇▇▇▇▇ APPLICABLE LENDING OFFICE AND NOTICE ADDRESS FOR THE
TRUST AND SAVINGS BANK, A LENDER: NORTHERN TRUST COMPANY, A LENDER:
▇▇▇▇▇▇ Trust And Savings Bank The Northern Trust Company
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇. ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
FAX #: ▇▇▇-▇▇▇-▇▇▇▇ FAX #: ▇▇▇-▇▇▇-▇▇▇▇
Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇ Confirming Telephone #: ▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
72
EXHIBIT 2.1
GLOSSARY
ACCOUNT -- as to any Person, the right of such Person to payment for goods sold
or leased or for services rendered by such Person.
ACQUIRING COMPANY -- the Person obligated to pay or provide the consideration
payable in connection with a Permitted Acquisition upon the consummation
thereof.
ACQUISITION DOCUMENTS -- in the case of any Permitted Acquisition, the documents
to which Borrower or any other Covered Person is a party and under which such
Permitted Acquisition is contemplated.
ADJUSTED BASE RATE -- defined in Section 4.4.
ADJUSTED EURODOLLAR RATE -- is defined in Section 4.5.
ADMINISTRATIVE AGENT -- Bank of America, in its capacity as Administrative Agent
under this Agreement, and its successors and assigns in such capacity.
ADVANCE -- a Revolving Loan Advance or a Swingline Advance.
ADVANCE DATE -- the date on which an Advance is requested by Borrower to be
made, or is otherwise contemplated or intended to be made, as provided herein.
AFFECTED LOANS -- defined in Section 18.5.
AFFILIATE -- with respect to any Person, (a) any other Person who is a partner,
director, officer, stockholder, member, partner or other equity holder of such
Person; and (b) any other Person which, directly or indirectly, through one or
more intermediaries, is in control of, is controlled by or is under common
control with such Person, and any partner, director, officer or stockholder,
member, partner or other equity holder of such other Person described. For
purposes of this Agreement, control of a Person by another Person shall be
deemed to exist if such other Person has the power, directly or indirectly,
either to (i) vote twenty five percent (25%) or more of the securities,
membership interests or other equity interest having the power to vote in an
election of directors or managers of such Person, or (ii) direct the management
of such Person, whether by contract or otherwise and whether alone or in
combination with others.
AGENT-RELATED PERSON -- Administrative Agent (including any successor
administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
AGGREGATE REVOLVING LOAN -- the from time to time outstanding principal balance
of all Revolving Loan Advances.
AGGREGATE REVOLVING LOAN COMMITMENT -- the aggregate commitments of Lenders as
stated in Section 3.1.1 to fund Revolving Loan Advances, as it may be changed as
provided herein.
AGREEMENT -- this Credit Facilities Agreement.
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APPLICABLE LENDING OFFICE -- means, for Administrative Agent and each Lender and
for each Loan, the Applicable Lending Office of Administrative Agent or such
Lender (or of an affiliate of such Lender) designated for such Loan on Exhibit S
or such other office of such Lender (or an affiliate of Administrative Agent or
such Lender) as Administrative Agent or such Lender may from time to time
specify to Administrative Agent (in the case of another Lender) and Borrower by
written notice in accordance with the terms hereof as the office by which its
Loans are to be made and maintained.
ASBESTOS MATERIAL -- either asbestos or asbestos-containing materials.
ASSIGNMENT AND ACCEPTANCE -- as defined in Section 19.4.1.3
BASE RATE -- for any day, the rate per annum equal to the higher of (a) the
Federal Funds Rate (as such rate may fluctuate from time to time as provided for
herein) for such day plus .50% and (b) the Prime Rate (as such rate may
fluctuate from time to time as provided for herein) for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall
be effective on the effective date of such change in the Prime Rate or Federal
Funds Rate. The interest rate so designated from time to time as the Base Rate
by Administrative Agent is a reference rate and does not necessarily represent
the lowest or best rate charged to any customer of Administrative Agent or any
other Lender.
BASE RATE ADVANCE -- an Advance that will become a Base Rate Loan.
BASE RATE INCREMENT -- is specified in Section 4.4.
BASE RATE LOAN -- any portion of a Loan on which interest accrues at the Base
Rate.
BENEFICIAL OWNER -- as defined in Rule 13-D-3 of the Securities and Exchange
Commission.
BANK OF AMERICA -- as defined in the introductory paragraph to this Agreement.
BORROWER -- as defined in the introductory paragraph to this Agreement.
BORROWING REPRESENTATIVE -- each officer of Borrower who is authorized to submit
requests for Advances or the issuance of Letters of Credit on behalf of Borrower
hereunder and each other Person who is designated by Borrower as its agent for
submitting requests for Advances or the issuance of Letters of Credit on behalf
of Borrower hereunder.
BUSINESS DAY-- a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the Laws of either
the United States or the State of Missouri, and when used in connection with
Eurodollar Loans, also a day other than any day on which dealings in U.S. Dollar
deposits are not carried on in the London interbank market.
CAPITAL EXPENDITURE -- an expenditure for an asset that must be depreciated or
amortized under GAAP or for any asset that under GAAP must be treated as a
capital asset, including the imputed principal portion of payments under Capital
Leases.
CAPITAL LEASE -- any lease the obligation for lease payments with respect to
which is required to be capitalized on a consolidated balance sheet of the
lessee and its Subsidiaries in accordance with GAAP.
CHARTER DOCUMENTS -- the articles or certificate of incorporation and bylaws of
a corporation; the certificate of limited partnership and partnership agreement
of a limited partnership; the partnership
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agreement of a general partnership; the articles of organization and operating
agreement of a limited liability company; or the indenture of a trust.
CLAIMS ACT -- the Assignment of Claims Act of 1940.
COBRA -- the Consolidated Omnibus Budget Reconciliation Act.
CODE -- the Internal Revenue Code of 1986 and all regulations thereunder of the
IRS.
COMMERCIAL LETTER OF CREDIT FEE -- the fee payable to Administrative Agent for
Lenders as required in Section 5.3.
COMMITMENT -- either the Revolving Loan Commitment of a Lender, the Swingline
Commitment of Bank of America, or the Letter of Credit Commitment of Letter of
Credit Issuer.
COMMONLY CONTROLLED ENTITY -- a Person which is under common control with
another Person within the meaning of Section 414(b) or (c) of the Code.
CONTRACT -- any contract, note, bond, indenture, deed, mortgage, deed of trust,
security agreement, pledge, hypothecation agreement, assignment, or other
agreement or undertaking, or any security.
COVERED PERSON -- defined in Section 2.3.
DEFAULT -- any of the events listed in Section 16.1 of this Agreement, without
giving effect to any requirement for the giving of notice, for the lapse of
time, or both, or for the happening of any other condition, event or act.
DEFAULT RATE -- the rate of interest payable on each Loan after its Maturity and
in certain other circumstances as provided in Section 4.10.
DISCLOSURE SCHEDULE -- the disclosure schedule of Borrower attached hereto as
Exhibit 11.
DOL -- the United States Department of Labor.
DOLLARS and the sign $ -- lawful money of the United States.
DOMESTIC SUBSIDIARY -- any Subsidiary of Borrower organized under the Laws of
any state of the United States.
EBITDA -- defined in Section 15.1.
EFFECTIVE DATE -- the date when this Agreement is effective as provided in
Section 1.
ELIGIBLE ASSIGNEE -- means (i) a Lender; (ii) an affiliate of a Lender; and
(iii) any other Person approved by Administrative Agent and the Borrower
(provided, that the consent of the Borrower shall not be unreasonably withheld
or delayed and shall not be required if there exists any Event of Default that
has not been waived in writing); provided, however, that (A) none of Borrower,
any Guarantor, or any other Covered Person, (B) any Affiliate of Borrower, any
Guarantor or any other Covered Person, or (C) any Person which, at the time of
the relevant assignment, would be entitled to receive additional payments under
Sections 18.1, 18.5 or 18.6 of this Agreement in aggregate amounts (whether then
payable or due in
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the future) in excess of the amounts which would otherwise be payable to the
assigning Lender under this Agreement shall qualify as an Eligible Assignee.
