UNITED STATES
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 June 30, 2003 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 |_|
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 126-2). Yes |x| No |_|
The number of shares outstanding of registrant's common stock, as of
August 1, 2003 is 29,019,623 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 11
Item 3. Quantitative and Qualitative Disclosures
About Market Risk 19
Item 4. Controls and Procedures 20
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of
Security Holders 20
Item 6. Exhibits and Reports on Form 8-K 21
Signatures 22
Item 1.
CONMED CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands except per share amounts)
(unaudited)
Three Months Ended Six Months Ended
------------------ ----------------
June 30, June 30,
-------- --------
2002 2003 2002 2003
---- ---- ---- ----
Net sales .............................. $111,269 $124,540 $224,474 $242,574
Cost of sales .......................... 51,711 59,409 105,815 115,787
-------- -------- -------- --------
Gross profit ........................... 59,558 65,131 118,659 126,787
Selling and administrative ............. 35,141 39,353 69,609 76,498
Research and development ............... 4,078 4,378 7,902 8,081
Write-off of purchased in-process
research and development assets ...... -- -- -- 7,900
Other expense .......................... -- 11,222 -- 3,730
-------- -------- -------- --------
39,219 54,953 77,511 96,209
-------- -------- -------- --------
Income from operations ................. 20,339 10,178 41,148 30,578
Interest expense ....................... 6,355 5,861 12,983 11,399
-------- -------- -------- --------
Income before income taxes ............. 13,984 4,317 28,165 19,179
Provision for income taxes ............. 5,034 1,554 10,139 9,748
-------- -------- -------- --------
Net income ............................. $ 8,950 $ 2,763 $ 18,026 $ 9,431
======== ======== ======== ========
Per share data:
Net Income
Basic .............................. $ .34 $ .10 $ .70 $ .33
Diluted ............................ .33 .09 .68 .32
Weighted average common shares
Basic .............................. 26,584 28,910 25,735 28,892
Diluted ............................ 27,359 29,212 26,422 29,195
See notes to consolidated condensed financial statements.
1
CONMED CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands except share amounts)
(unaudited)
December 31, June 30,
2002 2003
---- ----
ASSETS
Current assets:
Cash and cash equivalents ........................ $ 5,626 $ 2,360
Accounts receivable, net ......................... 58,093 63,242
Inventories ...................................... 120,443 128,300
Deferred income taxes ............................ 6,304 5,936
Prepaid expenses and other current assets ........ 3,200 3,915
--------- ---------
Total current assets ........................... 193,666 203,753
--------- ---------
Property, plant and equipment, net ................. 95,608 97,186
Goodwill ........................................... 262,394 289,847
Other intangible assets, net ....................... 180,271 193,273
Other assets ....................................... 10,201 10,365
--------- ---------
Total assets ................................... $ 742,140 $ 794,424
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt ................ $ 2,631 $ 4,061
Accounts payable ................................. 22,074 21,315
Accrued compensation ............................. 10,463 10,539
Income taxes payable ............................. 5,885 5,321
Accrued interest ................................. 3,794 510
Other current liabilities ........................ 13,127 13,334
--------- ---------
Total current liabilities ...................... 57,974 55,080
--------- ---------
Long-term debt ..................................... 254,756 285,451
Deferred income taxes .............................. 28,446 39,670
Other long-term liabilities ........................ 14,025 12,350
--------- ---------
Total liabilities .............................. 355,201 392,551
--------- ---------
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; 28,646,027 and
28,970,378 shares issued and outstanding in
2002 and 2003, respectively .................. 288 291
Paid-in capital .................................. 231,832 234,489
Retained earnings ................................ 162,391 171,822
Accumulated other comprehensive loss ............. (7,153) (4,310)
Less 37,500 shares of common stock in treasury,
at cost ........................................ (419) (419)
--------- ---------
Total shareholders' equity ..................... 386,939 401,873
--------- ---------
Total liabilities and shareholders equity .... $ 742,140 $ 794,424
========= =========
See notes to consolidated condensed financial statements.
2
CONMED CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
Six Months Ended June 30, 2002 and 2003
(in thousands)
(unaudited)
2002 2003
---- ----
Cash flows from operating activities:
Net income ............................................... $ 18,026 $ 9,431
-------- ---------
Adjustments to reconcile net income
to net cash provided by operations:
Depreciation ....................................... 4,404 4,908
Amortization ....................................... 6,645 6,916
Deferred income taxes .............................. 5,477 5,653
Pension settlement charge .......................... -- 2,081
Write-off of deferred financing fees ............... -- 2,181
Write-off of purchased in-process research and
development assets ............................. -- 7,900
Increase (decrease) in cash flows
from changes in assets and liabilities:
Accounts receivable ...................... (1,856) (1,198)
Decrease in sale of accounts receivable .. (4,000) (1,000)
Inventories .............................. (9,756) (6,290)
Accounts payable ......................... 6,067 (2,110)
Income taxes payable ..................... (492) (179)
Accrued compensation ..................... (1,694) (888)
Accrued interest ......................... (1,347) (3,284)
Other assets/liabilities, net ............ (3,593) (5,565)
-------- ---------
(145) 9,125
-------- ---------
Net cash provided by operating activities .......... 17,881 18,556
-------- ---------
Cash flows from investing activities:
Payments related to business acquisitions,
net of cash acquired ............................... (1,359) (51,454)
Purchases of property, plant, and equipment ............ (8,428) (3,951)
-------- ---------
Net cash used by investing activities .............. (9,787) (55,405)
-------- ---------
Cash flows from financing activities:
Net proceeds from issuance of common stock ............... 66,594 --
Net proceeds from exercise of stock options .............. 3,533 1,004
Repurchase of warrant on common stock .................... (2,000) --
Payments on debt ......................................... (78,196) (130,875)
Proceeds of debt ......................................... -- 163,000
Payments related to issuance of debt ..................... -- (1,217)
-------- ---------
Net cash used by financing activities .............. (10,069) 31,912
-------- ---------
Effect of exchange rate changes
on cash and cash equivalents ........................... 1,450 1,671
-------- ---------
Net increase (decrease) in cash and cash equivalents ....... (525) (3,266)
Cash and cash equivalents at beginning of period ........... 1,402 5,626
-------- ---------
Cash and cash equivalents at end of period ................. $ 877 $ 2,360
======== =========
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 a leading developer, manufacturer and supplier of RF
electrosurgery systems used routinely to cut and cauterize tissue in nearly all
types of surgical procedures worldwide, endoscopy products such as trocars, clip
appliers, scissors and surgical staplers and a full line of ECG electrodes for
heart monitoring and other patient care products. We also offer integrated
operating room systems and intensive care unit service managers. 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.
Stock-based Compensation
We account for our stock-based compensation plans under the provisions of
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees". No compensation expense has been recognized in the accompanying
financial statements relative to our stock option plans. Pro forma information
regarding net income and earnings per share is required by Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" , as amended, and has been determined as if we had accounted for
our employee stock options under the fair value method described in that
statement.
For purposes of the pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. The Company's
pro forma information follows:
Three months ended Six months ended
June 30, June 30,
-------- --------
2002 2003 2002 2003
---- ---- ---- ----
Net income - as reported ........ $ 8,950 $ 2,763 $ 18,026 $ 9,431
-------- -------- -------- --------
Pro forma stock-based employee
compensation expense, net of
related income tax effect ..... (550) (579) (1,024) (1,103)
-------- -------- -------- --------
Net income - pro forma .......... $ 8,400 $ 2,184 $ 17,002 $ 8,328
======== ======== ======== ========
EPS - as reported:
Basic ......................... $ .34 $ .10 $ .70 $ .33
Diluted ....................... .33 .09 .68 .32
EPS - pro forma:
Basic ......................... $ .32 $ .08 $ .66 $ .29
Diluted ....................... .31 .07 .64 .29
4
Note 2 - Interim financial information
The statements for the three and six months ended June 30, 2002 and 2003 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 results of operations for the
three and six months ended June 30, 2003 are not necessarily indicative of the
results of operations to be expected for any other quarter nor for the year
ending December 31, 2003. 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, 2002 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 Six months ended
June 30, June 30,
2002 2003 2002 2003
---- ---- ---- ----
Net income ........................ $ 8,950 $ 2,763 $ 18,026 $ 9,431
-------- -------- -------- --------
Other comprehensive income:
Foreign currency
translation adjustment ........ 1,441 875 1,477 2,188
Cash flow hedging
(net of income taxes) ......... (42) 262 438 655
-------- -------- -------- --------
Comprehensive income ............ $ 10,349 $ 3,900 $ 19,941 $ 12,274
======== ======== ======== ========
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, 2002 ........ $ (5,086) $ (1,159) $ (908) $ (7,153)
Foreign currency translation
adjustments ................. -- 2,188 -- 2,188
Cash flow hedging (net of
income taxes) ............... -- -- 655 655
-------- -------- -------- --------
Balance, June 30, 2003 ............ $ (5,086) $ 1,029 $ (253) $ (4,310)
======== ======== ======== ========
Note 4 - Inventories
The components of inventory are as follows:
December 31, June 30,
2002 2003
---- ----
Raw materials ...................................... $ 44,701 $ 42,399
Work-in-process .................................... 12,869 14,610
Finished goods ..................................... 62,873 71,291
-------- --------
Total .................................. $120,443 $128,300
======== ========
5
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 Six months ended
June 30, June 30,
-------- --------
2002 2003 2002 2003
---- ---- ---- ----
Shares used in the calculation
of Basic EPS(weighted average
shares outstanding) ............... 26,584 28,910 25,735 28,892
Effect of dilutive potential
securities ........................ 775 302 687 303
------- ------- ------- -------
Shares used in the calculation
of Diluted EPS .................... 27,359 29,212 26,422 29,195
======= ======= ======= =======
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. There were no options or warrants whose
exercise price exceeded the average market price of common shares for the three
and six months ended June 30, 2002. Such shares aggregated approximately $1.5
million for the three and six months ended June 30, 2003, respectively.
