Exhibit 10(aa)
$42,500,000.00
CREDIT AGREEMENT
Dated as of September 7, 2001
among
CANTEL MEDICAL CORP.
AS BORROWER,
THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
AS INITIAL LENDERS,
FLEET NATIONAL BANK,
as Initial Issuing Bank,
as Swing Line Bank
and
AS ADMINISTRATIVE AGENT
and
PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
Section 1.1 Certain Defined Terms.............................................................................1
Section 1.2 Computation of Time Periods......................................................................30
Section 1.3 Construction.....................................................................................30
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT..........................................31
Section 2.1 The Advances.....................................................................................31
Section 2.2 Making the Advances..............................................................................32
Section 2.3 Issuance of and Drawings and Reimbursement Under Letters of Credit...............................35
Section 2.4 Repayment of Advances............................................................................37
Section 2.5 Termination or Reduction of the Commitments......................................................38
Section 2.6 Prepayments......................................................................................39
Section 2.7 Interest.........................................................................................42
Section 2.8 Fees.............................................................................................43
Section 2.9 Conversion of Advances...........................................................................44
Section 2.10 Increased Costs, Etc............................................................................45
Section 2.11 Payments and Computations.......................................................................46
Section 2.12 Taxes...........................................................................................48
Section 2.13 Sharing of Payments, Etc........................................................................50
Section 2.14 Use of Proceeds.................................................................................51
Section 2.15 Defaulting Lenders..............................................................................51
Section 2.16 Removal of Lender...............................................................................53
ARTICLE III CONDITIONS OF LENDING...............................................................................54
Section 3.1 Conditions Precedent to Initial Extension of Credit..............................................54
Section 3.2 Conditions Precedent to Each Borrowing and Issuance..............................................61
Section 3.3 Determinations Under Section 3.1.................................................................62
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BORROWER.......................................................62
Section 4.1 Organization.....................................................................................62
Section 4.2 Subsidiaries.....................................................................................63
Section 4.3 Corporate Power, Authorization...................................................................63
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Section 4.4 Governmental Authorizations, Approvals...........................................................63
Section 4.5 Due Execution, Validity, Enforceability..........................................................64
Section 4.6 Financial Statements.............................................................................64
Section 4.7 Pro Forma Financial Statements...................................................................65
Section 4.8 Accurate Information.............................................................................65
Section 4.9 Litigation.......................................................................................65
Section 4.10 Regulation U....................................................................................65
Section 4.11 ERISA...........................................................................................65
Section 4.12 Casualty........................................................................................66
Section 4.13 Environmental Matters...........................................................................66
Section 4.14 Burdensome Documents............................................................................67
Section 4.15 Priority of Liens...............................................................................67
Section 4.16 Taxes...........................................................................................67
Section 4.17 Compliance with Securities Laws.................................................................68
Section 4.18 Solvency........................................................................................68
Section 4.19 Debt............................................................................................68
Section 4.20 No Defaults, Compliance with Laws...............................................................68
Section 4.21 Owned Real Property.............................................................................69
Section 4.22 Leased Real Property............................................................................69
Section 4.23 Material Contracts..............................................................................69
Section 4.24 Investments.....................................................................................69
Section 4.25 Intellectual Property...........................................................................70
Section 4.26 Merger Documents................................................................................70
Section 4.27 Fees............................................................................................70
ARTICLE V AFFIRMATIVE COVENANTS.................................................................................71
Section 5.1 Compliance with Law..............................................................................71
Section 5.2 Payment of Taxes, Etc............................................................................71
Section 5.3 Compliance with Environmental Laws...............................................................71
Section 5.4 Preparation of Environmental Reports.............................................................71
Section 5.5 Maintenance of Insurance.........................................................................72
Section 5.6 Preservation of Corporate Existence, Etc.........................................................72
Section 5.7 Visitation Rights................................................................................72
Section 5.8 Keeping of Books.................................................................................73
Section 5.9 Maintenance of Properties, Etc...................................................................73
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Section 5.10 Compliance with Terms of Leaseholds.............................................................73
Section 5.11 Performance of Material Contracts...............................................................73
Section 5.12 Transactions with Affiliates....................................................................73
Section 5.13 Agreement to Grant Additional Security..........................................................73
Section 5.14 Interest Rate Protection........................................................................75
Section 5.15 Performance of Merger Documents.................................................................75
Section 5.16 Cash Concentration or Blocked Accounts..........................................................76
ARTICLE VI NEGATIVE COVENANTS...................................................................................76
Section 6.1 Liens, Etc.......................................................................................76
Section 6.2 Debt.............................................................................................77
Section 6.3 Accounts Payable.................................................................................78
Section 6.4 Fundamental Changes..............................................................................78
Section 6.5 Sales, Etc. of Assets............................................................................78
Section 6.6 Investments in Other Persons.....................................................................79
Section 6.7 Dividends, Etc...................................................................................80
Section 6.8 Change in Nature of Business.....................................................................80
Section 6.9 Charter Amendments...............................................................................80
Section 6.10 Accounting Changes..............................................................................80
Section 6.11 Prepayments, Etc. of Debt.......................................................................81
Section 6.12 Amendment, Etc. of Merger Documents.............................................................81
Section 6.13 Amendment, Etc. of Material Contracts...........................................................81
Section 6.14 Negative Pledge.................................................................................81
Section 6.15 Partnerships, New Subsidiaries..................................................................81
Section 6.16 Speculative Transactions........................................................................82
Section 6.17 Capital Expenditures............................................................................82
Section 6.18 Issuance of Stock...............................................................................82
Section 6.19 Guaranteed Obligations..........................................................................82
Section 6.20 Total Liabilities to Total Capitalization of Carsen.............................................83
ARTICLE VII REPORTING REQUIREMENTS..............................................................................83
Section 7.1 Default Notice...................................................................................83
Section 7.2 Quarterly Financials.............................................................................83
Section 7.3 Annual Financials................................................................................84
Section 7.4 Annual Forecasts.................................................................................84
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Section 7.5 ERISA Events and ERISA Reports...................................................................84
Section 7.6 Plan Terminations................................................................................84
Section 7.7 Actuarial Reports................................................................................85
Section 7.8 Plan Annual Reports..............................................................................85
Section 7.9 Annual Plan Summaries............................................................................85
Section 7.10 Multiemployer Plan Notices......................................................................85
Section 7.11 Litigation......................................................................................85
Section 7.12 Securities Reports..............................................................................85
Section 7.13 Creditor Reports................................................................................86
Section 7.14 Agreement Notices...............................................................................86
Section 7.15 Revenue Agent Reports...........................................................................86
Section 7.16 Environmental Conditions........................................................................86
Section 7.17 Real Property...................................................................................86
Section 7.18 Insurance.......................................................................................86
Section 7.19 Borrowing Base Certificate......................................................................87
Section 7.20 Management Letters..............................................................................87
Section 7.21 Extraordinary or Unusual Items..................................................................87
Section 7.22 Monthly Accounts Receivable Aging Reports, etc..................................................87
Section 7.23 Other Information...............................................................................87
ARTICLE VIII FINANCIAL COVENANTS................................................................................87
Section 8.1 Minimum EBITDA...................................................................................87
Section 8.2 Consolidated Debt to EBITDA Ratio................................................................88
Section 8.3 Fixed Charge Coverage Ratio......................................................................88
Section 8.4 Minimum Available Adjusted U.S. Cash Flow Coverage Ratio.........................................88
ARTICLE IX EVENTS OF DEFAULT....................................................................................89
Section 9.1 Payment..........................................................................................89
Section 9.2 Representations and Warranties...................................................................89
Section 9.3 Certain Covenants................................................................................89
Section 9.4 Other Covenants..................................................................................89
Section 9.5 Other Defaults...................................................................................89
Section 9.6 Bankruptcy, Etc..................................................................................89
Section 9.7 Judgments........................................................................................90
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Section 9.8 Loan Documents...................................................................................90
Section 9.9 Liens............................................................................................90
Section 9.10 Change of Control...............................................................................90
Section 9.11 ERISA Events....................................................................................90
Section 9.12 Borrowing Base Deficiency.......................................................................91
ARTICLE X THE ADMINISTRATIVE AGENT..............................................................................92
Section 10.1 Authorization and Action........................................................................92
Section 10.2 Agent's Reliance, Etc...........................................................................92
Section 10.3 Fleet and Affiliates............................................................................93
Section 10.4 Lender Party Credit Decision....................................................................93
Section 10.5 Indemnification.................................................................................93
Section 10.6 Successor Administrative Agents.................................................................95
Section 10.7 Events of Default...............................................................................95
ARTICLE XI MISCELLANEOUS........................................................................................96
Section 11.1 Amendments, Etc.................................................................................96
Section 11.2 Notices, Etc....................................................................................97
Section 11.3 No Waiver; Remedies.............................................................................98
Section 11.4 Costs and Expenses..............................................................................98
Section 11.5 Right of Set-off...............................................................................100
Section 11.6 Binding Effect.................................................................................100
Section 11.7 Assignments and Participations.................................................................101
Section 11.8 Execution in Counterparts......................................................................103
Section 11.9 No Liability of the Issuing Bank...............................................................104
Section 11.10 Confidentiality...............................................................................104
Section 11.11 Further Assurances............................................................................104
Section 11.12 Jurisdiction, Etc.............................................................................104
Section 11.13 GOVERNING LAW.................................................................................105
Section 11.14 WAIVER OF JURY TRIAL..........................................................................105
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EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Form of Revolving Credit Promissory Note
Exhibit D - Form of Term A Promissory Note
Exhibit E - Form of Swing Line Promissory Note
Exhibit F - Form of Note Assignment Agreement
Exhibit G - Form of Notice of Borrowing
Exhibit H - Form of Security Agreement
Exhibit I - Form of Intercompany Note
Exhibit J - Form of Intellectual Property Security Agreement
Exhibit K - [Intentionally Omitted]
Exhibit L - Form of Subsidiary Guaranty
Exhibit M - Form of Consent of Landlord
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.1(a)(x) - States in which Loan Parties are Qualified to do Business
Schedule 4.2 - Subsidiaries
Schedule 4.4 - Required Authorizations and Approvals
Schedule 4.9 - Disclosed Litigation
Schedule 4.11 - Welfare Plans
Schedule 4.13 - Environmental Assessment Reports
Schedule 4.14 - Burdensome Documents
Schedule 4.16(b) - Open Tax Years
Schedule 4.16(d) - Tax Adjustments
Schedule 4.16(e) - Ownership Changes
Schedule 4.19(a) - Existing Debt
Schedule 4.19(b) - Surviving Debt
Schedule 4.20 - No Defaults
Schedule 4.21 - Owned Real Estate
Schedule 4.22 - Leased Real Estate
Schedule 4.23 - Material Contracts
Schedule 4.24 - Investments
Schedule 4.25 - Intellectual Property
Schedule 6.1(c) - Liens
Schedule 6.6(a) - Investments in Subsidiaries
Schedule 6.6(f) - Existing Investments
Schedule 6.18 - Existing Issuances, Etc. of Stock
Schedule 6.19 - Guaranteed Obligations
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of September 7, 2001, ("AGREEMENT" or
"
CREDIT AGREEMENT") by and among
CANTEL MEDICAL CORP., a Delaware corporation
("Cantel" or the "BORROWER"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "INITIAL LENDERS"), FLEET NATIONAL BANK, as Initial Issuing Bank
(the "INITIAL ISSUING BANK"), FLEET NATIONAL BANK, as the Swing Line Bank (the
"SWING LINE BANK"), FLEET NATIONAL BANK, as Administrative Agent (together with
any successor appointed pursuant to Article 10, the "ADMINISTRATIVE AGENT") for
the Lender Parties (as hereinafter defined) and PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent (the "DOCUMENTATION AGENT").
PRELIMINARY STATEMENT:
(1) Pursuant to an Agreement and Plan of Merger, dated May 30, 2001, (the
"MERGER AGREEMENT"), by and among Borrower, Canopy Merger Corp., a Minnesota
corporation and a Wholly Owned Domestic Subsidiary of Borrower ("MERGER CORP.")
and Minntech Corporation, a Minnesota corporation ("MINNTECH"), Cantel, Merger
Corp. and Minntech have agreed to merge Merger Corp. with and into Minntech,
which will become a Wholly Owned Domestic Subsidiary of Borrower (such
transaction being hereinafter called the "MERGER").
(2) The Borrower has requested that the Lender Parties (as hereinafter
defined) make loans to the Borrower and issue letters of credit having an
aggregate principal and face amount at any one time outstanding of up to
Forty-Two Million Five Hundred Thousand Dollars ($42,500,000.00), to be used by
the Borrower solely (a) to finance, in part, the Merger and to pay fees and
expenses incurred in connection with the Merger, (b) to repay existing
indebtedness, if any, and (c) to finance working capital and capital
expenditures of the Borrower, and the Lender Parties have agreed to make such
loans and issue such letters of credit all on and subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACCOUNTS" has the meaning specified in ANNEX A to the Security Agreement.
"ADDITIONAL COLLATERAL DOCUMENTS" has the meaning specified in Section
5.13(e).
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of parties
to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the Administrative
Agent maintained by the Administrative Agent at its Domestic Lending Office.
"ADVANCE" means a Term A Advance, a Revolving Credit Advance, a Swing Line
Advance, or a Letter of Credit Advance.
"AFFECTED LENDER" has the meaning specified in Section 2.16.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"AFTER-ACQUIRED MORTGAGED PROPERTY" means any parcel (or adjoining
parcels) of real property (including any leaseholds) acquired by any Loan Party
after the Closing Date subject to a Mortgage granted to the Administrative Agent
for the benefit of the Secured Parties pursuant to SECTION 5.13.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party, such
Lender Party's Domestic Lending Office in the case of a Prime Rate Advance and
such Lender Party's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"APPLICABLE MARGIN" means at any time and from time to time a percentage
per annum determined pursuant to the last paragraph of this definition by
reference to the ratio of Consolidated Debt to EBITDA at such time, as set forth
below:
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APPLICABLE MARGIN FOR ADVANCES
Ratio of Consolidated Eurodollar Rate Prime Rate
Debt to EBITDA Advances Advances
--------------------- --------------- ---------
Greater than 2.0 to 1.0 3.25% 2.00%
Greater than 1.75 to 1.0 but 3.00% 1.75%
less than or equal to 2.0 to 1.0
Greater than 1.50 to 1.0 but 2.75% 1.50%
less than or equal to 1.75 to 1.0
Greater than 1.00 to 1.00 2.50% 1.25%
but less than or equal to
1.5 to 1.0
Equal to or less than 1.0 to 2.00% .75%
1.0
Notwithstanding the above rates, prior to the date which is six (6) months
from the date hereof, the Applicable Margin for a Revolving Credit Advance or a
Term A Advance shall be 3.25% for a Eurodollar Rate Advance and 2.00% for a
Prime Rate Advance.
The Applicable Margin for each Prime Rate Advance and each Eurodollar Rate
Advance shall be determined by reference to the ratio of Consolidated Debt to
EBITDA which shall be determined three Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section 7.2 or
7.3 and a certificate of the President or Vice President of the Borrower
demonstrating the ratio of Consolidated Debt to EBITDA. If the Borrower has not
submitted to the Administrative Agent the information described above as and
when required under Section 7.2 or 7.3, as the case may be, the Applicable
Margin shall be, irrespective of the actual ratio of Consolidated Debt to
EBITDA, the highest rate set forth above for the applicable Type of Advance for
so long as such information has not been received by the Administrative Agent.
The Applicable Margin shall be adjusted, if applicable, as of the first day of
the month following the date of determination described in the two preceding
sentences.
"ASSET DISPOSITION" shall mean the disposition (not involving an
Extraordinary Receipt) of any or all of the fixed assets of the Borrower or any
of its Subsidiaries whether by sale, lease, transfer, or otherwise; PROVIDED,
HOWEVER, that for purposes of Section 2.6(b), the term "Asset Disposition" shall
not include any sale, lease, transfer or other disposition of Inventory in the
ordinary course of business.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent and, so long as no Event of Default shall have occurred and
be continuing, by the Borrower, in accordance with Section 11.7 and in
substantially the form of EXHIBIT A hereto.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
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"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement required or
permitted under Section 5.14 that is entered into by and between the Borrower
and any Hedge Bank.
"BLOCKED ACCOUNTS" has the meaning given that term in Section 5.16.
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower maintained by the
Borrower with Fleet National Bank at its Domestic Lending Office.
"BORROWING" means a Term A Borrowing, a Revolving Credit Borrowing or a
Swing Line Borrowing.
"BORROWING BASE" on any date means the sum of (i) 85% of the value of the
Eligible Receivables PLUS (ii) 50% of the value of the Eligible Inventory, in
each case set forth in the most recent Borrowing Base Certificate delivered to
the Administrative Agent pursuant to the terms of this Agreement on or prior to
such date.
"BORROWING BASE CERTIFICATE" means a certificate in substantially the form
of EXHIBIT B hereto, duly certified by the President or a Vice President of the
Borrower.
"BORROWING BASE DEFICIENCY" means, at any time, the failure of the
Borrowing Base at such time to equal or exceed the sum of (a) the aggregate
principal amount of the Revolving Credit Advances, the Letter of Credit Advances
and the Swing Line Advances outstanding at such time PLUS (b) the aggregate
Available Amount under all Letters of Credit outstanding at such time.
"BUSINESS DAY" means a day of the year on which banks are not required or
authorized by law to close in Boston, Massachusetts, Hackensack, New Jersey and
New York,
New York and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank market.
"CANADIAN
CREDIT AGREEMENT" means that certain
credit agreement dated on
or about the date hereof between Carsen, as Borrower, and the Canadian Lender.
"CANADIAN DOLLAR," "CANADIAN DOLLARS" and the symbol "C" shall mean lawful
money of Canada.
"CANADIAN LENDER" means National Bank of Canada.
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum of
all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for Equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or Equipment on a Consolidated balance sheet of
such Person;
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PROVIDED, that Capital Expenditures shall not include capital expenditures to
the extent that such expenditures constitute a reinvestment of Net Cash Proceeds
from any Asset Disposition permitted under this Agreement in similar fixed
assets, which investment is made before or within ninety (90) days after receipt
of such Net Cash Proceeds.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CARSEN" means Carsen Group Inc., a company organized under the laws of
the Province of Ontario, Canada and a Wholly Owned Subsidiary of the Borrower.
"CASH DOMINION EVENT" has the meaning specified in Section 5.16.
"CASH EQUIVALENTS" means any of the following, to the extent owned by the
Borrower or any of its Subsidiaries, free and clear of all Liens other than
Liens created under the Collateral Documents: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a maturity of not
greater than one year from the date of issuance thereof, (b) insured
certificates of deposit of or time deposits having a maturity of not greater
than one year from the date of issuance thereof with any commercial bank that is
a Lender Party or a member of the Federal Reserve System that issues (or the
parent of which issues) commercial paper rated as described in clause (c) and is
organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1 billion or (c) commercial paper
having a maturity of not greater than 180 days from the date of issuance thereof
in an aggregate amount of no more than $2,500,000.00 per issuer outstanding at
any time, issued by any corporation organized under the laws of any State of the
United States and rated at least "Prime-1" (or the then equivalent grade) by
▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CHANGE OF CONTROL" means any of the following events: (a) Cantel shall at
any time cease to own 100% of the capital stock of Carsen or (b) with respect to
Cantel, a change of control of Cantel that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A, as in effect on the
date hereof, promulgated under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") shall occur; PROVIDED that, without limitation, such a
Change of Control shall be deemed to occur if: (i) any "Person" (as such term is
used in Section13(d) and Section14(d) of the Exchange Act), except for any
employee benefit plan of Cantel or any Subsidiary or related corporation, or any
entity holding voting securities of Cantel for or pursuant to the terms of any
such plan, shall become the beneficial owner, directly or indirectly, of
securities of Cantel representing 30% or more (or in the case of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, securities representing 35% or more) of the combined voting power of
Cantel's then outstanding securities;
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(ii) there shall occur a contested proxy solicitation of Cantel's shareholders
that results in the contesting party obtaining the ability to vote securities
representing 30% (or in the case of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, securities representing
35% or more) or more of the combined voting power of Cantel's then outstanding
securities; (iii) there shall occur: (A) a sale, exchange, transfer or other
disposition of all or substantially all of the assets of Cantel to another
entity, except to an entity controlled directly or indirectly by Cantel, (B) a
merger or consolidation in which Cantel is a constituent unless the surviving
entity is controlled directly or indirectly by the same Persons that controlled
Cantel immediately prior to such merger or consolidation or (C) the adoption of
a plan of liquidation or dissolution of Cantel other than pursuant to bankruptcy
or insolvency laws; or (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of Cantel shall cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by Cantel's
shareholders, of each new director shall be approved by a vote of at least
two-thirds (2/3rds) of the directors then still in office who were directors at
the beginning of the period. For purposes of this definition "control", when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract, by family relationship or
otherwise; and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"CLOSING DATE" means the date on which all of the conditions precedent to
the Initial Extension of Credit set forth in Section 3.1 shall have been
satisfied or waived.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Intellectual
Property Security Agreement, the Mortgages, the Note Assignment Agreement and
any other agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties, including the
Additional Collateral Documents delivered pursuant to Section 5.13.
"COLLECTING BANKS" has the meaning specified in Section 5.16.
"COMMITMENT" means a Term A Commitment, a Revolving Credit Commitment or a
Letter of Credit Commitment.
"COMMITMENT LETTER" means that certain letter dated as of May 30, 2001,
from Administrative Agent to Cantel.
"CONFIDENTIAL INFORMATION" means information that the Borrower furnishes
to the Administrative Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by the
Administrative Agent or any Lender Party of its obligations hereunder or that is
or becomes available to the Administrative Agent or such Lender Party from a
source
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other than the Borrower that is not, to the best of the Administrative Agent's
or such Lender Party's knowledge, acting in violation of a confidentiality
agreement with the Borrower.
"CONSENT OF LANDLORD" means a consent and waiver of a landlord
substantially in the form of EXHIBIT M.
"CONSOLIDATED" refers to the consolidation of accounts, in accordance with
GAAP, of any Person and all of its Subsidiaries, and if not specified, the
Borrower and all of its Subsidiaries.
"CONSOLIDATED DEBT TO EBITDA" means, as of any determination date, a
ratio, all on a Consolidated basis, of (a) Debt of the Borrower and its
Subsidiaries as at the end of such fiscal quarter to (b) EBITDA for the most
recently completed four fiscal quarters of the Borrower and its Subsidiaries.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.9 or
2.10.
"CURRENT ASSETS" of any Person means all assets of such Person that would,
in accordance with GAAP, be classified as current assets of a company conducting
a business the same as or similar to that of such Person, after deducting
adequate reserves in each case in which a reserve is proper in accordance with
GAAP.
"CURRENT LIABILITIES" of any Person means (a) Debt of such Person, except
Funded Debt, that by its terms is payable on demand or matures within one year
after the date of determination (excluding any Debt renewable or extendible, at
the option of such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that obligates the lender
or lenders to extend credit during a period of more than one year from such
date), (b) all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after such date and (c) all other items (including taxes
accrued as estimated but excluding Funded Debt) that in accordance with GAAP
would be classified as current liabilities of such Person.
"DEBT" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services, excluding, however, trade
indebtedness, (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Obligations of
such Person as lessee under Operating Leases or Capitalized Leases, HOWEVER, all
Obligations in connection with Operating Leases shall be excluded from this
definition of Debt for purposes of calculating the financial covenants in
Article VIII, (f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit interest in such
Person or any other Person or any warrants, rights or options to acquire such
capital stock, (h) all Obligations of such Person in respect of Hedge
Agreements, net of any buying or selling
-7-
expenses incurred thereunder, HOWEVER, all Obligations in connection with such
Hedge Agreements shall be excluded from this definition of Debt for purposes of
calculating the financial covenants in Article VIII, (i) all Debt of others
referred to in clauses (a) through (h) above or clause (j) below guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise to assure
a creditor against loss, and (j) all Debt referred to in clauses (a) through (i)
above of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts, contract rights or inventory) owned by
the Borrower or its Subsidiaries, even though the Borrower or its Subsidiaries
has not assumed or become liable for the payment of such Debt.
