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AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT
among
BANK OF AMERICA, N.A.
as Administrative Agent
and
BANK OF AMERICA, N.A.,
as a Lender and the Letter of Credit
Issuer
and
THE OTHER LENDERS
as defined herein
and
YOUNG INNOVATIONS, INC.
as Borrower
Dated as of November 28, 2006
1336346.6
AMENDED AND RESTATED CREDIT FACILITIES
AGREEMENT
In consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby
acknowledged, Young Innovations, Inc., a Missouri corporation, (
Borrower ), Bank of America, N.A., a national banking
association ( Bank of America ), as Administrative
Agent and Letter of Credit Issuer , and Bank of America
and the other lenders listed on Exhibit 3 to this Agreement, as
Lenders , agree as follows:
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1.
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Effective Date. This
Agreement is effective as of November 28, 2006.
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2.
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Definitions and Rules of
Construction.
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2.2. Other
Definitions. If a capitalized word in this Agreement is
not defined in the Glossary, it shall have such meaning as defined
elsewhere herein, or if not defined elsewhere herein, the meaning
defined in the UCC.
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2.3. References
to Covered Person. The words Covered Person, a
Covered Person, any Covered Person, each Covered Person and every
Covered Person refer to Borrower and each of its now existing
or later acquired, created or organized Subsidiaries, separately.
The words Covered Persons refers to Borrower and its now
existing or later acquired, created or organized Subsidiaries,
collectively.
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2.4. References
to Required Lenders. The words Required Lenders
means (i) at any time when there are more than two Lenders, any one
or more Lenders whose shares of Lenders’ Exposure at the
relevant time aggregate at least 66 2/3%, or (ii) at any time when
there are less than three Lenders, any one or more Lenders whose
shares of Lenders’ Exposure at the relevant time aggregate
100%.
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2.5. Accounting
Terms. Unless the context otherwise requires, accounting
terms herein that are not defined herein shall be determined under
GAAP. All financial measurements contemplated hereunder respecting
Borrower shall be made and calculated for Borrower and all of its
now existing or later acquired, created or organized Subsidiaries,
if any, on a consolidated basis in accordance with GAAP unless
expressly provided otherwise herein.
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2.6. Changes
in Accounting Principles. If any Covered Person, at the
end of its fiscal year and with the concurrence of its independent
certified public accountants, changes the method of valuing the
Inventory of such Covered Person, or if any other changes in
accounting principles from those used in the preparation of any of
the Financial Statements are required by or result from the
promulgation of principles, rules, regulations, guidelines,
pronouncements or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or
successors thereto or bodies with similar functions), and any of
such changes result in a change in the method of calculation of, or
affect the results of such calculation of, any
1336346.6
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of the financial covenants,
standards or terms found herein, then the parties hereto agree to
enter into and diligently pursue negotiations in order to amend
such financial covenants, standards or terms so as to equitably
reflect such changes, with the desired result that the criteria for
evaluating the financial condition and results of operations of
such Covered Person shall be the same after such changes as if such
changes had not been made; provided, however, that until such
changes are made, all financial covenants herein and all the
provisions hereof which contemplate financial calculation hereunder
shall remain in full force and effect and compliance therewith
shall be determined without regard to such changes.
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2.7. Meaning
of Satisfactory. Whenever herein a document or matter is
required to be satisfactory to Administrative Agent or s
atisfactory to Lenders or satisfactory to Required
Lenders , unless expressly stated otherwise such document must
be satisfactory to Administrative Agent, Lenders or Required
Lenders (as applicable) in both form and substance, and unless
expressly stated otherwise Administrative Agent, Lenders or
Required Lenders (as applicable) shall have the reasonable
discretion to determine whether the document or matter is
satisfactory.
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2.8. Computation
of Time Periods. In computing or defining periods of
time from a specified date to a later specified date, and in
computing the accrual of interest or fees, the word from
shall mean from and including and the words to and until
shall mean to but excluding. Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days
are expressly prescribed, and references in this Agreement to
months and years are to calendar months and calendar years unless
otherwise specified.
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2.9. General. Unless
the context of this Agreement clearly requires otherwise: (i)
references to the plural include the singular and vice versa; (ii)
references to any Person include such Person’s successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement; (iii) references to one gender include
all genders; (iv) including is not limiting; (v) or has the
inclusive meaning represented by the phrase and/or; (vi) the words
hereof, herein, hereby, hereunder and similar terms in this
Agreement refer to this Agreement as a whole, including its
Exhibits, and not to any particular provision of this Agreement;
(vii) the word Section or section and Page or page refer to a
section or page, respectively, of, and the word Exhibit refers to
an Exhibit to, this Agreement unless it expressly refers to
something else; (viii) reference to any agreement, document, or
instrument (including this Agreement and any other Loan Document or
other agreement, document or instrument defined herein), means such
agreement, document, or instrument as amended, modified, restated
or replaced and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof, and includes
all attachments thereto and documents incorporated therein, if any;
and (ix) general and specific references to any Law means such Law
as amended, modified, codified or reenacted, in whole or in part,
and in effect from time to time. Section captions and the Table of
Contents are for convenience only and shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
2.10. Amendment and
Restatement. This Agreement is an amendment and
restatement of the Credit Facilities Agreement between
Administrative Agent, Borrower and the lenders party thereto dated
as of March 20, 2001, as amended from time to time (the "Prior
Credit Agreement"). This Agreement and the documents executed in
connection herewith, do not evidence or effect a refinancing of the
Loan Obligations of Borrower under the Prior Credit Agreement or
under any of the instruments, documents and agreements related
thereto (together with the Prior Credit Agreement, the "Prior Loan
Documents") and do not evidence under any circumstances a waiver of
Borrower’s obligation to reimburse Administrative Agent or
Lenders, as applicable, for any amounts previously evidenced by the
Prior Loan Documents.
1336346.6
3. Lenders’
Commitments. Subject to the terms and conditions hereof,
and in reliance upon the Representations and Warranties, Lenders
make the following commitments to Borrower:
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3.1.
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Revolving Loan
Commitments.
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3.1.1. Aggregate Amount;
Reductions. Subject to the limitations in Section 3.1.2
and elsewhere herein, each Lender commits to make available to
Borrower, from the Effective Date to the Revolving Loan Maturity
Date, such Lender’s pro rata share (as listed on Exhibit 3
hereto) of an Aggregate Revolving Loan Commitment that is
initially $75,000,000, but which may decrease from time to time as
provided herein, by funding such Lender’s pro rata share of
Revolving Loan Advances made from time to time by Administrative
Agent as provided herein. Subject to the limitations in Section
3.1.2 and elsewhere herein, payments and prepayments that are
applied to reduce the Aggregate Revolving Loan may be re-borrowed
through Revolving Loan Advances. Borrower may also reduce the
amount of the Aggregate Revolving Loan Commitment in whole
multiples of $1,000,000, at any time and from time to time, but
only if (i) Borrower gives Administrative Agent written notice
(which may be mailed, personally delivered or telecopied as
provided in Section 20.1) or telephonic notice (promptly confirmed
in writing in the manner provided in Section 20.1) of
Borrower’s intention to make such reduction at least two
Business Days prior to the effective date of the reduction, and
(ii) Borrower makes on the effective date of the reduction any
payment on the Aggregate Revolving Loan required under Section
6.2.2 as a consequence of the reduction. Any such reduction of the
amount of the Aggregate Revolving Loan Commitment shall be
permanent. Each Lender’s initial Revolving Loan Commitment is
its pro rata share of the Aggregate Revolving Loan Commitment. Upon
any reduction of the Aggregate Revolving Loan Commitment, each
Lender’s Revolving Loan Commitment will automatically reduce
by such Lender’s pro rata share of the reduction of the
Aggregate Revolving Loan Commitment.
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3.1.2. Limitation on Revolving
Loan Advances. No Revolving Loan Advance will be made
which would result in the Aggregate Revolving Loan exceeding the
Maximum Available Amount and no Revolving Loan Advance will be made
on or after the Revolving Loan Maturity Date. Lenders may, however,
in their absolute discretion make such Revolving Loan Advances, but
shall not be deemed by doing so to have increased the Maximum
Available Amount and shall not be obligated to make any such
Revolving Loan Advances thereafter. At any time that there is an
Existing Default, the Aggregate Revolving Loan Commitment may be
canceled as provided in Section 16.2. The Maximum Available
Amount on any date shall be a Dollar amount equal to (i) the
amount of the Aggregate Revolving Loan Commitment, minus (ii) (a)
the Letter of Credit Exposure on such date (except to the extent
that such Revolving Loan Advance will be used immediately to
reimburse Letter of Credit Issuer for unreimbursed draws on a
Letter of Credit) and (b) the Swingline Loan (except to the extent
that such Revolving Loan Advance will be used immediately to repay
Bank of America for a Swingline Loan).