Note 6 - Business acquisitions
As more fully described in our report on Form 10-Q/A for the quarter ended March
31, 2003, we acquired Bionx Implants, Inc. on March 10, 2003 for $47.0 million
in cash (the "Bionx acquisition"). Bionx develops and manufactures
self-reinforced resorbable polymer implants for use in a variety of orthopedic
applications. In connection with the Bionx acquisition, during the quarter-ended
March 31, 2003, we wrote-off $7.9 million in purchased in-process research and
development assets. No benefit for income taxes was recorded on the write-off of
purchased in-process research and development assets as these costs are not
deductible for income tax purposes.
Pro forma statements of income for the three and six months ended June 30, 2003,
assuming the Bionx acquisition occurred as of January 1, 2002 are presented
below. The proforma net income and earnings per share for each period presented
exclude the $7.9 million write-off of purchased in-process research and
development assets.
Three months ended Six months ended
June 30, June 30,
-------- --------
2002 2003 2002 2003
---- ---- ---- ----
Net sales .................. $ 115,830 $ 124,540 $ 233,801 $ 246,256
Net income ................. $ 8,517 $ 2,763 $ 17,192 $ 16,766
Basic .................... $ .32 $ .10 $ .67 $ .58
Diluted .................. .31 .09 .65 .57
During the three and six months ended June 30, 2003, we incurred approximately
$1.5 million and $3.3 million, respectively, in other acquisition expenses
related primarily to the December 31, 2002 acquisition of CORE Dynamics, Inc.
(the "CORE acquisition") and the Bionx acquisition of which $1.2 million and
$2.6 million have been recorded in other
6
expense and $.3 million and $.7 million have been recorded to cost of sales.
Those expenses recorded to other expense consist of various acquisition
integration costs to wind down CORE operations in Jacksonville, Florida and
Bionx operations in Blue Bell, Pennsylvania. Those expenses recorded to cost of
sales consist of the step-up to fair value related to the sale of inventory
acquired as a result of the CORE and Bionx acquisitions as well as certain
training and transition-related costs related to the transfer of CORE's
manufacturing operations.
On June 30, 2003, we acquired an electrosurgery business for $2.9 million in
cash. Goodwill recognized in the transaction amounted to $2.4 million and is
expected to be fully deductible for income tax purposes. The cost of this
acquisition may require adjustment based upon information which is not currently
available principally related to the valuation of inventory and other intangible
assets.
Note 7 - Other expense
Other expense (income) consists of the following:
Three Months Six Months
Ended Ended
June 30, 2003
------------------------
Gain on settlement of a contractual dispute,
net of legal costs ............................ $ -- ($9,000)
Pension settlement costs ............................ 2,081 2,081
Acquisition-related costs ........................... 1,229 2,571
Loss on early extinguishments of debt ............... 7,912 8,078
------- -------
Other expense .................................... $11,222 $ 3,730
======= =======
On March 10, 2003, we entered into an agreement with Bristol-Myers Squibb
Company ("BMS") and Zimmer, Inc., ("Zimmer") to settle a contractual dispute
related to the 1997 sale by BMS and its then subsidiary, Zimmer, of Linvatec
Corporation to CONMED Corporation. As a result of the agreement, BMS paid us
$9.5 million in cash, which was recorded in the quarter ended March 31, 2003, as
a gain on settlement of a contractual dispute, net of $.5 million in legal
costs.
During the quarter ended June 30, 2003, we announced a plan to restructure our
orthopedic sales force by increasing our domestic sales force from 180 to 230
sales representatives. The increase is part of our integration plan for the
Bionx acquisition discussed in Note 6 to the consolidated condensed financial
statements. As part of the orthopedic sales force restructuring, we converted 90
direct employee sales representatives into nine independent sales agent groups.
Once the restructuring is complete, we will have 18 exclusive orthopedic sales
agent groups managing all 230 orthopedic sales representatives. As a result of
the termination of the 90 direct employee sales representatives, we incurred
costs of $2.1 million related to settlement losses of pension obligations,
pursuant to Statement of Financial Accounting Standards No. 88 , "Employers'
Accounting for Settlements and Curtailments of Defined Benefit Pension Plans and
for Termination Benefits".
During the three and six months ended June 30, 2003, we incurred approximately
$1.5 million and $3.3 million, respectively, in costs related primarily to the
CORE acquisition and the Bionx acquisition of which $1.2 million and $2.6
million, respectively, has been recorded in other expense as discussed in Note 6
to the consolidated condensed financial statements.
During the three and six months ended June 30, 2003 we purchased $127.4 million
and $130.0 million, respectively, of our 9% senior subordinated notes (the
"Notes") and recorded expense of $7.9 million and $8.1 million, respectively in
premium and
7
unamortized deferred financing costs to other expense related to these purchases
as discussed in Note 8 to the consolidated condensed financial statements.
Note 8 - Long-term debt restructuring
During the quarter ended June 30, 2003, we amended our existing $200.0 million
senior credit agreement, (the "amended senior credit agreement"), expanding the
existing term loan facility under the senior credit agreement by $160.0 million
(the "expanded term loan facility"). The proceeds of the expanded term loan
facility were used to reduce borrowings outstanding on the revolving credit
facility, to fund the purchase of $127.4 million in outstanding Notes and
related accrued interest, and fund payment of the 4.5% call premium on the
Notes. Proceeds of the expanded term loan facility were also used to fund
payment of bank and legal fees associated with amending the senior credit
agreement. In connection with the purchase of the Notes, we wrote off $5.7
million in 4.5% call premium and $2.2 million in unamortized deferred financing
costs to other expense.
The balance outstanding on the expanded term loan facility at June 30, 2003 was
$259.5 million. The expanded term loan facility extends for approximately 6
years, with scheduled principal payments of $2.6 million annually through
December 2007 increasing to $70.8 million in 2008 and the remaining balance
outstanding due in December 2009. We may be required, under certain
circumstances, to make additional principal payments based on excess cash flow
as defined in the amended senior credit agreement. There was $8.0 million in
borrowings outstanding on the revolving credit facility under the amended senior
credit agreement as of June 30, 2003 which are due and payable on August 28,
2007, the revolving credit facility termination date. Interest rates on the new
term facility are LIBOR plus 2.75% or 4.91% at June 30, 2003. Interest rates on
the revolving credit facility are LIBOR plus 2.50% or 3.84% at June 30, 2003.
The amended senior credit agreement is collateralized by substantially all of
our personal property and assets, except for our accounts receivable and related
rights which have been sold in connection with our accounts receivable sales
agreement. The amended 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. The amended senior credit agreement contains a material
adverse effect clause that could limit our ability to access additional funding
under our amended senior credit agreement should a material adverse change in
our business occur. We are also required, under certain circumstances, to make
mandatory prepayments from net cash proceeds from any issue of equity and asset
sales.
Note 9 - Goodwill and other intangible assets
The changes in the net carrying amount of goodwill for the six months ended June
30, 2003 are as follows:
Balance as of January 1, 2003 ..................................... $ 262,394
Goodwill acquired ................................................. 26,936
Foreign currency translation ...................................... 517
---------
Balance as of June 30, 2003 ....................................... $ 289,847
=========
8
Other intangible assets consist of the following:
December 31, 2002 June 30, 2003
----------------- -------------
Gross Gross
Carrying Accumulated Carrying Accumulated
Amount Amortization Amount Amortization
------ ------------ ------ ------------
Amortized intangible assets:
Customer relationships ................. $ 96,712 $(12,725) $105,712 $(14,057)
Patents and other intangible assets .... 23,674 (13,534) 29,480 (14,806)
Unamortized intangible assets:
Trademarks and tradenames .............. 86,144 -- 86,944 --
-------- -------- -------- --------
$206,530 $(26,259) $222,136 $(28,863)
======== ======== ======== ========
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 22 years.
Customer relationships are being amortized over 38 years. Patents and other
intangible assets are being amortized over a weighted average life of 9 years.
The trademarks and tradenames intangible asset has been determined to have an
indefinite life and therefore is not amortized.
Amortization expense related to intangible assets which are subject to
amortization totaled $1,542 and $2,894 in the three and six months ended June
30, 2003, respectively, and $1,409 and $2,817 in the three and six months ended
June 30, 2002, respectively, and is included in selling and administrative
expense on the consolidated condensed statement of income.
The estimated amortization expense for the year ending December 31, 2003 and for
each of the five succeeding years is as follows:
2003 $5,978
2004 5,677
2005 4,773
2006 4,206
2007 4,194
2008 3,831
Note 10 -- Guarantees
We provide service and warranty policies on certain of our products at the time
of sale. Liability under service and warranty policies is based upon a review of
historical warranty and service claim experience. Adjustments are made to
accruals as claim data and historical experience warrant.
The changes in the carrying amount of service and product warranties for the six
months ended June 30, 2003 are as follows:
Balance as of January 1, 2003 .......... $ 3,213
Provision for warranties ............... 2,299
Claims made ............................ (2,077)
-------
Balance as of June 30, 2003 ............ $ 3,435
=======
Note 11 - New Accounting Pronouncements
In January 2003, FIN No. 46, "Consolidation of Variable Interest Entities" was
issued. The interpretation provides guidance on consolidating variable interest
entities and
9
applies immediately to variable interests created after January 31, 2003. The
guidelines of the interpretation will become applicable for us in our third
quarter 2003 financial statements for variable interest entities created before
February 1, 2003. The interpretation requires variable interest entities to be
consolidated if the equity investment at risk is not sufficient to permit an
entity to finance its activities without support from other parties or the
equity investors lack certain specified characteristics. We do not currently
anticipate any material accounting or disclosure requirement under the
provisions of the interpretation.