"DEBT ISSUANCE" means any issuance or sale or other incurrence by the
Borrower or any of its Subsidiaries of any Debt; PROVIDED, HOWEVER, that for
purposes of determination of Net Cash Proceeds under Section 2.6(b)(iii), the
term "Debt Issuance" shall not include the incurrence of Debt permitted under
Section 6.2.
"DEFAULT" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any time,
the portion of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.1 or 2.2 at or prior to such time which has not
been made by such Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.2(e) as of such time. In the event that
a portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section 2.1 on the
same date as the Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any time,
any amount required to be paid by such Lender Party to the Administrative Agent
or any other Lender Party hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (a) the Swing
Line Bank pursuant to Section 2.2(b) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to Section
2.3(c) to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.2(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (d) any other Lender Party pursuant
to Section 2.13 to purchase any participation in Advances owing to such other
Lender Party and (e) the Administrative Agent or the Issuing Bank pursuant
-8-
to Section 10.5 to reimburse the Administrative Agent or the Issuing Bank for
such Lender Party's ratable share of any amount required to be paid by the
Lender Parties to the Administrative Agent or the Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.15(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid hereunder
or under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any
action or be the subject of any action or proceeding of a type described in
Section 9.6.
"DISCLOSED LITIGATION" has the meaning specified in Section 4.9.
"DISPOSAL" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any solid waste or hazardous waste, as those terms are
defined by any federal, state, local or foreign law, into or on any land or
water so that such solid waste or hazardous waste or any constituents thereof
may enter the environment or be emitted into the air or discharged into any
waters, including ground waters.
"DOCUMENTATION AGENT" has the meaning specified in the recital of parties
to this Agreement.
"DOLLARS" unless otherwise specified, means dollars constituting legal
tender for the payment of public and private debts in the United States of
America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on SCHEDULE I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of the
United States of America or any State thereof and having substantially all of
its business, properties and assets located in the United States of America.
"EBITDA" means, (a) for any period prior to the Merger, the sum, for the
Borrower and its Subsidiaries determined on a Consolidated, pro forma basis
after giving effect to the Merger and (b) for any period after the Merger, the
sum, for the Borrower and its Subsidiaries determined on a Consolidated basis,
of (i) net income (or net loss), (ii) Interest Expense, (iii) income tax
expense, (iv) depreciation expense, (v) extraordinary and nonrecurring losses
and (vi) amortization expense, MINUS extraordinary and nonrecurring gains (in
each case determined in accordance with GAAP).
"ELIGIBLE ASSIGNEE" means with respect to any Facility (other than the
Letter of Credit Facility), (a) a Lender; (b) an Affiliate of a Lender; and (c)
subject to the prior approval of the
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Administrative Agent and, so long as no Event of Default shall have occurred and
be continuing, the Borrower, such approval by the Borrower not to be
unreasonably withheld or delayed, (i) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in excess of
$500,000,000.00; (ii) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000.00; (iii) a commercial bank organized under the
laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000.00, so long as such bank is booking the loan through a branch or
agency located in the United States; (iv) the central bank of any country that
is a member of the OECD; and (v) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total assets
in excess of $500,000,000.00; and, with respect to the Letter of Credit
Facility, a Person that is an Eligible Assignee under subclause (i) or (iii) of
clause (c) of this definition and is approved by the Administrative Agent and
the Borrower, such approval by the Borrower not to be unreasonably withheld or
delayed; PROVIDED, HOWEVER, that no Loan Party or Affiliate of a Loan Party
shall qualify as an Eligible Assignee under this definition.
"ELIGIBLE INVENTORY" means Inventory of the Borrower or any Domestic
Subsidiary of the Borrower located in the continental United States (minus any
reserves reasonably requested by the Administrative Agent) as to which (a) the
Borrower or such Domestic Subsidiary has acquired title, (b) the Lenders have a
first and only perfected security interest and (c) the Borrower or such Domestic
Subsidiary shall have furnished to the Administrative Agent information adequate
for purposes of identification at times and in form and substance as may be
reasonably requested by the Administrative Agent; PROVIDED, that Inventory shall
not constitute Eligible Inventory (i) if and when the Borrower or such Domestic
Subsidiary sells it, otherwise passes title thereto or consumes it, (ii) if the
Lenders release their security interest therein, or (iii) to the extent that it
(A) is obsolete or not currently useable or salable in the ordinary course of
the Borrower's or such Domestic Subsidiary's business, (B) is produced in
violation of the Fair Labor Standards Act and subject to the so-called "hot
goods" provision contained in Title 29, Section 215(a) (1) of the United States
Code, (C) is Inventory in excess of one year's supply to the extent the value of
all such Inventory exceeds $300,000.00 in the aggregate (determined as at the
end of the most recently completed fiscal quarter preceding the Borrowing Base
Calculation), (D) constitutes raw materials or work in process unless such work
in process represents endoscope disinfection units for which the primary
manufacturing process has been completed and such units remain unfinished
subject only to the installation of customer options (i.e., heaters, air
compressors and leak testers) and final testing, in which case such work in
process will be considered to have the same collateral status as finished goods
inventories; provided, however, that in no event shall the Dollar amount of such
Inventory permitted to be Eligible Inventory pursuant to this clause (D) ever
exceed $100,000.00 in the aggregate at any one time or (E) is Inventory held for
consumption by the Borrower or such Domestic Subsidiary of the Borrower and not
for sale in the ordinary course of business. Any Inventory which is Eligible
Inventory at any time, but which subsequently fails to meet any of the foregoing
requirements,
-10-
shall forthwith cease to be Eligible Inventory until such time as it once again
meets all of the foregoing requirements.
"ELIGIBLE RECEIVABLES" means only such Receivables of the Borrower or a
Domestic Subsidiary of the Borrower as the Administrative Agent, in its
reasonable judgment, shall from time to time elect to consider Eligible
Receivables for purposes of this Agreement. The value of such Receivables shall
be determined by the Administrative Agent in its reasonable judgment taking into
consideration, among other factors, their book value determined in accordance
with GAAP. By way of example only, and without limiting the discretion of the
Administrative Agent to consider any Receivables not to be Eligible Receivables,
the Administrative Agent shall consider any of the following classes of
Receivables not to be Eligible Receivables:
(a) Receivables that do not arise out of sales of goods or rendering
of services in the ordinary course of the Borrower's or such Domestic
Subsidiary's business;
(b) Receivables on terms other than those normal or customary in the
Borrower's or such Domestic Subsidiary's business;
(c) Receivables owing from any Person that is an Affiliate of the
Borrower or such Domestic Subsidiary;
(d) Receivables more than 120 days past original invoice date or
more than 90 days past the date due;
(e) Receivables owing from any Person from which an aggregate amount
of more than 25% of the Receivables owing from such Person are more than 90 days
past due;
(f) Receivables owing from any Person that shall take or be the
subject of any action or proceeding of a type described in Section 9.6;
(g) Receivables (i) owing from any Person that is also a supplier to
or creditor of the Borrower or a Domestic Subsidiary of the Borrower to the
extent that such Receivables may be subject to any potential right of set-off
unless such Person has waived any right of set-off in a manner reasonably
acceptable to the Administrative Agent or (ii) representing any manufacturer's
or supplier's credits, discounts, incentive plans or similar arrangements
entitling the Borrower or a Domestic Subsidiary of the Borrower to discounts on
future purchases therefrom;
(h) Receivables arising out of sales on a ▇▇▇▇-and-hold, guaranteed
sale, sale-or-return, sale on approval or consignment basis (excluding, however,
▇▇▇▇-and-hold sales made to Olympus America, Inc.), or sales subject to any
right of return, set-off or charge-back;
(i) Receivables owing from an account debtor that is an agency,
department or instrumentality of the United States or any State thereof unless
the Borrower or a Domestic Subsidiary of the Borrower shall have satisfied the
requirements of the Assignment of Claims Act of 1940, as amended, and any
similar State legislation and the Administrative Agent is
-11-
satisfied as to the absence of set-offs, counterclaims and other defenses on the
part of such account debtor or (b) the federal government of Canada or any
provincial government or any department, agency or instrumentality thereof;
(j) Receivables the full and timely payment of which the
Administrative Agent in its reasonable judgment, after consultation with the
Borrower or a Domestic Subsidiary of the Borrower, believes to be doubtful;
(k) Receivables in respect of which the Security Agreement, after
giving effect to the related filings of financing statements that have then been
made, if any, does not or has ceased to create a valid and perfected first and
only priority lien or security interest in favor of the Secured Parties securing
the Secured Obligations;
(l) Receivables owing from any Person whose principal place of
business is located outside the United States of America unless such account is
backed by a letter of credit issued or confirmed by a bank that is organized
under the laws of the United States of America or a State thereof and has
capital and surplus in excess of $1,000,000,000.00 (provided, however, that such
letter of credit shall have been delivered to the Administrative Agent for the
benefit of the Lenders, as additional Collateral under the Loan Documents if
required by the Lenders) or such account is covered by foreign credit insurance
satisfactory to the Administrative Agent in its sole and absolute discretion;
and
(m) If Receivables from any Person (excluding, however, Olympus
America Inc.) represent 25% percent or more of the total balance due on all
accounts or accounts receivable of the Borrower or a Domestic Subsidiary, the
portion of the Receivables of said Person which exceed 25% percent or more of
the total balance due on all accounts or accounts receivable of the Borrower or
a Domestic Subsidiary of the Borrower.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to public health and
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority or third party for enforcement, cleanup,
Removal, Response, Remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any international or transnational law, federal,
state, local or foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree or judicial or agency interpretation, policy
or guidance relating to pollution or protection of the environment or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, threatened release, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
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"EQUIPMENT" has the meaning specified in ANNEX A to the Security
Agreement.
"EQUITY ISSUANCE" means any sale or issuance by the Borrower or any of its
Subsidiaries of any capital stock or other ownership or profit interest, any
securities convertible or exchangeable for capital stock or other ownership or
profit interest or any warrants, rights or options to acquire capital stock or
other ownership or profit interest; PROVIDED, HOWEVER, that for purposes of
determination of Net Cash Proceeds under Section 2.6(b)(iii), the term "Equity
Issuance" shall not include any issuance or sale of (a) capital stock of the
Borrower issued on or before the Closing Date in connection with the Merger; (b)
common stock of the Borrower issued to any director of the Borrower required by
applicable law in connection with such Person acting in such capacity; and (c)
common stock of the Borrower to directors, officers and employees of the
Borrower pursuant to a stock option or grant plan or as permitted hereunder or
the exercise of options issued pursuant thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of any Loan Party, or under common control
with any Loan Party, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA EVENT" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan under ERISA Section 4041(c), pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
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"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on SCHEDULE I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/16th of one percent) as
determined on the basis of the offered rates for deposits in U.S. dollars, for a
period of time comparable to such Interest Period which appears on the Dow ▇▇▇▇▇
Market Service (formerly known as Telerate) display page 3750 (or such other
display page on the Dow ▇▇▇▇▇ Market Service system as may replace display page
3750) as of 11:00 a.m. (London time) two Business Days before the first day of
such Interest Period; PROVIDED, HOWEVER, that if the rate described above does
not appear on the Dow ▇▇▇▇▇ Market Service on any applicable interest
determination date, the Eurodollar Rate shall be the rate (rounded upward as
described above, if necessary) for deposits in U.S. dollars for a period
substantially equal to the interest period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London time) two Business Days before
the first day of such Interest Period.
If both the Dow ▇▇▇▇▇ Market Service and Reuters systems are unavailable,
then the rate for that date will be determined on the basis of the offered rates
for deposits in U.S. dollars for a period of time comparable to such Interest
Period which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. (
New York time) two Business Days before the first day
of such Interest Period as selected by the Administrative Agent. The principal
London office of each of the four major London banks will be requested to
provide a quotation of its U.S. dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in U.S. dollars to leading European banks for a period of time comparable to
such Interest Period offered by major banks in
New York City at approximately
11:00 a.m. (
New York time) two Business Days before the first day of such
Interest Period. In the event that the Administrative Agent is unable to obtain
any such quotation as provided above, it will be deemed that the Eurodollar Rate
for such Interest Rate cannot be determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a Eurodollar Rate Reserve Percentage with respect to Eurocurrency
Liabilities, the Eurodollar Rate for an Interest Period shall be equal to the
amount determined above for such Interest Period divided by a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.7(a)(ii).
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"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage (expressed as a decimal and rounded upward, if necessary, to the
nearest 1/100th of one percent) applicable two Business Days before the first
day of such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in
New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a term equal
to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Article 9.
"EXCESS CASH FLOW" means for any period the sum of (a) EBITDA of the
Borrower and its Subsidiaries for such period PLUS (b) the aggregate amount of
all non-cash charges deducted from Consolidated net income for such period, but
not added back in arriving at EBITDA PLUS (c) if there was a net increase in
Consolidated Current Liabilities of the Borrower and its Subsidiaries during
such period, the amount of such net increase other than arising out of Debt
permitted pursuant to Section 6.2 PLUS (d) if there was a net decrease in
Consolidated Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such period the amount of such net decrease
LESS (e) the aggregate amount of mandatory and optional prepayments (other than
optional prepayments of the Swing Line Advances, Letter of Credit Advances or
Revolving Credit Advances made pursuant to clause (i) of the second sentence of
Section 2.6(a)) or repayments of principal made by the Borrower and its
Subsidiaries on any Funded Debt of the Borrower and its Subsidiaries during such
period LESS (f) Capital Expenditures of the Borrower and its Subsidiaries during
such period LESS (g) the aggregate amount of all federal, state, local and
foreign taxes paid by the Borrower and its Subsidiaries during such period (or
within ninety (90) days of the calculation date) LESS (h) the aggregate amount
of interest paid on any Debt of the Borrower and its Subsidiaries during such
period LESS (i) the aggregate amount of all non-cash credits included in
arriving at such EBITDA LESS (j) if there was a net decrease in Consolidated
Current Liabilities of the Borrower and its Subsidiaries during such period, the
amount of such net decrease LESS (k) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such period the amount of such increase LESS (l) dividends
paid by the Borrower to the holders of its common stock during such period to
the extent that the Borrower is expressly permitted to pay such dividends under
this Agreement.
"EXISTING DEBT" has the meaning specified in SCHEDULE 4.19(a).
"EXTRAORDINARY RECEIPT" means any cash received by or paid to or for the
account of any Person not in the ordinary course of business, including, without
limitation, tax refunds, pension plan reversions, proceeds of insurance (other
than proceeds of business income insurance to the extent such proceeds
constitute compensation for lost earnings), condemnation awards (and payments in
lieu thereof) and indemnity payments; PROVIDED, HOWEVER, that an Extraordinary
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Receipt shall not include cash receipts received from proceeds of insurance,
condemnation awards (and payments in lieu thereof) or indemnity payments to the
extent that such proceeds, awards or payments (a) in respect of loss or damage
to Equipment, fixed assets or real property are applied (or in respect of which
expenditures were previously incurred) to replace or repair the Equipment, fixed
assets or real property in respect of which such proceeds, awards or payments
were received in accordance with the terms of the Loan Documents, so long as (i)
such application is made within one hundred eighty (180) days after such
Person's receipt of such proceeds, awards or payments and (ii) such proceeds,
awards or payments are received by such Person within eighteen (18) months after
the occurrence of such damage or loss; or (b) are received by any Person in
respect of any third party claim against such Person and applied to pay (or to
reimburse such Person for its prior payment of) such claim and the costs and
expenses of such Person with respect thereto.
"FACILITY" means the Term A Facility, the Revolving Credit Facility, the
Letter of Credit Facility or the Swing Line Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum (expressed as a decimal and rounded upward, if necessary, to the
nearest 1/100th of one percent) equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of
New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"FISCAL YEAR" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on July 31 in any calendar year.
"FLEET" means Fleet National Bank in its capacity as a Lender, Issuing
Bank or Swing Line Bank.
"FOREIGN SUBSIDIARY" means any Subsidiary organized under the laws of any
jurisdiction other than the United States of America or any State thereof.
"FUNDED DEBT" means, with respect to the Borrower, the Advances, and with
respect to the Borrower and the other Loan Parties and any other Person, all
other Debt of such Person that by its terms matures more than one year after the
date of determination or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one year after
such date or arises under a revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period of more than one year
after such date, including the current portion of all such Debt.
"GAAP" has the meaning specified in Section 1.3.
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"GUARANTEED OBLIGATIONS" means, as to any Person, any obligation of such
Person guaranteeing any indebtedness, rent or any other payment or obligation of
the lessee under a lease of real or personal property, dividend, or other
obligation ("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR")
in any manner, including any obligation or arrangement of such Person (a) to
purchase or repurchase any such primary obligation, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation, or (d) to
indemnify the owner of such primary obligation against loss in respect thereof.
The amount of any Guaranteed Obligation at any time shall be deemed to be an
amount equal to the lesser at such time of (x) the stated or determinable amount
of the primary obligation in respect of which such Guaranteed Obligation is made
and (y) the maximum amount for which such Person may be liable pursuant to the
terms of the instrument embodying such Guaranteed Obligation; or, if not stated
or determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof.
"GUARANTORS" means (a) each Domestic Subsidiary of a Borrower and (b) each
Person which shall have executed and delivered or become a party to a Guaranty
hereunder.
"GUARANTY" means the Subsidiary Guaranty.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"HEDGE BANK" means any Lender Party in its capacity as a party to a Bank
Hedge Agreement.
"INDEMNIFIED PARTY" has the meaning specified in Section 11.4(b).
"INFORMATION MEMORANDUM" means the information memorandum, dated July
2001, delivered by the Administrative Agent to the Lenders.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of the initial
Borrowing or the initial issuance of a Letter of Credit.
"INITIAL ISSUING BANK" has the meaning specified in the recital of parties
to this Agreement.
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"INITIAL LENDERS" has the meaning specified in the recital of parties to
this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning specified in
Section 3.1(a)(iv).
"INTERCOMPANY NOTE" has the meaning specified in Section 3.1(a)(ii)(H).
"INTEREST EXPENSE" means, with respect to any Person for any period,
interest expense on all Debt of such Person for such period, whether paid or
accrued, net of interest income actually received in cash within one year of
incurrence for such period, determined on a Consolidated basis for such Person
and its Subsidiaries and in accordance with GAAP, and including, without
limitation, (a) in the case of the Borrower, interest expense in respect of Debt
resulting from Advances, (b) the interest component of all obligations under
Capitalized Leases, (c) commissions, discounts and other fees and charges
payable in connection with letters of credit (including, without limitation,
Letters of Credit), (d) the net payment, if any, payable in connection with
Hedge Agreements less the net credit, if any, received in connection with Hedge
Agreements and (e) all fees paid by the Borrower pursuant to Section 2.8(a)
excluding, however, all amortized costs attributable to fees and closing costs
paid by the Borrower to the Lenders in connection herewith.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Prime Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (
New York time) on the third
Business Day prior to the first day of such Interest Period, select; PROVIDED,
HOWEVER, that:
(a) The Borrower may not select any Interest Period with respect to
any Eurodollar Rate Advance under a Facility that ends after any principal
repayment installment date for such Facility unless, after giving effect
to such selection, the aggregate principal amount of Prime Rate Advances
and of Eurodollar Rate Advances having Interest Periods that end on or
prior to such principal repayment installment date for such Facility shall
be at least equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
PROVIDED, HOWEVER, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar
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month, the last day of such Interest Period shall occur on the next
preceding Business Day;
(c) Whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month, such
Interest Period shall end on the last Business Day of such succeeding
calendar month; and
(d) Until the earlier of (i) 120 days after the Closing Date, or
(ii) the date on which the Administrative Agent notifies the Borrower that
the syndication of the Facilities has been completed, only Interest
Periods with a duration of seven days, if available to all the Lenders,
shall be available to the Borrower for Eurodollar Rate Advances, or if
such Interest Periods are not available to all the Lenders, Interest
Periods of such duration as may be selected by the Administrative Agent
and are acceptable to the other Lenders.
"INTERCREDITOR AGREEMENT" has the meaning specified in Section 3.1(a)(vi).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"INVENTORY" has the meaning specified in ANNEX A to the Security
Agreement.
"INVESTMENT" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock or other ownership or profit
interest, warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment in such
Person, including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person.
"ISSUING BANK" means the Initial Issuing Bank and each Eligible Assignee
to which a Letter of Credit Commitment hereunder has been assigned pursuant to
Section 11.7.
"JAPANESE YEN" shall mean lawful money of Japan.
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.4(d)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing Line Bank.
"LENDERS" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 11.7.
"LETTER OF CREDIT" means any Letter of Credit issued hereunder (as
specified in Section 2.3(a)).
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"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank or
any Revolving Credit Lender pursuant to Section 2.3(c).
"LETTER OF
CREDIT AGREEMENT" has the meaning specified in Section 2.3(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing Bank, the
amount set forth opposite the Issuing Bank's name on SCHEDULE I hereto under the
caption "Letter of Credit Commitment" or, if the Issuing Bank has entered into
one or more Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section 11.7(d) as
the Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.5.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced pursuant to Section 2.5.
"LIEN" means any lien, mortgage, pledge, security interest or other charge
or encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"LOAN DOCUMENTS" means (a) this Agreement, (b) each Note, (c) each
Guaranty, (d) the Collateral Documents, (e) each Letter of
Credit Agreement, (f)
each Bank Hedge Agreement, (g) each Additional Collateral Document, and all
other agreements, instruments and documents executed in connection therewith, in
each case as the same may at any time be amended, supplemented, restated or
otherwise modified and in effect.
"LOAN PARTIES" means the Borrower, each Guarantor, and each other Person
who shall, at any time, have executed and delivered a Loan Document to the
Administrative Agent.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in (a) the
business, condition (financial or otherwise), results of operations or
properties of any Loan Party and its Subsidiaries (taken as a whole), (b) the
ability of any Loan Party to perform its obligations under the Loan Documents to
which it is a party or (c) any material aspect of the Transaction.
"MATERIAL ADVERSE EFFECT" has the meaning specified in Section 3.1(p).
"MATERIAL CONTRACT" means, with respect to any Person, each contract
listed on SCHEDULE 4.23, each contract which is a replacement or a substitute
for any contract listed on such Schedule and each other contract to which such
Person is a party which is material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of such Person.
"MERGER" has the meaning specified in the Preliminary Statements.
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"MERGER AGREEMENT" has the meaning specified in the Preliminary
Statements.
"MERGER CORP." has the meaning specified in the Preliminary Statements.
"MERGER DATE" means the date on which the Merger shall have been
consummated in accordance with the Merger Documents.
"MERGER DOCUMENTS" means the Merger Agreement, and all other agreements,
instruments, certificates and all other documents, and all schedules and
exhibits related to each such agreement.
"MINNTECH" has the meaning specified in the Preliminary Statements.
"MORTGAGE" means each mortgage, deed of trust or other similar document
executed and delivered by the appropriate Loan Party, in form and substance
acceptable to the Administrative Agent and the Lenders in order (a) to provide
that such Loan Party is the mortgagor or grantor, (b) to comply with and/or
provide for specific laws of the jurisdictions in which the property to be
encumbered is located, and (c) to assure that the Administrative Agent for the
benefit of the Secured Parties has a perfected Lien on the Mortgaged Property.
"MORTGAGE POLICIES" has the meaning assigned to that term in Section
3.1(a)(iii)(B).
