Form 8-K
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15 (d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
Report (Date of earliest event reported): April 13, 2006
CONMED
CORPORATION
(Exact
name of registrant as specified in its charter)
New
York
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0-16093
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16-0977505
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(State
or other jurisdiction of
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(Commission
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(I.R.S.
Employer
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incorporation
or organization)
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File
Number)
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Identification
No.)
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525
French Road
Utica,
New York 13502
(Address
of principal executive offices, including zip code)
(315)
797-8375
(Registrant's
telephone number, including area code)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligations of the registrant under any of the following
provisions (See General Instruction A.2 below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01
Entry into a Material Definitive Agreement; Item 2.03 Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of
a Registrant.
On
April 13, 2006, CONMED Corporation (the “Company”), as a borrower, entered into
an amended and restated credit agreement with a committed capacity of
$235.0 million comprised of a $100.0 million revolving credit facility and
a $135.0 million term loan (the “Credit Agreement”), among the Company, the
banks party thereto, and JP Morgan Chase Bank, N.A., as administrative agent
(the “Agent”), lead arranger, and bookrunner. The Credit Agreement comprises
commitments from 37 financial institutions. The Credit Agreement permits the
Company to designate foreign subsidiaries as additional borrowers. The Credit
Agreement for the revolving credit loans and the term loan expire on April
13,
2011 and April 12, 2013, respectively, at which time all outstanding amounts
under each of the commitments of the Credit Agreement will be due and payable.
There is $135.0 million outstanding under the term loan and $11.0 million under
the revolving credit facility of the Credit Agreement. The Credit Agreement
amends and restates a credit agreement dated June 30, 2003, for
$360.0 million, that was due to expire in December 2009.
The
Company’s borrowings under the Credit Agreement will bear interest at variable
rates, as described as follows: On borrowings where the Company elects to use
the alternate base rate, the rate will be the greater of the Prime Rate in
effect on such date or the Federal Funds Effective Rate in effect on such date
plus ½ of 1%. On borrowings where the Company elects to use the Eurocurrency
base rate, the interest will be equal to the rate per the Telerate screen on
the
day of borrowing plus a margin.
Borrowings
under the Credit Agreement are secured by assets and rights of the Company
and
certain of its Subsidiaries. The Credit Agreement contains customary covenants
for transactions of this type, including three financial covenants: (i) for
the 12-months ending each quarter-end, the ratio of consolidated total debt
plus
the aggregate outstanding principal amount under our Receivable Transfer Program
to consolidated EBITDA, as defined in the Credit Agreement, must not exceed
4.50
for the quarters ending June 30, 2006 and September 30, 2006, 4.00 for quarters
ending December 31, 2006 and March 31, 2007, 3.75 for quarters ending June
30,
2007, September 30, 2007, and December 31, 2007 and 3.50 for quarters ending
March 31, 2008 and thereafter; (ii) for the 12-months ending each
quarter-end, the ratio of consolidated Senior debt (defined as consolidated
total debt less the convertible senior subordinated debentures and any permitted
subordinated indebtedness) plus the aggregate outstanding principal amount
under
our Receivable Transfer Program to consolidated EBITDA, as defined in the Credit
Agreement, must not exceed 3.00 and (iii) for the 12-months ending each
quarter-end, the ratio of consolidated EBITDA less capital expenditures to
consolidated interest expense and scheduled payments on funded debt, as defined
in the Credit Agreement, may not be less than 2.25 for the quarters ending
June
30, 2006 through December 31, 2006 and 2.50 for the quarters ending March 31,
2006 and thereafter. In addition, as a condition precedent to each borrowing
made under the Credit Agreement, as of the date of such borrowing, (i) no event
of default shall have occurred and be continuing and (ii) the Company is to
reaffirm that the representations and warranties made in the Credit Agreement
are true and correct.
The
Credit Agreement provides for customary events of default, including failure
to
pay any principal or interest when due, failure to comply with covenants, any
representation made by the Company proving to be incorrect, defaults relating
to
other indebtedness of at least $10,000,000 in the aggregate, certain insolvency
and receivership events affecting the Company or its subsidiaries,
judgments not covered by insurance in excess of $10,000,000 in the aggregate
being rendered against the Company or its subsidiaries, the acquisition of
35%
or more by any person
of
any
outstanding class of capital stock having ordinary voting power in the election
of directors of the Company, and the incurrence of certain ERISA liabilities
that would reasonably be expected to have a material adverse effect.
In
the event of a default by the Company, the Agent may, and at the direction
of
the requisite number of Lenders will, terminate the Lenders’ commitments to make
loans under the Credit Agreement, declare the obligations under the Credit
Agreement immediately due and payable and enforce any and all rights of the
Lenders or Agent under the Credit Agreement and related documents. For certain
events of default related to insolvency and receivership, the commitments of
the
Lenders are automatically terminated and all outstanding obligations become
immediately due and payable.
Certain
of the lenders, agents and other parties to the Credit Agreement, and their
affiliates, have in the past provided, and may in the future provide, investment
banking, underwriting, lending, commercial banking and other advisory services
to the company and its subsidiaries. Such lenders, agents and other parties
have
received, and may in the future receive, customary compensation from the Company
and its subsidiaries for such services.
The
foregoing description of the Credit Agreement and related matters is qualified
in its entirety by reference to the Credit Agreement, which will be filed as
Exhibit 10.1 hereto and incorporated herein by reference.
Section9 Financial
Statements and Exhibits
Item
9.01
Financial
Statements and Exhibits.
The
following exhibit is included herewith:
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Exhibit
No. |
Description of
Exhibit |
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Amended
and Restated Credit Agreement dated April 13,
2006.
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Signature
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.
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CONMED
CORPORATION
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(Registrant)
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By: /s/
Robert D. Shallish, Jr.
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Vice
President - Finance and
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Chief
Financial Officer
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Date:
April
18, 2006
Credit Agreement
Exhibit
10.1
$235,000,000
AMENDED
AND RESTATED CREDIT AGREEMENT
among
CONMED
CORPORATION,
as
Parent
Borrower,
The
Foreign Subsidiary Borrowers From Time to Time Parties Hereto,
The
Several Lenders from Time to Time Parties Hereto,
and
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
Dated
as
of April 13, 2006
J.P.
MORGAN SECURITIES INC., as Lead Arranger and Bookrunner
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SCHEDULES:
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1.1A
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Commitments;
Lending Offices and Addresses
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4.1
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Disposition
of Assets
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4.1(b)
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Guarantee
Obligations of CONMED
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4.4
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Consents,
Authorizations, Filings and Notices
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4.6
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Litigation
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4.9
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Intellectual
Property
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4.15
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Subsidiaries
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4.19
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UCC
Filing Jurisdictions
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7.2(e)
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Existing
Indebtedness
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7.3(f)
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Existing
Liens
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EXHIBITS:
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A-1
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Form
of Guarantee and Collateral Agreement
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A-2
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Form
of First Amendment to Guarantee and Collateral
Agreement
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A-3
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Form
of Second Amendment to Guarantee and Collateral
Agreement
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B
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Form
of Compliance Certificate
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C
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Form
of Closing Certificate
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D
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Form
of Assignment and Assumption
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E-1
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Form
of Legal Opinion of Sullivan & Cromwell LLP
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E-2
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Form
of Legal Opinion of General Counsel
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F
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Form
of Exemption Certificate
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G
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Form
of Increased Facility Activation Notice
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H
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Form
of New Lender Supplement
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I
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Form
of Foreign Subsidiary Borrower Joinder
Agreement
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AMENDED
AND RESTATED CREDIT AGREEMENT (this “Agreement”),
dated
as of April 13, 2006, among CONMED CORPORATION, a New York corporation (the
“Parent
Borrower”),
the
Foreign Subsidiary Borrowers (as hereinafter defined) from time to time parties
to this Agreement, the several banks and other financial institutions or
entities from time to time parties to this Agreement (the “Lenders”)
and
JPMORGAN CHASE BANK, N.A., as administrative agent.
The
Parent Borrower, certain Lenders parties hereto and the Administrative Agent
are
parties to an Amended and Restated Credit Agreement dated as of June 30, 2003
(as amended and in effect immediately before giving effect to the amendment
and
restatement contemplated hereby, the “Previous
Credit Agreement”),
providing for “Revolving Credit Loans” and “Tranche B Term Loans”.
The
Parent Borrower has requested that the Previous Credit Agreement be amended
and
restated in its entirety to read as provided herein. Accordingly, effective
as
of the Closing Date (as defined below), the Previous Credit Agreement shall
be
amended and restated in its entirety to read as follows:
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, N.A., together with its branches and affiliates, 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, the aggregate amount of such Lender’s Commitments at such time and (b)
thereafter, the sum of (i) the aggregate unpaid principal amount of such
Lender’s Term Loans and (ii) the amount of such Lender’s Revolving Credit
Commitment then in effect or, if the Revolving Credit Commitments have been
terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.
“Aggregate
Exposure Percentage”:
with
respect to any Lender, the ratio (expressed as a percentage) of such Lender’s
Aggregate Exposure to the Aggregate Exposure of all Lenders.
“Agreement”:
as
defined in the preamble hereto.
“Alternate
Base Rate”:
for
any day, a rate per annum equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day
plus
½ 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”:
for
ABR Loans, 0.75% per annum and for Eurocurrency Loans, 1.75% per annum
provided,
that on
and after the first Adjustment Date occurring after the Closing Date, the
Applicable Margin with respect to each Type of Loan shall be determined pursuant
to the Pricing Grid.
“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), (k) or (l) of Section 7.5) which yields net proceeds to the Parent 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
$5,000,000.
“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 Convertible Senior Subordinated
Debentures).
“Available
Revolving Credit Commitment”:
as to
any Revolving Credit Lender at any time, an amount equal to the excess, if
any,
of (a) such Lender’s Revolving Credit Commitment then in effect over
(b) such
Lender’s Revolving Extensions of Credit then outstanding; provided,
that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Lender’s Available Revolving Commitment pursuant to Section
2.9(a), the aggregate principal amount of Swingline Loans then outstanding
shall
be deemed to be zero.
“Benefitted
Lender”:
as
defined in Section 10.7(a).
“Board”:
the
Board of Governors of the Federal Reserve System of the United States (or any
successor).
“Borrowers”:
the
collective reference to the Parent Borrower and the Foreign Subsidiary
Borrowers.
“Borrowing
Date”:
any
Business Day specified by the Parent Borrower (on its own behalf or on behalf
of
a Foreign Subsidiary Borrower) as a date on which such Borrower requests the
relevant Lenders to make Loans hereunder.
“Business”:
as
defined in Section 4.17(b).
“Business
Day”:
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, provided,
that
(a) with respect to notices and determinations in connection with, and payments
of principal and interest on, Eurocurrency Loans, such day is also a day for
trading in London by and between banks in deposits in the relevant currency
and
(b) where such term is used in connection with a Eurocurrency Loan denominated
in euros, references to “Business Day” shall be deemed to be references to any
Target Operating Day on which banks are open for general banking business in
the
relevant Funding Office.
“Calculation
Date”:
the
third Business Day prior to the last Business Day of each calendar quarter;
provided
that,
each date that is on or about the date of any borrowing request or rollover
request with respect to any Revolving Loans denominated in an Optional Currency
shall also be a “Calculation Date” with respect to such Optional
Currency.
“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,
eurocurrency time deposits or overnight bank deposits having maturities of
six
months or less from the date of acquisition issued by any
Lender
or
by any commercial bank organized under the laws of the United States or any
state thereof having combined capital and surplus of not less than $500,000,000;
(c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s
Ratings Services (“S&P”)
or P-1
by Moody’s Investors Service, Inc. (“Moody’s”),
or
carrying an equivalent rating by a nationally recognized rating agency, if
both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not more
than 30 days with respect to securities issued or fully guaranteed or insured
by
the United States government; (e) securities with maturities of one year or
less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision
or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody’s; (f) securities with maturities of
six months or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (b) of this definition; (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition; or (h) money market funds that (i) comply
with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act
of
1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii)
have portfolio assets of at least $5,000,000,000.