In April 2003, SFAS No. 149 "Amendment of Statement 133 on Derivative
Instruments and Hedging Activities" was issued. SFAS No. 149 amends and
clarifies financial accounting and reporting for derivative instruments embedded
in other contracts and for hedging activities under SFAS No. 133, "Accounting
for Derivative Instruments and Hedging Activities". SFAS No. 149 will be
applicable for us in our third quarter 2003. We do not currently anticipate any
material accounting or disclosure requirement under the provisions of the
statement.
In May 2003, SFAS No. 150 "Accounting for Certain Financial Instruments with
Characteristics of both Liabilities and Equity" was issued. SFAS No. 150
establishes standards for how an issuer classifies and measures certain
financial instruments with characteristics of both liabilities and equity. It
requires that an issuer classify a financial instrument that is within its scope
as a liability, many of which were previously classified as equity. SFAS No. 150
will be applicable for us in our third quarter 2003. We do not currently
anticipate any material accounting or disclosure requirement under the
provisions of the statement.
In April 2002, the FASB issued SFAS No. 145, "Rescission of FASB Statements No.
4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections,"
which updates, clarifies, and simplifies certain existing accounting
pronouncements beginning at various dates in 2002 and 2003. This Statement
rescinds SFAS 4 and SFAS 64, which required net gains or losses from the
extinguishment of debt to be classified as an extraordinary item in the income
statement. These gains and losses will now be classified as extraordinary only
if they meet the criteria for such classification as outlined in Accounting
Principles Board ("APB") Opinion 30, which allows for extraordinary treatment if
the item is material and both unusual and infrequent in nature. We adopted this
pronouncement during 2003. As a result we will reclassify the extraordinary loss
recognized in the third quarter of 2002 related to the refinancing of debt to
ordinary income in the 2003 annual and interim financial statements.
In July 2002, the FASB issued SFAS No. 146, "Accounting for Costs
Associated with Exit or Disposal Activities," which addresses financial
accounting and reporting for costs associated with exit or disposal activities.
This Statement supersedes Emerging Issues Task Force Issue No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit
and Activity (including Certain Costs Incurred in a Restructuring)." The
provisions of this Statement are effective for exit or disposal activities that
are initiated after December 31, 2002, with early application encouraged. This
pronouncement has not had an impact on our financial condition or results of
operations during 2003.
In November 2002, FASB Interpretation ("FIN") No. 45, "Guarantor's
Accounting and Disclosure Requirements for Guarantees, Including Indirect
Guarantees of Indebtedness of Others" was issued. The interpretation provides
guidance on the guarantor's accounting and disclosure requirements for
guarantees, including indirect guarantees of indebtedness of others. We have
adopted the disclosure requirements of the interpretation as of December 31,
2002. The accounting guidelines are applicable to guarantees issued after
December 31, 2002 and require that we record a liability for the fair value of
such guarantees in the balance sheet. FIN 45 has not had a material accounting
impact on our financial condition or results of operations.
10
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, 2002
and the following, among others:
o general economic and business conditions;
o cyclical customer purchasing patterns due to budgetary and other
constraints;
o changes in customer preferences;
o competition;
o changes in technology;
o our ability to manufacture product consistently and in a timely manner,
especially those products involving delicate or complex manufacturing
processes;
o the introduction and acceptance of new products, including our
PowerPro(R)battery-powered instrument product line;
o the success of our distribution arrangement with DePuy Orthopaedics;
o the integration of any acquisition, including the Bionx acquisition;
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 our indebtedness;
o quality of our management and business abilities and the judgment of our
personnel;
o the risk of litigation, especially patent litigation as well as the cost
associated with patent and other litigation;
o changes in regulatory requirements; 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, 2002 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.
11
Critical Accounting Estimates
Preparation of our financial statements requires us to make estimates and
assumptions that affect the reported amounts of assets, liabilities, revenues
and expenses. Note 1 to the consolidated financial statements in our Annual
Report on Form 10K for the year-ended December 31, 2002 describes the
significant accounting policies used in preparation of the consolidated
financial statements. The most significant areas involving management judgments
and estimates are described below and are considered by management to be
critical to understanding the financial condition and results of operations of
CONMED Corporation.
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. We accrue for sales returns,
rebates and allowances based upon analysis of historical data.
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 $.9
million at June 30, 2003 is adequate to provide for any probable
losses from accounts receivable.
Business Acquisitions
We completed acquisitions in 2003 with purchase prices totaling approximately
$50.0 million and have a history of growth through acquisitions. The assets and
liabilities
12
of acquired businesses are recorded under the purchase method at their estimated
fair values at the dates of acquisition. Goodwill represents costs in excess of
fair values assigned to the underlying net assets of acquired businesses. Other
intangible assets primarily represent allocations of purchase price to
identifiable intangible assets of acquired businesses. We have accumulated
goodwill of $289.8 million and other intangible assets of $193.3 million at June
30, 2003.
In accordance with Statement of Financial Accounting Standards ("SFAS") No. 142,
"Goodwill and Other Intangible Assets," ("SFAS 142"), goodwill and intangible
assets deemed to have indefinite lives are not amortized, but are subject to
annual impairment testing. The identification and measurement of goodwill
impairment involves the estimation of the fair value of our business. The
estimates of fair value are based on the best information available as of the
date of the assessment, which primarily incorporate management assumptions about
expected future cash flows and contemplate other valuation techniques. Future
cash flows can be affected by changes in industry or market conditions or the
rate and extent to which anticipated synergies or cost savings are realized with
newly acquired entities. Intangible assets with a finite life are amortized over
the estimated useful life of the asset. Intangible assets which continue to be
subject to amortization are also evaluated on an annual basis to determine
whether events and circumstances warrant a revision to the remaining period of
amortization. An intangible asset is determined to be impaired when estimated
future cash flows indicate the carrying amount of the asset may not be
recoverable. Although no goodwill or other intangible asset impairment has been
recorded to date, there can be no assurances that future impairment will not
occur.
In connection with the Bionx acquisition, significant estimates were made in the
valuation of the purchased in-process research and development assets. The
purchased in-process research and development value relates to next generation
sports medicine and orthopedic products, which are expected to be released
between the second quarter of 2003 and fourth quarter of 2004. The acquired
projects include enhancements and upgrades to existing device technology,
introduction of new device functionality and the development of new materials
technology for sports medicine and orthopedic applications.
The value of the in-process research and development was calculated using a
discounted cash flow analysis of the anticipated net cash flow stream associated
with the in-process technology of the related product sales. The estimated net
cash flows were discounted using a discount rate of 22%, which was based on the
weighted-average cost of capital for publicly-traded companies within the
medical device industry and adjusted for the stage of completion of each of the
in-process research and development projects. The risk and return considerations
surrounding the stage of completion were based on costs, man-hours and
complexity of the work completed versus to be completed and other risks
associated with achieving technological feasibility. In total, these projects
were approximately 40% complete as of the acquisition date. The total budgeted
costs for the projects were approximately $5.5 million and the remaining costs
to complete these projects were approximately $3.3 million as of the acquisition
date.
The major risks and uncertainties associated with the timely and successful
completion of these projects consist of the ability to confirm the safety and
efficacy of the technologies and products based on the data from clinical trials
and obtaining the necessary regulatory approvals. In addition, no assurance can
be given that the underlying assumptions used to forecast the cash flows or the
timely and successful completion of such projects will materialize, as
estimated. For these reasons, among others, actual results may vary
significantly from the estimated results.
Pension Plans
We sponsor defined benefit pension plans for the Company and its subsidiaries.
Major assumptions used in the accounting for these plans include the discount
rate, expected return on plan assets and rate of increase in employee
compensation levels. Assumptions are determined based on Company data and
appropriate market indicators, and are evaluated each year as of the plans'
measurement date. A change in any of these
13
assumptions would have an effect on net periodic pension costs reported in the
consolidated financial statements.
Lower market interest rates and plan asset returns have resulted in declines in
pension plan asset performance and funded status and higher pension expense. The
discount rate used in determining pension expense in 2003 is 6.75%.
Income Taxes
The recorded future tax benefit arising from net deductible temporary
differences and tax carryforwards is approximately $11.0 million at June 30,
2003. Management believes that our earnings during the periods when the
temporary differences become deductible will be sufficient to realize the
related future income tax benefits.
In assessing the need for a valuation allowance, we estimate future taxable
income, considering the feasibility of ongoing tax planning strategies and the
realizability of tax loss carryforwards. Valuation allowances related to
deferred tax assets can be impacted by changes to tax laws, changes to statutory
tax rates and future taxable income levels. In the event we were to determine
that we would not be able to realize all or a portion of our deferred tax assets
in the future, we would reduce such amounts through a charge to income in the
period that such determination was made.
Results of Operations
Three months ended June 30, 2003 compared to three months ended June 30, 2002
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
June 30,
2002 2003
---- ----
(unaudited)
Net sales ........................................... 100.0% 100.0%
Cost of sales ....................................... 46.5 47.7
------- -------
Gross profit ................................... 53.5 52.3
Selling and administrative .......................... 31.6 31.6
Research and development ............................ 3.7 3.5
Other expense ....................................... -- 9.0
------- -------
Income from operations ......................... 18.2 8.2
Interest expense .................................... 5.7 4.7
------- -------
Income before income taxes ..................... 12.5 3.5
Provision for income taxes .......................... 4.5 1.3
------- -------
Net income ..................................... 8.0% 2.2%
======= =======
Sales for the quarter ended June 30, 2003 were $124.5 million, an increase of
11.9% compared to sales of $111.3 million in the same quarter a year ago.
Favorable changes in foreign currency exchange rates accounted for 2.5% of our
sales growth.
o Sales in our orthopedic businesses increased 8.7% to $74.1 million
from $68.2 million in the same quarter last year.
o Arthroscopy sales, which represented 59.9% of total second quarter
2003 orthopedic revenues, grew 7.8% to $44.4 million from $41.2
million in the same quarter last year, including $4.1 million as a
result of the Bionx acquisition (Note 6 to the consolidated
condensed financial statements).
