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$65,000,000
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 25, 2002
by and among
SEROLOGICALS CORPORATION,
as Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 12.5.,
as Lenders,
JPMORGAN SECURITIES, INC.,
as Documentation Agent,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
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TABLE OF CONTENTS
Article I. Definitions............................................................................1
Section 1.1. Definitions................................................................1
Section 1.2. General; References to Times..............................................24
Section 1.3. Accounting Treatment for Acquired Entities................................24
Article II. Credit Facility......................................................................25
Section 2.1. Revolving Loans...........................................................25
Section 2.2. Letters of Credit.........................................................25
Section 2.3. Rates and Payment of Interest on Loans....................................29
Section 2.4. Number of Interest Periods................................................30
Section 2.5. Repayment of Loans........................................................30
Section 2.6. Prepayments...............................................................30
Section 2.7. Continuation..............................................................31
Section 2.8. Conversion................................................................31
Section 2.9. Notes.....................................................................32
Section 2.10. Voluntary Reductions of the Commitments..................................32
Section 2.11. Expiration or Maturity Date of Letters of Credit Past
Termination Date................................................................32
Section 2.12. Increase in Commitments..................................................32
Section 2.13. Swingline Loans..........................................................33
Section 2.14. Amount Limitations.......................................................35
Article III. Payments, Fees and Other General Provisions.........................................35
Section 3.1. Payments..................................................................35
Section 3.2. Pro Rata Treatment........................................................37
Section 3.3. Sharing of Payments, Etc..................................................37
Section 3.4. Several Obligations.......................................................38
Section 3.5. Minimum Amounts...........................................................38
Section 3.6. Fees......................................................................38
Section 3.7. Computations..............................................................39
Section 3.8. Usury.....................................................................40
Section 3.9. Agreement Regarding Interest and Charges..................................40
Section 3.10. Statements of Account....................................................40
Section 3.11. Defaulting Lenders.......................................................40
Section 3.12. Taxes....................................................................42
Article IV. Yield Protection, Etc................................................................43
Section 4.1. Additional Costs; Capital Adequacy........................................43
Section 4.2. Suspension of LIBOR Loans.................................................45
Section 4.3. Illegality................................................................45
Section 4.4. Compensation..............................................................45
Section 4.5. Treatment of Affected Loans...............................................46
Section 4.6. Change of Lending Office..................................................47
Section 4.7. Assumptions Concerning Funding of LIBOR Loans.............................47
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Article V. Conditions Precedent..................................................................47
Section 5.1. Initial Conditions Precedent..............................................47
Section 5.2. Conditions Precedent to All Loans and Letters of Credit...................50
Section 5.3. Conditions to Permitted Acquisitions......................................51
Article VI. Representations and Warranties.......................................................54
Section 6.1. Corporate Existence.......................................................54
Section 6.2. Authorization; No Conflict................................................55
Section 6.3. Enforceability............................................................55
Section 6.4. Approvals.................................................................55
Section 6.5. Financial Condition.......................................................55
Section 6.6. Litigation................................................................56
Section 6.7. Federal Reserve Regulations...............................................56
Section 6.8. ERISA.....................................................................57
Section 6.9. Taxes.....................................................................57
Section 6.10. Investment Company Act...................................................58
Section 6.11. Public Utility Holding Company Act.......................................58
Section 6.12. Material Agreements......................................................58
Section 6.13. Environmental and Safety Matters.........................................58
Section 6.14. Subsidiaries.............................................................60
Section 6.15. Compliance with Law......................................................60
Section 6.16. Capitalization...........................................................61
Section 6.17. Title to Properties......................................................61
Section 6.18. Conduct of Business......................................................61
Section 6.19. Representations and Warranties in Acquisition Documents..................61
Section 6.20. Performance of Contracts, Etc............................................61
Section 6.21. Disclosure...............................................................61
Section 6.22. Seramed Disposition......................................................62
Section 6.23. Survival of Representations and Warranties, Etc..........................62
Section 6.24. Representations Regarding Acquisitions....................................62
Article VII. Affirmative Covenants...............................................................63
Section 7.1. Corporate Existence; Compliance with Law; Etc.............................63
Section 7.2. Insurance.................................................................63
Section 7.3. Obligations and Taxes.....................................................63
Section 7.4. Maintaining Records; Access to Properties and Inspections.................64
Section 7.5. Environmental and Safety Matters..........................................64
Section 7.6. Additional Security.......................................................65
Section 7.7. Use of Proceeds; Letters of Credit........................................65
Section 7.8. Additional Material Subsidiaries..........................................65
Article VIII. Information........................................................................69
Section 8.1. Quarterly Financial Statements............................................69
Section 8.2. Year-End Statements; Management Letters...................................69
Section 8.3. Compliance Certificate....................................................69
Section 8.4. Other Information.........................................................70
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Section 8.5. Litigation................................................................72
Article IX. Negative Covenants...................................................................72
Section 9.1. Financial Covenants.......................................................73
Section 9.2. Indebtedness and Guarantees...............................................73
Section 9.3. Prohibition on Fundamental Changes........................................74
Section 9.4. Investments...............................................................74
Section 9.5. Limitation on Liens.......................................................75
Section 9.6. Restricted Payments.......................................................75
Section 9.7. Accounting................................................................75
Section 9.8. Amendment of Certain Documents............................................76
Section 9.9. Sales of Assets...........................................................76
Article X. Default...............................................................................76
Section 10.1. Events of Default........................................................76
Section 10.2. Remedies Upon Event of Default...........................................79
Section 10.3. Remedies Upon Default....................................................80
Section 10.4. Allocation of Proceeds...................................................80
Section 10.5. Collateral Account.......................................................81
Section 10.6. Performance by Agent.....................................................82
Section 10.7. Rights Cumulative........................................................82
Article XI. The Agent............................................................................82
Section 11.1. Authorization and Action.................................................82
Section 11.2. Agent's Reliance, Etc....................................................83
Section 11.3. Notice of Defaults.......................................................84
Section 11.4. Bank of America as Lender................................................84
Section 11.5. Approvals of Lenders.....................................................84
Section 11.6. Lender Credit Decision, Etc..............................................85
Section 11.7. Indemnification of Agent.................................................85
Section 11.8. Collateral Matters.......................................................86
Section 11.9. Successor Agent..........................................................87
Section 11.10. Documentation Agent.....................................................87
Article XII. Miscellaneous.......................................................................88
Section 12.1. Notices..................................................................88
Section 12.2. Expenses.................................................................89
Section 12.3. Setoff...................................................................90
Section 12.4. Arbitration..............................................................90
Section 12.5. Successors and Assigns...................................................91
Section 12.6. Amendments...............................................................93
Section 12.7. Nonliability of Agent and Lenders........................................94
Section 12.8. Confidentiality..........................................................94
Section 12.9. Indemnification..........................................................95
Section 12.10. Survival................................................................95
Section 12.11. Severability of Provisions..............................................96
Section 12.12. GOVERNING LAW...........................................................96
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Section 12.13. Counterparts............................................................96
Section 12.14. Obligations with Respect to Loan Parties................................96
Section 12.15. Entire Agreement........................................................96
Section 12.16. Construction............................................................96
Section 12.17. No Novation; Effect of Amendment and
Restatement.....................................................................97
SCHEDULE 6.1. Ownership Structure
SCHEDULE 6.6. Litigation
SCHEDULE 6.8. ERISA
SCHEDULE 6.12. Material Agreements
SCHEDULE 6.13. Environmental and Safety Matters
SCHEDULE 6.16. Capitalization
SCHEDULE 6.17. Title to Properties; Liens
SCHEDULE 9.2. Indebtedness and Guaranties
SCHEDULE 9.4. Existing Investments
EXHIBIT A Form of Accession Agreement to Credit Documents
EXHIBIT B Form of Assignment and Acceptance Agreement
EXHIBIT C Form of Assignment of Acquisition Documents
EXHIBIT D Form of Guaranty
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Notice of Continuation
EXHIBIT G Form of Notice of Conversion
EXHIBIT H Form of Notice of Swingline Borrowing
EXHIBIT I Form of Patent Security Agreement
EXHIBIT J Form of Pledge Agreement
EXHIBIT K Form of Security Agreement
EXHIBIT L Form of Swingline Note
EXHIBIT M Form of Trademark Security Agreement
EXHIBIT N Form of Revolving Note
EXHIBIT O Form of Opinion of Counsel to Loan Parties
EXHIBIT P Form of Compliance Certificate
EXHIBIT Q Form of Security Deed
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THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 25,
2002, by and among SEROLOGICALS CORPORATION, a corporation organized under the
laws of the State of Delaware (the "Borrower"), each of the financial
institutions initially a signatory hereto together with their assignees
pursuant to Section 12.5., JPMORGAN SECURITIES, INC., as Documentation Agent
(the "Documentation Agent") and BANK OF AMERICA, N.A., as contractual
representative of the Lenders to the extent and in the manner provided in
Article XI. below (the "Agent").
WHEREAS, Bank of America, N.A., successor to NationsBank, N.A. (South)
("Bank of America"), the other financial institutions party thereto and the
Borrower entered into that certain Third Amended and Restated Credit Agreement
dated as of September 28, 1999 (as amended and in effect immediately prior to
the date hereof, the "Existing Credit Agreement"), pursuant to which Bank of
America and the other financial institutions party thereto made available to the
Borrower a credit facility, all on the terms and conditions contained therein;
and
WHEREAS, the parties hereto desire to amend and restate the Existing
Credit Agreement in accordance with the terms herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Credit Agreement is amended and restated in its
entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"ABRA" shall mean the American Blood Resources Association.
"ACCOUNT RECEIVABLE" shall mean, as of any date of determination
thereof, the unpaid portion of the obligation of a customer of a Subsidiary
(other than any Foreign Subsidiary) in respect of services actually rendered or
goods actually sold as stated on the invoice therefor, in each case net of any
unpaid credits, rebates, offsets or commissions.
"ACCESSION AGREEMENT" shall mean an Accession Agreement to Credit
Documents executed by any Loan Party in favor of the Agent and substantially in
the form of Exhibit A.
"ACQUISITION" shall mean, with respect to a Seller, the acquisition by
the Borrower directly, or indirectly through its Subsidiaries, in one or a
series of transactions, of (a) all or substantially all of the assets of such
Seller or all or substantially all of a line or lines of business conducted by
such Seller or a division of such Seller or (b) a controlling equity interest in
such Seller, whether by purchase of such equity interest or upon the exercise of
an option or warrant for, or conversion of securities into, such equity
interest; provided, however, that any such acquisition which consists solely of
the right to use the intellectual property of such Seller by
means of a license or other similar arrangement and which does not involve any
payments of the type referred to in clause (h) of the definition of Acquisition
Consideration shall not constitute an "Acquisition" within the meaning of this
definition.
"ACQUISITION CONSIDERATION" means, with respect to any Acquisition and
without duplication, each of the following: (a) the amount of cash paid,
together with the fair market value (as determined in good faith by the Board of
Directors of the acquirer) of all other assets (excluding assets of the type
described in the following clause (b)) conveyed, by the Borrower and its
Subsidiaries in consideration for such Acquisition; (b) the value (as determined
by reference to the Acquisition Documents in connection with such Acquisition
or, if no such value can be determined by reference to such Acquisition
Documents, as determined by reference to Market Value as of the date such
Acquisition was announced to the public) of all capital stock, warrants and
options to acquire capital stock, of the Borrower conveyed by the Borrower in
consideration for such Acquisition; (c) the aggregate amount of Indebtedness
acquired, incurred or assumed by the Borrower and its Subsidiaries in connection
with such Acquisition; (d) all amounts paid or to be paid by the Borrower and
its Subsidiaries in respect of any covenant not to compete granted in connection
with such Acquisition and accruing to the benefit of any New Subsidiary or other
Loan Party; (e) the aggregate capitalized amount of consulting or other similar
fees or payments to be paid by such New Subsidiary or other Loan Party to a
Seller or any Affiliate of such Seller in connection with, or as a result of,
such Acquisition; (f) to the extent reasonably determinable as of the
Acquisition Date, the aggregate amount of Earn-Out Payments which payments are
to be capitalized by the Borrower and its Subsidiaries; (g) the amount of all
transaction fees and expenses (including, without limitation, legal, accounting
and brokers' fees and expenses) incurred by the Borrower and its Subsidiaries in
connection with such Acquisition; and (h) the aggregate capitalized amount of
any up-front fees or payments to be paid by such New Subsidiary or other Loan
Party to a Seller or any Affiliate of such Seller in connection with, or as a
result of, an Acquisition involving the acquisition of the right to use the
intellectual property of another by means of a license or similar arrangement.
"ACQUISITION DATE" means, with respect to an Acquisition, the date on
which such Acquisition is consummated.
"ACQUISITION DOCUMENTS" means, with respect to an Acquisition,
collectively, the related Purchase Agreement for such Acquisition and all
related agreements and conveyance instruments executed in connection therewith
or pursuant thereto.
"ACQUISITION HISTORICAL FINANCIAL STATEMENTS" has the meaning given
that term in Section 5.3.(b).
"ACQUISITION PRO FORMA FINANCIAL STATEMENTS" has the meaning given that
term in Section 5.3.(c).
"ADDITIONAL COSTS" has the meaning given that term in Section 4.1.
"ADJUSTED EURODOLLAR RATE" means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest
Period by (b) a percentage equal
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to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if
any, required to be maintained against "Eurocurrency liabilities" as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or
against any other category of liabilities which includes deposits by reference
to which the interest rate on LIBOR Loans is determined or any category of
extensions of credit or other assets which includes loans by an office of any
Lender outside of the United States of America to residents of the United States
of America).
"AFFILIATE" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person and, if such Person is an individual, any member of the immediate family
(including parents, spouse and children) of such individual, any trust whose
principal beneficiary is such individual or one or more members of such
individual's immediate family and any Person who is controlled by any such
member or trust. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of the subject Person (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise); provided that, in any event, any Person which owns directly or
indirectly 10% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed an Affiliate of such
corporation or other Person; provided further that, with respect to any Person
permitted to file a report on Schedule 13G under the Exchange Act and which owns
directly or indirectly any securities having ordinary voting power for the
election of directors or other governing body of the Borrower or any Subsidiary,
neither the Borrower nor any Subsidiary shall be deemed to be an Affiliate of
such Person and such Person shall not be deemed to be an Affiliate of the
Borrower or any Subsidiary unless such Person owns directly or indirectly 20% or
more of such voting securities of the Borrower or such Subsidiary, as the case
may be.
"AGENT" means Bank of America, N.A., as contractual representative for
the Lenders under the terms of this Agreement, and any of its successors.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE COMMITMENT FEE" means at any time the percentage set forth
in the table below corresponding to the Level at which the "Applicable Margin"
is then determined in accordance with the definition thereof:
APPLICABLE
LEVEL COMMITMENT FEE
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3 0.375%
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2 0.375%
------------------------
1 0.300%
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Any change in the applicable Level at which the Applicable Margin is determined
shall result in a corresponding and simultaneous change in the Applicable
Commitment Fee.
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"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means the percentage rate set forth below for a
given Type of Loan corresponding to the ratio of Consolidated Debt to EBITDA of
the Borrower and its Consolidated Subsidiaries as determined in accordance with
Section 9.1. in effect at such time:
LEVEL RATIO OF CONSOLIDATED DEBT TO APPLICABLE MARGIN FOR APPLICABLE MARGIN
EBITDA BASE RATE LOANS FOR LIBOR LOANS
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3 Greater than or equal to 2.0 to 1.0 0.25% 1.75%
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2 Less than 2.0 to 1.0 but greater than 0.00% 1.50%
or equal to 1.50 to 1.0
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1 Less than 1.50 to 1.0 0.00% 1.25%
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The Agent shall confirm the Applicable Margin based on the calculations set
forth in Compliance Certificates delivered under Section 8.3. from time to time,
and shall notify the Borrower and the Lenders thereof. Each change in the
Applicable Margin shall take effect on the date five Business Days following the
date by which the Borrower is required to deliver the quarterly financial
statements pursuant to Section 8.1. or the annual financial statements pursuant
to Section 8.2., as the case may be. Until first determined as provided above
(which shall be the first such date occurring after June 30, 2002), the
Applicable Margin shall be determined by reference to Level 1. If the Borrower
fails to deliver any such Compliance Certificate by the date required under
Section 8.3., then the Applicable Margin shall be determined by reference to
Level 3 until such time as the Borrower delivers such Compliance Certificate.
"APPRAISAL" means, with respect to any parcel (or group of related
parcels) of real property, an M.A.I. appraisal commissioned by and addressed to
the Agent (acceptable to the Agent as to form, substance and appraisal date),
prepared by a professional appraiser acceptable to the Agent, having at least
the minimum qualifications required under Applicable Law governing the Agent and
the Lenders, including without limitation, FIRREA, and determining both the "as
is" market value of such property as between a willing buyer and a willing
seller and the "stabilized value" of such property.
"ASSIGNEE" has the meaning given that term in Section 12.5.(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit B.
"ASSIGNMENT OF ACQUISITION DOCUMENTS" means the Third Amended and
Restated Assignment of Acquisition Documents executed by certain of the Loan
Parties in favor of the Agent and substantially in the form of Exhibit C.
"BANK OF AMERICA" means Bank of America, N.A., together with its
successors and assigns.
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"BANKRUPTCY CODE" means the United States Bankruptcy Code of 1978, as
amended from time to time, or any successor federal statute.
"BAS" means Banc of America Securities LLC, together with its
successors and assigns.
"BASE RATE" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Agent in determining interest rates on certain loans and is not intended to
be the lowest rate of interest charged by the Agent or any Lender on any
extension of credit to any debtor.
"BASE RATE LOAN" means a Revolving Loan bearing interest at a rate
based on the Base Rate.
"BORROWER" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other
day on which banks in Atlanta, Georgia or Charlotte, North Carolina are
authorized or required to close and (b) with reference to a LIBOR Loan, any such
day that is also a day on which dealings in Dollar deposits are carried out in
the London interbank market.
"CAPITAL EXPENDITURES" means, without duplication, for any period of
computation thereof, the aggregate of all expenditures on a consolidated basis
(whether paid in cash or property or accrued as liabilities and including the
aggregate amount of all principal payments due for the entire term of all
Capitalized Lease Obligations) made by the Borrower and its Consolidated
Subsidiaries that, in conformity with GAAP, are required to be included in the
property, plant, or equipment, or similar fixed asset account.
"CAPITALIZED LEASE OBLIGATION" means as to any Person, the obligations
of such Person with respect to any lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) which is or should
be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP (including Statement of Financial Accounting Standards No. 13
of the Financial Accounting Standards Board) and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP (including such Statement No. 13).
"CASH EQUIVALENTS" shall mean, as to any Person (a) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (b) time deposits, Euro-dollar deposits,
certificates of deposit or bankers' acceptances of any commercial bank organized
under the laws of the United States or any state thereof or the District of
Columbia or any U.S. branch
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of a foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $200,000,000, in each case with maturities of not more
than one year from the date of acquisition by such Person, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, (d) commercial paper issued by any
Person incorporated in the United States rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by ▇▇▇▇▇'▇ and in each
case maturing not more than one year after the date of acquisition by such
Person, (e) marketable direct obligations issued by the District of Columbia or
any State of the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, having one of the two highest
ratings obtainable from either S&P or ▇▇▇▇▇'▇, (f) investments in money market
funds at least 85% of whose assets are comprised of securities of the types
described in clauses (a) through (e) above, and (g) in the case of any Foreign
Subsidiary, (A) direct obligations of the sovereign nation ( or any agency
thereof) in which such Foreign Subsidiary is organized or is conducting business
or in obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof) and rated at least A-1 or the equivalent thereof by S&P
or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ and in each case having
maturities of not more than the year from the date of acquisition or (B) of the
type and maturity described in clauses (b), (c) or (d) above of foreign
obligors, which obligations or obligors (or the parents of such obligors) having
ratings described in such clauses or equivalent ratings from comparable foreign
rating agencies reasonably acceptable to the Agent.
"CASH FLOW" means, for any period of computation thereof, an amount
equal to the following: (i) EBITDA for such period minus (ii) cash payments
actually made during such period in respect of taxes on income of the Borrower
and its Consolidated Subsidiaries plus (iii) Rental Expense for such period.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time, or any
successor federal statute.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Inventory System.
"CHANGE IN CONTROL" has the meaning given that term in Section 10.1.(i)
"CLIA" means the Clinical Laboratory Improvement Amendments of 1988, as
amended.
"CLOSING DATE" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 5.1. shall
have been fulfilled or waived in writing by the Agent.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute, and the regulations from time to time
promulgated or proposed pursuant thereto.
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"COLLATERAL" means any collateral security now or hereafter pledged by
any Loan Party to secure the Obligations or any portion thereof and includes all
"Collateral" as defined in the Security Agreement, the "Trademark Collateral" as
defined in any Trademark Security Agreement, and the "Pledged Collateral" as
defined in the Pledge Agreement.
"COLLATERAL ACCOUNT" means a special non-interest bearing deposit
account maintained at the Principal Office of the Agent and under its sole
dominion and control.
"COMMITMENT" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the other Lenders) Letters of Credit pursuant
to Section 2.2.(a) and 2.2.(i) respectively, in an amount up to, but not
exceeding (but in the case of the Agent excluding the aggregate amount of
participations in the Letters of Credit held by other Lenders), the amount set
forth for such Lender on its signature page hereto as such Lender's "Commitment
Amount" or as set forth in the applicable Assignment and Acceptance Agreement,
as the same may be reduced from time to time pursuant to Section 2.10. or as
appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"COMPENSATION PERIOD" has the meaning given that term in Section
3.1.(b)(ii).
"COMPLIANCE CERTIFICATE" has the meaning given that term in Section
8.3.
"CONSOLIDATED DEBT" shall mean all Indebtedness of the Borrower and its
Consolidated Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means, as to any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are (or should be) consolidated with the financial
statements of such Person in accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means, at the time of determination,
Consolidated Total Assets less the aggregate of all amounts as would appear on
the assets side of a balance sheet of the Borrower and its Consolidated
Subsidiaries for patents, patent applications, copyrights, trademarks, trade
names, goodwill and other like assets which would be classified as intangible
assets under GAAP.
"CONSOLIDATED TOTAL ASSETS" means, at the time of determination, the
net book value of all assets of the Borrower and its Consolidated Subsidiaries
as determined in accordance with GAAP.
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"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.7.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.8.
"CREDIT DOCUMENTS" means, collectively, this Agreement, the Notes, the
Guaranty, the Security Documents, and any other documents and instruments
executed and delivered by any Loan Party in connection with this Agreement or
any of the foregoing documents.
"CREDIT EVENT" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"DEBT ISSUANCE" means the issuance or sale by the Borrower or any of
its Subsidiaries of any bonds, notes, debentures or similar instruments
representing Indebtedness, whether in a private or public offering or otherwise,
excluding the incurrence of Indebtedness permitted under Section 9.2. other than
Subordinated Indebtedness; provided, however, that nothing contained in this
definition shall be deemed or construed to permit any Debt Issuance that is not
otherwise expressly permitted pursuant to the terms hereof.
"DEBT SERVICE" means, on the date of determination thereof, (a) current
maturities of long term debt of the Borrower and its Consolidated Subsidiaries
for the four fiscal quarter period then beginning, plus (b) current maturities
of Capitalized Lease Obligations of the Borrower and its Consolidated
Subsidiaries for such period, plus (c) the aggregate amount of cash dividends
and other cash distributions scheduled to be paid or accrued during such period
in respect of Redeemable Stock.
"DEFAULT" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.11.
"DISPOSITION" means any sale, lease, assignment, transfer or other
disposition of any property, including any capital stock or other equity
interest in a Subsidiary but excluding (i) sales of Inventory in the ordinary
course by the Borrower or any other Loan Party, (ii) dispositions of Equipment
permitted by Section 9.9.(b) provided that the Net Proceeds of such disposition
are used within 90 days of such disposition to replace the Equipment so disposed
with other Equipment which serves the same or similar purpose as the Equipment
disposed of and (iii) dispositions of Equipment and Collateral permitted by
Sections 9.9.(b) and 9.9.(c), the Net Proceeds of which do not exceed $1,000,000
in the aggregate per fiscal year of the Borrower.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"DOMESTIC EBITDA" means, for any period of computation thereof, EBITDA
for such period which is attributable solely to assets located in the United
States of America.
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"DONOR CENTER" means any location of the Borrower or any Subsidiary
where such Loan Party collects, analyzes, processes and sells human blood,
plasma and other human biological products or components or provides related
healthcare services.
"EARN-OUT PAYMENTS" means all payments on deferred purchase price
obligations incurred in connection with Acquisitions (including, without
limitation, earn-out payments).
"EBIT" means, for any period of computation thereof, the sum of,
without duplication, (i) Net Income for such period plus (ii) Interest Expense
for such period plus (iii) taxes on income of the Borrower and its Consolidated
Subsidiaries accrued during such period plus or minus (as applicable) (iv) any
extraordinary expense or loss, and any non-recurring, non-cash expense or loss,
of the Borrower or any Consolidated Subsidiary for such period to the extent
included in determining Net Income for such period.
"EBITDA" means, for any period of computation thereof, the sum of (i)
EBIT for such period plus (ii) amortization expense of the Borrower and its
Consolidated Subsidiaries for such period plus (iii) without duplication,
depreciation expense of the Borrower and its Consolidated Subsidiaries for such
period.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iii) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $500,000,000; (iv) a commercial bank organized under the laws of any
other country that is a member of the Organisation for Economic Co-Operation and
Development or any successor thereto, or a political subdivision of any such
country, and having total assets in excess of $10,000,000,000, provided that
such bank is acting through a branch or agency located in the United States of
America; or (v) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans or other similar extensions of credit in the ordinary course of
business (a "CLO") and is either (x) administered or managed by a Lender or an
Affiliate of such Lender or (y) managed by the same investment advisor which
manages another Lender or Affiliate of such Lender which is a CLO. If such
Person is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by ▇▇▇▇▇'▇, or
the equivalent or higher of either such rating by another Rating Agency
acceptable to the Agent.