“Chattel
Paper”:
as
defined in the Guarantee and Collateral Agreement.
“Closing
Date”:
the
date on which the conditions precedent set forth in Section 5.1 shall have
been
satisfied, which date is April 13, 2006.
“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
Parent Borrower within the meaning of Section 4001 of ERISA or is part of a
group which includes the Parent 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 March 2006 and furnished to the
Lenders and identified as such by the Parent 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 Parent
Borrower and its Subsidiaries at such date.
“Consolidated
Current Liabilities”:
at any
date, all amounts that would, in conformity with GAAP, be set forth opposite
the
caption “total current liabilities” (or any like caption) on a consolidated
balance sheet of the Parent Borrower and its Subsidiaries at such date, but
excluding (a) the current portion of any Funded Debt of the Parent 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 Parent 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 Parent 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, (iii) principal payments made to refinance the outstanding
loans under the Previous Credit Agreement in connection with the amendment
and
restatement as set forth in this Agreement and (iv) principal payments in
respect of the Receivables Transfer Program). For the avoidance of doubt,
“Consolidated Fixed Charges” shall not include any payments made on account of
principal of Funded Debt of the Parent 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 Parent Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Parent 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(l) (without regard to whether or not such amount is incurred
by
or attributed to a Loan Party or whether or not it is reflected in the
consolidated balance sheet of the Parent Borrower and its Subsidiaries), on
such
day to (b) Consolidated EBITDA for such period; provided
that for
purposes of calculating Consolidated EBITDA of the Parent Borrower and its
Subsidiaries for any period, (i) if during such period the Parent 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
Parent 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 Parent 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 Parent 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 Parent Borrower or is merged into
or
consolidated with the Parent Borrower or any of its Subsidiaries, (b) the income
(or deficit) of any Person (other than a Subsidiary of the Parent Borrower)
in
which the Parent Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the Parent
Borrower or such Subsidiary in the form of dividends or similar distributions
and (c) the undistributed earnings of any Subsidiary of the Parent 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
Senior Debt”:
all
Consolidated Total Debt, other than the Convertible Senior Subordinated
Debentures and any Permitted Subordinated Indebtedness.
“Consolidated
Senior Debt Leverage Ratio”:
as at
the last day of any period of four consecutive fiscal quarters, the ratio of
(a)
(x) Consolidated Senior 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(l) (without regard to whether or not such amount is incurred
by
or attributed to a Loan Party or whether or not it is reflected in the
consolidated balance sheet of the Parent Borrower and its Subsidiaries), on
such
day
to
(b) Consolidated EBITDA for such period; provided
that,
for purposes of calculating Consolidated EBITDA of the Parent Borrower and
its
Subsidiaries for any period, (i) if during such period the Parent 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
Parent 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 Parent Borrower and its Subsidiaries, such remaining amount
shall be deducted from the amount of Consolidated Senior Debt for such
period).
“Consolidated
Total Tangible Assets”:
as of
any date of determination thereof, the aggregate consolidated book value of
the
assets of the Parent Borrower and its Subsidiaries (other than patents, patent
rights, trademarks, trade names, franchises, copyrights, licenses, permits,
goodwill and other similar intangible assets properly classified as such in
accordance with GAAP) after all appropriate adjustments in accordance with
GAAP
(including, without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization).
“Consolidated
Total Debt”:
at any
date, the aggregate principal amount of all Funded Debt of the Parent Borrower
and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
“Consolidated
Working Capital”:
at any
date, the excess of Consolidated Current Assets on such date over
Consolidated Current Liabilities on such date.
“Continuing
Directors”:
the
directors of the Parent 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 Parent 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.
“Convertible
Senior Subordinated Debentures”:
the
Parent Borrower’s 2½% Convertible Senior Subordinated Debentures due
2024.
“Convertible
Senior Subordinated Debentures Indenture”:
the
Indenture entered into in connection with the issuance of the Convertible Senior
Subordinated Debentures.
“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.
“Dollar
Equivalent”:
at any
time as to any amount denominated in an Optional Currency, the equivalent amount
in Dollars as determined by the Administrative Agent at such time on the basis
of the Exchange Rate for the purchase of Dollars with such Optional Currency
on
the most recent Calculation Date for such Optional Currency.
“Dollars”
and
“$”:
dollars in lawful currency of the United States.
“Domestic
Subsidiary”:
any
Subsidiary of the Parent 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 acquisition of the Largo,
Florida facility 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.
“EUR”
and
“euro”:
means
the single currency unit of the Participating Member States.
“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
Base Rate”:
with
respect to each day during each Interest Period pertaining to a Eurocurrency
Loan, the rate per annum determined on the basis of the rate for deposits in
the
relevant currency for a period equal to such Interest Period commencing on
the
first day of such Interest Period appearing on the relevant page of the Telerate
screen as of 11:00 A.M., Local Time, on the Quotation Day for such Interest
Period. In the event that such rate does not appear on the Telerate screen,
the
“Eurocurrency Base Rate” shall be determined by reference to such other
comparable publicly available service for displaying eurocurrency rates as
may
be reasonably selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered deposits in the relevant currency at or about 11:00 A.M., Local Time,
two Business Days prior to the beginning of such Interest Period in the
interbank eurocurrency market where its relevant eurocurrency 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.
“Eurocurrency
Loans”:
Loans
the rate of interest applicable to which is based upon the Eurocurrency
Rate.
“Eurocurrency
Rate”:
with
respect to each day during each Interest Period pertaining to a Eurocurrency
Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%); provided
that, in
the case of any Eurocurrency Loan denominated in Sterling or euros, such rate
shall be increased to provide for the customary mandatory cost formula addition
as determined by the Administrative Agent in accordance with its normal
practices:
Eurocurrency
Base Rate
|
1.00
- Eurocurrency Reserve Requirements
|
“Eurocurrency
Reserve Requirements”:
for
any day as applied to a Eurocurrency Loan, the aggregate (without duplication)
of the maximum rates (expressed as a decimal fraction) of reserve requirements
in effect on such day (including 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.
“Eurocurrency
Tranche”:
the
collective reference to Eurocurrency Loans under a particular Facility and
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 Section 8, 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 Parent 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 Parent 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 Parent 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 Parent 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 amount of Convertible Senior Subordinated Debentures 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 Parent 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
Parent 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%
|
“Exchange
Rate”:
on any
day, with respect to any Optional Currency, the rate at which such Optional
Currency may be exchanged into Dollars, as set forth at approximately 11:00
A.M., Local Time, on such day on the applicable Reuters World Spot Page. In
the
event that any such rate does not appear on any Reuters World Spot Page, the
Exchange Rate shall be determined by reference to such other publicly available
service for displaying exchange rates reasonably selected by the Administrative
Agent in consultation with the Parent Borrower for such purpose or, at the
discretion of the Administrative Agent in consultation with the Parent Borrower,
such Exchange Rate shall instead be the arithmetic average of the spot rates
of
exchange of the Administrative Agent in the market where its foreign currency
exchange operations in respect of such Optional Currency are then being
conducted, at or about 11:00 A.M., Local Time, on such day for the purchase
of
the applicable Optional Currency for delivery three Business Days later,
provided
that, if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent may use any other reasonable method
it
deems appropriate to determine such rate, and such determination shall be
presumed correct absent manifest error.
“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 Parent
Borrower, result in adverse tax consequences to the Parent
Borrower.
“Existing
Facility Letters of Credit”:
as
defined in Section 3.9.
“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.
“Foreign
Subsidiary”:
any
Subsidiary of the Parent Borrower that is not a Domestic
Subsidiary.
“Foreign
Subsidiary Borrowers”:
any
Wholly-Owned Foreign Subsidiary with respect to which the conditions set forth
in Section 2.25 shall have been satisfied.
“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 and Second 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 Parent 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) or
Section 2.4(c).
“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 Parent 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 Parent 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 Section 8(e), all obligations of such Person
in
respect of Swap Agreements and (k) the liquidation value of any preferred
Capital Stock of such Person or its Subsidiaries held by any Person other than
such Person and its Wholly-Owned Subsidiaries.
“Insolvency”:
with
respect to any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.
“Insolvent”:
pertaining to a condition of Insolvency.
“Instrument”:
as
defined in the Guarantee and Collateral Agreement.
“Intellectual
Property”:
the
collective reference to all rights, priorities and privileges relating to
intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses, technology,
know-how and processes, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
“Interest
Payment Date”:
(a) as
to any ABR Loan (other than any Swingline Loan), the last Business Day of each
March, June, September and December to occur while such Loan is outstanding
and
the final maturity date of such Loan, (b) as to any Eurocurrency Loan having
an
Interest Period of three months or less, the last day of such Interest Period,
(c) as to any Eurocurrency 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 Eurocurrency Loan, (a) initially, the period commencing on the borrowing
or
conversion date, as the case may be, with respect to such Eurocurrency Loan
and
ending one, two, three or six months thereafter, as selected by the Parent
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 Eurocurrency Loan and ending one, two, three
or six, as selected by the Parent Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day
of
the then current Interest Period with respect thereto; provided
that all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(a) if
any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
the
result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;
(b) any
Interest Period that would otherwise extend beyond the Revolving Credit
Termination Date or beyond the date final payment is due on the Tranche B Term
Loans or any Incremental Term Loan, as the case may be, shall end on the
Revolving Credit Termination Date or such due date, as applicable;
(c) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and
(d) the
relevant Borrower shall use reasonable efforts to select Interest Periods so
as
not to require a payment or prepayment of any Eurocurrency Loan during an
Interest Period for such Loan.
Notwithstanding
the foregoing, each Interest Period for Revolving Credit Loans in an Optional
Currency as to which the Overnight Eurocurrency Rate shall apply shall commence
on a Business Day and end on the next succeeding Business Day.
“Inventory”:
as
defined in the Guarantee and Collateral Agreement.
“Issuing
Lender”:
JPMorgan Chase Bank, N.A., in its capacity as issuer of any Letter of
Credit..
“L/C
Commitment”:
$20,000,000.
“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
Parent 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
Parent Borrower and each Subsidiary of the Parent Borrower which is a party
to a
Loan Document.
“Local
Time”:
(a)
with respect to Loans denominated in Sterling or in euros, London time and
(b)
for all other purposes, New York City time.
“Majority
Facility Lenders”:
with
respect to any Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Term Loans or the Total Revolving Extensions of Credit,
as the case may be, outstanding under such Facility (or, in the case of the
Revolving Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments).
“Majority
Revolving Credit Facility Lenders”:
the
Majority Facility Lenders in respect of the Revolving Credit
Facility.
“Material
Acquisition”:
any
acquisition of Property or series of related acquisitions of Property that
(x)
constitutes assets comprising all or substantially all of an operating unit
or a
business, line of business or product line or constitutes all or substantially
all of the common stock of a Person and (y) involves the payment of
consideration by the Parent 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 Parent 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 Parent 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 Parent 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
Parent Borrower or any Subsidiary and (ii) with respect to which either
(A) its annual revenues exceed $5,000,000 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 $5,000,000 and (b) any Domestic
Subsidiary which has incurred Indebtedness in excess of $1,000,000; provided
that
(x) the aggregate annual revenues of all non-Material Domestic
Subsidiaries
shall not exceed $10,000,000 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
$10,000,000 at any one time.
“Material
Foreign Subsidiary”:
at any
time, any Foreign Subsidiary (i) which is directly owned by the Parent
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 $25,000,000 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
$40,000,000.