14
o Powered surgical instrument sales, which represented 40.1% of
orthopedic revenues, increased 10.0% to $29.7 million from $27.0
million in the same quarter last year on higher sales of our
newly-introduced PowerPro(R) battery powered instrument product
line.
o Patient care sales for the three months ended June 30, 2003 were
$17.7 million, an increase of 3.5% when compared to $17.1 million in
the same quarter last year on higher sales of our ECG products.
o Electrosurgery sales for the three months ended June 30, 2003 were
$18.9 million, an increase of 11.2% when compared to $17.0 million
in the same quarter last year, as we gained sales as a result of our
newly-introduced System 5000(R) electrosurgical generator.
o Sales of endoscopy products increased 32.2% to $11.9 million in the
three months ended June 30, 2003 from $9.0 million in the same
quarter last year, including $1.8 million as a result of the CORE
acquisition (See Note 6 to the consolidated condensed financial
statements).
o Sales of integrated operating room systems were $1.9 million in the
second quarter of 2003. This business is the result of our fourth
quarter 2002 acquisitions of ValMed Corporation and Nortrex Medical
Corporation.
Cost of sales increased to $59.4 million in the second quarter 2003 as compared
to $51.7 million in the same quarter last year, primarily as a result of the
increased sales volumes described above while gross margin percentage was 52.3%
in the second quarter of 2003, as compared to 53.5% in the second quarter of
2002. Included in cost of sales during the quarter ended June 30, 2003 were
approximately $.3 million in acquisition-related costs.
Selling and administrative expense increased to $39.4 million in the second
quarter of 2003 as compared to $35.1 million in the second quarter of 2002. As a
percentage of sales, selling and administrative expense totaled 31.6% in the
second quarter of 2003, the same as in the second quarter of 2002.
Research and development expense increased to $4.4 million in the second quarter
of 2003 as compared to $4.1 million in the second quarter of 2002. As a
percentage of sales, research and development expense decreased to 3.5% in the
current quarter compared to 3.7% in the same quarter a year ago but remains
within the range of our historical percentages.
As discussed in Note 7 to the consolidated condensed financial statements, other
expense is comprised of pension settlement costs of $2.1 million,
acquisition-related costs of $1.2 million and the loss of $7.9 million on the
early extinguishment of debt. There was no comparable expense in the second
quarter in 2002.
Interest expense in the second quarter of 2003 was $5.9 million compared to $6.4
million in the second quarter of 2002. The decrease in interest expense is
primarily a result of lower weighted average interest rates on our borrowings,
which have declined to 4.39% at June 30, 2003 as compared to 7.03% at June 30,
2002, offsetting an increase in borrowings at June 30, 2003 compared to June 30,
2002 of approximately $31.8 million.
Provision for income taxes has been recorded at an effective rate of 36% for the
second quarter 2003 and 2002. A reconciliation of the United States statutory
income tax rate to our effective tax rate is included in Note 7 to the Company's
financial statements for the year ended December 31, 2002 included in our Annual
Report to the Securities and Exchange Commission on Form 10-K.
15
Results of Operations
Six months ended June 30, 2003 compared to six months ended June 30, 2002
The following table presents, as a percentage of net sales, certain categories
included in our unaudited consolidated statements of income for the periods
indicated:
Six Months Ended
June 30,
2002 2003
---- ----
(unaudited)
Net sales ............................................ 100.0% 100.0%
Cost of sales ........................................ 47.1 47.7
------- -------
Gross profit .................................... 52.9 52.3
Selling and administrative ........................... 31.1 31.5
Research and development ............................. 3.5 3.4
In-process R & D write-off ........................... -- 3.3
Other expense ........................................ -- 1.5
------- -------
Income from operations .......................... 18.3 12.6
Interest expense ..................................... 5.8 4.7
------- -------
Income before income taxes ...................... 12.5 7.9
Provision for income taxes ........................... 4.5 4.1
------- -------
Net income ...................................... 8.0% 3.8%
======= =======
Sales for the six months ended June 30, 2003 were $242.6 million, an increase of
8.1% compared to sales of $224.5 million in the same period a year ago.
Favorable changes in foreign currency exchange rates accounted for 2.4% of our
sales growth.
o Sales in our orthopedic businesses increased 6.5% to $146.8 million
from $137.9 million in the same period last year.
o Arthroscopy sales, which represented 58.7% of total first half 2003
orthopedic revenues, grew 4.4% to $86.1 million from $82.5 million
in the same period last year, including $4.9 million as a result of
the Bionx acquisition (Note 6 to the consolidated condensed
financial statements).
o Powered surgical instrument sales, which represented 41.3% of
orthopedic revenues, increased 9.6% to $60.7 million from $55.4
million in the same period last year on higher sales of our
newly-introduced PowerPro(R) battery powered instrument product
line.
o Patient care sales for the six months ended June 30, 2003 were $35.0
million, compared to $34.4 million in the same period last year as
increases in sales of our ECG and automatic defibrillator pad
products offset decreases in the suction instrument product line.
o Electrosurgery sales for the six months ended June 30, 2003 were
$35.7 million, compared to $33.8 million in the same period last
year as we gained sales as a result of our newly-introduced System
5000(R) electrosurgical generator compared with the same period last
year.
o Sales of endoscopy products increased 22.8% to $22.6 million in the
six months ended June 30, 2003 from $18.4 million in the same period
last year, including $3.5 million as a result of the CORE
acquisition (Note 6 to the consolidated condensed financial
statements).
16
o Sales of integrated operating room systems were $2.4 million in the
six months ended June 30, 2003. This business is the result of our
fourth quarter 2002 acquisitions of ValMed Corporation and Nortrex
Medical Corporation.
Cost of sales increased to $115.8 million in the first half of 2003 as compared
to $105.8 million in the same period a year ago, primarily as a result of the
increased sales volumes described above while gross margin percentage was 52.3%
in the first half of 2003, compared with the 52.9% experienced in the first half
of 2002. Included in cost of sales during the six months ended June 30, 2003
were approximately $.7 million in acquisition-related costs.
Selling and administrative expense increased to $76.5 million in the first half
of 2003 as compared to $69.6 million in the first half of 2002. As a percentage
of sales, selling and administrative expense totaled 31.5% in the first half of
2003 compared to 31.1% in the first half of 2002. The increase in selling and
administrative expense as a percentage of sales is due principally to increased
marketing costs associated with recently launched product lines including the
integrated operating room systems product lines, PowerPro(R), and new
electrosurgical generators.
Research and development expense amounted to $8.1 million in the first half of
2003 as compared to $7.9 million in the first half of 2002. As a percentage of
sales, research and development expense was 3.4% in the first half of 2003,
consistent with 3.5% in the same period a year ago.
As discussed in Note 6 to the consolidated condensed financial statements, we
wrote off purchased in-process research and development assets in connection
with the Bionx acquisition of $7.9 million in the first quarter of 2003.
As discussed in Note 7 to the consolidated condensed financial statements, other
expense is comprised of a net gain on settlement of a contractual dispute of
$9.0 million, pension settlement costs of $2.1 million, acquisition related
costs of $2.6 million and the loss of $8.1 million on the early extinguishment
of debt. There was no comparable expense in the first half of 2002.
Interest expense in the first half of 2003 was $11.4 million compared to $13.0
million in the first half of 2002. The decrease in interest expense is primarily
a result of lower weighted average interest rates on our borrowings, which have
declined to 4.39% at June 30, 2003 as compared to 7.03% at June 30, 2002,
offsetting an increase in borrowings at June 30, 2003 compared to June 30, 2002
of approximately $31.8 million, related to the Bionx acquisition.
Provision for income taxes has been recorded at an effective rate of 51% for the
first half of 2003 and 36% for the first half of 2002. The effective rate of 51%
for the first half of 2003 is substantially higher than the 36% which we have
experienced historically as a result of the non-deductibility for income tax
purposes of the $7.9 million in-process research and development write-off
recorded in the first quarter 2003 in conjunction with the Bionx acquisition. A
reconciliation of the United States statutory income tax rate of 35% to our
historical effective tax rate of 36% (excluding the effect of the in-process
research and development write-off) is included in Note 7 to the Company's
financial statements for the year ended December 31, 2002 included in our Annual
Report to the Securities and Exchange Commission on Form 10-K.
Liquidity and Capital Resources
Cash generated from our operations and borrowings under our revolving credit
facility provide 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:
17
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;
o borrowings under separate loan facilities, in the case of real
property acquisitions, to finance our acquisitions.
During the quarter ended June 30, 2003, we amended our existing $200.0 million
senior credit agreement, (the "amended senior credit agreement"), expanding the
existing term loan facility under the senior credit agreement by $160.0 million
(the "expanded term loan facility"). The proceeds of the expanded term loan
facility were used to reduce borrowings outstanding on the revolving credit
facility, to fund the purchase of $127.4 million in outstanding 9% senior
subordinated notes (the "Notes") and related accrued interest, and fund payment
of the 4.5% call premium on the Notes. Proceeds of the expanded term loan
facility were also used to fund payment of bank and legal fees associated with
amending the senior credit agreement. In connection with the purchase of the
Notes, we wrote off $5.7 million in 4.5% call premium and $2.2 million in
unamortized deferred financing costs to other expense. The balance outstanding
on the expanded term loan facility at June 30, 2003 was $259.5 million. The
expanded term loan facility extends for approximately 6 years, with scheduled
principal payments of $2.6 million annually through December 2007 increasing to
$70.8 million in 2008 and the remaining balance outstanding due in December
2009. We may be required, under certain circumstances, to make additional
principal payments based on excess cash flow as defined in the amended senior
credit agreement. There was $8.0 million in borrowings outstanding on the
revolving credit facility under the amended senior credit agreement as of June
30, 2003 which are due and payable on August 28, 2007, the revolving credit
facility termination date. Interest rates on the new term facility are LIBOR
plus 2.75% or 4.91% at June 30, 2003. Interest rates on the revolving credit
facility are LIBOR plus 2.50% or 3.84% at June 30, 2003.