EMPLOYMENT LAW -- ERISA, the Occupational Safety and Health Act, the Fair Labor
Standards Act, or any other Law pertaining to the terms or conditions of labor
or safety in the workplace or discrimination or sexual harassment in the
workplace.
ENVIRONMENTAL LAW -- the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Clean
Water Act, the Clean Air Act, or any other Law pertaining to environmental
quality or remediation of Hazardous Material.
EPA -- the United States Environmental Protection Agency.
ERISA -- the Employee Retirement Income Security Act of 1974 and all regulations
thereunder of the IRS or United States Department of Labor.
ERISA AFFILIATE -- as to any Person, any trade or business (irrespective of
whether incorporated) which is a member of a group of which such Person is a
member and thereafter treated as a single employer under 414(b), (c), (m) or (o)
of the Code or applicable treasury regulations thereunder.
EURODOLLAR ADVANCE -- an Advance that will become a Eurodollar Loan.
EURODOLLAR INCREMENT -- is defined in Section 4.5.
EURODOLLAR LOAN -- any portion of the Aggregate Revolving Loan on which interest
accrues at the Adjusted Eurodollar Rate.
EURODOLLAR RATE -- for the applicable Interest Period therefor, the interest
rate per annum equal to the quotient of
(i) the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%), as determined by Administrative Agent as appearing on the
Dow ▇▇▇▇▇ Market Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term Eurodollar Rate shall
mean, for any Eurodollar Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period (provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%)),
divided by
(ii) an amount equal to one minus the maximum rate (expressed as a
decimal) at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are required to
be maintained under regulations issued from time to time by the FRB or
any other Governmental Authority to which any Lender is subject (or any
successor) against, including, in the case of Eurodollar Loans,
Eurocurrency liabilities (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the reserve requirement
shall reflect any other
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reserves required to be maintained by any Lender with respect to any
category of liabilities which includes deposits by reference to which
the Eurodollar Rate is to be determined, or any category of extensions
of credit or other assets which include Eurodollar Loans. (The entire
amount of a Eurodollar Loan shall be deemed to constitute a
Eurocurrency liability and as such shall be deemed to be subject to
such reserve requirements without benefit of credits for proration,
exceptions or setoffs which may be available from time to time to any
Lender under Regulation D.) The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in any such
reserve requirements.
EVENT OF DEFAULT -- any of the events listed in Section 16.1 of this Agreement
as to which any requirement for the giving of notice, for the lapse of time, or
both, or for the happening of any further condition, event or act has been
satisfied.
EXECUTION DATE -- the date when this Agreement has been executed.
EXISTING DEFAULT -- a Default which has occurred and is continuing, or an Event
of Default which has occurred, and which has not been waived in writing by the
Required Lenders, or all of the Lenders if required by Section 20.2.
FEDERAL FUNDS RATE -- for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Administrative
Agent (in its individual capacity) on such day on such transactions as
determined by Administrative Agent.
FINANCIAL STATEMENTS -- the most recent of the Initial Financial Statements and
the financial statements of Borrower required to be furnished to Administrative
Agent under Section 13.13 of this Agreement.
FRB -- the Board of Governors of the Federal Reserve System and any successor
thereto or to the functions thereof.
FRONTING FEE -- the fee payable to Letter of Credit Issuer as required in
Section 5.4.
GAAP -- those generally accepted accounting principles set forth in Statements
of the Financial Accounting Standards Board and in Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants or
which have other substantial authoritative support in the United States and are
applicable in the circumstances, as applied on a consistent basis.
GOVERNMENTAL AUTHORITY -- the federal government of the United States; the
government of any foreign country that is recognized by the United States or is
a member of the United Nations and that has jurisdiction over any Covered
Person; any state of the United States; any local Government or municipality
within the territory or under the jurisdiction of any of the foregoing; any
department, agency, division, or instrumentality of any of the foregoing; and
any court, arbitrator, or board of arbitrators whose orders or judgements are
enforceable by or within the territory of any of the foregoing.
GROUP -- as used in Regulation 13-D issued by the Securities and Exchange
Commission.
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GUARANTOR -- any Person required under this Agreement to execute and deliver to
Administrative Agent for the benefit of Lenders a guaranty of part or all of the
Loan Obligations.
GUARANTY -- each guaranty of part or all of the Loan Obligations executed and
delivered to Administrative Agent for the benefit of Lenders by any Guarantor.
HAZARDOUS MATERIAL -- any radioactive, toxic, solid or special waste, material,
substance or constituent thereof, or any other substance defined as hazardous or
subject to regulation under any applicable Environmental Law or regulation),
including Asbestos Material. HAZARDOUS MATERIAL does not include materials or
products containing hazardous constituents which are not considered to be waste
under the applicable Environmental Law or which are considered to be waste but
are transported, handled or disposed of in accordance with the applicable
Environmental Law, or Asbestos Material which is not friable.
HEDGING OBLIGATIONS -- any obligations of Borrower to Administrative Agent or
any Affiliate or Subsidiary of Bank of America Corporation under any agreement
or agreements between Borrower and Administrative Agent or any Affiliate or
Subsidiary of Bank of America Corporation now existing or hereafter entered
into, which provides for an interest rate, credit, commodity or equity swap,
cap, floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, any similar transaction or any combination
of, or option with respect to, these or similar transactions, for the purpose of
hedging the Borrower's exposure to fluctuations in interest or exchange rates,
loan, credit, exchange, security or currency valuations or commodity prices.
IMPOSITIONS -- defined in Section 18.6.1.
INDEBTEDNESS -- as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii) to
pay the deferred purchase price of property or services; (iii) to make payments
or reimbursements with respect to bank acceptances or to a factor; (iv) to make
payments or reimbursements with respect to letters of credit whether or not
there have been drawings thereunder; (v) with respect to which there is any
Security Interest in any property of such Person (the deemed amount of
Indebtedness with respect to such obligation shall be (i) the fair market value
of the assets subject to such a Security Interest, if such obligation is
non-recourse to such Person, and (ii) the amount of the obligation so secured,
if such obligation is recourse to such Person); (vi) to make any payment or
contribution to a Multi-Employer Plan; (vii) that is evidenced by a note, bond,
debenture or similar instrument; (viii) under any conditional sale agreement or
title retention agreement; or (ix) to pay interest or fees with respect to any
of the foregoing. INDEBTEDNESS also includes any other Obligation that either
(i) is non-contingent and liquidated in amount or (ii) should under GAAP be
included in liabilities and not just as a footnote on a balance sheet.
INDEMNIFIED PARTY -- defined in Section 19.8.1.
INDIRECT OBLIGATION -- as to any Person, (a) any guaranty by such Person of any
Obligation of another Person; (b) any Security Interest in any property of such
Person that secures any Obligation of another Person; (c) any enforceable
contractual requirement that such Person (i) purchase an Obligation of another
Person or any property that is security for such Obligation, (ii) advance or
contribute funds to another Person for the payment of an Obligation of such
other Person or to maintain the working capital, net worth or solvency of such
other Person as required in any documents evidencing an Obligation of such other
Person, (iii) purchase property, securities or services from another Person for
the purpose of assuring the beneficiary of any Obligation of such other Person
that such other Person has the ability to timely pay or discharge such
Obligation, (iv) grant a Security Interest in any property of such Person to
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secure any Obligation of another Person, (v) otherwise assure or hold harmless
the beneficiary of any Obligation of another Person against loss in respect
thereof; (d) any Obligation arising from the endorsement by such Person of an
instrument; (e) any Obligation of such Person as a surety; and (f) any other
contractual requirement enforceable against such Person that has the same
substantive effect as any of the foregoing. The term INDIRECT OBLIGATION does
not, however, include the endorsement by a Person of instruments for deposit or
collection in the ordinary course of business or the liability of a general
partner of a partnership for Obligations of such partnership. The amount of any
Indirect Obligation of a Person shall be deemed to be the stated or determinable
amount of the Obligation in respect of which such Indirect Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.