1336346.6
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3.2.
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Swingline
Commitment.
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3.2.1. Swingline
Advances. Subject to the limitations in Section 3.2.2
and elsewhere herein, Bank of America commits to make available to
Borrower, from the Effective Date to the Revolving Loan Maturity
Date, a Swingline Commitment that is initially $3,000,000, but
which may decrease from time to time as provided herein, by funding
Swingline Advances made from time to time by Bank of America as
provided herein. Subject to the limitations in Section 3.2.2 and
elsewhere herein, payments and prepayments that are applied to
reduce the Swingline Loan may be re-borrowed through Swingline
Advances. The Swingline Commitment shall terminate automatically if
the Required Lenders terminate the Aggregate Revolving Loan
Commitment; Bank of America, in its sole discretion, may terminate
the foregoing Swingline Commitment at any time from and after the
occurrence of an Event of Default that has not been waived in
writing.
3.2.2. Limitations on Swingline
Advances. No Swingline Advance will be made on or after
the Revolving Loan Maturity Date, and no Swingline Advance will be
made which would result in the Swingline Loan exceeding the
Swingline Maximum Available Amount. The Swingline Maximum
Available Amount on any date shall be a Dollar amount equal to
the lesser of (i) $3,000,000, or (ii) an amount equal to the
Aggregate Revolving Loan Commitment minus the sum of the Aggregate
Revolving Loan and the Letter of Credit Exposure immediately prior
to the making of such Swingline Advance.
3.2.3. Swingline
Note. The obligation of Borrower to repay the Swingline
Loan shall be evidenced by a promissory note payable to the order
of Bank of America in a maximum principal amount equal to the
Swingline Commitment and otherwise in a form satisfactory to Bank
of America.
3.2.4. Swingline
Documents. To the extent that any of the terms or
provisions of the Swingline Documents are in conflict with the
terms of this Agreement or the other Loan Documents (other than the
Swingline Documents), the terms and provisions of this Agreement
and the other Loan Documents (other than the Swingline Documents)
shall govern and control in all respects.
3.2.5. Swingline
Loan. Bank of America shall be permitted to take all
actions, or omit to take any actions, with respect to the Swingline
Loan, including, without limitation, acceleration of the Swingline
Loan, the termination of the Swingline Commitment, or imposition of
the Default Rate with respect to the Swingline Loan in accordance
with the terms hereof, the Swingline Documents and applicable Law,
in each case, without the consent of, or notice to, Administrative
Agent or any other Lender, notwithstanding anything contained
herein to the contrary; provided, however, that Bank of America may
not increase the Swingline Commitment or impose the Default Rate on
the Swingline Loan without the prior consent of the Required
Lenders. The amount of the Swingline Commitment may be changed at
the sole discretion of Bank of America (or its assignee) without
the consent of the other Lenders or Administrative Agent. Bank of
America will use its reasonable efforts to give notice to the other
Lenders and the Administrative Agent of any change in the amount of
the Swingline Commitment, termination of the Swingline Commitment
or acceleration of the Swingline Loan, but the failure to give any
such notice, unless intentional, shall not result in any liability
to Bank of America.
1336346.6
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3.3. Letter
of Credit Commitment. Bank of America commits to issue
standby letters of credit and commercial (documentary) letters of
credit for the account of Borrower from time to time from the
Effective Date to the Revolving Loan Maturity Date, but only if the
Letter of Credit Exposure will not as a result of such issuance
exceed the lesser of (i) $5,000,000 and (ii) any excess of the
Maximum Available Amount over the sum of the Aggregate Revolving
Loan and the Swingline Loan. The expiration date of any Letter of
Credit will be a Business Day that is not more than one year after
its issuance date and is not later than the Revolving Loan Maturity
Date. The outstanding letters of credit listed on Exhibit 3.3
previously issued by Letter of Credit Issuer shall be deemed to be
Letters of Credit issued pursuant to this Letter of Credit
Commitment. Immediately upon the issuance or deemed issuance by
Letter of Credit Issuer of a Letter of Credit in accordance with
the terms and conditions of this Agreement, Letter of Credit Issuer
shall be deemed to have sold and transferred to each other Lender,
and such other Lender shall be deemed to have purchased and
received from Letter of Credit Issuer, a pro rata undivided
interest and participation in such Letter of Credit, the
reimbursement obligation of Borrower with respect thereto, and any
guaranty thereof or collateral therefor. Each such other
Lender’s pro rata undivided interest shall be the same as its
pro rata share of the Aggregate Revolving Loan Commitment. Upon the
request of Administrative Agent, if, as of the Revolving Loan
Maturity Date, any Letter of Credit for any reason remain
outstanding and partially or wholly undrawn, Borrower shall
immediately Cash Collateralize the then existing Letter of Credit
Exposure in an amount equal to such Letter of Credit Exposure
determined as of the date of the Revolving Loan Maturity Date. For
purposes hereof, "Cash Collateralize" means to pledge and deposit
with or deliver to Administrative Agent, for the ratable benefit of
Letter of Credit Issuer and Lenders, as collateral for the Letter
of Credit Exposure, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to Administrative
Agent. Derivatives of the term "Cash Collateralize" have
corresponding meanings. Borrower hereby grants to Administrative
Agent, for the ratable benefit of Letter of Credit Issuer and
Lenders, a security interest in all such cash, deposit accounts and
all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked deposit accounts at Bank
of America. For purposes of computing the Letter of Credit Exposure
to be Cash Collateralized hereunder, the undrawn amount of any
Letter of Credit that, by its terms or the terms of any Letter of
Credit Issuer document related thereto, provides for one or more
automatic increases in the face or stated amout thereof, shall be
deemed to be the maximum face or stated amount of such Letter of
Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time, less the
amount of all prior draws thereunder that have been reimbursed in
full by Borrower.
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4.3. Interest
on Aggregate Revolving Loan. Except with respect to
Swingline Advances, Borrower may, as provided in Section 7,
designate the whole of an Advance or any part of an Advance to be
either a Base Rate Advance or a Eurodollar Advance; provided,
however, during the existence of an Existing Default, Borrower may
not designate an Advance or part of an Advance as a Eurodollar
Advance. Each Base Rate Advance when made will become a Base Rate
Loan, which shall bear interest at the Adjusted Base Rate. Each
Eurodollar Advance when made will become a Eurodollar Loan, which
shall bear interest at the Adjusted Eurodollar Rate.
1336346.6
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Borrower may also, as provided
herein, convert some or all of a Base Rate Loan into a Eurodollar
Loan and some or all of a Eurodollar Loan into a Base Rate Loan.
For each Eurodollar Loan, Borrower shall select an Interest Period
as provided in Section 4.7. A Eurodollar Loan shall bear interest
at the Adjusted Eurodollar Rate throughout the applicable Interest
Period designated by Borrower.
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4.4. Adjusted
Base Rate; Adjusted Eurodollar Rate. The Adjusted
Base Rate for any Base Rate Loan shall be the Base Rate plus
the Base Rate Increment determined from the table in Section 4.5.
The Adjusted Eurodollar Rate for any Eurodollar Loan shall
be the Eurodollar Rate plus the applicable Eurodollar Increment
determined from the table in Section 4.5.
4.5. Base Rate
Increments; Eurodollar Increments; Revolving Loan Commitment
Fee. The Base Rate Increment and Eurodollar Increment
for each Loan shall be determined by Administrative Agent in
accordance with the following table and based upon the ratio of
Borrower's Funded Indebtedness (as defined in Section 15.1) to
Borrower's Adjusted EBITDA (as defined in Section 15.1)).
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If the ratio of Borrower’s Total Funded
Indebtedness to Adjusted EBITDA is:
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The Eurodollar Increment
shall be:
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The Base Rate Increment
shall be:
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Revolving Loan
Commitment Fee (per annum)
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Greater than or equal to 2.00 to
1.00
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1.50%
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0.00%
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0.15%
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Greater than or equal to 1.50 to
1 but less than 2.00 to 1.00
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1.25%
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0.00%
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0.15%
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Greater than or equal to 1.00 to
1.00 but less than 1.50 to 1.00
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1.00%
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0.00%
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0.125%
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Less than 1.00 to 1
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0.75%
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0.00%
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0.125%
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The initial Base Rate Increment, Eurodollar
Increment and Revolving Loan Commitment Fee, effective as of the
Effective Date, shall be 0.00%, 0.75%, and .125% respectively.