"MORTGAGED PROPERTY" means each parcel of real property (including any
leaseholds) specified on Schedule 4.21 or 4.22 that is subject to a Mortgage and
shall include After-Acquired Mortgaged Property.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means, with respect to any Asset Disposition or any
Debt Issuance or Equity Issuance by any Person, or any Extraordinary Receipt
received by or paid to or for the account of any Person, the aggregate amount of
cash received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees, filing fees and other similar
out-of-pocket costs, (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) with respect
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to any asset, the amount of any Debt secured by a Lien on such asset that, by
the terms of such transaction, is required to be repaid upon such disposition,
in the case of (a) or (c) above to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid to a
Person that is not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof.
"NOTE" means a Term A Note, a Revolving Credit Note or a Swing Line Note.
"NOTE ASSIGNMENT AGREEMENT" has the meaning specified in Section
3.1(a)(ii)(H).
"NOTICE OF BORROWING" has the meaning specified in Section 2.2(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.3(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.1(d).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in Section
2.2(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.1(d).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment, performance
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 9.6.
Without limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party under
any Loan Document, (b) the obligation of any Loan Party to reimburse any amount
in respect of any of the foregoing that any Lender Party may, after the
occurrence and during the continuance of an Event of Default, elect to pay or
advance on behalf of such Loan Party, and (c) any other obligations arising out
of or under, based upon or relating to the Loan Documents.
"OECD" means the Organization for Economic Cooperation and Development.
"OPEN YEAR" has the meaning specified in Section 4.16.
"OPERATING LEASES" means any lease of real or personal property the
payments under which are not required by GAAP to be capitalized.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
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"PERMITTED LIENS" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies not yet due
and payable; PROVIDED that provisions for the payment of such Liens has been
made on the books of such Person; (b) Liens imposed by law, such as statutory
liens of landlords, materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of more than 60
days; PROVIDED that provisions for the payment of such Liens has been made on
the books of such Person; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; PROVIDED that provisions for the payment of such Liens
has been made on the books of such Person; and (d) Permitted Real Property
Encumbrances.
"PERMITTED REAL PROPERTY ENCUMBRANCES" means, with respect to any
particular Mortgaged Property, (i) those liens, encumbrances and other matters
affecting title to any Mortgaged Property listed in the Mortgage Policies in
respect thereof and as of the date of delivery of such Mortgage Policies to the
Administrative Agent in accordance with the terms hereof, reasonably acceptable
to the Lenders, (ii) such easements, encroachments, covenants, rights of way,
minor defects, irregularities or encumbrances on title which do not arise out of
the incurrence of any Debt and which do not impair the use of such Mortgaged
Property for the purpose for which it is held by the mortgagor thereof, or the
Lien granted to the Administrative Agent for the benefit of the Secured Parties,
and (iii) municipal and zoning ordinances; PROVIDED that no violation exists
thereunder that could impair the use of the existing improvements and the
present use made by the mortgagor thereof of the Premises (as defined in the
respective Mortgage).
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PRE-COMMITMENT INFORMATION" has the meaning specified in Section 3.1(e).
"PREPAYMENT ACCOUNT" means an account established by the Borrower with the
Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for
application in accordance with Section 2.6(b)(v), which account shall be
interest bearing, if permitted by law, at rates then currently paid by Fleet for
deposits of similar amount and duration. The Borrower hereby grants to the
Administrative Agent for the benefit of the Secured Parties, a security interest
in the Prepayment Account to secure the Obligations of the Loan Parties under
the Loan Documents.
"PRIME RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
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(a) the rate of interest announced publicly by Fleet in Boston,
Massachusetts, from time to time, as Fleet's prime rate, which is not
necessarily the lowest rate made available by Fleet; or
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"PRIME RATE ADVANCE" means an Advance that bears interest as provided in
Section 2.7(a)(i).
"PRO RATA SHARE" of any amount means with respect to any Revolving Credit
Lender at any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at such time
and the denominator of which is the Revolving Credit Facility at such time and
with respect to any Term A Lender at any time, the product of such amount times
a fraction the numerator of which is the amount of such Lender's Term A
Commitment at such time and the denominator of which is the Term A Facility at
such time. For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank, Letter of Credit Advances
owing to the Issuing Bank and the Available Amount of each Letter of Credit
shall be considered to be owed to the Revolving Lenders ratably in accordance
with their respective Revolving Credit Commitments.
"RECEIVABLES" means with respect to any Person, all such Person's
accounts, contract rights, chattel paper, instruments, deposit accounts and
other claims of any kind, whether now owned or hereafter acquired, now or
hereafter existing, whether or not arising out of or in connection with the sale
or lease of goods or the rendering of services, and all rights now or hereafter
existing in and to all security agreements, leases and other contracts securing
or otherwise relating to any such accounts, contract rights, chattel paper,
instruments, deposit accounts or claims.
"REDUCTION AMOUNT" has the meaning specified in Section 2.6(b)(v).
"REGISTER" has the meaning specified in Section 11.7(d).
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles containing any Hazardous
Materials) or into or from any property, including, without limitation, the
movement of any Hazardous Materials through the air, soil, surface waters or
ground water.
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"REMEDIAL" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(24) and/or any other applicable Environmental Laws.
"REMOVAL" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(23) and/or any other applicable Environmental Laws.
"REQUIRED LENDERS" means at any time Lenders owed or holding greater than
51% of the sum of (a) the aggregate principal amount of the Advances outstanding
at such time and (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, or, if no such principal amount and no Letters of
Credit are outstanding at such time, Lenders holding greater than 51% of the
aggregate of the Term A Commitments and Revolving Credit Commitments; PROVIDED,
HOWEVER, that if any Lender shall be a Defaulting Lender at such time, there
shall be excluded from the determination of Required Lenders at such time (i)
the aggregate principal amount of the Advances owing to such Lender (in its
capacity as a Lender) and outstanding at such time, and (ii) the aggregate Term
A Commitment and Revolving Credit Commitment of such Lender at such time. For
purposes of this definition, the aggregate principal amount of Swing Line
Advances owing to the Swing Line Bank, Letter of Credit Advances owing to the
Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Revolving Credit Lenders ratably in accordance with
their respective Revolving Credit Commitments.
"RESPONSE" shall have the meaning as set forth in CERCLA at 42 U.S.C.
Section 9601(25) and/or any other applicable Environmental Laws.
"RESPONSIBLE OFFICER" means, with respect to any Loan Party, the Chief
Executive Officer, the President, the Chief Financial Officer, any Vice
President or the Treasurer of such Loan Party.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section 2.1(b).
"REVOLVING CREDIT AVAILABILITY" means, at any time, the lesser of (a) the
Revolving Credit Facility and (b) the Borrowing Base.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving Credit
Lender at any time, the amount set forth opposite such Lender's name on SCHEDULE
I hereto under the caption "Revolving Credit Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
11.7(d) as such Lender's "Revolving Credit Commitment," as such amount may be
reduced at or prior to such time pursuant to Section 2.5.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount of
the Revolving Credit Lenders' Revolving Credit Commitments at such time.
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"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower payable to
the order of any Revolving Credit Lender, in substantially the form of EXHIBIT C
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender.
"REVOLVING CREDIT TERMINATION DATE" means the earlier of (a) the fifth
anniversary of the Closing Date, and (b) the Termination Date.
"SHAREHOLDERS' EQUITY" means for any Person, as of any determination date,
all items which, in accordance with GAAP, would be included in shareholders'
equity on a consolidated balance sheet.
"SECURED OBLIGATIONS" has the meaning specified in the Security Agreement.
"SECURED PARTIES" means the Administrative Agent, the Lender Parties, and
the Hedge Banks and the other Persons the Obligations owing to which are or are
purported to be secured by the Collateral under the terms of the Collateral
Documents.
"SECURITY AGREEMENT" has the meaning specified in Section 3.1(a)(ii).
"SENIOR DEBT" means, as at any date of determination thereof, the
aggregate outstanding principal balance of (a) all Term A Advances and Revolving
Credit Advances, (b) all Debt of the Borrower and its Subsidiaries, if any,
secured by purchase money security interests, conditional sale arrangements or
other similar security interests, (c) obligations of the Borrower and its
Subsidiaries, if any, with respect to Capitalized Leases and (d) other Debt of
the Borrower and its Subsidiaries, if any, which is senior to other debt in the
priority of payment.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or
any ERISA Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair saleable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts
-26-
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit other than a Trade
Letter of Credit.
"STOCK OPTION PLAN" means the 1997 Employee Stock Option Plan, as amended
and/or the 1998 Directors' Stock Option Plan, as amended, each as in effect on
the date hereof.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate, is at the time DIRECTLY OR INDIRECTLY OWNED OR CONTROLLED
BY SUCH PERSON, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries. Unless otherwise specified
herein, the term Subsidiary shall mean a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY" has the meaning specified in Section 3.1(a)(v).
"SURVIVING DEBT" shall have the meaning specified in Section 4.19(b).
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.1(c) or (b) any Revolving Credit Lender pursuant to
Section 2.2(b).
"SWING LINE BANK" has the meaning specified in the recital of parties to
this Agreement.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"SWING LINE FACILITY" has the meaning specified in Section 2.1(c).
"SWING LINE NOTE" means any promissory note of the Borrower payable to the
order of the Swing Line Bank or a Revolving Lender, as the case may be,
substantially in the form attached hereto as EXHIBIT E, evidencing the
indebtedness of the Borrower to the Swing Line Bank or a Revolving Lender, as
the case may be, resulting from the Swing Line Advances made by such Swing Line
Bank or Revolving Lender, as the case may be.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.1(a).
"TERM A BORROWING" means a borrowing consisting of simultaneous Term A
Advances of the same Type made by the Term A Lenders.
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"TERM A COMMITMENT" means, with respect to any Term A Lender at any time,
the amount set forth opposite such Lender's name on SCHEDULE I hereto under the
caption "Term A Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 11.7(d) as such
Lender's "Term A Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.5.
"TERM A FACILITY" means, at any time, the aggregate amount of the Term A
Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Borrower payable to the order
of any Term A Lender, in substantially the form of EXHIBIT D hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from the Term A
Advance made by such Lender.
"TERMINATION DATE" means the date of termination in whole of the
Commitments pursuant to Section 2.5 or Article 9.
"TOTAL CAPITALIZATION" means for any Person, as of any determination date,
the sum of (a) Funded Debt and (b) Shareholders' Equity.
"TOTAL LIABILITIES" means for any Person, as of any determination date,
all items which, in accordance with GAAP, would be included in liabilities on a
consolidated balance sheet.
"TOTAL LIABILITIES TO TOTAL CAPITALIZATION" means for any Person, as of
any determination date, a ratio of (a) Total Liabilities to (b) Total
Capitalization.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued for the
benefit of a supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory, the conditions to drawing under which include
the presentation to the Issuing Bank of negotiable bills of lading, invoices and
related documents sufficient, in the judgment of the Issuing Bank, to create a
valid and perfected lien on or security interest in such Inventory, bills of
lading, invoices and related documents in favor of the Issuing Bank.
"TRANSACTION" means the transactions contemplated by the Merger Documents
and the Loan Documents.
"TYPE" refers to the distinction between Advances bearing interest at the
Prime Rate and Advances bearing interest at the Eurodollar Rate.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as the same
may, from time to time, be enacted and in effect in the State of
New York;
PROVIDED, that to the extent that the Uniform Commercial Code is used to define
any term herein or in any Loan Document and such term is defined differently in
different Articles or Divisions of the Uniform Commercial Code, the definition
of such term contained in Article or Division 9 shall govern; PROVIDED
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FURTHER, that in the event that, by reason of mandatory provisions of law, any
or all of the attachment, perfection or priority of, or remedies with respect
to, Administrative Agent's or any Lender's Lien on any Collateral is governed by
the Uniform Commercial Code as enacted and in effect in a jurisdiction other
than the State of
New York, the term "UNIFORM COMMERCIAL CODE" shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such
provisions.
"UNUSED REVOLVING CREDIT AVAILABILITY" means, as of any date, the amount
by which the Revolving Credit Availability exceeds the sum of the aggregate
principal amount of all Revolving Credit Advances PLUS Swing Line Advances PLUS
Letter of Credit Advances PLUS the aggregate Available Amount of all Letters of
Credit, in each case outstanding at such time.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender, at any time, (a) such Lender's Revolving Credit Commitment at
such time MINUS (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances and Letter of Credit Advances made by such Lender (in
its capacity as a Lender) and outstanding at such time, PLUS (ii) such Lender's
Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to Section 2.3(c) and
outstanding at such time.
"US DOLLAR," "US DOLLARS" and the symbol "$" means dollars constituting
legal tender for the payment of public and private debts in the United States of
America.
"U.S. EBITDA" means EBITDA generated by the Borrower and its Domestic
Subsidiaries.
"US FIXED CHARGES" means with respect to the Borrower and its Domestic
Subsidiaries (i) cash interest payments in the U.S., PLUS (ii) required
principal amortization payments on the Term A Advance, PLUS the aggregate amount
of U.S. federal, state, and local taxes paid in cash, PLUS (iii) Capital
Expenditures in the U.S. which are not separately financed outside of the
Facilities.
"VOTING STOCK" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1) of ERISA,
that is maintained for employees of any Loan Party or in respect of which any
Loan Party could have liability.
"WHOLLY OWNED DOMESTIC SUBSIDIARY" of any Person means a Subsidiary of
such Person organized under the laws of the United States of America or any
State thereof and having substantially all of its business, properties and
assets located in the United States of America and of which securities (except
for directors' or other qualifying shares) or other ownership interests
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representing 100% of the equity or 100% of the ordinary voting power or 100% of
the general partnership interests are, at the time any determination is being
made, owned, controlled or held by such Person or one or more wholly owned
Subsidiaries of such Person or by such Person and one or more wholly owned
Subsidiaries of such Person.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such Person
of which securities (except for directors' or other qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such Person or one or
more wholly owned Subsidiaries of such Person or by such Person and one or more
wholly owned Subsidiaries of such Person.
"WITHDRAWAL LIABILITIES" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA.
Section 1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
Section 1.3 CONSTRUCTION. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.6 ("GAAP"). All other undefined terms
contained in any of the Loan Documents shall, unless the context indicates
otherwise, have the meanings provided for by the Uniform Commercial Code to the
extent the same are used or defined therein; in the event that any term is
defined differently in different Articles or Divisions of the Uniform Commercial
Code, the definition contained in Article or Division 9 shall control. Unless
otherwise specified, references in the Agreement or any of the appendices to a
Section, subsection or clause refer to such Section, subsection or clause as
contained in the Agreement. The words "herein," "hereof" and "hereunder" and
other words of similar import refer to the Agreement as a whole, including all
Exhibits and Schedules, as the same may from time to time be amended, restated,
modified or supplemented, and not to any particular section, subsection or
clause contained in the Agreement or any such Exhibit or Schedule. Wherever from
the context it appears appropriate, each term stated in either the singular or
plural shall include the singular and the plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine and
neuter genders. The words "including", "includes" and "include" shall be deemed
to be followed by the words "without limitation"; the word "or" is not
exclusive; references to Persons include their respective successors and assigns
(to the extent and only to the extent permitted by the Loan Documents) or, in
the case of governmental Persons, Persons succeeding to the relevant functions
of such Persons; and all references to statutes and related regulations shall
include any amendments of the same and any successor statutes and regulations.
Whenever any provision in any Loan Document refers to the knowledge (or an
analogous phrase) of any Loan Party, such words are intended to signify that
such Loan Party has actual knowledge or awareness of a particular fact or
circumstance.
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Section 1.4
ARTICLE II
AMOUNTS AND TERMS OF THE
ADVANCES AND THE LETTERS OF CREDIT
Section 2.1 THE ADVANCES.
(a) THE TERM A ADVANCES. Each Term A Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "TERM A
ADVANCE") to the Borrower on the Closing Date in an amount not to exceed such
Lender's Term A Commitment at such time. The Term A Borrowing shall consist of
Term A Advances made simultaneously by the Term A Lenders ratably according to
their Term A Commitments. Amounts borrowed under this Section 2.1(a) and repaid
or prepaid may not be reborrowed.
(b) THE REVOLVING CREDIT ADVANCES. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time
on any Business Day during the period from the date hereof until the Revolving
Credit Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time; PROVIDED, HOWEVER,
that no Revolving Credit Lender shall have any obligation to make a Revolving
Credit Advance under this Section 2.1(b) to the extent such Revolving Credit
Advance would (after giving effect to any immediate application of the proceeds
thereof) exceed the Unused Revolving Credit Availability at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $500,000.00 or an
integral multiple of $100,000.00 (other than, in each case, a Borrowing the
proceeds of which shall be used solely to repay or prepay in full outstanding
Swing Line Advances or outstanding Letter of Credit Advances) and shall consist
of Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Revolving Credit Lender's Unused Revolving Credit Commitment in effect from
time to time, the Borrower may borrow, repay and reborrow Revolving Credit
Advances.
(c) THE SWING LINE ADVANCES. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank may, if in its discretion it elects to do
so, make, on the terms and conditions hereinafter set forth, Swing Line Advances
to the Borrower from time to time on any Business Day during the period from the
date hereof until the Revolving Credit Termination Date in an aggregate amount
not to exceed at any time outstanding the lesser of (i) $2,000,000.00 (the
"SWING LINE FACILITY") and (ii) (after giving effect to any immediate
application of the proceeds thereof) the Unused Revolving Credit Availability at
such time. No Swing Line Advance shall be used for the purpose of funding the
payment of principal of any other Swing Line Advance. Each Swing Line Borrowing
shall be made as a Prime Rate Advance and shall be in an aggregate amount of not
less than $100,000.00. Within the limits of the Swing Line Facility and within
the limits referred to in clause (ii) above, so long as the Swing Line Bank, in
its discretion, elects to make Swing Line Advances, the Borrower may
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borrow and reborrow under this Section 2.1(c) and may repay or prepay the Swing
Line Advances at such times prior to the Termination Date, and in such integral
multiples, as the Borrower may elect.
(d) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit for the account of
the Borrower from time to time on any Business Day during the period from the
Closing Date until sixty (60) days before the Revolving Credit Termination Date
(i) in an aggregate Available Amount for all Letters of Credit not to exceed at
any time the Issuing Bank's Letter of Credit Commitment at such time and (ii) in
an Available Amount for each such Letter of Credit not to exceed (after giving
effect to any immediate application of the proceeds thereof) the Unused
Revolving Credit Availability at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than the earlier of (A) sixty (60) days before the
Revolving Credit Termination Date, (B) in the case of a Standby Letter of
Credit, 365 days after the date of issuance thereof and (C) in the case of a
Trade Letter of Credit, 180 days after the date of issuance thereof. The
foregoing notwithstanding, any Standby Letter of Credit may, by its terms, be
renewable annually upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank
and the Administrative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit (but in any event at least five (5) Business Days
prior to the date of the proposed renewal of such Standby Letter of Credit) and
upon fulfillment of the applicable conditions set forth in Article 3 unless such
Issuing Bank shall have notified the Borrower (with a copy to the Administrative
Agent) on or prior to the date for notice of termination set forth in such
Letter of Credit (but in any event at least thirty (30) Business Days prior to
the date of automatic renewal) of its election not to renew such Standby Letter
of Credit (a "NOTICE OF TERMINATION"); PROVIDED that the terms of each Standby
Letter of Credit that is automatically renewable annually shall not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than sixty (60) days before
the Revolving Credit Termination Date. If either a Notice of Renewal is not
given by the Borrower or a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Standby Letter of Credit
shall expire on the date on which it otherwise would have been automatically
renewed; PROVIDED, HOWEVER, that even in the absence of receipt of a Notice of
Renewal, the Issuing Bank may, in its discretion unless instructed to the
contrary by the Administrative Agent or the Borrower, deem that a Notice of
Renewal had been timely delivered and, in such case, a Notice of Renewal shall
be deemed to have been so delivered for all purposes under this Agreement.
Within the limits of the Letter of Credit Facility, and subject to the limits
referred to above, the Borrower may request the issuance of Letters of Credit
under this Section 2.1(d), repay any Letter of Credit Advances resulting from
drawings under Letters of Credit pursuant to Section 2.3(c) and request the
issuance of additional Letters of Credit under this Section 2.1(d).
Section 2.2 MAKING THE ADVANCES. (a) Except as otherwise provided in
Section 2.3 or, with respect to Swing Line Advances, in Section 2.2(b), each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of Eurodollar Rate Advances and on the first Business Day prior to the
date of the proposed Borrowing in the case of Prime Rate Advances by
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the Borrower to the Administrative Agent, which shall give to each appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "NOTICE OF BORROWING") may be by telephone, confirmed immediately
in writing, or telex or telecopier in substantially the form of EXHIBIT G
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each appropriate Lender shall, before 11:00 A.M.
(New York time) on the date of such Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Commitments under the applicable
Facility of such Lender and the other appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article 3, the Administrative Agent will make
such funds available to the Borrower by crediting the Borrower's Account;
PROVIDED, HOWEVER, that in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank, the Issuing Bank and by any other
Revolving Credit Lender and outstanding on the date of such Revolving Credit
Borrowing, PLUS interest accrued and unpaid thereon to and as of such date,
available to the Swing Line Bank, the Issuing Bank and such other Revolving
Credit Lenders for repayment of such Swing Line Advances and Letter of Credit
Advances.
(b) Each Swing Line Borrowing shall be made either (x) on notice,
given not later than 11:00 A.M. (New York time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent or (y) pursuant to other arrangements, including, by way of
example and not of limitation, arrangements for daily repayments and borrowings
on each Business Day, which are satisfactory in form and substance to the Swing
Line Bank, the Administrative Agent and the Borrower. Each notice of a Swing
Line Borrowing pursuant to clause (x) in the immediately preceding sentence (a
"NOTICE OF SWING LINE BORROWING") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, specifying therein the requested (i) date of
such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the fourteenth day after the
requested date of such Borrowing). If, in its discretion, it elects to make a
requested Swing Line Advance, the Swing Line Bank will make the amount thereof
available to the Administrative Agent at the Administrative Agent's Account, in
same day funds. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article 3, the
Administrative Agent will make such funds available to the Borrower by crediting
the Borrower's Account. Upon written demand by the Swing Line Bank, with a copy
of such demand to the Administrative Agent, each other Revolving Credit Lender
shall purchase from the Swing Line Bank, and the Swing Line Bank shall sell and
assign to each such other Revolving Credit Lender, such other Lender's Pro Rata
Share of all outstanding Swing Line Advances as of the date of such demand, by
deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of Swing Line Advances
to be purchased by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata Share
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of outstanding Swing Line Advances on (i) the Business Day on which demand
therefor is made by the Swing Line Bank; PROVIDED that notice of such demand is
given not later than 3:00 P.M. (New York time) on such Business Day, or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Swing Line Bank to any other
Revolving Credit Lender of a portion of a Swing Line Advance, the Swing Line
Bank represents and warrants to such other Lender that the Swing Line Bank is
the legal and beneficial owner of such interest being assigned by it, but makes
no other representation or warranty and assumes no responsibility with respect
to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent, for the account of the
Swing Line Bank, forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Swing Line Bank until the date such
amount is paid to the Administrative Agent, at the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such amount for the account of the
Swing Line Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Swing Line Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Swing Line Advance made by the Swing Line Bank shall be reduced by such amount
on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances if the
obligation of the appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.9 or Section 2.10, and (ii) the
Eurodollar Rate Advances made on any date may not be outstanding as part of more
than seven (7) separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any failure by the
Borrower to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article 3, including,
without limitation, any loss (including loss of anticipated profits as
reasonably determined by such Lender), cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired by such Lender
to fund the Advance to be made by such Lender as part of such Borrowing when
such Advance, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from
an appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.2 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable
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portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay or pay to the Administrative Agent forthwith on demand
such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.7 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender's Advance as part of
such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
Section 2.3 ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS OF
CREDIT.
