SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 2002
Commission File Number 0-16093
CONMED CORPORATION
(Exact name of the registrant as specified in its charter)
New York 16-0977505
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
525 French Road, Utica, New York 13502
(Address of principal executive offices) (Zip Code)
(315) 797-8375
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
The number of shares outstanding of registrant's common stock, as of
November 7, 2002 is 28,660,380 shares.
CONMED CORPORATION
TABLE OF CONTENTS
FORM 10-Q
PART I FINANCIAL INFORMATION
Item Number Page
Item 1. Financial Statements
- Consolidated Condensed Statements
of Income 1
- Consolidated Condensed Balance Sheets 2
- Consolidated Condensed Statements
of Cash Flows 3
- Notes to Consolidated Condensed
Financial Statements 4
Item 2. Management's Discussion and Analysis
of Financial Condition and Results
of Operations 17
Item 4. Controls and Procedures 26
PART II OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 27
Signatures 28
Certifications 29
Item 1.
CONMED CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands except per share amounts)
(unaudited)
Three Months Ended Nine Months Ended
------------------ -----------------
September September
--------- ---------
2001 2002 2001 2002
---- ---- ---- ----
Net sales............................................ $105,318 $113,332 $315,398 $337,806
-------- -------- -------- --------
Cost of sales........................................ 51,332 54,429 150,971 160,244
Selling and administrative........................... 35,029 34,562 103,780 104,171
Research and development............................. 3,491 4,253 10,663 12,155
-------- -------- -------- --------
89,852 93,244 265,414 276,570
-------- -------- -------- --------
Income from operations............................... 15,466 20,088 49,984 61,236
Interest expense, net................................ 7,630 5,765 23,809 18,748
-------- -------- -------- --------
Income before income taxes
and extraordinary item............................. 7,836 14,323 26,175 42,488
Provision for income taxes........................... 2,821 5,156 9,423 15,295
-------- -------- -------- --------
Income before extraordinary item..................... 5,015 9,167 16,752 27,193
Extraordinary item, net of
income taxes....................................... - 944 - 944
-------- -------- -------- --------
Net income........................................... $ 5,015 $ 8,223 $16,752 $26,249
======== ======== ======== ========
Per share data:
Income before extraordinary item
Basic............................................ $ .20 $ .32 $ .71 $ 1.01
Diluted.......................................... .20 .32 .70 .99
Extraordinary item
Basic............................................ $ - $ .03 $ - $ .03
Diluted.......................................... - .04 - .03
Net income
Basic............................................ $ .20 $ .29 $ .71 $ .98
Diluted.......................................... .20 .28 .70 .96
Weighted average common shares
Basic............................................ 24,806 28,613 23,657 26,870
Diluted.......................................... 25,381 29,043 23,990 27,470
See notes to consolidated condensed financial statements.
1
CONMED CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands except share amounts)
(unaudited)
December 31, September
2001 2002
---- ----
ASSETS
Current assets:
Cash and cash equivalents ..................... $ 1,402 $ 2,513
Accounts receivable, net ...................... 51,188 55,770
Inventories ................................... 107,390 117,880
Deferred income taxes ......................... 1,105 1,105
Prepaid expenses and other current assets ..... 3,464 3,363
--------- ---------
Total current assets ........................ 164,549 180,631
--------- ---------
Property, plant and equipment, net .............. 91,026 94,856
Goodwill, net ................................... 251,140 253,499
Other intangible assets, net .................... 189,752 185,781
Other assets .................................... 5,141 6,000
--------- ---------
Total assets ................................ $ 701,608 $ 720,767
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt ............. $ 73,429 $ 2,272
Accounts payable .............................. 19,877 24,694
Accrued compensation .......................... 11,863 9,782
Income taxes payable .......................... 2,507 3,390
Accrued interest .............................. 4,954 1,158
Other current liabilities ..................... 7,207 6,486
--------- ---------
Total current liabilities ................... 119,837 47,782
--------- ---------
Long-term debt .................................. 262,500 251,560
Deferred income taxes ........................... 18,655 28,875
Other long-term liabilities ..................... 16,982 12,878
--------- ---------
Total liabilities ........................... 417,974 341,095
--------- ---------
Shareholders' equity:
Preferred stock, par value $.01 per share;
authorized 500,000 shares; none outstanding . -- --
Common stock, par value $.01 per share;
100,000,000 shares authorized; 25,261,590 and
28,656,671 shares issued and outstanding in
2001 and 2002, respectively ............... 253 287
Paid-in capital ............................... 160,757 228,515
Retained earnings ............................. 128,240 154,489
Accumulated other comprehensive loss .......... (5,197) (3,200)
Less 37,500 shares of common stock in treasury,
at cost ..................................... (419) (419)
--------- ---------
Total shareholders' equity .................. 283,634 379,672
--------- ---------
Total liabilities and shareholders equity . $ 701,608 $ 720,767
========= =========
See notes to consolidated condensed financial statements.
2
CONMED CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
Nine Months Ended September 30, 2001 and 2002
(in thousands)
(unaudited)
2001 2002
---- ----
Cash flows from operating activities:
Net income ............................................ $ 16,752 $ 26,249
--------- ---------
Adjustments to reconcile net income
to net cash provided by operations:
Depreciation .................................... 6,648 6,731
Amortization .................................... 15,639 9,843
Extraordinary item, net of income taxes ......... -- 944
Increase (decrease) in cash flows
from changes in assets and liabilities:
Accounts receivable ................... (7,052) (2,588)
Decrease in sale of accounts receivable -- (2,000)
Inventories ........................... (2,432) (14,006)
Prepaid expenses and
other current assets ................ (283) (3,057)
Accounts payable ...................... (80) 4,808
Income taxes payable .................. (601) 1,414
Accrued compensation .................. (20) (2,081)
Accrued interest ...................... (2,614) (3,796)
Other assets/liabilities, net ......... (2,385) 6,069
--------- ---------
6,820 2,281
--------- ---------
Net cash provided by operating activities ....... 23,572 28,530
--------- ---------
Cash flows from investing activities:
Payments related to business acquisitions ........... -- (2,359)
Purchases of property, plant, and equipment ......... (12,704) (10,561)
--------- ---------
Net cash used by investing activities ........... (12,704) (12,920)
--------- ---------
Cash flows from financing activities:
Net proceeds from issuance of common stock ............ -- 66,123
Net proceeds from exercise of stock options ........... 1,591 3,669
Repurchase of warrant on common stock ................. -- (2,000)
Payments on debt ...................................... (13,034) (183,097)
Proceeds of debt ...................................... -- 101,000
Payments related to issuance of debt .................. -- (1,513)
--------- ---------
Net cash used by financing activities ........... (11,443) (15,818)
--------- ---------
Effect of exchange rate changes
on cash and cash equivalents ........................ (880) 1,319
--------- ---------
Net increase (decrease) in cash and cash equivalents .... (1,455) 1,111
Cash and cash equivalents at beginning of period ........ 3,470 1,402
--------- ---------
Cash and cash equivalents at end of period .............. $ 2,015 $ 2,513
========= =========
Supplemental non-cash investing and financing activities:
We acquired a business in the third quarter of 2001 through the exchange of
1,950,000 shares of our common stock.
We acquired certain property in the third quarter of 2001 through the assumption
of approximately $22.8 million of debt and accrued interest.
See notes to consolidated condensed financial statements.
3
CONMED CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(in thousands except share amounts)
Note 1 - Organization and operations
- ------------------------------------
The consolidated condensed financial statements include the accounts of CONMED
Corporation and its subsidiaries ("CONMED", the "Company", "we" or "us"). All
intercompany accounts and transactions have been eliminated. CONMED Corporation
is a medical technology company specializing in instruments, implants and video
equipment for arthroscopic sports medicine, and powered surgical instruments,
such as drills and saws, for orthopedic, ENT, neuro-surgery and other surgical
specialties. We are also a leading developer, manufacturer and supplier of
advanced medical devices, including radio frequency, or RF, electrosurgery
systems used routinely to cut and cauterize tissue in nearly all types of
surgical procedures worldwide and endoscopy products such as trocars, clip
appliers, scissors and surgical staplers. We also manufacture and sell a full
line of ECG electrodes for heart monitoring and other patient care products. Our
products are used in a variety of clinical settings, such as operating rooms,
surgery centers, physicians' offices and critical care areas of hospitals. Our
business is organized, managed and internally reported as a single segment,
since our product offerings have similar economic, operating and other related
characteristics.
Note 2 - Interim financial information
- --------------------------------------
The statements for the three and nine months ended September 30, 2001 and 2002
are unaudited; in our opinion such unaudited statements include all adjustments
(which comprise only normal recurring accruals) necessary for a fair
presentation of the results for such periods. The consolidated condensed
financial statements for the year ending December 31, 2002 are subject to
adjustment at the end of the year when they will be audited by independent
accountants. The results of operations for the three and nine months ended
September 30, 2002 are not necessarily indicative of the results of operations
to be expected for any other quarter nor for the year ending December 31, 2002.
The consolidated condensed financial statements and notes thereto should be read
in conjunction with the financial statements and notes for the year ended
December 31, 2001 included in our Annual Report to the Securities and Exchange
Commission on Form 10-K.
Note 3 - Other comprehensive income (loss)
- ------------------------------------------
Comprehensive income (loss) consists of the following:
Three months ended Nine months ended
September September
2001 2002 2001 2002
---- ---- ---- ----
Net income .................... $ 5,015 $ 8,223 $ 16,752 $ 26,249
-------- -------- -------- --------
Other comprehensive income:....
Foreign currency
translation adjustment .... 35 (139) (857) 1,338
Cash flow hedging
(net of income taxes) ..... (707) 221 (2,143) 659
-------- -------- -------- --------
Comprehensive income ........ $ 4,343 $ 8,305 $ 13,752 $ 28,246
======== ======== ======== ========
4
Accumulated other comprehensive income (loss) consists of the following:
Accumulated
Minimum Cumulative Cash Other
Pension Translation Flow Comprehensive
Liability Adjustments Hedges Income (loss)
--------- ----------- ------ -------------
Balance, December 31, 2001 ............ $(1,062) $(2,169) $(1,966) $(5,197)
Foreign currency translation.......
adjustments ..................... -- 1,338 -- 1,338
Cash flow hedging (net of
income taxes) ................... -- -- 659 659
------- ------- ------- -------
Balance, September 30, 2002 ........... $(1,062) $ (831) $(1,307) $(3,200)
======= ======= ======= =======
Note 4 - Inventories
- --------------------
The components of inventory are as follows:
December 31, September 30,
2001 2002
---- ----
Raw materials................................ $38,101 $40,512
Work-in-process.............................. 11,921 13,339
Finished goods............................... 57,368 64,029
-------- --------
Total ........................... $107,390 $117,880
======== ========
Note 5 - Earnings per share
- ---------------------------
Basic earnings per share (EPS) is computed based on the weighted average number
of common shares outstanding for the period. Diluted EPS gives effect to all
dilutive potential shares outstanding (i.e., options and warrants) during the
period. The following is a reconciliation of the weighted average shares used in
the calculation of basic and diluted EPS (in thousands):
Three months ended Nine months ended
September 30, September 30,
------------- -------------
2001 2002 2001 2002
---- ---- ---- ----
Shares used in the calculation
of Basic EPS(weighted average
shares outstanding) ................ 24,806 28,613 23,657 26,870
Effect of dilutive potential
securities ......................... 575 430 333 600
------ ------ ------ ------
Shares used in the calculation
of Diluted EPS...................... 25,381 29,043 23,990 27,470
====== ====== ====== ======
The shares used in the calculation of diluted EPS exclude warrants and options
to purchase shares where the exercise price was greater than the average market
price of common shares for the period. Such shares aggregated 1,988,000 and
1,194,000 for the three months ended September 30, 2001 and 2002, respectively,
and 3,027,000 and 599,000 for the nine months ended September 30, 2001 and 2002
respectively.
5
Note 6 - New senior credit agreement
- ------------------------------------
During the quarter ended September 30, 2002, we entered into a new $200 million
senior credit agreement (the "new senior credit agreement"). The new senior
credit agreement consists of a $100 million revolving credit facility and a $100
million term loan. The proceeds of the term loan portion of the new senior
credit agreement were used to eliminate the term loans and borrowings on the
revolving credit facility under the previously existing senior credit agreement
(the "old senior credit agreement"). The new senior credit agreement calls for
both components to extend for approximately five years, with the revolving
credit facility terminating on August 28, 2007 and the term loan expiring on
December 15, 2007. The term loan portion of the facility could be extended an
additional two years, provided our currently outstanding $130 million in 9%
Senior Subordinated Notes are refinanced or repaid by December 15, 2007. The
scheduled principal payments on the term loan portion of the new senior credit
agreement are $1.0 million annually with the remaining balance outstanding due
and payable on December 15, 2007. We may also be required, under certain
circumstances, to make additional principal payments based on excess cash flow
as defined in the new senior credit agreement. Approximately $99.0 million of
the revolving credit facility under the new senior credit agreement was
available at September 30, 2002. Interest rates on the term loan and revolving
credit facility components of the new senior credit agreement are LIBOR plus 275
basis points and LIBOR plus 250 basis points, respectively.
The new senior credit agreement is collateralized by substantially all of our
personal property and assets, except for our accounts receivable and related
rights which are pledged in connection with our accounts receivable sales
agreement. The new senior credit agreement contains covenants and restrictions
which, among other things, require maintenance of certain working capital levels
and financial ratios, prohibit dividend payments and restrict the incurrence of
certain indebtedness and other activities, including acquisitions and
dispositions. We are also required, under certain circumstances, to make
mandatory prepayments from net cash proceeds from any issue of equity and asset
sales.
Note 7 - Extraordinary charge
- -----------------------------
Deferred financing fees related to the approximately three years remaining on
the old senior credit agreement have been written off as an extraordinary charge
of $.9 million, net of income taxes, or $.04 per diluted share, on the early
extinguishment of debt.
Note 8 - New accounting pronouncements
- --------------------------------------
In June 2001, the Financial Accounting Standards Board approved Statement of
Financial Accounting Standards No. 142 "Goodwill and Other Intangible Assets",
("SFAS 142"). We adopted SFAS 142 effective January 1, 2002. Under this
standard, amortization of goodwill and certain intangible assets, including
certain intangibles recorded as a result of past business combinations, is to be
discontinued upon adoption of SFAS 142.
During 2002, we performed tests of goodwill and indefinite-lived intangible
assets as of January 1, 2002. We tested for impairment using the two-step
process prescribed in SFAS 142. The first step is identification for potential
impairment. The second step, which has been determined not to be necessary,
measures the amount of any impairment. No impairment losses have been recognized
as a result of these tests. The changes in the net carrying amount of goodwill
for the nine months ended September 30, 2002 are as follows:
Balance as of January 1, 2002................................ $ 251,140
Goodwill acquired ........................................... 2,359
---------
Balance as of September 30, 2002............................. $ 253,499
=========
6
Other intangible assets consist of the following:
December 31, 2001 September 30, 2002
----------------- ------------------
Gross Gross
Carrying Accumulated Carrying Accumulated
Amortized intangible assets: Amount Amortization Amount Amortization
-------- -------- -------- --------
Customer relationships............................... $ 96,712 $(10,180) $ 96,712 $(12,089)
Patents and other intangible assets.................. 35,465 (18,389) 38,126 (23,112)
Unamortized intangible assets:
Trademarks and tradenames............................ 95,715 (9,571) 95,715 (9,571)
-------- -------- -------- --------
$227,892 $(38,140) $230,553 $(44,772)
======== ======== ======== ========
Other intangible assets primarily represent allocations of purchase price to
identifiable intangible assets of acquired businesses. The weighted average
amortization period for intangible assets which are amortized is 19 years.
Customer relationships are being amortized over 38 years. Patents and other
intangible assets are being amortized over a weighted average life of 8 years.
Our customer relationship intangible asset was acquired in connection with the
1997 acquisition of Linvatec Corporation. Our accounting for this asset upon
implementation of SFAS 142 was to recognize this asset separately from goodwill
and continue to amortize this asset over the 38 year life supported by a
valuation prepared in connection with the Linvatec acquisition.
The trademarks and tradenames intangible asset was recognized in conjunction
with the 1997 acquisition of Linvatec Corporation. As of the date of this
acquisition, Linvatec was a leader in the orthopedic medical device marketplace
with a focus in arthroscopic surgery and powered surgical instruments. We
continue to market products under the acquired trademarks and tradenames of
"Linvatec", "Hall", "Shutt" and "Envision" which we believe are respected names
in the orthopedic marketplace. From the date of the Linvatec acquisition, we
have continued to release new product and product extensions under the above
trademarks and tradenames and continue to maintain and promote these trademarks
and tradenames in the market through continued legal registration and such
methods as advertising, medical education and trade shows. Linvatec continues to
be a leader in the orthopedic medical device marketplace. Based on the
orthopedic marketplace, it is our belief that the trademarks and tradenames
intangible asset will generate cash flow for an indefinite period of time.
Accordingly, upon adoption of SFAS 142, effective January 1, 2002, amortization
of the trademarks and tradenames intangible asset was discontinued.
Amortization expense related to intangible assets which are subject to
amortization totaled $5,442 in the nine months ended September 30, 2002 and
$5,259 in the nine months ended September 30, 2001.
The estimated amortization expense for the year ending December 31, 2002 and for
each of the five succeeding years is as follows:
2002 $ 7,256
2003 6,857
2004 6,487
2005 4,664
2006 3,424
2007 3,424
The following is a reconciliation assuming goodwill and other intangible assets
had been accounted for in accordance with SFAS 142 in the three and nine months
ended September 30, 2001:
7
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
2001 2002 2001 2002
---- ---- ---- ----
Reported net income $5,015 $ 8,223 $16,752 $26,249
------ ------- ------- -------
Adjustments (net of income taxes)
Add back: Goodwill amortization 1,030 -- 3,090 --
Add back: Trademarks and trade
names amortization 383 -- 1,149 --
------ ------- ------- -------
Adjusted net income $6,428 $ 8,223 $20,991 $26,249
====== ======= ======= =======
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
2001 2002 2001 2002
---- ---- ---- ----
Basic earnings per share
Reported net income $ .20 $ .29 $ .71 $ .98
------ ------- ------- -------
Adjustments (net of income taxes)
Add back: Goodwill amortization .04 -- .13 --
Add back: Trademarks and trade
names amortization .02 -- .05 --
------ ------- ------- -------
Adjusted net income $ .26 $ .29 $ .89 $ .98
====== ======= ======= =======
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
2001 2002 2001 2002
---- ---- ---- ----
Diluted earnings per share
Reported net income $ .20 $ .28 $ .70 $ .96
------ ------- ------- -------
Adjustments (net of income taxes)
Add back: Goodwill amortization .04 -- .13 --
Add back: Trademarks and trade
names amortization .01 -- .04 --
------ ------- ------- -------
Adjusted net income $ .25 $ .28 $ .87 $ .96
====== ======= ======= =======
Note 9 - Guarantor financial statements
- ---------------------------------------
Our new senior credit agreement and Senior Subordinated Notes (the "Notes") are
guaranteed (the "Subsidiary Guarantees") by each of our subsidiaries (the
"Subsidiary Guarantors") except CONMED Receivables Corporation (the
"Non-Guarantor Subsidiary"). The Subsidiary Guarantees provide that each
Subsidiary Guarantor will fully and unconditionally guarantee our obligations
under the new senior credit agreement and the Notes on a joint and several
basis. Each Subsidiary Guarantor and Non-Guarantor Subsidiary is wholly-owned by
CONMED Corporation. The following supplemental financial information sets forth
on a condensed consolidating basis, condensed consolidating balance sheets,
statements of income and statements of cash flows for the Parent Company only,
Subsidiary Guarantors and Non-Guarantor Subsidiary and for the Company as of
December 31, 2001 and September 30, 2002 and for the three and nine months ended
September 30, 2001 and 2002.