"EMPLOYEE BENEFIT PLAN" shall mean any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by any Loan Party
or any of its ERISA Affiliates, other than a Multiemployer Plan.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
notice, claim, demand or other communication (whether written or oral) alleging
or asserting such Person's liability for investigatory costs, cleanup costs,
governmental response costs, damages to natural resources or other property,
personal injuries, fines, or penalties arising out of, based on or resulting
from (a) the presence, handling, generation, treatment, storage, disposal,
Release (as
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such term is defined in 42 U.S.C. ss.9601(22), or any successor federal statute
or analogous state law) or threatened Release into the environment of any
Hazardous Material at any location, whether or not owned by such Person or (b)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental and Safety Law.
"ENVIRONMENTAL AND SAFETY LAWS" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances and similar provisions
having the force or effect of law, all judicial and administrative orders and
determinations and all contractual obligations to which Borrower or any
Subsidiary is bound or subject and common law concerning public health or
safety, worker health or safety or pollution or protection of the environment,
including without limitation those relating to any emissions, discharges or
Releases of Hazardous Materials to ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, control, clean-up or handling of
Hazardous Materials.
"EQUIPMENT" means all equipment, machinery, apparatus, fittings,
fixtures and other tangible personal property (other than Inventory) of every
kind and description used in any Loan Party's business operations or owned by
any Loan Party or in which any Loan Party has an interest, and all parts,
accessories and special tools and all increases and accessions thereto and
substitutions and replacements therefor.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor statute.
"ERISA AFFILIATE" of any Person shall mean any corporation or trade or
business which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as such Person or which is under
common control (within the meaning of Section 414(c) of the Code) with such
Person.
"ERISA EVENT" with respect to any Person shall mean (a) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan of such Person or any of its ERISA Affiliates, unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b)
the provision by the administrator of any Plan of such Person or any of its
ERISA Affiliates of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(a)(2) of ERISA); (c) the cessation of
operations at a facility of such Person or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA with respect to a Plan; (d)
the withdrawal by such Person or any of its ERISA Affiliates from a Plan during
a plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (e) the failure by such Person or any of its ERISA
Affiliates to make a payment to a Plan required under Section 302(f)(1) of
ERISA; (f) the adoption of an amendment to a Plan of such Person or any of its
ERISA Affiliates requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (g) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of
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ERISA that could constitute grounds for the termination of, or the appointment
of a trustee to administer, such Plan.
"EVENT OF DEFAULT" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXCHANGE ACT" has the meaning given that term in Section 10.1.(i).
"EXCLUDED TAXES" has the meaning given that term in Section 3.12.(a).
"EXISTING CREDIT AGREEMENT" has the meaning given that term in the
recitals.
"FDA" shall mean the United States Food and Drug Administration or any
entity succeeding to any or all of its functions under Applicable Law.
"FEDERAL ASSIGNMENT OF CLAIMS ACT" shall mean the Assignment of Claims
Act of 1940, as amended from time to time, or any successor federal statute.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent (in its individual
capacity) on such day on such transactions as determined by the Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Credit Document.
"FIRREA" means the Financial Institution Recovery, Reform and
Enforcement Act of 1989, as amended.
"FOREIGN LENDER" means any Lender organized under the laws of a
jurisdiction outside of the United States of America.
"FOREIGN SUBSIDIARY" means a Subsidiary not organized under the laws of
the United States of America, any state thereof, or the District of Columbia.
"FSC" means Serologicals (Barbados), Inc., a Barbados corporation and a
"foreign sales corporation" under the Code.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public
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Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority).
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, any
Indebtedness or other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of its
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank to issue a letter of credit for the benefit
of another Person, but excluding endorsements for collection or deposit in the
ordinary course of business.
"GUARANTY" means the Third Amended and Restated Guaranty executed by
certain Loan Parties in favor of the Agent and the Lenders and substantially in
the form of Exhibit D.
"GUARANTOR" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include all Subsidiaries of the Borrower,
excluding Foreign Subsidiaries.
"HAZARDOUS MATERIALS" shall mean, collectively, all substances with
respect to which liability or standards of conduct may be imposed pursuant to
RCRA, CERCLA or any other Environmental and Safety Law.
"HISTORICAL FINANCIAL STATEMENTS" has the meaning given such term in
Section 5.1.(a)(xviii).
"INDEBTEDNESS" means, without duplication, as to any Person (a)
indebtedness created, issued or incurred by such Person for borrowed money
(whether by loan or the issuance or sale of debt securities) whether or not
recourse is limited to specific assets of such Person; (b) obligations of such
Person to pay the deferred purchase or acquisition price of property or
services, other than trade accounts payable and accrued expenses arising in the
ordinary course of business so long as such trade accounts payable and accrued
expenses are not for borrowed money; (c) Indebtedness of others secured by a
Lien on the property of such Person, whether or not the Indebtedness so secured
has been assumed by such Person; (d) reimbursement
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obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person; (e) Capitalized Lease Obligations of such Person; (f)
Indebtedness of others Guaranteed by such Person; and (g) all obligations of
such Person in respect of Redeemable Stock valued at its involuntary maximum
fixed repurchase price plus accrued and unpaid dividends, if any.
"INDEMNIFIABLE AMOUNTS" has the meaning given such term in Section
11.7.
"INDEMNIFIED PARTY" has the meaning given such term in Section 12.9.
"INSUFFICIENCY" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTEREST EXPENSE" shall mean for any period of computation thereof,
cash interest expense attributable to Indebtedness for money borrowed (including
without limitation, Capitalized Lease Obligations) of the Borrower and its
Consolidated Subsidiaries actually paid during such period.
"INTEREST PERIOD" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (a) if any
Interest Period would otherwise end after the Termination Date, such Interest
Period shall end on the Termination Date; (b) each Interest Period that would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (c)
notwithstanding the immediately preceding clause (a), no Interest Period for any
LIBOR Loan shall have a duration of less than one month and, if the Interest
Period for any LIBOR Loan would otherwise be a shorter period, such Loan shall
not be available hereunder for such period.
"INVENTORY" shall mean (a) all inventory of each of the Subsidiaries
(other than any Foreign Subsidiary) and all goods intended for sale or lease by
such Subsidiaries, (b) all work-in-process of such Subsidiaries, (c) all raw
materials and other materials and supplies of every nature and description used
or which might be used in connection with the manufacture, packing, shipping,
selling or furnishing of such goods or otherwise used or consumed in the
business of such Subsidiaries, and (d) all documents (as such term is defined in
the UCC) relating to any of the foregoing.
"INVESTMENT" in any Person shall mean (a) the acquisition (whether for
cash, property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of, or any contribution to the capital of, such Person;
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(b) any deposit with, or advance, loan or other extension of credit to, such
Person and (without duplication) any amount committed to be advanced, lent or
extended to such Person (other than any such advance, loan, extension of credit
or commitment representing the purchase price of inventory or supplies sold in
the ordinary course of business); or (c) any Guarantee with respect to such
Person.
"KANKAKEE PROPERTY" means the real property and improvements located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
"L/C COMMITMENT AMOUNT" means an amount equal to $10,000,000.
"LENDER" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and permitted
assigns.
"LENDING OFFICE" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"LETTER OF CREDIT" has the meaning set forth in Section 2.2.(a).
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"LETTER OF CREDIT LIABILITIES" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Agent in its capacity as such) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.2.(i),
and the Agent shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after giving
effect to the acquisition by the Lenders other than the Agent of their
participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00
-14-
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"LIBOR LOANS" means Revolving Loans bearing interest at a rate based on
LIBOR.
"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind whatsoever in
respect of such asset. For purposes of this Agreement, a Loan Party or any of
its Subsidiaries shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"LIMITED" means Serologicals Limited, formerly known as Bioscot
Limited, a corporation organized under the laws of the Scotland.
"LOAN" means a Revolving Loan or a Swingline Loan.
"LOAN PARTY" means each of the Borrower, its Subsidiaries and each
Person who guarantees all or a portion of the Obligations and/or who pledges any
collateral security to secure all or a portion of the Obligations; as of the
date hereof, the Loan Parties are the Borrower and each of its Subsidiaries set
forth on Schedule 6.16.
"MARGIN STOCK" has the meaning given such term in Section 6.7.
"MARKET VALUE" means, with respect to the value of the capital stock of
the Borrower and with respect to the determination of the value of any warrants
or options to acquire capital stock of the Borrower, as of any date of
determination, the average closing price of the capital stock of the Borrower
for the 20 Business Days immediately preceding such date of determination as
quoted on the Nasdaq National Market System.
"MATERIAL ADVERSE EFFECT" means any event, circumstance or condition
that, individually or when aggregated with all other similar events,
circumstances or conditions, could reasonably be expected to have a material
adverse effect on (a) the business, property, assets, liabilities, condition
(financial or otherwise), operations, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) the ability of the Borrower
or any Material Loan Party to perform its obligations under any of the Credit
Documents to which it is a party; (c) the validity or enforceability of any of
the Credit Documents; or (d) the rights and remedies of the Agent or the Lenders
under any of the Credit Documents, taken as whole. As used in this definition,
the term "Material Loan Party" means, as of the date of any determination
thereof, any Loan Party (other than the Borrower) which either (a) owns assets
having a book value greater than or equal to 10% of Consolidated Total Assets or
(b) had net income (as determined in a manner consistent with determining Net
Income of the Borrower and its Consolidated Subsidiaries) greater than or equal
to 10% of Net Income for the four fiscal quarter period most recently ending
prior to the date of determination.
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"MATERIAL CONTRACT" shall mean, with respect to the Borrower and the
other Loan Parties, any contract, agreement or binding understanding or
arrangement (whether or not in written form) the performance, termination or the
loss of which could reasonably be expected to have a Material Adverse Effect.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" of any Person shall mean a multiemployer plan
defined as such in Section 3(37) of ERISA to which contributions have been made
by such Person or any ERISA Affiliate of such Person and which is covered by
Title IV of ERISA.
"NET INCOME" means for any applicable period, the aggregate of all
amounts which, in accordance with GAAP, would be included as net income (or net
loss) on a consolidated statement of income of the Borrower and its Consolidated
Subsidiaries for such period; provided, however, that Net Income shall exclude
(i) the effect of any extraordinary or other non-recurring gain or loss outside
the ordinary course of business and (ii) any write-up in the value of any asset
(but only to the extent such write-up exceeds any write-down taken in connection
with such asset).
"NET PROCEEDS" means (a) with respect to a Disposition, the aggregate
amount of all cash received (including without limitation, (i) all cash payments
received by way of deferred payment of principal or interest pursuant to a note
or installment receivable or otherwise and (ii) cash payments placed in escrow
pending the resolution of post-closing matters, but, in either case, only as and
when received), directly or indirectly, by the Borrower or any other Loan Party
in connection with such Disposition net of (i) the amount of any out-of-pocket
legal fees, title and recording tax expenses, commissions and other customary
fees and expenses actually incurred by the Borrower or such other Loan Party in
connection with such Disposition, (ii) any taxes reasonably estimated in good
faith to be payable or receivable by the Borrower or such other Loan Party in
connection with such Disposition and other taxes thereon to the extent such
other taxes are actually paid by the Borrower or such other Loan Party, and
(iii) any repayments by the Borrower or such other Loan Party of Indebtedness
(other than Indebtedness under any of the Credit Documents) to the extent that
such Indebtedness is secured by a Lien on the property that is the subject of
such Disposition, and (b) with respect to a Debt Issuance, all cash received by
the Borrower or such other Loan Party net of the amount of any out-of-pocket
legal fees, underwriting commissions or placement fees and other customary fees
and expenses actually incurred by the Borrower or such other Loan Party in
connection with such Debt Issuance.
"NET WORTH" means, as at any date, the total shareholders' equity
(including capital stock, additional paid-in capital and retained earnings,
after deducting treasury stock) of the Borrower and its Consolidated
Subsidiaries which would appear as such on a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP.
"NEW SUBSIDIARY" means, with respect to an Acquisition, any Subsidiary
of the Borrower formed in connection with, and for the purpose of effecting,
such Acquisition. If all of the outstanding capital stock of a Seller is being
acquired by the Borrower or any of its
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Subsidiaries in connection with an Acquisition, then such Seller shall also
constitute a New Subsidiary.
"NOTE" means a Revolving Note or a Swingline Note.
"NOTICE OF BORROWING" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
"NOTICE OF CONTINUATION" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.7. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.8. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
"NOTICE OF SWINGLINE BORROWING" means a notice in the form of Exhibit H
to be delivered to the Swingline Lender pursuant to Section 2.13.(b) evidencing
the Borrower's request for a Swingline Loan.
"OBLIGATIONS" means, individually and collectively and without
duplication: (a) the aggregate principal balance of, and all accrued and unpaid
interest on, all Loans; (b) all Reimbursement Obligations and all other Letter
of Credit Liabilities; (c) all other indebtedness, liabilities, obligations,
covenants and duties of the Borrower and the other Loan Parties owing to the
Agent, any Lender or the Swingline Lender of every kind, nature and description,
under or in respect of this Agreement or any of the other Credit Documents,
including, without limitation, the Fees and indemnification obligations, whether
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any
promissory note; (d) all Swap Obligations owing to any Lender and (e) any and
all renewals, modifications, extensions and supplements to any of the foregoing.
Without limitation of the foregoing, the term "Obligations" shall include any
Indebtedness of the Borrower to any other Loan Party which now or hereafter
becomes owing to the Agent or any Lender as assignee of such other Loan Party
pursuant to any of the Security Documents or otherwise.
"OPERATING ACCOUNT" means the account maintained by the Borrower with
the Agent which the Borrower and the Agent have designated in writing as the
"Operating Account."
"PARTICIPANT" has the meaning given that term in Section 12.5.(c).
"PATENT SECURITY AGREEMENT" means an Amended and Restated Patent
Security Agreement executed by a Loan Party in favor of the Agent and
substantially in the form of Exhibit I.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
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"PERMITTED ACQUISITION" means any Acquisition provided that (a) the
consideration paid is not greater than the fair market value of the property,
entity or line of business that is the subject of such Acquisition, as
determined in good faith by the board of directors of the Borrower or other Loan
Party, as applicable; (b) the property acquired (or, in the case where such
property is capital stock or other equity interests of a Person, the property of
such Person) in such Acquisition shall be used or useful in the same or similar
line of business as the Borrower and its Subsidiaries on the Agreement Date; (c)
the consideration payable by the Borrower and its Subsidiaries with respect to
such Acquisition which is attributable to property located outside of the United
States of America (including a reasonable estimate of any Earn-Out Payments in
connection with such Acquisition as determined in good faith by the board of
directors of the Borrower or other Loan Party, as applicable) does not exceed
$15,000,000, and together with the aggregate amount of all consideration paid in
connection with all other Acquisitions consummated during the term of this
Agreement which is attributable to property located outside of the United States
of America, does not exceed $45,000,000; (d) in the case of an Acquisition of
the capital stock or other equity interest of another Person, the board of
directors (or other comparable governing body) of such other Person shall have
duly approved such Acquisition; (e) no Default or Event of Default shall exist
immediately after giving effect to such Acquisition; (f) the representations and
warranties made by the Loan Parties in any Loan Document shall be true and
correct in all material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date; (g) the
Borrower shall have delivered to the Agent a Compliance Certificate signed by
the chief financial officer of the Borrower demonstrating compliance with each
of the subsections of Section 9.1., with Sections 9.2. and 9.4., and clause (i)
of this definition, in each case after giving effect to such Acquisition as
provided in Section 1.3. and reaffirming that the representations and warranties
made hereunder are true and correct in all material respects as of such date,
except to the extent such representations and warranties relate to an earlier
date; (h) the consideration payable by the Borrower and its Subsidiaries with
respect to such Acquisition (including a reasonable estimate of any Earn-Out
Payments in connection with such Acquisition as determined in good faith by the
board of directors of the Borrower or other Loan Party, as applicable) does not
exceed $30,000,000, and together with the aggregate amount of all consideration
paid in connection with all other Acquisitions consummated during the term of
this Agreement, does not exceed $60,000,000; and (i) the ratio of Consolidated
Debt to EBITDA (calculated in accordance with Section 1.3.) is less than or
equal to 1.5 to 1.0 as of the end of the most recently ending four fiscal
quarter period. For purposes of this definition, the consideration payable in
connection with any Acquisition shall include, but shall not be limited to, all
Acquisition Consideration.
"PERMITS" has the meaning given that term in Section 6.13(a).
"PERMITTED LIENS" means:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in accordance
with Section 7.3.;
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(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business not
yet delinquent or which are being contested in accordance with Section 7.3. and
pledges or deposits to secure the release of such Liens;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) pledges or deposits to secure the performance of bids, trade
contracts (other than a trade contract which constitutes Indebtedness), leases
(other than Capitalized Lease Obligations), statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(f) easements, rights-of-way, zoning restrictions and other
similar encumbrances of record on real property incurred in the ordinary course
of business which, in the aggregate, are not material in dollar amount, and
which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of the
Borrower or any of the other Loan Parties;
(g) Liens existing on the date hereof and disclosed on Schedule
6.17. hereto;
(h) Liens on real property or Equipment of the Borrower or any
Subsidiary securing Indebtedness of the Borrower and its Subsidiaries permitted
under Section 9.2.(c); and
(i) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject;
(j) Liens created by or resulting from any litigation or legal
proceeding that is being contested in good faith by appropriate proceedings or
arising out of judgements or awards that do not constitute an Event of Default
under Section 10.1.(g); and
(k) Ownership interests in anticoagulant, harnesses, bowls, bags,
bottles, needles and other similar disposable "soft goods" inventory claimed by
suppliers of such property made available to the Borrower or any Subsidiary in
the ordinary course of business and which interests do not secure any
Indebtedness owing to such suppliers.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"PLAN" of the Borrower or any of the other Loan Parties shall mean an
employee benefit or other plan established or maintained by such Person or any
ERISA Affiliate of such Person and which is covered by Title IV of ERISA, other
than a Multiemployer Plan of such Person.
"PLEDGE AGREEMENT" means the Second Amended and Restated Pledge
Agreement executed by the Borrower and certain other Loan Parties in favor of
the Agent and substantially in the form of Exhibit J.
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"POST-DEFAULT RATE" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to two percent (2%) plus the Base Rate plus Applicable Margin
corresponding to Level 3 in the definition thereof.
"PRIME RATE" means the rate of interest per annum announced publicly
by the Agent as its prime rate from time to time. The Prime Rate is not
necessarily the best or the lowest rate of interest offered by the Agent or any
Lender.
"PRIMARY OBLIGATIONS" has the meaning given that term in Section 6.3.
"PRINCIPAL OFFICE" means the office of the Agent located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office of the
Agent as the Agent may designate from time to time.
"PROJECTIONS" has the meaning given that term in Section 6.21.
"PURCHASE AGREEMENT" shall mean, with respect to an Acquisition, the
asset purchase agreement, stock purchase agreement or other primary agreement
to which the Borrower and/or one or more of its Subsidiaries is a party and
which evidences the terms of such Acquisition.
"QPP" shall mean the Quality Plasma Program of ABRA.
"REDEEMABLE STOCK" means any class or series of capital stock or other
equity interest to the extent that, either by its terms, by the terms of any
security into which it is convertible or exchangeable, or by contract or
otherwise, is or upon the happening of an event or passage of time would be,
required to be redeemed or is redeemable at the option of the holder thereof at
any time, or is convertible into or exchangeable for debt securities at any
time.
"REGISTER" has the meaning given that term in Section 12.5.(e).
"RCRA" shall mean the Resource Conservation and Recovery Act of 1976,
as amended.
"REGULATIONS T, U AND X" shall mean, respectively, Regulations T, U
and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be amended or supplemented from time to time.
"REGULATORY CHANGE" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental
Authority or monetary authority charged with the interpretation or
administration thereof.
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"REGULATORY PERMITS" shall mean (i) FDA establishment licenses, (ii)
FDA product licenses, (iii) CLIA registrations, (iv) QPP certifications, and
(v) state licenses or permits relating to the operation of Donor Centers,
including those applicable to medical waste, clinical laboratory testing, and
drug testing.
"REIMBURSEMENT OBLIGATION" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"RELEASE" shall mean any "release" as such term is defined in 42
U.S.C. ss.9601(22), or any successor federal statute or analogous state law.
"RENTAL EXPENSE" means, with respect to any period of determination,
all lease, rental and all other payments made in respect of or in connection
with the use of property (whether real, personal or mixed) by the Borrower and
its Consolidated Subsidiaries with respect to such period other than those with
respect to Capitalized Lease Obligations.
"RESPONSIBLE OFFICER" means, as to any Person, the president, chief
executive officer, chief operating officer, any financial officer, any vice
president or the general counsel of such Person (or, in the case of a
partnership, of the managing general partner of such Person). For purposes of
Article VI hereof, such term means, with respect to the Borrower, the
president, chief executive officer, director of finance, corporate controller,
chief financial officer, treasurer and general counsel.
"REQUISITE LENDERS" means, as of any date, Lenders having at least 66
2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66 2/3% of the
principal amount of the Loans and Letter of Credit Liabilities.
"RESTRICTED PAYMENT" means dividends by or on behalf of a Loan Party
on, or other payments or distributions on account of or with respect to, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of capital stock of or other equity interest in such Loan Party.
"REVOLVING LOAN" means a loan made by a Lender to the Borrower
pursuant to Section 2.1.(a).
"REVOLVING NOTE" has the meaning given that term in Section 2.9.(a).
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, together with all rules and regulations issued thereunder.
"SECURITY AGREEMENT" means the Second Amended and Restated Security
Agreement executed by certain Loan Parties in favor of the Agent and
substantially in the form of Exhibit K.
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"SECURITY DEED" means a mortgage, deed of trust, deed to secure debt,
leasehold mortgage or similar security instrument executed by the Borrower or
any Subsidiary in favor of the Agent, given as security for payment of all of
the Obligations, similar in form and substance to the agreement attached as
Exhibit Q, or otherwise in form and substance satisfactory to the Agent.
"SECURITY DOCUMENT" means (a) the Guaranty, the Security Agreement,
the Pledge Agreement, and the Security Deeds; (b) the Assignment of Acquisition
Documents, each Trademark Security Agreement and each Patent Security
Agreement; (c) each of the UCC Financing Statements naming a Loan Party as
debtor and the Agent, as secured party and covering any of the Collateral; and
(d) any other document or instrument executed by a Loan Party providing for
collateral security for any of the Obligations.
"SELLER" shall mean the Person being acquired (or whose assets are
being acquired) in an Acquisition.
"SERAMED" shall mean Serologicals Specialty Biologics, Inc., formerly
known as Seramed, Inc., a corporation organized under the laws of the State of
Delaware.
"SERAMED DISPOSITION" means the sale by the Borrower and its
Subsidiaries of all or substantially all of Seramed and its respective
Subsidiaries.
"SIGNIFICANT ACQUISITION" means any Acquisition in which the aggregate
amount of consideration payable by the Borrower and its Subsidiaries in
connection therewith exceeds 5.0% of Consolidated Tangible Assets as of the
most recently ending fiscal quarter. for purposes of this definition, such
consideration shall include, but shall not be limited to, all Acquisition
Consideration.
"S&P" means Standard & Poor's Rating Services, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"STATED AMOUNT" means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may be
increased or reduced from time to time in accordance with the terms of such
Letter of Credit.
"STOCK REPURCHASE SUSPENSION" has the meaning given that term in
Section 9.6.
"SUBORDINATED DEBT" means all Consolidated Debt, the payment of
principal and interest of which is subordinate in right of payment to the
Obligations on customary terms and conditions approved of in writing by (a) the
Agent in its reasonable discretion in the case of Consolidated Debt in
aggregate outstanding principal amount not in excess of $5,000,000 evidenced by
promissory notes issued by the Borrower or any Subsidiary in connection with
Acquisitions and (b) the Agent and the Requisite Lenders in their reasonable
discretion in all other cases.
"SUBSIDIARY" means, as to any Person, any corporation, partnership or
joint venture, limited liability company, whether now existing or hereafter
organized or acquired: (i) in the
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case of a corporation, of which at least a majority of the outstanding shares of
stock having by the terms thereof ordinary voting power to elect a majority of
the board of directors of such corporation (other than stock having such voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person and/or one or more of its
Subsidiaries or (ii) in the case of a partnership, limited liability company or
joint venture, in which such Person or a Subsidiary of such Person is a general
partner, member or joint venturer or of which a majority of the partnership,
limited liability company or other ownership interests are at the time owned by
such Person and/or one or more of its Subsidiaries.
"SWAP OBLIGATIONS" means all obligations, whether direct or indirect,
absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, owing by the Borrower or any other Loan Party to any Lender under
(a) any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar contractual agreement or arrangement
between the Borrower or such Loan Party and such Lender for the purpose of
protecting against fluctuations in interest rates or (b) any foreign exchange
contract, currency swap agreement or other similar agreement or arrangement
between the Borrower or such Loan Party and such Lender designed to protect the
Borrower or such Loan Party against fluctuations in currency values.
"SWINGLINE COMMITMENT" means Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.13. in an amount up to, but not
exceeding, $5,000,000, as such amount may be reduced from time to time in
accordance with the terms hereof.
"SWINGLINE LENDER" means Bank of America, N.A., or any successor
Swingline Lender hereunder, together with its successors and permitted assigns.
"SWINGLINE LOAN" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.13.(a).
"SWINGLINE NOTE" means the promissory note of the Borrower payable to
the order of the Swingline Lender in a maximum principal amount equal to the
amount of the Swingline Commitment as originally in effect and otherwise duly
completed, substantially in the form of Exhibit L.
"TAXES" has the meaning given that term in Section 3.12.
"TERMINATION DATE" means April 25, 2005.
"TOTAL CAPITALIZATION" means Consolidated Debt plus Net Worth.
"TRADEMARK SECURITY AGREEMENT" means a Third Amended and Restated
Trademark Security Agreement executed by a Loan Party in favor of the Agent and
substantially in the form of Exhibit M.