INITIAL FINANCIAL STATEMENTS -- the financial statements of Borrower referred to
in Section 9.1.2.
INTEREST EXPENSE -- defined in Section 15.1.
INTEREST PERIOD -- the period during which a particular Adjusted Eurodollar Rate
applies to a Eurodollar Loan, as selected by Borrower as provided in Section
4.7.
INVENTORY -- goods owned and held by a Person for sale, lease or resale or
furnished or to be furnished under contracts for services, and raw materials,
goods in process, materials, component parts and supplies used or consumed, or
held for use or consumption in such Person's business.
INVESTMENT -- (a) a loan or advance of money or property to a Person, (b) stock,
membership interest, or other equity interest in a Person, (c) a debt instrument
issued by a Person, whether or not convertible to stock, membership interest, or
other equity interest in such Person, or (d) any other interest in or rights
with respect to a Person which include, in whole or in part, a right to share,
with or without conditions or restrictions, some or all of the revenues or net
income of such Person.
IRS -- the Internal Revenue Service.
JOINT VENTURE - as to any Covered Person, (a) any Subsidiary of such Covered
Person with respect to which 20% or more of the outstanding shares of any class
of stock or other equity interests of such Subsidiary is at the time owned by
one or more third parties unrelated to such Covered Person, and (b) any other
Person with respect to which more than 10% but less than or equal to 50% of the
outstanding shares of stock or other equity interests of any class having
ordinary voting power (other than stock or other equity interests having such
power only by reason of the happening of a contingency) is at the time owned by
such Covered Person or by one or more Subsidiaries of such Covered Person.
LAW -- any statute, rule, regulation, order, judgment, award or decree of any
Governmental Authority.
LENDER -- any one of the lenders listed on Exhibit 3 to this Agreement,
including Administrative Agent in its capacity as a lender, or any Person who
takes an assignment from any of such lenders of all or a portion of its rights
and obligations as a lender under this Agreement pursuant to Section 19.4.1 and
an Assignment and Acceptance as provided therein.
LENDERS' EXPOSURE -- the sum of the Aggregate Revolving Loan Commitment, the
Swingline Loan, and the Letter of Credit Exposure.
LETTER OF CREDIT -- any standby or commercial (documentary) letter of credit
issued by Letter of Credit Issuer pursuant to the Letter of Credit Commitment.
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LETTER OF CREDIT COMMITMENT -- the commitment of the Letter of Credit Issuer to
issue Letters of Credit as provided in Section 3.3.
LETTER OF CREDIT EXPOSURE -- the undrawn amount of all outstanding letters of
credit issued under the Letter of Credit Commitment plus all amounts drawn on
such letters of credit and not yet reimbursed by Borrower.
LETTER OF CREDIT ISSUER -- the Lender that has committed in Section 3.3 to issue
Letters of Credit.
LOAN -- a Revolving Loan or a Swingline Loan.
LOAN DOCUMENTS -- this Agreement, the Notes, the Guaranties, any Letter of
Credit application/reimbursement agreement between Borrower and the Letter of
Credit Issuer, and all other agreements, certificates, documents, instruments
and other writings executed in connection herewith or related hereto, including,
without limitation, the Swingline Documents.
LOAN OBLIGATIONS -- all of Borrower's Indebtedness owing to Bank of America
(with respect to the Swingline Commitment), to the Letter of Credit Issuer,
Administrative Agent or Lenders under the Loan Documents, whether as principal,
interest, fees or otherwise, all reimbursement obligations of Borrower to Letter
of Credit Issuer or Lenders with respect to the Letter of Credit Exposure, and
all other obligations and liabilities of Borrower to Administrative Agent or
Lenders under the Loan Documents and all Hedging Obligations (in each case
including all extensions, renewals, modifications, rearrangements, restructures,
replacements and refinancings of the foregoing, whether or not the same involve
modifications to interest rates or other payment terms), whether now existing or
hereafter created, absolute or contingent, direct or indirect, joint or several,
secured or unsecured, due or not due, contractual or tortious, liquidated or
unliquidated, arising by operation of law or otherwise, including but not
limited to the obligation of Borrower to repay future advances by Administrative
Agent or Lenders hereunder, whether or not made pursuant to commitment and
whether or not presently contemplated by Borrower, Administrative Agent or
Lenders in the Loan Documents.
LOCAL TIME -- the local time in the city in which Administrative Agent's address
is located, as set forth on Exhibit S (as changed from time to time in
accordance with the terms hereof).
MATERIAL ADVERSE EFFECT -- with respect to any event or occurrence of whatever
nature (including any adverse determination in any litigation, arbitration,
investigation or proceeding), a material adverse effect on the business,
operations, revenues, financial condition, property, or business prospects of
the Borrower and its Material Subsidiaries taken as a whole, or the ability of
the Borrower and its Material Subsidiaries taken as a whole to timely pay or
perform such Persons' Obligations generally, or in the case of Borrower
specifically, the ability of Borrower to pay or perform any of Borrower's
Obligations to Lender, or in the case of any Guaranty specifically, the ability
of such Guarantor to pay or perform any of its Obligations under the terms of
its Guaranty.
MATERIAL AGREEMENT -- as to any Person, any Contract to which such Person is a
party or by which such Person is bound which, if violated or breached in any
material respect, has or is reasonably likely to have a Material Adverse Effect.
MATERIAL LAW -- any separately enforceable provision of a Law whose violation by
a Person has or is reasonably likely to have a Material Adverse Effect.
MATERIAL LICENSE -- (i) any license, permit or consent from a Governmental
Authority or other Person and any registration and filing with a Governmental
Authority or other Person which if not obtained, held
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or made by a Covered Person has or is reasonably likely to have a Material
Adverse Effect, and (ii) as to any Covered Person who is a party to this
Agreement or any of the other Loan Documents, any license, permit or consent
from a Governmental Authority or other Person and any registration or filing
with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
MATERIAL OBLIGATION -- as to any Person, an Obligation of such Person which if
not fully and timely paid or performed has or is reasonably likely to have a
Material Adverse Effect.
MATERIAL PROCEEDING -- any litigation, investigation or other proceeding by or
before any Governmental Authority (i) which involves any of the Loan Documents
or any of the transactions contemplated thereby, or involves any Covered Person
as a party or any property of any Covered Person, and has or is reasonably
likely to have a Material Adverse Effect, (ii) in which there has been issued an
injunction, writ, temporary restraining order or any other order of any nature
which purports to restrain or enjoin the making of any Advance, the consummation
of any other transaction contemplated by the Loan Documents, or the
enforceability of any provision of any of the Loan Documents, (iii) which
involves the actual or alleged breach or violation by a Covered Person of, or
default by a Covered Person under, any Material Agreement, or (iv) which
involves the actual or alleged violation by a Covered Person of any Material
Law.
MATERIAL SUBSIDIARY -- any Subsidiary of Borrower having assets in excess of
$9,000,000.
MATURITY -- as to any Indebtedness, the time when it becomes payable in full,
whether at a regularly scheduled time, because of acceleration or otherwise.
MAXIMUM AVAILABLE AMOUNT -- the maximum Dollar amount available for Revolving
Loan Advances on any date as limited in Section 3.1.2, as it may be changed as
provided herein.
MULTI-EMPLOYER PLAN -- a Pension Benefit Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
NET WORTH -- defined in Section 15.1.
NOTE -- any Revolving Note or the Swingline Note.
OBLIGATION -- as to any Person, any Indebtedness of such Person, any guaranty by
such Person of any Indebtedness of another Person, and any contractual
requirement enforceable against such Person that does not constitute
Indebtedness of such Person or a guaranty by such Person but which would involve
the expenditure of money by such Person if complied with or enforced.