(a) REQUEST FOR ISSUANCE. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York time) on the fifth Business
Day prior to the date of the proposed issuance of such Letter of Credit by the
Borrower to the Issuing Bank, which shall give to the Administrative Agent and
each Revolving Credit Lender prompt notice thereof by telex or telecopier. Each
such notice of issuance of a Letter of Credit (a "NOTICE OF ISSUANCE") shall be
by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such issuance (which shall be a
Business Day), (ii) Available Amount of such Letter of Credit, (iii) expiration
date of such Letter of Credit, (iv) name and address of the beneficiary of such
Letter of Credit, and (v) form of such Letter of Credit and shall be accompanied
by such application and agreement for letter of credit as the Issuing Bank may
specify to the Borrower for use in connection with such requested Letter of
Credit (a "LETTER OF
CREDIT AGREEMENT"). If the requested form of such Letter of
Credit is acceptable to the Issuing Bank, in its sole discretion, the Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article 3,
make such Letter of Credit available to the Borrower at its office referred to
in Section 11.2 or as otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of any such Letter
of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish (i) to
the Administrative Agent on the first Business Day of each fiscal quarter a
written report summarizing issuance and expiration dates of Letters of Credit
issued during the previous week and drawings during such week under all Letters
of Credit, (ii) to the Administrative Agent, the Borrower and each Revolving
Credit Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
preceding month and drawings during such month under all Letters of Credit and
(iii) to the Administrative Agent, the Borrower and each Revolving Credit Lender
on the first Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit.
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(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance which
shall be a Prime Rate Advance in the amount of such draft. The Borrower, the
Administrative Agent and each Revolving Credit Lender hereby acknowledges and
agrees that Letter of Credit Advances may be made, or deemed made, by the
Issuing Bank in respect of any Letter of Credit and to participate in all Letter
of Credit Advances made hereunder as provided herein. Upon written demand by the
Issuing Bank, with a copy of such demand to the Administrative Agent, each
Revolving Credit Lender shall purchase from the Issuing Bank, and the Issuing
Bank shall sell and assign to each such Revolving Credit Lender such Lender's
Pro Rata Share of such outstanding Letter of Credit Advance as of the date of
such purchase, by making available (for the account of its Applicable Lending
Office) to the Administrative Agent (for the account of the Issuing Bank), by
deposit to the Administrative Agent's Account, in same day funds in U.S.
Dollars, an amount equal to the portion of the outstanding principal amount of
such Letter of Credit Advance to be purchased by such Lender. Promptly after
receipt thereof, the Administrative Agent shall transfer such funds to the
Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank; PROVIDED that notice of such demand is given not later
than 11:00 A.M. (New York time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such
time. Upon any such assignment by the Issuing Bank to any other Revolving Credit
Lender of a portion of a Letter of Credit Advance the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Revolving Credit Lender shall
not have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds Rate for
its account or the account of the Issuing Bank, as applicable. If such Lender
shall pay to the Administrative Agent such amount for the account of the Issuing
Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Letter of Credit Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of any
Lender to make any Letter of Credit Advance to be made by it on the date
specified in Section 2.3(c) shall not relieve any other Lender of its obligation
hereunder to make its Letter of Credit Advance on such date, but no Lender shall
be responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
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Section 2.4 REPAYMENT OF ADVANCES.
(a) TERM A ADVANCES. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term A Lenders the aggregate outstanding
principal amount of the Term A Advance on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.6):
DATE AMOUNT
---- ------
December 31, 2001 $500,000.00
March 31, 2002 $500,000.00
June 30, 2002 $500,000.00
September 30, 2002 $500,000.00
December 31, 2002 $750,000.00
March 31, 2003 $750,000.00
June 30, 2003 $750,000.00
September 30, 2003 $750,000.00
December 31, 2003 $1,250,000.00
March 31, 2004 $1,250,000.00
June 30, 2004 $1,250,000.00
September 30, 2004 $1,250,000.00
December 31, 2004 $1,750,000.00
March 31, 2005 $1,750,000.00
June 30, 2005 $1,750,000.00
September 30, 2005 $1,750,000.00
December 31, 2005 $2,000,000.00
March 31, 2006 $2,000,000.00
June 30, 2006 $2,000,000.00
Fifth anniversary of Closing Date $2,000,000.00
PROVIDED, HOWEVER, that the final principal installment shall be in an amount
equal to the aggregate principal amount of the Term A Advances outstanding on
such date.
(b) REVOLVING CREDIT ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(c) SWING LINE ADVANCES. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has
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made a Swing Line Advance the outstanding principal amount of each Swing Line
Advance made by each of them on the earlier of the maturity date for such Swing
Line Advance (which maturity date shall be no later than the fourteenth day
after the requested date of such Swing Line Advance) and the Revolving Credit
Termination Date.
(d) LETTER OF CREDIT ADVANCES.
(i) The Borrower shall repay to the Administrative Agent for
the account of the Issuing Bank and each other Revolving Credit Lender
that has made a Letter of Credit Advance on the earlier of demand or the
Revolving Credit Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of Credit shall be unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under
all circumstances, including, without limitation, the following
circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating to any of the foregoing (all of the
foregoing being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank,
or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in
any respect; or
(E) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from any Guaranty or any other guarantee, for all or any
of the Obligations of the Borrower in respect of the L/C Related
Documents.
Section 2.5 TERMINATION OR REDUCTION OF THE COMMITMENTS.
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(a) OPTIONAL. The Borrower may, upon at least three Business Days'
notice to the Administrative Agent, terminate in whole or reduce in part the
unused portion of the Unused Revolving Credit Commitments; PROVIDED, HOWEVER,
that each partial reduction of a Facility (i) shall be in an aggregate amount of
$1,000,000.00 or an integral multiple of $500,000.00 in excess thereof, and (ii)
shall be made ratably among the appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) MANDATORY.
(i) On the date of the Term A Borrowing, after giving effect
to such Term A Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term A Advances, the aggregate Term A
Commitments of the Term A Lenders shall be automatically and permanently
reduced, on a pro rata basis, by an amount equal to the amount by which
the aggregate Term A Commitments immediately prior to such reduction
exceed the aggregate unpaid principal amount of the Term A Advances then
outstanding; PROVIDED, HOWEVER, that the Term A Commitments shall
terminate, and all Advances made thereunder shall be repaid in full, no
later than the fifth anniversary of the Closing Date.
(ii) On and after the date that all Term A Advances shall have
been repaid in full, the Revolving Credit Facility shall be automatically
and permanently reduced on each date on which prepayment thereof is
required to be made pursuant to Section 2.6(b)(i), (ii), (iii) or (iv) in
an amount equal to the applicable Reduction Amount, PROVIDED that each
such reduction of the Revolving Credit Facility shall be made ratably
among the Revolving Credit Lenders in accordance with their Revolving
Credit Commitments.
(iii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving
Credit Facility by the amount, if any, by which the amount of the Letter
of Credit Facility exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
(iv) In the event the Closing Date shall not have occurred by
November 15, 2001, then all of the Commitments shall be automatically
terminated and this Agreement shall be of no further force or effect.
Section 2.6 PREPAYMENTS.
(a) OPTIONAL. The Borrower may, upon at least one (1) Business Day's
notice in the case of Prime Rate Advances and three (3) Business Days' notice in
the case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given, the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; PROVIDED, HOWEVER, that (i) each partial prepayment shall be in
an aggregate principal amount of $500,000.00 or an integral multiple of
$100,000.00 in excess thereof and (ii) no such prepayment
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of a Eurodollar Rate Advance shall be made other than on the last day of an
Interest Period therefor without payment by the Borrower of the amounts provided
for in Section 11.4(c). Each prepayment made by the Borrower pursuant to this
Section 2.6(a) shall, at the Borrower's option be applied to either (i) repay
the Facilities in the following manner: FIRST, to prepay Swing Line Advances
then outstanding until such Advances are paid in full; SECOND, to prepay Letter
of Credit Advances then outstanding until such Advances are paid in full; and
THIRD, to prepay Revolving Credit Advances then outstanding until such Revolving
Credit Advances are paid in full; or (ii) be applied to repay the Facilities in
the following manner: FIRST, ratably to the Term A Facility, and ratably, in
proportion to the total principal amount of the Term A Facility then
outstanding, to each unpaid installment of principal of the Term A Facility
until such installments are paid in full; SECOND, to prepay Swing Line Advances
then outstanding until such Advances are paid in full; THIRD, to prepay Letter
of Credit Advances then outstanding until such Advances are paid in full;
FOURTH, to prepay Revolving Credit Advances then outstanding (whereupon the
Revolving Credit Facility shall be permanently reduced as set forth in Section
2.5(b)(ii)) until such Revolving Credit Advances are paid in full; and FIFTH,
deposited in the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding. Upon the drawing of
any Letter of Credit for which funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing Bank or the
Revolving Credit Lenders, as applicable.
(b) MANDATORY.
(i) Within ninety (90) days following the end of each Fiscal
Year in which the ratio of Consolidated Debt to EBITDA at the end of such
Fiscal Year is greater than or equal to 1.50:1, the Borrower shall execute
and deliver to the Administrative Agent a certificate of the Borrower's
President or a Vice President demonstrating its calculation of Excess Cash
Flow for such Fiscal Year along with a prepayment of the then outstanding
Advances equal to fifty percent (50%) of the annual Excess Cash Flow.
(ii) If the ratio of Consolidated Debt to EBITDA for the
Borrower's most recently completed and reported on four fiscal quarters is
greater than or equal to 1.50:1, within fifteen (15) days after receipt by
any Loan Party or any of its Subsidiaries of Net Cash Proceeds from Asset
Dispositions, the Borrower shall prepay the then outstanding Advances in
an amount equal to one-hundred percent (100%) of such Net Cash Proceeds in
excess of $250,000.00 in any Fiscal Year.
(iii) If the ratio of Consolidated Debt to EBITDA for the
Borrower's most recently completed and reported on four fiscal quarters is
greater than or equal to 1.50:1, within fifteen (15) days after receipt by
any Loan Party or any of its Subsidiaries of Net Cash Proceeds from any
Debt Issuance or Equity Issuance, the Borrower shall prepay the then
outstanding Advances in an amount equal to, with respect to any (x) Debt
Issuance, one-hundred percent (100%), and (y) Equity Issuance, one-hundred
percent (100%), of such Net Cash Proceeds.
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(iv) Within fifteen (15) days after receipt of Net Cash
Proceeds by any Loan Party or any of its Subsidiaries from any
Extraordinary Receipt received by or paid to or for the account of any
Loan Party or any of its Subsidiaries and not otherwise included in clause
(i), (ii) or (iii) above, the Borrower shall prepay the then outstanding
Advances in an amount equal to one hundred percent (100%) of such Net Cash
Proceeds in excess of $100,000.00 in the aggregate.
(v) Each prepayment made by the Borrower pursuant to clause
(i), (ii), (iii) or (iv) shall be subject to the provisions of Section
11.4(c) and shall be applied to prepay the Facilities in the following
manner: FIRST, ratably to the Term A Facility, and ratably, in proportion
to the total principal amount of the Term A Facility then outstanding, to
each unpaid installment of principal of the Term A Facility until such
installments are paid in full; SECOND, to prepay Swing Line Advances then
outstanding until such Advances are paid in full; THIRD, to prepay Letter
of Credit Advances then outstanding until such Advances are paid in full;
FOURTH, to prepay Revolving Credit Advances then outstanding (whereupon
the Revolving Credit Facility shall be permanently reduced as set forth in
Section 2.5(b)(ii) in the amount of such prepayment) until such Revolving
Credit Advances are paid in full; and FIFTH, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. The portion of each such
application allocable to Eurodollar Rate Advances may, at the option of
the Borrower (A) be applied to repay such Advances immediately, even if
such application shall occur on other than the last day of an applicable
Interest Period (in which case the Borrower shall pay the amounts provided
for in Section 11.4(c)) or (B) be deposited in the Prepayment Account and
applied on the last day of the applicable Interest Periods to prepay the
Eurodollar Rate Advances that would otherwise have been prepaid by the
amounts deposited in the Prepayment Account. Upon the drawing of any
Letter of Credit for which funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing Bank or the
Revolving Credit Lenders, as applicable. The amount remaining (if any)
after the required prepayment of the Advances then outstanding and the
100% cash collateralization of the aggregate Available Amount of Letters
of Credit then outstanding (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being referred to herein as
the "REDUCTION AMOUNT") may be retained by the Borrower. Upon the drawing
of any Letter of Credit for which funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing
Bank or the Revolving Credit Lenders, as applicable. Upon the termination
of all of the Commitments and the indefeasible payment in full of all
Obligations, including, without limitation, termination or expiration of
all Letters of Credit, and the indefeasible payment in full of all
Obligations in respect of all Letters of Credit, as applicable, then all
amounts remaining on deposit in the L/C Cash Collateral Account shall be
returned to the Borrower.
(vi) The Borrower shall, within fifteen (15) days following
the end of each month in each Fiscal Year, pay to the Administrative Agent
for deposit in the L/C Cash Collateral Account an amount sufficient to
cause the aggregate amount on deposit
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in such Account to equal the amount by which the aggregate Available
Amount of all Letters of Credit then outstanding exceeds the Letter of
Credit Facility on such Business Day.
(vii) At any time that the aggregate amount of Revolving
Credit Advances outstanding exceeds the Revolving Credit Availability, the
Borrower shall immediately repay Revolving Credit Advances to the extent
necessary to reduce the principal balance of Revolving Credit Borrowings
to an amount equal to or less than the Revolving Credit Availability..
(viii) The foregoing notwithstanding, the provisions of this
Section 2.6(b) shall not be construed to permit any Equity Issuance, Debt
Issuance or Asset Disposition otherwise prohibited under the terms of this
Agreement.
Section 2.7 INTEREST.
(a) SCHEDULED INTEREST. The Borrower shall pay to the Administrative
Agent, for the benefit of the Lenders, interest on the unpaid principal amount
of each Advance owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) PRIME RATE ADVANCES. During such periods as such Advance
is a Prime Rate Advance, a rate per annum equal at all times to the sum of
(x) the Prime Rate in effect from time to time PLUS (y) the Applicable
Margin for such Advance in effect from time to time, payable in arrears
monthly on the last day of each month during such periods and on the date
such Prime Rate Advance shall be Converted or paid in full.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance PLUS (y) the
Applicable Margin for such Advance in effect on the first day of such
Interest Period, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. (i) With respect to any principal amount of
any Advance not paid when due by the Borrower (whether at the stated maturity,
by acceleration or otherwise), the Borrower shall pay interest on such unpaid
principal amount, in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all times to the
lesser of 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above or to the fullest extent
permitted by law (the "Default Rate") and (ii) with respect to the amount of any
interest, fee or other amount payable hereunder not paid when due (whether at
the stated maturity, by acceleration or otherwise) the Borrower shall pay
interest on such unpaid interest, fee or other amount on demand at the Default
Rate from the date such amount shall be due until such amount shall be paid in
full.
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(c) NOTICE OF INTEREST RATE. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.2(a), the Administrative Agent shall give notice
to the Borrowers and each appropriate Lender of the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (ii) of
this Section 2.7.
Section 2.8 FEES.
(a) COMMITMENT FEES. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, commitment fees, from the Closing Date in
the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, until the Revolving Credit Termination Date, payable in
arrears quarterly on the last Business Day of each March, June, September and
December, commencing September 30, 2001, and on the Revolving Credit Termination
Date on the average daily Unused Revolving Credit Commitment of such Lender at a
rate per annum equal to the percentage per annum determined pursuant to the last
paragraph of this Section 2.8(a) by reference to the ratio of Consolidated Debt
to EBITDA at such time, as set forth below:
Consolidated Debt
to EBITDA Ratio Commitment Fee
------------------ --------------
Greater than 2.0 to 1.0 .50%
Greater than 1.75 to 1.0 .50%
but less than or equal to 2.0 to 1.0
Greater than 1.50 to 1.0 .40%
but less than or equal to 1.75 to 1.0
Greater than 1.00 to 1.0 .35%
but less than or equal to 1.50 to 1.0
Equal to or Less than 1.0 to 1.0 .30%
The ratio of Consolidated Debt to EBITDA shall be determined in the same manner
as is the Applicable Margin. For purposes of this subsection (a), Swing Line
Advances shall only constitute utilization of the Revolving Credit Commitment of
the Swingline Bank or of any Revolving Lender actually funding such Swingline
Advance and shall not constitute utilization of the Revolving Credit Commitments
of the Revolving Credit Lenders who have no outstanding Swingline Advances.
Notwithstanding the foregoing, prior to the date which is six months from the
date hereof the rate per annum on the average daily Unused Revolving Credit
Commitment of such Lender shall be equal to .50%.
(b) LETTER OF CREDIT FEES. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing
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September 30, 2001, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any such Letter of Credit and on the
Revolving Credit Termination Date or on such Lender's Pro Rata Share of the
average daily aggregate Available Amount during such quarter of all Letters of
Credit outstanding from time to time at the rate per annum equal to the
Applicable Margin then in effect for Eurodollar Advances under the Revolving
Credit Facility.
(ii) In addition to the foregoing fees described in (i) above,
the Borrower shall pay to the Issuing Bank, for its own account, (x) on
the Available Amount of each Letter of Credit, a fronting fee, for the
period from the date of issuance of such Letter of Credit to and including
the termination thereof, computed at the rate of one quarter of one
percent (1/4%) per annum, payable in arrears quarterly on the last
Business Day of each March, June, September and December of each year and
on the date of termination thereof and (y) transfer fees and other
customary fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Issuing
Bank shall agree.
(c) ADMINISTRATIVE AGENT'S FEES. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time
be agreed in writing between the Borrower and the Administrative Agent.
Section 2.9 CONVERSION OF ADVANCES.
(a) OPTIONAL. The Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 A.M. (New York time) on
the third Business Day prior to the date of the proposed Conversion and subject
to the provisions of Sections 2.7 and 2.10, Convert all or any portion of the
Advances of one Type comprising the same Borrowing into Advances of the other
Type; PROVIDED, HOWEVER, that any Conversion of Eurodollar Rate Advances into
Prime Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances unless the Borrower pays the amounts, if any,
provided for in Section 11.4(c), any Conversion of Prime Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.1(c), no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.2(c) and each Conversion of
Advances comprising part of the same Borrowing under any Facility shall be made
ratably among the appropriate Lenders in accordance with their Commitments under
such Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) MANDATORY. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $500,000.00, such
Advances shall automatically Convert into Prime Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in
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the definition of "Interest Period" in Section 1.1, the Administrative
Agent will forthwith so notify the Borrower and the appropriate Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Prime Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default and the acceleration of the Notes, interest thereon and
other amounts payable by the Borrower under this Agreement and the other
Loan Documents pursuant to Article 9, (x) each Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Prime Rate Advance and (y) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended.
Section 2.10 INCREASED COSTS, ETC.
(a) If, due to either (i) the introduction of or any change in
reserve requirements included in the Eurodollar Rate Reserve Percentage, or in
the interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate or Prime Rate Advances or of agreeing to issue or of
issuing or maintaining Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances (excluding for purposes of this Section
2.10 any such increased costs resulting from (x) Taxes or Other Taxes (as to
which Section 2.12 shall govern) and (y) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; PROVIDED,
HOWEVER, that a Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or reasonably expected to be maintained by any Lender
Party or any corporation controlling such Lender Party as a result of or based
upon the existence of such Lender Party's commitment to lend or to issue Letters
of Credit hereunder and other commitments of such type or the issuance or
maintenance of the Letters of
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Credit (or similar contingent obligations), then, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit. A certificate as to such amounts submitted to the Borrower by such
Lender Party shall be conclusive and binding for all purposes, absent manifest
error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed greater than 50% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Prime Rate Advance and (ii)
the obligation of the appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Prime Rate Advance and (ii) the obligation of the
appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; PROVIDED, HOWEVER, that before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to find or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
Section 2.11 PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder and under the
Notes, irrespective of any right of counterclaim or set-off (except as otherwise
provided in Section 2.15), not later than 11:00 A.M. (New York time) on the day
when due in U.S. dollars to the
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Administrative Agent at the Administrative Agent's Account in same day funds.
The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by the Borrower is in respect of any Obligation
then payable hereunder to one Lender Party, to such Lender Party for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 11.7(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent shall distribute
such funds to each Lender Party ratably in accordance with such Lender Party's
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to such
Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(d) All Prime Rate Advances shall be computed on the basis of the
actual number of days elapsed in the period during which interest accrues and a
year of 365 or 366 days, as applicable, and all Eurodollar Rate Advances shall
be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of 360 days. All computations of
interest, fees, and Letter of Credit commissions shall be made by the
Administrative Agent on the basis of a year of 360 days (or in the case of Prime
Rate Advances 365 or 366, as applicable), in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or commissions are payable. Each
determination by the Administrative Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of
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payment of interest or commitment fee, as the case may be; PROVIDED, HOWEVER,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
Section 2.12 TAXES.
(a) Any and all payments by the Borrower hereunder or under the
Notes shall be made, in accordance with Section 2.11, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and the Administrative Agent, net
income taxes that are imposed by the United States and net income taxes (or
franchise taxes imposed in lieu thereof) that are imposed on such Lender Party
or the Administrative Agent by the state or foreign jurisdiction under the laws
of which such Lender Party or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender
Party, net income taxes (or franchise taxes imposed in lieu thereof) that are
imposed on such Lender Party by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing
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under, or otherwise with respect to, this Agreement or the Notes (hereinafter
referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes and Other Taxes, and for the
full amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by such Lender Party or the Administrative
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto, except
with respect to any Lender Party or the Administrative Agent, as the case may
be, for such a liability arising from such Lender Party's or the Administrative
Agent's, as the case may be, willful misconduct or gross negligence. This
indemnification shall be made within thirty (30) days from the date such Lender
Party or the Administrative Agent, as the case may be, makes written demand
specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 11.2, the original receipt of payment thereof or a certified copy
of such receipt. In the case of any payment hereunder or under the Notes by or
on behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "UNITED STATES"
and "UNITED STATES PERSON" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it became a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing by the Borrower
or the Administrative Agent (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrower with two (2) original Internal Revenue Service forms W8BEN or
W8ECI, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender Party at the time such
Lender Party first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; PROVIDED, HOWEVER, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party becomes a party
to this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes
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shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001 or 4224, that the Lender Party reasonably considers to be
confidential, the Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed
to provide the Borrower with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Lender Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; PROVIDED, HOWEVER, that should a
Lender Party become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
Section 2.13 SHARING OF PAYMENTS, ETC. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) (i) on account of Obligations due and
payable to such Lender Party hereunder or under the Notes at such time in excess
of its ratable share (according to the proportion of (x) the amount of such
Obligations due and payable to such Lender Party at such time to (y) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder or under the Notes
at such time obtained by all the Lender Parties at such time or (ii) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (x) the amount of such Obligations owing to such Lender Party
at such time to (y) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such participations in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender Party to share the excess payment ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender
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Party shall be rescinded and each such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (x) the purchase price paid to
such Lender Party to (y) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (x) the amount of such other
Lender Party's required repayment to (y) the total amount of such required
repayments to the purchasing Lender Party) of any interest or other amount paid
or payable by the purchasing Lender Party in respect of the total amount so
recovered.
The Borrower agrees that any Lender Party so purchasing a participation from
another Lender Party pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such participation.
Section 2.14 USE OF PROCEEDS. The proceeds of the Advances and issuances
of Letters of Credit shall be available, and the Borrower shall use such
proceeds and Letters of Credit solely (a) to finance, in part, the Merger, to
pay fees and expenses incurred in connection with the Merger, (b) to repay
existing indebtedness and (c) to finance working capital and capital
expenditures of the Borrower.
Section 2.15 DEFAULTING LENDERS. (a) In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the obligation of the
Borrower to make such payment to or for the account of such Defaulting Lender
against the obligation of such Defaulting Lender to make such Defaulted Advance.