"TRANSACTIONS" shall mean (a) any Acquisition, (b) the execution and
delivery of each of the Credit Documents and the Acquisition Documents, (c) the
making by the Lenders and the
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Swingline Lender, and the borrowing by the Borrower, of the Loans hereunder or
the issuance of any Letters of Credit hereunder and (d) the consummation of all
of the other transactions contemplated by the Acquisition Documents and the
Credit Documents.
"TYPE" with respect to any Loan, refers to whether such Loan is a
LIBOR Loan or Base Rate Loan.
"WHOLLY-OWNED SUBSIDIARY" of a Person shall mean any corporation,
association or other business entity of which 100% of the outstanding shares of
all classes of capital stock or other ownership interests is at the time owned
directly or indirectly by, such Person or one or more of the other Wholly-Owned
Subsidiaries of such Person or a combination thereof.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Georgia.
SECTION 1.2. GENERAL; REFERENCES TO TIMES.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified from time to time to the extent permitted hereby
and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the singular and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference
to an "Affiliate" means a reference to an Affiliate of the Borrower. Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references to
Atlanta, Georgia time.
SECTION 1.3. ACCOUNTING TREATMENT FOR ACQUIRED ENTITIES.
Unless otherwise specified herein, if any Loan Party shall have
acquired (i) all or substantially all of the assets of another Person, (ii) all
or substantially all of a line or lines of business conducted by another
Person, (iii) a division of another Person or (iv) a controlling equity
interest in another Person (such assets, lines of business, division or, in the
case of an equity interest, such Person, being a "Target"), during any
applicable period for which the Borrower's compliance with the financial
covenants in Section 9.1. is to be determined or for which Consolidated Debt,
EBIT, EBITDA, Cash Flow or Interest Expense is to be calculated (including,
without limitation, calculating Consolidated Debt and EBITDA for purposes of
determining whether an Acquisition is a Permitted Acquisition), then such
Target shall be
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deemed to have been acquired by such Loan Party at the beginning of such four
fiscal quarter period so long as the Lenders have been provided with financial
statements with respect to such Target for the fiscal year most recently
ending, such financial statements to be in form and substance satisfactory to
the Requisite Lenders.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. REVOLVING LOANS.
(a) Generally. Subject to the terms and conditions hereof,
including without limitation Section 2.14., during the period from the Closing
Date to but excluding the Termination Date, each Lender severally and not
jointly agrees to make Revolving Loans to the Borrower in an aggregate
principal amount at any one time outstanding up to, but not exceeding, the
amount of such Lender's Commitment. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.
(b) Requesting Revolving Loans. The Borrower shall give the Agent
notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing
of Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent
before 11:30 a.m. (a) in the case of LIBOR Loans, on the date 3 Business Days
prior to the proposed date of such borrowing and (b) in the case of Base Rate
Loans, on the date of such borrowing (which must be a Business Day). Any such
telephonic notice shall include all information to be specified in a written
Notice of Borrowing and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Borrowing sent to the Agent by telecopy on the same day
of the giving of such telephonic notice. The Agent will transmit by telecopy
the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Lender promptly upon receipt by the Agent. Each Notice of
Borrowing or telephonic notice of each borrowing shall be irrevocable once
given and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 2:00
p.m. on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Revolving
Loan to be made by such Lender. Subject to satisfaction of the applicable
conditions set forth in Article V. for such borrowing, the Agent will make the
proceeds of such borrowing available to the Borrower no later than 4:00 p.m. on
the date and at the account specified by the Borrower in such Notice of
Borrowing.
SECTION 2.2. LETTERS OF CREDIT.
(a) Letters of Credit. Subject to the terms and conditions of
this Agreement, including without limitation Section 2.14., the Agent, on
behalf of the Lenders, agrees to issue for the account of the Borrower during
the period from and including the Closing Date to, but excluding, the date 30
days prior to the Termination Date one or more letters of credit (each a
"Letter of Credit") up to a maximum aggregate Stated Amount plus unpaid
Reimbursement Obligations at any one time outstanding not to exceed the L/C
Commitment Amount.
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(b) Terms of Letters of Credit. At the time of issuance, the
amount, form, terms and conditions of each Letter of Credit, and of any drafts
or acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiration date of
any Letter of Credit extend beyond the date 10 days prior to the Termination
Date, and any Letter of Credit containing an automatic renewal provision shall
also contain a provision pursuant to which, notwithstanding any other
provisions thereof, it shall have a final expiration date no later than the
date 10 days prior to the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower
shall give the Agent written notice (or telephonic notice promptly confirmed in
writing) not later than 11:00 a.m. on the date 3 Business Days prior to the
requested date of issuance of a Letter of Credit, such notice to describe in
reasonable detail the proposed terms of such Letter of Credit and the nature of
the transactions or obligations proposed to be supported by such Letter of
Credit, and in any event shall set forth with respect to such Letter of Credit
(i) the proposed initial Stated Amount, (ii) the beneficiary or beneficiaries,
(iii) whether such Letter of Credit is a commercial or standby letter of credit
and (iv) the proposed expiration date. The Borrower shall also execute and
deliver such customary letter of credit application forms as reasonably
requested from time to time by the Agent. Provided the Borrower has given the
notice required by this subsection and subject to Section 2.14. and the other
terms and conditions of this Agreement, including the satisfaction of any
applicable conditions precedent set forth in Article V., the Agent shall issue
the requested Letter of Credit on the requested date of issuance. Upon the
written request of the Borrower, the Agent shall deliver to the Borrower a copy
of each issued Letter of Credit within a reasonable time after the date of
issuance thereof. To the extent any term of a Letter of Credit Document is
inconsistent with a term of any Credit Document, the term of such Credit
Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter
of Credit, the Agent shall promptly notify the Borrower of the amount to be
paid by the Agent as a result of such demand and the date on which payment is
to be made by the Agent to such beneficiary in respect of such demand. The
Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit on
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of Section
2.2.(i) such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice
referred to in the immediately preceding subsection (d), the Borrower shall
advise the Agent whether or not the Borrower intends to borrow hereunder to
finance its obligation to reimburse the Agent for the amount of the related
demand for payment and, if it does, the Borrower shall submit a timely Notice
of Borrowing or Notice of Swingline Borrowing, as appropriate. If the Borrower
fails to so advise the Agent, or if the Borrower fails to reimburse the Agent
for a demand for payment under a Letter of Credit by the date of such payment,
then (i) if the applicable conditions contained in Article V. would permit the
making of Revolving Loans, the Borrower shall be
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deemed to have requested a borrowing of Revolving Loans (which shall be Base
Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the
Agent shall give each Lender prompt notice of the amount of the Revolving Loan
(which shall not be subject to the limitations of Section 3.5.) to be made by
such Lender, the proceeds of which such Lender shall make available to the
Agent not later than 1:00 p.m. and (ii) if such conditions would not permit the
making of Revolving Loans, the provisions of subsection (j) of this Section
shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance
by the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to such Lender's
Commitment Percentage of the Stated Amount of such Letter of Credit plus any
related Reimbursement Obligations then outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional
Nature of Reimbursement Obligation. In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Agent shall use the same standard
of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any
of the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party
in connection with the application for and issuance of or in connection with
any drawing honored under any Letter of Credit even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit, or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any Letter of Credit to comply fully with conditions required in
order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable, telex,
telecopy or otherwise, whether or not they be in cipher absent gross negligence
or willful misconduct by the Agent or except to the extent found in a final,
non-appealable judgment by a court of competent jurisdiction or by a binding
determination of any arbitral body, as applicable, to have resulted from the
bad faith of the Agent; (v) errors in interpretation of technical terms absent
gross negligence or willful misconduct by the Agent or except to the extent
found in a final, non-appealable judgment by a court of competent jurisdiction
or by a binding determination of any arbitral body, as applicable, to have
resulted from the bad faith of the Agent; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit, or the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Agent or the Lenders. None of the above
shall affect, impair or prevent the vesting of any of the Agent's rights or
powers hereunder. Any action taken or omitted to be taken by the Agent under or
in connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create against the Agent any
liability to the Borrower or any Lender;
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provided, however, nothing contained in this subsection shall be deemed to
constitute a waiver of any remedy the Borrower may have against the Agent or
any Lender to the extent resulting from the gross negligence or willful
misconduct of the Agent or such Lender, as the case may be, or to the extent
resulting from the bad faith of the Agent or a Lender, as the case may be, as
determined in a final, non-appealable judgment by a court of competent
jurisdiction or by binding arbitration, as applicable. In this connection, the
obligation of the Borrower to reimburse the Agent for any drawing made under
any Letter of Credit shall be absolute, unconditional and irrevocable and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (B) any amendment or waiver
of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against the Agent, any Lender, any
beneficiary of a Letter of Credit or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or in the Letter of
Credit Documents or any unrelated transaction; (D) any breach of contract or
dispute between the Borrower, the Agent, any Lender or any other Person; (E)
any demand, 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 or made in connection therewith being untrue or inaccurate in
any respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Agent under the Letter of Credit against
presentation of a draft or certificate which does not strictly comply, but
which does substantially comply, with the terms of the Letter of Credit; and
(H) any other act, omission to act, delay or circumstance whatsoever that
might, but for the provisions of this Section, constitute a legal or equitable
defense to or discharge of the Borrower's Reimbursement Obligations. Nothing
herein provides a waiver of any remedies the Borrower may have for (i) the
Agent's or any Lender's gross negligence or willful misconduct or (ii) actions
taken (or not taken) by the Agent or the Lenders to the extent found in a
final, non-appealable judgment by a court of competent jurisdiction or by a
binding determination of any arbitral body, as applicable, to have been taken
(or not taken) in bad faith.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to
the same conditions applicable under this Agreement to the issuance of new
Letters of Credit (including, without limitation, that the request therefor be
made through the Agent), and no such amendment, supplement or other
modification shall be issued unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it originally
been issued hereunder in such amended, supplemented or modified form or (ii)
the Requisite Lenders shall have consented thereto.
(i) Lenders' Participation in Letters of Credit. Immediately upon
the issuance by the Agent of any Letter of Credit each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of the liability of the Agent
with respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and
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shall be unconditionally obligated to the Agent to pay and discharge when due,
such Lender's Commitment Percentage of the Agent's liability under such Letter
of Credit. In addition, upon the making of each payment by a Lender to the
Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action
on the part of the Agent or such Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing to the Agent
by the Borrower in respect of such Letter of Credit and (ii) a participation in
a percentage equal to such Lender's Commitment Percentage in any interest or
other amounts payable by the Borrower in respect of such Reimbursement
Obligation (other than the Fees payable to the Agent pursuant to the last
sentence of Section 3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees
to pay to the Agent on demand in immediately available funds in Dollars the
amount of such Lender's Commitment Percentage of each drawing paid by the Agent
under each Letter of Credit to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.2.(d) and is not available from funds then on
deposit in the Collateral Account. Each such Lender's obligation to make such
payments to the Agent under this subsection, and the Agent's right to receive
the same, shall be absolute, irrevocable and unconditional and shall not be
affected in any way by any circumstance whatsoever, including without
limitation, (i) the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of the Borrower or any other Loan
Party, (iii) the existence of any Default or Event of Default, including any
Event of Default described in Section 10.1.(e) or 10.1.(f) or (iv) the
termination of the Commitments. Each such payment to the Agent shall be made
without any offset, abatement, withholding or deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from
time to time, the Agent shall deliver to such Lender any information reasonably
requested by such Lender with respect to each Letter of Credit then
outstanding. Other than as set forth in this subsection, the Agent shall have
no duty to notify the Lenders regarding the issuance or other matters regarding
Letters of Credit issued hereunder. The failure of the Agent to perform its
requirements under this subsection shall not relieve any Lender from its
obligations under Section 2.2.(j).
SECTION 2.3. RATES AND PAYMENT OF INTEREST ON LOANS.
(a) Rates. The Borrower promises to pay to the Agent for the
account of each Lender interest on the unpaid principal amount of each
Revolving Loan made by such Lender for the period from and including the date
of the making of such Revolving Loan to but excluding the date such Revolving
Loan shall be paid in full, at the following per annum rates:
(i) during such periods as such Revolving Loan is a Base
Rate Loan, at the Base Rate (as in effect from time to time), plus the
Applicable Margin; and
(ii) during such periods as such Revolving Loan is a
LIBOR Loan, at the Adjusted Eurodollar Rate for such Loan for the
Interest Period therefor, plus the Applicable Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the
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outstanding principal amount of any Loan made by such Lender, on all
Reimbursement Obligations and on any other amount payable by the Borrower
hereunder or under the Notes held by such Lender to or for the account of such
Lender (including without limitation, accrued but unpaid interest to the extent
permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be
payable (i) in the case of a Base Rate Loan, monthly in arrears on the last
Business Day of each calendar month, (ii) in the case of a LIBOR Loan, on the
last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, and (iii) in the case of any LIBOR Loan, upon the payment
or prepayment in full thereof. Interest payable at the Post-Default Rate shall
be payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower. All determinations by the Agent of an interest rate hereunder shall
be conclusive and binding on the Lenders and the Borrower for all purposes,
absent manifest error.
SECTION 2.4. NUMBER OF INTEREST PERIODS.
There may be no more than 6 different Interest Periods outstanding at
the same time.
SECTION 2.5. REPAYMENT OF LOANS.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Loans on the Termination Date.
SECTION 2.6. PREPAYMENTS.
(a) Optional. Subject to Section 4.4., the Borrower may prepay
any Loan at any time without premium or penalty. The Borrower shall give the
Agent notice of the prepayment of any Revolving Loan in writing (or by
telephone promptly confirmed in writing) no later than 11:30 a.m. (a) in the
case of the prepayment of any LIBOR Loans, on the date 3 Business Days prior to
the proposed date of repayment and (b) in the case of the prepayment of Base
Rate Loans, on the date of such prepayment.
(b) Mandatory Prepayment Upon Exceeding Commitments. If at any
time the aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate amount of all Letter of Credit Liabilities and the
aggregate principal amount of all outstanding Swingline Loans, exceeds the
aggregate amount of the Commitments in effect at such time, the Borrower shall
immediately pay to the Agent for the accounts of the Lenders the amount of such
excess. Such payment shall be applied as provided in the immediately following
subsection (d). If the Borrower is required to pay any outstanding LIBOR Loans
by reason of this Section prior to the end of the applicable Interest Period
therefor, the Borrower shall pay all amounts due under Section 4.4.
(c) Mandatory Prepayment Upon Debt Issuance or Disposition.
Within 5 Business Days following Borrower's receipt of Net Proceeds in
connection with any Debt Issuance or any Disposition, the Borrower shall apply
an amount equal to 100% of the Net Proceeds thereof to
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the prepayment of Loans and other Obligations, to be applied as provided in the
immediately following subsection (d).
(d) Application. Prepayments of Loans required to be made
pursuant to the immediately preceding subsections (b) and (c) shall be applied
in the same order and priority as described in subsections (a) through (i) of
Section 10.4.
SECTION 2.7. CONTINUATION.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest
Period selected under this Section shall commence on the last day of the
immediately preceding Interest Period. Each selection of a new Interest Period
shall be made by the Borrower giving to the Agent a Notice of Continuation not
later than 11:00 a.m. on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation shall be in writing
and in the form of a Notice of Continuation, specifying (a) the proposed date
of such Continuation, (b) the LIBOR Loan and portion thereof subject to such
Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall
be irrevocable by and binding on the Borrower once given. Promptly after
receipt of a Notice of Continuation, the Agent shall notify each Lender of the
proposed Continuation. If the Borrower shall fail to select in a timely manner
a new Interest Period for any LIBOR Loan in accordance with this Section, such
Loan will automatically, on the last day of the current Interest Period
therefor, Convert into a Base Rate Loan notwithstanding failure of the Borrower
to comply with Section 2.8.
SECTION 2.8. CONVERSION.
So long as no Default or Event of Default shall have occurred and be
continuing (as to a Conversion from a Base Rate Loan to a LIBOR Loan), the
Borrower may on any Business Day, upon the Borrower's giving of a Notice of
Conversion to the Agent, Convert all or a portion of a Loan of one Type into a
Loan of another Type. Any Conversion of a LIBOR Loan into a Base Rate Loan
shall be made on, and only on, the last day of an Interest Period for such
LIBOR Loan. Each such Notice of Conversion shall be given not later than 11:00
a.m. on the date of any proposed Conversion into Base Rate Loans and on the
third Business Day prior to the date of any proposed Conversion into LIBOR
Loans. Promptly after receipt of a Notice of Conversion, the Agent shall notify
each Lender of the proposed Conversion. Subject to the restrictions specified
above, each Notice of Conversion shall be in writing and in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion, (b)
the Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest
Period of such Loan. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given.
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SECTION 2.9. NOTES.
(a) Revolving Note. The Revolving Loans made by each Lender
shall, in addition to this Agreement, also be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit N (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount
of its Commitment as originally in effect and otherwise duly completed.
(b) Records; Endorsement on Transfer. The date, amount of each
Revolving Loan made by each Lender to the Borrower, and each payment made on
account of the principal thereof, shall be recorded by such Lender on its books
and such entries shall be binding on the Borrower absent manifest error. Prior
to the transfer of any Note, the Lender shall endorse such items on such Note
or any allonge thereof; provided that the failure of such Lender to make any
such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing hereunder or under such
Note in respect of the Loans evidenced by such Note.
SECTION 2.10. VOLUNTARY REDUCTIONS OF THE COMMITMENTS.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments at any time and from time to time without
penalty or premium upon not less than 5 Business Days prior written notice to
the Agent of each such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction and shall be
irrevocable once given and effective only upon receipt by the Agent. The Agent
will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated.
SECTION 2.11. EXPIRATION OR MATURITY DATE OF LETTERS OF CREDIT PAST TERMINATION
DATE.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Agent an
amount of money equal to the Stated Amount of such Letter(s) of Credit for
deposit into the Collateral Account. If a drawing pursuant to any such Letter
of Credit occurs on or prior to the expiration date of such Letter of Credit,
the Borrower authorizes the Agent to use the monies deposited in the Collateral
Account to make payment to the beneficiary with respect to such drawing or the
payee with respect to such presentment.
SECTION 2.12. INCREASE IN COMMITMENTS.
At any time during the 18-month period immediately following the
Agreement Date, the Borrower shall have the right, exercisable one time, to
request an increase in the aggregate amount of the Commitments by an amount not
to exceed $35,000,000 by providing written notice to the Agent at least 90 days
prior to the proposed effective date of such increase, which notice shall be
irrevocable once given. The Agent shall promptly notify each Lender of any such
request. No Lender shall be obligated in any way whatsoever to increase its
Commitment. If a
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new Lender becomes a party to this Agreement, or if any existing Lender agrees
to increase its Commitment, such Lender shall on the date it becomes a Lender
hereunder (or in the case of an existing Lender, increases its Commitment) (and
as a condition thereto) purchase from the other Lenders its Commitment
Percentage (determined with respect to the Lenders' relative Commitments and
after giving effect to the increase of Commitments) of any outstanding
Revolving Loans, by making available to the Agent for the account of such other
Lenders, in same day funds, an amount equal to the sum of (A) the portion of
the outstanding principal amount of such Revolving Loans to be purchased by
such Lender plus (B) interest accrued and unpaid to and as of such date on such
portion of the outstanding principal amount of such Loans. The Borrower shall
pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4.
as a result of the prepayment of any such Loans. An increase of the aggregate
amount of the Commitments may not be effected under this Section if (x) the
Requisite Lenders have not notified the Agent in writing on or prior to the
date which is 30 days subsequent to the date on which the Borrower requested
such increase that they consent to such increase, (y) a Default or Event of
Default shall be in existence on the effective date of such increase or (z) any
representation or warranty made or deemed made by the Borrower or any other
Loan Party in any Loan Document to which such Loan Party is a party is not (or
would not be) true or correct on the effective date of such increase except to
the extent that such representations and warranties expressly relate solely to
an earlier date (in which case such representations and warranties shall have
been true and accurate on and as of such earlier date) and except for changes
in factual circumstances specifically and expressly permitted hereunder. In
connection with an increase in the aggregate amount of the Commitments pursuant
to this Section (a) any Lender becoming a party hereto shall execute such
documents and agreements as the Agent may reasonably request and (b) the
Borrower shall make appropriate arrangements so that each new Lender, and any
existing Lender increasing its Commitment, receives a new or replacement Note,
as appropriate, in the amount of such Lender's Commitment at the time of the
effectiveness of the increase in the aggregate amount of Commitments.
SECTION 2.13. SWINGLINE LOANS.
(a) Swingline Loans. Subject to the terms and conditions hereof,
including without limitation, Section 2.14., the Swingline Lender agrees to
make Swingline Loans to the Borrower, during the period from the Closing Date
to but excluding the Termination Date, in an aggregate principal amount at any
one time outstanding up to, but not exceeding, the amount of the Swingline
Commitment. If at any time the aggregate outstanding principal amount of the
Swingline Loans exceeds the Swingline Commitment in effect at such time, the
Borrower shall immediately pay to the Agent for the account of the Swingline
Lender the amount of such excess. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Swingline Loans
hereunder. The borrowing of a Swingline Loan shall not constitute usage of any
Lender's Commitment for purposes of calculation of the fee payable under
Section 3.6.(a) or otherwise.
(b) Procedure for Borrowing Swingline Loans. With respect to any
Swingline Loan not being made to the Borrower as contemplated under subsection
(f) below, the Borrower shall give the Agent and Swingline Lender notice
pursuant to a Notice of Swingline Borrowing or pursuant to a notice otherwise
given to the Agent and Swingline Lender in such manner, and no later than such
time, as may be agreed to by the Borrower and the Swingline Lender in writing
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from time to time. Not later than such time as may be agreed to by the Borrower
and the Swingline Lender from time to time and subject to satisfaction of the
applicable conditions set forth in Article V. for such borrowing, the Swingline
Lender will make the proceeds of such Swingline Loan available to the Borrower
in Dollars, in immediately available funds, at the account specified by the
Borrower in the Notice of Swingline Borrowing.
(c) Interest. Swingline Loans shall bear interest (i) at a per
annum rate equal to the Base Rate (as in effect from time to time) per annum or
(ii) at such other rate or rates as the Borrower and Swingline Lender may agree
from time to time in writing. Interest payable on Swingline Loans is solely for
the account of the Swingline Lender. All accrued and unpaid interest on
Swingline Loans shall be payable on the dates and in the manner provided in
Section 2.3. with respect to interest on Base Rate Loans (except as the
Swingline Lender and the Borrower may otherwise agree in writing in connection
with any particular Swingline Loan).
(d) Swingline Note. The Swingline Loans shall, in addition to
this Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan within one Business Day of demand therefor
by the Swingline Lender. Notwithstanding the foregoing, the Borrower shall
repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Termination Date (or such earlier date
as the Swingline Lender and the Borrower may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrower, the
Swingline Lender may at any time, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), request a
borrowing of Base Rate Loans (which shall not be subject to the amount
limitations of Section 3.5.) from the Lenders in an aggregate amount equal to
the principal balance of such Swingline Loan. The Swingline Lender shall give
notice to the Agent of any such borrowing of Base Rate Loans not later than
11:00 a.m. on the proposed date of such borrowing. Each Lender will make
available to the Agent for the account of the Swingline Lender, in immediately
available funds, the proceeds of the Loan to be made by such Lender. The Agent
shall pay the proceeds of such Loans to the Swingline Lender, which shall apply
such proceeds to repay such Swingline Loan. If Lenders are prohibited from
making Loans required to be made under this subsection for any reason
whatsoever, including without limitation, the occurrence of any of the Defaults
or Events of Default described in Sections 10.1.(e) or 10.1.(f), each Lender
shall purchase from the Swingline Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender's Pro Rata
Share of such Swingline Loan, by directly purchasing a participation in such
Swingline Loan in such amount and paying the proceeds thereof to the Agent for
the account of the Swingline Lender in Dollars and in immediately available
funds. A Lender's obligation to purchase such a participation in a Swingline
Loan shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of setoff,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have or claim against the Agent, the Swingline Lender or any other
Person whatsoever, (ii) the occurrence or continuation of a Default or Event of
Default (including without limitation, any of the Defaults or Events of Default
described in Sections 10.1.(e) or (f)) or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event of condition
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which has had or could have a Material Adverse Effect, (iv) any breach of any
Credit Document by the Agent, any Lender or the Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon the Swingline Lender's demand
therefor, and until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of such unpaid participation obligation for all purposes of
the Loan Documents (other than those provisions requiring the other Lenders to
purchase a participation therein). Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans, and
any other amounts due to it hereunder, to the Swingline Lender to fund
Swingline Loans in the amount of the participation in Swingline Loans that such
Lender failed to purchase pursuant to this Section until such amount has been
purchased (as a result of such assignment or otherwise).
(f) Auto Borrow/Auto Sweep Programs. Until the occurrence of a
Default or Event of Default, the Borrower shall be deemed to have requested
that the Swingline Lender make to the Borrower at 5:00 p.m. on each Business
Day a Swingline Loan in an amount equal to the amount by which drafts against
the Operating Account exceed the available balance of funds then on deposit in
the Operating Account. The Agent shall notify the Swingline Lender of the
amount of such excess. The Swingline Lender shall make the proceeds of each
such Swingline Loan available to the Borrower by paying the same to the Agent
for deposit into the Operating Account. At 5:00 p.m. on each Business Day, the
Borrower shall repay a principal amount of Swingline Loans by an amount equal
to the positive balance, if any, of available funds then on deposit in the
Operating Account as determined by the Agent at such time. The Borrower hereby
authorizes the Agent to deduct such amount from the Operating Account without
notice to the Borrower, and to pay such amount to the Swingline Lender in
repayment of the then outstanding principal balance of Swingline Loans.