OBLIGATIONS TO ADMINISTRATIVE AGENT -- exclusive of all the Loan Obligations,
all of Borrower's Indebtedness owing to Administrative Agent (whether as
principal, interest, fees or otherwise), all Hedging Obligations, all Indirect
Obligations of Borrower owing to Administrative Agent, all reimbursement
obligations of Borrower to Administrative Agent with respect to letters of
credit, and all other obligations and liabilities of Borrower to Administrative
Agent including all extensions, renewals, modifications, rearrangements,
restructures, replacements and refinancings of the foregoing, whether or not the
same involve modifications to interest rates or other payment terms), whether
now existing or hereafter created, absolute or contingent, direct or indirect,
joint or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, or
acquired by Administrative Agent outright, conditionally or as collateral
security from another, including the obligation of Borrower to repay future
advances by Administrative Agent, whether or not made
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pursuant to commitment and whether or not presently contemplated by Borrower and
Administrative Agent.
OPERATING LEASE -- any lease the obligation for lease payments with respect to
which is not required to be capitalized on a consolidated balance sheet of the
lessee and its Subsidiaries in accordance with GAAP.
PBGC -- the Pension Benefit Guaranty Corporation.
PENSION BENEFIT PLAN -- any plan defined in Section 3(2) of ERISA, whether or
not covered by Title I of ERISA, and in each case in respect of which a Covered
Person or a Commonly Controlled Entity of such Covered Person is an employer as
defined in Section 3(5) of ERISA.
PERMITTED ACQUISITIONS -- any acquisition by Borrower or a Covered Person of
stock, membership interests, or other equity interests of another Person or the
assets of another Person permitted under Section 14.6, except acquisitions of
assets in the ordinary course of business of Borrower or such Covered Person.
PERMITTED INDEBTEDNESS -- Indebtedness that a Covered Person is permitted under
Section 14.2 to incur, assume, or allow to exist.
PERMITTED INDIRECT OBLIGATIONS -- Indirect Obligations that a Covered Person is
permitted under Section 14.4 to create, incur, assume, or allow to exist.
PERMITTED INVESTMENTS -- Investments that a Covered Person is permitted under
Section 14.1 to make in other Persons.
PERMITTED REDEMPTIONS -- the redemption by Borrower from time to time, in one or
more transactions, of such of its shares as may be purchased for consideration
in an amount not to exceed $15,000,000, pursuant to the Redemption Documents.
PERMITTED SECURITY INTERESTS -- Security Interests that a Covered Person is
permitted under Section 14.5 to create, incur, assume, or allow to exist.
PERSON -- any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental Authority,
or other organization in any form that has the legal capacity to ▇▇▇ or be sued.
If the context so implies or requires, the term Person includes Borrower.
PLAN - any Pension Benefit Plan or any Welfare Benefit Plan.
PRIME RATE --on any day, the rate of interest per annum then most recently
established by Bank of America as its Prime Rate. Such rate is a general
reference rate of interest, may not be related to any other rate, and may not be
the lowest or best rate actually charged by Bank of America to any customer or a
favored rate and may not correspond with future increases or decreases in
interest rates charged by other lenders or market interest rates in general.
REDEMPTION DOCUMENTS -- those certain agreements between a Covered Person and
one or more of the shareholders or other equity holders of any Covered Person
providing for all or a portion of the Permitted Redemptions.
REGISTER -- defined in Section 19.4.4.
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REGULATION D and REGULATION U -- respectively, Regulation D issued by the FRB
and Regulation U issued by the FRB.
REPORTABLE EVENT -- a reportable event as defined in Title IV of ERISA or the
regulations thereunder.
REPRESENTATIONS AND WARRANTIES -- The representations and warranties made by any
Covered Person with respect to itself and any other Covered Persons in Section
11, and the representations and warranties made in any other Loan Document or
certificate, report, opinion or other document delivered by Borrower, any
Guarantor or any other Covered Person pursuant to the Loan Documents, as such
representations and warranties are modified from time to time as provided in
Section 12.
REQUIRED LENDERS -- defined in Section 2.4.
RESPONSIBLE OFFICER -- as to any Person that is not an individual, partnership,
limited liability company or trust, the Chairman of the Board of Directors, the
President, the chief executive officer, the chief operating officer, the chief
financial officer, the Treasurer, any Assistant to the Treasurer, or any Vice
President in charge of a principal business unit of such Person; as to any
partnership, any individual who is a general partner thereof or any individual
who has general management or administrative authority over all or any principal
unit of the partnership's business; as to any limited liability company, any
managing member, or manager, any individual who has general management or
administrative authority over all or any principal unit of the limited liability
company's business; and as to any trust, any individual who is a trustee.
REVOLVING LOAN -- any Lender's pro-rata share of the Aggregate Revolving Loan.
REVOLVING LOAN ADVANCE -- an Advance by Administrative Agent that is to be
funded by Lenders under the Aggregate Revolving Loan Commitment.
REVOLVING LOAN COMMITMENT -- the commitment of each Lender as stated in Section
3.1.1 to fund Revolving Loan Advances.
REVOLVING LOAN COMMITMENT FEE -- the fee payable to Administrative Agent for the
account of the Lenders required in Section 5.1.
REVOLVING LOAN MATURITY DATE -- the date when Borrower must repay the amount of
Aggregate Revolving Loan then outstanding as provided in Section 6.1.2.
REVOLVING NOTE -- any note delivered to a Lender as required by Section 3.1.3 to
evidence Borrower's obligation to repay such Lender's Revolving Loan.
SECURITY INTEREST -- as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a Contract,
or by operation of law or statute (such as but not limited to a statutory lien
for work or materials), or as a result of a judgment, or which arises under any
form of preferential or title retention agreement or arrangement (including a
conditional sale agreement or a lease) that has substantially the same economic
effect as any of the foregoing.
SOLVENT -- as to any Person, such Person not being insolvent within the meaning
of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent
Transfer Act (the UFTA) or Section 428.014 of the Missouri Revised Statutes,
(ii) such Person not having unreasonably small capital, within the
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meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section
428.024 of the Missouri Revised Statutes, and (iii) such Person not being unable
to pay such Person's debts as they become due within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 428.024 of the Missouri
Revised Statutes.
STANDBY LETTER OF CREDIT FEE -- the fee payable to Administrative Agent and
Lenders as required in Section 5.2.
SUBSIDIARY -- as to any Person, another Person with respect to which more than
50% of the outstanding shares of stock or other equity interests of each class
having ordinary voting power (other than stock having such power only by reason
of the happening of a contingency) is at the time owned by such Person or by one
or more Subsidiaries of such Person; provided, however, that notwithstanding the
foregoing, for purposes of this Agreement (other than Sections 13.13 and 15 of
this Agreement), a Joint Venture shall not be deemed to be a Subsidiary.
SURVIVING COMPANY -- as applicable, either (i) the Person that will own the
assets to be acquired from a Target Company in a Permitted Acquisition upon the
consummation thereof, (ii) the survivor of the merger of an Acquiring Company
with the Target Company in a Permitted Acquisition upon the consummation
thereof, or (iii) the Target Company whose stock, membership interests or other
equity interests will be acquired by another Person in a Permitted Acquisition
upon the consummation thereof.
SWINGLINE ADVANCE -- an advance by Bank of America to Borrower under the
Swingline Commitment.
SWINGLINE COMMITMENT -- the commitment of Bank of America as stated in Section
3.2.1 to make Swingline Advances.
SWINGLINE DOCUMENTS - all documents, agreements and instruments executed by
Borrower or delivered by Borrower to Bank of America from time to time in
connection with the Swingline Commitment, the Swingline Loan, and/or the
Swingline Advances, including, without limitation, the Autoborrow Service
Agreement between Bank of America and Borrower dated ________________.
SWINGLINE LOAN -- the from time to time outstanding principal balance of all
Swingline Advances.
SWINGLINE MAXIMUM AVAILABLE AMOUNT -- the maximum Dollar amount available for
Swingline Advance on any date as limited in Section 3.2.2.
TARGET COMPANY -- the Person whose assets or stock, membership interests or
other equity interests will be acquired in a Permitted Acquisition upon the
consummation thereof, or if applicable, with which an Acquiring Company will
merge in a Permitted Acquisition upon the consummation thereof.