Thereafter, the applicable Base Rate Increment and Eurodollar
Increment shall be re-determined by Administrative Agent promptly
after each delivery by Borrower to Administrative Agent of
Borrower’s Financial Statements for each fiscal quarter of
Borrower (and accompanying Compliance Certificate) as required in
Section 13.13.2 and will become applicable on the second day
following the day when Borrower delivers such Financial Statements
(and accompanying Compliance Certificate) to Administrative Agent.
If Borrower does not deliver such Financial Statements (and
accompanying Compliance Certificate) to Administrative Agent within
the time period required by Section 13.13.2, then from the date
such Financial Statements were required to be delivered until the
date of such delivery, the highest possible Base Rate Increment and
Eurodollar Increment shall become applicable and shall remain
applicable until Borrower delivers such Financial Statements (and
accompanying Compliance Certificate) to Administrative Agent and
Administrative Agent determines the correct Base Rate Increment and
Eurodollar Increment. The Eurodollar Rate for each Eurodollar Loan
shall be determined by Administrative Agent before the beginning of
the applicable Interest Period and shall apply throughout such
Interest Period.
4.6. Conversion
of Loans. Borrower may (i) as of any Business Day
convert some or all of a Base Rate Loan (other than the Swingline
Loan) to a Eurodollar Loan, or (ii) at the end of any Interest
Period of a Eurodollar Loan, continue the Loan as a Eurodollar Loan
for an additional Interest Period or convert some or all of such
Eurodollar Loan to a Base Rate Loan; provided however, that if
there is an Existing Default, Borrower may not convert a Base Rate
Loan to a
1336346.6
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Eurodollar Loan or continue a
Eurodollar Loan for an additional Interest Period. The Swingline
Loan may not be converted from a Base Rate Loan to a Eurodollar
Loan. To cause any conversion or continuation, Borrower shall give
Administrative Agent, prior to 11:00 a.m. (Local Time) three
Business Days prior to the date the conversion or continuation is
to be effective in the case of a Eurodollar Loan or on the same
Business Day the conversion or continuation is to be effective with
respect to the conversion of a Eurodollar Loan into a Base Rate
Loan or continuation of a Base Rate Loan, a written request (which
may be mailed, personally delivered or telecopied as provided in
Section 20.1) or telephonic request (promptly confirmed in writing
in the manner provided in Section 20.1) (i) specifying whether a
conversion or continuation is requested, (ii) in the case of a
conversion, specifying the amount to be converted and whether it is
to be a Eurodollar Loan or a Base Rate Loan upon the conversion,
and (iii) in the case of any conversion to or continuation of a
Eurodollar Loan, specifying the Interest Period therefor. If such
notice is not given prior to 11:00 a.m. (Local Time) on the third
Business Day preceding the last day of the Interest Period of a
Eurodollar Loan, then Borrower shall be deemed to have timely given
a notice to Administrative Agent requesting to convert all of such
Eurodollar Loan to a Base Rate Loan. In the case of a Eurodollar
Loan, any conversion or continuation shall become effective on the
day following the last day of the current Interest
Period.
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4.7. Interest
Periods for Eurodollar Loans. For each Eurodollar Loan,
Borrower shall select an Interest Period that is either one, two,
three or six months; provided that:
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(ii) if any Interest Period would otherwise
expire on a day of a calendar month which is not a Business Day,
then such Interest Period shall expire on the next succeeding
Business Day in that calendar month; provided, however, that if the
next succeeding Business Day would be in the following calendar
month, it shall expire on the first preceding Business Day;
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4.9. Computation. Interest
shall be computed for the actual days elapsed over a year deemed to
consist of 360 days for all Eurodollar Loans and 365 or 366 days,
as applicable, for all Base Rate Loans. Interest rates that are
based on the Base Rate shall change simultaneously with any change
in the Base Rate and shall be effective for the entire day on which
such change becomes effective. The Base Rate will be determined by
Administrative Agent before the initial Advance on the Effective
Date and on each Business Day thereafter when the Base Rate
changes.
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4.10. Rate After
Maturity. Borrower shall pay interest on the Aggregate
Revolving Loan, the Swingline Loan and on the other Loan
Obligations after their Maturity, and, at the option of Required
Lenders, on the Aggregate Revolving Loan, the Swingline Loan and on
the principal
1336346.6
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amount of the other Loan
Obligations and (to the extent permitted by Law) accrued and unpaid
interest, after the occurrence of an Event of Default (and notice
from Administrative Agent that the Default Rate is in effect) until
it has been cured by Borrower or waived in writing as permitted
herein, at a rate per annum equal to 2.00% plus the interest rate
otherwise in effect hereunder.
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5.1. Revolving
Loan Commitment Fee. Borrower shall pay to
Administrative Agent for the account of Lenders a non-refundable,
recurring Revolving Loan Commitment Fee calculated by applying the
daily equivalent of an annual rate equal to the applicable
Revolving Loan Commitment Fee specified in the table in Section 4.5
to the Unused Revolving Loan Commitment on each day during the
period from the Effective Date to the Revolving Loan Maturity Date.
The Unused Revolving Loan Commitment on any day shall be the
difference between (i) the amount of the Aggregate Revolving Loan
Commitment and (ii) the sum of (a) the Aggregate Revolving Loan,
and (b) the Letter of Credit Exposure. The Revolving Loan
Commitment Fee shall be payable quarterly in arrears commencing on
the first day of the first calendar quarter beginning after the
Effective Date and continuing on the first day of each quarter
thereafter and on the Revolving Loan Maturity Date.
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5.2. Standby
Letter of Credit Fee. Borrower shall pay to
Administrative Agent for the account of Letter of Credit Issuer and
each other Lender, a non-refundable recurring Standby Letter of
Credit Fee for each standby Letter of Credit issued by Letter of
Credit Issuer. The Standby Letter of Credit Fee for any
standby Letter of Credit shall be an amount equal to the greater of
(i) $300 and (ii) an annual amount determined by applying the
quarterly equivalent of the then applicable Eurodollar Increment to
the aggregate undrawn amount of such standby Letter of Credit. The
Standby Letter of Credit Fee for each standby Letter of Credit
shall be payable quarterly in arrears, commencing on the first day
of the first calendar quarter beginning after the Effective Date
and continuing on the first day of each calendar quarter thereafter
until the earlier of its expiration or the Revolving Loan Maturity
Date. The Standby Letter of Credit Fee will be distributed by
Administrative Agent to Lenders with Revolving Loan Commitments in
accordance with their pro rata shares of the Aggregate Revolving
Loan Commitment.
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5.3. Commercial
Letter of Credit Fee. Borrower shall pay to
Administrative Agent for the account of Letter of Credit Issuer and
each other Lender a non-refundable, recurring Commercial Letter
of Credit Fee for each commercial Letter of Credit issued by
Letter of Credit Issuer that is equal to .25% of the average daily
maximum amount available to be drawn under such commercial Letter
of Credit computed at a per annum rate for each day from the date
of issuance to the date of expiration. Such Commercial Letter of
Credit Fee shall be payable quarterly, in arrears, on the last
Business Day of each calendar quarter (for the immediately
preceding quarter or portion thereof), until the earlier of its
expiration or the Revolving Loan Maturity Date. The Commercial
Letter of Credit Fee will be distributed by Administrative Agent to
Lenders in accordance with their pro rata shares of the Aggregate
Revolving Loan Commitment.
5.4. Letter of Credit Fronting
Fee. Borrower shall pay to Letter of Credit Issuer a
non-refundable, one-time Fronting Fee equal to the greater of (i)
$75, plus .125% of the undrawn amount of each Letter of Credit
issued by Letter of Credit Issuer, and (ii) $300, as of its
issuance date.
5.5. Other
Letter of Credit Fees. Borrower shall pay to Letter of
Credit Issuer such Letter of Credit Issuer’s other customary
fees for issuance, amendment or renewal of a Letter of Credit
1336346.6
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5.6.
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Calculation of Letter of
Credit Feees.
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For purposes of computing the
amount of any fee on any Letter or Credit under this Section 5, the
undrawn amount of any Letter of Credit that, by its terms or the
terms of any Letter of Credit Issuer document related thereto,
provides for one or more automatic increases in the face or stated
amout thereof, shall be deemed to be the maximum face or stated
amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect
at such time, less the amount of all prior draws thereunder that
have been reimbursed in full by Borrower.