SECTION 2.14. AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement or any other Credit
Document, at no time may the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate amount of all Letter of Credit
Liabilities and the aggregate principal amount of all outstanding Swingline
Loans, exceed the aggregate amount of the Commitments as in effect at that
time.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1. PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments
of principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Credit Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at
its Principal Office, not later than 2:00 p.m. on the date on which such
payment shall become due (each such payment made after such time on such due
date to be
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deemed to have been made on the next succeeding Business Day). Subject to
Sections 3.2. and 3.3., the Agent, or any Lender for whose account any such
payment is made, may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time from any special or general deposit
account of the Borrower with the Agent or such Lender, as the case may be (with
notice to the Borrower, the other Lenders and the Agent). The Borrower shall,
at the time of making each payment under this Agreement or any Note, specify to
the Agent the amounts payable by the Borrower hereunder to which such payment
is to be applied. Each payment received by the Agent for the account of a
Lender under this Agreement or any Note shall be paid to such Lender at the
applicable Lending Office of such Lender no later than 5:00 p.m. on the date of
receipt. Each payment received by Agent for the account of Swingline Lender
under this Agreement or the Swingline Note shall be paid to Swingline Lender in
accordance with the payment instructions provided by Swingline Lender to the
Agent from time to time. If the due date of any payment under this Agreement or
any other Credit Document would otherwise fall on a day which is not a Business
Day such date shall be extended to the next succeeding Business Day and
interest shall be payable for the period of such extension.
(b) Unless the Borrower or any Lender has notified the Agent,
prior to the date any payment is required to be made by it to the Agent
hereunder, that the Borrower or such Lender, as the case may be, will not make
such payment, the Agent may assume that the Borrower or such Lender, as the
case may be, has timely made such payment and may (but shall not be so required
to), in reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment is not in fact made to
the Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each
Lender shall forthwith on demand repay to the Agent the portion of
such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Agent to such Lender to the date such amount is repaid to the
Agent in immediately available funds, at the Federal Funds Rate from
time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the Agent to
the Borrower to the date such amount is recovered by the Agent (the
"Compensation Period") at a rate per annum equal to the Federal Funds
Rate from time to time in effect. If such Lender pays such amount to
the Agent, then such amount shall constitute such Lender's Loan to the
Borrower. If such Lender does not pay such amount forthwith upon the
Agent's demand therefor, the Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Agent,
together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Loan. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
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A notice of the Agent to any Lender with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest error.
SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing
from the Lenders under Section 2.1.(a) shall be made from the Lenders, each
payment of the Fees under Section 3.6.(a) and the first sentence of Section
3.6.(b) shall be made for the account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.10. or otherwise,
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Revolving Loans by the Borrower shall be made for
the account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them, provided that if
immediately prior to giving effect to any such payment in respect of any
Revolving Loans the outstanding principal amount of the Revolving Loans shall
not be held by the Lenders pro rata in accordance with their respective
Commitments in effect at the time such Loans were made, then such payment shall
be applied to the Revolving Loans in such manner as shall result, as nearly as
is practicable, in the outstanding principal amount of the Revolving Loans
being held by the Lenders pro rata in accordance with their respective
Commitments; (c) each payment of interest on Revolving Loans by the Borrower
shall be made for the account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective
Lenders; (d) the making, Conversion and Continuation of Revolving Loans of a
particular Type (other than Conversions provided for by Section 4.5.) shall be
made pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in the
case of Conversions and Continuations of Loans) and the then current Interest
Period for each Lender's portion of each Loan of such Type shall be
coterminous; and (e) the Lenders' participation in, and payment obligations in
respect of and receipt of payments with respect to, Letters of Credit under
Section 2.2. and Swingline Loans under Section 2.13., shall be pro rata in
accordance with their respective Commitments.
SECTION 3.3. SHARING OF PAYMENTS, ETC.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a Loan Party through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the
terms of this Agreement and such payment should be distributed to the Lenders
pro rata in accordance with Section 3.2. or Section 10.4., as applicable, such
Lender shall promptly pay such amounts to the other Lenders and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses
which may be incurred by such Lender in obtaining or preserving such benefit)
pro rata in accordance with Section 3.2. or Section 10.4. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to
such
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other Lenders may exercise all rights of set-off, banker's lien, counterclaim
or similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower. All payments of principal, interest, fees and other amounts in
respect of the Swingline Loans shall be for the account of Swingline Lender
only (except to the extent any Lender shall have acquired a participating
interest in any such Swingline Loan pursuant to Section 2.13.(e)).
SECTION 3.4. SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
SECTION 3.5. MINIMUM AMOUNTS.
(a) Borrowings. Each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof. Each borrowing of LIBOR Loans shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess of that
amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess thereof (or such lesser amount as may be the outstanding
principal amount of such Revolving Loans).
(c) Reductions of Commitments. Each reduction of the Commitments
under Section 2.10. shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $100,000 in excess thereof (or such lesser amount as may
be the remaining aggregate amount of the Commitments).
(d) Conversions. Each Conversion of a Loan from a Base Rate Loan
to a LIBOR Loan shall be in an aggregate minimum amount for the Loans of all
Lenders of $1,000,000 or integral multiples of $100,000 in excess thereof.
(e) Letters of Credit. The initial Stated Amount of each Letter
of Credit shall be at least $50,000.
SECTION 3.6. FEES.
(a) Commitment Fee. The Borrower agrees to pay to the Agent for
the account of the Lenders a commitment fee on the average daily amount by
which the Commitments (as the amount of the Commitments may be reduced or
increased from time to time pursuant to this Agreement or otherwise) exceed the
aggregate principal balance of all outstanding Revolving Loans, together with
the aggregate amount of all Letter of Credit Liabilities, at a rate per annum
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equal to (i) the Applicable Commitment Fee with respect to any fiscal quarter
during which the average daily amount by which the Commitments (as the amount
of the Commitments may be reduced or increased from time to time pursuant to
this Agreement or otherwise) exceed the aggregate principal balance of all
outstanding Revolving Loans, together with the aggregate amount of all Letter
of Credit Liabilities, is less than fifty percent (50%) of such Commitments, or
(ii) the Applicable Commitment Fee plus 0.15% with respect to any fiscal
quarter during which the average daily amount by which the Commitments (as the
amount of the Commitments may be reduced or increased from time to time
pursuant to this Agreement or otherwise) exceed the aggregate principal balance
of all outstanding Revolving Loans, together with the aggregate amount of all
Letter of Credit Liabilities, is equal to or greater than fifty percent (50%)
of such Commitments. Such commitment fee shall be payable for the period from
and including the Agreement Date to but excluding the earlier of the date the
Commitments are terminated or reduced to zero or the Termination Date. As
provided in the last sentence of Section 2.13.(a), the borrowing of a Swingline
Loan shall not constitute usage of any Lender's Commitment for purposes of
calculating such commitment fee. Such commitment fee shall be payable in
arrears on (i) the last Business Day of March, June, September and December in
each year commencing with June 30, 2002, (ii) on the Termination Date, and
(iii) on the date the Commitments are otherwise terminated or reduced to zero.
(b) Letter of Credit Fees. The Borrower agrees to pay to the
Agent for the account of each Lender a letter of credit fee at a rate per annum
equal to the Applicable Margin for LIBOR Loans of the daily average Stated
Amount of each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit to and including the date such Letter of
Credit is drawn in full, expires or is terminated. The Borrower also agrees to
pay to the Agent for its own account a fronting fee in respect of each Letter
of Credit at a rate per annum equal to one-eighth of one percent (0.125%) of
the Stated Amount of such Letter of Credit for the period from and including
the date of issuance of such Letter of Credit to and including the date such
Letter of Credit is drawn in full, expires or is terminated. The fees provided
for in the immediately preceding two sentences shall be nonrefundable and paid
in arrears (i) the last Business Day of March, June, September and December in
each year commencing with June 30, 2002, (ii) on the Termination Date, (iii) on
the date the Commitments are terminated or reduced to zero and (iv) thereafter
from time to time on demand of the Agent. The Borrower shall pay directly to
the Agent from time to time on demand all commissions, charges, costs and
expenses in the amounts customarily charged by the Agent from time to time in
like circumstances with respect to the issuance of each Letter of Credit,
drawings, amendments and other transactions relating thereto.
(c) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent and BAS, and any other Fees of the
Lenders, as may be agreed to in writing from time to time.
SECTION 3.7. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan and any other Obligations due hereunder, and any Fees due hereunder,
shall be computed on the basis of a year of 360 days and the actual number of
days elapsed; provided, however, accrued interest on
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any Base Rate Loan shall be computed on the basis of a year of 365 or 366 days,
as applicable, and the actual number of days elapsed.
SECTION 3.8. USURY.
In no event shall the amount of interest due or payable on the Loans
or other Obligations exceed the maximum rate of interest allowed by Applicable
Law and, if any such payment is paid by the Borrower or received by any Lender,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the respective Lender in writing that the Borrower elects
to have such excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under Applicable Law.
SECTION 3.9. AGREEMENT REGARDING INTEREST AND CHARGES.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this
Agreement is and shall be the interest specifically described in Section
2.3.(a) and, with respect to Swingline Loans, in Section 2.13.(c).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, commitment fees, letter of credit fees,
underwriting fees, default charges, late charges, funding or "breakage"
charges, increased cost charges, attorneys' fees and reimbursement for costs
and expenses paid by the Agent or any Lender to third parties or for damages
incurred by the Agent or any Lender, are charges made to compensate the Agent
or any such Lender for underwriting or administrative services and costs or
losses performed or incurred, and to be performed or incurred, by the Agent and
the Lenders in connection with this Agreement and shall under no circumstances
be deemed to be charges for the use of money pursuant to Official Code of
Georgia Annotated Sections 7-4-2 and 7-4-18. All charges other than charges for
the use of money shall be fully earned and nonrefundable when due.
SECTION 3.10. STATEMENTS OF ACCOUNT.
The Agent will account to the Borrower with a statement of Loans,
Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Credit Documents, and such statement
rendered by the Agent shall be deemed conclusive upon Borrower absent manifest
error. The failure of the Agent to deliver such a statement shall not relieve
or discharge the Borrower from any of its obligations hereunder.
SECTION 3.11. DEFAULTING LENDERS.
(a) Generally. If for any reason any Lender (a "Defaulting
Lender") shall fail or refuse to perform any of its obligations under this
Agreement or any other Credit Document to which it is a party within the time
period specified for performance of such obligation or, if no time period is
specified, if such failure or refusal continues for a period of two Business
Days after notice from the Agent, then, in addition to the rights and remedies
that may be available to the Agent or the Borrower under this Agreement or
Applicable Law, such Defaulting Lender's right to participate in the
administration of the Loans, this Agreement and the other Credit
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Documents, including without limitation, any right to vote in respect of, to
consent to or to direct any action or inaction of the Agent or to be taken into
account in the calculation of the Requisite Lenders, shall be suspended during
the pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to the Agent of any amount
required to be paid to the Agent hereunder (without giving effect to any notice
or cure periods), in addition to other rights and remedies which the Agent or
the Borrower may have under the immediately preceding provisions or otherwise,
the Agent shall be entitled (i) to collect interest from such Defaulting Lender
in accordance with Section 3.1.(b), (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Credit Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase price
of such Loans under the following subsection (b) or paid to such Defaulting
Lender upon the Defaulting Lender's curing of its default.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is
not a Defaulting Lender shall have the right, but not the obligation, in its
sole discretion, to acquire all of a Defaulting Lender's Commitment and Loans.
Any Lender desiring to exercise such right shall give written notice thereof to
the Agent no sooner than 2 Business Days and not later than 10 Business Days
after such Defaulting Lender became a Defaulting Lender. If more than one
Lender exercises such right, each such Lender shall have the right to acquire
an amount of such Defaulting Lender's Commitment and Loans in proportion to the
Commitments and Loans of the other Lenders exercising such right. If after such
10th Business Day, the Lenders have not elected to purchase all of the
Commitment and Loans of such Defaulting Lender, then any Eligible Assignee may
purchase such Commitment and Loans. Neither the Agent nor any of the Lenders
shall have any obligation whatsoever to initiate any such replacement or to
assist in finding an Eligible Assignee. Upon any such purchase, the Defaulting
Lender's interest in the Loans and its rights hereunder (but not its liability
in respect thereof or under the Credit Documents or this Agreement to the
extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of purchase, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser thereof, including an appropriate
Assignment and Acceptance Agreement and, notwithstanding Section 12.5.(d),
shall pay to the Agent an assignment fee in the amount of $7,000. The purchase
price for the Commitment and Loans of a Defaulting Lender shall be equal to the
amount of the principal balance of the Loans outstanding and owed by the
Borrower to the Defaulting Lender. Prior to payment of such purchase price to a
Defaulting Lender, the Agent shall apply against such purchase price any
amounts retained by the Agent pursuant to the last sentence of the immediately
preceding subsection (a). The Defaulting Lender shall be entitled to receive
amounts owed to it by the Borrower under the Credit Documents which accrued
prior to the date of the default by the Defaulting Lender, to the extent the
same are received by the Agent from or on behalf of the Borrower. There shall
be no recourse against any Lender or the Agent for the payment of such sums
except to the extent of the receipt of payments from any other party or in
respect of the Loans. If, prior to a Lender's acquisition of a Defaulting
Lender's Commitment and Loans pursuant to this subsection, such Defaulting
Lender
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shall cure the event or condition which caused it to become a Defaulting Lender
to the satisfaction of the Agent and shall have paid all amounts owing by it
hereunder as a result thereof, then such Lender shall no longer have the right
to acquire such Defaulting Lender's Commitment or Loans.
SECTION 3.12. TAXES.
(a) Taxes Generally. All payments by the Borrower of principal
of, and interest on, the Loans and all other Obligations shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding the following (collectively, "Excluded Taxes"): (i) franchise taxes,
(ii) any taxes (other than withholding taxes) that would not be imposed but for
a connection between the Agent or a Lender and the jurisdiction imposing such
taxes (other than a connection arising solely by virtue of the activities of
the Agent or such Lender pursuant to or in respect of this Agreement or any
other Credit Document), (iii) any taxes imposed on or measured by any Lender's
assets, net income, receipts or branch profits and (iv) any taxes arising after
the Agreement Date solely as a result of or attributable to a Lender changing
its designated Lending Office after the date such Lender becomes a party hereto
(such items other than Excluded Taxes being collectively called "Taxes"). If
any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any Applicable Law,
then the Borrower will:
(i) pay directly to the relevant Governmental Authority
the full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation reasonably satisfactory to the Agent evidencing
such payment to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of
the applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually
received by the Agent or such Lender will equal the full amount that
the Agent or such Lender would have received had no such withholding
or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes
when due to the appropriate Governmental Authority or fails to remit to the
Agent, for its account or the account of the respective Lender, as the case may
be, the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental Taxes, interest
or penalties that may become payable by the Agent or any Lender as a result of
any such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as
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required by the Code or Treasury Regulations issued pursuant thereto (including
Internal Revenue Service Forms W-8ECI or W-8BEN, as applicable, or appropriate
successor forms), properly completed, currently effective and duly executed by
such Lender or participant establishing that payments to it hereunder and under
the Notes are (i) not subject to United States Federal backup withholding tax
or (ii) not subject to United States Federal withholding tax under the Code
because such payment is either effectively connected with the conduct by such
Lender or participant of a trade or business in the United States or totally
exempt from United States Federal withholding tax by reason of the application
of the provisions of a treaty to which the United States is a party or such
Lender is otherwise exempt. Any Lender who fails to remit to the Borrower or
the Agent any such required certificates, documents, evidence or necessary
forms shall reimburse the Borrower and the Agent for any penalties paid by the
Borrower or the Agent, as applicable, to the extent resulting of the failure of
the Borrower or the Agent, as applicable, to withhold the required amounts that
are caused by such Lender's failure to provide such items when due.
(d) Refunds and Credits. If the Agent or any Lender shall become
aware that it is entitled to a refund or credit in respect of Taxes for which
it has been indemnified by the Borrower pursuant to this Section, the Agent or
such Lender shall promptly notify the Borrower of the availability of such
refund or credit and shall, within 30 days after receipt of a written request
by the Borrower, apply for such refund or credit at the Borrower's sole cost
and expense. So long as no Default or Event of Default shall have occurred and
be continuing, if the Agent or any Lender shall receive a refund or credit in
respect of any such Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, the Agent or such Lender shall promptly notify the
Borrower of such refund or credit and shall, within 10 days of receipt or any
refund or the effective date of any credit, pay such refund or an amount equal
to the amount of such credit, as the case may be, but only to the extent of
amounts that have been paid by the Borrower under this Section with respect to
such refund and not previously reimbursed, to the Borrower, net of all
reasonable out-of-pocket expenses of such Lender or the Agent and without
interest (other than the interest, if any, included in such refund or in
respect of such credit).
ARTICLE IV. YIELD PROTECTION, ETC.
SECTION 4.1. ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) Additional Costs. The Borrower shall promptly pay to the
Agent for the account of a Lender from time to time such amounts as such Lender
may determine in good faith to be necessary to compensate such Lender for any
costs incurred by such Lender that it reasonably determines are attributable to
its making or maintaining of any Loans or its obligation to make any Loans
hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Credit Documents in respect of any of such Loans
or such obligation or the maintenance by such Lender of capital in respect of
its Loans or its Commitments (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or any of the other Credit
Documents in respect of any of such Loans or its Commitments (other than with
respect to Excluded Taxes); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (including, without limitation, any reserves
required to be maintained against (1) "Eurocurrency
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liabilities" as specified in Regulation D of the Board of Governors of the
Federal Reserve System or (2) any other category of liabilities which includes
deposits by reference to which the interest rate on LIBOR Loans is determined
or (3) any category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the United States of America to
residents of the United States of America) relating to any extensions of credit
or other assets of, or any deposits with or other liabilities of, such Lender,
or any commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder); or (iii) has or would have the effect of
reducing the rate of return on capital of such Lender to a level below that
which such Lender could have achieved but for such Regulatory Change (taking
into consideration such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the
effect of the provisions of the immediately preceding subsection (a), if by
reason of any Regulatory Change, any Lender either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the amount of a
category of deposits or other liabilities of such Lender that includes deposits
by reference to which the interest rate on LIBOR Loans is determined as
provided in this Agreement or a category of extensions of credit or other
assets of such Lender that includes LIBOR Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Borrower (with a copy
to the Agent), the obligation of such Lender to make or Continue, or to Convert
any other Type of Loans into, LIBOR Loans hereunder shall be suspended until
such Regulatory Change ceases to be in effect (in which case the provisions of
Section 4.5. shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Borrower under the preceding subsections of
this Section (but without duplication), if as a result of any Regulatory Change
or any risk-based capital guideline or other requirement heretofore or
hereafter issued by any Governmental Authority there shall be imposed, modified
or deemed applicable any tax, reserve, special deposit, capital adequacy or
similar requirement against or with respect to or measured by reference to
Letters of Credit and the result shall be to increase the cost to the Agent of
issuing (or any Lender purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by the Agent or any Lender hereunder in
respect of any Letter of Credit, then, upon demand by the Agent or such Lender,
the Borrower shall pay immediately to the Agent for its account or the account
of such Lender, as applicable, from time to time as specified by the Agent or a
Lender, such additional amounts as the Agent or such Lender, as the case may
be, shall have determined in good faith to be sufficient to compensate the
Agent or such Lender for such increased costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of
the Agent and each Lender agrees to notify the Borrower of any event occurring
after the Agreement Date entitling the Agent or such Lender to compensation
under any of the preceding subsections of this Section as promptly as
practicable; provided, however, the failure of the Agent or any Lender to give
such notice shall not release the Borrower from any of its obligations
hereunder. The Agent and or such Lender agrees to furnish to the Borrower a
certificate setting forth the basis and amount of each request by the Agent or
such Lender for compensation under this Section.
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Determinations by the Agent or any Lender of the effect of any Regulatory Change
shall be conclusive, absent manifest error and provided that such determinations
are made reasonably and in good faith.
SECTION 4.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Agent determines reasonably and in good faith
(which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Adjusted Eurodollar Rate for
such Interest Period, or
(b) the Agent reasonably determines (which determination
shall be conclusive) that the Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of making or
maintaining LIBOR Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
SECTION 4.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans shall be suspended until such
time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 4.5. shall be applicable).
SECTION 4.4. COMPENSATION.
The Borrower shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient to compensate such Lender for any loss, cost or expense that
such Lender determines in good faith is attributable to:
(a) any payment or prepayment (whether mandatory or
optional) of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such
Lender for any reason (including, without limitation, acceleration) on
a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any of the applicable
conditions precedent specified in Article V. to be
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satisfied) to borrow a LIBOR Loan from such Lender on the requested
date for such borrowing, or to Convert a Base Rate Loan into a LIBOR
Loan or to Continue a LIBOR Loan on the requested date of such
Conversion or Continuation,
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest that otherwise would have accrued on the
principal amount so paid, prepaid or Converted or not borrowed for the period
from the date of such payment, prepayment, Conversion or failure to borrow or
Convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow or Convert, the Interest Period for such Loan
that would have commenced on the date specified for such borrowing or
Conversion) at the applicable rate of interest for such Loan provided for herein
plus such Lender's normal administrative charges, if any, associated with such
payment, prepayment, Conversion or failure to borrow over (ii) the amount of
interest that otherwise would have accrued on such principal amount at a rate
per annum equal to LIBOR at such time for an amount comparable to such principal
amount and for a maturity comparable to such period (as reasonably determined by
such Lender). Upon the Borrower's request, any Lender requesting compensation
under this Section shall provide the Borrower with a statement setting forth the
basis for requesting such compensation and the method for determining the amount
thereof. Any such statement shall be conclusive absent manifest error.
SECTION 4.5. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b), 4.2. or 4.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(b) or 4.3., on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1., 4.2. or 4.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued
by such Lender as LIBOR Loans shall be made or Continued instead as
Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into LIBOR Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR
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Loans and by such Lender are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
SECTION 4.6. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
SECTION 4.7. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
ARTICLE V. CONDITIONS PRECEDENT
SECTION 5.1. INITIAL CONDITIONS PRECEDENT.
(a) The effectiveness of the amendment and restatement of the
Existing Credit Agreement contemplated hereby, as well as the obligation of the
Lenders to effect or permit the occurrence of the first Credit Event hereunder,
whether as the making of a Loan or the issuance of a Letter of Credit, are
subject to the following conditions precedent and to the conditions precedent
set forth in section 5.1.(b):
The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) a counterpart of this Agreement executed by the
Borrower and each of the Lenders;
(ii) the Revolving Notes executed by the Borrower, payable
to each of the Lenders and complying with the terms of Section 2.9.,
and the Swingline Note executed by the Borrower, payable to the
Swingline Lender;
(iii) the Guaranty executed by each Guarantor;
(iv) the Pledge Agreement executed by each of the Borrower
and each other Loan Party owning any equity interest in any other Loan
Party. In addition, the Agent shall have received each of the
following: (i) all certificates representing all (or in the
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case of any Foreign Subsidiary, 65%) of the issued and outstanding
capital stock or other equity interests of each of such other Loan
Parties and (ii) stock powers duly endorsed in blank relating to all
such certificates;
(v) the Assignment of Acquisition Documents executed by
each of the Borrower and the other Loan Parties;
(vi) Trademark Security Agreements executed by each of
Serologicals Royalty Company, Biovest, Inc., Serocor Incorporated and
Intergen Discovery Products, LLC;
(vii) Patent Security Agreements executed by each of
Serologicals Royalty Company, Biovest, Inc., Serocor Incorporated and
Intergen Discovery Products, LLC;
(viii) the Security Agreement executed by each of the
Borrower and the other Loan Parties (excluding Foreign Subsidiaries);
(ix) favorable UCC, tax and lien search reports with
respect to each Loan Party in all necessary or appropriate
jurisdictions and under all legal and appropriate trade names
indicating that there are no prior Liens on any of the Collateral of
such Specified Loan Parties other than Permitted Liens or Liens to be
terminated prior to the Closing Date;
(x) an opinion of King & Spalding, counsel to the Loan
Parties, substantially in the form of Exhibit O;
(xi) the articles of incorporation, articles of
organization, certificate of limited partnership or other comparable
organizational instrument (if any) of each Loan Party certified as of a
recent date by the Secretary of State (or comparable Governmental
Authority) of the jurisdiction of formation of such Loan Party;
(xii) a certificate of good standing (or other certificate
of similar meaning) with respect to each Loan Party issued as of a
recent date by the Secretary of State (or comparable Governmental
Authority) of the jurisdiction of formation of each such Loan Party and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state
department of taxation, as applicable) of each state in which each such
Loan Party is required to be so qualified;
(xiii) a certificate of incumbency signed by the Secretary
or Assistant Secretary (or other individual performing similar
functions) of each Loan Party with respect to each of the officers of
such Loan Party authorized to execute and deliver the Loan Documents to
which such Loan Party is a party, and in the case of the Borrower, to
execute and deliver Notices of Borrowing, Notices of Conversion,
Notices of Continuation, Notices of Swingline Borrowing and requests
for the issuance of Letters of Credit;
(xiv) copies certified by the Secretary or Assistant
Secretary of each Loan Party (or other individual performing similar
functions) of (i) the by-laws of such Loan Party, if
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a corporation, the operating agreement, if a limited liability company,
the partnership agreement, if a partnership, or other comparable
document in the case of any other form of legal entity, and (ii) all
corporate, partnership, member or other necessary action taken by such
Loan Party to authorize the execution, delivery and performance of the
Loan Documents to which it is a party;
(xv) a certificate executed by the chief executive officer
or chief financial officer of the Borrower, stating that: (i) on such
date, and after giving effect to the transactions contemplated hereby,
no Default or Event of Default has occurred and is continuing and (ii)
the representations and warranties made or deemed made by the Borrower
or any other Loan Party in the Credit Documents are true and correct in
all material respects on and as of such date with the same effect as
though made on and as of such date;
(xvi) certificates of insurance evidencing the existence of
all insurance required to be maintained by each Loan Party pursuant to
the Credit Documents, together with loss payable clauses as required by
such Credit Documents;
(xvii) the Fees, if any, then due under Section 3.6., and
evidence that all accrued and unpaid interest and fees owing under the
Existing Credit Agreement have been paid;
(xviii) audited consolidated balance sheets and statements of
operations and cash flows of the Borrower and its Consolidated
Subsidiaries for the fiscal years ended December 31, 2000 and December
31, 2001 (collectively, the "Historical Financial Statements");
(xix) a Security Deed encumbering the Kankakee Property,
the form of such Security Deed to be modified as appropriate to conform
to the Applicable Laws of the jurisdiction in which such property is
located, together with financing statements relating to the security
interest granted thereunder;
(xx) An opinion of counsel admitted to practice law in the
State of Illinois and acceptable to the Agent, addressed to the Agent
and each Lender covering such legal matters with respect to such
Security Deed as the Agent may reasonably request;
(xxi) if available to any Loan Party, a copy of each of the
following:
(1) a copy of the most recent owner's policy of
title insurance relating to the Kankakee
Property showing the identity of the fee
titleholder thereto;
(2) the recorded deed or other instrument
pursuant to which the Loan Party that owns
the Kankakee Property obtained title; and
(3) any environmental studies or assessments
performed with respect to the Kankakee
Property; and
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(xxii) such other documents, instruments and agreements as
the Agent or any Lender through the Agent may reasonably request.