TAX -- as to any Person, any tax, duty, impost, deduction, charges,
withholdings, assessment, fee, or other charge levied by a Governmental
Authority (and all liabilities associated therewith) on the income or property
of such Person, including any interest or penalties thereon, and which is
payable by such Person.
THIS AGREEMENT -- this document (including every document that is stated herein
to be an appendix, exhibit or schedule hereto, whether or not physically
attached to this document).
TOTAL CAPITALIZATION -- defined in Section 15.1.
TOTAL FUNDED INDEBTEDNESS -- defined in Section 15.1.
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UCC -- the Uniform Commercial Code as in effect from time to time in the State
of Missouri or such other similar statute as in effect from time to time in
Missouri or any other appropriate jurisdiction.
UNITED STATES -- when used in a geographical sense, all the states of the United
States of America and the District of Columbia; and when used in a legal
jurisdictional sense, the government of the country that is the United States of
America.
UNUSED REVOLVING LOAN COMMITMENT -- defined in Section 5.1.
WAGE AND HOUR LAWS -- the ▇▇▇▇▇-▇▇▇▇▇ Act, the Service Contract Act, the
Contract Work Hours & Safety Standards Act and any other federal Law governing
wage compensation or hours of work.
WELFARE BENEFIT PLAN -- any plan defined in Section 3(1) of ERISA, in each case
in respect of which a Covered Person or a Commonly Controlled Entity of such
Covered Person is an employer as defined in Section 3(5) of ERISA.
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EXHIBIT 3
LENDERS' COMMITMENTS AND PRO-RATA SHARES
------------------------------------------- ---------------------------------------- ----------------------------
LENDER REVOLVING LOAN COMMITMENT PRO-RATA SHARES
------------------------------------------- ---------------------------------------- ----------------------------
Bank of America, N.A. $10,000,000 50%
------------------------------------------- ---------------------------------------- ----------------------------
▇▇▇▇▇▇ Trust and Savings Bank $ 5,000,000 25%
------------------------------------------- ---------------------------------------- ----------------------------
The Northern Trust Company $ 5,000,000 25%
------------------------------------------- ---------------------------------------- ----------------------------
AGGREGATES $20,000,000 100%
------------------------------------------- ---------------------------------------- ----------------------------
------------------------------------------ ----------------------------------------- ---------------------------
LENDER SWINGLINE LOAN COMMITMENT PRO RATA SHARES
------------------------------------------ ----------------------------------------- ---------------------------
Bank of America, N.A. $ 3,000,000 100%
------------------------------------------ ----------------------------------------- ---------------------------
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EXHIBIT 3.1.3
(FORM OF REVOLVING NOTES)
REVOLVING NOTE
$______________.00 St. Louis, Missouri
March ___, 2001
For value received, Young Innovations, Inc., a Missouri corporation,
(Borrower), promises to pay to the order of or to any subsequent holder hereof (in any case, Holder),
the principal amount of _________________ DOLLARS ($_______________) or such
lesser principal amount as has been advanced to Borrower under this note (as
this note may be amended, restated, extended, renewed, replaced, or otherwise
modified from time to time, this Note), together with interest thereon, as
provided herein.
Borrower promises to pay the entire principal amount outstanding under
this Note on the Revolving Loan Maturity Date. Borrower further promises to pay
interest accrued from the date hereof on the principal balance outstanding
hereunder from time to time. Until Maturity, by acceleration or otherwise,
interest shall accrue hereunder at a per annum rate or rates determined pursuant
to the Loan Agreement (defined below). After Maturity, and, at the option of
Administrative Agent, after the occurrence of an Event of Default (and notice
from Administrative Agent that the Default Rate is in effect) and continuing
until it has been cured or waived in writing as permitted in the Loan Agreement,
interest shall accrue on the unpaid principal, and (to the extent permitted by
law) accrued and unpaid interest and all other amounts owing under this Note at
the Default Rate. All interest shall be computed on the basis of a year deemed
to consist of 360 days and paid for the actual number of days elapsed.
Upon the occurrence of any Event of Default, Required Lenders may
declare the outstanding principal balance of this Note, all accrued but unpaid
interest thereon, and all other amounts owing to Holder under this Note and the
Loan Documents immediately due and payable, and such amounts shall become
immediately due and payable.
Both principal and interest are payable in Dollars to Administrative
Agent at the Applicable Lending Office of Administrative Agent.
This Note is delivered in connection with that certain Credit
Facilities Agreement dated as of even date herewith among Borrower, Bank of
America, N.A., as Administrative Agent, Holder, and the other Lenders (as it may
be amended, restated, extended, renewed, replaced, or otherwise modified from
time to time, the Loan Agreement). Capitalized terms used and not defined herein
have the meanings given them in the Loan Agreement.
Borrower is required to prepay the principal amount of this Note to the
extent required in the Loan Agreement. Borrower has the right to prepay the
principal amount of this Note to the extent and subject to the conditions
provided in the Loan Agreement.
The date and amount of all advances and repayments of principal and
payments of interest will be recorded in the records that Holder normally
maintains for instruments and agreements similar to this Note and the other Loan
Documents. The failure to record, or any error in recording, any of the
foregoing does not, however, affect the obligation of Borrower to pay principal,
interest and other amounts as required under this Note and the other Loan
Documents. Borrower has the burden of proving that Holder's records are not
correct. Borrower agrees that Holder's books and records showing advances and
87
repayments are admissible in any action or proceeding arising therefrom, and
constitute prima facie proof thereof.
Reference is made to the Loan Agreement for provisions regarding the
acceleration of the maturity hereof upon the occurrence of any Event of Default
that has not been waived in writing, and such provisions are incorporated herein
by this reference.
If any payment required under this Note is not made when due, or upon
any other Event of Default, Borrower will pay all reasonable costs of
collection, including court costs and reasonable attorneys' fees and actual
expenses of such attorneys, whether or not there is litigation, including
representation of Holder and Administrative Agent and all reasonable costs
incurred in connection with any bankruptcy or insolvency proceeding involving
Borrower as a debtor.
Borrower and all other Persons who become parties obligated under this
Note, whether as guarantors, sureties, endorsers or otherwise, waive any right
to demand for payment, any requirement for protest or notice of dishonor, all
other rights to notice or demands with respect to this Note, any defense based
on lack of diligence in the enforcement of this Note, and any defense which such
party may have based on suretyship or impairment of collateral. Every such party
assents to each and every extension or postponement of the time of payment,
whether at or after demand, or other indulgence, and waives any right to notice
thereof.
No amendment or modification to this Note will be effective unless it
is in writing and is signed by authorized officers of Borrower and Holder. No
waiver or consent to any departure by Borrower from full compliance with any
provision of this Note by Holder will be effective unless the same is in writing
signed by an authorized officer of Holder, and then only in the specific
instance and for the specific purpose for which given. No failure on the part of
Holder or Administrative Agent to exercise, and no delay in exercising, any
right under this Note operates as a waiver thereof, and no single or partial
exercise by Holder or Administrative Agent of any right under this Note
precludes any other or further exercise thereof, or the exercise of any other
right. Each and every right granted to Holder under this Note or allowed to it
at law or in equity is cumulative and such remedies may be exercised from time
to time concurrently or consecutively at Holder's option.
All notices required to be given or which may be given in connection
with this Note shall be given in the manner required for notices under the Loan
Agreement.
[remainder of page intentionally blank]
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This Note is governed by and shall be construed and interpreted in
accordance with the internal laws of the State of Missouri applicable to
contracts made and to be performed wholly within such state, without regard to
choice or conflicts of law principles.
YOUNG INNOVATIONS, INC.
By its Executive Vice President and Chief
Financial Officer
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
89
EXHIBIT 3.2.3
(FORM OF SWINGLINE NOTE)
SWINGLINE NOTE
$3,000,000.00 St. Louis, Missouri
March ___, 2001
For value received, Young Innovations, Inc., a Missouri corporation,
(Borrower), promises to pay to the order of Bank of America, N.A. (Bank of
America), a national banking association, or to any subsequent holder hereof
(Holder), the principal sum of THREE MILLION DOLLARS ($3,000,000.00) or such
lesser aggregate unpaid principal amount as may be outstanding under this
Swingline Note (this Note), plus all interest accrued thereon, on demand, or if
no demand is made, on the Revolving Loan Maturity Date.