“Materials
of Environmental Concern”:
any
gasoline or petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes, defined
or
to the extent regulated as such in or under any applicable Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
“Multiemployer
Plan”:
a Plan
which is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Cash Proceeds”:
(a) in
connection with any Asset Sale or any Recovery Event, the proceeds thereof
in
the form of cash and Cash Equivalents (including any such proceeds received
by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as
and
when received) of such Asset Sale or Recovery Event, net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder
on
any asset which is the subject of such Asset Sale or Recovery Event (other
than
any Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (b)
in
connection with any issuance or sale of equity securities or debt securities
or
instruments or the incurrence of loans, the cash proceeds received from such
issuance or incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
“New
Lender”:
as
defined in Section 2.1(c).
“New
Lender Supplement”:
as
defined in Section 2.1(c).
“Non-Excluded
Taxes”:
as
defined in Section 2.20(a).
“Non-U.S.
Lender”:
as
defined in Section 2.20(d).
“Notes”:
collectively, any promissory note evidencing Loans.
“Obligations”:
the
unpaid principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency,
reorganization
or like proceeding, relating to any 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 each 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 any Borrower pursuant hereto) or
otherwise.
“Optional
Currency”:
euros
and Sterling.
“Optional
Currency Revolving Credit Loans”:
Revolving Credit Loans in an Optional Currency.
“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.
“Overnight
Eurocurrency Rate”:
with
respect to any amount denominated in an Optional Currency, the rate of interest
per annum at which overnight deposits in the applicable Optional Currency,
in an
amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day by a branch or Affiliate of
JPMorgan Chase Bank, N.A. in the applicable offshore interbank market for such
currency to major banks in such interbank market.
“Parent
Borrower”:
as
defined in the preamble hereto.
“Participant”:
as
defined in Section 10.6(c)(i).
“Participating
Member State”:
means
any member state of the European Communities that adopts or has adopted the
euro
as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
“PBGC”:
the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title
IV of ERISA (or any successor).
“Permitted
Asset Sale Amount”:
initially $50,000,000, which amount shall increase by $10,000,000 on the first
day of each fiscal year following the Closing Date.
“Permitted
Business Acquisition”:
any
acquisition of all or substantially all the assets of, or shares or other equity
interests in, a Person or division or line of business of a Person (or any
subsequent investment made in a previously acquired Permitted Business
Acquisition) if immediately after giving effect thereto: (a) no Default or
Event
of Default shall have occurred and be continuing or would result therefrom,
(b) all transactions related thereto shall be consummated in accordance
with applicable laws in all material respects, (c) any acquired or newly formed
corporation, partnership, association or other business entity shall be a
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 Parent 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 Parent 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 Parent 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 $20,000,000 (without regard to the making of any earn-out
payments), then the Parent 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 Parent 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 Convertible Senior Subordinated Debentures 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 Convertible Senior Subordinated
Debentures 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 for comparable instruments of like kind and structure. For avoidance
of
any doubt, the Convertible Senior Subordinated Debentures are Permitted
Subordinated Indebtedness.
“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 Parent 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”:
as
defined in the recitals hereto.
“Pricing
Grid”:
the
table set forth below:
Consolidated
Leverage
Ratio
|
Applicable
Margin
for
Revolving
Credit
Loans
that
are
Eurocurrency
Loans
|
Applicable
Margin
for
Tranche
B
Term
Loans
that
are
Eurocurrency
Loans
|
Applicable
Margin
for
Revolving
Credit
Loans
that
are ABR
Loans
|
Applicable
Margin
for
Tranche
B
Term
Loans
that
are ABR
Loans
|
Commitment
Fee
Rate
|
Greater
than or
equal
to 3.75
|
2.000%
|
2.000%
|
1.000%
|
1.000%
|
0.500%
|
Less
than 3.75
but
greater than
or
equal to 3.50
|
1.750%
|
1.750%
|
0.750%
|
0.750%
|
0.500%
|
Less
than 3.50
but
greater than
or
equal to 3.00
|
1.500%
|
1.750%
|
0.500%
|
0.750%
|
0.500%
|
Less
than 3.00
but
greater than
or
equal to 2.50
|
1.375%
|
1.500%
|
0.375%
|
0.500%
|
0.375%
|
Less
than 2.50
but
greater than
or
equal to 2.00
|
1.250%
|
1.500%
|
0.250%
|
0.500%
|
0.300%
|
Less
than 2.00
|
1.125%
|
1.500%
|
0.125%
|
0.500%
|
0.250%
|
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 3.75
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 3.75 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 Parent 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.
“Quotation
Day”:
in
respect of the determination of the Eurocurrency Rate for any Interest Period
for Eurocurrency Loans in Dollars or any Optional Currency, the day on which
quotations would ordinarily be given by prime banks in the London interbank
market for deposits in such currency for delivery on the first day of such
Interest Period for such Interest Period; provided,
that if
quotations would ordinarily be given on more than one date, the Quotation Day
for such Interest Period shall be the last of such dates. On the date hereof,
the Quotation Day in respect of any Interest Period (i) for euros is customarily
the day which is two Business Days prior to the first day of such Interest
Period and (ii) for Sterling is customarily the day which is the first day
of
such Interest Period.
“Receivables
Transfer Program”:
a
program under which the Parent Borrower or any of its Subsidiaries sell,
transfer, encumber or otherwise dispose of accounts receivable or related
ancillary rights or assets, or interests therein, without recourse (except
for
customary representations and customary non-credit dilution provisions) other
than with respect to the Parent 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 Parent Borrower
or
any of its Subsidiaries (excluding, for the avoidance of doubt, the proceeds
of
business interruption insurance for lost revenues).
“Refunded
Swingline Loans”:
as
defined in Section 2.7(b).
“Register”:
as
defined in Section 10.6(b)(iv).
“Regulation
U”:
Regulation U of the Board as in effect from time to time.
“Reimbursement
Obligation”:
the
obligation of any 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 Parent 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 Parent 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 Parent 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 Parent
Borrower shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the Parent Borrower’s business with all or any portion
of the relevant Reinvestment Deferred Amount.
“Reorganization”:
with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.
“Reportable
Event”:
any of
the events set forth in Section 4043(c) of ERISA, other than those events as
to
which the thirty day notice period is waived under subsections .27, .28, .29,
.30, .31, .32, .34 or .35 of PBGC Reg. § 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 Parent 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 Parent Borrower.
“Revolving
Credit Commitment”:
as to
any Lender, the obligation of such Lender, if any, to make Revolving Credit
Loans and participate in Swingline Loans and Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set forth under the
heading “Revolving Credit Commitment” opposite such Lender’s name on Schedule
1.1A or in the Assignment and Assumption pursuant to which such Revolving Credit
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving Credit
Commitments is $100,000,000.
“Revolving
Credit Commitment Period”:
the
period from and including the Closing Date to the Revolving Credit Termination
Date.
“Revolving
Credit Lender”:
each
Lender which has a Revolving Credit Commitment or which has made Revolving
Credit Loans.
“Revolving
Credit Loans”:
as
defined in Section 2.4(a).
“Revolving
Credit Percentage”:
as to
any Revolving Credit Lender at any time, the percentage which such Lender’s
Revolving Credit Commitment then constitutes of the Total Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments shall have
expired or terminated, the percentage which the aggregate principal amount
of
such Lender’s Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans then
outstanding).
“Revolving
Credit Termination Date”:
the
fifth anniversary of the Closing Date, as such date may be extended in
accordance with Section 10.1.
“Revolving
Extensions of Credit”:
as to
any Revolving Credit Lender at any time, an amount equal to the sum of (a)
the
aggregate principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender’s Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender’s Revolving Credit Percentage
of the aggregate principal amount of Swingline Loans then
outstanding.
“SEC”:
the
Securities and Exchange Commission (or successors thereto or an analogous
Governmental Authority).
“Second
Amendment to Guarantee and Collateral Agreement”:
the
Second Amendment to the Guarantee and Collateral Agreement dated as of April
13,
2006, substantially in the form of Exhibit A-3.
“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.
“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.
“Sterling”:
the
lawful currency of the United Kingdom.
“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 Parent Borrower.
“Subsidiary
Guarantor”:
(a)
each Material Domestic Subsidiary of the Parent Borrower and (b) each Material
Foreign Subsidiary of the Borrower other than Excluded Foreign
Subsidiaries.
“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 Parent 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, N.A., 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).
“Target
Operating Day”:
any
day that is not (a) a Saturday or Sunday, (b) Christmas Day or New Year’s Day or
(c) any other day on which the Trans-European Real-time Gross Settlement Express
Transfer System (or any successor settlement system) is not operating (as
reasonably determined by the Administrative Agent).
“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”:
as
defined in Section 2.1.
“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 Parent Borrower hereunder in a principal amount not to exceed the amount
set forth under the heading “Tranche B Term Loan Commitment” opposite such
Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to
which such Tranche B Term Loan Lender became a party hereto.
“Tranche
B Term Loan Lender”:
each
Lender which has a Tranche B Term Loan Commitment or which has made a Tranche
B
Term Loan.
“Tranche
B Term Loan Percentage”:
as to
any Tranche B Term Loan Lender at any time, the percentage which such Lender’s
Tranche B Term Loan Commitment then constitutes of the aggregate Tranche B
Term
Loan Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender’s Tranche B Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche B
Term
Loans then outstanding).
“Transferee”:
as
defined in Section 10.15.
“Type”:
as to
any Loan, its nature as an ABR Loan or a Eurocurrency 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 Parent
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 Parent Borrower
and
its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined
in
Section 1.1, to the extent not defined, shall have the respective meanings
given
to them under GAAP.
(c)
The words “hereof”, “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any
particular provision of this Agreement, and Article, Section, Schedule and
Exhibit references are to this Agreement unless otherwise
specified.
(d)
The meanings given to terms defined herein shall be equally applicable to both
the singular and plural forms of such terms.
(e)
References to agreements or other Contractual Obligations shall, unless
otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time.
SECTION
1.3 Exchange
Rates.
(a) Not later than 1:00 P.M., Local Time, on each Calculation Date,
the Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date for each Optional Currency in which a Loan is then outstanding
and (ii) give notice thereof to the Parent Borrower. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a “Reset
Date”)
and
shall remain effective until the next succeeding Reset Date.
(b)
Not
later
than 2:00 P.M., Local Time, on each Reset Date, the Administrative Agent shall
(i) determine the aggregate amount of Revolving Extensions of Credit in Optional
Currencies on such date (after giving effect to any Revolving Credit Loans
or
Letters of Credit to be made or issued in connection with such determination),
and (ii) notify the Parent Borrower of such determination.
SECTION
2.1 Term
Loan Commitments.(a)
Subject to the terms and conditions hereof, (i) each Tranche B Term Loan Lender
severally agrees to make a term loan (a “Tranche
B Term Loan”)
to the
Parent Borrower on the Closing Date in Dollars in an amount not to exceed the
amount of the Tranche B Term Loan Commitment of such Lender and (ii) each
Incremental Term Loan Lender severally agrees to make one or more term loans
(each an “Incremental
Term Loan”)
to the
Parent Borrower to the extent provided in Section 2.1(b). The Term Loans may
from time to time be Eurocurrency Loans or ABR Loans, as determined by the
Parent Borrower and notified to the Administrative Agent in accordance with
Sections 2.2 and 2.13. All Tranche B Term Loans outstanding under the
Previous Credit Agreement on the Closing Date shall remain outstanding to the
Parent Borrower hereunder on the terms set forth herein.