8
CONMED CORPORATION
CONSOLIDATING CONDENSED BALANCE SHEET
December 31,2001
(in thousands)
Parent Non-
Company Subsidiary Guarantor Company
Only Guarantors Subsidiary Eliminations Total
---- ---------- ---------- ------------ -----
ASSETS
Current assets:
Cash and cash equivalents ....... $ -- $ 1,181 $ 221 $ -- $ 1,402
Accounts receivable, net ........ -- 7,198 43,990 -- 51,188
Inventories ..................... 23,045 84,345 -- -- 107,390
Deferred income taxes ........... 1,105 -- -- -- 1,105
Prepaid expenses and other
current assets .............. 831 2,633 -- -- 3,464
--------- --------- --------- --------- ----------
Total current assets ...... 24,981 95,357 44,211 -- 164,549
--------- --------- --------- --------- ----------
Property, plant and equipment, net .. 45,856 45,170 -- -- 91,026
Goodwill, net ....................... 86,412 164,728 -- -- 251,140
Other intangible assets, net ........ 8,177 181,575 -- -- 189,752
Other assets ........................ 477,798 2,376 -- (475,033) 5,141
--------- --------- --------- --------- ----------
Total assets .................... $ 643,224 $ 489,206 $ 44,211 $(475,033) $ 701,608
========= ========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 72,241 $ 1,188 $ -- $ -- $ 73,429
Accounts payable ................ 5,078 14,799 -- -- 19,877
Accrued compensation ............ 3,979 7,884 -- -- 11,863
Income taxes payable ............ 2,372 135 -- -- 2,507
Accrued interest ................ 4,760 37 157 -- 4,954
Other current liabilities ....... 4,634 2,573 -- -- 7,207
--------- --------- --------- --------- ----------
Total current liabilities ... 93,064 26,616 157 -- 119,837
--------- --------- --------- --------- ----------
Long-term debt ...................... 241,404 21,096 -- -- 262,500
Deferred income taxes ............... 18,655 -- -- -- 18,655
Other long-term liabilities ......... 6,467 285,329 41,947 (316,761) 16,982
--------- --------- --------- --------- ----------
Total liabilities ............... 359,590 333,041 42,104 (316,761) 417,974
--------- --------- --------- --------- ----------
Shareholders' equity:
Preferred stock ................. -- -- -- -- --
Common stock .................... 253 1 -- (1) 253
Paid-in capital ................. 160,757 -- 2,000 (2,000) 160,757
Retained earnings ............... 128,240 158,333 107 (158,440) 128,240
Accumulated other comprehensive
loss ........................ (5,197) (2,169) -- 2,169 (5,197)
Less common stock in
treasury, at cost .............. (419) -- -- -- (419)
--------- --------- --------- --------- ----------
Total shareholders' equity .. 283,634 156,165 2,107 (158,272) 283,634
--------- --------- --------- --------- ----------
Total liabilities and
shareholders' equity ...... $ 643,224 $ 489,206 $ 44,211 $(475,033) $ 701,608
========= ========= ========= ========= =========
9
CONMED CORPORATION
CONSOLIDATING CONDENSED BALANCE SHEET
September 30, 2002
(in thousands)(unaudited)
Parent Non-
Company Subsidiary Guarantor Company
Only Guarantors Subsidiary Eliminations Total
---- ---------- ---------- ------------ -----
ASSETS
Current assets:
Cash and cash equivalents ......... $ -- $ 1,698 $ 815 $ -- $ 2,513
Accounts receivable, net .......... -- 11,417 44,353 -- 55,770
Inventories ....................... 23,829 94,051 -- -- 117,880
Deferred income taxes ............. 880 -- 225 -- 1,105
Prepaid expenses and other
current assets ................ 1,168 2,195 -- -- 3,363
--------- --------- --------- --------- ---------
Total current assets ........ 25,877 109,361 45,393 -- 180,631
--------- --------- --------- --------- ---------
Property, plant and equipment, net .... 47,099 47,757 -- -- 94,856
Goodwill, net ......................... 88,768 164,731 -- -- 253,499
Other intangible assets, net .......... 7,873 177,908 -- -- 185,781
Other assets .......................... 492,033 2,173 -- (488,206) 6,000
--------- --------- --------- --------- ---------
Total assets ...................... $ 661,650 $ 501,930 $ 45,393 $(488,206) $ 720,767
========= ========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt . $ 1,000 $ 1,272 $ -- $ -- $ 2,272
Accounts payable .................. 4,392 20,302 -- -- 24,694
Accrued compensation .............. 2,856 6,926 -- -- 9,782
Income taxes payable .............. 3,390 -- -- -- 3,390
Accrued interest .................. 863 246 49 -- 1,158
Other current liabilities ......... 4,181 2,305 -- -- 6,486
--------- --------- --------- --------- ---------
Total current liabilities ..... 16,682 31,051 49 -- 47,782
--------- --------- --------- --------- ---------
Long-term debt ........................ 230,761 20,799 -- -- 251,560
Deferred income taxes ................. 28,875 -- -- -- 28,875
Other long-term liabilities ........... 5,660 273,829 43,051 (309,662) 12,878
--------- --------- --------- --------- ---------
Total liabilities ................. 281,978 325,679 43,100 (309,662) 341,095
--------- --------- --------- --------- ---------
Shareholders' equity:
Preferred stock ................... -- -- -- -- --
Common stock ...................... 287 1 -- (1) 287
Paid-in capital ................... 228,515 -- 2,000 (2,000) 228,515
Retained earnings ................. 154,489 177,081 293 (177,374) 154,489
Accumulated other comprehensive
loss .......................... (3,200) (831) -- 831 (3,200)
Less common stock in
treasury, at cost ................ (419) -- -- -- (419)
--------- --------- --------- --------- ---------
Total shareholders' equity .... 379,672 176,251 2,293 (178,544) 379,672
--------- --------- --------- --------- ---------
Total liabilities and
shareholders' equity ........ $ 661,650 $ 501,930 $ 45,393 $(488,206) $ 720,767
========= ========= ========= ========= =========
10
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF INCOME
Three Months Ended September 30, 2001
(in thousands)
(unaudited)
Parent
Company Subsidiary Company
Only Guarantors Eliminations Total
---- ---------- ------------ -----
Net sales ............................... $ 24,715 $ 80,603 $ -- $105,318
-------- -------- -------- --------
Cost of sales ........................... 14,342 36,990 -- 51,332
Selling and administrative expense....... 7,970 27,059 -- 35,029
Research and development expense ........ 332 3,159 -- 3,491
-------- -------- -------- --------
22,644 67,208 -- 89,852
-------- -------- -------- --------
Income from operations .................. 2,071 13,395 -- 15,466
Interest expense, net ................... -- 7,630 -- 7,630
-------- -------- -------- --------
Income before income taxes .............. 2,071 5,765 -- 7,836
Provision for income taxes .............. 746 2,075 -- 2,821
-------- -------- -------- --------
Income before equity in earnings
of unconsolidated subsidiaries ........ 1,325 3,690 -- 5,015
Equity in earnings of unconsolidated
subsidiaries .......................... 3,690 -- (3,690) --
-------- -------- -------- --------
Net income .............................. $ 5,015 $ 3,690 $ (3,690) $ 5,015
======== ======== ======== ========
11
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF INCOME
Three Months Ended September 30, 2002
(in thousands)
(unaudited)
Parent
Company Subsidiary Non-Guarantor Company
Only Guarantors Subsidiary Eliminations Total
---- ---------- ---------- ------------ -----
Net sales ................................... $ 26,632 $ 86,700 $ -- $ -- $ 113,332
-------- -------- -------- -------- ---------
Cost of sales ............................... 14,225 40,204 -- -- 54,429
Selling and administrative
expense ................................. 7,510 27,470 (418) -- 34,562
Research and development
expense ................................. 484 3,769 -- -- 4,253
-------- -------- -------- -------- ---------
22,219 71,443 (418) -- 93,244
-------- -------- -------- -------- ---------
Income from operations ...................... 4,413 15,257 418 -- 20,088
Interest expense, net ....................... -- 5,491 274 -- 5,765
-------- -------- -------- -------- ---------
Income before income taxes .................. 4,413 9,766 144 -- 14,323
Provision for income taxes .................. 1,589 3,515 52 -- 5,156
-------- -------- -------- -------- ---------
Income before equity in
earnings of unconsolidated
subsidiaries ............................ 2,824 6,251 92 -- 9,167
Equity in earnings of
unconsolidated subsidiaries ............. 6,343 -- -- (6,343) --
-------- -------- -------- -------- ---------
Income before extraordinary
item ..................................... 9,167 6,251 92 (6,343) 9,167
Extraordinary item, net
of income taxes ........................... 944 -- -- -- 944
-------- -------- -------- -------- ---------
Net income .................................. $ 8,223 $ 6,251 $ 92 $ (6,343) $ 8,223
======== ======== ======== ======== =========
12
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF INCOME
Nine Months Ended September 30, 2001
(in thousands)
(unaudited)
Parent
Company Subsidiary Company
Only Guarantors Eliminations Total
---- ---------- ------------ -----
Net sales .............................. $ 65,688 $ 249,710 $ -- $ 315,398
--------- --------- --------- ---------
Cost of sales .......................... 38,641 112,330 -- 150,971
Selling and administrative expense ..... 20,135 83,645 -- 103,780
Research and development expense ....... 1,064 9,599 -- 10,663
--------- --------- --------- ---------
59,840 205,574 -- 265,414
--------- --------- --------- ---------
Income from operations ................. 5,848 44,136 -- 49,984
Interest expense, net .................. -- 23,809 -- 23,809
--------- --------- --------- ---------
Income before income taxes ............. 5,848 20,327 -- 26,175
Provision for income taxes ............. 2,106 7,317 -- 9,423
--------- --------- --------- ---------
Income before equity in earnings
of unconsolidated subsidiaries ....... 3,742 13,010 -- 16,752
Equity in earnings of unconsolidated
subsidiaries ......................... 13,010 -- (13,010) --
--------- --------- --------- ---------
Net income ............................. $ 16,752 $ 13,010 $ (13,010) $ 16,752
========= ========= ========= =========
13
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF INCOME
Nine Months Ended September 30, 2002
(in thousands)
(unaudited)
Parent
Company Subsidiary Non-Guarantor Company
Only Guarantors Subsidiary Eliminations Total
---- ---------- ---------- ------------ -----
Net sales ..................... $ 78,930 $ 258,876 $ -- $ -- $ 337,806
--------- --------- --------- --------- ---------
Cost of sales ................. 41,828 118,416 -- -- 160,244
Selling and administrative
expense ................... 22,886 82,447 (1,162) -- 104,171
Research and development
expense ................... 1,311 10,844 -- -- 12,155
--------- --------- --------- --------- ---------
66,025 211,707 (1,162) -- 276,570
--------- --------- --------- --------- ---------
Income from operations ........ 12,905 47,169 1,162 -- 61,236
Interest expense, net ......... -- 17,877 871 -- 18,748
--------- --------- --------- --------- ---------
Income before income taxes .... 12,905 29,292 291 -- 42,488
Provision for income taxes .... 4,646 10,544 105 -- 15,295
--------- --------- --------- --------- ---------
Income before equity in
earnings of unconsolidated
subsidiaries .............. 8,259 18,748 186 -- 27,193
Equity in earnings of
unconsolidated subsidiaries 18,934 -- -- (18,934) --
--------- --------- --------- --------- ---------
Income before extraordinary
item ........................ 27,193 18,748 186 (18,934) 27,193
Extraordinary item, net of
income taxes ................ 944 -- -- -- 944
--------- --------- --------- --------- ---------
Net income .................... $ 26,249 $ 18,748 $ 186 $ (18,934) $ 26,249
========= ========= ========= ========= =========
14
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF CASH FLOWS
Nine Months Ended September 30, 2001
(in thousands)
(unaudited)
Parent
Company Subsidiary Company
Only Guarantors Eliminations Total
---- ---------- ------------ -----
Net cash provided by operating
activities ................................ $ 5,092 $ 18,480 $ -- $ 23,572
--------- -------- -------- --------
Cash flows from investing activities:
Net distributions from subsidiaries....... 15,990 -- (15,990) --
Purchases of property, plant and
equipment .......................... (9,639) (3,065) -- (12,704)
--------- -------- -------- --------
Net cash provided (used)
by investing activities ....... 6,351 (3,065) (15,990) (12,704)
--------- -------- -------- --------
Cash flows from financing:
Net distributions to parent ............ -- (15,990) 15,990 --
Net proceeds from exercise of
stock options ...................... 1,591 -- -- 1,591
Payments on debt ....................... (13,034) -- -- (13,034)
--------- -------- -------- --------
Net cash provided (used) by
financing activities ............ (11,443) (15,990) 15,990 (11,443)
--------- -------- -------- --------
Effect of exchange rate changes on cash
and cash equivalents ..................... -- (880) -- (880)
--------- -------- -------- --------
Net increase (decrease) in cash and
cash equivalents .......................... -- (1,455) -- (1,455)
Cash and cash equivalents at
beginning of period ....................... -- 3,470 -- 3,470
--------- -------- -------- --------
Cash and cash equivalents at
end of period ............................. $ -- $ 2,015 $ -- $ 2,015
========= ======== ======== ========
15
CONMED CORPORATION
CONSOLIDATING CONDENSED STATEMENT OF CASH FLOWS
Nine Months Ended September 30, 2002
(in thousands)
(unaudited)
Parent Non-
Company Subsidiary Guarantor Company
Only Guarantors Subsidiary Eliminations Total
---- ---------- ---------- ------------ -----
Net cash provided by operating activities .. $ 9,972 $ 18,946 $(388) $ -- $ 28,530
--------- -------- ----- -------- ---------
Cash flows from investing activities:
Net distributions from subsidiaries .... 11,820 -- -- (11,820) --
Payments related to business
acquisitions ......................... (2,359) -- -- -- (2,359)
Purchases of property, plant and
equipment .......................... (3,615) (6,946) -- -- (10,561)
--------- -------- ----- -------- ---------
Net cash provided (used)
by investing activities ........ 5,846 (6,946) -- (11,820) (12,920)
--------- -------- ----- -------- ---------
Cash flows from financing:
Net distributions to parent ............ -- (12,802) -- 12,802 --
Borrowings on note payable to parent ... -- -- 982 (982) --
Net proceeds from issuance of
common stock ......................... 66,123 -- -- -- 66,123
Net proceeds from exercise
of stock options ...................... 3,669 -- -- -- 3,669
Repurchase of warrant on common stock .. (2,000) -- -- -- (2,000)
Payments on debt ....................... (183,097) -- -- -- (183,097)
Proceeds of debt ....................... 101,000 -- -- -- 101,000
Payments related to issuance
of debt .............................. (1,513) -- -- -- (1,513)
--------- -------- ----- -------- ---------
Net cash provided (used) by
financing activities .......... (15,818) (12,802) 982 11,820 (15,818)
--------- -------- ----- -------- ---------
Effect of exchange rate changes on cash.....
and cash equivalents ................... -- 1,319 -- -- 1,319
--------- -------- ----- -------- ---------
Net increase (decrease) in cash
and cash equivalents ..................... -- 517 594 -- 1,111
Cash and cash equivalents
at beginning of period ................... -- 1,181 221 -- 1,402
--------- -------- ----- -------- ---------
Cash and cash equivalents
at end of period ......................... $ -- $ 1,698 $ 815 $ -- $ 2,513
========= ======== ===== ======== =========
16
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Forward-Looking Statements Made in this Form 10-Q
In this Form 10-Q, we make forward-looking statements about our financial
condition, results of operations and business. Forward-looking statements are
statements made by us concerning events that may or may not occur in the future.
These statements may be made directly in this document or may be "incorporated
by reference" from other documents. You can find many of these statements by
looking for words like "believes," "expects," "anticipates," "estimates" or
similar expressions.
Forward-Looking Statements are not Guarantees of Future Performance
Forward-looking statements involve known and unknown risks, uncertainties and
other factors, including those that may cause our actual results, performance or
achievements, or industry results, to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include those identified under "Risk
Factors" in our Annual Report on Form 10-K for the year-ended December 31, 2001
and the following, among others:
o general economic and business conditions;
o changes in customer preferences;
o changes in technology;
o the introduction of new products;
o changes in business strategy;
o the possibility that United States or foreign regulatory and/or
administrative agencies might initiate enforcement actions against us or
our distributors;
o quality of our management and business abilities and the judgment of our
personnel; and
o the availability, terms and deployment of capital.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations" below and "Business" in our Annual Report on Form 10-K for the
year-ended December 31, 2001 for a further discussion of these factors. You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. We do not undertake any obligation to publicly
release any revisions to these forward-looking statements to reflect events or
circumstances after the date of this Form 10-Q or to reflect the occurrence of
unanticipated events.
Critical Accounting Policies
The accounting policies discussed below are considered by management to be
critical to understanding our financial condition and results of operations.
Accounts receivable sale
On November 1, 2001, we entered into a five-year accounts receivable sales
agreement pursuant to which we and certain of our subsidiaries sell on an
ongoing basis certain accounts receivable to CONMED Receivables Corporation
("CRC"), a wholly-owned special-purpose subsidiary of CONMED Corporation. CRC
may in turn sell up to an aggregate $50.0 million undivided percentage ownership
interest in such receivables (the "asset
17
interest") to a commercial paper conduit (the "conduit purchaser"). The conduit
purchaser's share of collections on accounts receivable are calculated as
defined in the accounts receivable sales agreement. Effectively, collections on
the pool of receivables flow first to the conduit purchaser and then to CRC, but
to the extent that the conduit purchaser's share of collections were less than
the amount of the conduit purchaser's asset interest, there is no recourse to
CONMED or CRC for such shortfall. For receivables that have been sold, CONMED
Corporation and its subsidiaries retain collection and administrative
responsibilities as agent for the conduit purchaser. As of December 31, 2001 and
September 30, 2002, the undivided percentage ownership interest in receivables
sold by CRC to the conduit purchaser aggregated $40.0 million and $38.0 million,
respectively, which has been accounted for as a sale and reflected in the
balance sheet as a reduction in accounts receivable. Expenses associated with
the sale of accounts receivable, including the conduit purchaser's financing
cost of issuing commercial paper, were $.3 million and $.9 million, in the three
and nine months ended September 30, 2002 and 2001, respectively.
There are certain statistical ratios, primarily related to sales dilution and
losses on accounts receivable, which must be calculated and maintained on the
pool of receivables in order to continue selling to the conduit purchaser. The
pool of receivables is in full compliance with these ratios. Management believes
that additional accounts receivable arising in the normal course of business
will be of sufficient quality and quantity to qualify for sale under the
accounts receivable sales agreement. In the event that new accounts receivable
arising in the normal course of business do not qualify for sale, then
collections on sold receivables will flow to the conduit purchaser rather than
being used to fund new receivable purchases. To the extent that such collections
would not be available to CONMED in the form of new receivables purchases, we
would need to access an alternate source of working capital, such as our $100
million revolving credit facility.
Goodwill and other intangible assets
Goodwill represents the excess of purchase price over fair value of identifiable
net assets of acquired businesses. Other intangible assets primarily represent
allocations of purchase price to identifiable intangible assets of acquired
businesses. Goodwill and other intangible assets have been amortized over
periods ranging from 5 to 40 years through December 31, 2001. Because of our
history of growth through acquisitions, goodwill and other intangible assets
comprise a substantial portion (61.0% at September 30, 2002) of our total
assets.
In June 2001, the Financial Accounting Standards Board approved Statement of
Financial Accounting Standards No. 142 "Goodwill and Other Intangible Assets",
("SFAS 142"). We adopted SFAS 142 effective January 1, 2002. Under this
standard, amortization of goodwill and certain intangible assets, including
certain intangibles recorded as a result of past business combinations, is to be
discontinued upon adoption of SFAS 142.
During 2002, we performed tests of goodwill and indefinite-lived intangible
assets as of January 1, 2002. We tested for impairment using the two-step
process prescribed in SFAS 142. The first step is identification for potential
impairment. The second step, which has been determined not to be necessary,
measures the amount of any impairment. No impairment losses have been recognized
as a result of these tests. During the three and nine months ended September 30,
2002, net income increased by approximately $1.4 million and $4.2 million
respectively, as a result of the adoption of SFAS 142.
18
Derivative financial instruments
We use an interest rate swap, a form of derivative financial instrument, to
manage interest rate risk. We have designated as a cash-flow hedge, an interest
rate swap which effectively converts $50.0 million of LIBOR-based floating rate
debt under our new senior credit agreement into fixed rate debt with a base
interest rate of 7.01%. The interest rate swap expires in June 2003 and is
included in liabilities on the balance sheet with a fair value approximating
$2.0 million. During the nine months ended September 30, 2002, gross holding
losses on the interest rate swap were $.9 million, before income taxes, and
holding losses of $1.9 million, before income taxes, were reclassified and
included in net income. There were no material changes in our market risk during
the three and nine months ended September 30, 2002. For a detailed discussion of
market risk, see our Annual Report on Form 10-K for the year ended December 31,
2001, Part II, Item 7A, Quantitative and Qualitative Disclosures About Market
Risk.
Revenue recognition
We recognize revenue upon shipment of product and passage of title to our
customers. Factors considered in our revenue recognition policy are as follows:
o Sales to customers are evidenced by firm purchase orders. Title and the
risks and rewards of ownership are transferred to the customer when product
is shipped.
o Payment by the customer is due under fixed payment terms. Even when the
sale is to a distributor, payment to us is not contractually or implicitly
delayed until the product is resold by the distributor.
o We place certain of our capital equipment with customers in return for
commitments to purchase disposable products over time periods generally
ranging from one to three years. In these circumstances, no revenue is
recognized upon capital shipment and we recognize revenue upon the
disposable product shipment.
o Product returns are only accepted at the discretion of the Company and in
keeping with our "Returned Goods Policy". Product returns have not been
significant historically.
o The terms of the Company's sales to customers do not involve any
obligations for the Company to perform future services. Limited warranties
are generally provided for capital equipment sales and provisions for
warranty are provided at the time of product shipment.
o Amounts billed to customers related to shipping and handling are included
in net sales. Shipping and handling costs are included in selling and
administrative expense.
o We sell to a diversified base of customers around the world and, therefore,
believe there is no material concentration of credit risk.
o We assess the risk of loss on accounts receivable and adjust the allowance
for doubtful accounts based on this risk assessment. Historically, losses
on accounts receivable have not been material. Management believes the
allowance for doubtful accounts of $1.2 million at September 30, 2002 is
adequate to provide for any probable losses from accounts receivable.
19
Results of Operations
Three months ended September 30, 2002 compared to three months ended September
30, 2001
The following table presents, as a percentage of net sales, certain categories
included in our unaudited consolidated statements of income for the periods
indicated:
Three Months Ended
September
2001 2002
-------- --------
(unaudited)
Net sales.................................. 100.0% 100.0%
Cost of sales.............................. 48.7 48.0
-------- --------
Gross margin.......................... 51.3 52.0
Selling and administrative expense......... 33.3 30.5
Research and development expense........... 3.3 3.8
-------- --------
Income from operations................ 14.7 17.7
Interest expense, net...................... 7.2 5.0
-------- --------
Income before income taxes
and extraordinary item............. 7.5 12.7
Provision for income taxes................. 2.7 4.6
-------- --------
Income before extraordinary item...... 4.8% 8.1%
======== ========
Sales for the quarter ended September 30, 2002 were $113.3 million, an increase
of 7.6% compared to sales of $105.3 million in the same quarter a year ago.
Adjusted for constant foreign currency exchange rates, sales growth in the third
quarter of 2002 would have been approximately 6.9% as compared to the same
period a year ago.
o Sales in our orthopedic businesses increased 8.3% to $69.1 million from
$63.8 million in the comparable quarter last year.
o Arthroscopy sales, which represented approximately 55.9% of total third
quarter 2002 orthopedic revenues, grew 4.0% to $38.6 million from $37.1
million in the same period a year ago on strength in sales of shoulder
repair products, scopes and video equipment.
o Powered surgical instrument sales, which represented approximately 44.1% of
orthopedic revenues, increased 14.2% to $30.5 million from $26.7 million in
the same quarter last year. We introduced our PowerPro(R) Battery Powered
Instrument line in February 2002, with first shipments to customers in
March 2002. During the third quarter 2002, sales of the PowerPro(R) battery
systems amounted to approximately $5 million. A portion of the third
quarter's sales of Powered Instruments were made to DePuy Orthopaedics,
("DePuy"), a Johnson and Johnson Company, pursuant to a distribution
agreement, which calls for providing sample units of the PowerPro(R)
product to the DePuy sales force.
o Patient care sales for the three months ended September 30, 2002 were $18.1
million, a 7.7% increase from $16.8 million in the same period a year ago,
driven primarily by increases in sales of our ECG electrode and automatic
defibrillator pad products.
o Electrosurgery sales for the three months ended September 30, 2002 were
$17.0 million, an increase of 1.2% from $16.8 million in the third quarter
of last year, as sales of electrosurgical generators and disposables were
flat compared with the same period a year ago.
20
o Sales of endoscopy products increased 15.2% to $9.1 million in the three
months ended September 30, 2002 from $7.9 million in the same period a year
ago.
Cost of sales increased to $54.4 million in the third quarter 2002 as compared
to $51.3 million in the same quarter a year ago, primarily as a result of the
increased sales volumes described above while gross margin percentage increased
to 52.0% in the third quarter of 2002 compared to 51.3% in the third quarter of
2001. During the quarter ended September 30, 2001, we incurred various
nonrecurring charges in connection with the July 2001 Imagyn acquisition. These
costs were primarily related to the transition in manufacturing of the Imagyn
product lines from Imagyn's Richland, Michigan facility to our manufacturing
plants in Utica, New York. Such costs totaled $.9 million in the third quarter
of 2001 and are included in cost of sales. Excluding the impact of these
non-recurring adjustments, cost of sales was $50.4 million. Gross margin
percentage for the third quarter 2001, excluding the Imagyn-related charges, was
52.1%. The decrease in gross margin percentage in the third quarter 2002 is
primarily a result of the sales of sample PowerPro(R) product to the DePuy sales
force as discussed above. These sample sales were at gross margins lower than
the margins realized for units sold to end-user customers and resulted in an
overall lower gross margin.
Selling and administrative expense decreased to $34.6 million in the third
quarter of 2002 as compared to $35.0 million in the third quarter of 2001. As a
percentage of sales, selling and administrative expense totaled 30.5% in the
third quarter of 2002 compared to 33.3% in the third quarter of 2001. During the
quarter ended September 30, 2002, selling and administrative expense decreased
by approximately $2.2 million, before income taxes, as a result of the adoption
of SFAS 142. Excluding the impact of the adoption of SFAS 142, selling and
administrative expense in the third quarter of 2002 would have been
approximately $36.8 million or 32.4% as a percentage of sales, decreasing by
approximately .9% when compared with the same period a year ago, but remaining
within the range of our historical percentages.
Research and development expense increased to $4.3 million in the third quarter
of 2002 as compared to $3.5 million in the third quarter of 2001. This increase
represents continued research and development efforts primarily focused on new
product development in the orthopedic product lines. As a percentage of sales,
research and development expense increased to 3.8% in the current quarter
compared to 3.3% in the same quarter a year ago but remains within the range of
our historical percentages.
Interest expense in the third quarter of 2002 was $5.8 million compared to $7.6
million in the third quarter of 2001. The decrease in interest expense is
primarily a result of lower total borrowings outstanding during the current
quarter as compared to the same period a year ago, as borrowings have declined
to $253.8 million at September 30, 2002 as compared to $388.4 million at
September 30, 2001. Additionally, the weighted average interest rates on our
borrowings has declined to 6.53% at September 30, 2002 as compared to 6.88% at
September 30, 2001.
During the quarter ended September 30, 2002, we terminated our old senior credit
agreement and entered into a new senior credit agreement. Accordingly, we
recorded an extraordinary charge on the early extinguishment of debt, of
approximately $.9 million, net of income taxes, to write-off the remaining
unamortized deferred financing costs associated with the approximately three
years remaining on the old senior credit agreement.
21
Nine months ended September 30, 2002 compared to nine months ended September 30,
2001
The following table presents, as a percentage of net sales, certain categories
included in our unaudited consolidated statements of income for the periods
indicated:
Nine Months Ended
September
2001 2002
-------- --------
(unaudited)
Net sales.................................... 100.0% 100.0%
Cost of sales................................ 47.9 47.4
-------- --------
Gross margin............................ 52.1 52.6
Selling and administrative expense........... 32.9 30.8
Research and development expense............. 3.4 3.6
-------- --------
Income from operations.................. 15.8 18.2
Interest expense, net........................ 7.5 5.6
-------- --------
Income before income taxes
And extraordinary item................. 8.3 12.6
Provision for income taxes................... 3.0 4.5
-------- --------
Income before extraordinary item........ 5.3% 8.1%
======== ========
Sales for the nine months ended September 30, 2002 were $337.8 million, an
increase of 7.1% compared to sales of $315.4 million in the same period a year
ago. Fluctuations in foreign currency exchange rates in the nine months ended
September 30, 2002 as compared to the same period a year ago did not have a
significant effect on sales.
o Sales in our orthopedic businesses increased 3.0% to $207.0 million from
$201.0 million in the comparable period last year.
o Arthroscopy sales, which represented approximately 58.6% of the third
quarter 2002 orthopedic revenues, grew 5.0% to $121.1 million from $115.3
million in the same period a year ago on strength in sales of disposable
products and video equipment.
o Powered surgical instrument sales, which represented approximately 41.5% of
orthopedic revenues, increased 0.2% to $85.9 million from $85.7 million in
the same quarter last year. We introduced our PowerPro(R) Battery Powered
Instrument line in February 2002, with first shipments to customers in
March 2002. During the third quarter 2002, sales of the PowerPro(R) battery
systems amounted to approximately $5 million. A portion of the third
quarter's sales of Powered Instruments were made to DePuy Orthopaedics,
("DePuy"), a Johnson and Johnson Company, pursuant to a distribution
agreement, which calls for providing sample units of the PowerPro(R)
product to the DePuy sales force.
o Patient care sales for the nine months ended September 30, 2002 were $52.5
million, a 1.0% increase from $52.0 million in the same period a year ago.
Sales of ECG and other patient care products were largely stable in the
first nine months of 2002 as compared with the same period a year ago.
o Electrosurgery sales for the nine months ended September 30, 2002 were
$50.8 million, an increase of 3.9% from $48.9 million in the same period a
year ago, driven by increases in electrosurgical disposables sales.
o Sales of endoscopy products increased to $27.5 million in the nine months
ended September 30, 2002 from $13.5 million in the same period a year ago,
primarily as a result of the July 2001 Imagyn acquisition.
22
Cost of sales increased to $160.2 million in the nine months ended September 30,
2002 compared to $151.0 million in the same period a year ago, primarily as a
result of the increased sales volumes described above, while gross margin
percentage increased to 52.6% in the nine months ended September 30, 2002
compared to 52.1% in the same period a year ago. During the quarter ended
September 30, 2001, we incurred various nonrecurring charges in connection with
the July 2001 Imagyn acquisition. These costs were related primarily to the
transition in manufacturing of the Imagyn product lines from Imagyn's Richland,
Michigan facility to our manufacturing plants in Utica, New York. Such costs
totaled $.9 million in the nine months ended September 30, 2001 and are included
in cost of sales. Excluding the impact of these non-recurring adjustments, cost
of sales for the nine months ended September 2001 was $150.1 million. Gross
margin percentage for the nine months ended September 30, 2001 excluding the
Imagyn-related charges, was 52.4%, consistent with the 52.6% experienced in the
nine months ended September 30, 2002.
Selling and administrative expense increased to $104.2 million in the nine
months ended September 30, 2002 as compared to $103.8 million in the same period
a year ago. As a percentage of sales, selling and administrative expense totaled
30.8% in the nine months ended September 30, 2002 compared to 32.9% in the same
period a year ago. During the nine months ended September 30, 2002, selling and
administrative expense decreased by approximately $6.6 million, before income
taxes, as a result of the adoption of SFAS 142. Excluding the impact of the
adoption of SFAS 142, selling and administrative expense in the third quarter of
2002 would have been approximately $110.8 million or 32.8% as a percentage of
sales, decreasing slightly when compared with the same period a year ago but
remaining within the range of our historical percentages.