Borrower further promises to pay interest accrued from the date hereof
on the principal balance outstanding hereunder from time to time. Until
Maturity, by acceleration or otherwise, interest shall accrue hereunder at a per
annum rate or rates determined pursuant to the Loan Agreement (defined below).
After Maturity, and, at the option of Bank of America, after the occurrence of
an Event of Default (and notice from Bank of America that the Default Rate is in
effect) and continuing until it has been cured or waived in writing as permitted
in the Loan Agreement, interest shall accrue on the unpaid principal, and (to
the extent permitted by law) accrued and unpaid interest and all other amounts
owing under this Note at the Default Rate. All interest shall be computed on the
basis of a year deemed to consist of 360 days and paid for the actual number of
days elapsed.
Both principal and interest are payable in Dollars to Bank of America
(as defined below) at the Applicable Lending Office of Bank of America.
This Note is the Swingline Note referred to in, and is issued under the
terms of, and pursuant to the provisions of, that certain Credit Facilities
Agreement, dated as of even date herewith, among Borrower, Bank of America,
N.A., as administrative agent for the ratable benefit of itself and each of the
other Lenders (Administrative Agent), and the Lenders (as it may be amended,
restated, extended, renewed, replaced, or otherwise modified from time to time,
the Loan Agreement). All capitalized terms used and not otherwise defined herein
have the meanings given them in the Loan Agreement.
Borrower agrees to prepay the principal amount of this Note to the
extent required in the Loan Agreement. Borrower may prepay the principal amount
of this Note to the extent and upon the conditions provided in the Loan
Agreement.
The date and amount of all disbursements and receipts of principal and
interest with respect to this Note will be recorded in the records that Holder
normally maintains for instruments and agreements similar to this Note and the
other Loan Documents. The failure to record, or any error in recording, any of
the foregoing does not, however, affect the obligation of Borrower to pay
principal, interest and other amounts as required under the Loan Documents.
Borrower has the burden of proving that Holder's records are not correct.
Borrower agrees that Holder's books and records showing disbursements and
receipts are admissible in any action or proceeding arising therefrom, and
constitute prima facie proof thereof.
90
If any payment required under this Note or the Loan Agreement
is not made when due, or upon any other Event of Default, Borrower will pay all
reasonable costs of collection of this Note, including but not limited to court
costs and reasonable attorneys' fees and actual expenses of such attorneys,
whether or not litigation is commenced, including representation of Holder or
Administrative Agent in connection with any bankruptcy or insolvency proceeding
of Borrower.
Demand for payment, protest, notice of dishonor, and all other notices
and demands under this Note and any and all lack of diligence in the enforcement
of this Note are hereby waived by all who are or become parties to this Note and
the same hereby assent to each and every extension or postponement of the time
of payment, at or after demand, or other indulgence, and hereby waive any and
all notice thereof. Every such party by becoming a party to this Note further
waives any and all defenses which such party may have based on suretyship or
impairment of collateral with respect to this Note.
No amendment or modification to this Note will be effective
unless it is in writing and is signed by authorized officers of Borrower and
Holder. No waiver or consent to any departure by Borrower from full compliance
with any provision of this Note by Holder will be effective unless the same is
in writing signed by an authorized officer of Holder, and then only in the
specific instance and for the specific purpose for which given. No failure on
the part of Holder or Administrative Agent to exercise, and no delay in
exercising, any right under this Note operates as a waiver thereof, and no
single or partial exercise by Holder or Administrative Agent of any right under
this Note precludes any other or further exercise thereof, or the exercise of
any other right. Each and every right granted to Holder under this Note or
allowed to it at law or in equity is deemed cumulative and such remedies may be
exercised from time to time concurrently or consecutively at Holder's option.
All notices required to be given or which may be given in connection
with this Note are to be given in the manner required for notices under the Loan
Agreement.
This Note is governed by and shall be construed and interpreted in
accordance with the internal laws of the State of Missouri applicable to
contracts made and to be performed wholly within such state, without regard to
choice or conflicts of law principles.
YOUNG INNOVATIONS, INC.
By its Executive Vice President and Chief
Financial Officer
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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EXHIBIT 7.13
FORM OF REQUEST FOR REVOLVING LOAN ADVANCE
Bank of America, N.A., Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mail Code TX1-492-14-14
Dallas, TX 75202-3417
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Facilities Agreement effective as of March 20, 2001 (as it may
be amended, modified, restated or replaced from time to time, the Loan
Agreement) among Young Innovations, Inc. (Borrower), Bank of America,
N.A., as Administrative Agent (Administrative Agent) and the Lenders as
defined in the Loan Agreement (Lenders)
Attention:
Ladies and Gentlemen:
The undersigned is a Borrowing Representative of Borrower, and, as such
is authorized to make and deliver this Advance Request pursuant to Section <7.1>
<7.2> of the Loan Agreement. All capitalized words used herein that are defined
in the Loan Agreement have the meanings defined in the Loan Agreement.
Borrower hereby requests that Administrative Agent make a Revolving
Loan Advance of $_________ to Borrower under the terms of the Loan Agreement on
______________. Of the requested Revolving Loan Advance, $_______ is to be an
Eurodollar Advance and $_______ is to be a Base Rate Advance. The Interest
Period for the portion that is an Eurodollar Advance is <1> <2> <3> <6> months.
The undersigned hereby certifies that:
(i) There is no Existing Default.
(ii) The Representations and Warranties, including those of each
Guarantor in its Guaranty, are true in all material respects
and will be true in all material respects as of the time of
the requested Revolving Loan Advance.
(iii) The amount of the requested Revolving Loan Advance will not,
when added to the current amount of the Aggregate Revolving
Loan, exceed the Maximum Available Amount.
(iv) All conditions precedent under Section <9.1> <9.2> of the Loan
Agreement have been satisfied.
Executed this ___ day of ________, _____.
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YOUNG INNOVATIONS, INC.
by its Executive Vice President and Chief
Financial Officer
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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EXHIBIT 8
GUARANTORS
Young Acquisitions Company
Young PS Acquisitions, LLC
Young Dental Manufacturing I, LLC
Panoramic Rental Corp
Athena Technology, LLC
Denticator International, Inc.
Lorvic Holdings, Inc.