In the event that, on any date, the Borrower shall so set off and otherwise
apply its obligation to make any such payment against the obligation of such
Defaulting Lender to make any such Defaulted Advance on or prior to such date,
the amount so set off and otherwise applied by the Borrower shall constitute for
all purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on the date under the Facility pursuant to which such
Defaulted Advance was originally required to have been made pursuant to Section
2.1. Such Advance shall be a Prime Rate Advance and shall be considered, for all
purposes of this Agreement, to comprise part of the Borrowing in connection with
which such Defaulted Advance was originally required to have been made pursuant
to Section 2.1, even if the other Advances comprising such Borrowing shall be
Eurodollar Rate Advances on the date such Advance is deemed to be made pursuant
to this subsection (a). The Borrower shall notify the Administrative Agent at
any time the Borrower exercises its right of set-off pursuant to this subsection
(a) and shall set forth in such notice (i) the name of the Defaulting Lender and
the Defaulted Advance required to be made by such Defaulting Lender and (ii) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower
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pursuant to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents, payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) FIRST, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) SECOND, to the Lender Parties for any Defaulted Amounts
then owing to such Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
or any other Lender Party shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with Fleet, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable
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to such account, including the rate of interest payable with respect to the
credit balance of such account from time to time, shall be Fleet's standard
terms applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative Agent
shall, to the fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) FIRST, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) SECOND, to the Lender Parties for any amount then due and
payable by such Defaulting Lender to such Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such Lender Parties; and
(iii) THIRD, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents in such manner as the Administrative
Agent shall reasonably direct.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
Section 2.16 REMOVAL OF LENDER. In the event that any Lender Party (an
"AFFECTED LENDER") (a) demands payment of costs or additional amounts pursuant
to Section 2.10 or Section 2.12 or (b) asserts, pursuant to Section 2.10(d) that
it is unlawful for such Affected Lender to make Eurodollar Rate Advances, then
(subject to such Affected Lender's right to rescind such demand or assertion
within 10 days after the notice from the Borrower referred to below), so long as
no Event of Default exists the Borrower may, upon 20 days' prior express written
notice to such Affected Lender and the Administrative Agent, with the reasonable
assistance of the Administrative Agent, elect to cause such Affected Lender to
assign all of its rights and obligations under this Agreement (including,
without limitation, all of its Commitment or Commitments, the Advances owing to
it and the Note or Notes held by it) to an Eligible
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Assignee selected by the Borrower which is reasonably satisfactory to the
Administrative Agent, so long as such Affected Lender receives payment in full
in immediately available funds of the outstanding principal amount of all
Advances made by it and all accrued and unpaid interest thereon and all other
amounts due and payable to such Affected Lender as of the effective date of such
assignment (including, without limitation, amounts owing to such Affected Lender
pursuant to Section 2.3, 2.4, 2.7, 2.8, 2.10 or 2.12) and in such case such
Affected Lender agrees to make such assignment, and such assignee shall agree to
accept such assignment and assume all the obligations of such Affected Lender
hereunder, in accordance with Section 11.7. Until the consummation of an
assignment in accordance with the foregoing provisions of this Section 2.16, the
Borrower shall continue to pay to the Affected Lender any Obligations as they
become due and payable.
ARTICLE III
CONDITIONS OF LENDING
Section 3.1 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of each of the following conditions precedent before
or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Administrative Agent and the Lenders, and in sufficient copies (except for the
Notes), for each Lender Party:
(i) The Notes payable to the order of the Lenders duly
executed by the Borrower.
(ii) A security agreement in substantially the form of EXHIBIT
H granting to the Administrative Agent, for the ratable benefit of the
Lenders, a first and only priority security interest (subject only to
Permitted Liens) in the Collateral described therein (together with each
other security agreement delivered pursuant to Section 5.13, in each case
as amended, supplemented or otherwise modified from time to time in
accordance with its terms, each a "SECURITY AGREEMENT"), duly executed by
each Loan Party, together with:
(A) proper, duly executed financing statements under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first and only priority Liens and security interests created under
the Security Agreement, covering the Collateral described in the
Security Agreement;
(B) completed requests for information, dated on or before the date of
the Initial Extension of Credit, listing all effective financing
statements filed that name any Borrower or any other Loan Party as
debtor, together with copies of such
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financing statements;
(C) evidence of the completion of all other recordings and filings of or
with respect to the Security Agreement that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
Liens created thereby;
(D) evidence of the insurance required by the terms of the Security
Agreement;
(E) [Intentionally Omitted];
(F) original stock certificates representing the Pledged Shares referred
to in the Security Agreement, accompanied by undated stock powers
executed in blank and irrevocable proxies;
(G) in the case of the Borrower's Foreign Subsidiaries, all action
necessary to allow the Administrative Agent to obtain a valid and
enforceable, first priority, perfected security interest in 65%
of the stock of each Foreign Subsidiary and a memorandum to the
Administrative Agent from appropriate foreign counsel confirming
that the Administrative Agent, on behalf of the Secured Parties,
has obtained a valid and enforceable first priority perfected
security interest in the relevant Pledged Stock or outlining the
steps necessary to obtain a perfected security interest in the
relevant Pledged Stock; and
(H) a duly executed note assignment agreement in substantially the
form of EXHIBIT F hereto (as amended, modified and supplemented
from time to time, the "NOTE ASSIGNMENT AGREEMENT") covering (and
together with) all intercompany notes in substantially the form
of EXHIBIT I hereto (each an "Intercompany Note" and
collectively, the "INTERCOMPANY NOTES") made by the Borrower's
Subsidiaries payable to the Borrower and duly endorsed to the
Administrative Agent;
(I) evidence that all other action that the Administrative Agent may
deem necessary or desirable in order to perfect and protect the
first and only priority liens and security interests created under
the Security Agreement has been taken.
(iii) (A) Mortgages duly executed by the applicable Loan Party
for each Mortgaged Property listed on SCHEDULE 4.21, together with
evidence that counterparts of the Mortgages have been delivered to a title
insurance company (reasonably acceptable to the Lenders) insuring the Lien
of the Mortgages for recording in all places to the extent necessary or
desirable, in the reasonable judgment of the Lenders, to create a valid
and enforceable first priority lien on each Mortgaged Property listed on
SCHEDULE 4.21 (subject only to Permitted Real Property Encumbrances) in
favor of the Administrative Agent (or a trustee acting on behalf of the
Administrative Agent required or desired under local law) for the benefit
of the Secured Parties;
(B) Mortgagee title insurance policies (or binding commitments to
issue such title insurance policies) which shall (1) be issued to
the Administrative Agent for the
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benefit of the Secured Parties by title insurance companies
reasonably satisfactory to the Administrative Agent (the "MORTGAGE
POLICIES") in amounts reasonably satisfactory to the Administrative
Agent insuring that the Mortgages are valid and enforceable first
priority mortgage liens on the respective Mortgaged Properties, free
and clear of all defects, encumbrances and other Liens except
Permitted Real Property Encumbrances, (2) be in form and substance
reasonably satisfactory to the Administrative Agent (3) include, as
appropriate, an endorsement for future advances under this
Agreement, the Notes and the Mortgages and such other endorsements
that the Administrative Agent in its discretion may reasonably
request, (4) not include an exception for mechanics' liens, and (5)
provide for affirmative insurance and such reinsurance (including
direct access agreements) as the Administrative Agent in its
discretion may reasonably request; and
(C) Surveys, in form and substance satisfactory to the Administrative
Agent, of each Mortgaged Property listed on SCHEDULE 4.21, dated a
recent date reasonably acceptable to the Administrative Agent,
certified by a licensed professional surveyor in a manner
satisfactory to the Administrative Agent for the benefit of the
Lenders.
(iv) An intellectual property security agreement in
substantially the form of EXHIBIT J hereto granting to the Administrative
Agent for the ratable benefit of the Lenders a first and only priority
security interest in all of each Loan Party's intellectual property
(together with each other intellectual property security agreement
delivered pursuant to Section 5.13, in each case as amended, supplemented
or otherwise modified from time to time in accordance with its terms, each
an "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by each Loan
Party, together with evidence that all action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the
first and only priority Liens and security interests created under the
Intellectual Property Security Agreement has been taken.
(v) A guaranty in substantially the form of EXHIBIT L hereto
(as hereafter amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "SUBSIDIARY GUARANTY"), duly
executed by each Domestic Subsidiary of the Borrower.
(vi) An Intercreditor Agreement in form and substance
satisfactory to Administrative Agent shall have been duly executed by the
Canadian Lender.
(vii) Certified copies of resolutions of the Board of
Directors of each Loan Party approving the Merger, this Agreement, the
Notes, and each other Loan Document and Merger Document to which it is or
is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and
consents, if any, with respect to the Merger, this Agreement, the Notes,
and each other Loan Document and Merger Document.
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(viii) A copy of the charter of each Loan Party and each
amendment thereto, certified (as of a date reasonably near the date of the
Initial Extension of Credit) by the Secretary of State of the jurisdiction
of its incorporation as being a true and correct copy thereof.
(ix) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated within seven (7) Business Days of
the date of the Initial Extension of Credit, listing the charter of each
Loan Party and each amendment thereto on file in its office and certifying
that (A) such amendments are the only amendments to such Loan Party's
charter on file in its office, (B) such Loan Party has paid all franchise
taxes to the date of such certificate and (C) such Loan Party is duly
incorporated and in good standing under the laws of the State of the
jurisdiction of its incorporation.
(x) A copy of a certificate of the Secretary of State of each
State listed on SCHEDULE 3.1(a)(x), dated reasonably near the date of the
Initial Extension of Credit, stating that each Loan Party is duly
qualified and in good standing as a foreign corporation in such State and
has filed all annual reports required to be filed to the date of such
certificate.
(xi) A certificate of each Loan Party signed on behalf of such
Loan Party by a Responsible Officer and the Secretary or an Assistant
Secretary of such Loan Party, dated the date of the Initial Extension of
Credit (the statements made in such certificate shall be true on and as of
the date of the Initial Extension of Credit), certifying as to (A) the
absence of any amendments to the charter of such Loan Party since the date
of the Secretary of State's certificate referred to in this Section
3.1(a)(xi), (B) a true and correct copy of the bylaws of such Loan Party
as in effect on the date of the Initial Extension of Credit, (C) the due
incorporation and good standing of such Loan Party as a corporation
organized under the laws of the jurisdiction of its incorporation, and the
absence of any proceeding for the dissolution or liquidation of such Loan
Party, (D) the truth of the representations and warranties contained in
the Information Memorandum, any Pre-Commitment Information, the Loan
Documents and the Merger Documents as though made on and as of the date of
the Initial Extension of Credit and (E) the absence of any event occurring
and continuing, or resulting from the Initial Extension of Credit, that
constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Agreement, the Notes,
each other Loan Document to which they are or are to be parties and the
other documents to be delivered hereunder and thereunder.
(xiii) Such financial, business and other information
regarding each Loan Party and each such Person's Subsidiaries as any of
the Lenders shall have reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax
matters, Environmental Actions, Environmental Permits, obligations under
Plans, Multiemployer Plans and Welfare Plans, collective bargaining
agreements and
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other arrangements with employees, audited annual financial statements
dated July 31, 2000, interim financial statements dated the end of the
most recent fiscal quarter for which financial statements are available
(or, in the event the Initial Lenders due diligence review reveals
material changes since such financial statements, as of a later date
within thirty (30) days of the day of the Initial Extension of Credit),
pro forma financial statements as to each of the Loan Parties and
forecasts prepared by management of the Borrower, all in form and
substance reasonably satisfactory to the Lenders.
(xiv) A Notice of Borrowing with respect to each Facility
pursuant to which the Borrower shall request an Initial Extension of
Credit.
(xv) A Borrowing Base Certificate.
(b) The Initial Lenders shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of its
Subsidiaries after the Merger, including, without limitation, the terms and
conditions of the charter, by-laws and each class of capital stock of each Loan
Party, Minntech and their respective Subsidiaries and of each agreement or
instrument relating to such structure or capitalization.
(c) The Initial Lenders shall be satisfied that all Existing Debt
has been (or, upon consummation of the Merger will be) prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished concurrently with the
funding of the Initial Extension of Credit and that all Surviving Debt shall be
on terms and conditions satisfactory to the Initial Lenders.
(d) All necessary governmental and third party approvals (which
third party approvals are material) and compliance with all laws, including
ERISA, except to the extent that failure by the Borrower, Minntech or their
Subsidiaries in connection with the operations of their business to comply with
laws would not have or would not reasonably be expected to have a Material
Adverse Effect (excluding for purposes of this exception the consummation of the
Merger and financing transaction contemplated herein).
(e) The Borrower and each Guarantor shall have given the
Administrative Agent such access to their respective books and records as the
Administrative Agent may have requested upon reasonable notice in order to carry
out its investigations, appraisals and analyses, including, but not limited to,
calculation of the value of Eligible Receivables and Eligible Inventory, and the
Administrative Agent and the Initial Lenders shall have received all additional
financial, business and other information regarding the Borrower, Minntech and
their respective Subsidiaries and properties as they shall have reasonably
requested. All of the information, taken as a whole, provided by or on behalf of
the Borrower, Minntech and their respective Subsidiaries to the Administrative
Agent and the Initial Lenders prior to their commitment in respect of the
Facilities (the "PRE-COMMITMENT INFORMATION") shall be true and correct in all
material respects and the Administrative Agent shall not have become aware of
any information not disclosed to it prior to the date of the Commitment Letter
which it considers to be inconsistent with its understanding of the proposed
business, assets, operations, structure, prospects and conditions of each of the
Borrower, Minntech and their respective Subsidiaries that results in or would
reasonably be expected to result in a material change in, or material deviation
from, the
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information, taken as a whole, previously delivered to the Administrative Agent
or would reasonably be expected to be materially adverse to the condition
(financial or otherwise), business, operations, properties or prospects of the
Borrower, Minntech and their respective subsidiaries, taken as a whole, or to
the Administrative Agent or the Lenders, or to the legal, tax, accounting or
financial aspects of the Merger.
(f) The Borrower shall have delivered a certificate, in form and
substance reasonably satisfactory to the Administrative Agent, attesting to the
Solvency of the Borrower immediately before and immediately after giving effect
to the Transaction, from its President or a Vice President. With respect to the
Solvency of the Borrower, the Administrative Agent shall have received such
appraisals or other analyses from independent experts of the Borrower as it may
request, and such appraisals and analyses shall be in form and substance
satisfactory to the Administrative Agent.
(g) The Borrower shall have demonstrated to the Administrative
Agent's reasonable satisfaction that: (i) the operations of the Borrower and its
Subsidiaries comply in all material respects with applicable Environmental Laws
and health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Federal Resource Conservation and Recovery
Act; (ii) such operations are not the subject of any federal, state or local
investigation evaluating the need for remedial action involving an expenditure
to respond to such Environmental Actions; (iii) neither the Borrower nor any
Guarantor has or could reasonably be expected to have any material contingent
liability in connection with any Environmental Action, and (iv) with respect to
the operations of the Borrower, Minntech and their respective Subsidiaries,
Administrative Agent has not uncovered any condition or conditions not disclosed
in the Pre-Commitment Information which could be reasonably expected to have a
Material Adverse Effect on the Borrower, Minntech and their respective
Subsidiaries, taken as a whole.
(h) [Intentionally Omitted].
(i) The Administrative Agent shall have received endorsements naming
the Administrative Agent, on behalf of the Lenders, as loss payee or an
additional insured, as applicable, under all insurance policies to be maintained
with respect to the properties of the Borrower, Minntech and their respective
Subsidiaries forming any part of the Lenders' Collateral under the Security
Agreement and the other Loan Documents and Collateral Documents.
(j) The Administrative Agent shall have been satisfied with the
structure for the financing and related processes and with the legal and tax
opinions of counsel for the Borrower and the Guarantors and local and special
counsel to the extent requested by the Administrative Agent in connection with
the Transaction.
(k) There shall exist no Default or Event of Default under any of
the Loan Documents, and all legal matters incident to the Initial Extension of
Credit shall be satisfactory to counsel for the Administrative Agent.
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(l) The Borrower shall have paid to Administrative Agent, for the
ratable benefit of the Initial Lenders, a ticking fee, if any, equal to .25% per
annum of the total Commitment which shall have accrued pursuant to the terms of
the Commitment Letter.
(m) The Borrower shall have paid to Administrative Agent all fees
referred to in the Commitment Letter and the related fee letter, dated as of May
30, 2001, from Fleet to Borrower, at such times and in such manner as set forth
therein and all accrued reasonable fees and expenses of the Administrative Agent
and the Initial Lenders (including the fees and expenses of counsel for the
Administrative Agent and local counsel for the Administrative Agent).
(n) The Merger shall have been, or shall be concurrently,
consummated pursuant to the terms and conditions of the Merger Agreement dated
May 30, 2001, attached as Annex A to Borrower's Registration Statement on Form
S-4 filed with the Securities and Exchange Commission and declared effective on
July 31, 2001, and in accordance with applicable law and the documentation for
the financing of the Merger and related transactions, and otherwise on terms
reasonably satisfactory to the Administrative Agent. The conditions of the
Merger shall have been satisfied without giving effect to waivers, amendments,
modifications or supplements except as approved in advance in writing by the
Administrative Agent and without amendments, modifications or supplements to any
related disclosure letter or schedule not approved in writing in advance by the
Administrative Agent. The documents and materials filed publicly by the Borrower
and/or Minntech in connection with the Merger shall have been furnished to the
Administrative Agent in form and substance reasonably satisfactory to the
Administrative Agent. All required stockholder approval to effect the Merger
shall have been obtained. The Administrative Agent shall have received certified
copies of each of the Merger Documents, each of which shall be satisfactory to
the Lenders and in full force and effect.
(o) The Administrative Agent shall be satisfied that there are no
state takeover laws and no supermajority charter provisions applicable to the
Merger, or that any conditions to avoiding such restrictions have been
satisfied.
(p) All contracts with Olympus America Inc. shall be and remain
valid and in force, except to the extent that the failure of any one or more
such contracts to remain valid and in force with Olympus America Inc. or its
affiliates, would not, individually or together, have or reasonably be expected
to have a material adverse effect on the condition (financial or otherwise),
business, operations, properties and/or prospects of Borrower and Minntech and
their respective Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(q) The absence of any material adverse change in the condition
(financial or otherwise), operations, business, properties and/or prospects of
the Borrower and Minntech and their respective subsidiaries, taken as a whole,
following the date of the Commitment Letter.
(r) There shall be no litigation or administrative proceedings or
other legal or regulatory developments actual or threatened that would be
reasonably expected to result in a Material Adverse Effect on (a) the condition
(financial or otherwise), business, properties, operations, or prospects of the
Borrower, Minntech and their respective subsidiaries taken as a
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whole since July 31, 2000, in respect of the Borrower and their Subsidiaries and
since March 31, 2001, in respect of Minntech and its Subsidiaries, (b) the
condition (financial or otherwise), operations, business, properties or
prospects of the Borrower and Minntech and their respective subsidiaries, taken
as a whole, following the date of the Commitment Letter or (c) on the rights and
remedies of the Administrative Agent or on the ability of the Borrower, Minntech
and their respective subsidiaries to perform their obligations.
(s) Receipt of a copy of a fairness opinion from Minntech's
investment banker addressed to Minntech's board of directors, relating to the
terms of the Merger.
(t) Purchase of Interest Rate Protection for 50% of the Term A
Facility in a manner satisfactory to the Administrative Agent.
(u) All Advances made under this Agreement shall be in full
compliance with all applicable requirements of law, including, without
limitation, Federal Reserve Regulations T, U, and X.
(v) The Administrative Agent shall have received a duly executed and
delivered counterparts of landlord waivers from all landlords and leasehold
mortgage holders and bailee letters from all warehousemen and bailees with
respect to any Inventory located at a location that is not owned by the
Borrower, as deemed necessary or desirable in the Administrative Agent's sole
discretion, to preserve or otherwise in respect of the Administrative Agent's
rights in Collateral. The Administrative Agent shall also have received such
bank consent agreements, third party consents, intercreditor agreements or other
agreements, as deemed necessary or desirable in the Administrative Agent's sole
discretion, to preserve or otherwise in respect of the Administrative Agent's
rights in the Collateral.
(w) The Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the Administrative Agent
may reasonably request, and all legal matters incident to such Borrowing shall
be satisfactory to counsel for the Administrative Agent.
Section 3.2 CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE. The
obligation of each appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.3(c) and a Swing Line Advance made by a Revolving Credit Lender
pursuant to Section 2.2(b)), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance thereof) or renew a Letter of
Credit and the right of the Borrower to request the issuance or renewal of a
Letter of Credit shall each be subject to the further conditions precedent that
on the date of each such Borrowing or issuance or renewal:
(a) Each of the conditions precedent listed in Section 3.1 shall
have been previously or concurrently satisfied or waived in accordance with this
Agreement.
(b) The following statements shall be true (and each of the giving
of the applicable Notice of Borrowing, Notice of Swing Line Borrowing, or Notice
of Issuance or
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Notice of Renewal and the acceptance by the Borrower of the proceeds of a
Borrowing or of a Letter of Credit or the renewal of a Letter of Credit shall
constitute a representation and warranty by the Borrower that both on the date
of such notice and on the date of such Borrowing or issuance or renewal such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal
and to the application of the proceeds therefrom, as though made on and as
of such date, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of such
Borrowing, issuance or renewal, in which case, as of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default;
(iii) for each Revolving Credit Advance, Swing Line Advance
made by the Swing Line Bank or issuance or renewal of any Letter of
Credit, the Borrowing Base equals or exceeds the aggregate principal
amount of the Revolving Credit Advances PLUS Swing Line Advances PLUS
Letter of Credit Advances PLUS the aggregate Available Amount of all
Letters of Credit then outstanding after giving effect to such Advances or
issuance or renewal, respectively; and
(c) The Administrative Agent shall have received such other
approvals, opinions or documents as any appropriate Lender through the
Administrative Agent may reasonably request, and all legal matters incident to
such Borrowing or issuance of such Letter of Credit shall be satisfactory to
counsel for the Administrative Agent.
Section 3.3 DETERMINATIONS UNDER SECTION 3.1. For purposes of determining
compliance with the conditions specified in Section 3.1, each Initial Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Initial Lenders unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received written notice from such
Initial Lender prior to the Initial Extension of Credit specifying its objection
thereto and, if the Initial Extension of Credit consists of a Borrowing, such
Initial Lender shall not have made available to the Administrative Agent such
Initial Lender's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants as follows:
Section 4.1 ORGANIZATION. Each Loan Party (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) is duly
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qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed could not reasonably be expected to have a Material
Adverse Effect and (c) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
Section 4.2 SUBSIDIARIES. Set forth on SCHEDULE 4.2 hereto is a complete
and accurate list of all Subsidiaries of each Loan Party, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of capital stock authorized, and the number
outstanding, on the date hereof and the percentage of the outstanding shares of
each such class owned (directly or indirectly) by such Loan Party and the number
of shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding capital
stock of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under the
Collateral Documents.
Section 4.3 CORPORATE POWER, AUTHORIZATION. The execution, delivery and
performance by each Loan Party of this Agreement, the Notes, each other Loan
Document and each Merger Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's corporate powers,
have been duly authorized by all necessary corporate action, and do not (a)
contravene such Loan Party's charter or bylaws, (b) violate any law (including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970), rule,
regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (c) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture, mortgage, deed of
trust, lease or other material contract, instrument or agreement binding on or
affecting any Loan Party, any of its Subsidiaries or any of their respective
properties or (d) except for the Liens created under the Collateral Documents,
result in or require the creation or imposition of any Lien upon or with respect
to any of the properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument or agreement, the violation or breach of which
could reasonably be expected to have a Material Adverse Effect.