(b) The obligation of the Lenders to effect or permit the
occurrence of the first Credit Event hereunder, whether as the making of a Loan
or the issuance of a Letter of Credit, is subject to the following conditions
precedent:
In the good faith judgment of the Agent:
(i) there shall not have occurred since December 31, 2001
any event or circumstance which could be reasonably be expected to have
a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) have a Material
Adverse Effect or (2) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability
of the Borrower or any other Loan Party to fulfill its respective
obligations under the Credit Documents to which it is a party; and
(iii) the Borrower, and the other Loan Parties shall have
received all approvals, consents and waivers, and shall have made or
given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence
of any default under, conflict with or violation of (1) any Applicable
Law or (2) any agreement, document or instrument to which any Loan
Party is a party or by which any of them or their respective properties
is bound, except for such approvals, consents, waivers, filings and
notices the receipt, making or giving of which would not reasonably be
likely to (A) have a Material Adverse Effect, or (B) restrain or
enjoin, impose materially burdensome conditions on, or otherwise
materially and adversely affect the ability of the Borrower or any
other Loan Party to fulfill its respective obligations under the Credit
Documents to which it is a party.
SECTION 5.2. CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT.
The obligation of the Lenders to make any Loans, of the Swingline
Lender to make any Swingline Loan and of the Agent to issue Letters of Credit,
in each case, is subject to the further condition precedent that: (a) no Default
or Event of Default shall have occurred and be continuing as of the date of the
making of such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and warranties
made or deemed made by the Borrower and each other Loan Party in the Credit
Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of the making of such Loan or date of
issuance of such Letter of Credit with the same force and effect as if made on
and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and (c) in the case of the borrowing of Revolving Loans, the
Agent shall have received a timely Notice of Borrowing,
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or in the case of a Swingline Loan, timely receipt by Swingline Lender of a
Notice of Swingline Borrowing. Each Credit Event (including without limitation,
the borrowing of a Swingline Loan as provided in Section 2.13.(f)) shall
constitute a certification by the Borrower to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to such
Credit Event and, unless the Borrower otherwise notifies the Agent prior to the
date of such Credit Event, as of the date of the occurrence of such Credit
Event). The making of any Loans by the Lenders or the Swingline Lender, or
issuance of a Letter of Credit by the Agent, prior to the satisfaction of all
applicable conditions contained in Article V., shall not constitute nor be
construed to be a waiver by the Lenders, the Swingline Lender or the Agent, of
the requirement that such conditions be satisfied.
SECTION 5.3. CONDITIONS TO SIGNIFICANT ACQUISITIONS.
The right of the Borrower to consummate a Permitted Acquisition that is
a Significant Acquisition without violating Section 9.3. and the obligation of
the Lenders to make any Loan hereunder, the proceeds of which will be used to
finance such Acquisition, or to issue any Letter of Credit in connection with
such Significant Acquisition, are subject to the satisfaction of the following
conditions:
(a) Board Materials. To the extent available, the Agent and each
Lender shall have received not less than 10 Business Days prior to the
applicable Acquisition Date (or, if not available at such time, in any event not
more than 60 days following the applicable Acquisition Date), a full and
complete copy of the materials relating to such Significant Acquisition
submitted by the Borrower to its board of directors for its approval of such
Significant Acquisition (but only to the extent such materials have not been
already been provided under any of the succeeding subsections).
(b) Historical Financial Statements. To the extent available, the
Agent and each Lender shall have received not less than 10 Business Days prior
to the applicable Acquisition Date (or, if not available at such time, in any
event not more than 60 days following the applicable Acquisition Date), the
following in form satisfactory to the Agent: (i) a balance sheet, statement of
operations and statement of cash flows for such Seller for the two fiscal years
most recently ended and (ii) if then available, a balance sheet, statement of
operations and statement of cash flows for such Seller for the fiscal quarter
most recently ending prior to the Acquisition Date (collectively, the
"Acquisition Historical Financial Statements").
(c) Pro Forma Financial Statements. To the extent available, the
Agent and each Lender shall have received not less than 10 Business Days prior
to the Acquisition Date (or, if not available at such time, in any event not
more than 60 days following the applicable Acquisition Date), the following in
form satisfactory to the Agent: (i) a pro forma balance sheet, statement of
operations and statement of cash flows for such Seller, the Borrower and its
Consolidated Subsidiaries prepared on a combined basis for the fiscal year most
recently ended and (ii) if then available, a pro forma balance sheet, statement
of operations and statement of cash flows for such Seller, the Borrower and its
Consolidated Subsidiaries prepared on a combined basis for the fiscal quarter
most recently ending prior to the Acquisition Date (collectively, the
"Acquisition Pro Forma Financial Statements").
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(d) Confirmation of Covenant Compliance. The Agent and each Lender
shall have received not less than 10 Business Days prior to the Acquisition
Date, the Compliance Certificate referenced in clause (g) of the definition of
Permitted Acquisition.
(e) Corporate Documents. If such Acquisition involves any New
Subsidiaries, the Agent shall have received on or prior to the Acquisition Date
a copy of the articles of incorporation, articles of organization, certificate
of limited partnership or other similar organizational documents (if any) of
each such New Subsidiary, certified as of a recent date by the Secretary of
State of the jurisdiction of its formation, and a certificate of good standing
(or other certificate of similar meaning) issued as of a recent date from such
Secretary of State.
(f) Lien Searches. The Agent shall have received from the Borrower
on or prior to the Acquisition Date copies of all UCC, tax, judgment and lien
search reports, if any, undertaken by the Borrower with respect to the Seller
and each New Subsidiary (except for any New Subsidiary formed by the Borrower or
any Loan Party solely for the purpose of facilitating such Acquisition, and
formed no more than 90 Business Days prior to the Acquisition Date).
(g) Accession Agreement. If such Acquisition involves any New
Subsidiary, the Agent shall have received on or prior to the Acquisition Date an
Accession Agreement duly executed by such New Subsidiary, which Accession
Agreement shall, in addition to making such New Subsidiary a party to the
Guaranty and the Security Agreement, make such New Subsidiary a party to the
Pledge Agreement, if such New Subsidiary owns any issued and outstanding capital
stock of any other Loan Party.
(h) Financing Statements. Each such New Subsidiary shall have
delivered to the Agent on or prior to the Acquisition Date duly executed UCC
financing statements, and taken such other action, as the Agent shall have
reasonably requested in order to perfect the security interest granted by each
such New Subsidiary pursuant to the Security Agreement.
(i) Pledge of Stock. Subject to the last sentence of Section 7.8.,
the Agent shall have received on or prior to the Acquisition Date from each Loan
Party owning any issued and outstanding capital stock or other equity interests
of each such New Subsidiary, either an amendment (in form and substance
reasonably satisfactory to the Agent) to the Pledge Agreement subjecting to the
Lien thereof such capital stock or other equity interests or if any such Loan
Party is not yet a party to the Pledge Agreement, an Accession Agreement
executed by such Loan Party making such Loan Party a party to the Pledge
Agreement. In addition, the Agent shall have received each of the following: (i)
all certificates representing all of such capital stock or other equity
interests, and (ii) stock powers duly endorsed in blank by the applicable Loan
Parties relating to all such certificates.
(j) Real Property Documents. With respect each parcel (or group of
related parcels) of real property acquired in connection with such Acquisition,
if requested by the Agent, the Agent shall have received on or prior to the
Acquisition Date (i) if such real property is owned in fee simple by the
Borrower or any Subsidiary, the documents of the type referenced in subsections
(i) through (ix) of Section 7.9.(a) hereof or (ii) if such real property is
leased by the
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Borrower or any Subsidiary, the documents of the type referenced in subsections
(i) through (x) of Section 7.9.(b) hereof.
(k) Other Documents. The Agent shall have received on or prior to
the Acquisition Date such other documents as the Agent or its counsel may
reasonably request.
SECTION 5.4. CONDITIONS TO NON-SIGNIFICANT ACQUISITIONS.
The right of the Borrower to consummate a Permitted Acquisition that is
not a Significant Acquisition without violating Section 9.3. and, solely with
respect to satisfaction of the condition set forth in clause (a) below, the
obligation of the Lenders to make any Loan hereunder, the proceeds of which will
be used to finance such Acquisition, or to issue any Letter of Credit in
connection with such Acquisition, are subject to the satisfaction of the
following conditions:
(a) Confirmation of Covenant Compliance. The Agent and each Lender
shall have received not less than 10 Business Days prior to the Acquisition
Date, the Compliance Certificate referenced in clause (g) of the definition of
Permitted Acquisition.
(b) Corporate Documents. If such Acquisition involves any New
Subsidiaries, the Agent shall have received no later than 60 days following the
Acquisition Date a copy of the articles of incorporation, articles of
organization, certificate of limited partnership or other similar organizational
documents (if any) of each such New Subsidiary, certified as of a recent date by
the Secretary of State of the jurisdiction of its formation, and a certificate
of good standing (or other certificate of similar meaning) issued as of a recent
date from such Secretary of State.
(c) Lien Searches. The Agent shall have received from the Borrower
no later than 60 days following the Acquisition Date copies of all UCC, tax,
judgment and lien search reports, if any, undertaken by the Borrower with
respect to the Seller and each New Subsidiary (except for any New Subsidiary
formed by the Borrower or any Loan Party solely for the purpose of facilitating
such Acquisition, and formed no more than 90 Business Days prior to the
Acquisition Date).
(d) Accession Agreement. If such Acquisition involves any New
Subsidiary, the Agent shall have received no later than 60 days following the
Acquisition Date an Accession Agreement duly executed by such New Subsidiary,
which Accession Agreement shall, in addition to making such New Subsidiary a
party to the Guaranty and the Security Agreement, make such New Subsidiary a
party to the Pledge Agreement, if such New Subsidiary owns any issued and
outstanding capital stock of any other Loan Party.
(e) Financing Statements. Each such New Subsidiary shall have
delivered to the Agent no later than 60 days following the Acquisition Date duly
executed UCC financing statements, and taken such other action, as the Agent
shall have reasonably requested in order to perfect the security interest
granted by each such New Subsidiary pursuant to the Security Agreement.
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(f) Pledge of Stock. Subject to the last sentence of Section 7.8.,
the Agent shall have received no later than 60 days following the Acquisition
Date from each Loan Party owning any issued and outstanding capital stock or
other equity interests of each such New Subsidiary, either an amendment (in form
and substance reasonably satisfactory to the Agent) to the Pledge Agreement
subjecting to the Lien thereof such capital stock or other equity interests or
if any such Loan Party is not yet a party to the Pledge Agreement, an Accession
Agreement executed by such Loan Party making such Loan Party a party to the
Pledge Agreement. In addition, the Agent shall have received each of the
following: (i) all certificates representing all of such capital stock or other
equity interests, and (ii) stock powers duly endorsed in blank by the applicable
Loan Parties relating to all such certificates.
(g) Real Property Documents. With respect each parcel (or group of
related parcels) of real property acquired in connection with such Acquisition,
if requested by the Agent, the Agent shall have received not later than 60 days
following the Acquisition Date (i) if such real property is owned in fee simple
by the Borrower or any Subsidiary, the documents of the type referenced in
subsections (i) through (ix) of Section 7.9.(a) hereof or (ii) if such real
property is leased by the Borrower or any Subsidiary, the documents of the type
referenced in subsections (i) through (x) of Section 7.9.(b) hereof.
(h) Other Documents. The Agent shall have received no later than
60 days following the Acquisition Date such other documents as the Agent or its
counsel may reasonably request.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, each Lender and the Swingline Lender to
enter into this Agreement and to make Loans, issue Letters of Credit and make
Swingline Loans, as applicable, the Borrower represents and warrants to the
Agent, the Lenders and the Swingline Lender as follows:
SECTION 6.1. CORPORATE EXISTENCE
Each of the Borrower and the other Loan Parties (a) is a corporation,
partnership or other legal entity, duly organized or formed and validly
existing; (b) has all requisite power, and has all governmental licenses,
authorizations, consents and approvals, necessary to own its assets and carry on
its business as now being or as proposed to be conducted and to consummate the
Transactions, except where the failure to have such requisite power, or have
such governmental licenses, authorizations, consents or approvals could not
reasonably be expected to have a Material Adverse Effect; and (c) is in good
standing under the laws of the jurisdiction of its organization or formation and
is qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary, except where
failure to be in good standing or so to qualify could not reasonably be expected
to have a Material Adverse Effect, all of which such jurisdictions are set forth
on Schedule 6.1.
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SECTION 6.2. AUTHORIZATION; NO CONFLICT
The execution, delivery and performance by the Borrower and the other
Loan Parties of each of the Credit Documents and the Acquisition Documents to
which any is a party and the consummation of the Transactions (a) have been duly
authorized by all requisite corporate and, if required, stockholder action on
the part of the Borrower and each such Loan Party and (b) will not (i) to the
actual knowledge of a Responsible Officer of the Borrower, violate any provision
of Applicable Law, or any order of any Governmental Authority, (ii) violate any
provision of the organizational documents of the Borrower or any other Loan
Party, (iii) violate, conflict with, result in a breach of, or constitute (alone
or with notice or lapse of time or both) a default or an event of default under,
any Material Contract to which the Borrower or any other Loan Party is a party
or by which the Borrower or any other Loan Party or any of its property is or
may be bound, or (iv) result in the creation or imposition of any Lien upon any
property or assets of the Borrower or any other Loan Party (except pursuant to
the Security Documents).
SECTION 6.3. ENFORCEABILITY
This Agreement, each other Credit Document, and each Acquisition
Document have been duly executed and delivered by the Borrower and each of the
other Loan Parties (to the extent it is a party thereto) and constitute the
legal, valid and binding obligations of the Borrower and the other Loan Parties
enforceable against the Borrower and the other Loan Parties in accordance with
their respective terms, except (a) as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other laws
affecting generally the enforcement of creditors' rights and by general
principles of equity (regardless of whether considered in a proceeding in equity
or at law) and (b) that obligations of a Loan Party resulting solely from being
jointly and severally liable under a Credit Document for the obligations (the
"Primary Obligations") of another Loan Party primarily responsible for the
performance of such Primary Obligations may not be enforceable; provided,
however, the lack of such enforceability does not (i) limit in any way the
enforceability of any of the Primary Obligations and (ii) does not make the
principal remedies afforded by such Credit Document inadequate for the practical
realization of the principal rights, benefits or security provided thereby.
SECTION 6.4. APPROVALS
To the actual knowledge of any Responsible Officer of the Borrower, no
authorizations, approvals or consents of, no filings or registrations with, and
notices to any Governmental Authority are necessary for the execution, delivery
or performance by the Borrower and the other Loan Parties of the Credit
Documents, and the Acquisition Documents to which any of them is a party or for
the validity or enforceability thereof, except for (a) filings and recordings in
respect of the Liens created pursuant to the Security Documents and (b) such
authorizations, approvals, consents, filings, registrations or notices as shall
have been previously obtained and which remain in effect.
SECTION 6.5. FINANCIAL CONDITION
(a) The Historical Financial Statements are materially complete
and correct and fairly present the financial condition and results of operations
of the Borrower and its Consolidated
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Subsidiaries as of and for the periods covered thereby. No event or circumstance
has occurred or exists which could reasonably be expected to have a Material
Adverse Effect since the date of the audited financial statements of the
Borrower most recently delivered to the Agent under Section 5.1. or 8.2., as
applicable.
(b) Except as set forth on Schedule 6.6. or in the financial
statements or notes thereto most recently delivered to the Agent under Section
8.1. or 8.2., to the actual knowledge of any Responsible Officer of the
Borrower, the Borrower and its Subsidiaries have no liabilities, contingent or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
(c) Except as otherwise disclosed in writing to the Agent and the
Lenders, to the actual knowledge of any Responsible Officer of the Borrower, (i)
the Acquisition Historical Financial Statements of the Seller fairly present the
financial condition and results of operations of the Seller as of and for the
periods covered thereby; (ii) the Acquisition Pro Forma Financial Statements of
the Seller, the Borrower and its Consolidated Subsidiaries fairly present the
combined financial condition and results of operations of the Seller, the
Borrower and its Consolidated Subsidiaries as of and for the periods covered
thereby and (iii) there has been no material adverse change in the business,
property, assets, liabilities, condition (financial or otherwise), operations,
results of operations or prospects of the Seller since the end of such Seller's
immediately preceding fiscal year.
SECTION 6.6. LITIGATION
Except as set forth on Schedule 6.6. or in any written notice delivered
by the Borrower pursuant to Section 8.4.(c)(D) or Section 8.5., there are no
actions, suits or proceedings at law or in equity by or before any Governmental
Authority now pending or, to the actual knowledge of any Responsible Officer of
the Borrower, threatened against the Borrower or any other Loan Party or their
respective business, property or rights (i) which involve any Credit Document,
any Acquisition Document or any Transaction or (ii) which, if adversely
determined could reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect. There exists no judgment, order, injunction or
other restraint issued or filed which is material to the Borrower or any other
Loan Party, or any of their respective businesses, properties or rights, or
which prohibits or adversely affects any of the Transactions.
SECTION 6.7. FEDERAL RESERVE REGULATIONS
Neither the Borrower nor any of the other Loan Parties is engaged in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock. No part of the proceeds of any
extension of credit hereunder, whether directly or indirectly, and whether
immediately, incidentally or ultimately, will be used (i) to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness originally incurred for such
purpose, or (ii) for any purpose which entails a violation of, or which is
inconsistent with, the provisions of the Regulations of the Board of Governors
of the Federal Reserve System, including Regulations T, U or X. As used herein,
the term "Margin Stock" shall mean margin stock within the meaning of
Regulations T, U and X.
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SECTION 6.8. ERISA
(a) Neither the Borrower nor any other Loan Party maintains or
contributes to any Employee Benefit Plan or Multiemployer Plan other than those
identified on Schedule 6.8. and those material Employee Benefit Plans or
Multiemployer Plans of which the Borrower has given written notice to the Agent
and the Lenders after the date of this Agreement.
(b) The Borrower and each other Loan Party are in compliance in
all respects with all applicable provisions of ERISA and the Code with respect
to all Employee Benefit Plans, except for such non-compliance as could not
reasonably be expected to have a Material Adverse Effect. Each Employee Benefit
Plan that is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and each trust
related to such Plan has been determined to be exempt from federal income tax
under Section 501(a) of the Code. The actuarial present value of all accumulated
benefit obligations under each Plan, as disclosed in the most recent actuarial
report with respect to such Plan, does not exceed the fair market value of the
assets of such Plan, except to such extent as could not reasonably be expected
to have a Material Adverse Effect. No material liability has been incurred by
the Borrower or any other Loan Party or any of their ERISA Affiliates which
remains unsatisfied for any taxes, penalties or other amount (other than
contributions in the ordinary course) with respect to any Employee Benefit Plan
or any Multiemployer Plan, and to the actual knowledge of any Responsible
Officer of the Borrower, no such material liability is expected to be incurred.
(c) Neither the Borrower nor any other Loan Party has: (i) engaged
in a nonexempt prohibited transaction described in Section 406 of ERISA or
Section 4975 of the Code; (ii) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments
which are due and unpaid; (iii) failed to make a required contribution or
payment to a Multiemployer Plan; or (iv) failed to make a required installment
or other required payment under Section 412 of the Code, which, in the case of
any of the immediately preceding clauses (i) through (iv), could reasonably be
expected to have a Material Adverse Effect.
(d) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan or Multiemployer Plan maintained or contributed to by
the Borrower or any other Loan Party which could reasonably be expected to have
a Material Adverse Effect.
(e) Except as set forth on Schedule 6.6. or in any written notice
delivered by the Borrower pursuant to Section 8.5., no proceeding, claim,
lawsuit and/or investigation is existing or, to the actual knowledge of any
Responsible Officer of the Borrower, threatened concerning or involving any
Employee Benefit Plan or Multiemployer Plan maintained or contributed to by the
Borrower or any other Loan Party which, if adversely determined could reasonably
be expected to, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 6.9. TAXES
Each of the Borrower and the other Loan Parties has filed all federal
income tax returns and all other tax returns and reports, domestic and foreign,
required to be filed by it, or filed appropriate extensions, and has paid all
taxes, assessments, fees and other governmental charges
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shown to be due and payable by it on such returns or reports, in each case, the
failure of which to file or pay could reasonably be expected to have a Material
Adverse Effect. All such returns are true and correct in all material respects.
Each of the Borrower and the other Loan Parties has paid or, in the case of
taxes which are not yet due and payable or are being contested in good faith,
has provided adequate reserves for the payment of, all federal, state and
foreign taxes applicable for all prior fiscal years and for the current fiscal
year to the date hereof, the failure of which taxes to pay could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any Loan
Party has received notice of any proposed tax assessment against the Borrower or
any other Loan Party which could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.10. INVESTMENT COMPANY ACT
Neither the Borrower nor any other Loan Party is an "investment
company" nor a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 6.11. PUBLIC UTILITY HOLDING COMPANY ACT
Neither the Borrower nor any other Loan Party is a "holding company"
nor an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
SECTION 6.12. MATERIAL AGREEMENTS
Other than this Agreement, the other Credit Documents, the Acquisition
Documents and except as set forth on Schedule 6.12. or in any written notice
delivered by the Borrower to the Agent and the Lenders after the date of this
Agreement, neither the Borrower nor any other Loan Party is a party to any
agreement or instrument or subject to any corporate restriction that has had or
could reasonably be expected to have a Material Adverse Effect.
SECTION 6.13. ENVIRONMENTAL AND SAFETY MATTERS
Except as set forth on Schedule 6.13. or in any written notice
delivered by the Borrower pursuant to Section 8.4.(c), and except for such of
the following as, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect:
(a) The Borrower and each of the other Loan Parties have obtained
all permits, licenses and other authorizations which are required under
applicable Environmental and Safety Laws (collectively "Permits"), all of which
are listed on Schedule 6.13. hereto.
(b) The Borrower and each of the other Loan Parties have complied
and are in compliance with the terms and conditions of all Permits and with all
applicable Environmental and Safety Laws.
(c) With respect to the Borrower and each of the other Loan
Parties, no notice, notification, demand, request for information, citation,
summons or order has been issued, no
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complaint has been filed, no penalty has been assessed and no investigation is
pending or, to the actual knowledge of any Responsible Officer of the Borrower,
threatened by any Person with respect to any alleged failure to obtain any
Permits or any violation of any applicable Environmental and Safety Laws, or
with respect to the generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release or threatened Release, of any Hazardous
Materials.
(d) No property or facility now or previously owned or operated by
the Borrower or any of the other Loan Parties has been, to the actual knowledge
of any Responsible Officer of the Borrower, or is presently operated by the
Borrower or any of the other Loan Parties in a manner which requires permitting
as a hazardous waste treatment, storage or disposal facility for purposes of
RCRA or any analogous state law.
(e) None of the following is (i) present at any property or
facility now owned or operated by the Borrower or any of the other Loan Parties
or (ii) to the actual knowledge of any Responsible Officer of the Borrower,
present at any property or facility previously owned or operated by the Borrower
or any of its Subsidiaries: (A) polychlorinated biphenyls contained in
electrical or other equipment; (B) asbestos-containing insulation or building
material; or (C) active or inactive underground storage tanks.
(f) No Hazardous Materials have been released by the Borrower or
any of the other Loan Parties into the environment at or from any property or
facility now or previously owned or operated by the Borrower or any of the other
Loan Parties so as to give rise to any present or future liability or obligation
under any applicable Environmental and Safety Laws.
(g) Neither the Borrower nor any of the other Loan Parties have
transported or, to the actual knowledge of any Responsible Officer of the
Borrower, arranged for the transportation of any Hazardous Material to any
location which is on the CERCLA National Priorities List (or proposed for such
listing), the CERCLIS list or any comparable state list or which is the subject
of federal, state or local enforcement actions which reasonably could give rise
to liability of the Borrower or any of its Subsidiaries under any applicable
Environmental and Safety Laws.
(h) No oral or written notification of a Release of a Hazardous
Material has been made by or on behalf of the Borrower or any of the other Loan
Parties and no property or facility now owned or operated by the Borrower or any
of the other Loan Parties is on the CERCLA National Priorities List (or proposed
for such listing), the CERCLIS list or any comparable state list. To the actual
knowledge of any Responsible Officer of the Borrower, no property or facility
previously owned or operated by the Borrower or any of its Subsidiaries is on
the CERCLA National Priorities List (or proposed for such listing), the CERCLIS
list or any comparable state list.
(i) No Liens have arisen under or pursuant to any Environmental
and Safety Laws on any property or facility now owned or operated by the
Borrower or any of the other Loan Parties, and no governmental actions have been
taken or, to the actual knowledge of any Responsible Officer of the Borrower,
are in process which could subject any such property or facility to such Liens.