The amended senior credit agreement is collateralized by substantially all of
our personal property and assets, except for our accounts receivable and related
rights which have been sold in connection with our accounts receivable sales
agreement. The amended 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. The amended senior credit agreement contains a material
adverse effect clause that could limit our ability to access additional funding
under our senior credit agreement should a material adverse change in our
business occur. We are also required, under certain circumstances, to make
mandatory prepayments from net cash proceeds from any issue of equity and asset
sales.
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%, a Class C note bearing interest at 8.25% and a seller-financed note
bearing interest at 6.50%. The principal balances outstanding on the Class A
note, Class C note and seller-financed note aggregate $10.2 million, $7.2
million and $3.9 million, respectively, at June 30, 2003. These loans are
secured by our Largo, Florida property.
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 to a commercial
paper conduit (the "conduit purchaser"). As of December 31, 2002 and June 30,
2003, the undivided percentage ownership interest in receivables sold by CRC to
the conduit purchaser aggregated $37.0 million and $36.0 million, respectively,
which has been accounted for as a sale and reflected in the balance sheet as a
reduction in accounts receivable.
18
Our net working capital position was $148.7 million at June 30, 2003. Net cash
provided by operations increased to $18.6 million in the six months ended June
30, 2003 compared to $17.9 million for the same period a year ago.
Net cash provided by operations in the first half of 2003 was positively
impacted by depreciation, amortization, deferred income taxes, the non-cash
pension settlement charge, the non-cash write-off of the remaining unamortized
deferred financing fees related to the extinguishment of our 9% senior
subordinated notes and the non-cash write-off of purchased in-process research
and development assets. Net cash provided by operations in the first half of
2003 was negatively impacted by the increase in working capital as a result of
the Bionx acquisition (discussed in Note 6 to the consolidated condensed
financial statements) and the overall growth in our business.
Capital expenditures in the six months ended June 30, 2003 were $4.0 million
compared to $8.4 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 by investing activities in the six months
ended June 30, 2003 also included $51.5 million in payments related to business
acquisitions, net of cash acquired, of which $46.5 million related to the Bionx
acquisition and the remainder related to the CORE acquisition and the
acquisition of an electrosurgery business as discussed in Note 6 to the
consolidated condensed financial statements.
Financing activities in the six months ended June 30, 2003 consist primarily of
$160.0 million in borrowings under the expanded term loan facility of the
amended senior credit agreement and the retirement of $130.0 million in 9.0%
senior subordinated notes. The remaining borrowings under the expanded term loan
facility were used to reduce borrowings outstanding on the revolving credit
facility as a result of the Bionx acquisition and to fund payment of bank and
legal fees associated with amending the senior credit agreement. Based on the
interest rates in effect at June 30, 2003, annual savings in interest costs as a
result of this debt restructuring are estimated at approximately $6.0 million.
Management believes that cash generated from operations, our current cash
resources and funds available under our amended 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 June 30, 2003. The following table summarizes our contractual obligations
related to operating leases and long-term debt as of June 30, 2003:
(Amounts in thousands)
2003 2004 2005 2006 2007 Thereafter
---- ---- ---- ---- ---- ----------
Long-term debt ....... $ 2,016 $ 4,149 $ 4,336 $ 4,538 $ 12,759 $261,714
Operating lease
obligations ........ 891 1,589 1,310 1,238 1,259 3,173
-------- -------- -------- -------- -------- --------
Total contractual
cash obligations ... $ 2,907 $ 5,738 $ 5,646 $ 5,776 $ 14,018 $264,887
======== ======== ======== ======== ======== ========
Item 3. Quantitative and Qualitative Disclosures About Market Risk
There has been no significant change in our exposures to market risk during the
three and six months ended June 30, 2003. For a detailed discussion of market
risk, see our Annual Report on Form 10K for the year-ended December 31, 2002,
Part II, Item 7A, Quantitative and Qualitative Disclosures About Market Risk.
19
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.
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
(a) The annual meeting of Shareholders of CONMED Corporation (the "Company")
was held on May 20, 2003.
(b) All director nominees were elected.
(c) Certain matters voted upon at the meeting and the votes cast with respect
to such matters are as follows:
Proposals and Vote Tabulations
Votes Cast
------------------ Broker
Management Proposals For Against Abstain Non-votes
--- ------- ------- ---------
To ratify the appointment of
Independent accountants for the
Company for 2003; 23,162,728 1,293,586 10,816 --
Election of Directors
Director Votes Received Votes Withheld
- -------- -------------- --------------
Eugene R. Corasanti 24,409,881 57,249
Joseph J. Corasanti 24,411,482 55,648
Bruce F. Daniels 24,411,408 55,722
Jo Ann Golden 24,411,684 55,446
Steve Mandia 24,412,059 55,071
William D. Matthews 24,411,609 55,521
Robert E. Remmell 24,411,012 56,118
Stuart J. Schwartz 24,411,333 55,797
20
Item 6. Exhibits and Reports on Form 8-K
List of Exhibits
Exhibit No. Description of Exhibit
----------- ----------------------
10.1 Amended and Restated Credit Agreement, dated June 30, 2003,
among CONMED Corporation, JPMorgan Chase Bank and the several
banks and other financial institutions or entities from time
to time parties thereto.
10.2 First Amendment to Guarantee and Collateral Agreement, dated
June 30, 2003, made by CONMED Corporation and certain of its
subsidiaries in favor of JPMorgan Chase Bank and the several
banks and other financial institutions or entities from time
to time parties thereto.
31.1 Certification pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2 Certification pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1 Certification pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Reports on Form 8-K
On July 18, 2003, the Company filed a Report on Form 8-K furnishing as Exhibit
99.1 under Item 7, a July 17, 2003 press release announcing second quarter and
first half 2003 results.
21
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: August 11, 2003
/s/ Robert D. Shallish, Jr.
----------------------------------
Robert D. Shallish, Jr.
Vice President - Finance
(Principal Financial Officer)
22
Exhibit Index
Exhibit Sequential
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10.1 Amended and Restated Credit Agreement, dated June 30, (included in EDGAR
2003, among CONMED Corporation, JPMorgan Chase Bank filing only)
and the several banks and other financial
institutions or entities from time to time parties
thereto.
10.2 First Amendment to Guarantee and Collateral (included in EDGAR
Agreement, dated June 30, 2003, made by CONMED filing only)
Corporation and certain of its subsidiaries in favor
of JPMorgan Chase Bank and the several banks and
other financial institutions or entities from time to
time parties thereto.
31.1 Certification pursuant to 18 U.S.C. Section 1350, as E-1
adopted pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002
31.2 Certification pursuant to 18 U.S.C. Section 1350, as E-2
adopted pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002
32.1 Certification pursuant to 18 U.S.C. Section 1350, as E-3
adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002
23
Exhibit 10.1
EXECUTION COPY
================================================================================
$359,500,000
AMENDED AND RESTATED CREDIT AGREEMENT
among
CONMED Corporation,
as Borrower
The Several Lenders
from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of June 30, 2003
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.................................................................25
SECTION 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans......................26
SECTION 2.8 Repayment of Loans...................................................................27
SECTION 2.9 Commitment Fees, etc.................................................................28
SECTION 2.10 Termination or Reduction of Revolving Credit Commitments.............................28
SECTION 2.11 Optional Prepayments.................................................................28
SECTION 2.12 Mandatory Prepayments and Commitment Reductions......................................29
SECTION 2.13 Conversion and Continuation Options..................................................29
SECTION 2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches............................30
SECTION 2.15 Interest Rates and Payment Dates.....................................................30
SECTION 2.16 Computation of Interest and Fees.....................................................31
SECTION 2.17 Inability to Determine Interest Rate.................................................31
SECTION 2.18 Pro Rata Treatment and Payments......................................................31
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Page
SECTION 2.19 Requirements of Law..................................................................33
SECTION 2.20 Taxes ...............................................................................34
SECTION 2.21 Indemnity............................................................................35
SECTION 2.22 Illegality...........................................................................35
SECTION 2.23 Change of Lending Office.............................................................35
SECTION 2.24 Replacement of Lenders under Certain Circumstances...................................36
ARTICLE III. LETTERS OF CREDIT..............................................................................36
SECTION 3.1 L/C Commitment.......................................................................36
SECTION 3.2 Procedure for Issuance of Letter of Credit...........................................36
SECTION 3.3 Commissions, Fees and Other Charges..................................................37
SECTION 3.4 L/C Participations...................................................................37
SECTION 3.5 Reimbursement Obligation of the Borrower.............................................38
SECTION 3.6 Obligations Absolute.................................................................38
SECTION 3.7 Letter of Credit Payments............................................................39
SECTION 3.8 Applications.........................................................................39
SECTION 3.9 Transitional Provisions..............................................................39
ARTICLE IV. REPRESENTATIONS AND WARRANTIES..................................................................39
SECTION 4.1 Financial Condition..................................................................39
SECTION 4.2 No Change............................................................................40
SECTION 4.3 Corporate Existence; Compliance with Law.............................................40
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations..............................40
SECTION 4.5 No Legal Bar.........................................................................40
SECTION 4.6 No Material Litigation...............................................................40
SECTION 4.7 No Default...........................................................................40
SECTION 4.8 Ownership of Property; Liens.........................................................41
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Page
SECTION 4.9 Intellectual Property................................................................41
SECTION 4.10 Taxes ...............................................................................41
SECTION 4.11 Federal Regulations..................................................................41
SECTION 4.12 Labor Matters........................................................................41
SECTION 4.13 ERISA ...............................................................................41
SECTION 4.14 Investment Company Act; Other Regulations............................................42
SECTION 4.15 Subsidiaries.........................................................................42
SECTION 4.16 Use of Proceeds......................................................................42
SECTION 4.17 Environmental Matters................................................................42
SECTION 4.18 Accuracy of Information, etc.........................................................43
SECTION 4.19 Security Documents...................................................................43
SECTION 4.20 Solvency.............................................................................44
ARTICLE V. CONDITIONS PRECEDENT.............................................................................44
SECTION 5.1 Conditions to the Effectiveness of this Agreement....................................44
SECTION 5.2 Conditions to Each Extension of Credit...............................................45
ARTICLE VI. AFFIRMATIVE COVENANTS...........................................................................45
SECTION 6.1 Financial Statements.................................................................45
SECTION 6.2 Certificates; Other Information......................................................46
SECTION 6.3 Payment of Obligations...............................................................47
SECTION 6.4 Conduct of Business and Maintenance of Existence, etc................................47
SECTION 6.5 Maintenance of Property; Insurance...................................................47
SECTION 6.6 Inspection of Property; Books and Records; Discussions...............................48
SECTION 6.7 Notices .............................................................................48
SECTION 6.8 Environmental Laws...................................................................48