Section 4.4 GOVERNMENTAL AUTHORIZATIONS, APPROVALS. Other than those which
have been obtained or made, no authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
any other third party is or was required, for (a) the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement, the
Notes, any other Loan Document or any Merger Document to which it is or is to
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be a party, or for the consummation of the Transaction, (b) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c)
the perfection or maintenance of the Liens created by the Collateral Documents
(including the first and only priority nature thereof) or (d) the exercise by
the Administrative Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices
and filings listed on SCHEDULE 4.4, all of which have been duly obtained, taken,
given or made and are in full force and effect. All applicable waiting periods
in connection with the Transaction have expired without any action having been
taken by any competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.
Section 4.5 DUE EXECUTION, VALIDITY, ENFORCEABILITY. This Agreement and
each Merger Document has been, and each of the Notes and each other Loan
Document has been or when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement and each Merger
Document is, and each of the Notes and each other Loan Document has been or when
delivered hereunder will be, the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in accordance with
its terms.
Section 4.6 FINANCIAL STATEMENTS. (a) The consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at July 31, 2000, and the
related consolidated and consolidating statements of income and consolidated
statement of cash flows of the Borrower and its Subsidiaries for the Fiscal Year
then ended, accompanied by (in the case of such Consolidated financial
statements) an opinion of Ernst & Young LLP, independent auditors, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at April 30,
2001, and the related Consolidated statement of income and Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period then
ended, duly certified by the President or a Vice President of the Borrower,
copies of which have been furnished to each Lender Party, fairly present,
subject, in the case of said balance sheet as at April 30, 2001, and said
statements of income and cash flows for the period then ended, to year-end type
adjustments, the Consolidated (and, with respect to the balance sheets dated
July 31, 2000, consolidating) financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated (and, with respect to the
statements of income dated July 31, 2000, consolidating) results of the
operations of the Borrower and its Subsidiaries for the period ended on such
date, all in accordance with GAAP applied on a consistent basis, and, since
April 30, 2001, there has been no Material Adverse Change; and (b) the
consolidated and consolidating balance sheets of Minntech and its Subsidiaries
as at March 31, 2001, and the related consolidated and consolidating statements
of income and consolidated statement of cash flows of Minntech and its
Subsidiaries for the Fiscal Year then ended, accompanied by (in the case of such
Consolidated financial statements) an opinion of PricewaterhouseCoopers, LLP,
independent public accountants, and the Consolidated balance sheet of Minntech
and its Subsidiaries as at June 30, 2001, and the related Consolidated statement
of income and Consolidated statement of cash flows of Minntech and its
Subsidiaries for the period then ended, duly certified by the Chief Financial
Officer of Minntech, copies of
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which have been furnished to each Lender Party, fairly present, subject, in the
case of said balance sheet as at June 30, 2001, and said statements of income
and cash flows for the period then ended, to year-end type adjustments, the
Consolidated (and, with respect to the balance sheets dated March 31, 2001,
consolidating) financial condition of Minntech and its Subsidiaries as at such
dates and the Consolidated (and, with respect to the statements of income dated
March 31, 2001, consolidating) results of the operations of Minntech and its
Subsidiaries for the period ended on such date, all in accordance with GAAP
applied on a consistent basis, and, since June 30, 2001, there has been no
Material Adverse Change.
Section 4.7 PRO FORMA HISTORICAL FINANCIAL STATEMENTS. The Consolidated
pro forma balance sheet of the Borrower and its Subsidiaries and Minntech and
its Subsidiaries as at April 30, 2001, and the related Consolidated pro forma
statement of income of the Borrower and its Subsidiaries and Minntech and its
Subsidiaries for the nine month period ended April 30, 2001, certified by the
President or a Vice President of Borrower, copies of which have been furnished
to each Initial Lender, fairly present the Consolidated pro forma financial
condition of the Borrower and its Subsidiaries and Minntech and its Subsidiaries
as at such date and the Consolidated pro forma results of operations of the
Borrower and its Subsidiaries and Minntech and its Subsidiaries for the nine
month period ended on such date, in each case after giving effect to the
Transaction, all in accordance with GAAP.
Section 4.8 ACCURATE INFORMATION. None of the Information Memorandum, any
Pre-Commitment Information or any information, exhibit or report furnished by
any Loan Party to the Administrative Agent or any Lender Party in connection
with the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
Section 4.9 LITIGATION. Other than the litigation disclosed on SCHEDULE
4.9 (the "DISCLOSED LITIGATION"), there is no action, suit, investigation,
litigation or proceeding affecting the Borrower, any other Loan Party or any of
their respective Subsidiaries, including, without limitation, any Environmental
Action, pending or threatened before any court, governmental agency or
arbitrator that could reasonably be expected to have a Material Adverse Effect,
and there has been no Material Adverse Change in the status, or financial effect
on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from
that described on SCHEDULE 4.9.
Section 4.10 REGULATION U. Neither the Borrower nor any other Loan Party
nor any of their respective Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
Section 4.11 ERISA.
(a) Except as set forth on SCHEDULE 4.11 hereto, neither the
Borrower nor any of its ERISA Affiliates maintains or has maintained any Plans
or Multiemployer Plans. Set forth on SCHEDULE 4.11 is a complete and accurate
list of all Welfare Plans and all defined contribution plans in respect of which
any Loan Party could have liability.
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(b) Except as set forth in the financial statements referred to in
this Section 4.6 and in Article 7, neither the Borrower, any of the other Loan
Parties nor any of their respective Subsidiaries has any material liability with
respect to "expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
Section 4.12 CASUALTY. Neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that could reasonably be expected to have a Material
Adverse Effect.
Section 4.13 ENVIRONMENTAL MATTERS.
(a) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable Environmental
Laws and Environmental Permits, all known past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without ongoing
obligations or costs, and no circumstances exist that could reasonably be
expected to (i) form the basis of an Environmental Action against any Loan Party
or any of its Subsidiaries or any of their properties that could reasonably be
expected to have a Material Adverse Effect or (ii) cause any such property to be
subject to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(b) Except as disclosed on, or in the environmental assessment
reports listed on, SCHEDULE 4.13 hereto, (i) none of the properties currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries is
listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; (ii) there are
no and, to the best of its knowledge, never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps
or lagoons in which Hazardous Materials are being or, to the best of its
knowledge, have been treated, stored or disposed on any property currently owned
or operated by any Loan Party or any of its Subsidiaries or on any property
formerly owned or operated by any Loan Party or any of its Subsidiaries; (iii)
there is no asbestos or asbestos-containing material on any property currently
owned or operated by any Loan Party or any of its Subsidiaries; and (iv)
Hazardous Materials have not been released, discharged or disposed of on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries, or any property formerly owned or operated by any Loan Party or
any of its Subsidiaries.
(c) Except as disclosed on, or in the environmental assessment
reports listed on, SCHEDULE 4.13, no Loan Party or any of its Subsidiaries is
undertaking or has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or Remedial,
Response or Removal action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any governmental or regulatory
authority or the
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requirements of any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property
currently owned or operated by any Loan Party or any of its Subsidiaries or any
property formerly owned or operated by any Loan Party or any of its Subsidiaries
have been disposed of in a manner not reasonably expected to result in material
liability to any Loan Party or any of its Subsidiaries.
Section 4.14 BURDENSOME DOCUMENTS. Except as set forth on SCHEDULE 4.14,
no Loan Party nor any of its Subsidiaries is a party to any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to any
charter or corporate restriction that could reasonably be expected to have a
Material Adverse Effect.
Section 4.15 PRIORITY OF LIENS. The Collateral Documents create in favor
of the Administrative Agent, for the ratable benefit of the Secured Parties, a
valid and, upon either the filing by the Administrative Agent or its
representative of the proper financing statements referred to in SECTION
3.1(a)(ii) hereof or the taking of possession of appropriate collateral,
perfected first priority security interest in the Collateral (other than
Permitted Liens) securing the payment of the Obligations. The Loan Parties are
the legal and beneficial owners of the Collateral free and clear of any Lien,
except for the Liens and security interests created or expressly permitted under
the Loan Documents.
Section 4.16 TAXES.
(a) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all tax returns (Federal, state,
local and foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties.
(b) Set forth on SCHEDULE 4.16(b) is a complete and accurate list of
each taxable year of each Loan Party and each of its Subsidiaries for which
Federal income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not occurred
by reason of extension or otherwise (an "OPEN YEAR").
(c) There is no unpaid amount of adjustments to the Federal income
tax liability of any Loan Party or any of its Subsidiaries proposed by the
Internal Revenue Service with respect to Open Years. No issues have been raised
by the Internal Revenue Service in respect of Open Years that, in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(d) Other than as disclosed in Minntech's annual report on form 10-K
for the fiscal year ended March 31, 2001 or on SCHEDULE 4.16(d), there is no
unpaid amount of adjustments to the state, local and foreign tax liability of
each Loan Party and each of its Subsidiaries proposed by any state, local or
foreign taxing authorities (other than amounts arising from adjustments to
Federal income tax returns). No issues have been raised by such taxing
authorities that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
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(e) Except as disclosed on SCHEDULE 4.16(e), no "ownership change"
as defined in Section 382(g) of the Internal Revenue Code, and no event that
would result in the application of the "separate return limitation year" or
"consolidated return change of ownership" limitations under the Federal income
tax consolidated return regulations, has occurred with respect to any Loan
Party.
Section 4.17 COMPLIANCE WITH SECURITIES LAWS. No Loan Party and none of
any Loan Party's Subsidiaries is 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, as
amended. Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the Transaction, will violate any provision of
such Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder or any takeover, disclosure or other federal, state or
foreign securities law or Regulations T, U or X of the Federal Reserve Board.
The Borrower is not subject to regulation under any federal, state or foreign
statute or regulation which limits its ability to incur Debt.
Section 4.18 SOLVENCY. Each Loan Party is, individually and together with
its Subsidiaries, Solvent.
Section 4.19 DEBT.
(a) Set forth on SCHEDULE 4.19(a) is a complete and accurate list of
all Debt of the Borrower and its Subsidiaries the principal amount of which is
greater than $100,000.00, which Debt is outstanding immediately prior to giving
effect to the transactions contemplated hereby (the "Existing Debt"), showing as
of the date hereof the principal amount outstanding thereunder and the maturity
date thereof.
(b) Set forth on SCHEDULE 4.19(b) is a complete and accurate list of
all Debt of the Borrower and its Subsidiaries the principal amount of which is
greater than $100,000.00, which Debt shall remain outstanding after giving
effect to the transactions contemplated hereby (the "SURVIVING DEBT"), showing
as of the date hereof the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
Section 4.20 NO DEFAULTS, COMPLIANCE WITH LAWS.
(a) Except as set forth on SCHEDULE 4.20 hereto, no Loan Party is in
default under any agreement, ordinance, resolution, decree, bond, note,
indenture, order or judgment to which it is a party or by which it is bound, or
any other agreement or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected, which default
could have a Material Adverse Effect.
(b) Each Loan Party and, to our knowledge, each officer, director,
employee or contractor of any of the foregoing (in so far as related to services
provided in respect of the Borrower or any Subsidiary by any such officer,
director, employee or contractor) has complied and is in compliance in all
respects with all applicable laws, ordinances, regulations, resolutions,
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decrees and other similar documents and instruments of all courts and
governmental authorities, bureaus and agencies, domestic and foreign and all
applicable Environmental Laws and Regulations, non-compliance with which could
have a Material Adverse Effect.
Section 4.21 OWNED REAL PROPERTY. Set forth on SCHEDULE 4.21 is a complete
and accurate list of all real property owned by any Loan Party or any of its
Subsidiaries (each a "MORTGAGED PROPERTY" and, collectively, the "MORTGAGED
PROPERTIES"), showing as of the date hereof the street address, county or other
relevant jurisdiction, state and record owner thereof. Such Loan Party or such
Subsidiary has good, marketable and insurable fee simple title to such Mortgaged
Property, free and clear of all Liens, other than Permitted Real Property
Encumbrances. The Mortgages create, as security for the obligations purported to
be secured thereby, a valid and enforceable perfected security interest in and
Lien on all of the Mortgaged Property (and will create a valid and enforceable
perfected security interest in and Lien on all fixtures and improvements related
to such Mortgaged Property and affixed or added thereto on or after the Closing
Date) in favor of the Administrative Agent (or such other trustees that may be
named therein) for the benefit of the Secured Parties, superior to and prior to
the rights of all third Persons (except that the security interest created in
the Mortgaged Property may be subject to the Permitted Real Property
Encumbrances related thereto) and subject to no other Liens (other than
Permitted Real Property Encumbrances).
Section 4.22 LEASED REAL PROPERTY. Set forth on SCHEDULE 4.22 is a
complete and accurate list of all leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. To the best knowledge of
each Loan Party, each such lease is the legal, valid and binding obligation of
the lessor thereof, enforceable in accordance with its terms. There exists no
material default by the Borrower or any of its Subsidiaries party thereto under
any lease set forth on SCHEDULE 4.22 and, to the best knowledge of each Loan
Party, there exists no material default under any lease set forth on SCHEDULE
4.22 by any other party thereto.
Section 4.23 MATERIAL CONTRACTS. Set forth on SCHEDULE 4.23 is a complete
and accurate list of all Material Contracts of each Loan Party and its
Subsidiaries, showing as of the date hereof the parties, subject matter and term
thereof. Except as could not reasonably be expected to have a Material Adverse
Effect, each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise modified, is
in full force and effect and is binding upon and enforceable against all parties
thereto in accordance with its terms. There exists no material default under any
Material Contract by the Borrower or any of its Subsidiaries party thereto and,
to the best knowledge of each Loan Party, there exists no default under any
Material Contract by any other party thereto.
Section 4.24 INVESTMENTS. Set forth on SCHEDULE 4.24 is a complete and
accurate list of all Investments in excess of $250,000.00 held by any Loan Party
or any of its Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
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Section 4.25 INTELLECTUAL PROPERTY. Set forth on SCHEDULE 4.25 is a
complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries, showing as of the date hereof the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date. Each Loan Party and each of their
respective Subsidiaries owns or has rights to use all patents, trademarks, trade
names, service marks, copyrights and other intellectual property necessary to
conduct its business as now or heretofore conducted by it or proposed to be
conducted by it. Each Loan Party and each of their respective Subsidiaries
conducts its business and affairs without infringement of or interference with
any patent, trademark, trade name, service ▇▇▇▇, copyright or other intellectual
property of any other Person. The Intellectual Property Security Agreement
creates, as security for the obligations purported to be secured thereby, a
valid and enforceable, and upon filing in the appropriate office, perfected
security interest in and Lien on all of the Collateral purported to be covered
thereby in favor of the Administrative Agent for the benefit of the Secured
Parties, superior to and prior to the rights of all third Persons.
Section 4.26 MERGER DOCUMENTS. Each Merger Document to which any Loan
Party or any of its respective Subsidiaries is a party has been duly executed
and delivered by such Loan Party or such Subsidiary, as the case may be, and, to
the best knowledge of the Borrower, each Merger Document has been duly executed
and delivered by the parties thereto other than the Borrower and its
Subsidiaries, and is in full force and effect. The representations and
warranties of any Loan Party and each of its respective Subsidiaries contained
in each Merger Document to which such Loan Party or such Subsidiary, as the case
may be, is a party are true and correct in all material respects on the date
hereof and will be true and correct in all material respects on the Closing Date
and the Merger Date, as if made on each of such dates, and the Administrative
Agent and each Lender Party shall be entitled to rely upon such representations
and warranties with the same force and effect as if they were incorporated in
this Agreement and made to the Administrative Agent and each Lender Party
directly as of the date hereof, the Closing Date, and the Merger Date.
Section 4.27 FEES. No broker's or finder's fees or commissions or any
similar fees or commissions will be payable by any Loan Party or any of its
Subsidiaries with respect to the incurrence and maintenance of the Obligations,
any other transaction contemplated by the Loan Documents or any services
rendered in connection with any such transactions. The Borrower hereby covenants
and agree to indemnify the Administrative Agent and each Lender Party against
and hold the Administrative Agent and each Lender Party harmless from any claim,
demand or liability for broker's or finder's fees or similar fees or
commissions.
The Borrower may, in addition to the reporting requirements set forth in
Section 7.18, at any time and from time to time, supplement or amend any one or
more of the other Schedules referred to in this Agreement (other than SCHEDULE
I), and any representation or warranty contained herein which refers to any such
Schedule shall from and after the date of any such amendment refer to such
Schedule as so supplemented or amended; PROVIDED, HOWEVER, that in no event
shall any such supplemented or amended disclosure cure any existing Default or
Event of Default.
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A disclosure made by the Borrower in any Schedule to the Credit Agreement
that is sufficient to reasonably inform the reader with respect to information
required to be disclosed in another Schedule to the Credit Agreement in order to
avoid a misrepresentation thereunder shall be deemed to have been made with
respect to such other Schedule.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will:
Section 5.1 COMPLIANCE WITH LAW. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA.
Section 5.2 PAYMENT OF TAXES, ETC. Timely pay and discharge, and cause
each of its Subsidiaries to timely pay and discharge, (a) all taxes, assessments
and governmental charges or levies imposed upon it or upon its property and (b)
all lawful claims that, if unpaid, might by law become a Lien upon its property;
PROVIDED, HOWEVER, that the Borrower and its Subsidiaries shall not be required
to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against the Borrower or any of
its Subsidiaries.
Section 5.3 COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits reasonably
necessary for its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing, and
undertake any Removal, Remedial or other Response action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws; PROVIDED, HOWEVER, that the Borrower
and its Subsidiaries shall not be required to undertake any such cleanup,
Removal, Remedial or Response action to the extent that its obligation to do so
is being contested in good faith and by proper proceedings and adequate reserves
as determined by the Administrative Agent are being maintained with respect to
such circumstances.
Section 5.4 PREPARATION OF ENVIRONMENTAL REPORTS. The Borrower agrees that
the Required Lenders may, upon reasonable prior notice, from time to time in
their reasonable discretion, retain an independent professional consultant to
prepare environmental site assessment reports for the Borrower or any of its
Subsidiaries and/or to review any report relating to Hazardous Materials
prepared by or for the Borrower, the cost of which shall be paid fifty (50%) by
the Borrower and fifty percent (50%) ratably by the Lenders PROVIDED, THAT, if a
Default or Event of Default has occurred and is continuing all such costs shall
be at the
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Borrower's sole expense and, upon a reasonable belief that the Borrower or any
of its Subsidiaries has breached any covenant or representation with respect to
environmental matters or that there has been a material violation of
Environmental Laws by the Borrower or one of its Subsidiaries, the
Administrative Agent may conduct its own investigation of such matter at any
facility or property currently owned, leased, operated or used by the Borrower
or one of its Subsidiaries and the Borrower agrees to use their best efforts to
obtain permission for the Administrative Agent's professional consultant to
conduct its own investigation of any such matter at any facility or property
previously owned, leased, operated or used by the Borrower or one of its
Subsidiaries. The Borrower and its Subsidiaries hereby grant to the
Administrative Agent, its employees, consultants and contractors, the right to
enter into or onto the facilities or properties currently owned, leased,
operated or used by the Borrower or its Subsidiaries upon reasonable notice to
the Borrower to perform such assessments on such property as are necessary to
conduct such a review and/or investigation. Any such investigation of any such
facility or property shall be conducted, unless otherwise agreed to by the
Borrower and the Administrative Agent, during normal business hours and, to the
extent reasonably practicable, shall be conducted so as not to interfere with
the ongoing operations at any facility or property or to cause any damage or
loss to any facility or property. The Borrower and the Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of the Administrative Agent will be obtained and shall be used by
the Administrative Agent and Lender Parties for the purpose of internal credit
decisions to monitor and police the Advances and/or protect the Administrative
Agent's and Lender Parties' security interests in the Collateral. The
Administrative Agent agrees to deliver a copy of any such report to the Borrower
with the understanding that the Borrower acknowledges and agrees that (i) the
Borrower will indemnify and hold harmless the Administrative Agent and each
Lender Party from any costs, losses or liabilities relating to the Borrower's
use of or reliance on such report and (ii) neither the Administrative Agent nor
any Lender Party makes any representation or warranty with respect to such
report.
Section 5.5 MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
Section 5.6 PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises PROVIDED, THAT, the Borrower
shall be permitted to merge a Wholly Owned Subsidiary with and into another
Wholly Owned Subsidiary so long as the surviving corporation remains a Wholly
Owned Subsidiary of the Borrower.
Section 5.7 VISITATION RIGHTS.
(a) At any reasonable time and from time to time during normal
business hours, upon reasonable notice, permit the Administrative Agent or the
Lender Parties, or any
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agents or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of and visit the properties of the
Borrower and its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and any such Subsidiaries with any of their officers or
directors.
(b) Permit the Administrative Agent and the Lender Parties to
conduct on a semi-annual basis, at the sole cost and expense of the Borrower
(which cost and expense shall not exceed $10,000.00 per audit) such commercial
finance examinations and/or Collateral audits as the Administrative Agent may
reasonably request.
Section 5.8 KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each Subsidiary in accordance with GAAP.
Section 5.9 MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
that are reasonably necessary in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
Section 5.10 COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments and
otherwise perform all obligations in respect of all leases of real property to
which the Borrower or any of its Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled, notify the
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so except, in any case, where
the failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section 5.11 PERFORMANCE OF MATERIAL CONTRACTS. Perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Material Contract to be performed or observed by it,
maintain, and cause each of its Subsidiaries to maintain, each such Material
Contract in full force and effect, and enforce, and cause each of its
Subsidiaries to enforce, each such Material Contract in accordance with its
terms.
Section 5.12 TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arms-length transaction with a Person not an Affiliate.
Section 5.13 AGREEMENT TO GRANT ADDITIONAL SECURITY.
(a) Promptly, and in any event within thirty (30) days after the
acquisition of assets of the type that would have constituted Collateral at the
date hereof and investments of the type that would have constituted Collateral
on the date hereof (other than assets with a fair market value of less than
$50,000.00), including the capital stock of any direct or indirect
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Subsidiary of the Borrower, notify the Administrative Agent of the acquisition
of such assets or investments and, to the extent not already Collateral in which
the Administrative Agent has a perfected security interest pursuant to the
Collateral Documents, such assets and investments will become additional
Collateral hereunder to the extent the Administrative Agent deems the pledge of
such assets practicable (the "ADDITIONAL COLLATERAL"), and the Borrower will,
and will cause each of its direct and indirect Subsidiaries to, take all
necessary action, including the filing of appropriate financing statements under
the provisions of the UCC, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or appropriate
to grant the Administrative Agent a perfected Lien in such Collateral (or
comparable interest under foreign law in the case of foreign Collateral)
pursuant to and to the full extent required by the Collateral Documents and this
Agreement.
(b) Promptly, and in any event no later than thirty (30) days after
a request by the Administrative Agent with respect thereto, cause each of the
Borrower's direct and indirect Domestic Subsidiaries as the Administrative Agent
shall request to become party to, or to execute and deliver a Subsidiary
Guaranty, guarantying to the Administrative Agent and the Lenders the prompt
payment, when and as due, of all Obligations of the Loan Parties under the Loan
Documents, including all obligations under any Hedge Agreements or other hedging
agreements.
(c) Promptly, and in any event no later than thirty (30) days after
a request by the Administrative Agent with respect thereto, cause each Guarantor
created or established after the date hereof to grant to the Administrative
Agent, for the ratable benefit of the Lenders, a first priority Lien on all
property (tangible and intangible) of such Guarantor, including, without
limitation, all of the capital stock of any of its Domestic Subsidiaries and 65%
of the stock of any of its Foreign Subsidiaries, upon terms similar to those set
forth in the Collateral Documents and otherwise satisfactory in form and
substance to the Administrative Agent. The Borrower shall cause each Guarantor,
at its own expense, to become a party to a Security Agreement, an Intellectual
Property Security Agreement, a Mortgage and any other Collateral Document and to
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record in any appropriate
governmental office, any document or instrument reasonably deemed by the
Administrative Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens (including legal opinion, title insurance,
consents, corporate documents and any additional or substitute security
agreements or mortgages or deeds of trust). The Borrower will cause each such
Guarantor to take all actions reasonably requested by the Administrative Agent
(including, without limitation, the filing of UCC-1's) in connection with the
granting of such security interests.