Research and development expense increased to $12.2 million in the nine months
ended September 30, 2002 as compared to $10.7 million in the same period a year
ago. This increase represents continued research and development efforts
primarily focused on new product development in the orthopedic product lines. As
a percentage of sales, research and development expense was 3.6% in the nine
months ended September 30, 2002 compared to 3.4% in the same period a year ago.
Interest expense in the first nine months of 2002 was $18.7 million compared to
$23.8 million in the first nine months of 2001. The decrease in interest expense
is primarily a result of lower total borrowings outstanding during the current
period as compared to the same period a year ago, as borrowings have declined to
$253.8 million at September 30, 2002 as compared to $388.4 million at September
30, 2001. Additionally, the weighted average interest rates on our borrowings
has declined to 6.53% at September 30, 2002 as compared to 6.88% at September
30, 2001.
During the quarter ended September 30, 2002, we terminated our old senior credit
agreement and entered into a new senior credit agreement. Accordingly, we
recorded an extraordinary charge on the early extinguishment of debt of
approximately $.9 million, net of income taxes, to write-off the remaining
unamortized deferred financing costs associated with the approximately three
years remaining on the old senior credit agreement.
Liquidity and Capital Resources
Cash generated from our operations and borrowings under our revolving credit
facility have traditionally provided the working capital for our operations,
debt service under our credit facility and the funding of our capital
expenditures. In addition, we have used term borrowings, including:
o borrowings under our senior credit agreement;
o Senior Subordinated Notes issued to refinance borrowings under our
senior credit agreement, in the case of the acquisition of Linvatec
Corporation in 1997;
23
o borrowings under separate loan facilities, in the case of real
property acquisitions, to finance our acquisitions.
On May 29, 2002, we completed a public offering of 3.0 million shares of our
common stock. Net proceeds to the Company related to the sale of the shares
approximated $66.1 million and was used to reduce indebtedness under our old
senior credit agreement. We expect to continue to use cash flow from our
operations and borrowings under our revolving credit facility to finance our
operations, our debt service under our new senior credit facility and term
borrowings and the funding of our capital expenditures.
During the quarter ended September 30, 2002, we entered into a new $200 million
senior credit agreement (the "new senior credit agreement"). The new senior
credit agreement consists of a $100 million revolving credit facility and a $100
million term loan. The proceeds of the term loan portion of the new senior
credit agreement were used to eliminate the term loans and borrowings on the
revolving credit facility under the previously existing senior credit agreement
(the "old senior credit agreement"). The new senior credit agreement calls for
both components to extend for approximately five years, with the revolving
credit facility terminating on August 28, 2007 and the term loan expiring on
December 15, 2007. The term loan portion of the facility could be extended an
additional two years, provided our currently outstanding $130 million in 9%
Senior Subordinated Notes are refinanced or repaid by December 15, 2007. The
scheduled principal payments on the term loan portion of the new senior credit
agreement are $1.0 million annually with the remaining balance outstanding due
and payable on December 15, 2007. We may also be required, under certain
circumstances, to make additional principal payments based on excess cash flow
as defined in the new senior credit agreement. Approximately $99.0 million of
the revolving credit facility under the new senior credit agreement was
available at September 30, 2002. Interest rates on the term loan and revolving
credit facility components of the new senior credit agreement are LIBOR plus 275
basis points and LIBOR plus 250 basis points, respectively.
The new senior credit agreement is collateralized by substantially all of our
personal property and assets, except for our accounts receivable and related
rights which are pledged in connection with our accounts receivable sales
agreement. The new senior credit agreement contains covenants and restrictions
which, among other things, require maintenance of certain working capital levels
and financial ratios, prohibit dividend payments and restrict the incurrence of
certain indebtedness and other activities, including acquisitions and
dispositions. We are also required, under certain circumstances, to make
mandatory prepayments from net cash proceeds from any issue of equity and asset
sales.
The Senior Subordinated Notes are in aggregate principal amount of $130.0
million, have a maturity date of March 15, 2008 and bear interest at 9.0% per
annum which is payable semi-annually.
We used term loans to purchase the property in Largo, Florida utilized by our
Linvatec subsidiary. The term loans consist of a Class A note bearing interest
at 7.50% per annum with semiannual payments of principal and interest through
September 2009, a Class C note bearing interest at 8.25% per annum compounded
semiannually through June 2009, after which semiannual payments of principal and
interest will commence, continuing through June 2019 and a seller-financed note
bearing interest at 6.50% per annum with monthly payments of principal and
interest through July 2013. The principal balances outstanding on the Class A
note, Class C note and seller-financed note aggregate $11.2 million, $6.8
million and $4.0 million, respectively, at September 30, 2002.
Our net working capital position was $132.8 million at September 30, 2002 as
compared to $44.7 million at December 31, 2001. Included in net working capital
at December 31, 2001 was $56.0 million owed on our revolving credit facility
which was due to expire on December 31, 2002. As discussed above, during the
quarter ended September 30, 2002, we entered into a new $200 million senior
credit agreement. The proceeds of the new senior credit agreement were used to
eliminate the existing term loans and borrowings on the
24
revolving credit facility under the old senior credit agreement. Accordingly,
balances formerly outstanding on the old revolving credit facility have been
reclassified from current to long-term obligations.
We have a five-year accounts receivable sales agreement pursuant to which we and
certain of our subsidiaries sell on an ongoing basis certain accounts receivable
to CONMED Receivables Corporation, a wholly-owned special-purpose subsidiary of
CONMED Corporation. CRC may in turn sell up to an aggregate $50.0 million
undivided percentage ownership interest in such receivables (the "asset
interest") to a commercial paper conduit (the "conduit purchaser"). The conduit
purchaser's share of collections on accounts receivable are calculated as
defined in the accounts receivable sales agreement. Effectively, collections on
the pool of receivables flow first to the conduit purchaser and then to CRC. To
the extent that the conduit purchaser's share of collections were less than the
amount of the conduit purchaser's asset interest, there is no recourse to CONMED
or CRC for such shortfall. For receivables that have been sold, CONMED
Corporation and its subsidiaries retain collection and administrative
responsibilities as agent for the conduit purchaser. As of December 31, 2001 and
September 30, 2002, the undivided percentage ownership interest in receivables
sold by CRC to the conduit purchaser aggregated $40.0 million and $38.0 million,
respectively, which has been accounted for as a sale and reflected in the
balance sheet as a reduction in accounts receivable.
There are certain statistical ratios, primarily related to sales dilution and
losses on accounts receivable, which must be calculated and maintained on the
pool of receivables in order to continue selling to the conduit purchaser. The
pool of receivables is in full compliance with these ratios. Management believes
that additional accounts receivable arising in the normal course of business
will be of sufficient quality and quantity to qualify for sale under the
accounts receivable sales agreement. In the event that new accounts receivable
arising in the normal course of business do not qualify for sale, then
collections on sold receivables will flow to the conduit purchaser rather than
being used to fund new receivable purchases. If this were to occur, we would
need to access an alternate source of working capital, such as our $100 million
revolving credit facility.
Net cash provided by operations, which we also refer to as "operating cash
flow," increased to $28.5 million in the nine months ended September 30, 2002
compared to $23.6 million for the same period a year ago. During the nine months
ended September 30, 2002, operating cash flow decreased by $2.0 million due to a
decrease in the sale of accounts receivable under the accounts receivable sales
agreement. Excluding the decrease in accounts receivable sales, operating cash
flow increased to $30.5 million.
In reconciling net income to operating cash flow, operating cash flow in the
third quarter of 2002 was positively impacted by depreciation, amortization and
increases in accounts payable and deferred income taxes and negatively impacted
primarily by increases in accounts receivable and inventory and decreases in
accrued compensation and accrued interest. The increases in accounts receivable
and inventory are primarily related to an increase in sales. The increases in
accounts payable and deferred income taxes and decreases in accrued compensation
and interest are primarily related to the timing of the payment of these
liabilities.
Capital expenditures in the nine months ended September 30, 2002 were $10.6
million compared to $12.7 million in the same period a year ago. These capital
expenditures represent the ongoing capital investment requirements of our
business and are expected to continue at the rate of approximately $12.0 to
$14.0 million annually. Net cash used
25
by investing activities in the nine months ended September 30, 2002 also
included $2.4 million related to the purchase of several product lines.
Financing activities in the nine months ended September 30, 2002 consist
primarily of the completion of a public offering of 3.0 million shares of our
common stock in the second quarter 2002 and the completion of a new $200 million
senior credit facility in the third quarter 2002. The $66.1 million in proceeds
from the stock offering were used to repay term loans under our old senior
credit agreement. Net repayments on our debt as a result of the stock offering
and cash generated from operations in the nine months ended September 30, 2002
totaled $82.1 million. Concurrent with the stock offering, we repurchased for
$2.0 million from Bristol-Myers Squibb Company a warrant exercisable for 1.5
million shares of our common stock. Proceeds from the exercise of stock options
in the nine months ended September 30, 2002 totaled $3.7 million.
Management believes that cash generated from operations, our current cash
resources and funds available under our new senior credit agreement will provide
sufficient liquidity to ensure continued working capital for operations, debt
service and funding of capital expenditures in the foreseeable future.
Contractual Obligations
There were no capital lease obligations or unconditional purchase obligations as
of September 30, 2002. The following table summarizes our contractual
obligations related to operating leases and long-term debt as of September 30,
2002:
(Amounts in thousands)
2002 2003 2004 2005 2006 Thereafter
---- ---- ---- ---- ----
Long-term debt ........... $ 833 $ 2,381 $ 2,554 $ 2,741 $ 2,943 $242,380
Operating lease
obligations............. 433 1,255 1,036 962 933 1,950
-------- -------- -------- -------- -------- --------
Total contractual
cash obligations ....... $ 1,266 $ 3,636 $ 3,590 $ 3,703 $ 3,876 $244,330
======== ======== ======== ======== ======== ========
Item 4. Controls and Procedures
Within the 90-day period prior to the filing of this report, an evaluation was
carried out under the supervision and with the participation of management,
including our Chief Executive Officer and Chief Financial Officer, of the
effectiveness of the design and operation of our disclosure controls and
procedures (as defined in Rule 13a-14(c) under the Securities Exchange Act of
1934). Based upon that evaluation, the Chief Executive Officer and Chief
Financial Officer concluded that the design and operation of these disclosure
controls and procedures were effective. No significant changes were made in our
internal controls or in other factors that could significantly affect these
controls subsequent to the date of their evaluation.
26
Item 6. Exhibits and Reports on Form 8-K
List of Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
10.1 Credit Agreement, dated August 28, 2002, among CONMED
Corporation and the several banks and other financial
institutions or entities from time to time parties thereto.
10.2 Guarantee and Collateral Agreement, dated August 28, 2002,
made by CONMED Corporation and certain of its subsidiaries
in favor of JPMorgan Chase Bank.
Reports on Form 8-K
None
27
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CONMED CORPORATION
(Registrant)
Date: October 31, 2002
/s/ Robert D. Shallish, Jr.
-------------------------------
Robert D. Shallish, Jr.
Vice President - Finance
(Principal Financial Officer)
28
CERTIFICATION
I, Eugene R. Corasanti, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CONMED Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly
report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
October 31, 2002
/s/ Eugene R. Corasanti
-------------------------
Eugene R. Corasanti
Chairman of the Board and
Chief Executive Officer
29
CERTIFICATION
I, Robert D. Shallish, certify that:
1. I have reviewed this quarterly report on Form 10-Q of CONMED Corporation;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by
this quarterly report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in this
quarterly report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this quarterly
report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this quarterly report (the "Evaluation Date"); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit
committee of registrant's board of directors (or persons performing the
equivalent function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to
record, process, summarize and report financial data and have
identified for the registrant's auditors any material weaknesses in
internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including
any corrective actions with regard to significant deficiencies and material
weaknesses.
October 31, 2002
/s/ Robert D. Shallish Jr.
--------------------------
Robert D. Shallish, Jr.
Vice President - Finance and
Chief Financial Officer
31
Exhibit Index
Sequential Page
Exhibit Number
10.1 Credit Agreement dated August 28, 2002
among CONMED Corporation and the several
banks and other financial institutions or (included in EDGAR
entities from time to time parties thereto. filing only)
10.2 Guarantee and Collateral Agreement, dated
August 28, 2002, made by CONMED Corporation
and certain of its subsidiaries in favor of (included in EDGAR
JPMorgan Chase Bank. filing only)
32
Exhibit 10.1
Execution Copy
================================================================================
$200,000,000
CREDIT AGREEMENT
among
CONMED Corporation,
as Borrower
The Several Lenders
from Time to Time Parties Hereto,
JPMORGAN CHASE BANK,
as Syndication Agent,
CITIBANK, N.A.,
CREDIT LYONNAIS
and
FLEET NATIONAL BANK,
as Documentation Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent.
Dated as of August 28, 2002
J.P. MORGAN SECURITIES INC.,
as Sole Bookrunner and Lead Arranger
================================================================================
Table of Contents
Page
ARTICLE I. DEFINITIONS..........................................................................................1
SECTION 1.1 Defined Terms..............................................................................1
SECTION 1.2 Other Definitional Provisions.............................................................22
ARTICLE II. AMOUNT AND TERMS OF COMMITMENTS....................................................................23
SECTION 2.1 Term Loan Commitments.....................................................................23
SECTION 2.2 Procedure for Term Loan Borrowing.........................................................24
SECTION 2.3 Repayment of Term Loans...................................................................24
SECTION 2.4 Revolving Credit Commitments..............................................................25
SECTION 2.5 Procedure for Revolving Credit Borrowing..................................................25
SECTION 2.6 Swingline Commitment......................................................................26
SECTION 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans...........................26
SECTION 2.8 Repayment of Loans........................................................................28
SECTION 2.9 Commitment Fees, etc......................................................................28
SECTION 2.10 Termination or Reduction of Revolving Credit Commitments.................................29
SECTION 2.11 Optional Prepayments.....................................................................29
SECTION 2.12 Mandatory Prepayments and Commitment Reductions..........................................29
SECTION 2.13 Conversion and Continuation Options......................................................30
SECTION 2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches................................31
SECTION 2.15 Interest Rates and Payment Dates.........................................................31
SECTION 2.16 Computation of Interest and Fees.........................................................31
SECTION 2.17 Inability to Determine Interest Rate.....................................................32
SECTION 2.18 Pro Rata Treatment and Payments..........................................................32
SECTION 2.19 Requirements of Law......................................................................33
SECTION 2.20 Taxes....................................................................................34
i
SECTION 2.21 Indemnity................................................................................36
SECTION 2.22 Illegality...............................................................................36
SECTION 2.23 Change of Lending Office.................................................................36
SECTION 2.24 Replacement of Lenders under Certain Circumstances.......................................36
ARTICLE III. LETTERS OF CREDIT.................................................................................37
SECTION 3.1 L/C Commitment............................................................................37
SECTION 3.2 Procedure for Issuance of Letter of Credit................................................37
SECTION 3.3 Commissions, Fees and Other Charges.......................................................38
SECTION 3.4 L/C Participations........................................................................38
SECTION 3.5 Reimbursement Obligation of the Borrower..................................................39
SECTION 3.6 Obligations Absolute......................................................................39
SECTION 3.7 Letter of Credit Payments.................................................................40
SECTION 3.8 Applications..............................................................................40
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.....................................................................40
SECTION 4.1 Financial Condition.......................................................................40
SECTION 4.2 No Change.................................................................................41
SECTION 4.3 Corporate Existence; Compliance with Law..................................................41
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations...................................41
SECTION 4.5 No Legal Bar..............................................................................41
SECTION 4.6 No Material Litigation....................................................................42
SECTION 4.7 No Default................................................................................42
SECTION 4.8 Ownership of Property; Liens..............................................................42
SECTION 4.9 Intellectual Property.....................................................................42
SECTION 4.10 Taxes 42
SECTION 4.11 Federal Regulations......................................................................42
SECTION 4.12 Labor Matters............................................................................43
ii
Page
SECTION 4.13 ERISA 43
SECTION 4.14 Investment Company Act; Other Regulations................................................43
SECTION 4.15 Subsidiaries.............................................................................43
SECTION 4.16 Use of Proceeds..........................................................................44
SECTION 4.17 Environmental Matters....................................................................44
SECTION 4.18 Accuracy of Information, etc.............................................................45
SECTION 4.19 Security Documents.......................................................................45
SECTION 4.20 Solvency.................................................................................45
SECTION 4.21 Senior Debt..............................................................................45
ARTICLE V. CONDITIONS PRECEDENT................................................................................46
SECTION 5.1 Conditions to the Effectiveness of this Agreement.........................................46
SECTION 5.2 Conditions to Each Extension of Credit....................................................48
ARTICLE VI. AFFIRMATIVE COVENANTS..............................................................................48
SECTION 6.1 Financial Statements......................................................................48
SECTION 6.2 Certificates; Other Information...........................................................49
SECTION 6.3 Payment of Obligations....................................................................50
SECTION 6.4 Conduct of Business and Maintenance of Existence, etc.....................................50
SECTION 6.5 Maintenance of Property; Insurance........................................................50
SECTION 6.6 Inspection of Property; Books and Records; Discussions....................................51
SECTION 6.7 Notices 51
SECTION 6.8 Environmental Laws........................................................................52
SECTION 6.9 Additional Collateral, etc................................................................52
SECTION 6.10 Senior Debt..............................................................................53
SECTION 6.11 Additional Covenants Relating to Collateral..............................................53
ARTICLE VII. NEGATIVE COVENANTS................................................................................54
SECTION 7.1 Financial Condition Covenants.............................................................54
iii
Page
SECTION 7.2 Limitation on Indebtedness................................................................56
SECTION 7.3 Limitation on Liens.......................................................................58
SECTION 7.4 Limitation on Fundamental Changes.........................................................59
SECTION 7.5 Limitation on Sale of Assets..............................................................60
SECTION 7.6 Limitation on Dividends...................................................................61
SECTION 7.7 Limitation on Capital Expenditures........................................................61
SECTION 7.8 Limitation on Investments, Loans and Advances.............................................62
SECTION 7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc................63
SECTION 7.10 Limitation on Transactions with Affiliates...............................................64
SECTION 7.11 Limitation on Sales and Leasebacks.......................................................64
SECTION 7.12 Limitation on Changes in Fiscal Periods..................................................64
SECTION 7.13 Limitation on Negative Pledge Clauses....................................................64
SECTION 7.14 Limitation on Restrictions on Subsidiary Distributions...................................64
SECTION 7.15 Limitation on Lines of Business..........................................................65
ARTICLE VIII. EVENTS OF DEFAULT................................................................................65
ARTICLE IX. THE AGENTS.........................................................................................68
SECTION 9.1 Appointment...............................................................................68
SECTION 9.2 Delegation of Duties......................................................................68
SECTION 9.3 Exculpatory Provisions....................................................................68
SECTION 9.4 Reliance by Agents........................................................................68
SECTION 9.5 Notice of Default.........................................................................69
SECTION 9.6 Non-Reliance on Agents and Other Lenders..................................................69
SECTION 9.7 Indemnification...........................................................................70
SECTION 9.8 Agent in Its Individual Capacity..........................................................70
SECTION 9.9 Successor Agents..........................................................................70
SECTION 9.10 Authorization to Release Liens...........................................................71
iv
SECTION 9.11 Syndication Agent; Documentation Agent...................................................71
ARTICLE X. MISCELLANEOUS.......................................................................................71
SECTION 10.1 Amendments and Waivers...................................................................71
SECTION 10.2 Notices 72
SECTION 10.3 No Waiver; Cumulative Remedies...........................................................73
SECTION 10.4 Survival of Representations and Warranties...............................................73
SECTION 10.5 Payment of Expenses......................................................................73
SECTION 10.6 Successors and Assigns; Participations and Assignments...................................74
SECTION 10.7 Adjustments; Set-off.....................................................................77
SECTION 10.8 Counterparts.............................................................................77
SECTION 10.9 Severability.............................................................................78
SECTION 10.10 Integration.............................................................................78
SECTION 10.11 GOVERNING LAW...........................................................................78
SECTION 10.12 Submission To Jurisdiction; Waivers.....................................................78
SECTION 10.13 Acknowledgements........................................................................78
SECTION 10.14 WAIVERS OF JURY TRIAL...................................................................79
SECTION 10.15 Confidentiality.........................................................................79
SECTION 10.16 Releases................................................................................79
v
1.1A Commitments; Lending Offices and Addresses
4.1 Disposition of Assets
4.1(b) Guarantee Obligations of CONMED
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation
4.9 Intellectual Property
4.15 Subsidiaries
4.19 UCC Filing Jurisdictions
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Assumption
E-1 Form of Legal Opinion of Sullivan & Cromwell
E-2 Form of Legal Opinion of General Counsel
F Form of Exemption Certificate
G Form of Increased Facility Activation Notice
H Form of New Lender Supplement
vi
CREDIT AGREEMENT (this "Agreement"), dated as of August 28, 2002, among
CONMED CORPORATION, a New York corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), JPMORGAN CHASE BANK, as syndication agent (in such
capacity, the "Syndication Agent"), CITIBANK, N.A., CREDIT LYONNAIS and FLEET
NATIONAL BANK, as documentation agents (in such capacity, the "Documentation
Agents"), and JPMORGAN CHASE BANK, as administrative agent.
The parties hereto hereby agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the Alternate Base Rate.
"Acknowledgement and Consent": the collective reference to each
Acknowledgment and Consent in the form attached to the Guarantee and
Collateral Agreement delivered pursuant to the Loan Documents.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": JPMorgan Chase Bank, as the administrative
agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its permitted successors.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agents": collectively, the Documentation Agents, the Syndication
Agent and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit Commitment then in effect or, if
the Revolving Credit Commitments have been terminated, the amount of such
Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender, the
ratio (expressed as a percentage) of such Lender's Aggregate Exposure to
the Aggregate Exposure of all Lenders.
"Agreement": as defined in the preamble hereto.
"Alternate Base Rate": for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2
2
of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by the Administrative Agent
as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by
the Administrative Agent in connection with extensions of credit to
debtors). Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.
"Applicable Margin": (a) for Tranche B Term Loans and Revolving
Credit Loans, the rate per annum set forth under the relevant column
heading in the Pricing Grid and (b) for Incremental Term Loans, such per
annum rates as shall be agreed to by the Borrower and the applicable
Incremental Term Loan Lenders as shown in the applicable Increased Facility
Activation Notice.
"Application": an application, in such form as the Issuing Lender may
reasonably specify from time to time, requesting the Issuing Lender to
issue a Letter of Credit.
"Approved Fund": as defined in Section 10.6(b)(ii).
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k) of Section 7.5)
which yields net proceeds to the Borrower or any of its Subsidiaries
(valued at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities and valued at fair
market value in the case of other non-cash proceeds) in excess of $250,000.
"Assignee": as defined in Section 10.6(b)(i).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit D.
"Available Excess Cash Flow": any amount of Excess Cash Flow which
remains available after application of the required percentage of such
Excess Cash Flow to prepayment of the Term Loans in accordance with Section
2.12(c), if required thereunder, minus (w) amounts of Excess Cash Flow that
have been used to make Restricted Payments in accordance with Section 7.6,
(x) amounts of Excess Cash Flow that have been used to make investments in
accordance with Section 7.8(i), (y) amounts of Excess Cash Flow that have
been used to make Permitted Business Acquisitions in accordance with
Section 7.8(k) and (z) amounts of Excess Cash Flow that have been applied
to the payment, prepayment, repurchase or redemption of the Senior
Subordinated Notes or Permitted Subordinated Indebtedness in accordance
with Section 7.9(a).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Commitment pursuant to
Section 2.9(a), the aggregate principal amount of Swingline Loans then
outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
3
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business": as defined in Section 4.17(b).
"Business Day": (i) for all purposes other than as covered by clause
(ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the London interbank
eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for
the acquisition or leasing (pursuant to a capital lease) of fixed or
capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of such Person and
its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the
date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-1 by Standard & Poor's Ratings Services
("S&P") or P-1 by Moody's Investors Service, Inc. ("Moody's"), or carrying
an equivalent rating by a nationally recognized rating agency, if both of
the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority
4
of any such state, commonwealth or territory or by any foreign government,
the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody's; (f) securities with maturities
of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying
the requirements of clause (b) of this definition; (g) shares of money
market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition;
or (h) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii)
are rated AAA by S&P and Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000.
"Chattel Paper": as defined in the Guarantee and Collateral
Agreement.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied, which date shall not be later
than September 5, 2002.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": as to any Lender, the sum of the Tranche B Term Loan
Commitment, any Incremental Term Loan Commitment and the Revolving Credit
Commitment of such Lender.
"Commitment Fee Rate": the rate per annum set forth under the
relevant column heading in the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated July 2002 and furnished to the Lenders and identified as
such to the Borrower.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Borrower and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its Subsidiaries and
(b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Credit Loans or Swingline Loans to the extent otherwise included
therein.
5
"Consolidated EBITDA": for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period,
the sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with Indebtedness
(including the Loans), (c) depreciation and amortization expense, (d)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring
expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of
business) and (f) any other non-cash charges (including but not limited to
expenses relating to stock options), and minus, to the extent included in
the statement of such Consolidated Net Income for such period, the sum of
(a) interest income, (b) any extraordinary, unusual or non-recurring income
or gains (including, whether or not otherwise includable as a separate item
in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business) and (c) any
other non-cash income, all as determined on a consolidated basis.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA for such period less the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during such
period on account of Capital Expenditures to (b) Consolidated Fixed Charges
for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period and (b)
scheduled payments made during such period on account of principal of
Funded Debt of the Borrower or any of its Subsidiaries (including scheduled
principal payments in respect of the Term Loans, except as provided below,
but excluding (i) principal payments in respect of the Revolving Credit
Loans or Swingline Loans, (ii) principal payments in respect of the Tranche
B Term Loans upon the scheduled final maturity thereof, (iii) principal
payments made in respect of loans under the Existing Credit Agreement and
(iv) principal payments in respect of the Senior Subordinated Notes upon
the scheduled final maturity thereof or, to the extent permitted herein, as
a result of the optional prepayment thereof). For the avoidance of doubt,
"Consolidated Fixed Charges" shall not include any payments made on account
of principal of Funded Debt of the Borrower and its Subsidiaries as a
result of a mandatory prepayment thereof.