(b)
The Parent 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 Parent
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 Parent Borrower and the Administrative Agent (which consent
shall
not be unreasonably withheld), elects to become a “Lender” under this Agreement
in connection with any transaction described in Section 2.1(b) shall execute
a
New Lender Supplement (each, a “New
Lender Supplement”),
substantially in the form of Exhibit H, whereupon such bank, financial
institution or other entity (a “New
Lender”)
shall
become a Lender for all purposes and to the same extent as if originally a
party
hereto and shall be bound by and entitled to the benefits of this
Agreement.
SECTION
2.2 Procedure
for Term Loan Borrowing.
The
Parent 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 Closing Date, in the case
of
Eurocurrency Loans, or (b) prior to 12:00 Noon, New York City time, one
Business Day prior to the Closing Date, in the case of ABR Loans) requesting
that the Tranche B Term Loan Lenders make the Tranche B Term Loans on the
Closing Date and specifying the amount to be borrowed. Upon receipt of such
notice the Administrative Agent shall promptly notify each Tranche B Term Loan
Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing
Date each Tranche B 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 Parent Borrower the aggregate of the amounts made
available to the Administrative Agent by the Term Loan Lenders in immediately
available funds.
SECTION
2.3 Repayment
of Term Loans.
(a) Subject to Section 2.8(a), the principal amount of each Tranche B
Term Loan of each Tranche B Term Loan Lender shall mature in consecutive
quarterly installments, commencing on June 30, 2006, all of which shall be
in an
amount equal to each Lender’s Tranche B Term Loan percentage multiplied by the
amount set forth below opposite such installment date:
Date
|
Installment
Amount
|
|
|
June
30, 2006
|
$337,500
|
September
30, 2006
|
$337,500
|
December
31, 2006
|
$337,500
|
March
31, 2007
|
$337,500
|
June
30, 2007
|
$337,500
|
September
30, 2007
|
$337,500
|
December
31, 2007
|
$337,500
|
March
31, 2008
|
$337,500
|
June
30, 2008
|
$337,500
|
September
30, 2008
|
$337,500
|
December
31, 2008
|
$337,500
|
March
31, 2009
|
$337,500
|
June
30, 2009
|
$337,500
|
September
30, 2009
|
$337,500
|
December
31, 2009
|
$337,500
|
March
31, 2010
|
$337,500
|
June
30, 2010
|
$337,500
|
September
30, 2010
|
$337,500
|
December
31, 2010
|
$337,500
|
March
31, 2011
|
$337,500
|
June
30, 2011
|
$337,500
|
September
30, 2011
|
$337,500
|
December
31, 2011
|
$337,500
|
March
31, 2012
|
$337,500
|
June
30, 2012
|
$31,725,000
|
September
30, 2012
|
$31,725,000
|
December
31, 2012
|
$31,725,000
|
March
31, 2013
|
$31,725,000
|
April
12, 2013
|
All
amounts outstanding
in
respect of Tranche B
Term
Loans
|
(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.
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
Parent Borrower or any Foreign Subsidiary Borrower, in Dollars or in any
Optional Currency, 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; provided
that (x)
the Dollar Equivalent of the aggregate principal amounts of all Optional
Currency Revolving Credit Loans outstanding at any time shall not exceed
$25,000,000 and (y) the aggregate principal amount of all Revolving Credit
Loans
to Foreign Subsidiary Borrowers outstanding at any time shall not exceed
$25,000,000. During the Revolving Credit Commitment Period any 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 in Dollars may from time to time
be Eurocurrency Loans or ABR Loans, as determined by the Parent 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 Eurocurrency Loan
after the day that is one month prior to the Revolving Credit Termination Date.
All Revolving Credit Loans outstanding under the Previous Credit Agreement
on
the Closing shall remain outstanding to the Parent Borrower hereunder on the
terms set forth herein. The Optional Currency Revolving Credit Loans must be
Eurocurrency Loans.
(b)
The Borrowers shall repay all outstanding Revolving Credit Loans on the
Revolving Credit Termination Date.
(c)
The Parent Borrower and any one or more Lenders (including New Lenders) may
from
time to time agree that such Lenders shall increase the amount of their
Revolving Credit Commitments (or in the case of New Lenders establish Revolving
Credit Commitments) by executing and delivering to the Administrative Agent
an
Increased Facility Activation Notice specifying (i) the respective amount of
such increase (or such new Revolving Credit Commitments) and the Facility
involved and (ii) the applicable Increased Facility Closing Date; provided
that,
(A) no Default or Event of Default has occurred and is continuing or would
result after giving effect to the increase of the Revolving Credit Commitments
or the intended application of proceeds therefrom, (B) the Applicable Margin
determined as of the applicable Increased Facility Closing Date shall not be
greater than the Applicable Margin then in effect for Revolving Credit Loans
and
such Revolving Credit Commitments and Revolving Credit Loans shall otherwise
be
on the same terms and conditions as those applicable to Revolving Credit
Commitments and Revolving Credit Loans, (C) the aggregate Revolving Credit
Commitments after giving effect to any increase pursuant to this Section 2.4(c)
shall not exceed an amount equal to $125,000,000, and (D) each increase in
the
Revolving Credit Commitments pursuant to this Section 2.4(c) shall be in a
minimum amount of at least $5,000,000. No Lender shall have any obligation
to
participate in any increase described in this paragraph unless it agrees to
do
so in its sole discretion.
(d)
Any additional bank, financial institution or other entity which, with the
consent of the Parent 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 2.4(c) shall execute
a
New Lender Supplement, substantially in the form of Exhibit H, whereupon such
New Lender shall become a Lender for all purposes and to the same extent as
if
originally a party hereto and shall be bound by and entitled to the benefits
of
this Agreement.
SECTION
2.5 Procedure
for Revolving Credit Borrowing.
The
respective Borrower may borrow under the Revolving Credit Commitments during
the
Revolving Credit Commitment Period on any Business Day, provided
that the
Parent Borrower (on its own behalf or on behalf of any Foreign Subsidiary
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 Eurocurrency Loans; provided
that,
this period shall be extended to four Business Days in the case of Optional
Currency Revolving Credit 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, (iii) in the case of any Eurocurrency Loan, the currency thereof
and the length of the initial Interest Period therefor and (iv) in the case
of
an Optional Currency Revolving Credit Loan to a Foreign Subsidiary Borrower,
the
name and location of such Foreign Subsidiary Borrower. 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 Eurocurrency Loans, the equivalent of $5,000,000
or a whole multiple of the equivalent of $1,000,000 in excess thereof (or
comparable amounts of any relevant Optional Currency, as determined from time
to
time by the Administrative Agent); provided,
that
the Swingline Lender may request, on behalf of the Parent Borrower, borrowings
under the Revolving Credit Commitments that are ABR Loans in other amounts
pursuant to Section 2.4. Upon receipt of any such notice from the Parent
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
respective Borrower at the Funding Office prior to 12:00 Noon, New York City
time (or in the case of Eurocurrency Loans, prior to 12:00 Noon, Local Time),
on
the Borrowing Date requested by the Parent Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the respective Borrower by the Administrative Agent crediting
the
account of the respective Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Revolving Credit Lenders and 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 Parent
Borrower under the Revolving Credit Commitments from time to time during the
Revolving Credit Commitment Period by making swing line loans (“Swingline
Loans”)
to the
Parent Borrower in Dollars; 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 Parent 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 Parent 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 of the applicable
Swingline Loans are made.
(b) The
Parent 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 Parent Borrower shall
repay all Swingline Loans then outstanding.
SECTION
2.7 Procedure
for Swingline Borrowing; Refunding of Swingline Loans.
(a) Whenever the Parent 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 Parent Borrower on such Borrowing Date
by
depositing
such proceeds in the account of the Parent 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 Parent 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 Parent Borrower irrevocably authorizes the Swingline Lender
to charge the Parent Borrower’s accounts with the Administrative Agent (up to
the amount available in each such account) in order to immediately pay the
amount of such Refunded Swingline Loans to the extent amounts received from
the
Revolving Credit Lenders are not sufficient to repay in full such Refunded
Swingline Loans.
(c)
If prior to the time a Revolving Credit Loan would have otherwise been made
pursuant to Section 2.7(b), one of the events described in Section 8(f) shall
have occurred and be continuing with respect to any 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 any Borrower may have against
the Swingline Lender, any 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
any Borrower; (iv) any breach of this Agreement or any other Loan Document
by
any 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) Each 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 made to it 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 made to it 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). Each
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 each 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 Borrowers, shall maintain the
Register pursuant to Section 10.6(b)(iv), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Loan made hereunder
and any Note evidencing such Loan, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the respective 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 Borrowers 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 any 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 Parent 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 Parent Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates previously agreed to in writing by the Parent Borrower
and the Administrative Agent.
SECTION
2.10 Termination
or Reduction of Revolving Credit Commitments.
The
Parent 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
Borrowers 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 (a) at least three Business Days prior thereto, in the
case
of Eurocurrency Loans denominated in Dollars, (b) at least five Business Days
prior thereto, in the case of Eurocurrency Loans denominated in any Optional
Currency, and (c) 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 Eurocurrency Loans or ABR Loans; provided,
that if
a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the respective 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 that are ABR Loans and Swingline 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 thereof. Partial prepayments of Swingline
Loans shall be in an aggregate principal amount of $100,000 or a whole multiple
thereof. To the extent that at any time (by virtue of changes in the Exchange
Rate or otherwise) the aggregate principal amount of the Loans and Letters
of
Credit outstanding shall exceed the Total Revolving Credit Commitments then
in
effect, the Borrowers shall make prompt repayment of the Loans to the extent
of
such excess.
SECTION
2.12 Mandatory
Prepayments and Commitment Reductions.
(a) Unless the Majority Facility Lenders of each affected Facility
shall otherwise agree with the Parent Borrower not to require such a prepayment
of the Term Loans,
(i) if
any
Capital Stock shall be issued by the Parent Borrower or any of its Subsidiaries
for cash (other than the issuance by the Parent Borrower of Capital Stock to
directors, officers or employees or to consultants pursuant to any stock option
plan of the Parent Borrower or any Subsidiary the Net Cash Proceeds of which
shall not exceed in the aggregate $15,000,000 in any fiscal year unless such
issuance is made pursuant to the employee stock purchase plan of the Parent
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 Parent 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 Parent Borrower not to require such a prepayment of the Term
Loans, if on any date the Parent
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 Parent Borrower not to require such a prepayment of the Term
Loans, if, for any fiscal year of the Parent Borrower commencing with the fiscal
year ending December 31, 2007, there shall be Excess Cash Flow, the Parent
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 Parent 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
Eurocurrency 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 Parent Borrower may elect from time to time to convert
Eurocurrency Loans denominated in Dollars 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 Eurocurrency Loans may only be made on the last day of an
Interest Period with respect thereto. The Parent Borrower may elect from time
to
time to convert ABR Loans to Eurocurrency 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 Eurocurrency 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 Eurocurrency Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Parent Borrower (on its
own
behalf or on behalf of any Foreign Subsidiary 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
Eurocurrency 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 Parent Borrower (on its own behalf or on behalf of any Foreign Subsidiary
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 Limitations
on Eurocurrency Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurocurrency 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 Eurocurrency Loans comprising
each Eurocurrency Tranche shall be equal to $5,000,000 or a whole multiple
of
$1,000,000 in excess thereof, (b) no more than ten Eurocurrency Tranches shall
be outstanding at any one time, and (c) no more than the Dollar Equivalent
of
$25,000,000 of the Revolving Credit Loans, in the aggregate, shall be available
for borrowing as Optional Currency Revolving Loans.
SECTION
2.15 Interest
Rates and Payment Dates.