To the actual knowledge of any Responsible Officer of the Borrower, no Liens
have
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arisen under or pursuant to any Environmental and Safety Laws on any property or
facility previously owned or operated by the Borrower or any of the other Loan
Parties, and no governmental actions have been taken or are in process which
could subject any such property or facility to such Liens. Neither the Borrower
nor any of its Subsidiaries would be required to place any notice or restriction
relating to the presence of Hazardous Materials in any deed to any such property
or facility.
(j) To the actual knowledge of any Responsible Officer of the
Borrower, there have been no environmental investigations, studies, audits,
tests, reviews or other analyses of any property or facility now or previously
owned or operated by the Borrower or any of the other Loan Parties which have
not been provided to the Agent.
(k) To the actual knowledge of any Responsible Officer of the
Borrower, neither the Borrower nor any of the other Loan Parties have assumed,
succeeded to or otherwise become liable (contingently or otherwise) for the
obligations of any other Person pursuant to Environmental and Safety Laws,
whether by contract, by operation of law or otherwise.
(l) To the actual knowledge of any Responsible Officer of the
Borrower, without limiting the generality of the foregoing, there are no other
facts, events or conditions relating to the past or present operations,
properties or facilities of the Borrower or any of the other Loan Parties which
reasonably could give rise to liability of the Borrower or any Loan Party under
any Environmental and Safety Laws.
To the extent any of the foregoing representations in this Section
6.13. relate to a property or facility acquired pursuant to a Purchase
Agreement, such representations are based only on the actual knowledge of any
Responsible Officer of the Borrower.
SECTION 6.14. SUBSIDIARIES
Except as set forth on Schedule 6.16. or in any written notice
delivered by the Borrower pursuant to Section 8.4.(k), the Borrower has no
Subsidiaries, and except as set forth on such Schedule or any such written
notice, all other Loan Parties are Wholly-Owned Subsidiaries of the Borrower.
The aggregate book value of the assets of the FSC does not exceed 5.0% of the
book value of the total consolidated assets of the Borrower and its
Subsidiaries.
SECTION 6.15. COMPLIANCE WITH LAW
The Borrower and each of the other Loan Parties are in compliance with
all Applicable Laws of, and all applicable restrictions imposed by, all
Governmental Authorities in respect of the conduct of their respective business
and the ownership of their respective property (including Applicable Laws
relating to environmental standards and controls), except such noncompliance as
could not reasonably be expected to individually or in the aggregate, have a
Material Adverse Effect. Each of the Borrower and its Subsidiaries has all
Regulatory Permits that are required by its customers for the operation of each
of the Donor Centers as such Donor Centers are currently or anticipated to be
operated, except for Regulatory Permits the failure of which to have could not
reasonably be expected to have a Material Adverse Effect.
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SECTION 6.16. CAPITALIZATION
As of the date of this Agreement, Schedule 6.16. correctly sets forth
the corporate structure and ownership interests of each of the Loan Parties
(other than the Borrower), including the correct legal name of each such Loan
Party, and the shareholders or other Persons holding equity interests in such
Loan Parties and their percentage equity or voting interest. Except as set forth
on Schedule 6.16. or in any written notice delivered by the Borrower to the
Agent, there are no outstanding securities convertible into or exchangeable for
any capital stock (collectively, "capital stock equivalents") of any Loan Party
(excluding the Borrower) or any outstanding subscriptions, options, warrants,
calls, rights (including without limitation, preemptive rights) or other
agreements or commitments of any nature relating to or exercisable for capital
stock or capital stock equivalents of any Loan Party (excluding the Borrower).
SECTION 6.17. TITLE TO PROPERTIES
Except as set forth on Schedule 6.17. or in any written notice
delivered by the Borrower to the Agent after the date of this Agreement, each of
the Borrower and the other Loan Parties have good, indefeasible and insurable
title to, or valid leasehold interests in, all its real properties and good
title to its other assets, free and clear of all Liens other than Permitted
Liens.
SECTION 6.18. CONDUCT OF BUSINESS.
The Borrower and its Subsidiaries are engaged in the business of
providing, throughout the world, biological products and enabling technologies
that are essential for the research, development and manufacturing of
biologically based life science products.
SECTION 6.19. REPRESENTATIONS AND WARRANTIES IN ACQUISITION DOCUMENTS
Each representation and warranty made or deemed made by the Borrower or
any other Loan Party in any of the other Credit Documents and any Acquisition
Documents are hereby deemed made to and for the benefit of the Agent, the
Lenders and the Swingline Lender as if the same were set forth herein in full.
SECTION 6.20. PERFORMANCE OF CONTRACTS, ETC.
Neither the Borrower nor any of the other Loan Parties is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any contract, agreement, indenture, mortgage, lease
or other binding understanding or arrangement of any such Person, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, in each case, that could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.21. DISCLOSURE
No representation or warranty of the Borrower or any other Loan Party
made or deemed made in this Agreement, any other Credit Document, any
Acquisition Document, or any other document, certificate or written statement
furnished to the Agent or any Lender by or on behalf
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of any such Person for use in connection with any of the Transactions, excluding
Projections (defined below), contained, as of the date made or deemed made or as
of the date thereof, any untrue statement of a material fact or omitted, omits
or will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. The financial statements referred to in Section 5.1(a)
(xviii) and Section 5.3(b) fairly present the financial condition of the
Borrower and its Consolidated Subsidiaries or the Seller, as the case may be,
and the results of operations of the Borrower and its Consolidated Subsidiaries
or the Seller, as the case may be, as of and for the periods covered thereby.
All financial projections concerning the Borrower and its Subsidiaries that have
been or are hereafter made available to the Agent, any Lenders or the Swingline
Lender by the Borrower or any of its representatives (the "Projections") have
been or will be prepared in good faith based upon assumptions the Borrower
believes to be reasonable. There is no material fact known to the Borrower that
has had or will have a Material Adverse Effect and that has not been disclosed
herein or in such other documents, certificates and statements furnished to the
Agent or any Lender for use in connection with the transactions contemplated
hereby.
SECTION 6.22. SERAMED DISPOSITION
All of the Net Proceeds of the Seramed Disposition were either (i) used
by the Borrower to finance a Restricted Payment permitted under Section
9.6.(b)(ii) of the Existing Credit Agreement or (ii) applied by the Loan Parties
to finance Acquisitions or to acquire, construct or improve properties or
capital assets to be used by any of the Loan Parties in the same or similar
line(s) of business as those described in Section 6.18.
SECTION 6.23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All representations and warranties made under this Agreement and the
other Credit Documents shall be deemed to be made at and as of the Agreement
Date, the Closing Date and at and as of the date of the occurrence of any Credit
Event, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date).
All such representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Credit Documents and the making of
the Loans and the issuance of the Letters of Credit.
SECTION 6.24. REPRESENTATIONS REGARDING ACQUISITIONS
To the extent any representation or warranty contained in this Article
VI. relates to an Acquisition and the Transactions relating thereto, including
without limitation, the representation contained in Section 6.5.(c) regarding
the Acquisition Historical Financial Statements of a Seller, such representation
or warranty shall be deemed made only on and as of (a) the date such Acquisition
has been consummated and (b) the date of the making of any Loan any of the
proceeds of which are used in whole or in part to finance such Acquisition or
the date of issuance of any Letter of Credit issued in connection with such
Acquisition, in each case with respect to Acquisitions consummated on or after
the date hereof.
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ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Borrower
shall, and (as applicable) will cause each of the other Loan Parties to:
SECTION 7.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW; ETC.
Except as not prohibited by this Agreement: (a) preserve and maintain
its existence, and all of its rights, privileges and franchises, including
without limitation, obtaining and maintaining all necessary FDA approvals and
QPP certification for all of its Donor Centers; (b) comply in all respects with
the requirements of all Applicable Laws, rules, regulations and orders of all
Governmental Authorities; (c) maintain all of its properties used in its
business in sufficient working order and condition so as to permit such Loan
Party to conduct its business; and (d) preserve and enforce its rights
(including rights to indemnification) under any Material Contracts, except in
each case, where the failure to do so would not have a Material Adverse Effect.
SECTION 7.2. INSURANCE
Keep insured by financially sound and reputable insurers all property
of a character usually insured by entities engaged in the same or similar
business similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such businesses and carry such other
insurance as is usually carried by such businesses. Without limiting the
obligations of the Borrower and the other Loan Parties under the foregoing
provisions of this Section, in the event the Borrower or any of the other Loan
Parties shall fail to maintain in full force and effect insurance as required by
the foregoing provisions of this Section or any of the other Credit Documents,
then the Agent, on behalf of the Lenders, may upon notice to the Borrower or
such other Loan Party, but shall have no obligation to, procure insurance
covering the interests of the Agent and the Lenders in such amounts and against
such risks as the Agent shall deem appropriate, and the Borrower shall reimburse
the Agent in respect of any premiums paid by the Agent as provided in Section
12.2.
SECTION 7.3. OBLIGATIONS AND TAXES
Pay its Indebtedness and other obligations in accordance with their
terms and pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, and in any event before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might give rise to a Lien upon such properties or
any part thereof which could reasonably be expected to have a Material Adverse
Effect; provided, however, that such payment and discharge shall not be required
so long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings which effectively stay the execution of any such Lien
and the Borrower shall (or shall cause the applicable Loan Party to) set aside
on its books adequate reserves in accordance with GAAP with respect thereto.
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SECTION 7.4. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS
Maintain all financial records in accordance with GAAP and permit any
representatives designated by the Agent or any Lender upon reasonable notice to
visit and inspect the properties of the Borrower or any of the other Loan
Parties (such visits and inspections to be at the sole cost and expense of the
Agent or such Lender, so long as an Event of Default is not existing) and to
inspect their financial and business records (except records and documents
subject to the attorney-client privilege and the work product doctrine) and to
make extracts therefrom and copies thereof, all at reasonable times and in a
manner so as not to unreasonably disrupt the operations of the Borrower or the
other Loan Parties and as often as reasonably requested, and permit the Agent or
any Lender or any representatives designated by the Agent or any Lender upon
reasonable notice to discuss the affairs, finances and condition of the Borrower
or any of the other Loan Parties with the officers thereof and independent
accountants therefor; provided, however, that (i) any representatives designated
by the Agent or any Lender shall be in the business of acting as crisis managers
or business consultants and shall be bound by the same or similar internal
policies with regard to confidential information as is the Agent or such Lender
and (ii) the Agent or any Lender or any representatives designated by the Agent
or any Lender shall not discuss the affairs, finances and condition of the
Borrower or any of the other Loan Parties with the Borrower's independent
accountants unless and until the Agent or such Lender determines in its
reasonable discretion that discussions directly with the Borrower or the
officers of the Borrower have failed to satisfy the inquiries of the Agent or
such Lender or its representatives. Not in limitation of the foregoing, the
Borrower shall, and shall cause each of the other Loan Parties to, keep
complete, accurate and detailed financial records with respect to all amounts of
all Loans made available to any of the Subsidiaries by way of loans.
SECTION 7.5. ENVIRONMENTAL AND SAFETY MATTERS
For the purposes of protecting the Agent's security interest in the
Collateral and preserving the Borrower's ability to satisfy its Obligations:
(a) Comply with all Environmental and Safety Laws applicable to it
or any of its property or facilities in all material respects.
(b) Keep its properties and facilities free from any Liens arising
under any Environmental and Safety Laws which could reasonably be expected to
have a Material Adverse Effect.
(c) Respond promptly to any Release or threatened Release of any
Hazardous Materials in a manner which complies in all material respects with all
applicable Environmental and Safety Laws and mitigates any associated risk to
human health or the environment to the maximum extent commercially practicable.
(d) If the Agent at any time has a reasonable basis to believe
that any property or facility owned or operated by the Borrower or any other
Loan Party has been or may be either (i) operated in violation of any applicable
Environmental and Safety Laws; (ii) contaminated with any Hazardous Materials at
or above levels requiring removal or remedial action under applicable
Environmental and Safety Laws; or (iii) subject to any government-imposed
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obligation to conduct any environmental investigation or clean-up, any of which,
in the good faith judgment of the Agent may impair in any material respect the
value of the Collateral or the ability of the Borrower or any of the other Loan
Parties to satisfy any of their respective Obligations, the Borrower shall, upon
the written request of the Agent, at the Borrower's sole cost and expense,
conduct such investigation or study, through retention of a consulting firm
reasonably satisfactory to the Agent, as is necessary in the good faith judgment
of the Agent to demonstrate that no such impairment could reasonably be expected
to have a Material Adverse Effect.
SECTION 7.6. ADDITIONAL SECURITY
If and to the extent requested by the Agent or the Requisite Lenders
from time to time, after the occurrence and during the continuation of a Default
or Event of Default, execute and deliver such additional documents and take such
other action as may be necessary or desirable in the reasonable opinion of the
Agent or the Requisite Lenders, in order to assure and confirm that all
Obligations are secured in a manner acceptable to the Agent or the Requisite
Lenders by a first priority Lien on substantially all present and future assets
of the Borrower and the other Loan Parties (other than any Foreign Subsidiary)
subject only to Permitted Liens.
SECTION 7.7. USE OF PROCEEDS; LETTERS OF CREDIT.
Use the proceeds of all Loans and all Letters of Credit for working
capital, capital expenditures, and other lawful corporate purposes, including
permitted stock repurchases and Acquisitions made in compliance with this
Agreement, to the extent applicable. The Borrower shall not, and shall not
permit any Subsidiary or other Loan Party to, use any part of such proceeds or
Letters of Credit to purchase or carry, or to reduce or retire or refinance any
credit incurred to purchase or carry, any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any such Margin Stock.
SECTION 7.8. ADDITIONAL MATERIAL SUBSIDIARIES.
Within 60 calendar days of any Person becoming a Subsidiary after the
Agreement Date, the Borrower shall deliver to the Agent each of the items that
would be required to be delivered under Section 5.3. if such Subsidiary were a
New Subsidiary being acquired pursuant to an Acquisition (but only to the extent
such items are not otherwise required to be delivered to the Agent under such
Section). Notwithstanding any provision of this Agreement or any other Loan
Document, (a) no Foreign Subsidiary shall be required to execute and deliver a
Guaranty and (b) a Loan Party shall only be obligated to pledge under the Pledge
Agreement the maximum amount of the total combined voting power of all classes
of stock entitled to vote of its respective Foreign Subsidiaries that it may so
pledge without such Foreign Subsidiary being deemed to be holding United States
property by virtue of 26 C.F.R. ss.1.956-2(c)(2).
SECTION 7.9. REAL PROPERTY DELIVERIES.
Within 60 calendar days of any date on which the ratio of Consolidated
Debt to EBITDA (calculated in accordance with Section 1.3.) shall equal or
exceed 1.5 to 1.0, the Borrower shall
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deliver to the Agent each of the following items with respect to any real
property interests of any of the Loan Parties as the Agent and the Lenders shall
designate in their reasonable discretion:
(a) With respect to any real property interests in which such Loan
Party holds fee simple title, each of the following:
(i) To the extent not previously delivered, a Security
Deed encumbering such real property;
(ii) An ALTA 1992 Form mortgagee's Policy of Title
Insurance (without any creditor's rights exclusion and without any
mandatory arbitration provision) or other form acceptable to the Agent,
in favor of the Agent for the benefit of the Lenders with respect to
such property, including endorsements with respect to such items of
coverage as the Agent may reasonably request and which endorsements are
available, issued by a title insurance company acceptable to the Agent
and with coinsurance or reinsurance (with direct access agreements)
with title insurance companies acceptable to the Agent, showing the fee
simple title to the land and improvements described in such Security
Deed as vested in the applicable Loan Party, and insuring that the Lien
granted by such Security Deed is a valid first priority Lien against
said property, subject only to such restrictions, encumbrances,
easements and reservations as are acceptable to the Agent. The amount
of coverage under such policy must be at least equal to the fair market
value of such property as indicated in the Appraisal required by
subclause (viii) below;
(iii) UCC, tax, judgment and lien search reports with
respect to the Borrower (or Subsidiary if the property is owned by a
Subsidiary) and such property in all necessary or appropriate
jurisdictions indicating that there are no Liens of record on such
property or any of the Collateral relating thereto other than Permitted
Liens:
(iv) A current or currently certified survey of such real
property certified to the Agent and the Lenders by a surveyor licensed
in the applicable jurisdiction to have been prepared in accordance with
the then effective Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys and otherwise in form and substance reasonably
satisfactory to the Agent;
(v) If not adequately covered by the survey certification
provided for above, a certificate from a licensed engineer or other
professional reasonably satisfactory to the Agent indicating whether
such property is located in a Special Flood Hazard Area as defined by
the Federal Insurance Administration;
(vi) Evidence that such property complies with applicable
zoning and land use laws and evidence that all real property and
personal property ad valorem taxes with respect to such property have
been paid, together with copies of the most recent tax bills;
(vii) A "Phase I" environmental assessment of such
property, which report is to (1) be prepared by an environmental
engineering firm acceptable to the Agent and (2) comply with the
requirements contained in the Agent's guidelines adopted from time
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to time by the Agent to be used in its lending practice generally;
provided that the Agent, in the Agent's discretion, may accept an
existing "Phase I" environmental assessment of such property if the
same is in form and substance reasonably acceptable to the Agent and
the Agent receives reliance letters in form and substance reasonably
acceptable to the Agent. In addition, if any such environmental
assessment contains a recommendation that a "Phase II" environmental
assessment be prepared, the Borrower shall promptly commission such an
assessment; provided that the Agent, in the Agent's discretion, may
accept an existing "Phase II" environmental assessment of such property
if the same is in form and substance acceptable to the Agent and the
Agent receives reliance letters in form and substance acceptable to the
Agent;
(viii) An Appraisal with respect to such property; and
(ix) Such other documents, instruments and agreements as
the Agent or any Lender through the Agent may reasonably request
relating to such property.
(b) With respect to any real property interests in which such Loan
Party holds leasehold title, each of the following:
(i) To the extent not previously delivered, a Security
Deed encumbering such leasehold interest;
(ii) A copy of the subject lease then in effect;
(iii) To the extent not already of public record, a
memorandum of lease providing constructive notice of Borrower's
leasehold estate in the subject property, in form and substance
reasonably satisfactory to Agent and to be recorded in the appropriate
public real estate records at Agent's direction;
(iv) An ALTA 1992 Form mortgagee's Policy of Title
Insurance (without any creditor's rights exclusion and without any
mandatory arbitration provision) or other form acceptable to the Agent,
in favor of the Agent for the benefit of the Lenders with respect to
such property, including endorsements with respect to such items of
coverage as the Agent may reasonably request and which endorsements are
available, issued by a title insurance company acceptable to the Agent
and with coinsurance or reinsurance (with direct access agreements)
with title insurance companies acceptable to the Agent, showing the
leasehold title to the land and improvements described in such Security
Deed as vested in the applicable Loan Party, and insuring that the Lien
granted by such Security Deed is a valid first priority Lien against
such leasehold estate, subject only to such restrictions, encumbrances,
easements and reservations as are acceptable to the Agent. The amount
of coverage under such policy must be reasonably satisfactory to the
Agent;
(v) UCC, tax, judgment and lien search reports with
respect to the Borrower (or Subsidiary if the property is owned by a
Subsidiary) and such property in all
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necessary or appropriate jurisdictions indicating that there are no
Liens of record on such property or any of the Collateral relating
thereto other than Permitted Liens:
(vi) If requested by the Agent, a current or currently
certified survey of such real property certified to the Agent and the
Lenders by a surveyor licensed in the applicable jurisdiction to have
been prepared in accordance with the then effective Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys and otherwise in
form and substance reasonably satisfactory to the Agent;
(vii) Evidence that such property complies with applicable
zoning and land use laws and evidence that all real property and
personal property ad valorem taxes with respect to such property have
been paid, together with copies of the most recent tax bills;
(viii) If requested by the Agent and subject to the consent
of the owner of fee simple title to such property, a "Phase I"
environmental assessment of such property, which report is to (1) be
prepared by an environmental engineering firm acceptable to the Agent
and (2) comply with the requirements contained in the Agent's
guidelines adopted from time to time by the Agent to be used in its
lending practice generally; provided that the Agent, in the Agent's
discretion, may accept an existing "Phase I" environmental assessment
of such property if the same is in form and substance reasonably
acceptable to the Agent and the Agent receives reliance letters in form
and substance reasonably acceptable to the Agent. In addition, if any
such environmental assessment contains a recommendation that a "Phase
II" environmental assessment be prepared, the Borrower shall promptly
commission such an assessment; provided that the Agent, in the Agent's
discretion, may accept an existing "Phase II" environmental assessment
of such property if the same is in form and substance acceptable to the
Agent and the Agent receives reliance letters in form and substance
acceptable to the Agent;
(ix) An estoppel and consent to leasehold mortgage from
the landlord or lessor owning fee simple title to such property in form
and substance reasonably satisfactory to Agent; and
(x) Such other documents, instruments and agreements as
the Agent or any Lender through the Agent may reasonably request
relating to such property.
SECTION 7.10. INTELLECTUAL PROPERTY.
Within 30 calendar days of the Agreement Date, the Borrower shall
deliver or cause to be delivered to the Agent evidence satisfactory to the Agent
in its reasonable judgment that all actions necessary or desirable to reflect
properly of record at the United States Patent and Trademark Office the current
ownership of any patents, patent applications, trademarks, trademark
applications, service marks, and service ▇▇▇▇ applications of any of the Loan
Parties has been completed.
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ARTICLE VIII. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall,
and (as applicable) will cause each of the Loan Parties to, furnish to each
Lender (or to the Agent if so provided below) at its Lending Office:
SECTION 8.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 45 days after the end of
each fiscal quarter of each fiscal year of the Borrower (other than the fourth
fiscal quarter of any fiscal year), consolidated statements of income,
stockholders' equity (if requested by the Agent) and cash flows of the Borrower
and its Consolidated Subsidiaries for such period and for the period from the
beginning of the current fiscal year to the end of such fiscal quarter, and the
related consolidated balance sheets as of the end of such fiscal quarter, and
accompanied by a certificate of the chief financial officer of the Borrower,
which certificate shall state that such consolidated financial statements fairly
present the consolidated financial condition and results of operations of the
Borrower and its Consolidated Subsidiaries in accordance with GAAP (subject to
normal year-end adjustments and absence of full footnote disclosures).
SECTION 8.2. YEAR-END STATEMENTS; MANAGEMENT LETTERS.
As soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, audited consolidated statements of income,
stockholders' equity and cash flow of the Borrower and its Consolidated
Subsidiaries for such fiscal year and the related audited consolidated balance
sheet as of the end of such fiscal year, and accompanied by (i) an unqualified
report of the Borrower's independent auditors (who shall be of nationally
recognized standing), stating that such financial statements fairly present the
consolidated financial condition and results of operations of the Borrower and
its Consolidated Subsidiaries in accordance with GAAP and (ii) if requested by
the Agent, a schedule setting forth the consolidating statements of income,
stockholders' equity and cash flow of the Borrower, Serologicals Specialty
Biologics, Inc., Serocor Incorporated and Limited for such fiscal year and the
related unaudited consolidating balance sheet as of the end of such fiscal year
of such Loan Parties.
SECTION 8.3. COMPLIANCE CERTIFICATE.
At the time the financial statements are furnished pursuant to Section
8.1. and 8.2., a certificate of the chief financial officer of the Borrower
substantially in the form of Exhibit P (a "Compliance Certificate") (a) to the
effect that no Default or Event of Default has occurred and is continuing (or,
if any Default or Event of Default has occurred and is continuing, describing
the same in reasonable detail and describing the action that the Borrower (or
such other Person, as appropriate) has taken and proposes to take with respect
thereto) and (b) setting forth in reasonable detail the computations necessary
to determine whether the Borrower is in compliance with each of the subsections
of Section 9.1., and with Sections 9.2. and 9.4., in each case as of the end of
the fiscal period for which such financial statements are delivered.
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SECTION 8.4. OTHER INFORMATION.