"Consolidated Interest Expense": for any period, total interest
expense (including that attributable to Capital Lease Obligations) of the
Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries (including,
without limitation, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing
and net costs (or gains) under Swap Agreements to the extent such net costs
(or gains) are allocable to such periods in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters, the ratio of (a) (x) Consolidated Total
Debt plus (y) to the extent not otherwise included therein, the aggregate
outstanding attributed principal amount under any Receivables Transfer
Program incurred in accordance with Section 7.2(o) (without regard to
whether or not such amount is incurred by or attributed to a Loan Party or
whether or not it is reflected in the consolidated balance sheet of the
Borrower and its Subsidiaries), on such day to (b) Consolidated EBITDA for
such period; provided that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any period, (i) if during such
period the Borrower or any Subsidiary shall have made a Material
Acquisition, Consolidated EBITDA for such period shall
6
be calculated after giving pro forma effect thereto (assuming the
consummation of each such Material Acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the
first day of such period), and if any such Material Acquisition was of a
Person, if the consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of
income and stockholders' equity and of cash flows for the period in respect
of which Consolidated EBITDA is to be calculated (1) have been previously
provided to the Administrative Agent and the Lenders and (2) either (A)
have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally
recognized standing or (B) have been found acceptable by the Administrative
Agent, and (ii) if during such period the Borrower or any Subsidiary shall
have made a Material Disposition, Consolidated EBITDA for such period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the Property that is the subject of such Material
Disposition for such period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such period
(and, if any amount of cash from the proceeds of such Material Disposition
remains after deducting from such proceeds the aggregate amount of all
outstanding Revolving Credit Loans and the amount of such proceeds
reinvested by the Borrower and its Subsidiaries, such remaining amount
shall be deducted from the amount of Consolidated Total Debt for such
period).
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income
(or deficit) of any Person (other than a Subsidiary of the Borrower) in
which the Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is prohibited by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary.
"Consolidated Net Worth": at any date, all amounts which would, in
accordance with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date;
provided that (i) any net non-cash adjustments to such amounts after the
Closing Date resulting from foreign currency transactions, unfunded pension
liabilities or unrealized gains or losses in respect of securities shall be
included to the extent such adjustments exceed $2,000,000 as of the end of
any fiscal quarter, (ii) any net non-cash adjustments to such amounts after
the Closing Date resulting from the application of FASB 142 shall not be
included in such amounts and (iii) any net non-cash adjustments to such
amounts after the Closing Date resulting from charges to in-process
research and development in connection with a Permitted Business
Acquisition shall not be included in such amounts.
"Consolidated Senior Debt": all Consolidated Total Debt, other than
the Senior Subordinated Notes and any Permitted Subordinated Indebtedness.
"Consolidated Senior Debt Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated
Senior Debt on such day to (b) Consolidated EBITDA for such period;
provided that for purposes of calculating Consolidated EBITDA of the
Borrower and its Subsidiaries for any period, (i) if during such period the
Borrower or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for
7
such period shall be calculated after giving pro forma effect thereto
(assuming the consummation of each such Material Acquisition and the
incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period), and if any such Material
Acquisition was of a Person, if the consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related
consolidated statements of income and stockholders' equity and of cash
flows for the period in respect of which Consolidated EBITDA is to be
calculated (1) have been previously provided to the Administrative Agent
and the Lenders and (2) either (A) have been reported on without a
qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (B) have
been found acceptable by the Administrative Agent, and (ii) if during such
period the Borrower or any Subsidiary shall have made a Material
Disposition, Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the
Property that is the subject of such Material Disposition for such period
or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such period (and, if any amount of cash from the
proceeds of such Material Disposition remains after deducting from such
proceeds the aggregate amount of all outstanding Revolving Credit Loans and
the amount of such proceeds reinvested by the Borrower and its
Subsidiaries, such remaining amount shall be deducted from the amount of
Consolidated Senior Debt for such period).
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Funded Debt of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the directors of the Borrower on the Closing
Date, and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Borrower is
recommended by at least 66-2/3% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Article VIII, whether or
not any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Disposition": with respect to any Property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Documentation Agents": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States; provided that, for
purposes of this Agreement, none of (i) CONMED Receivables Corporation, its
successors and permitted transferees, or any other single purpose
corporation formed and operating solely in connection with a Receivables
Transfer Program permitted under this Agreement, so long as the grant of a
security interest in the Capital
8
Stock of such Subsidiary is prohibited under such Receivables Transfer
Program, (ii) GWH, Ltd., Largo Lakes - I Limited Partnership or their
respective successors and permitted transferees, so long as the Capital
Stock and all of the property of each such Subsidiary is held and is
subject to a security interest granted in connection with the Largo
Acquisition or (iii) Largo Realty, LLC, so long as it holds only the
property held by it on the date hereof, shall be deemed to be a Domestic
Subsidiary or a Foreign Subsidiary.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, legally binding requirements of any Governmental Authority or
other Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning the protection of
human health or the environment, as now or may at any time hereafter be in
effect.
"Equipment": as defined in the Guarantee and Collateral Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
---------------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
9
"Eurodollar Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Article VIII,
provided that any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income
for such fiscal year, (ii) the amount of all non-cash charges (including
depreciation and amortization) deducted in arriving at such Consolidated
Net Income, (iii) decreases in Consolidated Working Capital for such fiscal
year (but excluding any such decrease in connection with an increase in the
size of the Receivables Transfer Program), and (iv) the aggregate net
amount of non-cash loss on the Disposition of property by the Borrower and
its Subsidiaries during such fiscal year (other than sales of inventory in
the ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income over (b) the sum, without duplication, of (i)
the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the
Borrower and its Subsidiaries in cash during such fiscal year on account of
Capital Expenditures (excluding the principal amount of Indebtedness
incurred in connection with such expenditures and any such expenditures
financed with the proceeds of any Reinvestment Deferred Amount), (iii) the
aggregate amount of all payments of Revolving Credit Loans and Swingline
Loans during such fiscal year to the extent accompanying permanent
reductions of the Revolving Credit Commitments and all prepayments of the
Term Loans during such fiscal year, (iv) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term
Loans) of the Borrower and its Subsidiaries made during such fiscal year
(other than in respect of any revolving credit facility to the extent there
is not an equivalent permanent reduction in commitments thereunder), (v)
increases in Consolidated Working Capital for such fiscal year, (vi) the
aggregate net amount of non-cash gain on the Disposition of property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income and (vii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in connection with a
Permitted Business Acquisition to the extent not paid through the
incurrence of Indebtedness or issuance of Capital Stock.
"Excess Cash Flow Application Date": as defined in Section 2.12(c).
"Excess Cash Flow Percentage": the percentage determined in
accordance with the chart set forth below:
------------------------------------- -------------------------------
Consolidated Leverage Ratio Excess Cash Flow Percentage
------------------------------------- -------------------------------
Less than 2.75 0%
2.75 to, but not including, 3.25 25%
3.25 or greater 50%
------------------------------------- -------------------------------
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in respect of
which either (i) the pledge of all of the Capital Stock of such Subsidiary
as Collateral or (ii) the guaranteeing by
10
such Subsidiary of the Obligations, would, in the good faith judgment of
the Borrower, result in adverse tax consequences to the Borrower.
"Existing Credit Agreement": the Amended and Restated Credit
Agreement, dated as of August 11, 1999, among CONMED Corporation, as
borrower, the lenders from time to time party thereto, the documentation
and syndication agents named therein and JPMorgan Chase Bank (as successor
to The Chase Manhattan Bank), as administrative agent as amended to the
date hereof.
"Extended Revolving Credit Commitments": as defined in Section 10.1.
"Extended Revolving Credit Facility": as defined in Section 10.1.
"Extended Revolving Credit Loans": as defined in Section 10.1.
"Facility": each of (a) the Tranche B Term Loan Commitments and the
Tranche B Term Loans made thereunder (the "Tranche B Term Loan Facility"),
(b) the Incremental Term Loan Commitments and the Incremental Term Loans
made thereunder (the "Incremental Term Loan Facility"), and (c) the
Revolving Credit Commitments and the extensions of credit made thereunder
(the "Revolving Credit Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person of
the types described in clauses (a)-(e) of the definition of Indebtedness.
"Funding Office": the office of the Administrative Agent set forth in
Section 10.2.
"GAAP": generally accepted accounting principles applicable in the
United States for reporting entities domiciled in the United States as in
effect from time to time, except that for purposes of Section 7.1 and any
financial covenant calculation in Section 2.12, GAAP shall be determined on
the basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the most recent audited financial
statements delivered pursuant to Section 4.1(b).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government
(including, without limitation, any securities exchange or self-regulatory
organization).
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement executed and delivered by the Borrower and each Subsidiary
Guarantor on the date hereof, substantially in the form of Exhibit A,
together with the Acknowledgement and Consent.
11
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Increased Facility Activation Date": any Business Day on which any
Lender shall execute and deliver to the Administrative Agent an Increased
Facility Activation Notice pursuant to Section 2.1(b).
"Increased Facility Activation Notice": a notice substantially in the
form of Exhibit G.
"Increased Facility Closing Date": any Business Day designated as
such in an Increased Facility Activation Notice.
"Incremental Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make an Incremental Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth in the
applicable Increased Facility Activation Notice.
"Incremental Term Loan Facility": as defined in the definition of
"Facility".
"Incremental Term Loan Lenders": (a) on any Increased Facility
Activation Date relating to Incremental Term Loans, the Lenders signatory
to the relevant Increased Facility Activation Notice and (b) thereafter,
each Lender that is a holder of an Incremental Term Loan.
"Incremental Term Loans": as defined in Section 2.1(a).
"Incremental Term Loan Percentage": as to any Lender, the percentage
which the aggregate principal amount of such Lender's Incremental Term
Loans then outstanding constitutes of the aggregate principal amount of the
Incremental Term Loans then outstanding.
12
"Incremental Term Maturity Date": with respect to the Incremental
Term Loans to be made pursuant to any Increased Facility Activation Notice,
the maturity date specified in such Increased Facility Activation Notice,
which date shall be on or after the final maturity date of the Tranche B
Term Loans.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of Property or services (other
than current trade payables incurred in the ordinary course of such
Person's business, and overdue trade payables incurred in the ordinary
course of such Person's business to the extent the amount or validity
thereof is currently being contested in good faith by appropriate
procedures and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or its Subsidiaries, as the case
may be), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such Property), (e) all
Capital Lease Obligations of such Person (the amount of which shall be
calculated without regard to imputed interest), (f) all obligations of such
Person, contingent or otherwise, as an account party under acceptance,
letter of credit or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire
for value any Capital Stock (other than common stock) of such Person, (h)
all Guarantee Obligations of such Person in respect of obligations of the
kind referred to in clauses (a) through (g) above to the extent quantified
as liabilities, contingent obligations or like term in accordance with GAAP
on the balance sheet (including notes thereto) of such Person; (i) all
obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any Lien on Property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the
payment of such obligation (but only to the extent of the fair market value
of such Property); (j) for purposes of Article 8(e), all obligations of
such Person in respect of Swap Agreements and (k) the liquidation value of
any preferred Capital Stock of such Person or its Subsidiaries held by any
Person other than such Person and its Wholly Owned Subsidiaries.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Instrument": as defined in the Guarantee and Collateral Agreement.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to sue at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan (other than any
Swingline Loan), the last Business Day of each March, June, September and
December to occur while such Loan is outstanding and the final maturity
date of such Loan, (b) as to any Eurodollar Loan having an Interest Period
of three months or less, the last day of such Interest Period, (c) as to
any
13
Eurodollar Loan having an Interest Period longer than three months, each
day which is three months, or a whole multiple thereof, after the first day
of such Interest Period and the last day of such Interest Period, (d) as to
any Loan (other than any Revolving Credit Loan that is an ABR Loan or any
Swingline Loan), the date of any repayment or prepayment made in respect
thereof and (e) as to any Swingline Loan, the day that such Loan is
required to be repaid.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto;
and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto; provided
that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(b) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or beyond the date final payment is due
on the Tranche B Term Loans or any Incremental Term Loan, as the case may
be, shall end on the Revolving Credit Termination Date or such due date, as
applicable;
(c) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and
(d) the Borrower shall use reasonable efforts to select Interest
Periods so as not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Inventory": as defined in the Guarantee and Collateral Agreement.
"Issuing Lender": JPMorgan Chase Bank, in its capacity as issuer of
any Letter of Credit.
"L/C Commitment": $10,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the Revolving Credit Termination Date.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": collectively, all the Revolving Credit Lenders
other than the Issuing Lender.
14
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a). "Lien": any
mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security
interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
"Linvatec": Linvatec Corporation, a Florida corporation and a
wholly-owned subsidiary of the Borrower.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility, prior to any termination of the Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"Material Acquisition": any acquisition of Property or series of
related acquisitions of Property that (x) constitutes assets comprising all
or substantially all of an operating unit or a business, line of business
or product line or constitutes all or substantially all of the common stock
of a Person and (y) involves the payment of consideration by the Borrower
and its Subsidiaries in excess of $5,000,000.
"Material Adverse Effect": a material adverse effect on (a) the
business, results of operations, assets or financial position of the
Borrower and its Subsidiaries taken as a whole, (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agents or the Lenders hereunder or thereunder or
(c) the ability of the Borrower to perform any of its obligations under
this Agreement.
"Material Disposition": any Disposition of Property or series of
related Dispositions of Property that yields net proceeds to the Borrower
and its Subsidiaries in excess of $5,000,000.
"Material Domestic Subsidiary": at any time, (a) any Domestic
Subsidiary (i) which is directly owned by the Borrower or any Subsidiary
and (ii) with respect to which either (A) its annual revenues exceed
$1,000,000 for the most recently ended twelve-month period or (B) its total
assets, as determined in accordance with GAAP, at such time is greater than
$1,000,000 and (b) any Domestic Subsidiary which has incurred Indebtedness
in excess of $100,000; provided that (x) the aggregate annual revenues of
all non-Material Domestic Subsidiaries shall not exceed
15
$5,000,000 for the most recently ended twelve-month period, and (y) the
aggregate total assets of all non-Material Domestic Subsidiaries, as
determined in accordance with GAAP, shall not exceed $5,000,000 at any one
time.
"Material Foreign Subsidiary": at any time, any Foreign Subsidiary
(i) which is directly owned by the Borrower or any Subsidiary and (ii) with
respect to which either (A) its annual pre-tax income exceeds $7,500,000
for the most recently ended twelve-month period or (B) its total assets, as
determined in accordance with GAAP, at such time is greater than
$7,500,000; provided that (x) the aggregate pre-tax income of all
non-Material Foreign Subsidiaries shall not exceed $20,000,000 for the most
recently ended twelve-month period, and (y) the aggregate total assets of
all non-Material Foreign Subsidiaries, as determined in accordance with
GAAP, shall not exceed $35,000,000 at any one time.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or to the
extent regulated as such in or under any applicable Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of
ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document) and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements) and (b) in connection with any issuance or sale
of equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"New Lender": as defined in Section 2.1(c).
"New Lender Supplement": as defined in Section 2.1(c).
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(d).
"Notes": collectively, any promissory note evidencing Loans.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
16
reorganization or like proceeding, relating to the Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of
Swap Agreements, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Swap
Agreement entered into with any Lender or any affiliate of any Lender or
any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement.
"Participant": as defined in Section 10.6(c)(i).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Asset Sale Amount": initially $25,000,000, which amount
shall increase by $5,000,000 on the first day of each fiscal year following
the Closing Date.
"Permitted Business Acquisition": any acquisition of all or
substantially all the assets of, or shares or other equity interests in, a
Person or division or line of business of a Person (or any subsequent
investment made in a previously acquired Permitted Business Acquisition) if
immediately after giving effect thereto: (a) no Default or Event of Default
shall have occurred and be continuing or would result therefrom, (b) all
transactions related thereto shall be consummated in accordance with
applicable laws in all material respects, (c) any acquired or newly formed
corporation, partnership, association or other business entity shall be a
domestic Wholly Owned Subsidiary and all actions required to be taken, if
any, with respect to such acquired or newly formed Subsidiary under Section
6.9 shall have been taken and (d)(i) the Borrower and the Subsidiaries
shall be in compliance, on a pro forma basis after giving effect to such
acquisition (without regard to the making of any earn-out payments), with
the covenants contained in Section 7.1 (except that for purposes of this
definition only, the Borrower and its Subsidiaries shall calculate pro
forma compliance with the Consolidated Leverage Ratio set forth in Section
7.1(a) at (x) the Consolidated Leverage Ratio level set forth therein for
the fiscal quarter in which such acquisition is made minus (y) 0.25)
recomputed as at the last day of the most recently ended fiscal quarter of
the Borrower and the Subsidiaries as if such acquisition and related
financings or other transactions (without regard to the making of any
earn-out payments) had occurred on the first day of each relevant period
for testing such compliance, and, if the amount of such investment or
series of related investments exceeds $10,000,000 (without regard to the
making of any earn-out payments), then the Borrower shall have delivered to
the Administrative Agent an officers' certificate to such effect, together
with all relevant financial information for such Subsidiary or assets, and
(ii) any acquired or newly formed Subsidiary shall not be liable for any
Indebtedness (except for Indebtedness permitted by Section 7.2).
"Permitted Subordinated Indebtedness": any unsecured Indebtedness of
the Borrower (a) no part of the principal of which is stated to be payable
or is required to be paid (whether by way of mandatory sinking fund,
mandatory redemption, mandatory prepayment or other mandatory
17
payment) prior to the final maturity date of the Term Loans or, if later,
the Revolving Credit Termination Date, and the payment of the principal of
which is subordinated to the prior payment in full of the Obligations, on
terms and conditions no less favorable as a whole to the Lenders than those
contained in the Senior Subordinated Note Indenture or otherwise on terms
and conditions reasonably satisfactory to the Required Lenders and (b)(i)
otherwise containing terms, covenants and conditions reasonably
satisfactory in form and substance to the Required Lenders or (ii)
otherwise containing terms, covenants and conditions no less favorable as a
whole to the Lenders than those contained in the Senior Subordinated Note
Indenture, other than the rate of interest on any such Indebtedness, which
shall be determined based on market conditions at the time of incurrence
thereof.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pricing Grid": the table set forth below:
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Consolidated Leverage Applicable Margin Applicable Margin Applicable Margin Applicable Margin Commitment Fee
Ratio for Revolving for Term Loans for Revolving for Term Loans Rate
Credit Loans that that are Credit Loans that that are ABR Loans
are Eurodollar Eurodollar Loans are ABR Loans
Loans
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Greater than or equal 2.750% 3.000% 1.750% 2.000% 0.625%
to 3.25
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Less than 3.25 but 2.500% 2.750% 1.500% 1.750% 0.500%
greater than or equal
to 2.75
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Less than 2.75 but 2.250% 2.750% 1.250% 1.750% 0.500%
greater than or equal
to 2.25
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Less than 2.25 2.000% 2.750% 1.000% 1.750% 0.375%
- ------------------------- ------------------- ------------------- --------------------- ------------------- ----------------
Changes in the Applicable Margin with respect to Revolving Credit
Loans, Tranche B Term Loans or in the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are delivered to
the Lenders pursuant to Section 6.1 (but in any event not later than the
45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case
may be) and shall remain in effect until the next change to be effected
pursuant to this paragraph. If any financial statements referred to above
are not delivered within the time periods specified above, then, until such
financial statements are delivered, the Consolidated Leverage Ratio as at
the end of the fiscal period that would have been covered thereby shall for
the purposes of this definition be deemed to be greater than 3.25 to 1.00.
In addition, at all times while an Event of Default shall have occurred and
be continuing, the
18
Consolidated Leverage Ratio shall for the purposes of this definition be
deemed to be greater than 3.25 to 1.00. Each determination of the
Consolidated Leverage Ratio pursuant to this definition shall be made with
respect to the period of four consecutive fiscal quarters of the Borrower
ending at the end of the period covered by the relevant financial
statements.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate
in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors).
Any change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17(a).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Receivables Transfer Program": a program under which the Borrower or
any of its Subsidiaries sell, transfer, encumber or otherwise dispose of
accounts receivable or related ancillary rights or assets, or interests
therein, without recourse (except for customary representations and
customary non-credit dilution provisions) other than with respect to the
Borrower's or such Subsidiary's retained interest in such accounts
receivable or related ancillary rights or assets, such program to have
substantially the terms and conditions provided to the Administrative Agent
prior to the date hereof, as such terms and conditions may be amended,
supplemented or otherwise modified from time to time.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries
(excluding, for the avoidance of doubt, the proceeds of business
interruption insurance for lost revenues).
"Refunded Swingline Loans": as defined in Section 2.7(b).
"Register": as defined in Section 10.6(b)(iv).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of
its Subsidiaries in connection therewith which are not applied to prepay
the Term Loans or reduce the Revolving Credit Commitments pursuant to
Section 2.12(b) as a result of the delivery of a Reinvestment Notice.
19
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Default or Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a
Subsidiary), in good faith intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to make
an investment that is a reasonable substitute for the assets in respect of
which such Asset Sale or Recovery Event occurred within twelve months (or
six months in the case of an indemnity payment) from the date of receipt of
such Net Cash Proceeds (provided that if the affected assets constituted
Collateral such investment assets shall also constitute Collateral).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to make an
investment that is a reasonable substitute for the assets in respect of
which a Recovery Event has occurred.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets useful
in the Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg.ss. 4043.
"Required Lenders": the holders of more than 50% of the sum of (i)
the aggregate unpaid principal amount of the Term Loans and (ii) the Total
Revolving Credit Commitments or, if the Revolving Credit Commitments have
been terminated, the Total Revolving Extensions of Credit.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer, treasurer, controller or general counsel (or other
officer satisfactory to the Lenders) of the Borrower, but in any event,
with respect to financial matters, the chief financial officer, treasurer,
controller (or other officer satisfactory to the Lenders) of the Borrower.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in
Swingline Loans and Letters of Credit, in an aggregate principal and/or
face amount not to exceed the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule 1.1A or in the
Assignment and Assumption pursuant to which such Revolving Credit Lender
became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving
Credit Commitments is $100,000,000.
20
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each Lender which has a Revolving Credit
Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4(a).
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the aggregate principal amount of such Lender's
Revolving Credit Loans then outstanding constitutes of the aggregate
principal amount of the Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": the fifth anniversary of the
Closing Date, as such date may be extended in accordance with Section 10.1.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding,
(b) such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Revolving Credit Percentage of the
aggregate principal amount of Swingline Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous Governmental Authority).
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement and all other security documents hereafter delivered
to the Administrative Agent granting a Lien on any Property of any Person
to secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Senior Subordinated Note Indenture": the Indenture entered into in
connection with the issuance of the Senior Subordinated Notes, together
with all instruments and other agreements entered into by the Borrower or
such Subsidiaries in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 7.9.
"Senior Subordinated Notes": collectively, (i) the unsecured 9%
senior subordinated notes of the Borrower due 2008, or (ii) any refinancing
of such Senior Subordinated Notes of the Borrower on terms and conditions
which either (A) if the same were an amendment to such Senior Subordinated
Notes, would be permitted by Section 7.9(b) or (B) are otherwise reasonably
satisfactory to the Required Lenders.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair
21
saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such
Person will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", and (ii) "claim" means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Specified Change of Control": a "Change of Control" as defined in
the Senior Subordinated Note Indenture.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
any Excluded Foreign Subsidiary.
"Swap Agreement": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving,
or settled by reference to, one or more rates, currencies, commodities,
equity or debt instruments or securities, or economic, financial or pricing
indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or any of its Subsidiaries shall be a "Swap
Agreement".
"Swingline Commitment": the obligation of the Swingline Lender to
make Swingline Loans pursuant to Section 2.6 in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000.
"Swingline Lender": JPMorgan Chase Bank, in its capacity as the
lender of Swingline Loans.
"Swingline Loans": as defined in Section 2.6(a).
"Swingline Participation Amount": as defined in Section 2.7(c).
"Syndication Agent": as defined in the preamble hereto.
"Term Loan Lenders": collectively, the Tranche B Term Loan Lenders
and the Incremental Term Loan Lenders.
22
"Term Loans": collectively, the Tranche B Term Loans and the
Incremental Term Loans.
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments at such time.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders at such time.
"Tranche B Term Loan": as defined in Section 2.1(a) and including any
Tranche B Term Loans made pursuant to Section 2.1(b).
"Tranche B Term Loan Commitment": as to any Lender, the obligation of
such Lender, if any, to make a Tranche B Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under
the heading "Tranche B Term Loan Commitment" opposite such Lender's name on
Schedule 1.1A or in the Assignment and Assumption pursuant to which such
Tranche B Term Loan Lender became a party hereto. The original aggregate
amount of the Tranche B Term Loan Commitments is $100,000,000.
"Tranche B Term Loan Lender": each Lender which has a Tranche B Term
Loan Commitment or which has made a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche B Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche B
Term Loans then outstanding).
"Transferee": as defined in Section 10.15.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"United States": the United States of America.
"Wholly Owned Foreign Subsidiary": any Foreign Subsidiary that is a
Wholly Owned Subsidiary.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than (i) a nominal number of shares held
by foreign nationals to the extent required by local law or (ii) directors'
qualifying shares required by law) is owned by such Person directly and/or
through other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of the Borrower.
23
SECTION 1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) References to agreements or other Contractual Obligations shall, unless
otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time.
ARTICLE II. AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 Term Loan Commitments(a) . (b) Subject to the terms and
conditions hereof, (i) each Tranche B Term Loan Lender severally agrees to make
a term loan (a "Tranche B Term Loan") to the Borrower on the Closing Date in an
amount not to exceed the amount of the Tranche B Term Loan Commitment of such
Lender and (ii) each Incremental Term Loan Lender severally agrees to make one
or more term loans (each an "Incremental Term Loan") to the Borrower to the
extent provided in Section 2.1(b). The Term Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.13.