(a) Each Eurocurrency Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency 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) (1) in the case of Reimbursement Obligations in Dollars, the rate applicable
to Revolving Credit Loans that are ABR Loans plus
2%, or
(2) in the case of Reimbursement Obligations in an Optional Currency, the
Overnight Eurocurrency Rate for such Optional Currency plus
the
Applicable Margin plus
2%, and
(ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any facility 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
then applicable to ABR Loans under the relevant Facility plus
2% (in
the case of overdue amounts in Dollars) or the Overnight Eurocurrency Rate
for
the relevant Optional Currency plus
the
Applicable Margin plus
2% (in
the case of an overdue amount in an Optional Currency), in each case, with
respect to clauses (i) and (ii) above, from the date of such non payment until
such amount is paid in full (as well after as before judgment).
(d)
Interest shall be payable in arrears on each Interest Payment Date, provided
that
interest accruing pursuant to paragraph (c) of this Section 2.15 shall be
payable from time to time on demand.
SECTION
2.16 Computation
of Interest and Fees.
(a) Interest, fees and commissions payable pursuant hereto shall be
calculated on the basis of a 360-day year for the actual days elapsed, except
that, with respect to ABR Loans the rate of interest on which is calculated
on
the basis of the Prime Rate, the interest thereon shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Parent
Borrower and the relevant Lenders of each determination of a Eurocurrency 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
Parent 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 Borrowers
and the Lenders in the
absence
of manifest error. The Administrative Agent shall, at the request of the Parent
Borrower, deliver to the Parent 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 reasonably determined that, by reason of
circumstances affecting the relevant market, adequate and reasonable means
do
not exist for ascertaining the Eurocurrency 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 Eurocurrency 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
Parent Borrower and the relevant Lenders as soon as practicable thereafter.
If
such notice is given (w) any Eurocurrency Loans in Dollars under the Facility
requested to be made on the first day of such Interest Period shall be made
as
ABR Loans and any Eurocurrency Loans in an Optional Currency so requested to
be
made shall not be made, (x) any Loans in Dollars under the Facility that were
to
have been converted on the first day of such Interest Period to Eurocurrency
Loans shall be continued as ABR Loans, (y) any outstanding Eurocurrency Loans
in
Dollars under the Facility shall be converted, on the last day of the
then-current Interest Period, to ABR Loans and (z) any outstanding Eurocurrency
Loans in an Optional Currency shall be prepaid on the last day of the
then-current Interest Period. The Administrative Agent shall withdraw such
notice as soon as adequate and reasonable means exist for ascertaining the
Eurocurrency Rate. Until such notice has been withdrawn by the Administrative
Agent, no further Eurocurrency Loans under the Facility shall be made or
continued as such, nor shall the Borrowers have the right to convert Loans
under
the Facility to Eurocurrency Loans.
SECTION
2.18 Pro
Rata Treatment and Payments.
(a) Each borrowing by the Borrowers from the Lenders hereunder, each
payment by the Borrowers on account of any commitment fee and any reduction
of
the Commitments of the Lenders shall be made pro rata
according to the respective Tranche B Term Loan Percentages, Incremental Term
Loan Percentages or Revolving Credit Percentages, as the case may be, of the
relevant Lenders.
(b)
Each payment (including each prepayment) by the Parent 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 any Borrower on account of principal
of and interest on any Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of such Revolving
Credit Loans then held by the Revolving Credit Lenders.
(d)
All payments (including prepayments) to be made by the Borrowers 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, Local
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 Eurocurrency 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 Eurocurrency 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 respective 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 greater of (i) the Federal Funds Rate and (ii) a rate
determined by the Administrative Agent in accordance with banking industry
rules
on interbank compensation, 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 applicable 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 any
Borrower prior to the date of any payment being made hereunder that such
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that such 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 such Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the respective
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 Eurocurrency 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 Eurocurrency 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 Parent Borrower shall promptly pay (or
shall cause the relevant Borrower to 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
Parent 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 Parent Borrower (with a copy to the Administrative Agent) of
a
written request therefor, the Parent Borrower shall pay (or shall cause the
relevant Borrower to pay) to such Lender such additional amount or amounts
as
will compensate such Lender or such corporation for such reduction provided
that the
respective 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 Parent 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 Parent 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 Borrowers pursuant to this Section 2.19
shall survive the termination of this Agreement and the payment of the Loans
and
all other amounts payable hereunder, except to the extent provided for in
Section 2.19(b).
SECTION
2.20 Taxes.
(a) All payments made by any 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 no
Borrower shall 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 2.20 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
any Borrower with respect to such Non-Excluded Taxes pursuant to Section
2.20(a).
(b)
In addition, the relevant 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 any Borrower,
as
promptly as possible thereafter such 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 such
Borrower showing payment thereof. If the relevant 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, such 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 Parent 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 any 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 Parent
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certificate to the Parent Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
(e)
A Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which any Borrower is
located, or any treaty to which such jurisdiction is a party, with respect
to
payments under this Agreement shall deliver to the Parent Borrower (with a
copy
to the Administrative Agent), at the time or times prescribed by applicable
law
or reasonably requested by the Parent 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.
Each
Borrower agrees to indemnify each Lender for, and to hold each Lender harmless
from, any loss or expense (in each case as reasonably determined by such Lender)
that such Lender may sustain or incur as a consequence of (a) default by such
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after such 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 such
Borrower in making any prepayment of or conversion from Eurocurrency Loans
after
such Borrower has given a notice thereof in accordance with the provisions
of
this Agreement or (c) the making of a prepayment of Eurocurrency Loans on a
day
that is not the last day of an Interest Period with respect thereto (including
as a result of an Event of Default). Without limiting the generality of the
foregoing, such indemnification shall include the costs and expenses of each
Lender that are attributable to the premature unwinding of any hedging agreement
entered into by such Lender in respect of the foreign currency exposure
attributable to such actual or proposed Eurocurrency Loan. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
that 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) that 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 eurocurrency market. A certificate as to any
amounts payable pursuant to this Section 2.21 submitted to the relevant 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 Eurocurrency Loans as
contemplated by this Agreement, (a) the commitment of such Lender hereunder
to
make Eurocurrency Loans, continue Eurocurrency Loans as such and convert ABR
Loans to Eurocurrency Loans shall forthwith be cancelled and (b) such Lender’s
Loans then outstanding as Eurocurrency 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 Eurocurrency Loan occurs on a
day
which is not the last day of the then current Interest Period with respect
thereto, the relevant 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 Parent Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans affected by such event with the object of avoiding the consequences
of
such event; provided
that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided,
further,
that
nothing in this Section 2.23 shall affect or postpone any of the obligations
of
the Borrowers 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
Parent 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 relevant
Borrower shall be liable to such replaced Lender under Section 2.21 if any
Eurocurrency 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
relevant 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 relevant 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
Borrowers, the Administrative Agent or any other Lender shall have against
the
replaced Lender.
SECTION
2.25 Foreign
Subsidiary Borrowers.
(a) The Parent Borrower may at any time, with the prior consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed), add as a party to this Agreement any Wholly-Owned Foreign Subsidiary
to be a Foreign Subsidiary Borrower, provided
that
there shall be not more than three Foreign Subsidiary Borrowers at any time.
Upon satisfaction of the conditions specified in Section 5.3, such Foreign
Subsidiary shall for all purposes be a party hereto as a Foreign Subsidiary
Borrower as fully as if it had executed and delivered this Agreement. The
Administrative Agent shall notify the Revolving Credit Lenders at least five
Business Days prior to granting such consent, and if any Revolving Credit Lender
notifies the Administrative Agent within five Business Days that it is not
permitted by applicable Requirements of Law or any of its organizational
policies to make Optional Currency Revolving Credit Loans to, or participate
in
Letters of Credit for the account of, the relevant Foreign Subsidiary, shall
withhold such consent or shall give such consent only upon effecting changes
to
the provisions of this Article II as are contemplated by paragraph (c) of this
Section 2.25 that will assure that such Revolving Credit Lender is not required
to make Revolving Credit Loans to, or participate in Letters of Credit for
the
account of, such Foreign Subsidiary.
(b)
So long as the principal of and interest on any Loans made to any Foreign
Subsidiary Borrower under this Agreement shall have been paid in full and all
other obligations of such Foreign Subsidiary Borrower under this Agreement
shall
have been fully performed, the Parent Borrower may, by not less than five
Business Days’ prior notice to the Administrative Agent (which shall promptly
notify the relevant Lenders thereof), terminate such Subsidiary’s status as a
“Foreign Subsidiary Borrower”.
(c)
In order to accommodate the addition of a Wholly-Owned Foreign Subsidiary as
a
Foreign Subsidiary Borrower where one or more Revolving Credit Lenders are
able
and willing to lend Revolving Credit Loans to, and participate in Letters of
Credit issued for the account of, such Wholly-Owned Foreign Subsidiary, but
other Revolving Credit Lenders are not so able and willing, the Administrative
Agent shall be permitted, with the consent of the Parent Borrower, to effect
such changes to the provisions of this Article II as it reasonably believes
are
appropriate in order for such provisions to operate in a customary and usual
manner for “multiple-currency” syndicated lending agreements to a corporation
and certain of its foreign subsidiaries, all with the intention of providing
procedures for the Revolving Credit Lenders who are so able and willing to
extend credit to such Wholly-Owned Foreign Subsidiaries and for the other
Revolving Credit Lenders not to be required to do so. Prior to effecting any
such changes, the Administrative Agent shall give all Revolving Credit Lenders
at least five Business Days’ notice thereof and an opportunity to comment
thereon.
SECTION
2.26 Parent
Borrower as Agent for Foreign Subsidiary Borrowers.
(a) Each Foreign Subsidiary Borrower hereby irrevocably appoints the
Parent Borrower as the borrowing agent and attorney-in-fact for such Foreign
Subsidiary Borrower, which appointment shall remain in full force and
effect unless and until Administrative Agent shall have received prior written
notice signed by the Parent Borrower that it has resigned such position. Each
Foreign Subsidiary Borrower hereby irrevocably appoints and authorizes the
Parent Borrower to (i) provide all notices and instructions under this Agreement
and (ii) take such action as the Parent Borrower deems appropriate on its behalf
to obtain Revolving Credit Loans and the issuance of Letters of Credit and
to
exercise such other powers as are reasonably incidental thereto to carry out
the
purposes of this Agreement.
(b)
Each Foreign Subsidiary Borrower hereby severally agrees to indemnify each
Lender and the Administrative Agent and hold each Lender and the Administrative
Agent harmless against any and all liability, expense, loss or claim of damage
or injury, made against the Lenders and the Administrative Agent by such Foreign
Subsidiary Borrower or by any third party whosoever, arising from or incurred
by
reason of the Lenders’ or the Administrative Agent’s relying on any instructions
of the Parent Borrower on behalf of such Foreign Subsidiary Borrower, except
that such Foreign Subsidiary Borrower will have no liability under this
subsection 2.26(b) with respect to any liability that is found by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Lender or the Administrative Agent.
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 any 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 or an Optional Currency 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
Parent Borrower (on its own behalf or on behalf of a Foreign Subsidiary
Borrower) may from time to time request that the Issuing Lender issue a Letter
of Credit by delivering to the Issuing Lender at its address for notices
specified herein an Application therefor, completed to the satisfaction of
the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its
receipt
of the Application therefor and all such other certificates, documents and
other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Parent Borrower. The Issuing Lender shall furnish a
copy
of such Letter of Credit to the Parent 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 relevant 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 Eurocurrency 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 relevant 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 relevant 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 respective 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 Rate
(or,
in the case of any such amount in an Optional Currency, the daily average rate
for the settlement of obligations between banks in such currency as determined
by the Administrative Agent) 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 Facility (or, in the case
of
any such amount in an Optional Currency, the Overnight Eurocurrency Rate for
such Optional Currency plus the Applicable Margin for Eurocurrency Loans).
A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section 3.4 shall be conclusive in the absence
of manifest error.
(c)
Whenever, at any time after the Issuing Lender has made payment under any Letter
of Credit and has received from any L/C Participant its pro rata
share of
such payment in accordance with Section 3.4(a), the Issuing Lender receives
any
payment related to such Letter of Credit (whether directly from any 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 Borrowers.