(d) Promptly, and in any event not later than thirty (30) days after
a request by the Administrative Agent with respect thereto, (i) deliver to the
Administrative Agent as Collateral security the original of all instruments,
documents and chattel paper, and all other Collateral of which the
Administrative Agent determines it should have physical possession in order to
perfect and protect its security interest therein, duly pledged, endorsed or
assigned to the Administrative Agent without restriction; (ii) obtain landlord
waivers, in form and substance satisfactory to the Administrative Agent, with
respect to any Inventory or other Collateral located
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at a location that is not owned by the Borrower or a Subsidiary; (iii) deliver
to the Administrative Agent warehouse receipts covering any portion of the
Inventory or other Collateral located in warehouses and for which warehouse
receipts are issued; (iv) when an Event of Default exists, transfer Inventory to
locations designated by the Administrative Agent; (v) if any Collateral valued
in excess of $50,000.00 is at any time in the possession or control of any
warehousemen, bailee or the Borrower's agents or processors, notify the
Administrative Agent thereof and notify such person of the Administrative
Agent's security interest in such Collateral and obtain a landlord waiver or
bailee letter, in form and substance satisfactory to the Administrative Agent,
from such person and instruct such person to hold all such Collateral for the
Administrative Agent's account subject to the Administrative Agent's
instructions; (vi) if at any time any Inventory or other Collateral is located
on any real property of the Borrower which is subject to a mortgage or other
Lien, obtain a mortgagee waiver, in form and substance satisfactory to the
Administrative Agent, from the holder of each mortgage or other Lien on such
real property; and (vii) take all other reasonable actions and obtain all such
other agreements as the Administrative Agent may reasonably deem necessary or
desirable in respect of any Collateral.
(e) The security interests required to be granted pursuant to this
Section shall be granted pursuant to the Collateral Documents or, in the
Administrative Agent's discretion, such other security documentation (which
shall be substantially similar to the Collateral Documents already executed and
delivered by the Borrower and the Guarantors) as is satisfactory in form and
substance to the Administrative Agent (the "ADDITIONAL COLLATERAL DOCUMENTS")
and shall constitute valid and enforceable perfected security interests prior to
the rights of all third Persons and subject to no other Liens except Liens
permitted under Section 6.1. The Additional Collateral Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Administrative Agent, for the
benefit of the Lender Parties, granted pursuant to the Additional Collateral
Documents and, all taxes, fees and other charges payable in connection therewith
shall be paid in full by the Borrower. At the time of the execution and delivery
of Additional Collateral Documents, the Borrower shall cause to be delivered to
the Administrative Agent such agreements, opinions of counsel, and other related
documents as may be reasonably requested by the Administrative Agent or the
Required Lenders to assure themselves that this Section has been complied with.
Section 5.14 INTEREST RATE PROTECTION. On or prior to the Closing Date the
Borrower shall obtain and thereafter keep in effect one or more interest rate
Bank Hedge Agreements (the terms and other provisions of all such Bank Hedge
Agreements to be in form and substance satisfactory to Administrative Agent)
covering at least 50% of the Term A Advances outstanding on the Closing Date for
an aggregate period of not less than three (3) years commencing on the Closing
Date.
Section 5.15 PERFORMANCE OF MERGER DOCUMENTS. Perform and observe, or
cause the relevant Subsidiary to perform and observe, all of the terms and
provisions of each Merger Document to be performed or observed by it or such
Subsidiary, maintain each such Merger Document in full force and effect, enforce
each such Merger Document in accordance with its terms, take all such action
required or permitted under the Merger Documents to such end as
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may be from time to time reasonably requested by the Administrative Agent and,
upon request of the Administrative Agent, make such demands and requests for
action or for information and reports any Borrower or any Subsidiary is entitled
to make under any Merger Document.
Section 5.16 CASH CONCENTRATION OR BLOCKED ACCOUNTS. Promptly, and in any
event not later than thirty (30) days after the Closing Date, the Borrower will,
and will cause each of its Domestic Subsidiaries, if any, to, either (i)
maintain its main cash concentration accounts with the Administrative Agent or
(ii) establish blocked accounts (collectively, the "BLOCKED ACCOUNTS") with such
banks (collectively the "COLLECTING BANKS") as are acceptable to the
Administrative Agent (subject to irrevocable instructions acceptable to the
Administrative Agent as hereinafter set forth) to which all account debtors
shall directly remit all payments on Receivables and in which the Borrower will
immediately deposit all payments made for Inventory or other payments
constituting proceeds of Collateral in the identical form in which such payment
was made, whether by cash or check. The Borrower hereby irrevocably instructs
each Collecting Bank that, upon the occurrence and during the continuance of an
Event of Default, the Administrative Agent may instruct such Collecting Bank to
send by wire transfer all amounts deposited in the applicable Blocked Account(s)
to the Administrative Agent's Account or as the Administrative Agent shall
direct and that, upon receipt of any such instructions from the Administrative
Agent, such Collecting Bank shall promptly comply with all such instructions.
The occurrence of (a) an Event of Default and (b) the Administrative Agent so
instructing any Collecting Bank as provided in the immediately preceding
sentence is hereinafter referred to as a "CASH DOMINION EVENT." Prior to the
occurrence of a Cash Dominion Event, the Collecting Banks shall make all
available funds in the applicable Blocked Account(s) available to the Borrower.
ARTICLE VI
NEGATIVE COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower covenants that it will not, at any time, and will not permit any
Subsidiary to do, agree to do or permit to be done, any of the following without
the prior consent of the Required Lenders:
Section 6.1 LIENS, ETC. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character (including,
without limitation, Accounts, Inventory and other Collateral) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code or any other statute of any jurisdiction, a financing statement that names
the Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file any such financing
statement, or assign, or permit any of its Subsidiaries to assign, any accounts
or other right to receive income, EXCLUDING, HOWEVER, from the operation of the
foregoing restrictions the following:
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(a) Liens created under the Loan Documents;
(b) Permitted Liens;
(c) Liens existing on the date hereof and described on SCHEDULE
6.1(c);
(d) Purchase money Liens securing Debt permitted under Section
6.2(c)(i) upon real property or Equipment acquired or held by the Borrower or
any of its Subsidiaries in the ordinary course of business to secure the
purchase price of such real property or Equipment or to secure Debt incurred
solely for the purpose of financing the acquisition, construction or improvement
of any such real property or Equipment to be subject to such Liens, or Liens
existing on any such real property or Equipment at the time of acquisition
(other than any such Liens created in contemplation of such acquisition that do
not secure the purchase price), or extensions, renewals or replacements of any
of the foregoing for the same or a lesser amount; PROVIDED, HOWEVER, that no
such Lien shall extend to or cover any property other than the real property or
Equipment being acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced;
(e) Liens arising in connection with Capitalized Leases or Operating
Leases permitted under Section 6.2(c)(i) or Section 6.2(c)(ii), as applicable;
PROVIDED, that no such Lien shall extend to or cover any Collateral or any
assets other than the assets subject to such Capitalized Leases or Operating
Leases;
(f) Liens granted by Carsen as required or permitted under the
Canadian Credit Agreement; and
(g) The replacement, extension or renewal of any Lien permitted by
clauses (b) through (e) above upon or in the same property theretofore subject
thereto in connection with the replacement, extension or renewal (without
increase in the amount or any change in any direct or contingent obligor other
than insofar as Borrower is permitted to incur the Debt in connection therewith
pursuant to Section 6.2(c)(i)) of the Debt secured thereby.
Section 6.2 DEBT. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Debt other
than:
(a) In the case of the Borrower, (i) Debt incurred pursuant to the
Loan Documents and (ii) Debt owed to Carsen as a result of cash advances from
Carsen to Borrower after the date hereof which shall be repaid from time to
time;
(b) In the case of any of the Subsidiaries of the Borrower, Debt
owed to the Borrower or to a Wholly Owned Domestic Subsidiary of the Borrower;
PROVIDED, that such Debt shall be evidenced by an Intercompany Note, such
Intercompany Note is assigned and pledged to the Administrative Agent pursuant
to the terms of the Security Agreement and the Note Assignment Agreement and
there are no restrictions whatsoever on the ability of such Subsidiary to repay
such Debt;
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(c) In the case of the Borrower and any of its Subsidiaries:
(i) (A) Debt secured by Liens permitted by Section 6.1(d) not
to exceed in the aggregate $500,000.00 at any time outstanding, (B)
Capitalized Leases, collectively not to exceed in the aggregate
$250,000.00 at any time outstanding, (C) Operating Leases with a maximum
annual rental obligation collectively not to exceed in the aggregate
$1,500,000.00 at any time outstanding and (D) Surviving Debt existing on
the date hereof and described on SCHEDULE 4.19(b); and
(ii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(d) In the case of Carsen, Debt incurred pursuant to (i) the
Canadian Credit Agreement in an amount not to exceed $5,000,000.00 and (ii) the
hedging agreements permitted under Section 6.16(b).
Section 6.3 ACCOUNTS PAYABLE. No accounts payable of the Borrower or any
of its Subsidiaries arising from the purchase of property or services,
including, without limitation, Inventory acquired for resale shall be
outstanding for longer than 120 days from the date of incurrrence, except (a)
accounts payable which by their terms become payable after 120 days from
incurrence or (b) accounts payable that are subject to good faith dispute by the
Borrower.
Section 6.4 FUNDAMENTAL CHANGES.
(a) Merge into or consolidate with any Person or permit any Person
to merge into it, or permit any of its Subsidiaries to do so, except that so
long as no Default or Event of Default shall have occurred and be continuing and
so long as no Default or Event of Default would result therefrom, any Subsidiary
of the Borrower may merge into or consolidate with any other Subsidiary of the
Borrower or the Borrower, as the case may be, provided that in the case of any
such merger or consolidation, the Person resulting from such merger or
consolidation shall be the Borrower or a Wholly Owned Subsidiary of a Borrower,
as the case may be;
(b) Liquidate, wind-up or dissolve itself (or suffer any liquidation
or dissolution), convey, sell, assign, lease, transfer or otherwise dispose of
(or agree to do any of the foregoing at any future time) all or substantially
all of its property, business or assets, or permit any of its Subsidiaries to do
any of the foregoing; or
(c) Acquire or permit any Subsidiary to acquire all or substantially
all of the assets of any other Person (including capital stock).
Section 6.5 SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets or grant any option or other right to purchase,
lease or otherwise acquire any assets, except:
(a) Sales of Inventory in the ordinary course of business;
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(b) Sales of obsolete Equipment in the ordinary course of
business;
(c) The sale of any asset by the Borrower or any of its Subsidiaries
(other than an asset included in Section 6.5(a), (b) or (d)) so long as (i) the
purchase price paid to the Borrower or such Subsidiary for such asset shall be
no less than the fair market value of such asset at the time of such sale, (ii)
the purchase price for such asset shall be paid to the Borrower or such
Subsidiary solely in cash and (iii) the aggregate purchase price paid to the
Borrower and all of its Subsidiaries for such asset and all other assets sold by
the Borrower and its Subsidiaries (other than an asset included in Section
6.5(a), (b) or (d)) in any Fiscal Year pursuant to this clause (c) shall not
exceed $250,000.00; and
(d) Sales of assets (other than an asset included in Section 6.5(a),
(b) or (c)) the aggregate purchase price of which in any Fiscal Year does not
exceed $100,000.00.
PROVIDED that in the case of sales of assets pursuant to Section 6.5(d), the
Borrower shall apply the entire Net Cash Proceeds from such sale in accordance
with Section 2.6(b)(ii) in so far as applicable.
Section 6.6 INVESTMENTS IN OTHER PERSONS. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person other than:
(a) Investments by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and described on SCHEDULE 6.6(a),
and additional investments in Wholly Owned Subsidiaries of the Borrower;
PROVIDED, HOWEVER, that no more than an aggregate amount equal to $2,000,000.00
outstanding at any time in addition to amounts previously invested shall be
invested from the date hereof in Foreign Subsidiaries; and, PROVIDED, FURTHER,
that with respect to Investments in any newly acquired or created Wholly Owned
Subsidiary (other than a Foreign Subsidiary), any such Subsidiary shall become a
Guarantor pursuant to the terms of the Subsidiary Guaranty and an additional
grantor pursuant to the terms of the Security Agreement and Intellectual
Property Security Agreement and otherwise comply with Section 5.13;
(b) Loans and advances to officers and other employees in the
ordinary course of the business of the Borrower and its Subsidiaries in an
aggregate principal amount not to exceed $250,000.00 at any time outstanding;
(c) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(d) Investments by the Borrower and its Subsidiaries in Bank
Hedge Agreements permitted under Section 5.14;
(e) Investments consisting of intercompany Debt permitted under
Section 6.2(b);
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(f) Investments existing on the date hereof and described on
SCHEDULE 6.6(f) hereto;
(g) Investments by the Borrower and its Subsidiaries in deposit
accounts opened in the ordinary course of business and otherwise in compliance
with Section 5.16;
(h) Investments consisting of accounts receivable in the
ordinary course of business; and
(i) Investments consisting of other marketable securities the
aggregate purchase price of which shall not exceed $500,000.00.
Section 6.7 DIVIDENDS, ETC. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of the Borrower or any warrants, rights or options to acquire such capital
stock or to issue or sell any such capital stock or any warrants, rights or
options to acquire such capital stock, except:
(a) The Borrower may declare and pay dividends and
distributions payable solely in common stock of the Borrower;
(b) A Subsidiary of the Borrower may declare and pay dividends
and distributions to the Borrower;
(c) The Borrower may consummate the Merger;
(d) For issuances of stock expressly permitted by Section 6.18;
and
(e) Stock acquired as the purchase price for stock to be issued
pursuant to a Stock Option Plan or pursuant to any other stock option issued by
the Borrower.
Section 6.8 CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
Section 6.9 CHARTER AMENDMENTS. Amend, or permit any of its Subsidiaries
to amend, its certificate or articles of incorporation or bylaws if such
amendment could impair the interests or rights of the Administrative Agent or
any Lender Party.
Section 6.10 ACCOUNTING CHANGES. Make or permit any change in (a)
accounting policies or reporting practices, except as mandated or permitted by
GAAP, or (b) its Fiscal Year.
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Section 6.11 PREPAYMENTS, ETC. OF DEBT. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Debt, other than (i) the prepayment of the Advances in accordance with the terms
of this Agreement (ii) regularly scheduled or required repayments or redemptions
of Surviving Debt and (iii) the prepayment of payables in the ordinary course of
business in connection with any discounting arrangements, (b) amend, modify or
change in any manner any term or condition of any Existing Debt or Surviving
Debt, or (c) permit any of its Subsidiaries to do any of the foregoing other
than to repay any Debt payable to the Borrower, PROVIDED, THAT, Carsen shall be
permitted to prepay Debt as required or permitted under the Canadian Credit
Agreement.
Section 6.12 AMENDMENT, ETC. OF MERGER DOCUMENTS. Cancel or terminate any
Merger Document or consent to or accept any cancellation or termination thereof,
amend, modify or change in any manner any term or condition of any Merger
Document or give any consent, waiver or approval thereunder, waive any default
under or any breach of any term or condition of any Merger Document or take any
other action in connection with any Merger Document that would, in any such
case, impair the value of the interests or rights of the Borrower thereunder, or
would impair the interests or rights of the Administrative Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing.
Section 6.13 AMENDMENT, ETC. OF MATERIAL CONTRACTS. Cancel or terminate
any Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of any Material
Contract or take any other action in connection with any Material Contract in
any said events that would materially impair the value of the interests or
rights of the Borrower thereunder or that could impair the interests or rights
of the Administrative Agent or any Lender Party, or permit any of their
Subsidiaries to do any of the foregoing.
Section 6.14 NEGATIVE PLEDGE. Enter into or suffer to exist, or permit any
of the Subsidiaries of the Borrower to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of any Lien
upon any of its properties or assets, other than as provided in the Loan
Documents.
Section 6.15 PARTNERSHIPS, NEW SUBSIDIARIES.
(a) Become a general partner in any general or limited
partnership or joint venture or permit any of its Subsidiaries to do so, or
(b) Create any new Subsidiary, unless the Borrower and such
Subsidiary comply with Section 5.13, including, without limitation, by causing
such newly created Subsidiary to become a Guarantor pursuant to the terms of the
Subsidiary Guaranty and an additional grantor pursuant to the terms of the
Security Agreement and Intellectual Property Security Agreement and all shares
of the capital stock of such Subsidiary (or 65% of the shares, in the case of
Foreign Subsidiaries, unless such shares are required to be pledged under the
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Canadian Credit Agreement) to be pledged to the Administrative Agent pursuant to
the Security Agreement.
Section 6.16 SPECULATIVE TRANSACTIONS. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or derivatives or any similar speculative transactions, except
for (a) Bank Hedge Agreements expressly permitted under Section 5.14, (b)
hedging agreements used by Carsen to mitigate the financial risk of currency
fluctuations between the U.S. Dollar and the Canadian Dollar which shall not
exceed twelve (12) months in duration and shall be in an aggregate notional
amount not to exceed $20,000,000.00 outstanding at any time and (c) hedging
agreements used by Minntech to mitigate the financial risk of currency
fluctuations between the U.S. Dollar and either the Eurodollar or the Japanese
Yen which shall not exceed twelve (12) months in duration and shall be in an
aggregate notional amount not to exceed $12,000,000.00 outstanding at any time.
Section 6.17 CAPITAL EXPENDITURES. Make, or permit any of its Subsidiaries
to make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Borrower and its Subsidiaries in any Fiscal
Year to exceed $4,000,000.00 for such Fiscal Year.
Section 6.18 ISSUANCE OF STOCK. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, issue, sell, assign, pledge
or otherwise encumber or dispose of any shares of capital stock of the Borrower
or any Subsidiary of the Borrower, except (a) to the Borrower, (b) to qualify
directors if required by applicable law, (c) as set forth in SCHEDULE 6.18, (d)
pursuant to the Merger in accordance with the Merger Documents (e) by the
Borrower in connection with the exercise of any stock options issued pursuant to
a stock option, grant or stock purchase plan permitted hereunder, and (f)
issuances of capital stock of the Borrower but only on the condition that no
such instrument or security by its terms shall mandate or require the Borrower
to, and no holder thereof shall have the right to require the Borrower to, (i)
declare or pay any cash dividends or cash distributions in respect thereof or
(ii) purchase, redeem, retire, defease or otherwise acquire for cash any of its
capital stock, warrants, options or rights to acquire such capital stock or
(iii) issue securities in respect thereof which payments of or in respect of
which are not subordinate to the Obligations under the Loan Documents; and,
PROVIDED, FURTHER that no such capital stock shall contain any rights, whether
or not on conversion or otherwise that, if exercisable or exercised on the date
of issuance could result in a Change of Control, or if exercisable or exercised
at any time thereafter could reasonably be expected to result in a Change of
Control, and any references in this Agreement to permitted issuances of capital
stock of the Borrower shall be subject to the terms of this subsection 6.18(e).
Section 6.19 GUARANTEED OBLIGATIONS. Create, incur, assume or permit to
exist, or permit any of its Subsidiaries to create, incur, assume or permit to
exist, any Guaranteed Obligations except (a) by endorsement of instruments or
items of payment for deposit to the general account of any Loan Party, (b) for
Guaranteed Obligations set forth on SCHEDULE 6.19.
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Section 6.20 TOTAL LIABILITIES TO TOTAL CAPITALIZATION OF CARSEN. The
Borrower will not permit, as of the end of each fiscal quarter of Carsen,
Carsen's ratio of Total Liabilities to Total Capitalization (calculated in
Canadian Dollars) to be greater than 0.50 to 1.00.
ARTICLE VII
REPORTING REQUIREMENTS
So long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will furnish to the Administrative Agent and Lender Parties:
Section 7.1 DEFAULT NOTICE. As soon as possible and in any event within
two (2) Business Days after a Responsible Officer of the Borrower obtains
knowledge of the occurrence of any Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect, a statement of
the President or a Vice President of the Borrower setting forth details of such
Default or event, development or occurrence and the action that the Borrower has
taken and proposes to take with respect thereto.
Section 7.2 QUARTERLY FINANCIALS. At the earlier of the date of filing
with the Securities and Exchange Commission of Borrower's quarterly report on
form 10-Q or fifty (50) days after the end of each fiscal quarter of each Fiscal
Year, a Consolidated balance sheet of the Borrower and its Subsidiaries, and
consolidating balance sheet of the Borrower and its Subsidiaries, as of the end
of such quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries, and a
consolidating statement of income of the Borrower and its Subsidiaries, for the
period commencing at the end of the previous fiscal quarter and ending with the
end of such fiscal quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries and a
consolidating statement of income of the Borrower and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending with the end
of such fiscal quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding Fiscal Year,
all in reasonable detail and duly certified by the President or a Vice President
of the Borrower as having been prepared in accordance with GAAP (subject to
year-end type adjustments), together with (i) a certificate of said officer
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto and (ii) a
schedule in form satisfactory to the Administrative Agent of the computations
used by the Borrower in determining compliance with the financial covenants
contained in Article 8, PROVIDED, that in the event of any change in GAAP used
in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Article 8, a
statement of reconciliation conforming such financial statements to GAAP;
PROVIDED, FURTHER, that to the extent that comparable information is set forth
in the Borrower's quarterly report on form 10-Q filed with the Securities and
Exchange Commission for each such quarter, delivery to the Administrative Agent
and the Lender Parties of such 10-Q within the time period specified above shall
be acceptable for purposes of this SECTION 7.2.
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Section 7.3 ANNUAL FINANCIALS. At the earlier of the date of filing with
the Securities and Exchange Commission of Borrower's annual report on Form 10-K
or one hundred five (105) days after the end of each Fiscal Year, a copy of the
annual audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries, and consolidating balance sheet of Borrower and its Subsidiaries,
as of the end of such Fiscal Year and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries, and a
consolidating statement of income of the Borrower and its Subsidiaries, for such
Fiscal Year, in each case setting forth in comparative form the corresponding
figures for the prior Fiscal Year in the case of such Consolidated financial
statements accompanied by an opinion acceptable to the Administrative Agent of
Ernst & Young LLP or other independent certified public accountants of
recognized national standing acceptable to the Administrative Agent, with the
consent of the Required Lenders, together with (a) a letter of such accounting
firm to the Administrative Agent and Lender Parties stating that in the course
of the regular audit of the business of the Borrower and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge that
a Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (b) a schedule in form satisfactory to the Administrative Agent
of the computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Article 8,
PROVIDED, that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Article 8, a statement of reconciliation
conforming such financial statements to GAAP and (c) a certificate of the
President or a Vice President of the Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto.
Section 7.4 ANNUAL FORECASTS. As soon as available and in any event no
later than sixty (60) days after the end of each Fiscal Year, (i) forecasts
prepared by management of the Borrower, including balance sheets, income
statements and cash flow statements on a quarterly basis, prepared on a basis
consistent with the financial statements delivered pursuant to Sections 7.2 and
7.3 and (ii) a business plan, in each case for the Fiscal Year following such
Fiscal Year then ended and in form reasonably satisfactory to the Administrative
Agent.
Section 7.5 ERISA EVENTS AND ERISA REPORTS. (i) Promptly and in any event
within twenty (20) days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the President
or a Vice President of the Borrower describing such ERISA Event and the action,
if any, that such Loan Party or such ERISA Affiliate has taken and proposes to
take with respect thereto and (ii) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and information.
Section 7.6 PLAN TERMINATIONS. Promptly and in any event within five (5)
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate,
copies of each notice from
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the PBGC stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan or correspondence from the PBGC indicating it
is considering termination of any Plan.