(c) The Borrower and any one or more Lenders (including New Lenders) may
from time to time agree that such Lenders shall make, obtain or increase the
amount of their Tranche B Term Loans or Incremental Term Loans, as applicable,
by executing and delivering to the Administrative Agent an Increased Facility
Activation Notice specifying (i) the amount of such increase and the Facility or
Facilities involved, (ii) the applicable Increased Facility Closing Date and
(iii) in the case of Incremental Term Loans, (x) the applicable Incremental Term
Maturity Date, (y) the amortization schedule for such Incremental Term Loans,
which shall comply with Section 2.3, and (z) the Applicable Margin for such
Incremental Term Loans; provided that, (A) after giving pro forma effect to the
making of any such Term Loans, the Consolidated Leverage Ratio shall be less
than or equal to (x) the Consolidated Leverage Ratio level set forth in Section
7.1(a) for the fiscal quarter in which such Term Loans are made minus (y) 0.25,
(B) no Default or Event of Default has occurred and is continuing or would
result after giving effect to the making of such Term Loans or the application
of the proceeds therefrom, (C) in the case of Incremental Term Loans, the
Applicable Margin shall not be greater than 0.25% above the Applicable Margin
then in effect for Tranche B Term Loans and, other than with respect to other
pricing terms relating thereto, such Loans shall otherwise be on the same terms
and conditions as those applicable to Tranche B Term Loans, (D) the aggregate
amount of borrowings of incremental Tranche B Term Loans or Incremental Term
Loans pursuant to this Section 2.1(b) shall not exceed an amount equal to
$75,000,000, (E) each borrowing of incremental Tranche B Term Loans or
Incremental Term Loans pursuant to this Section 2.1(b) shall be in a minimum
amount of at least $25,000,000 and (F) no more than three Increased
24
Facility Closing Dates may be selected by the Borrower after the Closing Date.
No Lender shall have any obligation to participate in any increase described in
this paragraph unless it agrees to do so in its sole discretion.
(d) Any additional bank, financial institution or other entity which, with
the consent of the Borrower and the Administrative Agent (which consent shall
not be unreasonably withheld), elects to become a "Lender" under this Agreement
in connection with any transaction described in Section 2.1(b) shall execute a
New Lender Supplement (each, a "New Lender Supplement"), substantially in the
form of Exhibit H, whereupon such bank, financial institution or other entity (a
"New Lender") shall become a Lender for all purposes and to the same extent as
if originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement.
SECTION 2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, on the Closing
Date) requesting that the Term Loan Lenders make the Term Loans on the Closing
Date and specifying the amount to be borrowed. Upon receipt of such notice the
Administrative Agent shall promptly notify each Term Loan Lender thereof. Not
later than 12:00 Noon, New York City time, on the Closing Date each Term Loan
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall make available to the
Borrower the aggregate of the amounts made available to the Administrative Agent
by the Term Loan Lenders in immediately available funds.
SECTION 2.3 Repayment of Term Loans. (a) Subject to Section 2.8(a), the
principal amount of each Tranche B Term Loan of each Tranche B Term Loan Lender
shall mature in consecutive quarterly installments, commencing on the later of
December 31, 2002 and the first quarterly installment date following the making
of such Tranche B Term Loan, all but the final eight of which shall be in an
amount equal to the percentage set forth below opposite such installment date
below multiplied by the original principal amount of such Tranche B Term Loan.
On each of the seven installments to be made on March 31, 2008, June 30, 2008,
September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009 and
September 30, 2009, the principal amount of each Tranche B Term Loan of each
Tranche B Term Lender shall be payable in an amount equal to (x) 50% of the
unpaid principal amount of such Lender's Tranche B Term Loan outstanding as of
March 31, 2008 divided by (y) seven. For the final installment, to be paid on
December 15, 2009, the principal amount of each Tranche B Term Loan of each
Tranche B Term Lender shall be payable in an amount equal to 100% of the unpaid
principal amount of such Tranche B Term Loan outstanding as on such date:
Installment Percentage
----------- ----------
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 0.25%
September 30, 2005 0.25%
25
December 31, 2005 0.25%
March 31, 2006 0.25%
June 30, 2006 0.25%
September 30, 2006 0.25%
December 31, 2006 0.25%
March 31, 2007 0.25%
June 30, 2007 0.25%
September 30, 2007 0.25%
December 31, 2007 0.25%
(b) The Incremental Term Loans of each Incremental Term Loan Lender shall
mature in consecutive installments (which shall be no more frequent than
quarterly) as specified in the Increased Facility Activation Notice pursuant to
which such Incremental Term Loans were made, provided that, (i) such Incremental
Term Loans shall not amortize more rapidly, on a percentage basis, than the
Tranche B Term Loans and (ii) such Incremental Term Loans shall not finally
mature prior to the date upon which the Tranche B Term Loans are scheduled to
mature (for the purpose of this provision, such date shall be considered to be
December 15, 2009).
SECTION 2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Revolving
Credit Percentage of the sum of (i) the L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Swingline Loans then outstanding does
not exceed the amount of such Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Credit Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.13, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the
Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit Loans on the
Revolving Credit Termination Date.
SECTION 2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent (a) prior to 12:00 Noon, New York City time, three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) prior to 10:00 A.M., New York City time, on the requested Borrowing Date, in
the case of ABR Loans), specifying (i) the amount and Type of Revolving Credit
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the length of the initial Interest Period therefor. Any
Revolving Credit Loans made on the Closing Date shall initially be ABR Loans.
Each borrowing under the Revolving Credit Commitments shall be in an amount
equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof
(or, if the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided, that
the Swingline Lender may
26
request, on behalf of the Borrower, borrowings under the Revolving Credit
Commitments that are ABR Loans in other amounts pursuant to Section 2.7. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Each Revolving Credit
Lender will make the amount of its pro rata share of each borrowing available to
the Administrative Agent for the account of the Borrower at the Funding Office
prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent in like funds as received by the Administrative Agent.
SECTION 2.6 Swingline Commitment. (a) Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments from time to
time during the Revolving Credit Commitment Period by making swing line loans
("Swingline Loans") to the Borrower; provided that (i) the aggregate principal
amount of Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Credit Loans, may exceed the Swingline Commitment then in effect) and
(ii) the Borrower shall not request, and the Swingline Lender shall not make,
any Swingline Loan if, after giving effect to the making of such Swingline Loan,
the aggregate amount of the Available Revolving Credit Commitments would be less
than zero. During the Revolving Credit Commitment Period, the Borrower may use
the Swingline Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swingline Loans shall be (i)
ABR Loans or (ii) subject to an interest rate set by the Swingline Lender on an
as offered basis, such interest rate in no event to be higher than the Alternate
Base Rate plus the Applicable Margin for ABR Loans in effect on the date the
applicable Swingline Loans are made.
(b) The Borrower shall repay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Revolving Credit
Termination Date and the first date after such Swingline Loan is made that is
the 15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a Revolving Credit
Loan is borrowed, the Borrower shall repay all Swingline Loans then outstanding.
SECTION 2.7 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Credit
Commitment Period). Each borrowing under the Swingline Commitment shall be in an
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not
later than 3:00 P.M., New York City time, on the Borrowing Date specified in a
notice in respect of Swingline Loans, the Swingline Lender shall make available
to the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the amount of the Swingline Loan to be made by the
Swingline Lender. The Administrative Agent shall make the proceeds of such
Swingline Loan available to the Borrower on such Borrowing Date by depositing
such proceeds in the account of the Borrower with the Administrative Agent on
such Borrowing Date in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in its sole and
absolute discretion may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), on one Business Day's notice
given by the Swingline Lender no later than 12:00 Noon, New York City time,
request each Revolving Credit Lender to make, and each Revolving Credit Lender
hereby agrees to make, a Revolving Credit Loan, in an amount equal to such
Revolving Credit Lender's
27
Revolving Credit Percentage of the aggregate amount of the Swingline Loans (the
"Refunded Swingline Loans") outstanding on the date of such notice, to repay the
Swingline Lender. Each Revolving Credit Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York City
time, one Business Day after the date of such notice. The proceeds of such
Revolving Credit Loans shall be immediately made available by the Administrative
Agent to the Swingline Lender for application by the Swingline Lender to the
repayment of the Refunded Swingline Loans. The Borrower irrevocably authorizes
the Swingline Lender to charge the Borrower's accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such Refunded Swingline Loans to the extent amounts received
from the Revolving Credit Lenders are not sufficient to repay in full such
Refunded Swingline Loans.
(c) If prior to the time a Revolving Credit Loan would have otherwise been
made pursuant to Section 2.7(b), one of the events described in Section 8(f)
shall have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each
Revolving Credit Lender shall, on the date such Revolving Credit Loan was to
have been made pursuant to the notice referred to in Section 2.7(b), purchase
for cash an undivided participating interest in the then outstanding Swingline
Loans by paying to the Swingline Lender an amount (the "Swingline Participation
Amount") equal to (i) such Revolving Credit Lender's Revolving Credit Percentage
times (ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swingline Lender has received from any
Revolving Credit Lender such Lender's Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Credit Lender will return to the
Swingline Lender any portion thereof previously distributed to it by the
Swingline Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans referred to
in Section 2.7(b) and to purchase participating interests pursuant to Section
2.7(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Revolving Credit Lender or the Borrower may have against
the Swingline Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Article V; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
SECTION 2.8 Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of the appropriate
Revolving Credit Lender or Term Loan Lender, as the case may be, (i) the then
unpaid principal amount of each Revolving Credit Loan of such Revolving Credit
Lender on the Revolving Credit Termination Date (or such earlier date on which
the Loans become due and payable pursuant to Article VIII) and (ii) the
principal amount of each Term Loan of such Term Loan Lender in installments
according to the amortization schedule set forth in
28
Section 2.3 (or on such earlier date on which the Loans become due and payable
pursuant to Article VIII); provided that if on or prior to December 15, 2007 the
Senior Subordinated Notes shall not have been redeemed, repurchased or defeased
in full pursuant to the Senior Subordinated Note Indenture, the principal amount
of each Tranche B Term Loan and Incremental Term Loan of such Lender shall
mature and, to the extent outstanding, be payable in full on December 15, 2007.
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum and on the dates set forth in
Section 2.15.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain the
Register pursuant to Section 10.6(b)(iv), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Loan made hereunder
and any Note evidencing such Loan, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
SECTION 2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the
Administrative Agent.
SECTION 2.10 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
that no such termination or reduction of Revolving Credit Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Credit Commitments. Any
such reduction shall be in an amount equal to $1,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
SECTION 2.11 Optional Prepayments. The Borrower may at any time and from
time to time prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered
29
to the Administrative Agent at least three Business Days prior thereto in the
case of Eurodollar Loans and at least one Business Day prior thereto in the case
of ABR Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or ABR Loans; provided that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.21. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Credit Loans
which are ABR Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and Revolving Credit Loans shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in
excess thereof. Partial prepayments of Swingline Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
SECTION 2.12 Mandatory Prepayments and Commitment Reductions. (a) Unless
the Majority Facility Lenders of each affected Facility shall otherwise agree
with the Borrower not to require such a prepayment of the Term Loans,
(i) if any Capital Stock shall be issued by the Borrower or any of its
Subsidiaries for cash (other than the issuance by the Borrower of
Capital Stock to directors, officers or employees or to consultants
pursuant to any stock option plan of the Borrower or any Subsidiary
the Net Cash Proceeds of which shall not exceed in the aggregate
$5,000,000 in any fiscal year unless such issuance is made pursuant to
the employee stock purchase plan of the Borrower existing on the date
hereof (as it may be amended, modified, supplemented or replaced so
long as after giving effect to any such amendment, modification,
supplement or replacement, the eligible participants under such plan
are not substantially different)), and the Consolidated Leverage Ratio
at such time is greater than 2.75, an amount equal to 50% of the Net
Cash Proceeds thereof shall be applied on the date of such issuance
toward the prepayment of the Term Loans as set forth in Section
2.12(d), or
(ii) if any Indebtedness shall be incurred by the Borrower or any of its
Subsidiaries (excluding any Indebtedness incurred in accordance with
Section 7.2) an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans as set forth in Section 2.12(d).
(b) Unless the Majority Facility Lenders of each affected Facility shall
otherwise agree with the Borrower not to require such a prepayment of the Term
Loans, if on any date the Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied on such date toward the prepayment of the Term Loans as set forth in
Section 2.12(d); provided that, notwithstanding the foregoing, on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans as set forth in Section 2.12(d).
(c) Unless the Majority Facility Lenders of each affected Facility shall
otherwise agree with the Borrower not to require such a prepayment of the Term
Loans, if, for any fiscal year of the Borrower commencing with the fiscal year
ending December 31, 2003, there shall be Excess Cash Flow, the Borrower shall,
on the relevant Excess Cash Flow Application Date, apply the Excess Cash Flow
Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as
set forth in Section 2.12(d). Each such prepayment shall be made on a date (an
"Excess Cash Flow Application Date") no
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later than 5 Business Days after the date on which the financial statements of
the Borrower referred to in Section 6.1(a), for the fiscal year with respect to
which such prepayment is made, are delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to
this Section 2.12 shall be applied to the prepayment of the Term Loans. The
application of any prepayment pursuant to Section 2.12 shall be made, first, to
ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans
under Section 2.12 shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
SECTION 2.13 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be
converted into a Eurodollar Loan (i) when any Event of Default has occurred and
is continuing and the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice, the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Majority Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such continuations or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each relevant Lender thereof.
SECTION 2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall
be outstanding at any one time.
SECTION 2.15 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin.
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(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
which is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.15
plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to
ABR Loans under the Revolving Credit Facility plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate applicable to
ABR Loans under the relevant Facility plus 2% (or, in the case of any such other
amounts that do not relate to a particular Facility, the Alternate Base Rate
plus 4%), in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section 2.15
shall be payable from time to time on demand.
SECTION 2.16 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Alternate Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.15(a) and the calculation of
any Eurocurrency Reserve Requirements.
SECTION 2.17 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority
Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the relevant Lenders as soon as practicable thereafter. If
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such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
SECTION 2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Tranche B Term Loan Percentages,
Incremental Term Loan Percentages or Revolving Credit Percentages, as the case
may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Term Loans shall be made pro rata according to
the respective outstanding principal amounts of the Term Loans then held by the
Term Loan Lenders (except as otherwise provided in Section 2.18(d)). The amount
of each principal prepayment of the Term Loans shall be applied to reduce the
then remaining installments of the Tranche B Term Loans or Incremental Term
Loans, as the case may be, pro rata based upon the then remaining principal
amount thereof. Amounts prepaid on account of the Term Loans may not be
reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(e) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this Section 2.18(e) shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the
33
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans under the
relevant Facility, on demand, from the Borrower, and, if so recovered, such
amount shall no longer be deemed outstanding hereunder.
(f) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment being made hereunder that the
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
SECTION 2.19 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(ii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 2.19, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled (and any related calculations).
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations to
lend hereunder or under or in respect of any Letter of Credit to a level below
that which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such reduction
provided that the Borrower shall not
34
be required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than twelve months prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor; and provided
further that, if the circumstances giving rise to such claim have a retroactive
effect, then such twelve-month period shall be extended to include the period of
such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to this
Section 2.19 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall contain reasonable supporting calculations and an
explanation in connection therewith and shall be conclusive in the absence of
manifest error. The obligations of the Borrower pursuant to this Section 2.19
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder, except to the extent provided for in
Section 2.19(b).
SECTION 2.20 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender by any jurisdiction under
the laws of which the Agent or the Lender is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
are required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes that would be imposed on amounts payable to such Lender
at the time the Lender becomes a party to this Agreement, except to the extent
that such Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such Non-Excluded
Taxes pursuant to Section 2.20(a).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Agents the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section 2.20 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder for a period of twelve months
after the date hereof.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in
35
the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit F and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
SECTION 2.21 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement (except as a result of a notice by the Administrative Agent pursuant
to Section 2.17), (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section 2.21
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
SECTION 2.22 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
36
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.21.
SECTION 2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19 or 2.20(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.23 shall
affect or postpone any of the obligations of the Borrower or the rights of any
Lender pursuant to Section 2.19 or 2.20(a).
SECTION 2.24 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or (b) defaults
in its obligation to make Loans hereunder, with a replacement financial
institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.23 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.19 or 2.20,
(iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.21 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.19 or 2.20, as the case may be,
and (ix) any such replacement shall not be deemed to be a waiver of any rights
which the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
ARTICLE III. LETTERS OF CREDIT
SECTION 3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day during the
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date, provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York.
37
(c) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
SECTION 3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
SECTION 3.3 Commissions, Fees and Other Charges. (a) The Borrower will pay
a commission on all undrawn and unpaid Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Credit Facility, shared ratably among the Revolving Credit
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date. In addition, the Borrower shall pay to the Issuing Lender for its
own account a fronting fee of 1/4 of 1% per annum on the undrawn and unexpired
amount of each Letter of Credit, payable quarterly in arrears on each L/C Fee
Payment Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
SECTION 3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the Issuing
Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by the Issuing Lender under any Letter of Credit is paid to the
Issuing Lender within three Business Days after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds
Effective Rate during the period
38
from and including the date such payment is
required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Credit Facility. A certificate of
the Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Article shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its pro rata
share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided that in the event that any such payment received by the Issuing Lender
shall be required to be returned by the Issuing Lender, such L/C Participant
shall return to the Issuing Lender the portion thereof previously distributed by
the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The Borrower agrees
to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment; provided that if the Issuing
Lender does not notify the Borrower as provided for above earlier than 9:30 A.M.
(New York City time) on the date such draft is paid then such reimbursement
payment may be made the Business Day immediately subsequent to the date such
draft is paid. Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Article from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate set forth in Section 2.15(c); provided that if the
Issuing Lender does not notify the Borrower as provided for above earlier than
9:30 A.M. (New York City time) on the date such draft is paid, then for such day
(and until the next Business Day) all amounts remaining unpaid in respect of
such notice shall bear interest the rate set forth in Section 2.15(b). Each
drawing under any Letter of Credit shall (unless an event of the type described
in clause (i) or (ii) of Section 8(f) shall have occurred and be continuing with
respect to the Borrower, in which case the procedures specified in Section 3.4
for funding by L/C Participants shall apply) constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of
ABR Loans in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under this
Article 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of
39
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Issuing Lender. The Borrower agrees that
any action taken or omitted by the Issuing Lender under or in connection with
any Letter of Credit or the related drafts or documents, if done in the absence
of gross negligence or willful misconduct and in accordance with the standards
or care specified in the Uniform Commercial Code of the State of New York, shall
be binding on the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
SECTION 3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article 3, the provisions of this Article 3 shall apply.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to
make the Loans and issue or participate in the Letters of Credit, the Borrower
hereby represents and warrants to each Agent and each Lender that:
SECTION 4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at June 30,
2002 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the Loans to be made
and the use of proceeds thereof and (ii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has been prepared
based on the best information available to the Borrower as of the date of
delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of Borrower and its consolidated Subsidiaries as at June 30,
2002, assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of the Borrower as at December
31, 1999, December 31, 2000 and December 31, 2001 and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly the consolidated financial position
of the Borrower as at such date, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Borrower as at June 30, 2002, and
the related unaudited consolidated statements of income and cash flows for the
three-month period ended on such date, present fairly the consolidated financial
position of the Borrower as at such date, and the consolidated results of its
operations and its consolidated cash flows for the three-month period then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and any notes thereto (except as contemplated by
GAAP or in the case of any notes to the financial statements dated as of June
30, 2002), have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). As of the date of the most recent
financial statements referred
40
to in this paragraph (b), the Borrower and its Subsidiaries did not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that were
not reflected in such financial statements, except as set forth on Schedule
4.1(b). During the period from December 31, 2001 to and including the date
hereof, there has been no Disposition by the Borrower of any material part of
its business or Property, except as set forth on Schedule 4.1.
SECTION 4.2 No Change. Since December 31, 2001, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except in the case of clauses (c) and (d) to the extent that the failure to
so qualify and be in good standing or to so comply could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 4.4 and (ii) the filings referred to in Section 4.19. Each Loan
Document has been duly executed and delivered on behalf of each Loan Party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting the enforcement of creditors' rights and to general equity principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries in any material respect and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents). No Requirement of Law
(excluding compliance in the ordinary course of business with the laws and
regulations enforced by the United States Food and Drug Administration and any
compliance with comparable health and safety requirements) or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.6 No Material Litigation. Except as set forth on Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the
41
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby or (b) which could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and sufficient title to enjoy the benefits of, or a valid
leasehold interest in, all its other Property, and none of such Property is
subject to any Lien except as permitted by Section 7.3.
SECTION 4.9 Intellectual Property. Except as set forth on Schedule 4.9, (a)
the Borrower and each of its Subsidiaries owns, or is licensed to use or
otherwise possess a legally enforceable right to use, all Intellectual Property
necessary for the conduct of its business as currently conducted; (b) no
material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim; and (c) to the Borrower's knowledge, the use of
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the valid rights of any Person in any material respect.
SECTION 4.10 Taxes. Each of the Borrower and each of its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
which are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
Property and all other taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate procedures and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
SECTION 4.11 Federal Regulations. No part of the proceeds of any Loans, and
no other extensions of credit hereunder, will be used for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect without
prior written notice to the Administrative Agent or for any purpose which
violates the provisions of the Regulations of the Board. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
SECTION 4.12 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to have a Material
42
Adverse Effect if not paid have been paid or accrued as a liability on the books
of the Borrower or the relevant Subsidiary.
SECTION 4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan
which has resulted or could reasonably be expected to result in a material
liability under ERISA, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any material liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent.
SECTION 4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
SECTION 4.15 Subsidiaries. (a) Schedule 4.15 sets forth as of the Closing
Date the name and jurisdiction of incorporation of each Subsidiary and, as to
each such Subsidiary, the percentage of each class of Capital Stock owned by any
Loan Party.
(b) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to
employees, consultants, officers or directors and directors' qualifying shares)
of any nature relating to the issuance of any Capital Stock of the Borrower or
any Subsidiary, except under the Loan Documents.
SECTION 4.16 Use of Proceeds. The proceeds of the Tranche B Term Loans and
the Revolving Credit Loans shall be used to refinance the Existing Credit
Agreement and for the general corporate purposes, including for acquisitions not
prohibited by this Agreement, of the Borrower and its Subsidiaries. The proceeds
of any Incremental Term Loans, Letters of Credit and Swingline Loans shall be
used for the general corporate purposes, including for acquisitions not
prohibited by this Agreement, of the Borrower and its Subsidiaries.
SECTION 4.17 Environmental Matters. Except as individually or in the
aggregate could not reasonably be expected to result in a Material Adverse
Effect:
(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to have
given rise to a release or a threat of release, as regulated or defined,
under any Environmental Law.
43
(b) The Properties and all operations at the Properties are in
material compliance, and have in the last five years been in material
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "Business"). Neither the
Borrower nor any of its Subsidiaries has contractually assumed any
liability of any other Person under Environmental Laws other than in the
ordinary course of business.
(c) Neither the Borrower nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability, judicial proceeding or governmental or
administrative action or consent decrees or other decrees, consent orders,
administrative orders or other orders, regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the Business, nor does the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any
of the Properties in violation of, or in a manner that could reasonably be
expected to give rise to liability under, any applicable Environmental Law.
(e) There has been no release or threat of release of Materials of
Environmental Concern at or from the properties previously owned or
operated by the Borrower or any Subsidiary (the "Former Properties") during
such period of ownership or operation, or arising from or related to the
operations of the Borrower or any Subsidiary in connection with the Former
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
SECTION 4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents.
SECTION 4.19 Security Documents. The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the
44
Pledged Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements in appropriate form are filed in
the offices specified on Schedule 4.19 and such other filings as are specified
on Schedule 3 to the Guarantee and Collateral Agreement, the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person (except, in the case of Collateral other than Pledged
Stock, Liens permitted by Section 7.3).
SECTION 4.20 Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
SECTION 4.21 Senior Debt. The Obligations constitute "Senior Debt" of the
Borrower under and as defined in the Senior Subordinated Note Indenture. The
obligations of each Subsidiary Guarantor under the Guarantee and Collateral
Agreement constitute "Senior Debt" of such Subsidiary Guarantor under and as
defined in the Senior Subordinated Note Indenture.
ARTICLE V. CONDITIONS PRECEDENT
SECTION 5.1 Conditions to the Effectiveness of this Agreement. The
agreement of each Lender to make the initial extension of credit requested to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement executed and delivered by a duly authorized officer of the
Agents, the Borrower and each Lender listed on Schedule 1.1A, (ii) the
Guarantee and Collateral Agreement, executed and delivered by a duly
authorized officer of the Borrower and each Subsidiary Guarantor and (iii)
an Acknowledgment and Consent in the form attached to the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized officer
of each Issuer (as defined therein), if any, that is not a Loan Party.
(b) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower for its 1999, 2000 and 2001 fiscal
years and (iii) unaudited interim consolidated financial statements of the
Borrower for each fiscal quarter ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (ii) of this
paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition
of the Borrower and its Subsidiaries, as reflected in the financial
statements or projections contained in the Confidential Information
Memorandum or otherwise furnished to the Lenders by or on behalf of the
Borrower.
(c) Approvals. All material governmental approvals required to
consummate the transactions contemplated by the Loan Documents and the
continuing operations of the Borrower and its Subsidiaries shall have been
obtained on satisfactory terms and be in full force and effect, and all
applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would prevent the
financing contemplated hereby.
45
(d) Related Agreements. The Administrative Agent shall have received
in a form reasonably satisfactory, with a copy for each Lender, true and
correct copies, certified as to authenticity by the Borrower, of any
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which the Loan
Parties may be a party.
(e) Fees. The Lenders and the Agents shall have received all fees
required to be paid on or before the Closing Date, and all expenses
required to be paid on or before the Closing Date for which invoices have
been timely presented, including, without limitation, the reasonable fees
and expenses of legal counsel, on or before the Closing Date.