5.7. Calculation
of Fees. All of the foregoing fees and all other fees
payable to Administrative Agent or any Lender that are based on an
annual percentage shall be calculated on the basis of a year deemed
to consist of 360 days and for the actual number of days
elapsed.
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6.1.
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Scheduled Payments on
Aggregate Revolving Loan and Swingline Loan.
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6.1.1. Interest. Borrower
shall pay interest accrued on each Base Rate Loan included in the
Aggregate Revolving Loan and on the Swingline Loan quarterly in
arrears beginning on the first day of the first calendar quarter
beginning after the Effective Date and continuing on the first day
of each calendar quarter thereafter, and on the Revolving Loan
Maturity Date. Borrower shall pay interest accrued on each
Eurodollar Loan included in the Aggregate Revolving Loan at the end
of its Interest Period and, in addition, for each such Eurodollar
Loan with an Interest Period longer than 90 days, Borrower shall
pay interest accrued thereon quarterly on the first day of each
calendar quarter during such Interest Period. Borrower shall pay
interest accrued on each Revolving Loan and the Swingline Loan
after the Revolving Loan Maturity Date on demand.
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6.1.2. Principal;
Maturity. Borrower shall repay the entire amount of the
Aggregate Revolving Loan as then outstanding on April 15, 2010, and
Borrower shall repay the entire amount of the Swingline Loan on the
same Business Day as demand therefore, or if no demand is made, on
April 15, 2010; provided, however, that if demand for payment of
the Swingline Loan is made after 11:00 (Local Time) on any day
(except for demand made under Section 16.2.2 or as a result of Bank
of America’s termination of the Swingline Commitment),
payment shall be made thereon by Borrower on the following Business
Day.
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6.2.1. Voluntary
Prepayments. Subject to the limitations in the following
sentences, Borrower may at any time wholly prepay the Swingline
Loan and any Base Rate Loan or Eurodollar Loan that is included in
the Aggregate Revolving Loan and may make partial prepayments
thereon from time to time, without penalty or premium (except as
provided in clause (iv) below), but only if (i) Borrower gives
Administrative Agent written notice (which may be mailed,
personally delivered or telecopied as provided in Section 20.1) or
telephonic notice (promptly confirmed in writing in the manner
provided in Section 20.1) of Borrower’s intention to make
such prepayment at least two Business Days prior to tendering such
prepayment in the case of a Eurodollar Loan and on the same
Business
1336346.6
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Day of the tender of such
prepayment in the case of a Base Rate Loan, (ii) the amount of such
prepayment is at least $100,000, and over that amount, is a whole
multiple of $50,000, (iii) Borrower pays any accrued interest on
the amount prepaid at the time of such prepayment, in the case of a
Eurodollar Loan, and (iv) Borrower pays any amount that is due
under Section 18.4 as a consequence of the prepayment. All such
prepayments (other than prepayments on the Swingline Loan) shall be
applied by Lenders to reduce the Revolving Loans in accordance with
their respective pro rata shares of the Aggregate Revolving Loan
Commitment. All prepayments on the Swingline Loan shall be applied
by Bank of America to reduce the Swingline Loan.
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6.2.2.
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Mandatory Prepayments When
Over-Advances Exist.
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6.2.2.1. Aggregate Revolving
Loan. If at any time the sum of the Aggregate Revolving
Loan exceeds the Maximum Available Amount, whether as a result of
optional Revolving Loan Advances by Lenders as contemplated by
Section 3.1.2, Swingline Advances or otherwise, Borrower shall on
demand make a payment in the amount of the excess to Administrative
Agent for the account of Lenders on the Aggregate Revolving Loan.
Each such prepayment will be applied by Administrative Agent and
Lenders first to reduce the Base Rate Loans that are included in
the Aggregate Revolving Loan (and consequently a ratable portion of
each Lender’s Revolving Loan) until they are reduced to zero
and then to reduce the Eurodollar Loans that are included in the
Aggregate Revolving Loan (and consequently a ratable portion of
each Lender’s Revolving Loan). Borrower shall pay any amount
that is due under Section 18.4 as a consequence of such mandatory
prepayment.
6.2.2.2. Swingline
Loan. If at any time the Swingline Loan exceeds the
Swingline Maximum Available Amount, Borrower shall on demand make a
payment in the amount of the excess to Bank of America. Anything to
the contrary in Section 7.4 notwithstanding, no Lender shall at any
time have any obligation to remit funds to Bank of America to pay
the amount of any excess of the Swingline Loan over the Swingline
Maximum Available Amount.
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6.3. Reimbursement
Obligations of Borrower. Borrower hereby unconditionally
agrees to immediately pay to Letter of Credit Issuer on demand at
the Letter of Credit Issuer's Applicable Lending Office all amounts
required to pay all drafts drawn under Letters of Credit issued for
the account of Borrower and all reasonable expenses incurred by
Letter of Credit Issuer in connection with such Letters of Credit
and in any event and without demand to remit to Letter of Credit
Issuer (which may be through obtaining Advances if permitted under
Section 3.1.2) sufficient funds to pay all debts and liabilities
arising under any Letter of Credit issued for the account of
Borrower; provided, however, that if demand for payment of any
draft drawn under any Letter of Credit is made after 11:00 (Local
Time) on any day (except for demand made under Section 16.2.2),
payment thereof shall be made by Borrower on the following Business
Day.
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6.4.
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Manner of Payments and Timing
of Application of Payments.
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6.4.1. Payment
Requirement. Unless expressly provided to the contrary
elsewhere herein, Borrower shall make each payment on the Loan
Obligations to Administrative Agent for the account of Lenders as
required under the Loan Documents at Administrative Agent’s
Applicable Lending Office on the date when due, without deduction,
setoff or counterclaim. All such payments will be distributed
by
1336346.6
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6.4.3. Interest
Calculation. Section 6.4.2 notwithstanding, for purposes
of interest calculation only, (i) a payment by check, draft or
other instrument received at or before 12:00 noon (Local Time) on a
Business Day shall be deemed to have been applied to the relevant
Loan Obligation on the second following Business Day, (ii) a
payment by check, draft or other instrument received on a day that
is not a Business Day or after 12:00 noon on a Business Day shall
be deemed to have been applied to the relevant Loan Obligation on
the third following Business Day, (iii) a payment in cash
(including by way of debit to an account of Borrower with
Administrative Agent) or by wire transfer received at or before
12:00 noon (Local Time) on a Business Day shall be deemed to have
been applied to the relevant Loan Obligation on the Business Day
when it is received, and (iv) a payment in cash (including by way
of debit to an account of Borrower with Administrative Agent) or by
wire transfer received on a day that is not a Business Day or after
12:00 noon (Local Time) on a Business Day shall be deemed to have
been applied to the relevant Loan Obligation on the next Business
Day.
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6.5. Returned
Instruments. If a payment is made by check, draft or
other instrument and the check, draft or other instrument is
returned unpaid, any application of the payment to the Loan
Obligations will be reversed and will be treated as never having
been made.
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6.6. Compelled
Return of Payments or Proceeds. If Administrative Agent
or any Lender is for any reason compelled to surrender any payment
because such payment is for any reason invalidated, declared
fraudulent, set aside, or determined to be void or voidable as a
preference, an impermissible setoff, or a diversion of trust funds,
then this Agreement and the Loan Obligations to which such payment
or proceeds was applied or intended to be applied shall be revived
as if such application was never made; and Borrower shall be liable
to pay to Administrative Agent or such Lender, and shall indemnify
Administrative Agent or such Lender for and hold Administrative
Agent or such Lender harmless from any actual loss with respect to,
the amount of such payment or proceeds surrendered. This Section
shall be effective notwithstanding any contrary action that
Administrative Agent or such Lender may take in reliance upon its
receipt of any such payment or proceeds. Any such contrary action
so taken by Administrative Agent or such Lender shall be without
prejudice to Administrative Agent’s or such Lender’s
rights under this Agreement and shall be deemed to have been
conditioned upon the application of such payment or proceeds having
become final and indefeasible. The provisions of this Section shall
survive termination of the Commitments, the expiration of the
Letters of Credit and the payment and satisfaction of all of the
Loan Obligations.
1336346.6
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7.
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Procedure for Obtaining
Advances and Letters of Credit.
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7.1. Initial
Advances. Provided that all conditions thereto hereunder
are satisfied and subject to the limitations contained herein,
Lenders will fund and Administrative Agent will make the initial
Revolving Loan Advance on the Effective Date in immediately
available funds in Dollars as directed by Borrower in a written
direction delivered to Administrative Agent.