(a) promptly after any Default or Event of Default has occurred, a
notice of such Default or Event of Default describing the same in reasonable
detail together with a description of the action that the Borrower (or such
other appropriate party, as the case may be) has taken and proposes to take with
respect thereto;
(b) promptly after receipt of written request from the Agent or
any Lender, such other information regarding the business, affairs or financial
condition of the Borrower or any other Loan Party as the Agent or such Lender
may reasonably request;
(c) as soon as possible, and in any event within 5 Business Days
after any Responsible Officer of the Borrower or any other Loan Party receives
notice or otherwise has actual knowledge that any of the following events have
occurred or exist, a statement signed by the chief financial officer of the
Borrower or other Responsible Officer setting forth details regarding such event
or condition and no later than 15 Business Days after any Responsible Officer of
the Borrower or any other Loan Party receives such notice or otherwise obtains
such actual knowledge, a statement signed by such chief financial officer or
other Responsible Officer setting forth the details regarding the action, if
any, which the Borrower or such other Loan Party proposes to take with respect
thereto (along with all relevant documentation): (A) any violation by the
Borrower or any other Loan Party of any Environmental and Safety Laws which
could reasonably be expected to have a Material Adverse Effect; (B) any request
for information or notice of potential responsibility under Environmental and
Safety Laws with respect to cleanup of any property or facility of the Borrower
or any other Loan Party or any offsite location which could reasonably be
expected to have a Material Adverse Effect; (C) the imposition of any Lien on
any assets of the Borrower or any other Loan Party under Environmental and
Safety Laws which could reasonably be expected to have a Material Adverse
Effect; (D) the commencement of any litigation, enforcement action or
investigation with respect to the Borrower or any other Loan Party under
Environmental and Safety Laws which if determined adversely to the Borrower or
such other Loan Party, could reasonably be expected to have a Material Adverse
Effect; or (E) any Release or threatened Release of any Hazardous Material at or
from any property or facility of the Borrower or any other Loan Party which
could reasonably be expected to have a Material Adverse Effect;
(d) within 10 days of providing or filing same, copies of all
registration statements, reports on Forms 10-K, 10-Q and 8-K (or their
equivalents), proxy statements and all other periodic reports, which the
Borrower or any other Loan Party shall have provided to its stockholders or
filed with the Securities and Exchange Commission (or any governmental agency
substituted therefor), any national securities exchange or the National
Association of Securities Dealers, Inc.;
(e) promptly upon the Agent's request, a copy of each report of
any Person (including ABRA) or Governmental Authority with respect to the
condition of any Donor Center citing any material adverse condition or
deficiency at such Donor Center;
(f) promptly upon the Agent's request, each annual inspection
report of the FDA with respect to any Loan Party's Donor Centers;
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(g) promptly upon receipt thereof, copies of all notices given or
received by the Borrower or any other Loan Party with respect to noncompliance
with any term or condition related to any Subordinated Debt;
(h) within 60 days after the end of each fiscal year of the
Borrower, capital and operating expense budgets, projections of sources and
applications of funds and profit and loss projections for the Borrower (and each
of its Consolidated Subsidiaries) on a consolidated basis for each fiscal
quarter of the next succeeding fiscal year, all itemized in reasonable detail
and prepared by the Borrower. Any material revisions made in such budgets or
projections shall be furnished promptly to the Lenders;
(i) promptly upon the Agent's request, a production report for the
Borrower and its Subsidiaries in form and detail reasonably acceptable to the
Agent, setting forth for the month ending immediately prior to such request,
among other things (i) the number of donors at each Donor Center during such
month and (ii) the number of liters of plasma produced at such center during
such month;
(j) at least two Business Days prior to the occurrence thereof,
written notice of any Disposition resulting in Net Proceeds in excess of
$5,000,000;
(k) prompt notice of the acquisition, incorporation or other
creation of any Subsidiary, the purpose for such Subsidiary and the nature of
the assets and liabilities thereof;
(l) as soon as possible, and in any event within thirty days after
the Borrower or any other Loan Party knows or has reason to know that any of the
events or conditions specified below have occurred or exist, a statement signed
by the chief financial officer of the Borrower setting forth details respecting
such event or condition and the action, if any, which the Borrower, any other
Loan Party or its ERISA Affiliates proposes to take with respect thereto (and a
copy of any report or notice required to be filed with or given to the PBGC by
the Borrower or any other Loan Party or any of its ERISA Affiliates as of such
date with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b)
of ERISA and the regulations issued thereunder, with respect to a Plan
of the Borrower or any other Loan Party or any of its ERISA Affiliates,
as to which the PBGC has not by regulation waived the requirement of
Section 4043 (a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA
shall be a reportable event regardless of the issuance of any waivers
in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan of the Borrower or any other Loan Party or
any of its ERISA Affiliates or the termination of any such Plan;
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(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan of the Borrower or any other Loan Party
or any of its ERISA Affiliates, or the receipt by the Borrower or any
other Loan Party or any of its ERISA Affiliates of a notice from a
Multiemployer Plan of the Borrower or any other Loan Party or any of
its ERISA Affiliates that such action has been taken by the PBGC with
respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Borrower or
any other Loan Party or any of its ERISA Affiliates under Section 4201
or 4204 of ERISA from a Multiemployer Plan, or the receipt by the
Borrower or any other Loan Party or any such ERISA Affiliate of notice
from such a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA, which in
any such case could reasonably be expected to result in the imposition
of withdrawal liability upon the Borrower or any other Loan Party or
any of its ERISA Affiliates;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any other Loan Party or any
of its ERISA Affiliates to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days;
(vi) the fair market value of the assets of any Plan does
not equal or exceed the accumulated benefit obligations with respect to
such Plan, as disclosed on the most recent actuarial report with
respect to such Plan; and
(m) as soon as available and in any event within 10 days after
receipt thereof, copies of any management letters or similar reports delivered
by the Borrower's independent auditors to the Borrower or its board of
directors.
SECTION 8.5. LITIGATION
Promptly (and in any event within three Business Days of receipt) give
to the Agent notice of the filing or commencement of, or any written notice of
intention of any Person to file or commence, any action, suit or proceeding
affecting the Borrower or any of the other Loan Parties, whether at law or in
equity by or before any Governmental Authority which could reasonably be
expected to have a Material Adverse Effect, and of any materially adverse
development in respect of such legal or other proceedings.
ARTICLE IX. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
not, nor will it permit any Loan Parties to, directly or indirectly:
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SECTION 9.1. FINANCIAL COVENANTS.
Permit:
(a) Ratio of Consolidated Debt to Total Capitalization. The ratio
of (i) Consolidated Debt to (ii) Total Capitalization at the end of any fiscal
quarter, to be greater than 0.50 to 1.0;
(b) Ratio of Consolidated Debt to EBITDA. The ratio of (a)
Consolidated Debt to (b) EBITDA at the end of any fiscal quarter for the four
fiscal quarter period then ending, to be greater than 2.5 to 1.0;
(c) Fixed Charge Coverage Ratio. The ratio, at the end of any
fiscal quarter, of (a) Cash Flow for the four fiscal quarter period then ending
minus (i) Earn-Out Payments made during the last fiscal quarter of the
applicable period, minus (ii) for each Earn-Out Payment made during the first
three fiscal quarters of the applicable period, an amount equal to the sum of
(x) such Earn-Out Payment, multiplied by (y) (A) if such Earn-Out Payment was
made during the first fiscal quarter of the applicable period, one-fourth (1/4),
(B) if such Earn-Out Payment was made during the second fiscal quarter of the
applicable period, one-half (1/2) and (C) if such Earn-Out Payment was made
during the third fiscal quarter of the applicable period, three-fourths (3/4) to
(b) (i) Debt Service for such period plus (ii) Interest Expense for such period
plus (iii) Rental Expense for such period, to be less than 1.50 to 1.0;
(d) Capital Expenditures. Permit the aggregate amount of Capital
Expenditures to exceed $20,000,000 during any fiscal year. The limitations of
this subsection (d) shall not apply to Capital Expenditures to the extent
financed with Net Proceeds resulting from any Disposition expressly permitted
under Section 9.9. or any other term of this Agreement or any other Credit
Document; or
(e) Minimum Domestic EBITDA. Permit, (i) at the end of any fiscal
quarter ending prior to March 31, 2003, Domestic EBITDA to be less than
$20,000,000 for the four fiscal quarter period then ending or (ii) at the end of
any fiscal quarter ending on or after March 31, 2003, Domestic EBITDA to be less
than $25,000,000 for the four fiscal quarter period then ending.
SECTION 9.2. INDEBTEDNESS AND GUARANTEES.
Create, incur or suffer to exist any Indebtedness or Guarantees except
(a) Indebtedness to the Agent and the Lenders created hereunder and under any of
the Credit Documents; (b) Indebtedness existing on the Closing Date and
described on attached Schedule 9.2., and any Indebtedness extending the maturity
of, or refunding, refinancing or replacing, in whole or in part, any such
Indebtedness, so long as (i) the principal amount of the refinancing
Indebtedness shall not exceed the principal amount of the then outstanding
existing Indebtedness to be refinanced, (ii) the scheduled amortization of such
refinancing Indebtedness has the same or later weighted average maturity as then
provided in the then outstanding existing Indebtedness to be refinanced, and
(iii) the documents and instruments evidencing such refinancing Indebtedness do
not contain financial covenants or other covenants and terms which, when
considered as a whole, are less favorable to the Lenders than those set forth in
the documents and instruments
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evidencing the Indebtedness to be refinanced; (c) additional Indebtedness (which
does not constitute Subordinated Debt) incurred exclusively to finance the
acquisition of machinery, equipment and other fixed assets acquired after the
date hereof, which Indebtedness, if secured, is secured only by a Lien on the
property so acquired, in an aggregate amount not to exceed $5,000,000 at any
time outstanding; (d) Indebtedness of the Borrower in respect of interest rate
hedge agreements entered into from time to time after the date of this Agreement
with counterparties that are Lenders at the time such interest rate hedge
agreement is entered into and which hedge agreements relate to the interest
rates payable in respect of this Agreement; (e) Indebtedness otherwise permitted
by Section 9.4.; (f) Subordinated Debt; (g) unsecured Indebtedness not otherwise
permitted under this Section 9.2. in an aggregate amount (including any
unsecured Indebtedness described on attached Schedule 9.2.) not to exceed
$5,000,000 at any time outstanding; and (h) Indebtedness comprised of reasonable
and customary indemnities given by the Borrower or any other Loan Party or
guarantees or other similar undertakings by the Borrower entered into in lieu
thereof, in favor of the purchaser of property and assets of the Borrower and
its Subsidiaries being sold, leased, transferred or otherwise disposed of in
accordance with Section 9.9. and covering liabilities incurred by the Borrower
or its applicable Subsidiary in respect of such property and assets prior to the
date of consummation of the sale, lease, transfer or other disposition thereof,
which indemnities, guarantees or undertakings are required under the terms of
the documentation for such sale, lease, transfer or other disposition.
SECTION 9.3. PROHIBITION ON FUNDAMENTAL CHANGES
Effect any of the following: (i) any transaction of merger,
consolidation, recapitalization, reorganization, liquidation or dissolution
(other than the merger of a Subsidiary of the Borrower with and into the
Borrower pursuant to which the Borrower is the surviving corporation or with and
into any Wholly-Owned Subsidiary of the Borrower pursuant to which such
Wholly-Owned Subsidiary is the surviving corporation); or (ii) a Disposition of
all or substantially all of the assets of the Borrower and its Subsidiaries
taken as a whole to any Person; or (iii) engage in any line of business other
than those, or similar to those, described in Section 6.18.; or (iv) any
Acquisition or any other transaction of acquisition of another Person, or of
substantially all of the assets of another Person, or of a distinct operating
division of another Person, except for Permitted Acquisitions with respect to
which the Borrower has satisfied, or caused to be satisfied, each of the
conditions set forth in Section 5.3. or Section 5.4., as applicable.
SECTION 9.4. INVESTMENTS.
Make or permit to remain outstanding any Investments except (i) Cash
Equivalents, (ii) the deferment of the payment of accrued but unpaid royalties
due from Limited to the Borrower in connection with the licensing of
intellectual property of the Borrower to Limited, (iii) the ownership of the
capital stock of or other equity interests in subsidiaries by the Borrower or
its Subsidiaries, the acquisition of which is permitted by Section 9.3.(iv) or
is otherwise consummated in compliance with this Agreement, and the ownership of
capital stock of the Borrower, the acquisition of which is otherwise permitted
hereunder, (iv) the ownership of the capital stock of or other equity interests
in wholly-owned Persons by the Borrower or its Subsidiaries provided that such
Persons become Loan Parties in compliance with the requirements of Section 7.8.,
(v) loans or advances to Subsidiaries from the Borrower, and loans and advances
from one Subsidiary to another Subsidiary, (vi) loans or advances to the
Borrower
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by one or more of its Subsidiaries, provided that the repayment of any such
loans or advances is subordinated in writing in a manner satisfactory to the
Agent to the prior satisfaction in full of the Obligations, (vii) Investments
existing on the Agreement Date and described on Schedule 9.4., and (viii) other
Investments not of the types described in the preceding subsections (i) through
(vii), including without limitation, ownership interests in joint ventures and
ownership of capital stock of or other equity interests in a Person that is not
a Subsidiary, having an aggregate cost to the Borrower and its Subsidiaries not
to exceed 10% of Consolidated Total Assets at any time outstanding.
SECTION 9.5. LIMITATION ON LIENS
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, except
Permitted Liens.
SECTION 9.6. RESTRICTED PAYMENTS.
Make any Restricted Payment; provided, however, that (a) Subsidiaries
of the Borrower may make dividends, payments or other distributions to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower; and (b) subject to
the other terms and conditions hereof and so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom, the
Borrower may (i) purchase, redeem or otherwise acquire any outstanding shares of
its capital stock or other equity securities in an aggregate amount not to
exceed during any fiscal year $5,000,000, so long as the ratio of Consolidated
Debt to EBITDA of the Borrower and its Consolidated Subsidiaries after giving
effect to such Restricted Payment (including any Consolidated Debt incurred in
connection therewith) is less than or equal to 1.5 to 1.0 as of the end of the
most recently ended four fiscal quarter period, assuming for purposes of such
calculation that such Restricted Payment (including any Consolidated Debt
incurred in connection therewith) was made (and, in the case of Consolidated
Debt, incurred) as of the last day of such four quarter period; provided,
however, that the Borrower shall not make any Restricted Payment otherwise
permitted under this clause (i) if Net Income was less than or equal to $0 for
each of the immediately preceding two fiscal quarters (a "Stock Repurchase
Suspension"), such Stock Repurchase Suspension to terminate on the first date
thereafter on which both of the following have occurred: (x) Net Income for the
immediately preceding four fiscal quarters was greater than $0, and (y) the
Agent shall have received a certificate of the chief financial officer of the
Borrower to such effect, together with reasonably detailed computations
demonstrating such certification and (ii) make other Restricted Payments
(excluding purchases, redemptions or other acquisitions of outstanding shares of
capital stock or other equity securities).
SECTION 9.7. ACCOUNTING.
Change its accounting methods or practices (except as required to
conform to changes in GAAP or permitted by GAAP) or change its fiscal year-end
to a date other than December 31. If any financial statements delivered by the
Borrower pursuant to Article VIII. are presented in such a manner that such
financial statements could not set forth in comparative form the corresponding
figures for the preceding fiscal year, the Borrower shall advise the Agent and
the Lenders of such fact upon the delivery of such financial statements and upon
the Agent's or any
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Lender's request shall prepare a report in form and substance reasonably
satisfactory to such Person detailing the differences in the presentation of
such financial statement and the financial statements for the immediately
preceding fiscal year.
SECTION 9.8. AMENDMENT OF CERTAIN DOCUMENTS.
Enter into any amendment, modification or waiver of any of the terms of
any of the Acquisition Documents which amendment, modification or waiver would
have a Material Adverse Effect.
SECTION 9.9. SALES OF ASSETS
Sell, lease, assign, transfer or otherwise dispose of any of the
Collateral; provided, however, so long as no Default or Event of Default shall
have occurred and be continuing or would result therefrom: (a) a Loan Party may
dispose of its Inventory in the ordinary course of its business, (b) a Loan
Party may dispose of excess, obsolete or used Equipment so long as, if so
required for the conduct of such Loan Party's business in any material respect,
any such Equipment is replaced with other Equipment which serves the same or a
similar purpose as the replaced Equipment, and (c) a Loan Party may otherwise
dispose of Collateral which does not, together with all other Collateral
disposed of by the Loan Parties after the date of this Agreement (excluding
Collateral permitted to be disposed of under the immediately preceding clauses
(a) and (b)), have an aggregate book value in excess of $10,000,000.
Notwithstanding anything else contained herein or in the other Credit Documents,
consummation of Dispositions permitted under this Section shall not constitute a
breach or Event of Default hereunder or under the other Credit Documents. In
addition, upon the consummation of Dispositions permitted under this Section,
the Agent and the Lenders shall, at the sole cost and expense of the Borrower,
take all actions and execute all documents (x) necessary to release all Liens
and Collateral relating to such Disposition or (y) as the Borrower may otherwise
reasonably request in connection with the consummation of such Dispositions
permitted under this Section.
SECTION 9.10. NEGATIVE PLEDGES
Enter into or assume any agreement (other than the Credit Documents)
prohibiting the creation or assumption of any Lien upon any properties or assets
of the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired.
ARTICLE X. DEFAULT
SECTION 10.1. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Payments under Credit Documents. The Borrower shall default in
the payment when due of any principal of any Loan. The Borrower shall default in
the payment when due of any interest on any Loan, of any Fee or any other
Obligations payable by it hereunder or under
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any other Credit Document, or any other Loan Party shall default in the payment
when due of any amount payable by it under any Credit Document to which such
Loan Party is a party, and such default shall continue for a period of five
Business Days.
(b) Other Indebtedness. The Borrower or any other Loan Party shall
default in the payment when due of any principal of or interest on any
Indebtedness having a principal amount outstanding, individually or in the
aggregate, equal to or exceeding 5.0% of Consolidated Tangible Assets (as
determined by reference to the most recently prepared audited financial
statements of the Borrower and its Consolidated Subsidiaries) (other than the
Obligations); or any event specified in any note, agreement, indenture or other
document evidencing or relating to any such Indebtedness of the Borrower or any
other Loan Party shall occur and as a result of the occurrence of such event
such Indebtedness (a) has become due or is required to be prepaid (whether by
redemption, purchase or otherwise) prior to its stated maturity or (b) the
holder or holders (or any agent or trustee acting on behalf of such holder or
holders) are then entitled to cause such Indebtedness to become due or required
to be so prepaid.
(c) Representations and Warranties. Any representation, warranty
or certification made or deemed to be made in any Credit Document to the Agent,
any Lender or the Swingline Lender or any certificate, financial statement or
other information furnished in writing to the Agent, any Lender or the Swingline
Lender pursuant to the provisions hereof or thereof, shall prove to have been
false or misleading in any material respect as of the time made or deemed to be
made.
(d) Other Obligations. (i) The Borrower shall default in the
performance of any of its obligations under Section 7.9. or Article IX. (other
than Sections 9.2. or 9.5.); or (ii) the Borrower shall default in the
performance of any of its obligations under Article VIII., Section 9.2. or 9.5.
which default shall continue unremedied for a period of 10 Business Days after
the Borrower or such Loan Party receives notice from the Agent or any
Responsible Officer of the Borrower or any Responsible Officer of such Loan
Party otherwise has actual knowledge thereof or (iii) the Borrower or any other
Loan Party shall default in the performance of any of its other obligations in
this Agreement or any other Credit Documents to which it is a party and such
default shall continue unremedied for a period of 20 days after the Borrower or
such Loan Party receives notice from the Agent or any Responsible Officer of the
Borrower or any Responsible Officer of such Loan Party otherwise has actual
knowledge thereof.
(e) Voluntary Proceedings. The Borrower or any other Loan Party
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) acquiesce in writing to any petition filed against it
in an involuntary case under the Bankruptcy Code, (vi) admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due
or (vii) take any corporate action for the purpose of effecting any of the
foregoing.
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(f) Involuntary Proceedings. A proceeding or case shall be
commenced against the Borrower or any other Loan Party, without its application
or consent, in any court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment of
its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like of all or any substantial part of its assets, or (iii) similar relief
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against the Borrower or any other Loan
Party shall be entered in an involuntary case under the Bankruptcy Code.
(g) Judgments. A judgment or judgments for the payment of money in
excess of 5.0% of Consolidated Tangible Assets (as determined by reference to
the most recently prepared audited financial statements of the Borrower and its
Consolidated Subsidiaries) in the aggregate (exclusive of judgment amounts to
the extent covered by insurance where the Borrower has submitted a claim and the
insurer has not contested liability in respect of such judgment) shall be
rendered by a court or courts against the Borrower or any other Loan Party and
the same shall not be vacated, bonded or discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be procured,
within 60 days from the date of entry thereof.
(h) ERISA. (a) Any ERISA Event shall have occurred with respect to
the Borrower or any other Loan Party and the sum of the Insufficiency of the
Plan involved in such event (determined as of the date of occurrence of such
ERISA Event) and the Insufficiency of any and all other Plans (determined as of
the date of occurrence of such ERISA Event) of the Borrower or any other Loan
Party with respect to which an ERISA Event shall have occurred (or the liability
of the Borrower or any other Loan Party or its ERISA Affiliates related to such
ERISA Event) exceeds 5.0% of Consolidated Tangible Assets (as determined by
reference to the most recently prepared audited financial statements of the
Borrower and its Consolidated Subsidiaries); or (b) the Borrower or any other
Loan Party or any of its ERISA Affiliates shall have been notified by a
Multiemployer Plan that it has incurred withdrawal liability to such
Multiemployer Plan and the imposition of such liability is reasonably likely to
be incurred in an amount that, when aggregated with all other amounts required
to be paid to Multiemployer Plans by the Borrower or any other Loan Party and
its ERISA Affiliates as withdrawal liability (determined as of the date of such
notification indemnification), requires payments exceeding 5.0% of Consolidated
Tangible Assets (as determined by reference to the most recently prepared
audited financial statements of the Borrower and its Consolidated Subsidiaries)
per annum; or (c) the Borrower or any other Loan Party or any of its ERISA
Affiliates shall have been notified by 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 such Person and its 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 5.0% of Consolidated Tangible Assets (as determined by
reference to the most recently prepared audited financial statements of the
Borrower and its Consolidated Subsidiaries).
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(i) Change in Control. A Change in Control shall have occurred
without the prior written consent of the Requisite Lenders. As used in this
Section the term "Change in Control" shall mean the following: if any Person or
two or more Persons acting in concert, shall acquire "beneficial ownership"
within the meaning of Rule 13d-3 of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), directly or indirectly, of capital stock or
securities of the Borrower representing 25% (or 40% with respect to any Person
permitted to file a report on Schedule 13G under the Exchange Act) or more of
the aggregate voting power of all classes of capital stock and securities of the
Borrower.
(j) Failure of Security Interest. The Agent shall cease to have a
valid and perfected first priority security interest in the Collateral (subject
to Permitted Liens) for any reason other than the failure of the Agent to take
any action within its control.
(k) Material Adverse Effect. A Material Adverse Effect shall have
occurred.
SECTION 10.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 10.1.(e) or 10.1.(f), (A)(i) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (ii) an amount equal to the Stated Amount of all Letters
of Credit outstanding as of the date of the occurrence of the Event of
Default and (iii) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders
and the Agent under this Agreement, the Notes or any of the other
Credit Documents shall become immediately and automatically due and
payable by the Borrower without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived by the Borrower
and (B) the Commitments, the Swingline Commitment, the obligation of
the Lenders to make Loans hereunder, the obligation of the Swingline
Lender to make Swingline Loans hereunder, and the obligation of the
Agent to issue Letters of Credit hereunder, shall immediately and
automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Agent may, and at the direction of the
Requisite Lenders shall: (I) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an
amount equal to the Stated Amount of all Letters of Credit outstanding
as of the date of the occurrence of the Event of Default and (3) all of
the other Obligations, including, but not limited to, the other amounts
owed to the Lenders and the Agent under this Agreement, the Notes or
any of the other Credit Documents to be forthwith due and payable,
whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which
are expressly waived by the Borrower and (II) terminate the Commitments
and the obligation of the Lenders to make Loans hereunder and the
obligation of the Agent to
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issue Letters of Credit hereunder. If the Agent has exercised any of
the rights provided under the preceding sentence, the Swingline Lender
shall: (x) declare the principal of, and accrued interest on, the
Swingline Loans and the Swingline Note at the time outstanding, and all
of the other Obligations owing to the Swingline Lender, to be forthwith
due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived by the Borrower and (y)
terminate the Swingline Commitment and the obligation of the Swingline
Lender to make Swingline Loans.
(b) Credit Documents. The Requisite Lenders may direct the Agent
to, and the Agent if so directed shall, exercise any and all of its rights under
any and all of the other Credit Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to,
and the Agent if so directed shall, exercise all other rights and remedies it
may have under any Applicable Law.
(d) Appointment of Receiver. To the fullest extent permitted by
Applicable Law, the Agent and the Lenders shall be entitled to the appointment
of a receiver for the assets and properties of the Borrower and its
Subsidiaries, without regard to the adequacy of any security for the Obligations
or the solvency of any party bound for its payment, to take possession of all or
any portion of the Collateral and/or the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
SECTION 10.3. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default specified in Sections 10.1.(e) or
10.1.(f), the Commitments and the Swingline Commitment shall immediately and
automatically terminate.
SECTION 10.4. ALLOCATION OF PROCEEDS.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Agent under any of the Credit Documents, in respect of any principal of
or interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect
of Fees and expenses due under Section 12.2.;
(b) payments of interest on Swingline Loans;
(c) payments of principal on Swingline Loans;
(d) payments of interest on Revolving Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders;
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(e) payments of principal of Revolving Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders;
(f) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 2.11.;
(g) amounts due to the Agent and the Lenders pursuant to
Sections 12.9.;
(h) payments of all other amounts due under any of the
Credit Documents, if any, to be applied for the ratable benefit of the
Lenders;
(i) amounts due Lenders in respect of Swap Obligations,
to be applied for the ratable benefit of such Lenders; and
(j) any amount remaining after application as provided
above, shall be paid to the Borrower or whomever else may be legally
entitled thereto.
SECTION 10.5. COLLATERAL ACCOUNT.
(a) As collateral security for the prompt payment in full when due
of all Letter of Credit Liabilities, the Borrower hereby pledges and grants to
the Agent, for the benefit of the Agent and the Lenders as provided herein, a
security interest in all of its right, title and interest in and to the
Collateral Account and the balances from time to time in the Collateral Account
(including the investments and reinvestments therein provided for below). The
balances from time to time in the Collateral Account shall not constitute
payment of any Letter of Credit Liabilities until applied by the Agent as
provided herein. Anything in this Agreement to the contrary notwithstanding,
funds held in the Collateral Account shall be subject to withdrawal only as
provided in this Section and in Section 2.11.
(b) Amounts on deposit in the Collateral Account shall be invested
and reinvested by the Agent in such Cash Equivalents as the Agent shall
determine in its sole discretion. All such investments and reinvestments shall
be held in the name of and be under the sole dominion and control of the Agent
and all interest and other earnings in respect of such investments and
reinvestments shall be deposited into the Collateral Account until withdrawn as
provided in this Section (including the immediately following subsection (d)),
in Section 2.11. or in any other applicable provision of this Agreement or any
other Credit Document. The Agent shall exercise reasonable care in the custody
and preservation of any funds held in the Collateral Account and shall be deemed
to have exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords its own funds, it being understood
that the Agent shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any funds held in the
Collateral Account.
(c) If an Event of Default shall have occurred and be continuing,
the Agent may (and, if instructed by the Requisite Lenders, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
investments and reinvestments and credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances
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in the Collateral Account to the payment of any of the Letter of Credit
Liabilities due and payable.