(f) Business Plan. The Lenders shall have received a satisfactory
business plan for fiscal years 2002-2008 and a satisfactory written
analysis of the business and prospects of the Borrower and its Subsidiaries
for the period from the Closing Date through the final maturity of the Term
Loans.
(g) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where assets
of the Borrower and its Subsidiaries are located, and such search shall
reveal no liens on any of the assets of the Borrower or any Subsidiary
except for liens permitted by Section 7.3 or discharged on or prior to the
Closing Date pursuant to documentation satisfactory to the Administrative
Agent.
(h) Environmental Due Diligence. The Administrative Agent shall be
satisfied with the environmental condition of the real property owned or
leased by the Borrower and its Subsidiaries.
(i) Closing Certificate. The Administrative Agent shall have received
a certificate of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions and attachments.
(j) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Sullivan & Cromwell, counsel to the
Borrower and its Subsidiaries, substantially in the form of Exhibit
E-1;
(ii) the legal opinion of Daniel S. Jonas, general counsel of the
Borrower and its Subsidiaries, substantially in the form of Exhibit
E-2;
(k) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof and (ii) each
promissory note (if any) pledged to the Administrative Agent pursuant to
the Guarantee and Collateral Agreement endorsed (without recourse) in blank
(or accompanied by an executed transfer form in blank) by the pledgor
thereof.
(l) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected
46
Lien on the Collateral described therein, prior and superior in right to
any other Person (other than with respect to Liens expressly permitted by
Section 7.3), shall be in proper form for filing, registration or
recordation.
(m) Insurance. The Administrative Agent shall be satisfied with the
insurance program of the Borrower and its Subsidiaries and shall have
received insurance certificates satisfying the requirements of Section 6.5.
(n) The Administrative Agent shall be satisfied with all labor,
pension, regulatory, health and safety, litigation, accounting and tax
matters relating to the Borrower and its Subsidiaries.
(o) The Borrower shall be in compliance with the financial covenants
in Section 7.1 as of the most recently completed fiscal quarter for which
financial statements have been delivered to the Lenders on a pro forma
basis assuming that the financing had been effected on the first day of the
most recently completed four fiscal quarters for which financial statements
have been delivered to the Lenders, no Default or Event of Default shall
occur or be continuing and the Borrower shall have provided a certificate
to the Administrative Agent in reasonable detail to the effect of the
foregoing.
(p) The Borrower shall have paid in full all outstanding obligations
under the Existing Credit Agreement or arrangements satisfactory to the
Administrative Agent shall have been made for the refinancing thereof on
the Closing Date.
SECTION 5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
ARTICLE VI. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, the Borrower shall and shall cause
each of its Subsidiaries to:
SECTION 6.1 Financial Statements. Furnish to each Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or
like qualification or
47
exception, or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein, and provided that the financial statements referred to in
Section 6.1(b) need not contain footnotes).
SECTION 6.2 Certificates; Other Information. Furnish to each Agent and
each Lender, or, in the case of clause (g), to the Administrative Agent for
the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by the
Borrower and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year
of the Borrower, as the case may be, (y) to the extent not previously
disclosed to the Administrative Agent, a listing of any county or state
within the United States where any Loan Party keeps inventory or equipment
and of any Intellectual Property acquired by any Loan Party since the date
of the most recent list delivered pursuant to this clause (y) (or, in the
case of the first such list so delivered, since the Closing Date) and (z)
any change of jurisdiction of organization of any Loan Party;
(c) as soon as available, and in any event no later than 45 days after
the end of each fiscal year of the Borrower, a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year, and the related consolidated statements of projected cash
flow, projected changes in financial position and projected income), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
48
(d) within 45 days (and 90 days in the case of the end of a fiscal
year) after the end of each fiscal quarter of the Borrower, either (i) a
Form 10-Q or 10-K for the Borrower and its Subsidiaries for such fiscal
quarter, which contains a narrative discussion and analysis of the
financial condition and results of operations of the Borrower and its
Subsidiaries for such fiscal quarter and for the period from the beginning
of the then current fiscal year to the end of such fiscal quarter, as
compared to the portion of the Projections covering such periods and to the
comparable periods of the previous year, or (ii) such narrative discussion
and analysis;
(e) no later than 5 Business Days prior to the effectiveness thereof,
copies of any proposed amendment, supplement, waiver or other modification
with respect to the Senior Subordinated Note Indenture;
(f) (i) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders of
any class of its debt securities or public equity securities and (ii)
within five days after the same are filed, copies of all financial
statements and periodic reports which the Borrower may make to, or file
with, the SEC, provided that the Borrower shall be deemed to have complied
with this clause (f)(ii) if the Borrower provides written notice (which may
be in electronic form) of the making or filing of any such financial
statements or reports and the same is continuously available on "EDGAR",
the Electronic Data Gathering Analysis and Retrieval system of the SEC, or
"http://www.sec.gov/edgarhp.htm"; and
(g) promptly, such additional financial and other information as any
Lender may from time to time reasonably request through the Administrative
Agent.
SECTION 6.3 Payment of Obligations. (a) Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate procedures or
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be.
(b) Each of the Loan Parties will pay and discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
material taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well as all claims
of any kind (including, without limitation, claims for labor, materials and
supplies) against or with respect to the Collateral, except that no such charge
need be paid if the amount or validity thereof is currently being contested in
good faith by appropriate procedures or reserves in conformity with GAAP with
respect thereto have been provided on the books of such Loan Party and such
proceedings could not reasonably be expected to result in the sale, forfeiture
or loss of any material portion of the Collateral or any interest therein.
SECTION 6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i)
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the case of
clause (ii) above, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 6.5 Maintenance of Property; Insurance. (a) Keep all Property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted; (b)
49
maintain with financially sound and reputable insurance companies insurance on
all its Property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; (c) maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory and Equipment against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to the Administrative Agent and
(ii) insuring such Loan Party against liability for personal injury and property
damage relating to such Inventory and Equipment, such policies to be in such
form and amounts and having such coverage as may be reasonably satisfactory to
the Administrative Agent and the Lenders (all such insurance shall (A) provide
that no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof, (B) name the Administrative
Agent as loss payee, and (C) be reasonably satisfactory in all other respects to
the Administrative Agent); and (d) the Borrower shall deliver to the
Administrative Agent and the Lenders a report of a reputable insurance broker
with respect to such insurance during the month of November in each calendar
year and such supplemental reports with respect thereto as the Administrative
Agent may from time to time reasonably request.
SECTION 6.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants.
SECTION 6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any material Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding directly affecting the Borrower or
any of its Subsidiaries in which the amount sought from the Borrower and
its Subsidiaries is $1,000,000 or more and not covered by insurance or in
which injunctive or similar relief is sought as to which the Borrower or
any of its Subsidiaries has knowledge or reasonably should have knowledge;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; and
50
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
SECTION 6.8 Environmental Laws. (a) Comply with, and make all reasonable
efforts to ensure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and make
all reasonable efforts to ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, except to
the extent that any noncompliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, except to the extent that any
noncompliance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 6.9 Additional Collateral, etc. (a) With respect to any Property
acquired after the Closing Date by the Borrower or any of its Material Domestic
Subsidiaries (other than (x) any Property described in paragraph (b), (c) or (d)
below and (y) any Property subject to a Lien expressly permitted by Section
7.3(g), (m) (if such Lien was granted in a transaction comparable to that
permitted by Section 7.3(g)) or (p)) as to which the Administrative Agent, for
the benefit of the Lenders, does not have a perfected Lien, promptly (i) execute
and deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a security interest in such Property and (ii) take all
actions necessary or reasonably advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in
such Property, subject to no Liens except as permitted by Section 7.3, including
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any real property having a purchase
price (together with improvements thereof) of at least $5,000,000 acquired after
the Closing Date by the Borrower or any of its Material Domestic Subsidiaries
(other than any such real property subject to a Lien expressly permitted by
Section 7.3(g)), promptly (i) execute and deliver a first priority mortgage in a
form reasonably satisfactory to the Administrative Agent in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real
property, subject to no Liens except as permitted by Section 7.3, (ii) if
requested by the Administrative Agent, provide the Lenders with (x) title and
extended coverage insurance covering such real property in an amount equal to
the purchase price of such real estate as well as a current ALTA survey thereof,
together with a surveyor's certificate and (y) any consents or estoppels
reasonably deemed necessary or advisable by the Administrative Agent in
connection with such mortgage or deed of trust, each of the foregoing in form
and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent a
legal opinion relating to the enforceability of such mortgage which opinion
shall be in form and substance and with customary exceptions and qualifications,
and from counsel, reasonably satisfactory to the Administrative Agent.
51
(c) With respect to any new Subsidiary (other than any non-Material
Domestic Subsidiary, non-Material Foreign Subsidiary and Excluded Foreign
Subsidiary) created or acquired after the Closing Date by the Borrower
(which, for the purposes of this paragraph (c), shall include any existing
Subsidiary that becomes a Material Domestic Subsidiary or that ceases to be
an Excluded Foreign Subsidiary and is a Material Foreign Subsidiary) or any
of its Subsidiaries, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent deems necessary or reasonably advisable in order to
grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the Borrower or such Subsidiary,
as the case may be, (iii) cause such new Subsidiary (A) to become a party
to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or reasonably advisable to grant to the Administrative Agent for
the benefit of the Lenders a perfected first priority security interest in
the Collateral described in the Guarantee and Collateral Agreement with
respect to such new Subsidiary, subject to no Liens except as permitted by
Section 7.3, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form
and substance and with customary exceptions and qualifications, and from
counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary which is a
Material Foreign Subsidiary created or acquired after the Closing Date by
the Borrower or any of its Subsidiaries (which, for the purposes of this
paragraph (d), shall include any existing Excluded Foreign Subsidiary that
becomes a Material Foreign Subsidiary), promptly (i) execute and deliver to
the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or reasonably
advisable in order to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the Capital
Stock of such new Subsidiary which is owned by the Borrower or any of its
Subsidiaries (provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Subsidiary be required to be so
pledged), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, if such Capital Stock is certificated,
together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may
be, and take such other action as may be necessary or, in the opinion of
the Administrative Agent, desirable to perfect the Lien of the
Administrative Agent thereon, and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance and
with customary exceptions and qualifications, and from counsel, reasonably
satisfactory to the Administrative Agent.
SECTION 6.10 Senior Debt. Insure that all the Obligations constitute
"Senior Debt" of the Borrower under and as defined in the Senior Subordinated
Note Indenture, and the obligations of each Subsidiary Guarantor under the
Guarantee and Collateral Agreement constitute "Senior Debt" of such Subsidiary
Guarantor under and as defined in the Senior Subordinated Note Indenture. The
parties hereto acknowledge and agree that the borrowing of the Loans is
permitted under the Senior Subordinated Note Indenture by virtue of the first
paragraph of Section 4.09 of the Senior Subordinated Note Indenture.
SECTION 6.11 Additional Covenants Relating to Collateral. (a) If any amount
in excess of $500,000 payable under or in connection with any of the Collateral
shall be or become evidenced by any Instrument or Chattel Paper, deliver such
Instrument or Chattel Paper immediately to
52
the Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to the Guarantee and
Collateral Agreement.
(b) Not, except upon 15 days' prior written notice to the Administrative
Agent and delivery to the Administrative Agent of (A) all additional executed
financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for in the Guarantee and Collateral Agreement, and
(B) if applicable, a written supplement to Schedule 5 to the Guarantee and
Collateral Agreement showing any additional location at which Inventory or
Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5 to the Guarantee and
Collateral Agreement (other than mobile goods and Inventory and
Equipment located temporarily in a UCC financing statement filing
jurisdiction the aggregate fair market value of which is less than
$50,000);
(ii) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4 of the
Guarantee and Collateral Agreement; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent
in connection with the Guarantee and Collateral Agreement would become
misleading.
(c) Advise the Administrative Agent and the Lenders promptly, in reasonable
detail, of:
(i) any Lien (other than security interests created hereby or
Liens permitted under Section 7.3) on any material portion of the
Collateral which would adversely affect the ability of the
Administrative Agent to exercise any of its remedies hereunder in any
material respect; and
(ii) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of
the Collateral or on the security interests created hereby.
SECTION 6.12 Interest Rate Protection. In the case of the Borrower, at such time
and from time to time as reasonably determined by the Administrative Agent,
enter into Swap Agreements with respect to floating rate obligations in respect
of an aggregate principal amount of Term Loans, and at such market rates and on
terms and conditions, reasonably satisfactory to the Administrative Agent.
ARTICLE VII. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
SECTION 7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as
at the last day of any period of four consecutive fiscal quarters of the
Borrower ending with any fiscal quarter set forth below to exceed the ratio set
forth below opposite such fiscal quarter:
53
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
September 30, 2002 3.75 to 1.00
December 31, 2002 3.75 to 1.00
March 31, 2003 3.75 to 1.00
June 30, 2003 3.75 to 1.00
September 30, 2003 3.75 to 1.00
December 31, 2003 3.75 to 1.00
March 31, 2004 3.75 to 1.00
June 30, 2004 3.50 to 1.00
September 30, 2004 3.50 to 1.00
December 31, 2004 3.50 to 1.00
March 31, 2005 3.50 to 1.00
June 30, 2005 3.50 to 1.00
September 30, 2005 3.50 to 1.00
December 31, 2005 3.25 to 1.00
March 31, 2006 3.25 to 1.00
June 30, 2006 3.25 to 1.00
September 30, 2006 3.25 to 1.00
December 31, 2006 3.25 to 1.00
March 31, 2007 3.25 to 1.00
June 30, 2007 3.25 to 1.00
September 30, 2007 3.25 to 1.00
December 31, 2007 3.00 to 1.00
March 31, 2008 3.00 to 1.00
June 30, 2008 3.00 to 1.00
September 30, 2008 3.00 to 1.00
December 31, 2008 3.00 to 1.00
March 31, 2009 3.00 to 1.00
June 30, 2009 3.00 to 1.00
September 30, 2009 3.00 to 1.00
December 31, 2009 3.00 to 1.00
(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio for any period of four consecutive fiscal quarters of the
Borrower ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Consolidated
------------
Fixed Charge Coverage
---------------------
Fiscal Quarter Ratio
-------------- -----
September 30, 2002 2.50 to 1.00
December 31, 2002 2.50 to 1.00
March 31, 2003 2.50 to 1.00
June 30, 2003 2.50 to 1.00
September 30, 2003 2.50 to 1.00
December 31, 2003 3.25 to 1.00
March 31, 2004 3.25 to 1.00
June 30, 2004 3.25 to 1.00
54
September 30, 2004 3.25 to 1.00
December 31, 2004 3.50 to 1.00
March 31, 2005 3.50 to 1.00
June 30, 2005 3.50 to 1.00
September 30, 2005 3.50 to 1.00
December 31, 2005 4.00 to 1.00
March 31, 2006 4.00 to 1.00
June 30, 2006 4.00 to 1.00
September 30, 2006 4.00 to 1.00
December 31, 2006 4.00 to 1.00
March 31, 2007 4.00 to 1.00
June 30, 2007 4.00 to 1.00
September 30, 2007 4.00 to 1.00
December 31, 2007 4.00 to 1.00
March 31, 2008 4.00 to 1.00
June 30, 2008 and thereafter 3.50 to 1.00
(c) Consolidated Senior Debt Leverage Ratio. Permit the Consolidated Senior
Debt Leverage Ratio for any period of four consecutive fiscal quarters of the
Borrower ending with any fiscal quarter set forth below to exceed the ratio set
forth below opposite such fiscal quarter:
Fiscal Quarter Consolidated Senior
-------------- -------------------
Debt Leverage Ratio
-------------------
September 30, 2002 to March 31, 2004 2.75 to 1.00
Thereafter 2.50 to 1.00
(d) Maintenance of Net Worth. Permit, as of the end of any fiscal quarter
during any fiscal year of the Borrower, the sum of (x) Consolidated Net Worth
plus (y) 75% of Consolidated Net Income since June 30, 2002 plus (z) Net Cash
Proceeds from the sale of Capital Stock of the Borrower on a cumulative basis
after June 30, 2002 to be less than $295,000,000.
SECTION 7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary;
(c) Indebtedness secured by Liens permitted by Section 7.3(g) in an
aggregate principal amount not to exceed $7,500,000 at any one time outstanding;
55
(d) Capital Lease Obligations in an aggregate principal amount not to
exceed $5,000,000 at any one time outstanding;
(e) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(e) and any refinancings, refundings, renewals or extensions thereof (without
any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Borrower or
any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(g) (i) Indebtedness of the Borrower in respect of the Senior Subordinated
Notes and (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of
such Indebtedness; provided that such Guarantee Obligations are subordinated to
the same extent as the obligations of the Borrower in respect of the Senior
Subordinated Notes;
(h) Indebtedness in an aggregate principal amount not to exceed $900,000
owed to the Empire State Development Authority, and any refinancings,
refundings, renewals or extensions thereof (without any increase in the
principal amount thereof);
(i) Indebtedness of the Borrower or its Subsidiaries on account of
industrial revenue bonds in an aggregate principal amount not to exceed
$10,000,000 at any one time outstanding;
(j) guarantees made in the ordinary course of business by the Borrower or
any of its Subsidiaries of lease obligations of their customers in respect of
equipment sold by the Borrower or any of its Subsidiaries to a third party and
then leased to such customer in an aggregate amount outstanding at any time not
to exceed $10,000,000;
(k) Indebtedness in respect of letters of credit (not otherwise permitted
under this Section 7.2) outstanding in the ordinary course of business in an
aggregate face amount not to exceed $3,000,000;
(l) Indebtedness of any Wholly Owned Foreign Subsidiary to the Borrower or
any other Subsidiary (so long as no Default or Event of Default shall have
occurred and be continuing at the time of the incurrence of such Indebtedness),
provided that (x) the requirements of Section 6.9 are satisfied and (y) the
aggregate principal amount of such Indebtedness at any time outstanding shall
not exceed $25,000,000 less the sum of (A) the aggregate fair market value of
any Property Disposed of to a Wholly Owned Foreign Subsidiary pursuant to
Section 7.5(e) and (B) the aggregate amount of all investments made in such
Foreign Subsidiaries pursuant to Section 7.8(i), and provided, further, that any
Indebtedness permitted by this Section 7.2(l) shall be evidenced by a note or
similar instrument and pledged in accordance with Section 6.9 and the Guarantee
and Collateral Agreement;
(m) additional Indebtedness of the Borrower or any of its Subsidiaries in
an aggregate principal amount (for the Borrower and all Subsidiaries) not to
exceed $15,000,000 at any one time outstanding;
(n) Indebtedness in an aggregate principal amount not to exceed $24,000,000
incurred in connection with its acquisition (the "Largo Acquisition") of
approximately 213,000 square feet of facilities in Largo, Florida, including
certain buildings previously leased by Linvatec, and any refinancings,
refundings, renewals or extensions thereof (without an increase in the principal
amount thereof);
56
(o) Indebtedness incurred in connection with a Receivables Transfer Program
in an aggregate principal amount not to exceed $65,000,000; and
(p) Permitted Subordinated Indebtedness, provided that the Borrower and its
Subsidiaries are in compliance with the financial covenants contained in Section
7.1, computed on a pro forma basis as at the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available.
SECTION 7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or charges not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
supplier's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith by appropriate proceedings and Liens securing judgments to the
extent not constituting an Event of Default pursuant to Section 8(h);
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the Property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f) (and
any replacements or extensions thereof), securing Indebtedness permitted by
Section 7.2(e), provided that no such Lien is spread to cover any additional
Property after the Closing Date and that the amount of Indebtedness secured
thereby is not increased;
(g) Liens upon real and/or tangible personal Property acquired after the
date hereof (by purchase, construction or otherwise) by the Borrower or any of
its Subsidiaries, each of which Liens either (i) existed on such Property before
the time of its acquisition and was not created in anticipation thereof or (ii)
was created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property and permitted by Section 7.2; provided that (A)
no such Lien shall extend to or cover any Property of the Borrower or such
Subsidiary other than the Property so acquired or financed, and (B) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed 80% of the fair market value (as determined in good faith by a
Responsible Officer of the Borrower) of such Property at the time it was
acquired (by purchase, construction or otherwise);
57
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(j) Liens securing Indebtedness permitted by Section 7.2(h) in respect of a
leasehold interest of the Borrower or its Subsidiaries in a facility located in
Rome, New York;
(k) Liens arising from precautionary UCC financing statement filings
regarding operating leases or consignment arrangements entered into by the
Borrower or its Subsidiaries in the ordinary course of business;
(l) Liens in favor of banking institutions encumbering the deposits
(including the right of setoff) held by such banking institutions in the
ordinary course of business and which are within the general parameters
customary in the banking industry;
(m) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by Section 7.2,
provided that (i) such Liens existed at the time such corporation became a
Subsidiary and were not created in anticipation thereof, (ii) any such Lien is
not spread to cover any additional property or assets of such corporation after
the time such corporation becomes a Subsidiary, and (iii) the amount of
Indebtedness secured thereby is not increased;
(n) Liens not otherwise permitted by this Section 7.3 so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the date such
Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $5,000,000 at any one time;
(o) Liens securing Indebtedness permitted by Section 7.2(n) on the real
property acquired in or otherwise related to the Largo Acquisition;
(p) Liens on accounts receivable or related ancillary rights and assets
sold, transferred, encumbered or otherwise disposed of, or purported to have
been sold, transferred, encumbered or otherwise disposed of pursuant to a
Receivables Transfer Program in accordance with Section 7.5(k); and
(q) Liens in the nature of escrow arrangements for deferred payments to be
made in connection with a Permitted Business Acquisition to the extent such
payments constitute amounts permitted under Section 7.8(k) and the rights of any
beneficiary thereunder.
SECTION 7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or a substantial part
of its Property or business except:
(a) any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall be the continuing or
surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any Wholly Owned
Subsidiary Guarantor;
58
(c) any Foreign Subsidiary of the Borrower may be merged or consolidated
with or into any other Foreign Subsidiary (provided that if either such
Subsidiary is a Wholly Owned Foreign Subsidiary, such Wholly Owned Foreign
Subsidiary shall be the continuing or surviving corporation);
(d) any Foreign Subsidiary of the Borrower may dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to any Wholly Owned Foreign
Subsidiary of the Borrower; and
(e) to the extent permitted by Section 7.5.
SECTION 7.5 Limitation on Sale of Assets. Dispose of any of its Property or
business (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property in the ordinary course
of business;
(b) the sale or other Disposition of inventory in the ordinary course of
business;
(c) Dispositions permitted by Section 7.4(b) and 7.4(d);
(d) the sale or issuance of any Subsidiary's Capital Stock to the Borrower
or any Wholly Owned Subsidiary Guarantor;
(e) so long as no Default or Event of Default shall have occurred and be
continuing, Dispositions of Property from the Borrower or any Subsidiary
Guarantor to any Wholly Owned Foreign Subsidiary, provided that (x) the
requirements of Section 6.9 are satisfied and (y) the aggregate fair market
value of such Property since the Closing Date does not exceed (I) $10,000,000
minus (II) the sum of (A) the aggregate principal amount of any Indebtedness of
any Foreign Subsidiary at any time outstanding in accordance with Section 7.2(l)
and (B) the aggregate amount of all investments in any Foreign Subsidiary made
pursuant to Section 7.8(i);
(f) any Asset Sale (including any sale and leaseback transactions permitted
by Section 7.11) or Recovery Event; provided that the aggregate fair market
value of all assets sold in connection with Asset Sales in reliance on this
clause (f) since the Closing Date shall not exceed the Permitted Asset Sale
Amount then in effect, and provided, further that the requirements of Section
2.12(b) are complied with in connection with such Asset Sale;
(g) monetary payments made in the ordinary course of business;
(h) the sale or discount without recourse of accounts receivable arising in
the ordinary course of business of the Borrower and its Subsidiaries in
connection with the compromise or collection thereof;
(i) the sale or issuance of a minimal number of any Foreign Subsidiary's
Capital Stock to a foreign national to the extent required by local law in a
jurisdiction outside the United States;
(j) any Disposition of Property or series of related Dispositions of
Property which yields net proceeds to the Borrower or any of its Subsidiaries
(valued at the initial principal amount thereof in
59
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) of less than
$200,000; and
(k) the sale, transfer, encumbrance or other disposition of accounts
receivable or related ancillary rights and assets pursuant to a Receivables
Transfer Program.
Any Collateral which is sold, transferred or otherwise conveyed pursuant to
this Section 7.5 to a Person other than the Borrower and its Subsidiaries shall,
upon the consummation of such sale in accordance with the terms of this
Agreement and the other Loan Documents, be released from the Liens granted
pursuant to the Security Documents and each Lender hereby authorizes and
instructs the Administrative Agent to take such action as the Borrower
reasonably may request to evidence such release.
SECTION 7.6 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in Capital Stock) of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"), except:
(a) that any Subsidiary may make Restricted Payments to the Borrower
or any Wholly Owned Subsidiary Guarantor;
(b) (A) repurchases of Capital Stock made in order to fulfill the
obligations of the Borrower or any Subsidiary under an employee or director
stock purchase plan or similar plan covering employees of the Borrower or
any Subsidiary as from time to time in effect and (B) cash payments made in
lieu of issuing fractional shares of Borrower's Capital Stock, in an
aggregate amount for purposes of clauses (A) and (B) not to exceed
$5,000,000 per year;
(c) redemptions of Capital Stock in connection with a rights plan
adopted by the Board of Directors of the Borrower in an aggregate amount
equal to $5,000,000 since the Closing Date; and
(d) that the Borrower may make Restricted Payments (i) in any fiscal
year in an aggregate amount not to exceed $5,000,000, provided that any
such amount referred to in this clause (i), if not so expended in the
fiscal year for which it is permitted, may be carried over for expenditure
in any succeeding fiscal year or (ii) with any Available Excess Cash Flow.