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7.2. Subsequent
Revolving Loan Advances. Borrower may request a
subsequent Revolving Loan Advance at any time, but not more often
than once each Business Day, by submitting a request therefor to
Administrative Agent as provided in Section 7.13. Every request for
an Revolving Loan Advance shall be irrevocable. A request for a
Revolving Loan Advance received by Administrative Agent on a day
that is not a Business Day or that is received by Administrative
Agent after 11:00 a.m. (Local Time) on a Business Day shall be
treated as having been received by Administrative Agent prior to
11:00 a.m. (Local Time) on the next Business Day.
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7.3. Swingline
Advances. Swingline Advances will be made to Borrower in
accordance with the terms of the Swingline Documents and Bank of
America’s standard procedures for autoborrow arrangements (to
the extent such procedures do not conflict with the terms of this
Agreement and the Swingline Documents), as such documents and
procedures may change from time to time in accordance with the
terms of this Agreement and the Swingline Documents.
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7.4.
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Repayment of the Swingline
Loan.
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7.4.1. Bank of
America shall once each week (or after an Event of Default, if Bank
of America in its sole discretion has not terminated the Swingline
Commitment, as often as Bank of America may in its absolute
discretion determine) give notice to Lenders of the amount of the
Swingline Loan after application of all payments to be applied
thereto as provided elsewhere herein. Such notice shall be given no
later than 1:00 p.m. (Local Time) on any Business Day and shall
include a demand that the Swingline Loan be fully paid. Prior to
3:00 p.m. (Local Time) on such date, Lenders shall remit funds to
Bank of America sufficient to reduce the Swingline Loan to zero;
provided, however, that no Lender will be required to remit funds
to the extent such remittance would cause such Lender’s
Revolving Loan to exceed such Lender’s pro rata share of the
Maximum Available Amount, and in such event, such Lender shall
remit only so much of the requested funds as would cause such
Lender’s Revolving Loan to equal such Lender’s pro rata
share of the Maximum Available Amount. The aggregate of such
remittances shall be treated as a Revolving Loan Advance and the
Aggregate Revolving Loan increased accordingly; each such Revolving
Advance shall be deemed to be a Base Rate Advance. Each such
remittance by a Lender shall be made in accordance with its pro
rata share of the Aggregate Revolving Loan Commitment and shall be
made notwithstanding that (i) the amount of the aggregate of such
remittances by Lenders may not be in the minimum amount for
Revolving Loan Advances otherwise required hereunder, (ii) any
conditions to Advances in Section 9 may not be then satisfied,
(iii) there is an Existing Default, or (iv) such remittances by
Lenders may be made after the Revolving Loan Maturity Date.
Notwithstanding the foregoing, if the Swingline Loan is repaid by
Lenders upon the demand or request of Bank of America, and the
Borrower is thereby deemed to have received the proceeds of a
Revolving Loan Advance, for the date such Revolving Loan Advance is
deemed to have been made, Borrower shall only pay interest on the
amount of the Revolving Loan Advance (and not on the amount of the
Swingline Loan so
1336346.6
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repaid, irrespective of the time
of day Bank of America makes demand for such payment).
7.4.2. If for any
reason, including the commencement of a proceeding in bankruptcy
with respect to Borrower, remittances by Lenders as provided above
cannot be made on the date otherwise required above, then each
Lender shall be deemed automatically to have purchased from Bank of
America as of such date a pro rata undivided interest and
participation in the Swingline Loan so as to cause such Lender to
share in the Swingline Loan in accordance with its pro rata share
of the Aggregate Revolving Loan Commitment. Each Lender shall remit
its pro rata share of the Swingline Loan to Bank of America
promptly on demand. All interest payable with respect to such
Lender’s pro rata share of the Swingline Loan shall be for
the account of Bank of America to the date such remittance is made,
and shall be for the account of and remitted by Bank of America to
such Lender as a participant from such date. Further, until such
remittance is made, such Lender shall pay to Bank of America, on
demand, interest on such Lender’s pro rata share of the
Swingline Loan at the Federal Funds Rate.
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7.5. Administrative
Agent’s Right to Make Other Revolving Loan Advances --
Payment of Loan Obligations. With the prior approval of
Required Lenders in each instance, Administrative Agent shall have
the right to make Revolving Loan Advances at any time and from time
to time to cause timely payment when due of any of the Loan
Obligations; provided, however, that no Lender will be required to
remit funds in an amount which would cause such Lender’s
Revolving Loan to exceed such Lender’s pro rata share of the
Maximum Available Amount. Administrative Agent may select the
Advance Date for any such Revolving Loan Advance, but such Advance
Date may only be a Business Day. Administrative Agent will give
notice to Borrower after any such Revolving Loan Advance is made.
Any such Revolving Loan Advance will initially be a Base Rate
Advance.
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7.7.1. Revolving Loan
Advances. Administrative Agent shall promptly notify
each Lender of the amount of the Advance to be made on an Advance
Date. Each Lender shall make immediately available to
Administrative Agent by 3:00 p.m. (Local Time) on the Advance Date
funds consisting solely of Dollars in the amount of its pro rata
share of such Advance, rounded to the nearest penny, in accordance
with such remittance instructions as may be given by Administrative
Agent to Lenders from time to time.
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7.7.2. Draws
on Letters of Credit. In the event that a draw is made
on a Letter of Credit and Borrower does not reimburse the amount of
such draw in full to Letter of Credit Issuer immediately on demand,
Letter of Credit Issuer shall promptly notify Administrative Agent
of such failure. Upon Administrative Agent’s receipt of such
notice from Letter of Credit Issuer, Administrative Agent may
notify each Lender thereof and shall have the right to cause a
Revolving Loan Advance to be made, regardless whether such
Revolving Loan Advance would result in the Aggregate Revolving Loan
exceeding the Maximum Available Amount, by notifying each Lender of
the draw, the amount of the Revolving Loan Advance required to fund
reimbursement of such draw, and the
1336346.6
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amount of such Lender’s
ratable share of such Revolving Loan Advance. Unless otherwise
agreed by Lenders, the Advance Date and time for such Revolving
Loan Advance shall not be later than 1:00 p.m. (Local Time) on the
first Business Day following Administrative Agent’s delivery
of such notice to Lenders. By no later than such Advance Date and
time, each Lender shall make immediately available to
Administrative Agent funds consisting solely of Dollars in the
amount of its pro rata share of such Revolving Loan Advance,
rounded to the nearest penny, in accordance with such remittance
instructions as may be given by Administrative Agent to each Lender
from time to time. Each Revolving Loan Advance made by
Administrative Agent pursuant to this Section 7.7.2 shall initially
be a Base Rate Advance. Administrative Agent will give notice to
Borrower after any such Revolving Loan Advance is made.
Notwithstanding the foregoing, if any unreimbursed draw on a Letter
of Credit is repaid by Lenders upon the demand or request of Bank
of America, and the Borrower is thereby deemed to have received the
proceeds of a Revolving Loan Advance, for the date such Revolving
Loan Advance is deemed to have been made, Borrower shall only pay
interest on the amount of the Revolving Loan Advance (and not on
the amount of the unreimbursed Letter of Credit draw so repaid,
irrespective of the time of day Bank of America makes demand for
such payment).
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7.7.3. All
Fundings Ratable. All fundings of Advances (other than
Swingline Advances) shall be made by Lenders as provided herein in
accordance with their pro rata shares of the Aggregate Revolving
Loan Commitment. Except as otherwise expressly provided herein, a
Lender shall not be obligated to fund Revolving Loan Advances that
would result in the sum of (a) such Lender’s Revolving Loan,
plus (b) such Lender’s pro rata share of the Letter of Credit
Exposure exceeding its Revolving Loan Commitment, or make available
any more than its pro rata share of any Advance.
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7.8.
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Administrative Agent’s
Availability Assumptions.