Each
Borrower agrees to reimburse the Issuing Lender on each date on which the
Issuing Lender notifies the relevant 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 relevant 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 or as it may otherwise direct
in lawful money of the United States or in the relevant Optional Currency,
as
the case maybe, and in immediately available funds. Interest shall be payable
on
any and all amounts remaining unpaid by the relevant Borrower under this Article
III 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 relevant 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(c). 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 relevant Borrower, in which case the procedures
specified in Section 3.4 for funding by L/C Participants shall apply) constitute
a request by such 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.
Each
Borrower’s obligations under this Article III shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which such Borrower may have or have had
against the Issuing Lender, any beneficiary of a Letter of Credit or any other
Person. Each Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and such 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 such 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 such 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 court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of
the Issuing Lender. Each 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 such Borrower
and
shall not result in any liability of the Issuing Lender to such
Borrower.
SECTION
3.7 Letter
of Credit Payments.
If any
draft shall be presented for payment under any Letter of Credit, the Issuing
Lender shall promptly notify the relevant Borrower of the date and amount
thereof. The responsibility of the Issuing Lender to the relevant 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 III, the provisions of this
Article III shall apply.
SECTION
3.9 Transitional
Provisions.
On the
Closing Date, the certain letters of credit outstanding under the Previous
Credit Agreement as of the Closing Date (the “Existing
Facility Letters of Credit”),
(i)
shall be deemed to be Letters of Credit issued pursuant to and in compliance
with this Article III, (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 Article III
shall apply thereto, and the Parent Borrower and the Revolving Credit Lenders
hereunder hereby expressly assume all obligations with respect to such Letters
of Credit and (iv) all liabilities of the Parent Borrower with respect to such
Existing Facility Letters of Credit shall constitute Obligations.
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 Parent
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that:
The
audited consolidated balance sheets of the Parent Borrower as at
December 31, 2004 and 2005 and the related consolidated statements of
income and of cash flows for the fiscal years ended December 31, 2003, 2004
and
2005, reported on by and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly in all material respects the
consolidated financial position of the Parent Borrower as at such date, and
the
consolidated results of its operations and its consolidated cash flows for
the
respective fiscal years then ended. All such financial statements, including
the
related schedules and any notes thereto, 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
Parent 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, 2005 to and including the date hereof, there has been no
Disposition by the Parent Borrower of any material part of its business or
Property, except as set forth on Schedule 4.1.
SECTION
4.2 No
Change.
Since
December 31, 2005, there has been no development or event which has had or
would
reasonably be expected to have a Material Adverse Effect.
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 Borrowers, 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 Borrowers, 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 Parent 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 Parent Borrower or any of its Subsidiaries would
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 Parent Borrower, threatened by or against the Parent 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 would reasonably be expected to
have
a Material Adverse Effect.
SECTION
4.7 No
Default.
Neither
the Parent Borrower nor any of its Subsidiaries is in default under or with
respect to any of its Contractual Obligations in any respect which would
reasonably be expected to have a Material Adverse Effect. No Default or Event
of
Default has occurred and is continuing.
SECTION
4.8 Ownership
of Property; Liens.
Each of
the Parent 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 Parent 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 Parent Borrower
know of any valid basis for any such claim; and (c) to the Parent Borrower’s
knowledge, the use of Intellectual Property by the Parent 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 Parent 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 Parent Borrower
or
its Subsidiaries, as the case may be); no tax Lien has been filed, and, to
the
knowledge of the Parent 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 Parent
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 Parent Borrower or any of
its
Subsidiaries pending or, to the knowledge of the Parent Borrower, threatened
that (individually or in the aggregate) would reasonably be expected to have
a
Material Adverse Effect. Hours worked by and payment made to employees of the
Parent 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) would reasonably be expected
to
have a Material Adverse Effect. All payments due from the Parent Borrower or
any
of its Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) would 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 Parent Borrower or the relevant Subsidiary.
SECTION
4.13 ERISA.
Neither
a Reportable Event nor an “accumulated funding deficiency” (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination
of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a
Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date
on which this representation is made or deemed made, exceed
the
value
of the assets of such Plan allocable to such accrued benefits by a material
amount. Neither the Parent Borrower nor any Commonly Controlled Entity has
had a
complete or partial withdrawal from any Multiemployer Plan which has resulted
or
would reasonably be expected to result in a material liability under ERISA,
and
neither the Parent Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Parent Borrower or any
such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
SECTION
4.14 Investment
Company Act; Other Regulations.
No Loan
Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other
than
Regulation X of the Board) which limits its ability to incur
Indebtedness.
SECTION
4.15 Subsidiaries.
(a) Schedule 4.15 sets forth as of the Closing Date the name and
jurisdiction of incorporation of each Subsidiary and, as to each such
Subsidiary, the percentage of each class of Capital Stock owned by any Loan
Party.
(b)
There are no outstanding subscriptions, options, warrants, calls, rights or
other agreements or commitments (other than stock options granted to employees,
consultants, officers or directors and directors’ qualifying shares) of any
nature relating to the issuance of any Capital Stock of the Parent 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 Parent Borrower and its Subsidiaries,
and
to repay Loans outstanding under the Previous 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 Parent 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 Parent 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) would 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 Parent Borrower or any of its Subsidiaries
(the
“Business”).
Neither the Parent Borrower nor any of its Subsidiaries has contractually
assumed any liability of any other Person under Environmental Laws other than
in
the ordinary course of business.
(c) Neither
the Parent 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 Parent
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 would
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 would 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 Parent Borrower or
any
Subsidiary (the “Former
Properties”)
during
such period of ownership or operation, or arising from or related to the
operations of the Parent 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 would 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 Closing 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 Parent 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 would 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 perfected Lien on, and security interest in, all right,
title
and interest of the Loan Parties in such Collateral and the proceeds thereof,
as
security for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior and superior in right to any other Person
(except, in the case of Collateral other than Pledged Stock, Liens permitted
by
Section 7.3).
SECTION
4.20 Solvency.
Each
Loan Party is, and after giving effect to the incurrence of all Indebtedness
and
obligations being incurred in connection herewith will be and will continue
to
be, Solvent.
SECTION
5.1 Conditions
to the Effectiveness of this Agreement.
The
amendment and restatement of the Previous Credit Agreement effected hereby
and
the agreement of each Lender to make the extensions of credit requested to
be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit
Agreement.
The
Administrative Agent shall have received this Agreement executed and delivered
by the Administrative Agent, the Parent Borrower and each Lender.
(b) Fees.
The
Lenders and the Administrative Agent shall have received all fees required
to be
paid on or before the Closing Date, and all expenses required to be paid on
or
before the Closing Date for which invoices have been timely presented,
including, without limitation, the reasonable fees and expenses of legal
counsel, on or before the Closing Date.
(c) Security
Documents.
The
Administrative Agent shall have received the Second Amendment to Guarantee
and
Collateral Agreement, which shall include a guarantee by the Parent Borrower
of
the Obligations of any Foreign Subsidiary Borrowers, executed and delivered
by
an authorized officer of the Parent 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 Parent Borrower and its
Subsidiaries are located, and such search shall reveal no liens on any of the
assets of the Parent Borrower or any Subsidiary except for liens permitted
by
Section 7.3 or discharged on or prior to the Closing Date pursuant to
documentation satisfactory to the Administrative Agent.
(e) Closing
Certificate.
The
Administrative Agent shall have received a certificate of each Loan Party,
dated
the Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments.
(f) Legal
Opinions.
The
Administrative Agent shall have received the following executed legal
opinions:
(i) the
legal opinion of Sullivan & Cromwell LLP, counsel to the Parent Borrower and
its Subsidiaries, substantially in the form of Exhibit E-1; and
(ii) the
legal opinion of Daniel S. Jonas, general counsel of the Parent Borrower and
its
Subsidiaries, substantially in the form of Exhibit E-2.
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 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 any Borrower
hereunder shall constitute a representation and warranty by such Borrower as
of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION
5.3 Conditions
to Initial Loan to Each Foreign Subsidiary
Borrower.
The
agreement of each Revolving Credit Lender to make any Loans or issue any Letters
of Credit to any Foreign Subsidiary Borrower that was not a party to this
Agreement as of the Closing Date is subject to the satisfaction of the following
conditions precedent:
(a)
Joinder
Agreement.
The
Administrative Agent shall have received a Foreign Subsidiary Borrower Joinder
Agreement, substantially in the form of Exhibit I, executed and delivered by
such Foreign Subsidiary Borrower and the Parent Borrower.
(b)
Opinion.
The
Administrative Agent shall have received an opinion of counsel for such Foreign
Subsidiary Borrower reasonably acceptable to the Administrative Agent, covering
such matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request.
(c)
Other
Documents.
The
Administrative Agent shall have received such documents and certificates as
the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of such Foreign Subsidiary Borrower,
the authorization of the transactions contemplated hereby relating to such
Foreign Subsidiary Borrower and any other legal matters relating to such Foreign
Subsidiary Borrower, all in form and substance reasonably satisfactory to the
Administrative Agent.
(d)
Additional
Representations and Warranties.
Unless
otherwise agreed by the Administrative Agent, the following representations
and
warranties shall be true and correct on and as of such date:
(i)
Pari
Passu.
Subject
to applicable Requirements of Law, the obligations of such Foreign Subsidiary
Borrower under this Agreement, when executed and delivered by such Foreign
Subsidiary Borrower, will rank at least pari passu with all unsecured
Indebtedness of such Foreign Subsidiary Borrower.
(ii)
No
Immunities, etc.
Such
Foreign Subsidiary Borrower is subject to civil and commercial law with respect
to its obligations under this Agreement and any Note, and the execution,
delivery and performance by such Foreign Subsidiary Borrower of this Agreement
constitute and will constitute private and commercial acts and not public or
governmental acts. Neither such Foreign Subsidiary Borrower nor any of its
property, whether or not held for its own account, has any immunity (sovereign
or other similar immunity) from any suit or proceeding, from jurisdiction of
any
court or from set-off or any legal process (whether service or notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or other similar immunity) under laws of the jurisdiction
in which such Foreign Subsidiary Borrower is organized and existing in respect
of its obligations under this Agreement or any Note. Such Foreign Subsidiary
Borrower has waived, and hereby does waive, every immunity (sovereign or
otherwise) to which it or any of its properties would otherwise be entitled
from
any legal action, suit or proceeding, from jurisdiction of any court and from
set-off or any legal process (whether service or notice, attachment prior to
judgment, attachment in aid of execution of judgment,
execution
of judgment or otherwise) under the laws of the jurisdiction in which such
Foreign Subsidiary Borrower is organized and existing in respect of its
obligations under this Agreement and any Note. The waiver by such Foreign
Subsidiary Borrower described in the immediately preceding sentence is the
legal, valid and binding obligation of such Foreign Subsidiary Borrower, subject
to customary qualifications and limitations.
(iii)
No
Recordation Necessary.
This
Agreement and each Note, if any, is in proper legal form under the law of the
jurisdiction in which such Foreign Subsidiary Borrower is organized and existing
for the enforcement hereof or thereof against such Foreign Subsidiary Borrower
under the law of such jurisdiction, and to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement and any such
Note.
It is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and any such Note that this
Agreement, any Note or any other document be filed, registered or recorded
with,
or executed or notarized before, any court or other authority in the
jurisdiction in which such Foreign Subsidiary Borrower is organized and existing
or that any registration charge or stamp or similar tax be paid on or in respect
of this Agreement, any Note or any other document, except for any such filing,
registration or recording, or execution or notarization, as has been made or
is
not required to be made until this Agreement, any Note or any other document
is
sought to be enforced and for any charge or tax as has been timely
paid.