SECTION 7.7 Limitation on Capital Expenditures. Make or commit to make (by
way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure (other than any Capital Expenditure in connection with a Permitted
Business Acquisition the amount of which is included in the calculation
thereof), except (a) Capital Expenditures of the Borrower and its Subsidiaries
in the ordinary course of business not exceeding $20,000,000 per annum; provided
that (i) any such amount referred to above, if not so expended in the fiscal
year for which it is permitted, may be carried over for expenditure in, but only
in, the next succeeding fiscal year and (ii) Capital Expenditures made pursuant
to this clause (a) during any fiscal year shall be deemed made, first, in
respect of amounts carried over from the prior fiscal year pursuant to subclause
(i) above and, second, in respect of amounts permitted for such fiscal year as
provided above and (b) Capital Expenditures made with the proceeds of any
Reinvestment Deferred Amount.
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SECTION 7.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a business
unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees or directors of the Borrower or
its Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and its Subsidiaries not to exceed
$2,000,000 at any one time outstanding, provided, however that this
provision shall not limit key man insurance;
(e) the investment by the Borrower of accounts receivable or related
rights and assets pursuant to a Receivables Transfer Program into a
Subsidiary of the Borrower;
(f) investments made by the Borrower or any of its Subsidiaries with
the proceeds of any Reinvestment Deferred Amount;
(g) investments by the Borrower or any of its Subsidiaries in the
Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) investments (including debt obligations and Capital Stock) by the
Borrower and its Subsidiaries received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and
be continuing, the Borrower and any Subsidiary may make investments in, or
create, any Wholly-Owned Foreign Subsidiary (by way of capital contribution
or otherwise), provided that (x) the requirements of Section 6.9 are
satisfied and (y) the aggregate amount of all investments in such Foreign
Subsidiaries shall not exceed (I) $25,000,000 since the Closing Date (plus
any Available Excess Cash Flow) minus (II) the sum of (A) the aggregate
principal amount of any Indebtedness of any Foreign Subsidiary at any such
time outstanding in accordance with Section 7.2(l) and (B) the aggregate
fair market value of any Dispositions of Property from the Borrower or any
Subsidiary Guarantor to any Foreign Subsidiary in accordance with Section
7.5(e), provided that (i) no more than $10,000,000 of such amount shall
represent investments made in Capital Stock of any such Wholly-Owned
Foreign Subsidiary (except that investments may be made in such Capital
Stock with Available Excess Cash Flow above this $10,000,000 limit) and
(ii) any such investment that constitutes Indebtedness shall be represented
by a note or similar instrument and pledged pursuant to Section 6.9 and the
Guarantee and Collateral Agreement;
(j) in addition to investments otherwise expressly permitted by this
Section 7.8, so long as no Default or Event of Default shall have occurred
and be continuing, investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $15,000,000 since the
Closing Date; and
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(k) other investments constituting Permitted Business Acquisitions for
aggregate consideration not to exceed (i) $50,000,000 (plus any Available
Excess Cash Flow), in any one calendar year, of Indebtedness, (ii)
$75,000,000 (plus any Available Excess Cash Flow), in any one calendar
year, of Capital Stock, and (iii) with any combination thereof within such
amounts specified in clauses (i) and (ii); provided that if any earn-out
payment is contemplated in connection with any such Permitted Business
Acquisition, then, for the purposes of this Section 7.8(k), such earn-out
payment shall constitute consideration as part of a Permitted Business
Acquisition in the calendar year in which such payment is made and be
subject to the basket limitations above at the time of payment thereof,
regardless of the date such Permitted Business Acquisition is consummated.
SECTION 7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any payment, prepayment, repurchase
or redemption of or otherwise defease or segregate funds with respect to (x) the
Senior Subordinated Notes (other than scheduled interest payments required to be
made in cash or pursuant to any refinancing of the Senior Subordinated Notes
permitted hereunder) or (y) Permitted Subordinated Indebtedness (other than
scheduled interest payments required to be made in cash), other than (i) with
any Available Excess Cash Flow or (ii) with Net Cash Proceeds of the sale or
issuance of Capital Stock by the Borrower or any of its Subsidiaries which
remain available after application of the required percentage of such Net Cash
Proceeds to the prepayment of the Term Loans in accordance with Section
2.12(a)(i), if required thereunder;
(b) amend, modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Senior Subordinated Notes or any Permitted Subordinated Indebtedness (i) which
amends or modifies the subordination provisions contained therein; (ii) which
shortens the fixed maturity, or increases the rate or shortens the time of
payment of interest on, or increases the amount or shortens the time of payment
of any principal or premium payable whether at maturity, at a date fixed for
prepayment or by acceleration or otherwise of such Indebtedness, or increases
the amount of, or accelerates the time of payment of, any fees payable in
connection therewith; (iii) which relates to the affirmative or negative
covenants, events of default or remedies under the documents or instruments
evidencing such Indebtedness and the effect of which is to subject the Borrower
or any of its Subsidiaries, to any more onerous or more restrictive provisions;
or (iv) which otherwise adversely affects the interests of the Lenders as senior
creditors or the interests of the Lenders under this Agreement or any other Loan
Document in any respect;
(c) designate any Indebtedness (other than the Obligations) as "Designated
Senior Indebtedness" (or similar defined term) for the purposes of the Senior
Subordinated Note Indenture; or
(d) amend its certificate of incorporation in any manner materially adverse
to the Lenders without the prior written consent of the Required Lenders.
SECTION 7.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is
(a) not otherwise prohibited under this Agreement and (b) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate, except that this Section 7.10 shall not
prohibit the sale, transfer, encumbrance or other disposition by the Borrower to
a Subsidiary of the Borrower of accounts receivable or related ancillary rights
or assets, or interests therein, pursuant to a Receivables Transfer Program.
62
SECTION 7.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary, except in respect of
assets the aggregate fair market value of which does not exceed $10,000,000
since the Closing Date.
SECTION 7.12 Limitation on Changes in Fiscal Periods. Change the Borrower's
method of determining fiscal quarters or fiscal years.
SECTION 7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to
exist or become effective any agreement which prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any Guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) the Senior Subordinated Note
Indenture, (c) any agreements governing any purchase money Liens, Capital Lease
Obligations otherwise permitted hereby or Liens permitted by Sections 7.3(f) or
(m) (in which case, any prohibition or limitation shall only be effective
against the assets financed thereby) and (d) an agreement entered into in
connection with a Receivables Transfer Program that prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon the accounts receivable or related ancillary
rights or assets, or interests therein, sold, transferred, encumbered or
otherwise disposed of pursuant to such Receivable Transfer Program.
SECTION 7.14 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
dividends or make any other distributions in respect of any Capital Stock of
such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to, or other
Investments in, the Borrower or any other Subsidiary of the Borrower or (c)
transfer any of its assets to the Borrower or any other Subsidiary of the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents or the Senior
Subordinated Note Indenture, (ii) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement which has been entered into in connection with
the Disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary and (iii) any restrictions imposed pursuant to a Receivables
Transfer Program with respect to a Subsidiary established solely for the purpose
of a Receivables Transfer Program.
SECTION 7.15 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower or any of its Subsidiaries is engaged on the date of this Agreement
or which are reasonably related thereto.
ARTICLE VIII. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation
or any other amount payable hereunder or under any other Loan Document within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
63
(b) Any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or which is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made; or
(c) Any Loan Party shall default in the observance or performance of any
agreement contained in clause (i) of Section 6.4(a) (with respect to the
Borrower only), Section 6.7(a) or Article 7; or
(d) Any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default in making any
payment of any principal of any Indebtedness (including, without limitation, any
Guarantee Obligation, but excluding the Loans) on the scheduled or original due
date with respect thereto; or (ii) default in making any payment of any interest
on any such Indebtedness beyond the period of grace (not to exceed 31 days), if
any, provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided that a default,
event or condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time, one
or more defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $5,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
64
above; or (v) the Borrower or any of its Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition which shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could, in
the sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not fully
covered by insurance as to which the relevant insurance company has acknowledged
coverage) of $5,000,000 or more, and all such judgments or decrees shall not
have been paid, vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents in respect
of material assets shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force and effect or any
Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) (i) Any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), (A) shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 25% of the outstanding common stock of the Borrower or (B) shall obtain the
power (whether or not exercised) to elect a majority of the Borrower's
directors; (ii) the board of directors of the Borrower shall cease to consist of
a majority of Continuing Directors; or (iii) a Specified Change of Control shall
occur; or
(l) The Senior Subordinated Notes or the guarantees thereof shall cease,
for any reason, to be validly subordinated to the Obligations or the obligations
of the Subsidiary Guarantors under the Guarantee and Collateral Agreement, as
the case may be, as provided in the Senior Subordinated Note Indenture, or any
Loan Party, any Affiliate of any Loan Party, the trustee in respect of the
Senior Subordinated Notes or the holders of at least 25% in aggregate principal
amount of the Senior Subordinated Notes shall so assert; or
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(m) Any Permitted Subordinated Indebtedness or any guarantee thereof shall
cease, for any reason, to be validly subordinated to the Obligations or the
obligations of the Subsidiary Guarantors under the Guarantee and Collateral
Agreement, as the case may be, as provided in the documents evidencing such
Permitted Subordinated Indebtedness, or any Loan Party, any Affiliate of any
Loan Party, the trustee, if any, in respect of such Permitted Subordinated
Indebtedness or the holders of at least 25% in aggregate principal amount of
such Permitted Subordinated Indebtedness shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
ARTICLE IX. THE AGENTS
SECTION 9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
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SECTION 9.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
SECTION 9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
SECTION 9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by the Administrative Agent. The Agents may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or,
if so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
SECTION 9.5 Notice of Default. No Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders); provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
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SECTION 9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party which may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
SECTION 9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section 9.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section 9.7 shall
survive the payment of the Loans and all other amounts payable hereunder.
SECTION 9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent was not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit
issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
SECTION 9.9 Successor Agents. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which
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successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Any Documentation Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as
Documentation Agent hereunder, whereupon the duties, rights, obligations and
responsibilities hereunder shall automatically be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the
Documentation Agent, the Administrative Agent or any Lender. After any retiring
Agent's resignation as Agent, the provisions of this Article 9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
SECTION 9.10 Authorization to Release Liens. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition which is permitted by this Agreement, which has been
consented to in accordance with Section 10.1 or in accordance with Section
10.13.
SECTION 9.11 Syndication Agent; Documentation Agent. The Syndication Agent
and the Documentation Agents, in their capacities as such, shall have no duties
or responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.
ARTICLE X. MISCELLANEOUS
SECTION 10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders, or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any
interest, fee or letter of credit commission payable hereunder or extend the
scheduled date of any payment thereof, permit the duration of any Interest
Period to be beyond six months, or increase the amount or extend the expiration
date of any Lender's Commitment in each case without the consent of each Lender
directly affected thereby; (ii) amend, modify or waive any provision of this
Section 10.1 or reduce any percentage specified in the definition of Required
Lenders, consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, or
release all or substantially all of the
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Collateral, release a significant Subsidiary Guarantor from its obligations
under the Guarantee and Collateral Agreement, in each case without the written
consent of all Lenders; (iii) reduce the percentage specified in the definition
of Majority Facility Lenders without the written consent of all Lenders under
each affected Facility; (iv) amend, modify or waive any provision of Section
2.18 without the written consent of the Majority Facility Lenders in respect of
each Facility adversely affected thereby, (v) reduce the amount of Net Cash
Proceeds or Excess Cash Flow required to be applied to prepay Loans under this
Agreement without the written consent of the Majority Facility Lenders with
respect to each affected Facility, (vi) amend, modify or waive any provision of
Article 9 without the written consent of the applicable Agents; (vii) amend,
modify or waive any provision of Sections 2.6 and 2.7, without the express
written consent of the Swingline Lender, (viii) amend, modify or waive any
provision of Article 3 without the written consent of the Issuing Lender or (ix)
waive any condition set forth in Section 5.1 or Section 5.2 without the written
consent of the Required Lenders and the Majority Facility Lenders with respect
to the Revolving Credit Facility. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Agents and all future holders
of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Agents shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
Notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Borrower, the Administrative Agent and the Revolving
Credit Lenders providing Extended Revolving Credit Commitments (as defined
below) under the Extended Revolving Credit Facility (as defined below) to permit
the extension of the Revolving Credit Facility beyond the original Revolving
Credit Termination Date (as extended, the "Extended Revolving Credit Facility")
and the Loans thereunder ("Extended Revolving Credit Loans" and the commitments
thereunder, "Extended Revolving Credit Commitments"); provided that (a) no
Default or Event of Default has occurred and is continuing or would result from
any such extension of the Revolving Credit Termination Date, (b) the aggregate
Extended Revolving Credit Commitment shall not exceed the Total Revolving Credit
Commitments in effect immediately prior to any such extension without the
consent of the Required Lenders, (c) no Revolving Credit Lender shall have any
obligation to participate in any extension described in this paragraph unless it
agrees to do so in its sole discretion, (d) the Revolving Credit Commitments of
any nonparticipating Revolving Credit Lender shall terminate and the Revolving
Credit Loans of such Lender shall be due and payable on the original Revolving
Credit Termination Date or such other date specified by Article VIII and (e) all
other terms applicable to such Extended Revolving Credit Loans (other than terms
relating to pricing) shall be substantially identical to those applicable to the
Revolving Credit Loans.
SECTION 10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
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The Borrower: CONMED Corporation
525 French Road
Utica, New York 13502
Attention: Daniel S. Jonas, General Counsel
Robert D. Shallish, Jr., Chief Financial Officer
Telecopy: (315) 793-8929 / (315) 797-0321
Telephone: (315) 624-3208 / (315) 797-8375
The Administrative JPMorgan Chase Bank,
Agent: Loan & Agency Services
One Chase Manhattan Plaza
New York, New York 10005
Attention: Janet Belden
Telecopy: (212) 552-5650
Telephone: (212) 552-7277
with a copy to: JPMorgan Chase Bank
Bridgewater Place
500 Plum Street
Syracuse, New York 13204
Attention: Frederick K. Miller
Telecopy: (315) 478-7466
Telephone: (315) 448-1425
provided that any notice, request or demand to or upon any Agent or the Lenders
shall not be effective until received.
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
SECTION 10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and any other extensions of credit hereunder.
SECTION 10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this
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Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent and
filing and recording fees and expenses, with statements with respect to the
foregoing to be submitted to the Borrower prior to the Closing Date (in the case
of amounts to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender and the Agents for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each
Lender and each Agent harmless from, any and all recording and filing fees or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, each Agent and their
respective officers, directors, trustees, employees, affiliates, agents and
controlling persons (each, an "indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (other than for loss of profits) with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Properties and the reasonable fees and expenses of legal counsel in
connection with claims, actions or proceedings by any indemnitee against any
Loan Party under any Loan Document (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to any indemnitee with respect to indemnified
liabilities to the extent such indemnified liabilities are found by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such indemnitee. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to so waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any indemnitee. All amounts due under this Section 10.5 shall
be payable not later than 10 days after written demand therefor. The agreements
in this Article shall survive repayment of the Loans and all other amounts
payable hereunder.
SECTION 10.6 Successors and Assigns; Participations and Assignments. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby (including any affiliate of the Issuing Lender that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any affiliate of the Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the affiliates of each of the Administrative Agent, the Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
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(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees (each, an "Assignee") all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default has occurred
and is continuing, any other Person; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of (x) any
Revolving Credit Commitment to an Assignee that is a Lender with a
Revolving Credit Commitment immediately prior to giving effect to such
assignment or (y) all or any portion of a Term Loan to a Lender, an
affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender's Commitments or Loans under any Facility, the
amount of the Commitments or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 with respect to the Revolving Credit
Loans or $1,000,000, with respect to the Term Loans (in each case other
than in the case of an assignment of all of a Lender's interests under this
Agreement), unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of each of the assigning Lender's rights and obligations
under this Agreements, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of the Revolving Credit
Commitments or Term Loans.
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (with only one such fee payable in
connection with the simultaneous assignments to or by two or more Approved
Funds that are administered or managed by the same entity or affiliated
entities); and
(D) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.
For the purposes of this Section 10.6, the term "Approved Fund" has the
following meaning:
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"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an affiliate of a
Lender or (c) an entity or an affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) below, from and after the effective date specified in each Assignment
and Assumption the Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.19, 2.20, 2.21 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed
by an assigning Lender and an Assignee, the Assignee's completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders 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 a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby
pursuant to the proviso to the second sentence of Section 10.1 and (2) directly
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be
74
entitled to the benefits of Sections 2.19, 2.20 and 2.21 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section, but to no greater extent than such Lender. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.7(b) as though it were a Lender, but to no greater extent than
such Lender, provided such Participant shall be subject to Section 10.7(a) as
though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment
under Sections 2.19 or 2.20 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. Any Participant that is a Non-U.S. Lender shall not be
entitled to the benefits of Section 2.20 unless such Participant complies with
Section 2.20(d).
(d) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (d) above.
SECTION 10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans or the Reimbursement
Obligations owing to such other Lender, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan and/or of the Reimbursement
Obligations owing to each such other Lender, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
75
SECTION 10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agents or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
SECTION 10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid at its address
set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 10.12 any special, exemplary, punitive or consequential
damages.
SECTION 10.13 Acknowledgements. The Borrower hereby acknowledges that:
76
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement
or any of the other Loan Documents, and the relationship between Agents and
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
SECTION 10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
SECTION 10.15 Confidentiality. Each of the Agents and each Lender agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate of any Lender in each case which is bound by this
Section 10.15, (b) to any Participant or Assignee (each, a "Transferee") or
prospective Transferee which agrees to comply with the provisions of this
Section, (c) to the employees, directors, agents, attorneys, accountants and
other professional advisors of such Lender or its affiliates, (d) upon the
request or demand of any Governmental Authority having jurisdiction over the
such Agent or such Lender, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if required to do so under applicable law in connection
with any litigation or similar proceeding or in litigation to enforce this
Agreement, (g) which has been publicly disclosed other than in breach of this
Section 10.15, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document; provided
that, if reasonably requested by the Borrower, the Administrative Agent and the
Lenders shall make commercially reasonable efforts to determine, and inform the
Borrower of, the Persons who received such non-public information designated as
confidential.
SECTION 10.16 Releases. (a) Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Administrative Agent is
hereby irrevocably authorized by each Lender (without requirement of notice to
or consent of any Lender except as expressly required by Section 10.1) to take
any action requested by the Borrower having the effect of releasing any
Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has
been consented to in accordance with Section 10.1 or (ii) under the
circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the other
Obligations shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding, the Collateral shall be released
from the Liens created by the Security Documents, and the Security Documents and
all obligations (other than those expressly stated to survive such termination)
of the Administrative Agent and each Borrower or Subsidiary thereunder shall
terminate, all without
77
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower and Subsidiaries. At the
request and sole expense of any Borrower or Subsidiary following any such
termination, the Administrative Agent shall deliver to such Borrower or
Subsidiary any Collateral held by the Administrative Agent thereunder, and
execute and deliver to such Borrower or Subsidiary such documents as such
Borrower or Subsidiary shall reasonably request to evidence such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
CONMED CORPORATION
By:__________________________________________
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent and Syndication Agent and as a
Lender
By:__________________________________________
Name:
Title:
CITIBANK, N.A., as
a Documentation Agent and as a Lender
By:__________________________________________
Name:
Title:
CREDIT LYONNAIS, as
a Documentation Agent and as a Lender
By:__________________________________________
Name:
Title:
FLEET NATIONAL BANK, as
a Documentation Agent and as a Lender
By:__________________________________________
Name:
Title:
Exhibit 10.2
================================================================================
GUARANTEE AND COLLATERAL AGREEMENT
made by
CONMED CORPORATION
and certain of its Subsidiaries
in favor of
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of August 28, 2002
================================================================================
Table of Contents
Page
----
Section 1. DEFINED TERMS..............................................................1
1.1 Definitions................................................................1
1.2 Other Definitional Provisions..............................................4
Section 2. Guarantee..................................................................4
2.1 Guarantee..................................................................4
2.2 Right of Contribution......................................................5
2.3 No Subrogation.............................................................5
2.4 Amendments, etc. with respect to the Borrower Obligations..................6
2.5 Guarantee Absolute and Unconditional.......................................6
2.6 Reinstatement..............................................................7
2.7 Payments...................................................................7
Section 3. GRANT OF SECURITY INTEREST.................................................7
Section 4. REPRESENTATIONS AND WARRANTIES.............................................8
4.1 Representations in Credit Agreement........................................8
4.2 Title; No Other Liens......................................................9
4.3 Perfected First Priority Liens.............................................9
4.4 Jurisdiction of Organization; Chief Executive Office.......................9
4.5 Inventory and Equipment....................................................9
4.6 Farm Products..............................................................9
4.7 Investment Property.......................................................10
4.8 Receivables...............................................................10
4.9 Intellectual Property.....................................................10
Section 5. COVENANTS.................................................................11
5.1 Covenants in Credit Agreement.............................................11
5.2 Delivery of Certificated Securities.......................................11
5.3 Maintenance of Perfected Security Interest; Further Documentation.........11
5.4 Investment Property.......................................................12
5.5 Receivables...............................................................13
5.6 Intellectual Property.....................................................13
Section 6. REMEDIAL PROVISIONS.......................................................14
6.1 Certain Matters Relating to Receivables...................................14
6.2 Communications with Obligors; Grantors Remain Liable......................15
6.3 Pledged Stock.............................................................16
6.4 Proceeds to be Turned Over To Administrative Agent........................16
6.5 Application of Proceeds...................................................17
6.6 Code and Other Remedies...................................................17
6.7 Registration Rights.......................................................18
6.8 Deficiency................................................................19
Section 7. THE ADMINISTRATIVE AGENT..................................................19
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc...............19
i
7.2 Duty of Administrative Agent..............................................20
7.3 Execution of Financing Statements.........................................20
7.4 Authority of Administrative Agent.........................................21
Section 8. MISCELLANEOUS.............................................................21
8.1 Amendments in Writing.....................................................21
8.2 Notices...................................................................21
8.3 No Waiver by Course of Conduct; Cumulative Remedies.......................21
8.4 Enforcement Expenses; Indemnification.....................................21
8.5 Successors and Assigns....................................................22
8.6 Set-Off...................................................................22
8.7 Counterparts..............................................................22
8.8 Severability..............................................................23
8.9 Section Headings..........................................................23
8.10 Integration...............................................................23
8.11 GOVERNING LAW.............................................................23
8.12 Submission To Jurisdiction; Waivers.......................................23
8.13 Acknowledgements..........................................................24
8.14 Additional Grantors.......................................................24
8.15 Releases..................................................................24
8.16 WAIVER OF JURY TRIAL......................................................25
SCHEDULES
- ---------
Schedule 1........Notice Addresses
Schedule 2........Investment Property
Schedule 3........Perfection Matters
Schedule 4........Jurisdictions of Organization and Chief Executive Offices
Schedule 5........Inventory and Equipment Locations
Schedule 6........Intellectual Property
ii
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of August 28, 2002, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Grantors"), in favor of JPMorgan Chase
Bank, as Administrative Agent (in such capacity, the "Administrative Agent") for
the banks and other financial institutions or entities (the "Lenders") from time
to time parties to the Credit Agreement, dated as of August 28, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among CONMED Corporation (the "Borrower"), the Lenders, the
Documentation Agents and the Syndication Agent named therein and the
Administrative Agent.
W I T N E S S E T H:
--------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that
includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
Section 1. DEFINED TERMS
1.1 Definitions. (a). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement, and the following terms are used herein as defined in the New
York UCC: Accounts, Certificated Security, Chattel Paper, Documents, Equipment,
Farm Products, General Intangibles, Instruments, Inventory, Letter-of-Credit
Rights and Supporting Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
2
"Borrower Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations and all other
obligations and liabilities of the Borrower (including, without limitation,
interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and Reimbursement Obligations and interest
accruing at the then applicable rate provided in the Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
to the Administrative Agent or any Lender (or, in the case of any Swap
Agreement, any Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, this
Agreement, the other Loan Documents, any Letter of Credit, any Swap Agreement or
any other document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as licensor
or licensee (including, without limitation, those listed in Schedule 6),
granting any material right under any Copyright, including, without limitation,
the grant of rights to manufacture, distribute, exploit and sell materials
derived from any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code of any
applicable jurisdiction and, in any event, including, without limitation, any
demand, time, savings, passbook or like account maintained with a depositary
institution.
"Foreign Subsidiary": any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of any Foreign
Subsidiary.
"Guarantor Obligations": with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this
Agreement (including, without limitation, Section 2) or any other Loan Document
to which such Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by
such Guarantor pursuant to the terms of this Agreement or any other Loan
Document).
"Guarantors": the collective reference to each Grantor other than the
Borrower.
3
"Intellectual Property": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including, without
limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
Grantor to the Borrower or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all "investment
property" as such term is defined in Section 9-102(a)(49) of the New York UCC of
a Grantor (other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting "investment
property" as so defined, all Pledged Notes and all Pledged Stock.
"Issuers": the collective reference to each issuer of any Investment
Property.
"New York UCC": the Uniform Commercial Code as from time to time in effect
in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower Obligations,
and (ii) in the case of each Guarantor, its Guarantor Obligations.
"Owned Intellectual Property": as defined in Section 4.9(a).
"Patents": (i) all letters patent of the United States, any other country
or any political subdivision thereof, all reissues and extensions thereof,
including, without limitation, any of the foregoing referred to in Schedule 6,
(ii) all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in Schedule 6,
and (iii) all rights to obtain any reissues or extensions of the foregoing.
"Patent License": all written agreements providing for the grant by or to
any Grantor of any right to make or have made, use, sell or have sold any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other promissory
notes issued to or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary course
of business).
"Pledged Stock": the shares of Capital Stock listed on Schedule 2, together
with any other shares, stock certificates, options, interests or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this Agreement is in effect;
provided that in no event shall more than 65% of the total outstanding Foreign
Subsidiary Voting Stock of any Foreign Subsidiary be required to be pledged
hereunder.