Section 7.7 ACTUARIAL REPORTS. Promptly upon receipt thereof by any Loan
Party or any ERISA Affiliate, a copy of the annual actuarial valuation report
for each Plan the funded current liability percentage (as defined in Section
302(d)(8)(B) of ERISA) of which is less than 90% or the unfunded current
liability (as defined in Section 302(d)(8)(A) of ERISA) of which exceeds
$500,000.00 or the present value of benefit liabilities as of the latest
actuarial valuation date for such Plan (but not prior to 12 months prior to the
date hereof), determined on the basis of a shut down of the company in
accordance with actuarial assumptions used by the PBGC in single-employer plan
terminations, exceeds the market value of assets exclusive of any contributions
due to the Plan by $500,000.00.
Section 7.8 PLAN ANNUAL REPORTS. Upon the request, from time to time, of
the Administrative Agent, promptly and in any event within thirty (30) days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan (to the extent applicable).
Section 7.9 ANNUAL PLAN SUMMARIES. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, an annual summary of
actuarial valuation and other information with respect to each Plan in form,
substance and detail satisfactory to the Administrative Agent.
Section 7.10 MULTIEMPLOYER PLAN NOTICES. Promptly and in any event within
five (5) Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning, or other correspondence with respect to, (i) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (iii) the amount of liability incurred, or that may be incurred, by such
Loan Party or any ERISA Affiliate in connection with any event described in
clause (i) or (ii).
Section 7.11 LITIGATION. Promptly after the commencement thereof, notice
of all material actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board, bureau, agency
or instrumentality, Federal, state, local or foreign, affecting any Loan Party
or any of its Subsidiaries and, promptly after the occurrence thereof, notice of
any Material Adverse Change in the status or the financial effect on any Loan
Party or any of its Subsidiaries of the Disclosed Litigation from that described
on SCHEDULE 4.9.
Section 7.12 SECURITIES REPORTS. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports that
any Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration statements,
that any Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any other governmental authority or with any national
securities exchange.
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Section 7.13 CREDITOR REPORTS. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Loan Party or of any of its Subsidiaries pursuant to the terms
of any indenture, loan or credit agreement or similar agreement or instrument
and not otherwise required to be furnished to the Lender Parties pursuant to any
other clause of this Article 7.
Section 7.14 AGREEMENT NOTICES. Promptly upon the sending or receipt
thereof, copies of all notices, requests and other documents sent or received by
any Loan Party or any of its Subsidiaries under or pursuant to any Material
Contract or indenture, loan or credit agreement or similar agreement or
instrument regarding or related to any breach or default by any party thereto or
any event that could materially impair the value of the interests or the rights
of any Loan Party or any of its Subsidiaries or otherwise have a Material
Adverse Effect and copies of any amendment, modification or waiver of any
provision of any Contract or indenture, loan or credit agreement or similar
agreement or indenture and, from time to time upon request by the Administrative
Agent, such information and reports regarding the foregoing as the
Administrative Agent may reasonably request.
Section 7.15 REVENUE AGENT REPORTS. Within ten (10) days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth any adjustments to the Federal income tax liability of
the affiliated group (within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which the Borrower is a member aggregating $250,000.00 or more.
Section 7.16 ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect.
Section 7.17 REAL PROPERTY. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report supplementing SCHEDULES 4.21 and 4.22 hereto,
including an identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a list and
description (including the street address, county or other relevant
jurisdiction, state, record owner and, in the case of leases of property,
lessor, lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such Fiscal Year and a description of such
other changes in the information included in such Schedules as may be necessary
for such Schedules to remain accurate and complete in all respects.
Section 7.18 INSURANCE. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report summarizing the insurance coverage (specifying type,
amount and carrier) in effect for each Loan Party and its Subsidiaries and
containing such additional information as the Administrative Agent may
reasonably request.
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Section 7.19 BORROWING BASE CERTIFICATE. As soon as available and in any
event within twenty (20) calendar days after the end of each month, a Borrowing
Base Certificate, as at the end of the previous month, certified by the
President or a Vice President of the Borrower.
Section 7.20 MANAGEMENT LETTERS. As soon as available and in any event
within five (5) Business Days after the receipt thereof, copies of any
"management letter" or similar letter received by a Borrower or its Board of
Directors (or any Committee thereof) from its independent public accountants.
Section 7.21 EXTRAORDINARY OR UNUSUAL ITEMS. As soon as possible but in
any event within thirty (30) days after, the accrual of any extraordinary or
unusual item that might be deducted in determining net income of a Borrower or
any of its Subsidiaries, notice thereof.
Section 7.22 MONTHLY ACCOUNTS RECEIVABLE AGING REPORTS ETC. As soon as
available, but in any event within twenty (20) days after the close of each
month during each Fiscal Year, a monthly accounts receivable aging report in
summary form only, setting forth the amounts due and owing to Borrower and its
Subsidiaries, respectively, as of the close of the preceding month.
Section 7.23 OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries or the
Collateral as the Administrative Agent or any Lender Party (through the
Administrative Agent) may from time to time reasonably request.
ARTICLE VIII
FINANCIAL COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower and its Subsidiaries on a Consolidated basis, will:
Section 8.1 MINIMUM EBITDA. Maintain for each period set forth below
EBITDA at not less than the respective amounts set forth below:
FOUR FISCAL QUARTERS ENDING ON: MINIMUM EBITDA
------------------------------- --------------
4/30/01 $15,250,000.00
7/31/01 $15,500,000.00
10/31/01 $16,000,000.00
1/31/02 $16,000,000.00
4/30/02 $16,000,000.00
7/31/02 $17,500,000.00
10/31/02 $17,500,000.00
1/31/03 $18,000,000.00
4/30/03 $18,000,000.00
7/31/03 and each fiscal quarter thereafter $20,000,000.00
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Section 8.2 CONSOLIDATED DEBT TO EBITDA RATIO. Maintain as of the end of
each fiscal quarter of the Borrower a ratio of Consolidated Debt to EBITDA for
the most recently completed four fiscal quarters of the Borrower of not more
than the ratio set forth below:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------- -----
4/30/01 2.60
7/31/01 2.60
10/31/01 2.60
1/31/02 2.60
4/30/02 2.60
7/31/02 2.00
10/31/02 2.00
1/31/03 2.00
4/30/03 2.00
7/31/03 1.75
10/31/03 1.75
1/31/04 1.75
4/30/04 1.75
7/31/04 and each fiscal quarter thereafter 1.50
Section 8.3 FIXED CHARGE COVERAGE RATIO. Maintain as of the end of each
fiscal quarter of the Borrower a ratio of (i) EBITDA for the most recently
completed four fiscal quarters of the Borrower, LESS Capital Expenditures made
by the Borrower and its Subsidiaries during such period, LESS the aggregate
amount of federal, state, local and foreign taxes paid or accrued by the
Borrower and its Subsidiaries during such period, LESS cash dividends paid or
accrued by the Borrower to the holders of its common stock during such period,
to the (ii) sum of (x) Interest Expense paid or payable by its terms by the
Borrower and its Subsidiaries on all Debt during such period PLUS (y) principal
amounts of all Debt paid or payable by its terms by the Borrower and its
Subsidiaries during such period, of not less than the ratio set forth below for
such period:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------- -----
4/30/01 1.20
7/31/01 1.20
10/31/01 1.20
1/31/02 1.20
4/30/02 1.20
7/31/02 1.35
10/31/02 1.35
1/31/03 1.35
4/30/03 1.35
7/31/03 and each Fiscal Quarter thereafter 1.50
Section 8.4 MINIMUM AVAILABLE ADJUSTED U.S. CASHFLOW COVERAGE RATIO. So
long as the ratio of Consolidated Debt to EBITDA is greater than or equal to
1.50:1, maintain as of the end of each fiscal quarter of the Borrower a ratio of
(i) U.S. EBITDA for the most recently completed four fiscal quarters of the
Borrower, PLUS dividends received from Foreign
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Subsidiaries (net of applicable withholding taxes), to (ii) the sum of the
Borrower and its Subsidiaries U.S. Fixed Charges during such period, of not less
than 1.10:1.
ARTICLE IX
EVENTS OF DEFAULT
If any of the following ("EVENTS OF DEFAULT") shall occur and be
continuing:
Section 9.1 PAYMENT. (a) The Borrower shall fail to pay any principal of
any Advance when the same shall become due and payable or (b) the Borrower shall
fail to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause (b)
within two (2) Business Days after the same becomes due and payable; or
Section 9.2 REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made by any Loan Party (or any of its officers) under or in connection with any
Loan Document shall prove to have been incorrect in any material respect when
made or confirmed; or
Section 9.3 CERTAIN COVENANTS. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section 2.14, 5.5, 5.6,
5.7, 5.13, 5.14, 5.15 or 5.16, Article 6 or Article 8; or
Section 9.4 OTHER COVENANTS. Any Loan Party shall fail to perform any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for thirty (30)
days after the earlier of the date on which (a) a Responsible Officer of any
Loan Party becomes aware of such failure or (b) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender Party;
or
Section 9.5 OTHER DEFAULTS. Any Loan Party or any of its Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal or notional
amount of at least $100,000.00 either individually or in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt, in each case if the effect of such event or condition
is to accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
Section 9.6 BANKRUPTCY, ETC. Any Loan Party or any of its Subsidiaries
shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts
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generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against any Loan Party or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of sixty (60) days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur, or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
Section 9.6; or
Section 9.7 JUDGMENTS.
(a) Any judgment or order for the payment of money in excess of
$250,000.00 (other than such a judgment or order as to which all amounts in
excess of $250,000.00 are covered by insurance for which the appropriate insurer
has acknowledged responsibility in writing) shall be rendered against any Loan
Party or any of its Subsidiaries and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii) there
shall be a period of seven (7) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(b) Any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect; or
Section 9.8 LOAN DOCUMENTS. Any material provision of any Loan Document
after delivery thereof shall for any reason cease to be valid and binding on or
enforceable against any Loan Party which is party to it, or any such Loan Party
shall so state in writing; or
Section 9.9 LIENS. Any Collateral Document after delivery thereof shall
for any reason cease to or otherwise not create a valid and perfected first
priority lien on and security interest in the Collateral purported to be covered
thereby; or
Section 9.10 CHANGE OF CONTROL. Any Change of Control shall occur; or
Section 9.11 ERISA EVENTS.
(a) Any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of the last such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist
(or the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Events) exceeds $100,000.00; or
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(b) Any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability
to such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $100,000.00 or requires payments exceeding $100,000.00
per annum; or
(c) Any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $100,000.00; or
Section 9.12 BORROWING BASE DEFICIENCY. Any Borrowing Base Deficiency
shall occur and be continuing which is not eliminated by the Borrower's
prepayment within seven (7) Business Days of then outstanding Swing Line
Advances or Revolving Credit Advances in an amount sufficient to eliminate such
Borrowing Base Deficiency;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each appropriate Lender (other than the Commitment in
respect of Letter of Credit Advances by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.3(c) and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.2(b)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest and all such
other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower, (B) by notice to each party required
under the terms of any agreement in support of which a Standby Letter of Credit
is issued, request that all Obligations under such agreement be declared to be
due and payable; PROVIDED, HOWEVER, that in the event of an actual or deemed
entry of an order for relief with respect to any Loan Party or any of its
Subsidiaries under the Federal Bankruptcy Code, (x) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by the Issuing
Bank or a Revolving Credit Lender pursuant to Section 2.3(c) and Swing Line
Advances by a Revolving Credit Lender pursuant to Section 2.2(b)) and of the
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(y) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower and (C)
pursue any and all rights and remedies available under this Agreement or the
other Loan Documents.
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If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Article 9
or otherwise, make demand upon the Borrower to, and forthwith upon such demand
the Borrower will, pay to the Administrative Agent on behalf of the Lender
Parties in same day funds at the Administrative Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the Administrative Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE X
THE ADMINISTRATIVE AGENT
Section 10.1 AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender, the Issuing Bank, the Swing Line Bank and any Hedge
Bank) hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
PROVIDED, HOWEVER, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement, any other Loan Document or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice and other material information given to it by the Borrower pursuant to
the terms of this Agreement. The Administrative Agent shall not be a trustee or
fiduciary for any Lender.
Section 10.2 AGENT'S RELIANCE, ETC. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 11.7; (b) may consult
with legal counsel (including counsel for any Loan
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Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender Party and shall not be
responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 10.3 FLEET AND AFFILIATES. With respect to its Commitments, the
Advances made by it and the Notes issued to it, Fleet shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
Fleet in its individual capacity. Fleet and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, any
Loan Party, any of its Subsidiaries and any Person who may do business with or
own securities of any Loan Party or any such Subsidiary, all as if Fleet were
not the Administrative Agent and without any duty to account therefor to the
Lender Parties.
Section 10.4 LENDER PARTY CREDIT DECISION. Each Lender Party acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
Section 10.5 INDEMNIFICATION.
(a) Each Lender Party severally agrees to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of any of the Loan
Documents or any action taken or omitted by the Administrative Agent under any
of the Loan Documents; PROVIDED, HOWEVER, that
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no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse the Administrative Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Borrower under Section 11.4, to the
extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Issuing Bank under any of the Loan Documents; PROVIDED, HOWEVER,
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Issuing Bank promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 11.4, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower.
(c) For purposes of Sections 10.5(a) and 10.5(b), the Lender
Parties' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (iii) the aggregate unused portions of their
respective Term A Commitments at such time, and (iv) their respective Unused
Revolving Credit Commitments at such time; PROVIDED, that the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank and Letter
of Credit Advances owing to the Issuing Bank shall be considered to be owed to
the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender Party's Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 10.5 to
the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Administrative Agent or the Issuing Bank, as the case may
be, promptly upon demand for its ratable share of any amount required to be paid
by the Lender Parties to the Administrative Agent or the Issuing Bank, as the
case may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse the Administrative Agent or the Issuing Bank,
as the case may be, for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreements of any Lender Party hereunder, the agreement and
obligations of each Lender
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Party contained in this Section 10.5 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
Section 10.6 SUCCESSOR ADMINISTRATIVE AGENTS. The Administrative Agent may
resign as to any or all of the Facilities at any time by giving ten (10) days
prior written notice thereof to the Lender Parties and the Borrower and may be
removed as to all of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been
removed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within thirty
(30) days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lender
Parties, appoint a successor Administrative Agent, which shall be a Lender which
is a commercial bank organized under the laws of the United States or of any
State thereof and having a combined capital and surplus of at least
$500,000,000.00. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent as to all of the Facilities and
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations under this Agreement and the
other Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent as to any Facilities under this Agreement.
Section 10.7 EVENTS OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment of principal of or interest on Loans) unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
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Administrative Agent shall give notice thereof to the Lenders (and shall give
each Lender notice of each such non-payment). The Administrative Agent shall
(subject to Section 10.2(b) hereof) take such action with respect to such
Default as shall be directed by the Required Lenders.
Section 10.8 DOCUMENTATION AGENT. The parties hereto acknowledge and agree
that neither PNC Bank, National Association, nor any Lender which hereafter
becomes Documentation Agent shall have, by reason of its designation as
Documentation Agent, any power, duty, responsibility or liability whatsoever
under this Agreement or any other Loan Document.
ARTICLE XI
MISCELLANEOUS
Section 11.1 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders and Revolving Credit Lenders
holding greater than 51% of the aggregate Revolving Credit Commitments, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; PROVIDED, HOWEVER, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) change the percentage of (A) the Commitments,
(B) the aggregate unpaid principal amount of the Advances or (C) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder; (ii)
release Collateral with a value exceeding $500,000.00 in the aggregate (except
if the sale or other disposition of such Collateral is permitted under this
Agreement or one of the other Loan Documents) or permit the creation,
incurrence, assumption or existence of any Lien on any material portion of the
Collateral in any transaction or series of related transactions to secure any
liabilities or obligations other than Obligations owing to the Secured Parties
under the Loan Documents; (iii) release any of the Guarantors from their
Guaranty; (iv) amend this Section 11.1 or the definition of "Required Lenders";
or (v) limit the liability of any Loan Party under any of the Loan Documents and
(b) no amendment, waiver or consent shall, unless in writing and signed by the
Required Lenders and each Lender that has a Commitment under the Term A
Facility, or Revolving Credit Facility if affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender or subject such Lender to
any additional obligations, (ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender, (iii) change any date fixed for any payment of principal of, or interest
on, the Notes held by such Lender or any fees or other amounts payable hereunder
to such Lender or (iv) change the order of application of any prepayment set
forth in Section 2.6 in any manner that materially affects such Lender;
PROVIDED, FURTHER, that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
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obligations of the Swing Line Bank or the Issuing Bank, as the case may be,
under this Agreement or any other Loan Document; and PROVIDED, FURTHER, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document.
Section 11.2 NOTICES ETC. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered,
(a) if to the Borrower:
Cantel Medical Corp.
Overlook at Great Notch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Controller
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Administrative Agent:
Fleet National Bank
1185 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Initial Lender or the Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on SCHEDULE I attached
hereto.
(d) if to any other Lender Party, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party;
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when mailed by certified mail, return receipt
requested, telegraphed, telecopied or telexed, be effective 3 days after
mailing, upon delivery to the telegraph company, upon transmission by telecopier
or upon confirmation by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article 2, 3 or 10 shall
not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of this Agreement, the Notes or any other
Loan Document or of any Exhibit hereto or thereto or of any amendment or waiver
of any provision thereof shall be as effective as delivery of a manually
executed counterpart thereof.
Section 11.3 NO WAIVER; REMEDIES. No failure on the part of any Lender
Party or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note or under any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. Administrative Agent's and Lenders' rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
that Agent or any Lender may have under any other agreement, including the other
Loan Documents, by operation of law or otherwise. Recourse to the Collateral
shall not be required.
Section 11.4 COSTS AND EXPENSES.
(a) The Borrower agrees to pay on demand (i) all reasonable costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of the Loan
Documents (including, without limitation, (A) all reasonable due diligence,
collateral review, syndication (including printing,
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distribution and bank meetings), transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses, and (B) the fees and expenses of counsel for the Administrative Agent
with respect thereto, with respect to advising the Administrative Agent as to
its rights and responsibilities, or the perfection, protection or preservation
of rights or interests under the Loan Documents, with respect to negotiations
with any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Administrative Agent and the
Lender Parties in connection with the enforcement of the Loan Documents, whether
in any action, suit or litigation or any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise (including,
without limitation, the fees and expenses of counsel for the Administrative
Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their respective Affiliates
and their respective officers, directors, employees, agents and advisors (each,
an "INDEMNIFIED PARTY") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) 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, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Transaction, (ii) any acquisition or proposed
acquisition or similar business combination or proposed business combination by
the Borrower or any of its Subsidiaries or other Affiliates of all or any
portion of the shares of capital stock or substantially all of the property and
assets of any other Person, (iii) the Facilities, the actual or proposed use of
the proceeds of the Advances or the Letters of Credit by a Borrower or any of
its Subsidiaries or other Affiliates and any of the other transactions
contemplated by the Loan Documents, or (iv) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, officers, employees,
stockholders or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the Transaction is consummated,
except to the extent such claim, damage, loss, liability 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.
The Borrower also agrees not to assert any claim against the Administrative
Agent, any Lender Party or any of their respective Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Facilities, the actual or proposed use of
the proceeds of the Advances or the Letters of Credit, the Loan Documents or any
of the Transaction, other than claims for direct, as opposed to consequential,
damages.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last
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day of the Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.9(b)(i) or 2.10(d) or a prepayment pursuant to
Section 2.6(a) or (b), acceleration of the maturity of the Notes pursuant to
Article 9 or for any other reason, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or re-employment of deposits or
other funds required by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
11.4 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
Section 11.5 RIGHT OF SET-OFF. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Article 9 to authorize the Administrative
Agent to declare the Notes due and payable pursuant to the provisions of Article
9, each Lender Party and each of its respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender Party or such Affiliate to or for the credit or the
account of the Borrower or any of its Subsidiaries against any and all of the
Obligations of the Borrower now or hereafter existing under this Agreement and
the Note or Notes (if any) held by such Lender Party, irrespective of whether
such Lender Party shall have made any demand under this Agreement or such Note
or Notes and although such obligations may be unmatured. Each Lender Party
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application; PROVIDED, HOWEVER, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender Party and its respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender Party and its respective Affiliates may have
at law, in equity or otherwise.
Section 11.6 BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender and the
Initial Issuing Bank that each such Initial Lender and the Initial Issuing Bank
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to
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assign any of its rights hereunder or any interest herein without the prior
written consent of the Lender Parties.
Section 11.7 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations in respect of one or more Facilities
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); PROVIDED, HOWEVER, that (i) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an assignment
of all of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000.00, (ii)
no such assignment shall be permitted if, immediately after giving effect
thereto, the Borrower would be required to make payments to or on behalf of the
assignee Lender Party pursuant to Section 2.10(a) or (b) and the assignor Lender
Party was not, at the time of such assignment, entitled to receive any payment
pursuant to Section 2.10(a) or (b), and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,000.00.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (y) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee
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confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.6 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) 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 or Issuing Bank, as the
case may be.
(d) The Administrative Agent shall maintain at its address referred
to in Section 11.2 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 Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment and the appropriate processing and reconciliation fee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of EXHIBIT A hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. In the case of any
assignment by a Lender, within five (5) Business Days after its receipt of such
notice, the Borrower shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under a
Facility pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder under such Facility, a new Note to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit C, D and/or E hereto, as the
case may be .
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; PROVIDED,
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HOWEVER, that (i) each such assignment shall be to an Eligible Assignee and (ii)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with (other than in the case of an
assignment by a Lender to an Affiliate of such Lender) a processing and
recordation fee of $3,000.00.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes, if any, held by it); PROVIDED, HOWEVER, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment, waiver or other modification of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Loan Party therefrom, except to the extent that such amendment, waiver,
modification or consent would reduce the principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; PROVIDED, HOWEVER, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
Section 11.8 EXECUTION IN COUNTERPARTS. This Agreement 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 a signature page to this Agreement by
telecopier shall be as effective as delivery of a manually executed counterpart
of this Agreement.
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Section 11.9 NO LIABILITY OF THE ISSUING BANK. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers, directors, employees or agents shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrowers prove were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit comply with the terms of the
Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
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.
Section 11.10 CONFIDENTIALITY. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender Party's Affiliates and their officers, directors, employees, agents
and advisors and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
Section 11.11 FURTHER ASSURANCES. (a) At any time and from time to time,
upon the request of the Administrative Agent, the Borrower and each other Loan
Party shall execute, deliver and acknowledge or cause to be executed, delivered
or acknowledged, such further documents and instruments and do such further acts
as the Administrative Agent may reasonably request in order to fully affect the
purposes of this Agreement, the other Loan Documents and any other agreements,
instruments and documents delivered pursuant hereto or in connection with the
Facilities.
(b) Upon receipt of an affidavit of an officer of the Administrative
Agent or any Lender as to the loss, theft, destruction or mutilation of any Note
or Collateral Document which is not of public record and, in the case of any
such mutilation, upon the surrender and cancellation of such Note or Collateral
Document, the Borrower will issue, in lieu thereof, a replacement Note or
Collateral Document in the same principal amount thereof (in the case of any
Note) and otherwise of like tenor.
Section 11.12 JURISDICTION, ETC.
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(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO
THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY
RIGHT THAT ANY LENDER PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL
COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
Section 11.13 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THE MORTGAGES WHICH SHALL BE GOVERNED BY THE LAW OF THE
JURISDICTION WHERE THE PROPERTY COVERED THEREBY IS LOCATED) SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING TO CONFLICTS OF LAWS OTHER THAN
GENERAL OBLIGATIONS LAW SECTION 5-1401.
Section 11.14 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LOAN
PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
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ADMINISTRATIVE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CANTEL MEDICAL CORP.,
as Borrower
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: President and CEO
----------------------------------
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
AS INITIAL ISSUING BANK,
AS SWING LINE BANK AND AS A LENDER
By ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT AND AS A LENDER
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
---------------------------------
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
AS A LENDER
By ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