(iv)
Exchange
Controls.
The
execution, delivery and performance by such Foreign Subsidiary Borrower of
this
Agreement, any Note or the other Loan Documents is, under applicable foreign
exchange control regulations of the jurisdiction in which such Foreign
Subsidiary Borrower is organized and existing, not subject to any notification
or authorization except (i) such as have been made or obtained or (ii) such
as
cannot be made or obtained until a later date (provided any notification or
authorization described in immediately preceding clause (ii) shall be made
or
obtained as soon as is reasonably practicable).
The
Parent 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 Parent Borrower shall
and
shall cause each of its Subsidiaries to:
(a) as
soon
as available, but in any event within 90 days after the end of each fiscal
year of the Parent Borrower, a copy of the audited consolidated balance sheet
of
the Parent 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 Parent Borrower,
the unaudited consolidated balance sheet of the Parent Borrower and its
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified
by a
Responsible Officer as being fairly stated in all material respects (subject
to
normal year-end audit adjustments);
all
such
financial statements shall be complete and correct in all material respects
and
shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein, and provided
that the
financial statements referred to in Section 6.1(b) need not contain
footnotes).
SECTION
6.2 Certificates;
Other Information.
Furnish
to 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 Parent
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 Parent
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 Parent Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of
the
Parent 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 Parent Borrower, either (i) a Form 10-Q or 10-K for the
Parent 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 Parent Borrower and its Subsidiaries for such fiscal quarter,
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 Parent Borrower sends to the holders of any class of its
debt
securities or public equity securities and (ii) within five days after the
same
are filed, copies of all financial statements and periodic reports which the
Parent Borrower may make to, or file with, the SEC,
provided
that the
Parent Borrower shall be deemed to have complied with this clause (f)(ii) if
the
Parent 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
Parent 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 Parent Borrower shall deliver to the
Administrative Agent and the Lenders a report of a reputable insurance broker
with respect to such insurance during the month of November in each calendar
year
and
such supplemental reports with respect thereto as the Administrative Agent
may
from time to time reasonably request.
SECTION
6.6 Inspection
of Property; Books and Records;
Discussions.
(a)
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the Parent
Borrower and its Subsidiaries with officers and employees of the Parent 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
Parent Borrower or any of its Subsidiaries or (ii) litigation, investigation
or
proceeding which may exist at any time between the Parent 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, would reasonably be expected
to
have a Material Adverse Effect;
(c) any
litigation or proceeding directly affecting the Parent Borrower or any of its
Subsidiaries in which the amount sought from the Parent Borrower and its
Subsidiaries is $5,000,000 or more and not covered by insurance or in which
injunctive or similar relief material to the operations of the Parent Borrower
is sought as to which the Parent 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
Parent 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 Parent 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 would 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 Parent Borrower or the relevant Subsidiary proposes
to take with respect thereto.
SECTION
6.8 Environmental
Laws.
(a) Comply with, and make all reasonable efforts to ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and make all reasonable efforts to
ensure that all tenants and subtenants obtain and comply with and maintain,
any
and all licenses, approvals, notifications, registrations or permits required
by
applicable Environmental Laws, except to the extent that any noncompliance
could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(b)
Conduct and complete all investigations, studies, sampling and testing, and
all
remedial, removal and other actions required under Environmental Laws and
promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, except to the extent
that any noncompliance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
SECTION
6.9 Additional
Collateral, etc.
(a) With respect to any Property acquired after the Closing Date by
the Parent 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), (l) (if such Lien
was
granted in a transaction comparable to that permitted by Section 7.3(g)) or
(o))
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 Parent 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 Parent 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 Parent 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
Parent Borrower or such Subsidiary, as the case may be, (iii) cause such new
Subsidiary (A) to become a party to the Guarantee and Collateral Agreement
and (B) to take such actions necessary or reasonably advisable to grant to
the
Administrative Agent for the benefit of the Lenders a perfected first priority
security interest in the Collateral described in the Guarantee and Collateral
Agreement with respect to such new Subsidiary, subject to no Liens except as
permitted by Section 7.3, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required
by
the Guarantee
and
Collateral Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance and with customary exceptions
and
qualifications, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d)
With respect to any new Excluded Foreign Subsidiary which is a Material Foreign
Subsidiary created or acquired after the Closing Date by the Parent 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
Parent 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 Parent 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 $2,500,000 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 $2,500,000);
(ii) change
the location of its chief executive office or sole place of business from that
referred to in Section 4.4 of the Guarantee and Collateral Agreement;
or
(iii) change
its name, identity or corporate structure to such an extent that any financing
statement filed by the Administrative Agent in connection with the Guarantee and
Collateral Agreement would become misleading.
(c)
Advise the Administrative Agent and the Lenders promptly, in reasonable detail,
of:
(i) any
Lien
(other than security interests created hereby or Liens permitted under Section
7.3) on any material portion of the Collateral which would adversely affect
the
ability of the Administrative Agent to exercise any of its remedies hereunder
in
any material respect; and
(ii) the
occurrence of any other event which would 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 Parent Borrower, at such time and from time to time as
reasonably requested by the Administrative Agent upon not less than 90 days’
prior written notice to the Parent Borrower, enter into Swap Agreements with
respect to floating rate obligations in respect of an aggregate principal amount
of not more than 50% of the Term Loans, and at such market rates and on terms
and conditions, reasonably satisfactory to the Administrative
Agent.
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 Parent Borrower shall not,
and
shall not permit any of its Subsidiaries to, directly or
indirectly:
(a)
Consolidated
Leverage Ratio.
Permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Parent Borrower ending with any fiscal
quarter set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Fiscal
Quarter
|
Consolidated
Leverage
Ratio
|
|
|
June
30, 2006
|
4.50
to 1.00
|
September
30, 2006
|
4.50
to 1.00
|
December
31, 2006
|
4.00
to 1.00
|
March
31, 2007
|
4.00
to 1.00
|
June
30, 2007
|
3.75
to 1.00
|
September
30, 2007
|
3.75
to 1.00
|
December
31, 2007
|
3.75
to 1.00
|
March
31, 2008 and thereafter
|
3.50
to 1.00
|
(b)
Consolidated
Senior Debt Leverage Ratio.
Permit
the Consolidated Senior Debt Leverage Ratio as at the last day of any period
of
four consecutive fiscal quarters of the Parent Borrower to exceed 3.00 to
1.00.
(c)
Consolidated
Fixed Charge Coverage Ratio.
Permit
the Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Parent Borrower ending with any fiscal quarter set forth
below to be less than the ratio set forth below opposite such fiscal
quarter:
Fiscal
Quarter
|
Consolidated
Fixed
Charge
Coverage
Ratio
|
|
|
June
30, 2006 to December 31, 2006
|
2.25
to 1.00
|
March
31, 2007 and thereafter
|
2.50
to 1.00
|
(a) Indebtedness
of any Loan Party pursuant to any Loan Document;
(b) Indebtedness
of the Parent Borrower to any Subsidiary and of any Wholly-Owned Subsidiary
Guarantor to the Parent Borrower or any other Subsidiary;
(c) Indebtedness
secured by Liens permitted by Section 7.3(g) in an aggregate principal amount
not to exceed $15,000,000 at any one time outstanding;
(d) Capital
Lease Obligations in an aggregate principal amount not to exceed $10,000,000
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 Parent Borrower or any of its
Subsidiaries of obligations of any Wholly-Owned Subsidiary
Guarantor;
(g) Indebtedness
of the Parent Borrower or its Subsidiaries on account of industrial revenue
bonds in an aggregate principal amount not to exceed $30,000,000 at any one
time
outstanding;
(h) guarantees
made in the ordinary course of business by the Parent Borrower or any of its
Subsidiaries of lease obligations of their customers in respect of equipment
sold by the Parent 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 $20,000,000;
(i) 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 $10,000,000;
(j) Indebtedness
of any Wholly-Owned Foreign Subsidiary to the Parent 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 the greater
of $40,000,000 or 10% of the Consolidated Total Tangible Assets (measured on
the
date of incurrence of the most recent of such Indebtedness) less
the
aggregate fair market value of any Property Disposed of to a Wholly-Owned
Foreign Subsidiary pursuant to Section 7.5(e), and provided,
further,
that
any Indebtedness permitted by this Section 7.2(j) shall be evidenced by a
note or similar instrument and pledged in accordance with Section 6.9 and the
Guarantee and Collateral Agreement;
(k) additional
Indebtedness of the Parent Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Parent Borrower and all Subsidiaries) not to exceed
$20,000,000 at any one time outstanding;
(l) Indebtedness
incurred in connection with or in substitution or replacement of a Receivables
Transfer Program in an aggregate principal amount not to exceed $100,000,000;
and
(m) Permitted
Subordinated Indebtedness, provided
that the
Parent 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 Parent 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 Parent
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 Parent 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 Parent 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 Parent Borrower or
such Subsidiary other than the Property so acquired or financed, and (B) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed 80% of the fair market value (as determined in good faith by a
Responsible Officer of the Parent 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 Parent
Borrower or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(j) Liens
arising from precautionary UCC financing statement filings regarding operating
leases or consignment arrangements entered into by the Parent Borrower or its
Subsidiaries in the ordinary course of business;
(k) 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;
(l) 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;
(m) 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 Parent Borrower and all
Subsidiaries) $10,000,000 at any one time;
(n) Liens
securing Indebtedness permitted by Section 7.2(e) on the real property of the
Parent Borrower or its Subsidiaries in Largo, Florida;
(o) 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
(p) 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 Parent Borrower may be merged or consolidated with or into
the
Parent Borrower (provided
that the
Parent Borrower shall be the continuing or surviving corporation),
any Wholly-Owned Subsidiary Guarantor (provided
that the
Wholly-Owned Subsidiary Guarantor 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 Parent Borrower may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Parent Borrower or any Wholly-Owned
Subsidiary Guarantor;
(c) any
Foreign Subsidiary of the Parent 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 Parent Borrower may dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to any Wholly-Owned Foreign
Subsidiary of the Parent 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 Parent 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 Parent 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 10% of the
Consolidated Total Tangible Assets (measured on the date of incurrence of the
most recent of such Indebtedness);
(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 Parent Borrower and its Subsidiaries in
connection with the compromise or collection thereof;
(i)
the sale or issuance of a minimal number of any Foreign Subsidiary’s Capital
Stock to a foreign national to the extent required by local law in a
jurisdiction outside the United States;
(j)
any Disposition of Property or series of related Dispositions of Property which
yields net proceeds to the Parent 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 $5,000,000;
(k)
the sale, transfer, encumbrance or other disposition of accounts receivable
or
related ancillary rights and assets pursuant to a Receivables Transfer Program;
and
(l)
the sale, transfer, encumbrance or other disposition of securities or related
ancillary rights and assets pursuant to sales, marketing and distribution
arrangements.
Any
Collateral which is sold, transferred or otherwise conveyed pursuant to this
Section 7.5 to a Person other than the Parent 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 Parent 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 Parent 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 Parent
Borrower or any Subsidiary (collectively, “Restricted
Payments”),
except:
(a) that
any
Subsidiary may make Restricted Payments to the Parent Borrower or any
Wholly-Owned Subsidiary Guarantor;
(b) (A)
repurchases of Capital Stock made in order to fulfill the obligations of the
Parent Borrower or any Subsidiary under an employee or director stock purchase
plan or similar plan covering employees of the Parent 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 $10,000,000 per year;
(c) redemptions
of Capital Stock in connection with a rights plan adopted by the Board of
Directors of the Parent Borrower in an aggregate amount equal to $10,000,000
since the Closing Date; and
(d) that
the
Parent Borrower may make Restricted Payments (i) in any fiscal year in an
aggregate amount not to exceed $30,000,000, 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, but
only
in, the next 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
Parent Borrower and its Subsidiaries in the ordinary course of business not
exceeding $30,000,000 for each fiscal year, provided
that (i)
such amount, if not so expended in the fiscal year for which it is permitted,
may be carried over for expenditure in, but only in, the next succeeding fiscal
year and (ii) Capital Expenditures made pursuant to this clause (a) during
any
fiscal year shall be deemed made, first,
in
respect of amounts carried over from the prior fiscal year pursuant to subclause
(i) above and, second,
in
respect of amounts permitted for such fiscal year as provided above and (b)
Capital Expenditures made with the proceeds of any Reinvestment Deferred
Amount.