Lorvic Corporation
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EXHIBIT 9.1.1
DOCUMENTS AND REQUIREMENTS LIST
DELIVER OR OBTAIN BEFORE EXECUTION DATE
1) Charter Documents of Borrower and each Material Subsidiary:
▇. ▇▇▇▇▇ Innovations, Inc. (Young)
▇. ▇▇▇▇▇ Dental Manufacturing I, LLC (Young Dental)
▇. ▇▇▇▇▇ Acquisitions Company (Panoramic)
▇. ▇▇▇▇▇ PS Acquisitions, LLC (Plak Smacker)
2) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG INNOVATIONS, INC. (a MO corporation) and all current and past
(for 5 years) trade names and legal names in the following jurisdictions:
a. CA Secretary of State
b. Sacramento County, CA
c. Riverside County, CA
d. IN Secretary of State
▇. ▇▇▇▇▇ County, IN
f. MO Secretary of State
g. St. Louis County, MO
h. TX Secretary of State
▇. ▇▇▇▇▇▇▇ County, TX
j. IL Secretary of State
▇. ▇▇▇▇▇▇▇ County, IL
l. TN Secretary of State
▇. ▇▇▇▇▇▇▇ County, TN
3) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG DENTAL MANUFACTURING I, LLC (a MO limited liability company)
and all current and past (for 5 years) trade names and legal names
(including YOUNG DENTAL MANUFACTURING COMPANY) in the following
jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
c. TX Secretary of State
▇. ▇▇▇▇▇▇▇ County, TX
4) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG DENTAL MANUFACTURING COMPANY in the following jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
c. TX Secretary of State
▇. ▇▇▇▇▇▇▇ County, TX
5) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG DENTAL INTERNATIONAL, INC. (a Barbados company) and all
current and past (for 5 years) trade names and legal names in the following
jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
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6) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YI EUROPE, LTD (a Great Britain company) and all current and past
(for 5 years) trade names and legal names in the following jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
7) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against DENTICATOR INTERNATIONAL, INC. (a MO corporation) and all current
and past (for 5 years) trade names and legal names in the following
jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
c. CA Secretary of State
d. Sacramento County, CA
8) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against LORVIC HOLDINGS, INC. (a DL corporation) and all current and past
(for 5 years) trade names and legal names in the following jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
c. DL Secretary of State
9) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against LORVIC CORPORATION (a DL corporation) and all current and past (for
5 years) trade names and legal names in the following jurisdictions:
a. MO Secretary of State
b. St. Louis County, MO
c. DL Secretary of State
10) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG ACQUISITIONS COMPANY (a MO corporation) and all current and
past (for 5 years) trade names and legal names (including PANORAMIC) in the
following jurisdictions:
a. IN Secretary of State
▇. ▇▇▇▇▇ County, IN
c. MO Secretary of State
11) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against PANORAMIC RENTAL CORP (a MO corporation) and all current and past
(for 5 years) trade names and legal names (including SAV-A-LIFE SYSTEM,
INC.) in the following jurisdictions:
a. IN Secretary of State
▇. ▇▇▇▇▇ County, IN
c. MO Secretary of State
12) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against ATHENA TECHNOLOGY, LLC (a MO limited liability company) and all
current and past (for 5 years) trade names and legal names (including
ATHENA TECHNOLOGY, INC., CHAMPION DENTAL, MICROSPEC, and GOLDEN GATE HAND
PIECE REPAIR) in the following jurisdictions:
a. IN Secretary of State
▇. ▇▇▇▇▇ County, IN
c. MO Secretary of State
13) UCC, Tax Lien, Judgment Lien and Pending Suit Search Results of filings
against YOUNG PS ACQUISITIONS, LLC (a DL limited liability company) and all
current and past (for 5 years) trade names and legal names (including PLAK
SMACKER) in the following jurisdictions:
a. CA Secretary of State
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b. Riverside County, CA
c. TN Secretary of State
▇. ▇▇▇▇▇▇▇ County, TN
e. DL Secretary of State
14) Current/Initial Financial Statements for Borrower and its Subsidiaries on a
consolidated basis
15) Copies of all Consents, Licenses and Approvals (obtained by any Borrower or
any Material Subsidiary in connection with the execution, performance, and
enforceability of the Loan Documents)
DELIVER AND/OR EXECUTE ON EXECUTION DATE
16) Credit Facilities Agreement, together with all exhibits and schedules
(including the Disclosure Schedule and list of Borrowing Officers, each of
which is to be prepared by Borrower)
17) Revolving Notes executed by Borrower:
a. $10,000,000 - Bank of America
b. $5,000,000 - The Northern Trust Company
c. $5,000,000 - ▇▇▇▇▇▇ Trust and Savings Bank
18) $3,000,000 Swingline Note to Administrative Agent executed by Borrower
19) Unlimited Guaranty of the Loan Obligations of Borrower, executed by each
Domestic Subsidiary (each, a Guarantor):
▇. ▇▇▇▇▇ Acquisitions Company
▇. ▇▇▇▇▇ PS Acquisitions, LLC
▇. ▇▇▇▇▇ Dental Manufacturing I, LLC
d. Denticator International, Inc.
e. Lorvic Holdings, Inc.
f. Lorvic Corporation
g. Panoramic Rental Corp
h. Athena Technology, LLC
20) Contribution, Subordination and Security Agreement executed by Borrower and
each Guarantor
21) Copy of Autoborrow Service Agreement and related documents
22) Side Letter
23) Payoff Letter from creditors other than Bank of America, if any: NONE
24) Secretary's Certificate (certifying resolutions, Articles or Certificate of
Incorporation, Bylaws and Incumbency) for Borrower and each Material
Subsidiary that is a corporation:
▇. ▇▇▇▇▇ (remember to authorize Borrowing Representatives)
b. Panoramic
25) Member's Certificate (certifying resolutions, Articles of Organization and
Operating Agreement and Incumbency) for each Material Subsidiary that is a
limited liability company:
▇. ▇▇▇▇▇ Dental
b. Plak Smacker
26) Good Standing Certificates for Borrower and each Material Subsidiary from
the Secretary of State of their states of incorporation and qualification:
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a. Borrower (MO corporation) - MO
▇. ▇▇▇▇▇ Dental (MO limited liability company) - MO, TX
c. Panoramic (MO corporation) - MO, IN
d. Plak Smacker (DE limited liability company) - DE
27) Legal Opinion of counsel to Borrower and each Material Subsidiary (in
accordance with attached Opinion Specification)
28) Initial Revolving Advance Request: N/A
29) Disbursement Direction Letter: N/A
30) Such other documents, reports and information as Administrative Agent or
Administrative Agent's counsel deems reasonable and necessary.
31) Lender's Expenses and Legal Fees (including payment of ▇▇▇▇▇, Rice &
Fingersh invoice)
DELIVER AND/OR OBTAIN SUBSEQUENT TO EXECUTION DATE (WITHIN IN THE TIME PERIOD
SET FORTH BELOW FOR EACH ITEM; FAILURE TO OBTAIN OR DELIVER SUCH ITEM WITHIN
SUCH TIME PERIOD WILL RESULT IN AN EVENT OF DEFAULT UNDER THE LOAN AGREEMENT) -
32) Current Insurance Certificates for Borrower and each Covered Person
evidencing that Borrower and each other Covered Person has in force
insurance meeting the applicable requirements of the Loan Agreement (WITHIN
30 DAYS AFTER THE EXECUTION DATE)
33) Good Standing Certificate Plak Smacker from the CA Secretary of State
(WITHIN 30 DAYS AFTER THE EXECUTION DATE)
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ATTACHMENT TO DOCUMENTS AND REQUIREMENTS LIST
OPINION SPECIFICATION
Legal opinion of counsel to Borrower (i.e., Young Innovations, Inc.) and each
Material Subsidiary Guarantor (i.e., Young Dental Manufacturing I, LLC, Young
Acquisitions Company, Young PS Acquisitions, LLC) must be on firm letterhead and
meet these requirements or otherwise be satisfactory to Administrative Agent:
1. Address to Bank of America, N.A. as Administrative Agent for itself and
other Lenders at ______________________________________________, Attention:
______________________
2. Refer to Loan Agreement and use its definitions.
3. Give opinions with respect to each Covered Person on the subjects covered
in all of the following example paragraphs:
a. Borrower is a Missouri corporation, duly formed, validly existing and
in good standing under the Laws of the state of its organization and
is duly qualified and authorized to do business and is in good
standing as a corporation in all states or countries where the nature
and extent of the business transacted by it or the ownership of its
assets makes such qualification necessary, except where the failure to
so qualify will not have a Material Adverse Effect.
b. Guarantor is a ______________ , duly formed, validly existing and in good standing under the
Laws of the state of its organization and is duly qualified and
authorized to do business and is in good standing as a foreign
corporation in all states or countries where the nature and extent of
the business transacted by it or the ownership of its assets makes
such qualification necessary, except where the failure to so qualify
will not have a Material Adverse Effect. [repeat paragraph for each
Material Subsidiary Guarantor]
c. Each Covered Person has all requisite power, authority and legal
capacity and legal rights (a) to own, lease and operate its properties
and assets and to carry on its business as now being conducted and (b)
to execute, deliver and perform the terms of the Loan Documents to
which it is a party.
d. All action on the part of each Covered Person requisite for its
execution, delivery and performance of the Loan Documents has been
duly taken.
e. The execution, delivery and performance of the Loan Documents by each
Covered Person will not (a) violate, be in conflict with, result in
the breach of, or constitute (with due notice or lapse of time, or
both) a default under (i) its Charter Documents or (ii) any franchise,
agreement, indenture, or other instrument to which it is a party or by
which it or any of its property is bound or affected or (iii) any Law
or other legal requirement applicable to it, or (b) result in the
creation or imposition of a Security Interest of any nature whatsoever
upon its property or assets.