(d) So long as no Default or Event of Default has occurred and is
continuing, the Agent shall, from time to time, at the written request of the
Borrower, deliver to the Borrower within 5 days of receipt of such request,
against receipt but without any recourse, warranty or representation whatsoever,
such of the balances in the Collateral Account as exceed the aggregate amount of
Letter of Credit Liabilities at such time, including any interest and other
earnings on investments in respect of the Collateral Account. When all of the
Obligations shall have been paid in full and no Letters of Credit remain
outstanding, the Agent shall promptly deliver to the Borrower, against receipt
but without any recourse, warranty or representation whatsoever, the balances
remaining in the Collateral Account.
SECTION 10.6. PERFORMANCE BY AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Credit Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Credit Document.
SECTION 10.7. RIGHTS CUMULATIVE.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Credit Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XI. THE AGENT
SECTION 11.1. AUTHORIZATION AND ACTION.
Each Lender hereby appoints and authorizes the Agent to take such
action as contractual representative on such Lender's behalf and to exercise
such powers under this Agreement and the other Credit Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender nor to impose
on the Agent duties or obligations other than those expressly provided for
herein. Not in limitation of the foregoing, each Lender confirms and agrees that
the Agent has no fiduciary obligations to such Lender under this Agreement, any
other Credit Document or otherwise. At the request of a
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Lender, the Agent will forward to such Lender copies or, where appropriate,
originals of the documents delivered to the Agent pursuant to this Agreement or
the other Credit Documents. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the
Agent by the Borrower, any Loan Party or any other Affiliate of the Borrower,
pursuant to this Agreement or any other Credit Document not already required to
be delivered to such Lender pursuant to the terms of this Agreement or any such
other Credit Document. As to any matters not expressly provided for by the
Credit Documents (including, without limitation, enforcement or collection of
any of the Obligations), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders (or all of the Lenders if
explicitly required under any other provision of this Agreement), and such
instructions shall be binding upon all Lenders and all holders of any of the
Obligations; provided, however, that, notwithstanding anything in this Agreement
to the contrary, the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or any other Credit Document or Applicable Law. Not in limitation of the
foregoing, the Agent shall not exercise any right or remedy it or the Lenders
may have under any Credit Document upon the occurrence of a Default or an Event
of Default unless the Requisite Lenders have so directed the Agent to exercise
such right or remedy.
SECTION 11.2. AGENT'S RELIANCE, ETC.
Notwithstanding any other provisions of this Agreement or any other
Credit Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable to any Lender for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except to the extent found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from its or their own gross negligence
or willful misconduct. Without limiting the generality of the foregoing, the
Agent: (a) may treat the payee of any Note as the holder thereof until the Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Agent; (b) may consult with legal counsel
(including its own counsel or counsel for the Borrower or any Loan 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 or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Credit Document; (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 of this Agreement or any other Credit Document or the
satisfaction of any conditions precedent under this Agreement or any Credit
Document on the part of the Borrower or other Persons or inspect the property,
books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Credit Document, any other instrument or document furnished pursuant thereto or
any Collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such Collateral; and (f)
shall incur no liability under or in respect of this Agreement or any other
Credit Document by acting upon any
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notice, consent, certificate or other instrument or writing (which may be by
telephone or telecopy) believed by it to be genuine and signed, sent or given by
the proper party or parties.
SECTION 11.3. NOTICE OF DEFAULTS.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Agent in its
capacity as a Lender) becomes aware of any Default or Event of Default, it shall
promptly send to the Agent such a "notice of default." Further, if the Agent
receives such a "notice of default", the Agent shall give prompt notice thereof
to the Lenders.
SECTION 11.4. BANK OF AMERICA AS LENDER.
Bank of America, as a Lender, shall have the same rights and powers
under this Agreement and any other Credit Document as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Bank of America
in each case in its individual capacity. Bank of America and its affiliates may
each accept deposits from, maintain deposits or credit balances for, invest in,
lend money to, act as trustee under indentures of, serve as financial advisor
to, and generally engage in any kind of business with the Borrower, any other
Loan Party or any other affiliate thereof as if it were any other bank and
without any duty to account therefor to the other Lenders. Further, the Agent
and any affiliate may accept fees and other consideration from the Borrower for
services in connection with this Agreement and otherwise without having to
account for the same to the other Lenders.
SECTION 11.5. APPROVALS OF LENDERS.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials provided to the Agent by the Borrower in respect
of the matter or issue to be resolved, and (d) shall include the Agent's
recommended course of action or determination in respect thereof. Each Lender
shall reply promptly, but in any event within 10 Business Days (or such lesser
period as may be required under the Credit Documents for the Agent to respond).
Unless a Lender shall give written notice to the Agent that it consents to the
recommendation or determination of the Agent within the applicable time period
for reply, such Lender shall be deemed to have conclusively rejected or not
consented to such recommendation or determination.
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SECTION 11.6. LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the Agent,
BAS, nor any of their respective officers, directors, employees, agents,
counsel, attorneys-in-fact or other affiliates has made any representations or
warranties as to the financial condition, operations, creditworthiness, solvency
or other information concerning the business or affairs of the Borrower, any
other Loan Party, any Subsidiary or other Person to such Lender and that no act
by the Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any such representation or warranty by
the Agent to any Lender. Each Lender acknowledges that it has, independently and
without reliance upon the Agent, BAS, any other Lender or counsel to the Agent,
or any of their respective officers, directors, employees and agents, and based
on the financial statements of the Borrower, the Subsidiaries or any other
Affiliate thereof, and inquiries of such Persons, its independent due diligence
of the business and affairs of the Borrower, the Loan Parties, the Subsidiaries
and other Persons, its review of the Credit Documents, the legal opinions
required to be delivered to it hereunder, the advice of its own counsel and such
other documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement and the
transaction contemplated hereby. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, BAS, any other Lender or
counsel to the Agent or any of their respective officers, directors, employees
and agents, and based on such review, advice, documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under the Credit Documents. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Agent under this Agreement or any of the other Credit Documents,
the Agent shall have no duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrower, any other
Loan Party or any other Affiliate thereof which may come into possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
other Affiliates. Each Lender acknowledges that the Agent's legal counsel in
connection with the transactions contemplated by this Agreement is only acting
as counsel to the Agent and is not acting as counsel to such Lender.
SECTION 11.7. INDEMNIFICATION OF AGENT.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so)
pro rata in accordance with such Lender's respective Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a Lender) in any way
relating to or arising out of the Credit Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Credit
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the Agent's gross negligence or willful
misconduct. Without limiting the generality of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable
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counsel fees of the counsel(s) of the Agent's own choosing) incurred by the
Agent in connection with the preparation, execution, administration, or
enforcement of, or legal advice with respect to the rights or responsibilities
of the parties under, the Credit Documents, any suit or action brought by the
Agent to enforce the terms of the Credit Documents and/or collect any
Obligations, any "lender liability" suit or claim brought against the Agent
and/or the Lenders, and any claim or suit brought against the Agent and/or the
Lenders arising under any Environmental and Safety Laws, to the extent that the
Agent is not reimbursed for such expenses by the Borrower. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder or under the other Credit Documents, the expiration of all
Letters of Credit and the termination of this Agreement. If the Borrower shall
reimburse the Agent for any Indemnifiable Amount following payment by any Lender
to the Agent in respect of such Indemnifiable Amount pursuant to this Section,
the Agent shall share such reimbursement on a ratable basis with each Lender
making any such payment.
SECTION 11.8. COLLATERAL MATTERS.
(a) The Agent is authorized on behalf of all of the Lenders,
without the necessity of any notice to or further consent from any Lender, from
time to time prior to an Event of Default, to take any action with respect to
any Collateral or Credit Documents which may be necessary to perfect and
maintain perfected the Liens upon the Collateral granted pursuant to any of the
Credit Documents.
(b) The Lenders hereby authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment and satisfaction
of all of the Obligations at any time arising under or in respect of this
Agreement or the Credit Documents or the transactions contemplated hereby or
thereby; (ii) constituting property being sold or disposed of if the Borrower
certifies to the Agent that the sale or disposition is made in compliance with
Section 9.9. (and the Agent may rely conclusively on any such certificate,
without further inquiry); (iii) as permitted by, but only in accordance with,
the express terms of the applicable Credit Document; or (iv) if approved,
authorized or ratified in writing by all of the Lenders hereunder. Upon request
by the Agent at any time, the Lenders will confirm in writing the Agent's
authority to release particular types or items of Collateral pursuant to this
Section.
(c) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, or consented to in writing by
the Requisite Lenders or all of the Lenders, as applicable, and upon at least
five Business Days' prior written request by the Borrower, the Agent shall (and
is hereby irrevocably authorized by the Lenders to) execute such documents as
may be necessary to evidence the release of the Liens granted to the Agent for
the benefit of the Lenders herein or pursuant hereto upon the Collateral that
was sold or transferred; provided, however, that (i) the Agent shall not be
required to execute any such document on terms which, in the Agent's opinion,
would expose the Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty;
and (ii) such release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of the Borrower or any Loan Party
in respect of) all interests retained by the Borrower or any Subsidiary,
including (without limitation) the proceeds of the sale, all of which shall
continue to constitute part of the Collateral. In the event of any sale or
transfer of
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Collateral, or any foreclosure with respect to any of the Collateral, the Agent
shall be authorized to deduct all of the expenses reasonably incurred by the
Agent from the proceeds of any such sale, transfer or foreclosure.
(d) The Agent shall have no obligation whatsoever to the Lenders
or to any other Person to assure that the Collateral exists or is owned by the
Borrower or any Subsidiary or is cared for, protected or insured or that the
Liens granted to the Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising at
all or in any manner or under any duty of care, disclosure or fidelity any of
the rights, authorities and powers granted or available to the Agent in this
Section or in any of the Credit Documents, it being understood and agreed that
in respect of the Collateral, or any act, omission or event related thereto, the
Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Agent's own interest in the Collateral as one of the Lenders and that
the Agent shall have no duty or liability whatsoever to the Lenders, except for
its gross negligence or willful misconduct.
SECTION 11.9. SUCCESSOR AGENT.
The Agent may resign at any time as Agent under the Credit Documents by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent which appointment shall, provided no Default or Event of Default shall
have occurred and be continuing, be subject to the Borrower's approval, which
approval shall not be unreasonably withheld or delayed (except that Borrower
shall, in all events, be deemed to have approved each Lender as a successor
Agent). If no successor Agent shall have been so appointed by the Requisite
Lenders, and shall have accepted such appointment, within 30 days after the
resigning Agent's giving of notice of resignation, then the resigning Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be a Lender, if
any Lender shall be willing to serve, and otherwise shall be a commercial bank
having total combined assets of at least $50,000,000,000. If no successor Agent
has accepted appointment by the date which is 30 days following a resigning
Agent's notice of resignation, the resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the agent
until such time, if any, as a successor Agent is appointed as provided for
above. Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Agent, and the
resigning Agent shall be discharged from its duties and obligations under the
Credit Documents. After any resigning Agent's resignation hereunder as Agent,
the provisions of this Article XI. shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under the Credit
Documents.
SECTION 11.10. DOCUMENTATION AGENT.
The Documentation Agent in such capacity assumes no responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement
or collection of any of the Loans, nor any duties as an agent hereunder for the
Lenders. The title of "Documentation Agent" is solely honorific and implies no
fiduciary responsibility on the part of the Documentation Agent, in its capacity
as such, to the Agent, the Borrower or any Lender and the
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use of such title does not impose on the Documentation Agent any duties or
obligations greater than those of any other Lender or entitle the Documentation
Agent to any rights other than those to which any other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
SECTION 12.1. NOTICES.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If the Borrower:
Serologicals Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President of
Finance and Chief Financial Officer
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code IL12310830
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender:
To such Lender's address or telecopy number, as applicable, set
forth on its signature page hereto or in the applicable Assignment
and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section; provided, however, that the failure to deliver copies of notices as
indicated above shall not affect the validity of any notice. All such notices
and other communications shall be effective (i) if mailed, when received; (ii)
if telecopied, when transmitted; or (iii) if hand delivered, when delivered.
Notwithstanding the immediately preceding sentence, all notices or
communications to the Agent or any Lender under Article II. shall be effective
only when actually received. Neither the Agent, any Lender, nor the Swingline
Lender shall incur any liability to the Borrower (nor shall the Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to in
this Agreement which the Agent, such Lender or Swingline Lender believes in good
faith to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
SECTION 12.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of the
Agent's reasonable out-of-pocket costs and expenses incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, this Agreement or any of the other Credit Documents (including
due diligence expenses and travel expenses relating to closing, if any), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or reimburse the
Agent and the Lenders for all their costs and expenses incurred in connection
with the enforcement or preservation of any rights under the Credit Documents,
including the reasonable fees and disbursements of their respective counsel and
any payments in indemnification or otherwise payable by the Lenders to the Agent
pursuant to the Credit Documents, (c) to pay, indemnify and hold the Agent and
the Lenders harmless from any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any failure to pay or delay in
paying, documentary, stamp, intangibles, excise and other similar taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of any of the Credit Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, any Credit Document, (d) to pay or reimburse the Agent and the
Lenders for all their costs and expenses incurred in connection with gaining
possession of, maintaining, handling, preserving, storing, shipping, appraising,
selling, preparing for sale and
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advertising to sell any Collateral, whether or not a sale is consummated, and
(e) to the extent not already covered by any of the preceding subsections, to
pay or reimburse the Agent and the Lenders for all their costs and expenses
incurred in connection with any bankruptcy or other proceeding of the type
described in Sections 10.1.(e) or 10.1.(f), including the reasonable fees and
disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding.
SECTION 12.3. SETOFF.
Subject to Section 3.3., the Borrower hereby authorizes the Agent and
each Lender (subject to receipt by such Lender of the Agent's prior written
consent) at any time while an Event of Default exists, to the fullest extent
permitted by Applicable Law, to set off and 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 the Agent or such Lender to or for the credit
or the account of the Borrower against any and all of the Obligations,
irrespective of whether or not any demand shall have been made. Each of the
Agent and each Lender, as the case may be, agrees to notify the Borrower of any
such set-off and application simultaneously therewith, provided that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent and the Lenders under this Section are in
addition to any other rights and remedies (including without limitation, other
rights of set-off) which the Agent or any Lender may have.
SECTION 12.4. ARBITRATION.
ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING
BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
CREDIT DOCUMENT, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL
ARBITRATION AND MEDIATION SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET
FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL.
JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY
OF THE BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
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WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL
ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A
WAIVER BY THE AGENT OR ANY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT
NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. THE AGENT AND THE LENDERS MAY EXERCISE SUCH SELF
HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. NEITHER THE EXERCISE OF SELF HELP
REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
SECTION 12.5. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, except that the Borrower may not assign or otherwise transfer
any of its rights under this Agreement without the prior written consent of all
Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions or other entities (each a "Participant") participating
interests in its Commitment or the Obligations owing to such Lender; provided,
however, any such participating interest must be for a constant and not a
varying percentage interest. No Participant shall have any rights or benefits
under this Agreement or any other Credit Document. In the event of any such
grant by a Lender of a participating interest to a Participant, such Lender
shall remain responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility
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to enforce the obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided, however, such Lender may agree with the
Participant that it will not, without the consent of the Participant, agree to
(i) increase, or extend the term or extend the time or waive any requirement for
the reduction or termination of, such Lender's Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the Loans or portions
thereof owing to such Lender, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, (v) any
release of all or substantially all of the Collateral, or (vi) any release of
any Guarantor from its obligations under the Guaranty. An assignment or other
transfer which is not permitted by subsection (d) below shall be given effect
for purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (c). The selling Lender shall notify
the Agent and the Borrower of the sale of any participation hereunder and the
terms thereof.
(d) Any Lender may with the prior written consent of the Agent and
the Borrower (which consent, in each case, shall not be unreasonably withheld)
assign to one or more Eligible Assignees (each an "Assignee") all or a portion
of such Lender's Commitment and its other rights, obligations and rights and
obligations under this Agreement and the Notes; provided, however, (i) no such
consent by the Borrower shall be required in any case if a Default or Event of
Default shall have occurred and be continuing or with respect to an assignment
to a CLO if the assigning Lender retains the sole right to approve any
amendment, modification, waiver or consent of or to any provision of this
Agreement or any other Credit Document (except that the CLO may require such
Lender to obtain its consent for any such amendment, modification, waiver or
consent described in clauses (i) through (viii), inclusive, of Section 12.6.
that affects such CLO); (ii) no such consent by the Borrower shall be required
in the case of any assignment to another Lender or any affiliate of such Lender
or another Lender unless after giving effect to such assignment, the Assignee
will hold 40% or more of the aggregate amount of all Lenders' Commitments; (iii)
any partial assignment shall be in an amount at least equal to $5,000,000 and
after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $5,000,000; and (iv) each
such assignment shall be effected by means of an Assignment and Acceptance
Agreement. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
deemed to be a Lender party to this Agreement as of the effective date of the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (d), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that new Notes are issued to the
Assignee and such transferor Lender, as appropriate. In connection with any such
assignment (including without limitation, an assignment from one Lender to
another Lender), the transferor Lender shall pay to the Agent an administrative
fee for processing such assignment in the amount of $3,500.
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(e) The Agent shall maintain at the Principal Office a copy of
each Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted
under the foregoing provisions of this Section, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower,
any other Loan Party or any of their respective Subsidiaries in the possession
of such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants), subject to compliance with Section
12.8.
(h) Anything in this Section to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to the Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of
the Borrower and the Agent, it will not make any assignment hereunder in any
manner or under any circumstances that would require registration or
qualification of, or filings in respect of, any Loan or Note under the
Securities Act or any other securities laws United States of America or of any
other jurisdiction.
SECTION 12.6. AMENDMENTS.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Credit Document to
be given by the Lenders may be given, and any term of this Agreement or of any
other Credit Document may be amended, and the performance or observance by the
Borrower or any Loan Party or Subsidiary of any terms of this Agreement or such
other Credit Document or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Requisite
Lenders
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(and, in the case of an amendment to any Credit Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the Agent at the
written direction of the Lenders), do any of the following: (i) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
except for any increase in the Commitments effectuated pursuant to Section
2.12.; (ii) reduce the principal of, or interest rates that have accrued or that
will be charged on the outstanding principal amount of, any Loans or other
Obligations; (iii) reduce the amount of any Fees payable hereunder; (iv)
postpone any date fixed for any payment of any principal of, interest on, or
Fees with respect to, any Loans or any other Obligations; (v) change the
Commitment Percentages, except for any change in the Commitment Percentages
resulting from any increase of the Commitments effectuated pursuant to Section
2.12.; (vi) amend Section 2.12., this Section or amend the definitions of the
terms used in this Agreement or the other Credit Documents insofar as such
definitions affect the substance of this Section; (vii) modify the definition of
the term "Requisite Lenders" or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof; and (viii) release any
Guarantor from its obligations under the Guaranty. Any amendment, waiver or
consent relating to Section 2.13. or the obligations of Swingline Lender under
this Agreement or any other Loan Document shall, in addition to Lenders required
hereinabove to take such action, require the written consent of Swingline
Lender. Further, no amendment, waiver or consent unless in writing and signed by
the Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Credit Documents. Further, no Collateral shall be released or disposed
of by the Agent unless all of the Lenders so direct the Agent or unless released
or disposed of as permitted by, and in accordance with, Section 11.8. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose set forth therein. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Credit Document, no notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.
SECTION 12.7. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower, on the one hand, and the Lenders
and the Agent, on the other hand, shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower and no provision in this Agreement or in any of the other Credit
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to
any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither the
Agent nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
SECTION 12.8. CONFIDENTIALITY.
The Agent and the Lenders shall hold all non-public, proprietary or
confidential information (which has been identified as such by the Borrower)
obtained pursuant to the
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requirements of this Agreement in accordance with their customary procedures for
handling confidential information of this nature and in accordance with safe and
sound banking practices; provided, however, the Agent and the Lenders may make
disclosure of any such information to such of their examiners, affiliates,
outside auditors, counsel, consultants, appraisers and other professional
advisors as may be reasonably necessary in connection with this Agreement or as
reasonably required by any proposed Assignee or any proposed Participant in
connection with the contemplated transfer of any Note or participation therein
or as required or requested by any Governmental Authority or representative
thereof or in connection with the enforcement hereof or of any Loan Document or
related document or pursuant to legal process or with respect to any litigation
between or among the Borrower, the Agent, any of the Lenders or the Swingline
Lender; provided, however, that, as a condition to receipt of any such
information, each such affiliate, auditor, counsel, consultant, appraiser,
professional advisor, proposed Assignee or Participant shall agree in writing to
treat all such information as confidential; and provided, further, that prior to
any such disclosure to any unrelated entity outside the ordinary course of
business or pursuant to legal process, the party making such disclosure shall
give notice of such disclosure to the Borrower and cooperate with the Borrower
in any efforts to limit or restrict such disclosure. In no event shall the
Agent, any Lender or the Swingline Lender be obligated or required to return any
materials furnished to it by the Borrower. The foregoing provisions shall not
apply to the Agent, any Lender or the Swingline Lender with respect to
information that (a) is or becomes generally available to the public (other than
through such Person), (b) is already in the possession of such Person on a
nonconfidential basis, or (c) comes into the possession of such Person in a
manner not known to such Person to involve a breach of a duty of confidentiality
owing to the Borrower.
SECTION 12.9. INDEMNIFICATION.
The Borrower shall and hereby agrees to indemnify and defend the Agent,
BAS, any affiliate of the Agent and each of the Lenders and their respective
directors, officers, shareholders, agents, employees and counsel (each referred
to herein as an "Indemnified Party") for, and hold Indemnified Party harmless
against, any and all losses, liabilities, claims (including Environmental
Claims), damages or expenses incurred by any of them arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Borrower or
any Loan Party of the proceeds of any of the extensions of credit hereunder or
the past, present or future business activities of the Borrower or any Loan
Party including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses that are determined pursuant to a final, non-appealable order of a
court of competent jurisdiction or by binding arbitration, as applicable, to
have resulted solely from the gross negligence, willful misconduct or bad faith
of such Indemnified Party).
SECTION 12.10. SURVIVAL.
Notwithstanding any termination of this Agreement, or of the other
Credit Documents, the indemnities to which the Agent and the Lenders are
entitled under the provisions of Sections 11.7., 12.2. and 12.9. and any other
provision of this Agreement and the other Credit
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Documents, and the arbitration provisions contained in Section 12.4., shall
continue in full force and effect and shall protect the protect the Agent, the
Lenders and the Swingline Lender against events arising after such termination
as well as before.
SECTION 12.11. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
SECTION 12.13. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 12.14. OBLIGATIONS WITH RESPECT TO LOAN PARTIES.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
SECTION 12.15. ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Credit Documents referred to
herein, together with any letter agreement between the Agent, BAS, any Lender or
the Swingline Lender regarding Fees and any letter agreement between the
Swingline Lender and the Borrower regarding interest rates applicable to
Swingline Loans, embody the final, entire agreement among the parties hereto and
supersede any and all prior commitments, agreements, representations, and
understandings, whether written or oral, relating to the subject matter hereof
and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
SECTION 12.16. CONSTRUCTION.
The Agent, the Borrower and each Lender acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Credit Documents with its
legal counsel and that this Agreement and
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the other Credit Documents shall be construed as if jointly drafted by the
Agent, the Borrower and each Lender.
SECTION 12.17. NO NOVATION; EFFECT OF AMENDMENT AND RESTATEMENT.
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND
RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND
THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS
AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE,
A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN
CONNECTION WITH THE EXISTING CREDIT AGREEMENT. FURTHER, THE PARTIES DO NOT
INTEND THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT THE
PERFECTION OR PRIORITY OF ANY LIEN OF AGENT (INCLUDING ANY LIEN PREVIOUSLY HELD
BY BANK OF AMERICA IN ITS INDIVIDUAL CAPACITY BUT NOW HELD BY BANK OF AMERICA IN
ITS CAPACITY AS THE AGENT) IN ANY OF THE COLLATERAL IN ANY WAY WHATSOEVER. THE
PARTIES ACKNOWLEDGE AND AGREE THAT ANY LIEN HELD BY BANK OF AMERICA IN ANY OF
THE COLLATERAL (AS DEFINED HEREIN) PURSUANT TO ANY OF THE CREDIT DOCUMENTS (AS
DEFINED IN THE EXISTING CREDIT AGREEMENT) CONTINUES IN SUCH COLLATERAL BUT SHALL
BE DEEMED TO BE HELD BY BANK OF AMERICA IN ITS CAPACITY AS AGENT FOR THE BENEFIT
OF THE LENDERS AND THE SWINGLINE LENDER. THE AMENDMENT AND RESTATEMENT OF THE
EXISTING CREDIT AGREEMENT EFFECTED BY THIS AGREEMENT SHALL BE DEEMED TO HAVE
PROSPECTIVE APPLICATION ONLY UNLESS OTHERWISE SPECIFICALLY STATED HEREIN.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amended
and Restated Credit Agreement to be executed by their authorized officers all as
of the day and year first above written.
SEROLOGICALS CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signatures Continued on Next Page]
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[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 25, 2002 WITH SEROLOGICALS CORPORATION]
BANK OF AMERICA, N.A., individually and as
Swingline Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: SVP
COMMITMENT AMOUNT:
$25,000,000
BANK OF AMERICA, N.A., as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE (all Types of Loans):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code IL12310830
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-99-
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 25, 2002 WITH SEROLOGICALS CORPORATION]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Vice President
COMMITMENT AMOUNT:
$12,500,000
LENDING OFFICE (all Types of Loans):
PNC Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-100-
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 25, 2002 WITH SEROLOGICALS CORPORATION]
BRANCH BANKING & TRUST COMPANY
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COMMITMENT AMOUNT:
$12,500,000
LENDING OFFICE (all Types of Loans):
Branch Banking & Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
-101-
[SIGNATURE PAGE TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 25, 2002 WITH SEROLOGICALS CORPORATION]
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
COMMITMENT AMOUNT:
$15,000,000
LENDING OFFICE (all Types of Loans):
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-102-