SECTION 6.9 Additional Collateral, etc...........................................................49
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Page
SECTION 6.10 Additional Covenants Relating to Collateral..........................................50
SECTION 6.11 Interest Rate Protection.............................................................51
ARTICLE VII. NEGATIVE COVENANTS.............................................................................51
SECTION 7.1 Financial Condition Covenants........................................................51
SECTION 7.2 Limitation on Indebtedness...........................................................52
SECTION 7.3 Limitation on Liens..................................................................54
SECTION 7.4 Limitation on Fundamental Changes....................................................55
SECTION 7.5 Limitation on Sale of Assets.........................................................56
SECTION 7.6 Limitation on Dividends..............................................................57
SECTION 7.7 Limitation on Capital Expenditures...................................................57
SECTION 7.8 Limitation on Investments, Loans and Advances........................................58
SECTION 7.9 Limitation on Optional Payments and Modifications of Debt Instruments, etc...........59
SECTION 7.10 Limitation on Transactions with Affiliates...........................................59
SECTION 7.11 Limitation on Sales and Leasebacks...................................................60
SECTION 7.12 Limitation on Changes in Fiscal Periods..............................................60
SECTION 7.13 Limitation on Negative Pledge Clauses................................................60
SECTION 7.14 Limitation on Restrictions on Subsidiary Distributions...............................60
SECTION 7.15 Limitation on Lines of Business......................................................60
ARTICLE VIII. EVENTS OF DEFAULT.............................................................................60
ARTICLE IX. THE ADMINISTRATIVE AGENT........................................................................63
SECTION 9.1 Appointment..........................................................................63
SECTION 9.2 Delegation of Duties.................................................................63
SECTION 9.3 Exculpatory Provisions...............................................................64
SECTION 9.4 Reliance by Administrative Agent.....................................................64
SECTION 9.5 Notice of Default....................................................................64
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SECTION 9.6 Non-Reliance on Administrative Agent and Other Lenders...............................64
SECTION 9.7 Indemnification......................................................................65
SECTION 9.8 Administrative Agent in Its Individual Capacity......................................65
SECTION 9.9 Successor Administrative Agents......................................................65
SECTION 9.10 Authorization to Release Liens.......................................................66
ARTICLE X. MISCELLANEOUS....................................................................................66
SECTION 10.1 Amendments and Waivers...............................................................66
SECTION 10.2 Notices .............................................................................67
SECTION 10.3 No Waiver; Cumulative Remedies.......................................................68
SECTION 10.4 Survival of Representations and Warranties...........................................68
SECTION 10.5 Payment of Expenses..................................................................68
SECTION 10.6 Successors and Assigns; Participations and Assignments...............................69
SECTION 10.7 Adjustments; Set-off.................................................................72
SECTION 10.8 Counterparts.........................................................................72
SECTION 10.9 Severability.........................................................................72
SECTION 10.10 Integration..........................................................................72
SECTION 10.11 GOVERNING LAW........................................................................73
SECTION 10.12 Submission To Jurisdiction; Waivers..................................................73
SECTION 10.13 Acknowledgements.....................................................................73
SECTION 10.14 WAIVERS OF JURY TRIAL................................................................73
SECTION 10.15 Confidentiality......................................................................74
SECTION 10.16 Releases.............................................................................74
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SCHEDULES:
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-1 Form of Guarantee and Collateral Agreement
A-2 Form of First Amendment to 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
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AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"), dated as
of June 30, 2003, 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") and JPMORGAN CHASE BANK,
as administrative agent.
The Borrower, certain Lenders parties hereto and the Administrative
Agent are parties to a Credit Agreement dated as of August 28, 2002 (as
heretofore modified and supplemented and in effect immediately before giving
effect to the amendment and restatement contemplated hereby, the "Original
Credit Agreement"), providing for "Revolving Credit Loans" and "Tranche B Term
Loans" in an aggregate principal amount of $200,000,000; and
The Borrower has requested that the Original Credit Agreement be
amended, among other things, (i) to provide for additional Tranche B Term Loans
in an aggregate principal amount of $160,000,000, (ii) to provide for the
Refinancing (as defined herein) and (iii) to effect certain other related
amendments to the Original Credit Agreement. The Borrower has also requested
that the Original Credit Agreement, as so amended, be restated in its entirety
to read as provided herein. Accordingly, effective on the Restatement Effective
Date (as defined herein), the Original Credit Agreement shall be amended and
restated to read in its entirety 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.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date or the Restatement Effective
Date, as applicable, 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.
2
"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 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
Permitted Subordinated Indebtedness in accordance with Section 7.9(a) (for
the avoidance of doubt, excluding the Senior Subordinated Notes).
"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
3
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).
"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
4
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 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": shall mean August 28, 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 May 2003 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
5
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.
"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 and (iii) principal payments made in respect of loans under the
Original Credit Agreement or the Previous Credit Agreement and (iv)
principal payments in respect of or repurchases of the Senior Subordinated
Notes upon 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(n) (without regard to
whether or not such
6
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 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 $2,000,000 as of
the end of any fiscal quarter, (ii) any net non-cash adjustments to such
amounts after the Closing Date resulting from the application of FASB 142
shall not be included in such amounts and (iii) any net non-cash
adjustments to such amounts after the Closing Date resulting from charges
to in-process research and development in connection with a Permitted
Business Acquisition shall not be included in such amounts.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Funded Debt of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
7
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the directors of the Borrower on the Closing
Date, and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Borrower is
recommended by at least 66-2/3% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Article VIII, whether or
not any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Disposition": with respect to any Property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Dollars" and "$": 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 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
Closing Date, 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.
8
"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
"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) for purposes of Section 2.12(c) only, the
aggregate
9
amount of Senior Subordinated Notes repaid, repurchased or redeemed during
such fiscal year out of funds other than Term Loans borrowed hereunder,
(vi) increases in Consolidated Working Capital for such fiscal year, (vii)
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 (viii) 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 such Subsidiary of
the Obligations, would, in the good faith judgment of the Borrower, result
in adverse tax consequences to the Borrower.
"Existing Facility Letters of Credit": as defined in Section 3.9.
"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.
"First Amendment to Guarantee and Collateral Agreement": the First
Amendment to the Guarantee and Collateral Agreement dated as of June 30,
2003, substantially in the form of Exhibit A-2.
10
"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 dated as of August 28, 2002 and attached hereto as Exhibit A-1,
as amended by the First Amendment to Guarantee and Collateral Agreement,
together with the Acknowledgement and Consent.
"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).
11
"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.
"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
12
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 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
13
(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.
"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.
14
"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 Administrative Agent 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
$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
15
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,
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.
"Original Credit Agreement": as defined in the recitals hereto.
"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
16
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 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.
"Previous 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, which was
refinanced with borrowings under the Original Credit Agreement.
"Pricing Grid": the table set forth below:
17
- -------------------------------------------------------------------------------------------------------------------------
Applicable Margin
for Revolving Applicable Margin Applicable Margin Applicable
Credit Loans that for Term Loans for Revolving Margin for Term
Consolidated Leverage are Eurodollar that are Credit Loans that Loans that are Commitment
Ratio Loans Eurodollar Loans are ABR Loans ABR Loans Fee Rate
- -------------------------------------------------------------------------------------------------------------------------
Greater than or equal 2.750% 3.000% 1.750% 2.000% 0.625%
to 3.25
- -------------------------------------------------------------------------------------------------------------------------
Less than 3.25 but
greater than or equal
to 2.75 2.500% 2.750% 1.500% 1.750% 0.500%
- -------------------------------------------------------------------------------------------------------------------------
Less than 2.75 but
greater than or equal
to 2.25 2.250% 2.750% 1.250% 1.750% 0.500%
- -------------------------------------------------------------------------------------------------------------------------
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 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
18
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 Closing Date, 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).
"Refinancing": the repurchase or redemption in full of the
outstanding Senior Subordinated Notes with the proceeds of the Tranche B-1
Incremental Term Loans.
"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.
"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.
19
"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.
"Restatement Effective Date": the date on which the conditions
precedent set forth in Section 5.1 shall have been satisfied, which date
is June 30, 2003.
"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.
"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.
20
"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.
"Senior Subordinated Notes": the unsecured 9% senior subordinated
notes of the Borrower due 2008.
"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 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.
"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.
21
"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).
"Term Loan Lenders": collectively, the Tranche B Term Loan Lenders
and the Incremental Term Loan Lenders.
"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": the collective reference to the Tranche B
Term Loans made pursuant to Section 2.1(a) of the Original Credit
Agreement, the Tranche B-1 Incremental Term Loans as defined in Section
2.1(a) hereof and any Tranche B Term Loans made pursuant to Section
2.1(b). The aggregate principal amount of the Tranche B Term Loans made
under the Original Credit Agreement on the Restatement Effective Date is
$99,500,000.
"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" and "Tranche B-1 Incremental
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.
"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 or the
22
Restatement Effective Date, as applicable, 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).
"Tranche B-1 Incremental Term Loans": as defined in Section 2.1(a).