"Proceeds": all "proceeds" as such term is defined in Section 9-102(a)(64)
of the New York UCC and, in any event, shall include, without limitation, all
dividends or other income from the Investment Property, collections thereon or
distributions or payments with respect thereto.
4
"Receivable": any right to payment for goods sold or leased or for services
rendered, whether or not such right is evidenced by an Instrument or Chattel
Paper and whether or not it has been earned by performance (including, without
limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade dress, service marks,
logos and other distinctive source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.
"Trademark License": any written agreement providing for the grant by or to
any Grantor of any right to use any Trademark, including, without limitation,
any of the foregoing referred to in Schedule 6.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any
part thereof, when used in relation to a Grantor, shall refer to such Grantor's
Collateral or the relevant part thereof.
Section 2. Guarantee
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent or any Lender hereunder.
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(d) The guarantee contained in this Section 2 shall remain in full force
and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower
Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are
terminated
2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are paid in full, no Letter of Credit shall
be outstanding and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 Amendments, etc. with respect to the Borrower Obligations. To the
extent permitted by law, each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment
of any of the Borrower Obligations made by the Administrative Agent or any
Lender may be rescinded by the Administrative Agent or such Lender and any of
the Borrower Obligations continued, and the Borrower Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or
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released by the Administrative Agent or any Lender, and the Credit Agreement and
the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Borrower Obligations
may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Borrower
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Administrative Agent and the Lenders,
on the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or any of the Guarantors with
respect to the Borrower Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Loan Document,
any of the Borrower Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against
the Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Guarantor
under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent or any Lender
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to make any such demand,
to pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Lender against any Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the Borrower Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
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2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid to the Administrative Agent without set-off or counterclaim in Dollars
at the Funding Office.
Section 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative Agent, and
hereby grants to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all other property not otherwise described above;
(m) all books and records pertaining to the Collateral; and
(n) to the extent not otherwise included, all Proceeds, Supporting
Obligations and products of any and all of the foregoing and all
collateral security and guarantees given by any Person with respect
to any of the foregoing;
provided, however, that notwithstanding any of the other provisions set forth in
this Section 3:
(i) this Agreement shall not constitute a grant of a security interest in
any property to the extent that such grant of a security interest is prohibited
by any Requirements of Law of a Governmental Authority, requires a consent not
obtained of any Governmental Authority pursuant to such Requirement of Law or is
prohibited by, or constitutes a breach or default under or results in the
termination of or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to
such property or, in the case of any Investment Property, Pledged Stock or
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Pledged Note, any applicable shareholder or similar agreement, except to the
extent that such Requirement of Law or the term in such contract, license,
agreement, instrument or other document or shareholder or similar agreement
providing for such prohibition, breach, default or termination or requiring such
consent is ineffective under applicable law and
(ii) this Agreement shall not constitute a grant of a security interest in
any property which (a) constitutes Capital Stock of CONMED Receivables
Corporation, its successors and permitted transferees or any other single
purpose corporation formed and operating solely in connection with a Receivables
Transfer Program so long as the grant of a security interest in such Capital
Stock is prohibited thereunder, (b) constitutes any Receivable so long as such
Receivable remains subject to a security interest granted in connection with a
Receivables Transfer Program permitted by the Credit Agreement, (c) constitutes
Capital Stock of GWH, Ltd or Largo Lakes - I Limited Partnership or their
respective successors and permitted transferees so long as such Capital Stock
remains subject to a security interest granted in connection with the Largo
Acquisition or (d) constitutes property of GWH, Ltd or Largo Lakes - I Limited
Partnership or their respective successors and permitted transferees held in
connection with the Largo Acquisition so long as such property remains subject
to a security interest granted in connection with the Largo Acquisition.
Section 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and warrants
to the Administrative Agent and each Lender that:
4.1 Representations in Credit Agreement. In the case of each Guarantor, the
representations and warranties set forth in Article IV of the Credit Agreement
as they relate to such Guarantor or to the Loan Documents to which such
Guarantor is a party , each of which is hereby incorporated herein by reference,
are true and correct, and the Administrative Agent and each Lender shall be
entitled to rely on each of them as if they were fully set forth herein,
provided that each reference in each such representation and warranty to the
Borrower's knowledge shall, for the purposes of this Section 4.1 be deemed to be
a reference to such Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens. No financing statement or other public notice with respect to all
or any part of the Collateral is on file or of record in any public office,
except such as have been filed in favor of the Administrative Agent or as are
permitted by the Credit Agreement. For the avoidance of doubt, it is understood
and agreed that any Grantor may, as part of its business, grant licenses to
third parties to use Intellectual Property owned or controlled by a Grantor. For
purposes of this Agreement and the other Loan Documents, such licensing activity
shall not constitute a "Lien" on such Intellectual Property. Each of the
Administrative Agent and each Lender understands that any such licenses may be
exclusive to the applicable licensees, and such exclusivity provisions may limit
the ability of the Administrative Agent to utilize, sell, Lease or transfer the
related Intellectual Property or otherwise realize value from such Intellectual
Property pursuant hereto.
4.3 Perfected First Priority Liens. The security interests granted pursuant
to this Agreement (a) upon completion of the filings and other actions specified
on Schedule 3 (which, in the case of all filings and other documents referred to
on said Schedule, have been delivered to the Administrative Agent in completed
and duly executed form) will constitute valid perfected security interests in
all of the Collateral
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in favor of the Administrative Agent, for the ratable benefit of the Lenders, as
collateral security for such Grantor's Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor and (b) are prior to all
other Liens on the Collateral in existence on the date hereof except for Liens
permitted by the Credit Agreement.
4.4 Jurisdiction of Organization; Chief Executive Office. On the date
hereof, such Grantor's jurisdiction of organization, identification number from
the jurisdiction of organization (if any), and the location of such Grantor's
chief executive office or sole place of business or principal residence, as the
case may be, are specified on Schedule 4. Such Grantor has furnished to the
Administrative Agent a certified charter, certificate of incorporation or other
organization document and long-form good standing certificate as of a date which
is recent to the date hereof.
4.5 Inventory and Equipment. On the date hereof, the Inventory and the
Equipment (other than mobile goods, samples, loaners or demonstration equipment
and Inventory or Equipment temporarily located in a UCC financing statement
filing jurisdiction the aggregate fair market value of which is less than
$100,000 per jurisdiction) are kept at the locations listed on Schedule 5.
4.6 Farm Products. None of the Collateral constitutes, or is the Proceeds
of, Farm Products.
4.7 Investment Property. (a) The shares of Pledged Stock pledged by such
Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(c) Each of (i) the Pledged Notes in excess of $1,000,000 and (ii) any
Intercompany Note issued in connection with Indebtedness incurred in accordance
with Sections 7.8(i) and 7.2(l) of the Credit Agreement constitutes the legal,
valid and binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good and
marketable title to, the Investment Property pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.8 Receivables. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent, to the extent required
by the Credit Agreement.
(b) Receivables as to which a Governmental Authority is the obligor do not
exceed 5% of the consolidated Receivables of the Borrower and its Subsidiaries.
(c) The amounts represented by such Grantor to the Lenders from time to
time as owing to such Grantor in respect of the Receivables will at such times
be accurate.
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4.9 Intellectual Property. (a) Schedule 6 lists all registrations and
applications for Intellectual Property owned on the date hereof by such Grantor
in its own name (the "Owned Intellectual Property").
(b) Except as disclosed on Schedule 4.9 to the Credit Agreement, on the
date hereof, and to the knowledge of such Grantor, all material Intellectual
Property which is owned or exclusively held is valid, unexpired and enforceable,
has not been abandoned and does not as and where used by such Grantor
immediately prior to the date hereof infringe the intellectual property rights
of any other Person. (c) Except as set forth in Schedule 6, on the date hereof,
none of the Intellectual Property which is owned or exclusively held is the
subject of any written licensing or franchise agreement pursuant to which such
Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any Governmental
Authority against such Grantor which would limit, cancel or question the
validity of, or such Grantor's rights in, any Intellectual Property in any
respect that could reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending against such Grantor, or, to the
knowledge of such Grantor, threatened in writing against such Grantor, on the
date hereof (i) seeking to limit, cancel or question the validity of any
Intellectual Property or such Grantor's ownership interest therein, or (ii)
which, if adversely determined, would have a material adverse effect on the
value to such Grantor in its ordinary course of business of any Intellectual
Property.
Section 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each Guarantor, such
Guarantor shall take, or shall refrain from taking, as the case may be, each
action that is required to be taken or not taken, as the case may be, by a
Subsidiary of the Borrower pursuant to the terms of the Credit Agreement.
5.2 Delivery of Certificated Securities. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
Certificated Security, such Certificated Security shall be immediately delivered
to the Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement.
5.3 Maintenance of Perfected Security Interest; Further Documentation. (a)
Such Grantor shall maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section
4.2 and shall defend such security interest against the claims and demands of
all Persons whomsoever, subject to the rights of such Grantor under the Loan
Documents to dispose of the Collateral.
(b) Such Grantor will furnish to the Administrative Agent and the Lenders
from time to time statements and schedules further identifying and describing
the assets and property of such Grantor and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have
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recorded, such further instruments and documents and take such further actions
as the Administrative Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, (i) filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts,
Letter-of-Credit Rights and any other relevant Collateral, taking any actions
necessary to enable the Administrative Agent to obtain "control" (within the
meaning of the applicable Uniform Commercial Code) with respect thereto.
(d) Such Grantor will not, except upon 15 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of (A) all
additional executed financing statements and other documents reasonably
requested by the Administrative Agent to maintain the validity, perfection and
priority of the security interests provided for herein and (B) if applicable, a
written supplement to Schedule 5 showing any additional location at which
Inventory or Equipment shall be kept, change its jurisdiction of organization.
5.4 Investment Property. (a) If such Grantor shall become entitled to
receive or shall receive any certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Administrative
Agent and the Lenders, hold the same in trust for the Administrative Agent and
the Lenders and deliver the same forthwith to the Administrative Agent in the
exact form received, duly indorsed by such Grantor to the Administrative Agent,
if required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be
held by it hereunder as additional collateral security for the Obligations, and
in case any distribution of capital shall be made on or in respect of the
Investment Property or any property shall be distributed upon or with respect to
the Investment Property pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security
interest in favor of the Administrative Agent, be delivered to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Investment Property shall be received by such
Grantor, such Grantor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent, such
Grantor will not (i) vote to enable, or take any other action to permit, any
Issuer to issue any Capital Stock of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any Capital
Stock of any nature of any Issuer except to the extent such Capital Stock or
other securities are pledged pursuant hereto, (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Investment Property or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreement), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of such Grantor or
the Administrative Agent to sell, assign or transfer any of the Investment
Property or Proceeds thereof.
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(c) In the case of each Grantor which is an Issuer, such Issuer agrees that
(i) it will be bound by the terms of this Agreement relating to the Investment
Property issued by it and will comply with such terms insofar as such terms are
applicable to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.4(a) with
respect to the Investment Property issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Investment Property issued by it.
5.5 Receivables. (a) To the extent that any Receivable constitutes
Collateral, other than in the ordinary course of business consistent with its
past practice, such Grantor will not (i) grant any extension of the time of
payment of such Receivable, (ii) compromise or settle such Receivable for less
than the full amount thereof, (iii) release, wholly or partially, any Person
liable for the payment of such Receivable, (iv) allow any credit or discount
whatsoever on such Receivable or (v) amend, supplement or modify such Receivable
in any manner that could adversely affect the value thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of each
material demand, notice or document received by it that questions or calls into
doubt the validity or enforceability of more than 5% of the aggregate amount of
the then outstanding Receivables which constitute Collateral.
5.6 Intellectual Property. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
current catalogs, brochures and price lists in order to maintain such Trademark
in full force free from any claim of abandonment for non-use, (ii) substantially
maintain as in the past the quality of products and services offered under such
Trademark, (iii) use such Trademark with all notices and legends required by
applicable Requirements of Law, (iv) not adopt or use any mark which is
confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent, for the ratable benefit of the Lenders, shall obtain a
perfected security interest in such mark pursuant to this Agreement (which the
Administrative Agent hereby agrees to accept) and (v) not knowingly (and not
knowingly permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby such Trademark may become invalidated or impaired in
any way.
(b) Such Grantor (either itself or through licensees) will not do any act,
or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) will not knowingly
(and will not knowingly permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby any material portion of the
Copyrights may become invalidated or otherwise impaired. Such Grantor will not
knowingly (either itself or through licensees) do any act whereby any material
portion of the registered Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not knowingly do
any act that uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the Lenders
immediately if it knows, or has reason to know, that any application or
registration relating to any material Owned Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Owned Intellectual Property or such Grantor's right to register the
same or to own and maintain the same.
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(f) Whenever such Grantor, either by itself or through any agent, employee,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, and whenever any application by
such Grantor, either by itself or through any agent, employee, licensee or
designee for the registration of any Intellectual Property with the United
States Patent and Trademark Office, the United States Copyright Office or any
similar office or agency in any other country or any political subdivision
thereof pending on the date hereof shall result in such registration, such
Grantor shall report such filing to the Administrative Agent within twenty (20)
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Administrative Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments, documents, and
papers as the Administrative Agent may request to evidence the Administrative
Agent's and the Lenders' security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
(g) Such Grantor will take commercially reasonable steps, including,
without limitation, in any proceeding before the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Owned Intellectual Property,
including, without limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and, when commercially reasonable
and appropriate, sue for infringement, misappropriation or dilution, to seek
injunctive relief where appropriate and recover any and all damages for such
infringement, misappropriation or dilution.
(i) Such Grantor shall, as promptly as reasonably practicable and at the
sole expense of such Grantor, duly execute, deliver and have recorded such
further instruments and documents, and take such further actions, as are
necessary to ensure that the records and registrations of such Grantor's
material Intellectual Property in the United States Patent and Trademark Office
and Copyright Office are accurate and up to date. At any time and from time to
time, upon the written request of the Administrative Agent, and at the sole
expense of such Grantor, such Grantor will promptly and duly execute, deliver
and have recorded such further instruments and documents and take such further
actions as the Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, filing documents with
the United States Patent and Trademark Office and Copyright Office with respect
to: (i) the security interest granted hereby and (ii) transactions affecting the
ownership of such Grantor's Intellectual Property.
(j) Notwithstanding any of the foregoing provisions of this Section 5.6,
the Grantor shall be permitted in the exercise of its reasonable business
judgment to do such acts, or omit from doing an act, which would result in the
partial or complete abandonment, forfeiture or dedication to the public of a
particular Patent, Trademark, Copyright or other Intellectual Property,
provided, however, that such act or omission does not have a Material Adverse
Effect on the business of the Grantor. Notwithstanding any of the foregoing
provisions of this Section 5.5, the Grantor shall also be permitted to sell or
Dispose of any Intellectual Property in compliance with the provisions of
Section 7.5 of the Credit Agreement.
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Section 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The Administrative Agent
shall have the right to make test verifications of such Receivable in any manner
and through any medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the Administrative Agent
may require in connection with such test verification. At any time and from time
to time, upon the Administrative Agent's request and at the expense of the
relevant Grantor, such Grantor shall cause independent public accountants or
others satisfactory to the Administrative Agent to furnish to the Administrative
Agent reports showing reconciliations, aging and test verifications of, and
trial balances for, all such Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to collect such
Grantor's Receivables, (or to enter into arrangements with a third party for
such collection), subject to the Administrative Agent's direction and control,
and the Administrative Agent may curtail or terminate said authority at any time
after the occurrence and during the continuance of an Event of Default. If
required by the Administrative Agent at any time after the occurrence and during
the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Administrative Agent if required, in a
Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Grantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
(c) At the Administrative Agent's request, each Grantor shall make
reasonably available, or upon the occurrence and during the continuance of a
Default or Event of Default, deliver to the Administrative Agent all original
and other documents evidencing, and relating to, the agreements and transactions
which gave rise to any Receivables which constitute Collateral, including,
without limitation, all original orders, invoices and shipping receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify with them to the
Administrative Agent's satisfaction the existence, amount and terms of any
Receivable.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables that the Receivables have been assigned to
the Administrative Agent for the ratable benefit of the Lenders and that
payments in respect thereof shall be made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall
remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Administrative Agent nor any Lender shall have any obligation or liability under
any Receivable (or any agreement giving rise thereto) by reason of or arising
out of this Agreement or the receipt by the Administrative Agent or any Lender
of any payment relating thereto, nor shall the Administrative Agent or any
Lender be obligated in any manner to perform any of the obligations of any
Grantor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any
15
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(d) Notwithstanding the above, the provisions of Sections 6.1 and 6.2 shall
not apply to any Receivable so long as it remains subject to a security interest
granted in connection with a Receivables Transfer Program permitted by the
Credit Agreement or is otherwise designated to be included in such Receivables
Transfer Program.
6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and
be continuing and the Administrative Agent shall have given notice to the
relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate or other organizational rights with respect to the Investment
Property; provided, however, that no vote shall be cast or corporate or other
organizational right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Property and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Investment Property shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Investment Property at any meeting of shareholders of the relevant Issuer
or Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Administrative Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In addition to the
rights of the Administrative Agent and the Lenders specified in Section 6.1 with
respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of cash, checks and
other near-cash items shall be held by such Grantor in trust for the
Administrative Agent
16
and the Lenders, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Administrative
Agent in the exact form received by such Grantor (duly indorsed by such Grantor
to the Administrative Agent, if required). All Proceeds received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
Collateral Account maintained under its sole dominion and control. All Proceeds
while held by the Administrative Agent in a Collateral Account (or by such
Grantor in trust for the Administrative Agent and the Lenders) shall continue to
be held as collateral security for all the Obligations and shall not constitute
payment thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be agreed upon by the
Borrower and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds constituting
Collateral, whether or not held in any Collateral Account, in payment of the
Obligations in such order as the Administrative Agent may elect, and any part of
such funds which the Administrative Agent elects not so to apply and deems not
required as collateral security for the Obligations shall be paid over from time
to time by the Administrative Agent to the Borrower or to whomsoever may be
lawfully entitled to receive the same. Any balance of such Proceeds remaining
after the Obligations shall have been paid in full, no Letters of Credit shall
be outstanding and the Commitments shall have terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615(a)(3) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the exercise by them of any rights hereunder. If any
notice of a proposed sale or other disposition of
17
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition.
6.7 Registration Rights. (a) If the Administrative Agent shall determine to
exercise its right to sell any or all of the Pledged Stock pursuant to Section
6.6, and if in the opinion of the Administrative Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will
cause the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its reasonable best efforts to cause the registration
statement relating thereto to become effective and to remain effective for a
period of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold, and (iii) make all amendments thereto
and/or to the related prospectus which, in the reasonable opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be done
all such other acts as may be necessary to make such sale or sales of all or any
portion of the Pledged Stock pursuant to this Section 6.7 valid and binding and
in compliance with any and all other applicable Requirements of Law. Each
Grantor further agrees that a breach of any of the covenants contained in this
Section 6.7 will cause irreparable injury to the Administrative Agent and the
Lenders, that the Administrative Agent and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 6.7 shall be specifically enforceable against
such Grantor, and such Grantor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no Event of Default has occurred under the Credit Agreement.
6.8 Deficiency. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay its Obligations and the fees and disbursements of any attorneys employed by
the Administrative Agent or any Lender to collect such deficiency.
18
Section 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each
Grantor hereby irrevocably constitutes and appoints the Administrative Agent and
any officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own name,
for the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Administrative Agent the power and right, on behalf of such Grantor, without
notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Receivable or with
respect to any other Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such moneys due
under any Receivable or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and
have recorded, any and all agreements, instruments, documents and papers as the
Administrative Agent may request to evidence the Administrative Agent's and the
Lenders' security interest in such Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, effect any repairs or any insurance called for by the
terms of this Agreement and pay all or any part of the premiums therefor and the
costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or
6.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due or to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall direct; (2) ask
or demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect of
or arising out of any Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other right in
respect of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection therewith, give
such discharges or releases as the Administrative Agent may deem appropriate;
(7) assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains), throughout
the world for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (8) generally,
sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and do, at the
Administrative Agent's option and such Grantor's expense, at any time, or from
time to time, all acts and things which the Administrative Agent deems necessary
to protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Lenders' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
19
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If, after the occurrence and during the continuation of a Default or
Event of Default, any Grantor fails to perform or comply with any of its
agreements contained herein or Section 6.11 of the Credit Agreement, the
Administrative Agent, at its option, but without any obligation so to do, may
perform or comply, or otherwise cause performance or compliance, with such
agreement.
(c) The expenses of the Administrative Agent incurred in connection with
actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the highest rate per annum at which
interest would then be payable on past due Revolving Credit Loans that are ABR
Loans under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, any
Lender nor any of their respective officers, directors, employees or agents
shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Administrative Agent
and the Lenders hereunder are solely to protect the Administrative Agent's and
the Lenders' interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any Lender to exercise any such powers. The
Administrative Agent and the Lenders shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to any applicable law, each
Grantor authorizes the Administrative Agent to file or record financing
statements and other filing or recording documents or instruments with respect
to the Collateral without the signature of such Grantor in such form and in such
offices as the Administrative Agent reasonably determines appropriate to perfect
the security interests of the Administrative Agent under this Agreement. Each
Grantor authorizes the Administrative Agent to use the collateral description
"all personal property" in any such financing statements. Each Grantor hereby
ratifies and authorizes the filing by the Administrative Agent of any financing
statement with respect to the Collateral made prior to the date hereof.
7.4 Authority of Administrative Agent. Each Grantor acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among
20
them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
Section 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay
or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to Section 10.5 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
21
8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the Administrative
Agent and each Lender at any time and from time to time while an Event of
Default shall have occurred and be continuing, without notice to such Grantor or
any other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Grantor to the Administrative Agent or such
Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise in respect of the Obligations, as the Administrative Agent or such
Lender may elect, whether or not the Administrative Agent or any Lender has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. The Administrative Agent and each Lender shall
notify such Grantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender under this
Section 8.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents represent the
agreement of the Grantors, the Administrative Agent and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
22
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Administrative Agent and Lenders, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Grantors and the Lenders.
8.14 Additional Grantors. Each Subsidiary of the Borrower that is required
to become a party to this Agreement pursuant to Section 6.9 of the Credit
Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.15 Releases. (a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations (other than Obligations in respect of Swap Agreements)
shall have been paid in full, the Commitments have been terminated and no
Letters of Credit shall be outstanding, the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent
and each Grantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to
23
the Collateral shall revert to the Grantors. At the request and sole expense of
any Grantor following any such termination, the Administrative Agent shall
deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Borrower, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Borrower shall have delivered to the Administrative Agent, at
least ten Business Days prior to the date of the proposed release, a written
request for release identifying the relevant Subsidiary Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a certification
by the Borrower stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
24
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
CONMED CORPORATION
By:___________________________________________
Name:
Title:
ASPEN LABORATORIES, INC.
By:___________________________________________
Name:
Title:
CONMED ANDOVER MEDICAL, INC.
By:___________________________________________
Name:
Title:
LINVATEC CORPORATION
By:___________________________________________
Name:
Title:
ENVISION MEDICAL CORPORATION
By:___________________________________________
Name:
Title:
Schedule 1
----------
NOTICE ADDRESSES OF GUARANTORS
Schedule 2
----------
DESCRIPTION OF INVESTMENT PROPERTY
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
- -------------------------- ------------------ ---------------------------- -------------------------------
Pledged Notes:
Issuer Payee Principal Amount
- -------------------------- ------------------ ----------------------------- -------------------------------
Schedule 3
----------
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
-------------------------------
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
----------------------------
[List all filings]
Actions with respect to Pledged Stock
Other Actions
-------------
[Describe other actions to be taken]
Schedule 4
----------
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Jurisdiction of Location of Chief
------- --------------- -----------------
Organization Executive Office
------------ ----------------
Schedule 5
----------
LOCATIONS OF INVENTORY AND EQUIPMENT
Grantor Locations
------- ---------
Schedule 6
----------
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
ACKNOWLEDGEMENT AND CONSENT* **
The undersigned hereby acknowledges receipt of a copy of the Guarantee and
Collateral Agreement dated as of August 28, 2002 (the "Agreement"), made by the
Grantors parties thereto for the benefit of JPMorgan Chase Bank, as
Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in writing
of the occurrence of any of the events described in Section [5.7(a)] of the
Agreement.
3. The terms of Sections [6.3(c)] and [6.7] of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section [6.3(c)] or [6.7] of the Agreement.
[NAME OF ISSUER]
By:_______________________________________
Name:
Title:
Address for Notices:
_________________________________________
_________________________________________
_________________________________________
Fax:
Annex 1 to
Guarantee and Collateral Agreement
----------------------------------
ASSUMPTION AGREEMENT, dated as of ________________, 200_, made by
______________________________ (the "Additional Grantor"), in favor of JPMorgan
Chase Bank, as administrative agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions or entities (the
"Lenders") parties to the Credit Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E S S E T H :
WHEREAS, CONMED Corporation (the "Borrower"), the Lenders and the
Administrative Agent have entered into a Credit Agreement, dated as of August
28, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower and certain
of its Affiliates (other than the Additional Grantor) have entered into the
Guarantee and Collateral Agreement, dated as of August 28, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Guarantee and
Collateral Agreement") in favor of the Administrative Agent for the benefit of
the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a
party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this
Assumption Agreement, the Additional Grantor, as provided in Section [8.14] of
the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee
and Collateral Agreement as a Grantor thereunder with the same force and effect
as if originally named therein as a Grantor and, without limiting the generality
of the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in the Schedules to the Guarantee and
Collateral Agreement. The Additional Grantor hereby represents and warrants that
each of the representations and warranties contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct on and as the date hereof
(after giving effect to this Assumption Agreement) as if made on and as of such
date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
2
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to
be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:___________________________
Name:
Title:
Annex 1-A to
Assumption Agreement
--------------------
Supplement to Schedule 1
------------------------
Supplement to Schedule 2
------------------------
Supplement to Schedule 3
------------------------
Supplement to Schedule 4
------------------------
Supplement to Schedule 5
------------------------
Supplement to Schedule 6
------------------------