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7.8.1. Unless
Administrative Agent has been given written notice by a Lender
prior to an Advance Date that such Lender does not intend to make
immediately available to Administrative Agent such Lender’s
pro rata share of the Advance which Administrative Agent will be
obligated to make on the Advance Date, Administrative Agent may
assume that such Lender has made the required amount available to
Administrative Agent on the Advance Date and Administrative Agent
may, in reliance upon such assumption, make available to Borrower a
corresponding amount. If such required amount is not in fact made
immediately available to Administrative Agent by such Lender on the
Advance Date, Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender. If such
Lender does not pay such corresponding amount immediately upon
Administrative Agent’s demand therefor, then Administrative
Agent shall promptly notify Borrower and the other Lenders and
Borrower shall immediately pay such corresponding amount to
Administrative Agent. Administrative Agent shall also be entitled
to recover, either from such defaulting Lender or Borrower,
interest on such corresponding amount for each day from the date
such corresponding amount was made available by Administrative
Agent to Borrower to the date such corresponding amount is
recovered by Administrative Agent, at a rate per annum equal to (i)
if paid by such Lender, the cost to Administrative Agent of funding
such amount at the Federal Funds Rate, or (ii) if paid by Borrower,
the applicable rate for the Advance in question determined from the
request therefor (without duplication of any interest accruing
thereon under any other provision of this Agreement). Each Lender
shall be obligated
1336346.6
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7.8.2. Unless
Administrative Agent has been given written notice by Borrower
prior to the date any payment to be made by it is due, that it does
not intend to remit such payment, Administrative Agent may assume
that the Borrower has timely remitted such payment and
Administrative Agent may, in reliance upon such assumption, make
available a corresponding amount or pro rata portion thereof to the
Persons entitled thereto. If such payment was not in fact remitted
to the Administrative Agent in immediately available funds, then,
each Lender shall immediately on demand repay to Administrative
Agent the corresponding amount or pro rata portion thereof made
available to such Lender, together with interest thereon in respect
of each day from the date such amount was made available by
Administrative Agent to such Lender to the date such amount is
repaid to Administrative Agent, at the Federal Funds Rate.
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7.9. Disbursement. Provided
that all conditions precedent herein to a requested Advance have
been satisfied, Administrative Agent will make the amount of such
requested Advance available to Borrower on the applicable Advance
Date in immediately available funds in Dollars at Administrative
Agent’s Applicable Lending Office.
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7.10. Restrictions on
Advances. No Eurodollar Advance will be made unless it
is at least $250,000, and, over that amount, unless it is a whole
multiple of $100,000. No Base Rate Advance will be made unless it
is a whole multiple of $100,000 and at least $100,000. No more than
one Revolving Loan Advance will be made on any one day pursuant to
a request for a Revolving Loan Advance. No more than one Swingline
Advance will be made on any day. Advances will only be made for the
purposes permitted in Section 13.1. No Eurodollar Advance will be
made so long as there is any Existing Default. Notwithstanding the
foregoing, the Swingline Documents will govern whether there are
any minimum advance amount requirements for Swingline Advances.
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7.12. Each Advance Request
and Letter of Credit Request a Certification. Each
submittal of a request for an Advance and each submittal of a
request for the issuance of a Letter of Credit by a Borrowing
Representative shall constitute a certification by Borrower that
(i) there is no Existing Default, (ii) all conditions precedent
hereunder to the making of the requested Advance or issuance of the
requested Letter of Credit have been satisfied, and (iii) the
Representations and Warranties are then true, with such exceptions
as have been disclosed to Lenders in writing by Borrower or a
Guarantor from time to time and are satisfactory to Lenders, and
will be true on the Advance Date or issuance date, as applicable,
as if then made with such exceptions.
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7.13. Requirements for
Every Advance Request. Only a written request (which
shall be in the form attached hereto as Exhibit 7.13 and mailed,
personally delivered or telecopied as provided in Section 20.1) or
a telephonic request (promptly confirmed in writing in the form
attached hereto as Exhibit 7.13 in the manner provided in Section
20.1) from a Borrowing Representative to Administrative Agent that
specifies the amount of the Advance to be made, the Advance Date
for the requested Advance, the portion of the Advance which is
requested to be a Eurodollar Advance and the portion of the Advance
which is requested to be a Base Rate Advance, and the Interest
Period to be applicable to the Eurodollar Loan that will result
from a requested Eurodollar Advance, shall be treated as a request
for an Advance. No Advance Date for any requested
1336346.6
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Advance may be other than a
Business Day. A request for a Eurodollar Advance must be given
prior to 11:00 a.m. (Local Time) at least two Business Days prior
to the Advance Date for such Eurodollar Advance. A request for a
Base Rate Advance must be given prior to 11:00 a.m. (Local Time) on
the Advance Date for such Base Rate Advance; provided, however,
that with respect to any Advance to be made on the Effective Date,
the request for such Advance shall be delivered to Administrative
Agent prior to 11:00 a.m. (Local Time) on the Effective Date and
such Advance must be a Base Rate Advance only.
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7.14. Requirements for
Every Letter of Credit Request. Only a written request
(which may be mailed, personally delivered or telecopied as
provided in Section 20.1) from a Borrowing Representative to
Administrative Agent or an electronic initiation over an online
service provided by Letter of Credit Issuer that specifies the
amount, requested issue date (which shall be a Business Day and in
no event later than 30 Business Days before the Revolving Loan
Maturity Date) and beneficiary of the requested Letter of Credit
and other information necessary for its issuance shall be treated
as a request for issuance of a Letter of Credit.
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7.15. Exoneration of
Administrative Agent and Lenders. Neither Administrative
Agent nor any Lender shall incur any liability to Borrower for
treating a request that meets the express requirements of Section
7.13 or Section 7.14 as a request for an Advance or issuance of a
Letter of Credit, as applicable, if Administrative Agent believes
in good faith that the Person making the request is a Borrowing
Representative or if, in the case of a request for a Letter of
Credit, it is electronically initiated. Neither Administrative
Agent nor any Lender shall incur any liability to Borrower for
failing to treat any such request as a request for an Advance or
issuance of a Letter of Credit, as applicable, if Administrative
Agent believes in good faith that the Person making the request is
not a Borrowing Representative.
8. Guaranties. Borrower
shall on or before the Effective Date cause to be executed and
delivered to Administrative Agent an amended and restated
unconditional guaranty of the Loan Obligations by each Person
listed on Exhibit 8 (which Persons constitute all of the Domestic
Subsidiaries of Borrower as of the Execution Date) pursuant to a
guaranty satisfactory to Lenders.
In addition, if any Domestic Subsidiary is
acquired, created or organized after the Execution Date, Borrower
shall, contemporaneously with the acquisition, creation or
organization of such a Subsidiary (but in no event later than 60
days after such acquisition, creation or organization), cause to be
executed and delivered by such Subsidiary an unconditional guaranty
of the Loan Obligations in substantially the form of an existing
Guaranty and containing a joinder to the Contribution Agreement
(or, at the option of Administrative Agent, a joinder to an
existing Guaranty and the Contribution Agreement), along with, if
such Subsidiary is a Material Subsidiary, the following items: (i)
the Charter Documents of such Material Subsidiary; (ii) copies of
all consents, licenses and approvals required in connection with
the execution, performance, and enforceability of the Guaranty or
joinder by such Material Subsidiary, (iii) a secretary’s or
members’ certificate for such Material Subsidiary (certifying
resolutions authorizing the execution, performance and delivery of
such Guaranty or joinder, Charter Documents and incumbency of
officers to sign such Guaranty or joinder); (iv) good standing
certificates for such Material Subsidiary from the jurisdiction of
its organization and each jurisdiction where the nature of extent
of its business requires it to be qualified to do business; (v) a
legal opinion of counsel to such Material Subsidiary in form
acceptable to Administrative Agent, (vi) evidence of insurance for
such Material Subsidiary in the form required by this Agreement.
The failure to deliver to Administrative Agent such Guaranty (or
joinder to an existing Guaranty) or, in the case of any Material
Subsidiary, any other item required by this Section within the time
period set forth in this Section will cause an immediate Event of
Default. Anything herein to the contrary notwithstanding, the
to-be-formed entity contemplated in Section 14.1.10 will not be
required to execute a Guaranty even if such entity is a Domestic
Subsidiary.
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9.
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Conditions of
Lending.
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9.1.1. Listed
Documents and Other Items. Administrative Agent shall
have received on or before the Effective Date all of the documents
and other items listed or described in Exhibit 9.1.1 hereto as
being delivered or obtained on or before the Effective Date, with
each being satisfactory to Lenders and (as applicable) duly
executed and (also as applicable) sealed, attested, acknowledged,
certified, or authenticated.
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9.1.2. Financial
Condition. Lenders shall have determined to their
satisfaction that the financial statements of Borrower for its
fiscal year ended December 31, 2005, and the financial statements
of Borrower for its interim period ended September 30, 2006, as
furnished to Administrative Agent and the other information
furnished to Administrative Agent by Borrower, fairly and
accurately reflect the business and financial condition of Borrower
on a consolidated basis, its cash flows and the results of its
operations for such periods.
9.1.3. No
Default. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such Advance
being requested or made or the application of the proceeds
thereof.
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9.1.6.
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Pending Material
Proceedings. There shall be no pending Material
Proceedings.