"Tranche B-1 Incremental Term Loan Commitment": as to any Lender,
the obligation of such Lender, if any, to make a Tranche B-1 Incremental
Term Loan to the Borrower hereunder in a principal amount not to exceed
the amount set forth under the heading "Tranche B-1 Incremental Term Loan
Commitment" opposite such Lender's name on Schedule 1.1A. The original
aggregate amount of the Tranche B-1 Incremental Term Loan Commitments is
$160,000,000.
"Tranche B-1 Incremental Term Loan Lender": each Lender which has a
Tranche B-1 Incremental Term Loan Commitment or which has made a Tranche
B-1 Incremental Term Loan.
"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.
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.
23
(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) Subject to the terms and
conditions hereof, (i) each Tranche B-1 Incremental Term Loan Lender severally
agrees to make a term loan (a "Tranche B-1 Incremental Term Loan") to the
Borrower on the Restatement Effective Date in an amount not to exceed the amount
of the Tranche B-1 Incremental 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. All Tranche B Term Loans outstanding
under the Original Credit Agreement on the Restatement Effective Date shall
remain outstanding to the Borrower hereunder on the terms set forth herein.
(b) 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 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.
(c) 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.
24
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 (a) prior to 12:00 Noon, New York City time, three
Business Days prior to the Restatement Effective Date, in the case of Eurodollar
Loans, or (b) prior to 12:00 Noon, New York City time, one Business Day prior to
the Restatement Effective Date, in the case of ABR Loans) requesting that the
Tranche B-1 Incremental Term Loan Lenders make the Tranche B-1 Incremental Term
Loans on the Restatement Effective Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall promptly
notify each Tranche B-1 Incremental Term Loan Lender thereof. Not later than
12:00 Noon, New York City time, on the Restatement Effective Date each Tranche
B-1 Incremental 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 or
continuing, as the case may be, on the later of September 30, 2003 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
----------- ----------
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%
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%
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. All Revolving Credit Loans outstanding under
the Original Credit Agreement on the Restatement Effective Date shall remain
outstanding to the Borrower hereunder on the terms set forth herein.
(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 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
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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 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.
27
(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 Section 2.3 (or
on such earlier date on which the Loans become due and payable pursuant to
Article VIII). 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)
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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 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.
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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 Closing Date (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 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
30
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.
(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).
31
(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 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.
32
(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 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
33
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 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).
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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 the Administrative Agent or any Lender by any
jurisdiction under the laws of which the Administrative 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 the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative 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 Administrative Agent or relevant
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 Administrative Agent 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 the Administrative 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 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
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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 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
36
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.
(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
37
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 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.
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(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 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.
39
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.
SECTION 3.9 Transitional Provisions. On the Restatement Effective
Date, the certain letters of credit outstanding under the Original Credit
Agreement as of the Restatement Effective Date (the "Existing Facility Letters
of Credit"), (i) shall be deemed to be Letters of Credit issued pursuant to and
in compliance with this Section 3, (ii) the face amount of such Existing
Facility Letters of Credit shall be included in the calculation of the available
L/C Commitment and the Revolving Extensions of Credit, (iii) the provisions of
this Section 3 shall apply thereto, and the Borrowers and the Revolving Lenders
hereunder hereby expressly assume all obligations with respect to such Letters
of Credit and (iv) all liabilities of the Borrowers with respect to such
Existing Facility Letters of Credit shall constitute Obligations.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent 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 the Administrative Agent
and each Lender that:
SECTION 4.1 Financial Condition.
The audited consolidated balance sheets of the Borrower as at December 31,
2000, December 31, 2001, and December 31, 2002 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 March 31, 2003, 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 March
31, 2003), 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 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, 2002
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.
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SECTION 4.2 No Change. Since December 31, 2002, 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 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
41
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 material constituent of the Intellectual Property or
the validity or effectiveness of any material constituent of the 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 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
42
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
Restatement Effective 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 for the general corporate
purposes, including for acquisitions not prohibited by this Agreement, of the
Borrower and its Subsidiaries. In addition, the proceeds of the Tranche B-1
Incremental Term Loans shall be used (i) for the Refinancing, (ii) to pay
certain transaction fees and expenses related to the Refinancing, and (iii) to
repay other existing indebtedness of the Borrower and its Subsidiaries,
including revolving credit loans made under the Original Credit Agreement. 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.
(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
43
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 Restatement
Effective Date), 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 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
44
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.
ARTICLE V. CONDITIONS PRECEDENT
SECTION 5.1 Conditions to the Effectiveness of this Agreement. The
amendment and restatement of the Original Credit Agreement to be effected
hereby, and the agreement of each Tranche B-1 Incremental Term Loan Lender to
make Tranche B-1 Incremental Term Loans requested to be made by it is subject to
the satisfaction, prior to or concurrently with the making of the Tranche B-1
Incremental Term Loans on the Restatement Effective Date, of the following
conditions precedent:
(a) Amended and Restated Credit Agreement. The Administrative Agent
shall have received this Agreement executed and delivered by the
Administrative Agent, the Borrower, each Lender with a Tranche B-1
Incremental Term Loan Commitment and Lenders party to the Original Credit
Agreement constituting the "Required Lenders" thereunder.
(b) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid on or before the Restatement
Effective Date, and all expenses required to be paid on or before the
Restatement Effective Date for which invoices have been timely presented,
including, without limitation, the reasonable fees and expenses of legal
counsel, on or before the Restatement Effective Date.
(c) Security Documents. The Administrative Agent shall have received
the First Amendment to Guarantee and Collateral Agreement, executed and
delivered by an authorized officer of the Borrower and each other Loan
Party.
(d) 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
Restatement Effective Date pursuant to documentation satisfactory to the
Administrative Agent.
(e) Refinancing. The Refinancing shall have been consummated or
arrangements reasonably satisfactory to the Administrative Agent shall
have been made for the consummation thereof.
(f) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Restatement Effective
Date, substantially in the form of Exhibit C, with appropriate insertions
and attachments.
(g) 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;
and
45
(ii) the legal opinion of Daniel S. Jonas, general counsel of
the Borrower and its Subsidiaries, substantially in the form of Exhibit
E-2.
(h) Compliance Certificate. The Administrative Agent shall have
received a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower after
giving effect to the Refinancing with the provisions of Section 7 referred
to therein as of the last day of the most recently ended fiscal quarter of
the Borrower for which financial statements are available, reasonably
satisfactory in form and substance to the Administrative Agent.
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, the Tranche B-1 Incremental Term Loans) 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 the Administrative Agent hereunder, the Borrower shall
and shall cause each of its Subsidiaries to:
SECTION 6.1 Financial Statements. Furnish to the Administrative
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 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);
46
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 the
Administrative 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;
(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) (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
47
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
(f) 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) 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
48
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
(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.
49
(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.
(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
50
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 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 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.
51
(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 6.11 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 the Administrative 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:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
June 30, 2003 3.75 to 1.00
September 30, 2003 3.75 to 1.00
December 31, 2003 3.65 to 1.00
March 31, 2004 3.50 to 1.00
June 30, 2004 3.50 to 1.00
September 30, 2004 3.35 to 1.00
December 31, 2004 3.35 to 1.00
March 31, 2005 3.25 to 1.00
June 30, 2005 3.25 to 1.00
September 30, 2005 3.25 to 1.00
December 31, 2005 3.00 to 1.00
March 31, 2006 3.00 to 1.00
June 30, 2006 3.00 to 1.00
September 30, 2006 3.00 to 1.00
December 31, 2006 3.00 to 1.00
March 31, 2007 3.00 to 1.00
June 30, 2007 3.00 to 1.00
September 30, 2007 3.00 to 1.00
December 31, 2007 3.00 to 1.00
52
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
Fiscal Quarter Charge Coverage Ratio
-------------- ---------------------
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 3.50 to 1.00
September 30, 2004 3.50 to 1.00
December 31, 2004 3.75 to 1.00
March 31, 2005 3.75 to 1.00
June 30, 2005 3.75 to 1.00
September 30, 2005 3.75 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 4.00 to 1.00
(c) Maintenance of Net Worth. Permit, as of the end of any fiscal
quarter during any fiscal year of the Borrower, Consolidated Net Worth to be
less than the sum of (x) $290,000,000 plus (y) 75% of positive Consolidated Net
Income since December 31, 2002 plus (z) Net Cash Proceeds from the sale of
Capital Stock of the Borrower on a cumulative basis after December 31, 2002.
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;
53
(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;
(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 Closing Date 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) 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);
(h) Indebtedness of the Borrower or its Subsidiaries on account of
industrial revenue bonds in an aggregate principal amount not to exceed
$15,000,000 at any one time outstanding;
(i) 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;
(j) 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;
(k) 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(k) shall be evidenced by a note or similar
instrument and pledged in accordance with Section 6.9 and the Guarantee
and Collateral Agreement;
(l) 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;
(m) 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
54
refinancings, refundings, renewals or extensions thereof (without an
increase in the principal amount thereof);
(n) Indebtedness incurred in connection with a Receivables Transfer
Program in an aggregate principal amount not to exceed $65,000,000; and
(o) 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 Closing Date 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 Closing Date (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
55
Responsible Officer of the Borrower) of such Property at the time it was
acquired (by purchase, construction or otherwise);
(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(g) 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 Closing Date 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(m) 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), any Wholly Owned Subsidiary
Guarantor (provided that the Wholly Owned Subsidiary Guarantor
56
shall be the continuing or surviving corporation) or an entity that will
become a Wholly Owned Subsidiary Guarantor following a Permitted Business
Acquisition;
(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;
(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(k)
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;
57
(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 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 for
each fiscal year through fiscal year 2005, and $25,000,000 for each fiscal year
commencing with fiscal year 2006 and thereafter; provided that (i) any such
amount referred to above, if not so expended in the fiscal year for which it is
permitted, may be
58
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.
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(k) 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;
59
(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 $20,000,000 since
the Closing Date; and
(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,
provided, that, for the calendar year 2003, such amount shall be
$75,000,000 (plus any Available Excess Cash Flow), (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 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 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; or
(c) 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.