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f. Each Covered Person has duly executed and delivered each of the Loan
Documents to which it is a party and each such Loan Document
constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms.
g. Each Person who signed any Loan Document as an officer of any Covered
Person is duly authorized on behalf of such Covered Person to execute,
deliver and perform such document on behalf of such Covered Person and
is duly authorized to perform its obligations thereunder and to incur
the obligations and make the representations, warranties and covenants
made by it in such Loan Document.
g. Each Covered Person has all certificates of authority, licenses,
permits, qualifications and documentation to own, lease and operate
its properties and to carry on its business as now being conducted,
and is in compliance with all Laws applicable to the conduct of its
business.
h. No consent, approval or other authorization of or by, or registration
or filing with, any Governmental Authority or other Person is required
in connection with the execution, delivery and performance by any
Covered Person of the Loan Documents to which it is a party that has
not already been obtained and a copy thereof delivered to
Administrative Agent.
i. There are no actions, proceedings or investigations pending or
threatened against any Covered Person which might adversely affect the
validity or enforceability of any of the Loan Documents, the ability
of such Covered Person to perform its obligations thereunder or which
might adversely affect the business, operations, revenues, financial
condition, property or business prospects of any Covered Person.
j. The use of the proceeds of the Loans will not violate Regulations T, U
or X of the Federal Reserve Board.
4. Add appropriate exceptions and limitations, all of which must be acceptable
to Administrative Agent.
5. Signature by a partner of the firm in his individual name or in the name of
the firm.
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EXHIBIT 13.10
BORROWING REPRESENTATIVES
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - Chief Executive Officer of Borrower
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - President of Borrower
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. - Executive Vice President and Chief Financial Officer
of Borrower
▇▇▇▇▇▇ ▇▇▇▇▇ - Controller of Borrower
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - Assistant Secretary of Borrower
▇▇▇▇▇ ▇▇▇▇▇▇ - designated agent of Borrower
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101
EXHIBIT 11
DISCLOSURE SCHEDULE OF BORROWER
102
EXHIBIT 13.13
FORM OF COMPLIANCE CERTIFICATE
TO: Bank of America, N.A., as Administrative Agent
This Compliance Certificate is furnished pursuant to that certain Credit
Facilities Agreement effective as of March 20, 2001 (as it may be amended,
modified, restated or replaced from time to time, the Loan Agreement) among
Young Innovations, Inc. (Borrower), Bank of America, N.A., as Administrative
Agent (Administrative Agent), and the Lenders as defined in the Loan Agreement
(Lenders). Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings defined in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the chief financial officer of Borrower.
2. I have reviewed the terms of the Loan Agreement and the Loan Documents
and I have made, or have caused to be made under my supervision, a
review of the transactions and conditions of Borrower and each other
Covered Person during the accounting period covered by the attached
Financial Statements.
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which
constitutes an Default or Event of Default as of the date of this
Compliance Certificate; and to my knowledge all of the Representations
and Warranties (including those of each Guarantor in its Guaranty) are
true in all material respects.
4. [Use for annual financial statements: Schedule I attached hereto
contains the Financial Statements for Borrower for the fiscal year
ended _____, which are complete and correct in all material respects
and have been prepared in accordance with GAAP applied consistently
throughout the period and with prior periods (except as disclosed
therein).]
[Use for quarterly financial statements: Schedule I attached hereto
contains the Financial Statements for Borrower for the fiscal quarter
ended _____, which are complete and correct in all material respects
(subject to normal year-end audit adjustments made in accordance with
GAAP and absence of footnotes) and have been prepared in accordance
with GAAP applied consistently throughout the period and with prior
periods (except as disclosed therein).]
5. Borrower and every other Covered Person is in compliance with all of
the covenants in the Loan Agreement, including the financial covenants
in Section 15, and Schedule II attached hereto contains calculations
based on Borrower's financial statements and other financial records
that show Borrower's compliance with such financial covenants. The
calculations and the data upon which they are based are believed by me
to be complete and correct.
This Compliance Certificate, together with the Schedules hereto, is executed and
delivered this day of ____________________.
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YOUNG INNOVATIONS, INC.
by its Executive Vice President and Chief
Financial Officer
_________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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SCHEDULE II
FINANCIAL COVENANT CALCULATIONS
(FOR THE PERIOD ENDING ___________________)
1. MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO EBITDA
(a) Total Funded Indebtedness $____________
(b) EBITDA $____________
1(a) divided by 1(b) = ____________
Covenant Maximum 2.00x
2. MAXIMUM RATIO OF TOTAL FUNDED INDEBTEDNESS TO TOTAL CAPITALIZATION
(a) Total Funded Indebtedness $____________
(b) Total Capitalization $____________
2(a) divided by 2(b) = ____________
Covenant Maximum 0.35x
105
EXHIBIT 19.4.1
FORM
OF
ASSIGNMENT AND ACCEPTANCE
DATED: ___________, _____
Credit Facilities Agreement effective as of March 20, 2001 (as it may be
amended, modified, restated or replaced from time to time, the Loan Agreement)
among Young Innovations, Inc. (Borrower), Bank of America, N.A., as
Administrative Agent (Administrative Agent) and the Lenders as defined in the
Loan Agreement (Lenders). Terms defined in the Loan Agreement are used herein
with the same meaning.
The Assignor and the Assignee referred to on Schedule 1 agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse and
without representation or warranty except as expressly set forth herein,
and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Loan
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Loan Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Loans owing to the Assignee will be as set forth on
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of any Covered Person or the performance or
observance by any Covered Person of any of its obligations under the Loan
Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note(s) held by the Assignor and requests that
Administrative Agent exchange such Note(s) for new Note(s) payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal to the
Commitment retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement, together with copies of the financial statements referred to in
Section thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon Administrative Agent, the Assignor 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 the Loan Agreement; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Loan Agreement as are delegated to
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Loan Agreement are required to be performed by it as a
106
Lender; and (vi) attaches any U.S. Internal Revenue Service or other forms
required under Section 18.6.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to Administrative Agent for acceptance and recording by
Administrative Agent. The effective date for this Assignment and Acceptance
(the Effective Date) shall be the date set forth in Schedule 1, or if no
effective date is set forth therein, the date of acceptance hereof by
Administrative Agent. Notwithstanding the foregoing, if Borrower has the
right to consent to this Assignment and Acceptance under the Loan
Agreement, this Assignment and Acceptance shall only become effective if it
is so consented to by Borrower, and then shall be effective as of the date
set forth in the immediately preceding sentence.
5. Upon such acceptance and recording by Administrative Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Loan Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Agreement.
6. Upon such acceptance and recording by Administrative Agent, from and after
the Effective Date, Administrative Agent shall make all payments under the
Loan Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Loan
Agreement and the Notes for periods prior to the Effective Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule 1 to this Assignment and Acceptance
by telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
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SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: __________%
Assignee's Commitment: $_________
Aggregate outstanding principal
amount of Loans assigned: $_________
Principal amount of Note payable to Assignee: $_________
Principal amount of Note payable to Assignor: $_________
Effective Date (if other than date of
acceptance by Administrative Agent): * _____________, 19_
[NAME OF ASSIGNOR], as Assignor
By:__________________________________
Title:_______________________________
Dated:________________, 19 ___
[NAME OF ASSIGNEE], as Assignee
By:__________________________________
Title:_______________________________
Domestic Lending Office:
Eurodollar Lending Office:
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*This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to Administrative Agent.
Accepted [and Approved]**
This ___ day of ________ , 19__
Bank of America, N.A.
By:_________________________________
Title:______________________________
[Approved this ___ day
of ___________ , 19__
[NAME OF BORROWER]
By: ________________________________**
Title:______________________________
**Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of Eligible Assignee.