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9.1.8. Other
Items. Administrative Agent shall have received such
other consents, approvals, opinions, certificates, documents or
information as it reasonably deems necessary.
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9.2.2. Representations and
Warranties. The Representations and Warranties are then
true in all material respects, with such exceptions as have been
disclosed to Lenders in writing by Borrower or any Guarantor from
time to time and are satisfactory to Lenders,
1336346.6
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and will be true in all material
respects as of the time of such Advance, as if then made with such
exceptions.
9.2.3. Pending Material
Proceedings. There shall be no pending proceedings as
covered by clauses (i) or (ii) of the definition of Material
Proceedings; there shall be no pending proceedings as covered by
clauses (iii) and (iv) of the definition of Material Proceedings
with respect to which there is a reasonable likelihood that the
outcome of such litigation, investigation or other proceeding would
be adverse to a Covered Person and there is a reasonable likelihood
that any relief or penalty expected to be awarded or imposed as a
result of such adverse outcome would have a Material Adverse
Effect.
9.2.4. No
Default. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such Advance
being requested or made or the application of the proceeds
thereof.
10. Conditions
to Issuance of Letters of Credit. As conditions
precedent to the issuance of any Letter of Credit:
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10.1. Letter of Credit
Application/Reimbursement Agreement. Borrower shall have
executed and delivered to Letter of Credit Issuer a letter of
credit application/reimbursement agreement satisfactory to Letter
of Credit Issuer and Lenders under which Borrower further evidences
its obligation to reimburse to Letter of Credit Issuer on demand
the amount of each draw on such Letter of Credit as provided in
Section 6.3, together with interest from the date of the draw at
the rate provided in Section 4.1 and (without duplication) all
reasonable expenses incurred by Letter of Credit Issuer in
connection with such Letter of Credit. Any pre-printed provisions
in any Letter of Credit application/reimbursement agreement which
conflict with any of the express provisions of this Agreement shall
be deemed superceded by the provisions of this Agreement to the
extent of the conflict, regardless of the date of execution of such
Letter of Credit application/reimbursement agreement, unless Letter
of Credit Issuer and Borrower expressly agree otherwise
therein.
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10.2. No
Prohibitions. No order, judgment or decree of any
Governmental Authority shall exist which purports by its terms to
enjoin or restrain Letter of Credit Issuer or any other Lender from
issuing such Letter of Credit, and no Law or request or directive
(whether or not having the force of Law) from any Governmental
Authority with jurisdiction over Letter of Credit Issuer or any
other Lender shall exist which prohibits, or requests that Letter
of Credit Issuer or any other Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular,
or imposes upon Letter of Credit Issuer or any other Lender with
respect to such Letter of Credit any restriction or reserve or
capital requirement (for which Letter of Credit Issuer or any other
Lender is not otherwise compensable by Borrower hereunder).
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10.3. Representations and
Warranties. The Representations and Warranties are then
true in all material respects, with such exceptions as have been
disclosed to Lenders in writing by Borrower or any Guarantor from
time to time and are satisfactory to Lenders, and will be true in
all material respects as of the time of the issuance of such Letter
of Credit, as if then made with such exceptions.
10.4. Pending Material
Proceedings. There shall be no pending proceedings as
covered by clauses (i) or (ii) of the definition of Material
Proceedings; there shall be no pending proceedings as covered by
clauses (iii) and (iv) of the definition of Material Proceedings
with respect to which there is a reasonable likelihood that the
outcome of such litigation, investigation or other
1336346.6
11. Representations
and Warranties. Except as otherwise described in the
Disclosure Schedule attached hereto as Exhibit 11, Borrower
represents and warrants to Lenders, on its behalf and on behalf of
each Covered Person, as follows:
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11.1. Organization and
Existence. Each Covered Person is duly organized and
existing in good standing under the Laws of the state of its
organization, is duly qualified to do business and is in good
standing in every state where the nature or extent of its business
or properties require it to be qualified to do business, except
where the failure to so qualify or be in good standing will not
have a Material Adverse Effect. Each Covered Person has the power
and authority to own its properties and carry on its business as
now being conducted.
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11.2. Authorization. Each
Covered Person is duly authorized to execute and perform every Loan
Document to which such Covered Person is a party, Borrower is duly
authorized to borrow hereunder, and this Agreement and the other
Loan Documents have been duly authorized by all requisite corporate
or limited liability company action of each Covered Person who is a
party thereto. No consent, approval or authorization of, or
declaration or filing with, any Governmental Authority, and no
consent of any other Person, is required in connection with
Borrower’s execution, delivery or performance of this
Agreement and the other Loan Documents, except for those
Governmental Authority consents, approvals, or authorizations
already duly obtained and declarations or filings already duly
made, or, except for those consents of other Persons which, if not
obtained, could not reasonably be expected to have a Material
Adverse Effect.
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11.4. Enforceability of
Obligations. Each of the Loan Documents to which a
Covered Person is a party constitutes the legal, valid and binding
obligation of such Covered Person, enforceable against such Covered
Person in accordance with its terms, except to the extent that the
enforceability thereof against such Covered Person may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
Laws affecting creditors’ rights generally or by equitable
principles of general application.
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11.5. Burdensome
Obligations. No Covered Person is a party to or bound by
any Contract or is subject to any provision in the Charter
Documents of such Covered Person which would, if performed by such
Covered Person, result in a Default or Event of Default either
immediately or upon the elapsing of time.
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11.6. Legal
Restraints. The execution and performance of any Loan
Document by a Covered Person will not violate or constitute a
default under the Charter Documents of such Covered Person, any
Material Agreement of such Covered Person, or any Material Law, and
will not result in any Security Interest being imposed on any of
such Covered Person’s property.
1336346.6
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11.7. Labor Contracts and
Disputes. There is no collective bargaining agreement or
other labor contract covering employees of a Covered Person which
could reasonably be expected to have a Material Adverse Effect; as
of the Execution Date, there exists no collective bargaining
agreement or other labor contract covering employees of a Covered
Person. No union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of
employees of a Covered Person which could reasonably be expected to
have a Material Adverse Effect; as of the Execution Date, no union
or other labor organization is seeking to organize, or to be
recognized as, a collective bargaining unit of employees of a
Covered Person. There is no pending or, to Borrower’s
knowledge, threatened, strike, work stoppage, material unfair labor
practice claim or other material labor dispute against or affecting
any Covered Person or its employees which has or could reasonably
be expected to have a Material Adverse Effect.
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11.8. No Material
Proceedings. As of the Execution Date, there are no
Material Proceedings pending or, to the best knowledge of Borrower,
threatened.
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11.10.1. General Compliance with
Environmental Laws. The operations of every Covered
Person comply in all material respects with all applicable
Environmental Laws, except for instances of noncompliance which
individually or when aggregated with all other such instances of
noncompliance could not reasonably be expected to have a Material
Adverse Effect.
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11.10.3. Investigations Regarding Hazardous
Materials. None of the operations of any Covered Person
are the subject of investigation by any Governmental Authority
regarding the improper transportation, storage, disposal,
generation or release into the environment of any Hazardous
Material, the results of which have or are reasonably likely to
have a Material Adverse Effect.
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11.10.4. Notices and Reports Regarding
Hazardous Materials. No notice or report under any
Environmental Law indicating a past or present spill or release
into the environment of any Hazardous Material has been filed
within the four years ending on the Execution Date, or is required
to be filed, by any Covered Person, except for notices and reports
of spills and releases which could not reasonably be expected to
have a Material Adverse Effect.
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11.10.5. Hazardous Materials on Real
Property. No Covered Person, nor to Borrower’s
actual knowledge, any other Person, has at any time transported,
stored, disposed of, generated or released any Hazardous Material
on the surface, below the surface, or within
1336346.6
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the boundaries of any real
property owned or operated by such Covered Person or any
improvements thereon in violation of any applicable Environmental
Law. Borrower has no actual knowledge of the presence of any
Hazardous Material on the surface, below the surface, or within the
boundaries of any real property owned or operated by any Covered
Person or any improvements thereon in violation of any applicable
Environmental Law. No property of any Covered Person is subject to
a Security Interest in favor of any Governmental Authority for any
liability under any Environmental Law or damages arising from or
costs incurred by such Governmental Authority in response to a
spill or release of Hazardous Material into the
environment.
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11.11. Other
Names. No Covered Person has used any name other than
the full name which identifies such Covered Person in this
Agreement. The only material trade name or style under which a
Covered Person sells Inventory or creates Accounts, or to which
instruments in payment of Accounts are made payable, is the name
which identifies such Covered Person in this Agreement.