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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) 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 (c) 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, (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
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(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)
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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; or (ii) the board of directors of
the Borrower shall cease to consist of a majority of Continuing Directors;
or
(l) 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;
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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 ADMINISTRATIVE AGENT
SECTION 9.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative 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 Administrative 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, the
Administrative Agent shall not 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 Administrative Agent.
SECTION 9.2 Delegation of Duties. The Administrative 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. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
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SECTION 9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its 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 Administrative Agent 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 Administrative Agent 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 Administrative Agent. The Administrative
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 Administrative Agent 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. The Administrative 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. The Administrative 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. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative 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.
SECTION 9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by the
Administrative 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 the
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Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
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 the
Administrative 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, the
Administrative Agent shall not 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 the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
SECTION 9.7 Indemnification. The Lenders agree to indemnify the
Administrative 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 the Administrative 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 the
Administrative 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 the
Administrative 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 Administrative Agent in Its Individual Capacity. The
Administrative 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 the
Administrative Agent was not an Administrative 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, the Administrative 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 Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
SECTION 9.9 Successor Administrative 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
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the
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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.
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.
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 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 Administrative Agent; (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
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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
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent 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:
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: Agent Bank Services Group
1111 Fannin, Tenth Floor
Houston, Texas 77002
Attention: Cymbleine Forde
Telecopy: (713) 750-2938
Telephone: (713) 750-7911
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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 the Administrative 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 Administrative 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 Administrative Agent 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 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 Restatement Effective
Date (in the case of amounts to be paid on the Restatement Effective 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 Administrative Agent 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 the
Administrative 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, the Administrative
Agent and their respective officers, directors, trustees, employees, affiliates,
agents and controlling persons (each, an "indemnitee") harmless from and
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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.
(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.
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(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:
"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.
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(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 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
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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.
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 Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the
73
Administrative Agent 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:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative 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 the Administrative Agent 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
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
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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. The Administrative Agent 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 the Administrative
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 Administrative 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 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 as a Lender
By:___________________________________
Name:
Title:
[______________], as
By:___________________________________
Name:
Title:
[______________], as
By:___________________________________
Name:
Title:
[______________], as
By:___________________________________
Name:
Title:
Exhibit 10.2
FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT
FIRST AMENDMENT, dated as of June 30, 2003 (this "Amendment"), to
the Guarantee and Collateral Agreement, dated as of August 28, 2002 (as amended,
modified or supplemented from time to time, the "Guarantee and Collateral
Agreement"), made by each of the signatories thereto (together with any other
entity that may become a party thereto as provided therein, 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.
WHEREAS, concurrently with the execution of this Amendment, the
Credit Agreement will be amended and restated as of June 30, 2003 (the Credit
Agreement, as so amended and restated, the "Amended and Restated Credit
Agreement"), to provide, among other things, a $160,000,000 Tranche B-1
incremental term loan facility;
WHEREAS, (i) pursuant to the Guarantee and Collateral Agreement the
Grantors (other than the Borrower) have guaranteed the Borrower Obligations (as
defined therein) and (ii) as collateral security for their respective
obligations under the Loan Documents, the Grantors have granted to the
Administrative Agent a security interest in the Collateral described in the
Security Documents;
WHEREAS, in connection with the Amended and Restated Credit
Agreement, the Borrower has requested that the parties hereto agree to amend the
Guarantee and Collateral Agreement in the manner provided for in this Amendment;
and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to continue or make any extensions of credit to the Borrower under the
Amended and Restated Credit Agreement that the parties hereto shall have
executed and delivered this Amendment to the Administrative Agent;
NOW THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Guarantee and
Collateral Agreement.
SECTION 2. AMENDMENTS.
2.1 Amendments to Section 3 of the Guarantee and Collateral
Agreement.
Clause (i) of the proviso to Section 3 of the Guarantee and
Collateral Agreement shall be amended by deleting such clause in its entirety
and substituting in lieu thereof the following:
(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
(w) is prohibited by any Requirements of Law of a Governmental Authority, (x)
requires a consent not obtained of any Governmental Authority pursuant to such
Requirement of Law, (y) 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 Pledged Note, any applicable shareholder or similar agreement
or (z) in the case of any newly acquired license or license held by a newly
acquired subsidiary, would cause such license to become non-exclusive or would
otherwise result in a material diminution in the benefits under such license,
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 or causing such diminution is ineffective under
applicable law.
2.2 Amendment to Section 7.1(b) of the Guarantee and Collateral
Agreement.
Section 7.1(b) of the Guarantee and Collateral Agreement shall be
amended by deleting the reference to Section 6.11 of the Credit Agreement and
replacing it with a reference to Section 6.10 of the Credit Agreement.
2.3 Amendment to Schedules to the Guarantee and Collateral
Agreement. The Schedules to the Guarantee and Collateral Agreement shall be
amended by deleting the existing Schedules in their entirety and substituting in
lieu thereof the new Schedules attached hereto.
SECTION 3. ACKNOWLEDGEMENT AND REAFFIRMATION.
3.1 Acknowledgment of Amended and Restated Credit Agreement. Each of
the Grantors hereby acknowledges and agrees to the Amended and Restated Credit
Amendment, and further acknowledges and agrees that the Obligations under the
Credit Agreement, as amended by the Amended and Restated Credit Amendment, may
be increased and that the Obligations thereunder and under the other Loan
Documents remain in full force and effect as of the date hereof. Each Grantor
hereby agrees that each reference to the "Credit Agreement" in the Guarantee and
Collateral Agreement shall be deemed to be a reference to the Amended and
Restated Credit Agreement. Each Grantor hereby (a) confirms and agrees that its
liabilities under the Loan Documents are, and shall continue to be, in full
force and effect and are hereby confirmed and ratified in all respects; (b)
confirms and acknowledges that it is validly and justly indebted to the
Administrative Agent and the Lenders for the payment of all of the obligations
which it has guaranteed, without offset, defense, cause of action or
counterclaim of any kind or nature whatsoever; (c) reaffirms and admits the
validity and enforceability of the Credit Agreement, as amended by the Amended
and Restated Credit Amendment and the Loan Documents to which it is a party and
Liens in the Collateral which were granted by it pursuant to any of the Loan
Documents or otherwise and (d) confirms such liens have the same perfected
status and priority as existed immediately prior to the effectiveness of the
Amended and Restated Credit Agreement, after giving effect to the amendment and
restatement of the Credit Agreement.
SECTION 4. MISCELLANEOUS.
4.1 Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") on which the
Administrative Agent shall have received this Amendment, executed and delivered
by itself under the Guarantee and Collateral Agreement, and a duly authorized
officer of each of the Grantors.
4.2 Representation and Warranties. After giving effect to the
amendments contained herein, on the Restatement Effective Date, each Grantor
hereby confirms that the representations and warranties set forth in Section 4
of the Guarantee and Collateral Agreement are true and correct in all material
respects and that no Default or Event of Default (as each of these terms are
defined in the Amended and Restated Credit Agreement) shall have occurred and be
continuing as of the Restatement Effective Date after giving effect to this
Amendment.
4.3 Continuing Effect; No Other Waivers or Amendments. This
Amendment shall not constitute an amendment or waiver of or consent to any
provision of the Guarantee and Collateral Agreement and the other Loan Documents
not expressly referred to herein and shall not be construed as an amendment,
waiver or consent to any action on the part of the Borrowers that would require
an amendment, waiver or consent of the Administrative Agent or the Lenders
except as expressly stated herein. Except as expressly amended hereby, the
provisions of the Guarantee and Collateral Agreement and the other Loan
Documents are and shall remain in full force and effect in accordance with their
terms.
4.4 Counterparts. This Amendment may be executed in any number
of separate counterparts by the parties hereto (including by telecopy), each of
which counterparts when so executed shall be an original, but all the
counterparts shall together constitute one and the same instrument.
4.5 Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and reasonable expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
4.6 Headings. Section headings used in this Amendment are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
4.7 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers 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:
CONMED INTEGRATED OR SOLUTIONS, INC.
By: __________________________________
Name:
Title:
LINVATEC BIOMATERIALS, INC.
By: __________________________________
Name:
Title:
Exhibit 31.1
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 report;
3. Based on my knowledge, the financial statements, and other financial
information included in this 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 report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant
and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, 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 report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
function):
a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
August 11, 2003
/s/ Eugene R. Corasanti
-----------------------
Eugene R. Corasanti
Chairman and Chief Executive Officer
E-1
Exhibit 31.2
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 report;
3. Based on my knowledge, the financial statements, and other financial
information included in this 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 report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant
and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, 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 report is being prepared;
b) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
function):
a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to
record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
August 11, 2003
/s/ Robert D. Shallish Jr.
--------------------------
Robert D. Shallish, Jr.
Vice President - Finance and
Chief Financial Officer
E-2
Exhibit 32.1
Section 1350 Certifications
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
(Subsections (a) and (b) of Section 1350, Chapter 63 of Title 18,
United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a)
and (b) of section 1350, chapter 63 of title 18, United States Code), each of
the undersigned officers of CONMED Corporation, a New York corporation (the
"Corporation"), does hereby certify that:
The Quarterly Report on Form 10-Q for the quarter ended June 30, 2003 (the
"Form 10-Q") of the Corporation fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained
in the Form 10-Q fairly presents, in all material respects, the financial
condition and results of operations of the Corporation.
Date: August 11, 2003 /s/ Eugene R. Corasanti
-----------------------
Eugene R. Corasanti
Chairman and Chief Executive Officer
Date: August 11, 2003 /s/ Robert D. Shallish, Jr.
---------------------------
Robert D. Shallish, Jr.
Vice President-Finance and
Chief Financial Officer
The foregoing certification is being furnished as an exhibit to the Form 10-Q
pursuant to Item 601(b)(32) of Regulation S-K and section 906 of the
Sarbanes-Oxley Act of 2002 (subsection (a) and (b) of section 1350, chapter 63
of title 18, United States Code) and, accordingly, is not being filed as part of
the Form 10-Q.
E-3