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 Parent 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 Parent
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 Parent Borrower of accounts receivable or related rights
and
assets pursuant to a Receivables Transfer Program into a Subsidiary of the
Parent Borrower;
(f) investments
made by the Parent Borrower or any of its Subsidiaries with the proceeds of
any
Reinvestment Deferred Amount;
(g) investments
by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or
any
Subsidiary Guarantor in the ordinary course of business;
(h) investments
(including debt obligations and Capital Stock) by the Parent 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
Parent Borrower and any Subsidiary may (i) make equity 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 such investments in such Foreign Subsidiaries (other than investments in
Foreign Subsidiaries in accordance with Section 7.8(k)) shall not exceed
$60,000,000 since the Closing Date (plus any Available Excess Cash Flow) and
(ii) make advances, loans or extensions of credit to any Wholly-Owned Foreign
Subsidiary, provided
that the
Indebtedness of such Wholly-Owned Foreign Subsidiary is permitted under Section
7.2(j);
(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, loans or advances by the Parent Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $30,000,000 since the
Closing Date;
(k) other
investments constituting Permitted Business Acquisitions for aggregate
consideration not to exceed $150,000,000 (plus any Available Excess Cash Flow)
in any one calendar year; 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 Parent
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 Parent
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 Parent
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 Parent 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 Parent Borrower to a Subsidiary of the Parent Borrower of
accounts receivable or related ancillary rights or assets, or interests therein,
pursuant to a Receivables Transfer Program.
SECTION
7.11 Limitation
on Sales and Leasebacks.
Enter
into any arrangement with any Person providing for the leasing by the Parent
Borrower or any Subsidiary of real or personal property which
has
been or is to be sold or transferred by the Parent 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 Parent Borrower or such Subsidiary, except in respect of assets the
aggregate fair market value of which does not exceed $20,000,000 since the
Closing Date.
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 Parent 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 (l) (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 Parent
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 Parent 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 Parent Borrower
or
any other Subsidiary of the Parent Borrower, (b) make loans or advances to,
or
other Investments in, the Parent Borrower or any other Subsidiary of the Parent
Borrower or (c) transfer any of its assets to the Parent Borrower or any other
Subsidiary of the Parent 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 Parent Borrower or any of its Subsidiaries is engaged
on
the date of this Agreement or which are reasonably related thereto.
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 any 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
(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 Borrowers only), Section
6.7(a) or Article VII; 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 Article VIII), and such default shall
continue unremedied for a period of 30 days; or
(e) The
Parent 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 $10,000,000; or
(f) (i)
The
Parent 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 Parent
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 Parent 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 Parent 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 Parent 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) above; or (v) the Parent 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 Parent 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
Parent 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 Parent Borrower or any
of
its Subsidiaries involving in the aggregate a liability (not covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $10,000,000 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 35% of
the
outstanding common stock of the Parent Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the Parent Borrower’s
directors; or (ii) the board of directors of the Parent 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;
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 Borrowers, 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 Borrowers 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 Borrowers,
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 Borrowers 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 Borrowers 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 Borrowers 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 Borrowers (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Article VIII, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the
Borrowers.
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.
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 Borrowers
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 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 Borrowers and without limiting the obligation
of the Borrowers 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.
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 Parent 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 Parent Borrower shall have
occurred and be continuing) be subject to approval by the Parent 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 Parent Borrower or any of its
Subsidiaries that is the subject of a Disposition which is permitted by this
Agreement, which has been consented to in accordance with Section 10.1 or in
accordance with Section 10.13.
SECTION
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 any 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 IX
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
III without the written consent of the Issuing Lender or (ix) waive any
condition set forth in Section 5.1 or Section 5.2 without the written consent
of
the Required Lenders and the Majority Facility Lenders with respect to the
Revolving Credit Facility. Any such waiver and any such amendment, supplement
or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the 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
Parent 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 Parent Borrower and the Administrative Agent, as set forth
in
an administrative questionnaire delivered to the Administrative Agent in the
case of the Lenders and as set forth in the Foreign Subsidiary Borrower Joinder
Agreement in case of any Foreign Subsidiary Borrower, 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
|
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The
Administrative
Agent:
|
JPMorgan
Chase Bank, N.A.
Agent
Bank Services Group
1111
Fannin, Tenth Floor
Houston,
Texas 77002
Attention:
Michael Chau
Telecopy:
(713) 750-2938
Telephone:
(713) 750-7913
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with
a copy to:
|
JPMorgan
Chase Bank, N.A.
Bridgewater
Place
500
Plum Street
Syracuse,
New York 13204
Attention:
Frederick K. Miller
Telecopy:
(315) 478-7466
Telephone:
(315) 448-1425
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and,
in the case of Borrowings in any Optional Currencies, a copy
to:
|
J.P.
Morgan Europe Limited
125
London Wall
London,
England
EC2Y
5AJ
Attention:
Belinda Lucas
Telecopy:
+44-20-7777-2360
Telephone:
+44-20-7777-0976
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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 Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. The Administrative
Agent or any 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
Parent 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 Parent Borrower prior to the Closing Date
(in
the case of amounts to be paid on the Closing Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the 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 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 Parent 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 Parent 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 resulted from the gross
negligence or willful misconduct of such indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Parent 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 X 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) no Borrower may 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 any 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 10.6.
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 10.6) 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
Parent Borrower, provided
that no
consent of the Parent Borrower shall be required for an assignment to a Lender,
an affiliate of a Lender, an Approved Fund (as defined below) or, if an Event
of
Default has occurred and is continuing, any other Person; and
(B) the
Administrative Agent, provided
that no
consent of the Administrative Agent shall be required for an assignment of
(x)
any Revolving Credit Commitment to an Assignee that is a Lender with a Revolving
Credit Commitment immediately prior to giving effect to such assignment or
(y)
all or any portion of a Term Loan to a Lender, an affiliate of a Lender or
an
Approved Fund.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of an assignment to a Lender, an affiliate of a Lender or
an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments
or Loans of the assigning Lender subject to each such assignment (determined
as
of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 with
respect to the Revolving Credit Loans or $1,000,000, with respect to the Term
Loans (in each case other than in the case of an assignment of all of a Lender’s
interests under this Agreement), unless each of the Parent Borrower and the
Administrative Agent otherwise consent, provided
that (1)
no such consent of the Parent Borrower shall be required if an Event of Default
has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if
any;
(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 in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Parent Borrower and its Affiliates
and
their related parties or their respective securities) will be made available
and
who may receive such information in accordance with the assignee’s
compliance procedures and applicable laws, including Federal and state
securities laws
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 obliga-tions 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 10.6.
(iv)
The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
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 each 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 each 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
10.6 and any written consent to such assignment required by paragraph (b) of
this Section 10.6, 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 Parent 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 Parent 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 10.6, the Parent 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 10.6, 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 Parent 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 10.6 shall not apply to any such pledge or assignment
of
a security interest; provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or Assignee for
such
Lender as a party hereto.
(e)
The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type
described in paragraph (d) above.
SECTION
10.7 Adjustments;
Set-off.
(a) Except to the extent that this Agreement provides for payments
to be allocated to the Lenders under a particular Facility, if any Lender (a
“Benefitted
Lender”)
shall
at any time receive any payment of all or part of its Loans or the Reimbursement
Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by
any
other Lender, if any, in respect of such other Lender’s Loans or the
Reimbursement Obligations owing to such other Lender, or interest thereon,
such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender’s Loan and/or of the
Reimbursement Obligations owing to each such other Lender, or shall provide
such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided,
however,
that if
all or any portion of such excess payment or benefits is thereafter
recovered
from such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b)
In addition to any rights and remedies of the Lenders provided by law, each
Lender shall have the right, without prior notice to the Borrowers, any such
notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable by any 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 Parent Borrower.
Each
Lender agrees promptly to notify the respective 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
Parent 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 Borrowers,
the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the 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.
(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.
(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 any 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 Borrowers, 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
Borrowers and the Lenders.
SECTION
10.14 WAIVERS
OF JURY TRIAL.
EACH BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY
AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
SECTION
10.15 USA
Patriot Act.
Each
Lender hereby notifies the Borrowers that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)
(the “Act”), it is required to obtain, verify and record information that
identifies each Borrower, which information includes the name and address of
such Borrower and other information that will allow such Lender to identify
such
Borrower in accordance with the Act.
SECTION
10.16 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 (i) to the Administrative Agent, any other
Lender or any affiliate of any Lender in each case which is bound by this
Section 10.15, (ii) to any Participant or Assignee (each, a “Transferee”)
or
prospective Transferee which agrees to comply with the provisions of this
Section 10.15, (iii) to the employees, directors, agents, attorneys, accountants
and other professional advisors of such Lender or its affiliates, (iv) upon
the
request or demand of any Governmental Authority having jurisdiction over the
Administrative Agent or such
Lender,
(v) in response to any order of any court or other Governmental Authority or
as
may otherwise be required pursuant to any Requirement of Law, (vi) if required
to do so under applicable law in connection with any litigation or similar
proceeding or in litigation to enforce this Agreement, (vii) which has been
publicly disclosed other than in breach of this Section 10.15, (viii) 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 (ix) in connection with the exercise of any remedy
hereunder or under any other Loan Document; provided
that, if
reasonably requested by the Parent Borrower, the Administrative Agent and
the Lenders shall make commercially reasonable efforts to determine, and inform
the Parent Borrower of, the Persons who received such non-public information
designated as confidential.
Each
Lender acknowledges that information furnished to it pursuant to this Agreement
may include material non-public information concerning the Parent Borrower
and
its Affiliates and their related parties or their respective securities, and
confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public
information in accordance with those procedures and applicable law, including
Federal and state securities laws.
All
information, including requests for waivers and amendments, furnished by the
Parent Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement will be syndicate-level information, which may
contain material non-public information about the Parent Borrower and its
Affiliates and their related parties or their respective securities.
Accordingly, each Lender represents to the Parent Borrower and the
Administrative Agent that it has identified in its administrative questionnaire
a credit contact who may receive information that may contain material
non-public information in accordance with its compliance procedures and
applicable law.
SECTION
10.17 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 Parent
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 the Parent 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 Parent Borrower
and Subsidiaries. At the request and sole expense of any Borrower or Subsidiary
following any such termination, the Administrative Agent shall deliver to the
Parent Borrower or Subsidiary any Collateral held by the Administrative Agent
thereunder, and execute and deliver to the Parent Borrower or Subsidiary such
documents as the Parent Borrower or Subsidiary shall reasonably request to
evidence such termination.
SECTION
10.18 Delivery
of Addenda.
Each
existing Lender shall consent to the amendment and restatement of the Previous
Credit Agreement effected hereby, and each initial Lender shall become a party
to this Agreement, by delivering to the Administrative Agent an Addendum duly
executed by such Lender.
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.
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CONMED
CORPORATION
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By:
/s/
Luke A. Pomilio
Name:
Luke A. Pomilio
Title:
Vice President - Corporate
Controller
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JPMORGAN
CHASE BANK, N.A. as
Administrative
Agent and as a Lender
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By:
/s/
Frederick Miller
Name:
Frederick Miller
Title:
Vice President
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