11.12. Financial
Statements. The Financial Statements are complete and
correct in all material respects and fairly reflect the financial
condition, results of operations and cash flows of the Persons
covered thereby as of the dates and for the periods stated therein,
subject in the case of interim Financial Statements to normal
year-end adjustments made in accordance with GAAP and the absence
of footnotes.
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11.16.
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Indebtedness. No
Covered Person has any Indebtedness except Permitted
Indebtedness.
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11.20. Tax
Liabilities; Governmental Charges. Each Covered Person
has filed or caused to be filed all tax reports and returns
required to be filed by it with any Governmental Authority, except
where extensions have been properly obtained and except where the
incremental liability for failure to file all such reports or
returns (in excess of the Taxes due in respect thereof) is less
than $100,000. Each Covered Person has paid or made adequate
provision for payment of all Taxes of such Covered Person, except
Taxes which are being diligently contested in good faith by
appropriate proceedings and as to which such Covered Person has
established adequate reserves
1336346.6
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in conformity with GAAP. No
Security Interest for any such Taxes has been filed for an amount
which, individually or in the aggregate (when added to the amounts
of all such other Security Interest filings), exceeds $100,000; and
no claim is being asserted with respect to any such Taxes which, if
adversely determined, has or is reasonably likely to have a
Material Adverse Effect. There are no material unresolved issues
concerning any liability of a Covered Person for any Taxes which,
if adversely determined, will have or is reasonably likely to have
a Material Adverse Effect.
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11.21. Pension
Benefit Plans. All Pension Benefit Plans maintained by
each Covered Person or an ERISA Affiliate of such Covered Person
and intended to qualify under Section 401 of the Code have received
(or have applied for and are awaiting) a favorable determination
letter from the IRS with respect to their tax-qualified status
under Section 401 of the Code and, along with all Welfare Benefit
Plans, are in compliance with the provisions of ERISA, the Code and
all other applicable Laws in all material respects. For any Pension
Benefit Plan for which a determination letter is pending, no
Covered Person knows of any facts or circumstances which might
reasonably be expected to cause a favorable determination letter
not to be issued. Except with respect to events or occurrences
which do not have and are not reasonably likely to have a Material
Adverse Effect:
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11.21.1. Prohibited
Transactions. No Plan subject to ERISA has participated
in, engaged in or been a party to any non-exempt PROHIBITED
TRANSACTION as defined in ERISA or the Code, and no
officer, director, member, manager, or employee of such Covered
Person or of an ERISA Affiliate of such Covered Person has
committed a breach of any of the responsibilities or obligations
imposed upon fiduciaries by Title I of ERISA with respect to any
such Plan.
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11.21.2. Claims. There are no
claims, pending or, to the knowledge of the Covered Persons,
threatened, involving any Plan by a current or former employee (or
beneficiary thereof) of any Covered Person or ERISA Affiliate of
such Covered Person, nor is there any reasonable basis to
anticipate any claims involving any Plan which would likely be
successfully maintained against such Covered Person or such ERISA
Affiliate.
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11.21.4. Accumulated Funding
Deficiency. No such Pension Benefit Plan has (i)
incurred an accumulated funding deficiency (within the meaning of
Section 412(a) of the Code), whether or not waived; (ii) been a
Pension Benefit Plan with respect to which a Reportable Event (to
the extent that the reporting of such events to the PBGC within 30
days of the occurrence has not been waived) has occurred and is
continuing; or (iii) been a Pension Benefit Plan with respect to
which there exist conditions or events which have occurred that
present a significant risk of termination of such Pension Benefit
Plan by the PBGC.
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11.21.5. Multi-employer
Plan. All Multi-employer Plans to which any Covered
Person contributes or is obligated to contribute are listed in
section 11.21.5 of the Disclosure Schedule. No Covered Person or
ERISA Affiliate of such Covered Person has received notice that any
such Multi-employer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no such
Multi-employer Plan is reasonably
1336346.6
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11.22. Welfare
Benefit Plans. No Covered Person or ERISA Affiliate of
any Covered Person maintains a Welfare Benefit Plan that has a
liability which, if enforced or collected, has or is reasonably
likely to have a Material Adverse Effect. Each Covered Person and
each ERISA Affiliate of any Covered Person has complied in all
material respects with the applicable requirements of Section 4980B
of the Code pertaining to continuation coverage as mandated by
COBRA.
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11.23. Retiree
Benefits. No Covered Person or ERISA Affiliate of such
Covered Person has an obligation to provide any Person with any
medical, life insurance, or similar benefit following such
Person’s retirement or termination of employment (or to such
Person’s beneficiary subsequent to such Person’s death)
other than (i) such benefits provided to Persons at such
Person’s sole expense and (ii) obligations under COBRA or
comparable state Law.
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11.24. Distributions. No
Distribution as defined in Section 14.7 has been declared,
paid or made upon or in respect of any capital stock, membership
interests or other securities of Borrower on and after the
Execution Date, except as expressly permitted hereby.
11.25. State of
Property. Each Covered Person has good and marketable or
merchantable title to all of such Covered Person's real and
personal property purported to be owned by it or reflected as owned
by it in the Initial Financial Statements, except for property sold
as permitted herein after the date of the Initial Financial
Statements. There are no Security Interests on any of the property
purported to be owned by any Covered Person, except Permitted
Security Interests.
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11.26. Chief Place
of Business; Locations of Records and Property; Places of
Business. As of the Execution Date,
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11.26.1. the only chief
executive office and the principal places of business of each
Covered Person are located at the places listed and so identified
in Section 11.26.1 of the Disclosure Schedule;
11.26.2. the books and records
of each Covered Person, and all of such Covered Person’s
chattel paper and all records of Accounts, are located only at the
places listed and so identified in Section 11.26.2 of the
Disclosure Schedule; and
11.26.3. all property of each
Covered Person (except for Inventory which is in transit and real
property) is located only at the places listed and so identified in
Section 11.26.3 of the Disclosure Schedule with respect to
such Person; no Covered Person has an office or place of business
other than as identified in Section 11.26 of the Disclosure
Schedule.
11.27. Subsidiaries
and Affiliates. All of Borrower’s direct and
indirect Subsidiaries and Affiliates (except for Affiliates that
are individuals or trusts of individuals created solely for estate
planning purposes) as of the Effective Date are listed in section
11.27 of the Disclosure Schedule. Every Subsidiary of Borrower that
is required under the terms of this Agreement to be a Guarantor has
timely executed and delivered a Guaranty as required hereby. Other
than the Persons listed in section 11.27 of the Disclosure Schedule
and such Persons which become Subsidiaries of Borrower pursuant to
a Permitted Acquisition, Borrower has no Subsidiaries or
Affiliates.
1336346.6
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11.28. Margin Stock. No
Covered Person is engaged or will engage, principally or as one of
its important activities, in the business of extending credit for
the purpose of PURCHASING or CARRYING MARGIN STOCK (within the meaning of
Regulation U), and no part of the proceeds of any Advance will be
used in any manner, for any purpose, or under any circumstance
which would result in a violation of, be inconsistent with, or
require any Lender to obtain from any Person any statement or form
or make any filing or report under, Regulation U.
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11.30. Investment
Company Act, Etc. No Covered Person is an INVESTMENT
COMPANY registered or required to be registered
under the Investment Company Act of 1940, or a company CONTROLLED
(within the meaning of such Investment Company Act) by such an
INVESTMENT COMPANY or an AFFILIATED
PERSON of, or PROMOTER or PRINCIPAL
UNDERWRITER for, an INVESTMENT COMPANY, as such terms are defined in the Investment Company
Act of 1940. No Covered Person is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act,
the Interstate Commerce Act or any other Law limiting or regulating
its ability to incur Indebtedness for money borrowed.
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11.31. No Material
Misstatements or Omissions. Neither the Loan Documents,
any Acquisition Documents, any of the Financial Statements nor any
statement, list, certificate or other information furnished or to
be furnished by Borrower or any other Covered Person to
Administrative Agent or Lenders in connection with the Loan
Documents or any of the transactions contemplated thereby contains
any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements therein not
misleading. Borrower and each other Covered Person has disclosed to
Administrative Agent and Lenders everything regarding the business,
operations, property, financial condition, or business prospects of
Borrower and every Covered Person that has or is reasonably likely
to have a Material Adverse Effect.
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11.32. Broker’s
Fees. No broker or finder is entitled to compensation
for services rendered with respect to the transactions contemplated
by this Agreement.
11.33. Permitted
Redemptions. All actions taken by the Company in
connection with all Permitted Redemptions through the Effective
Date have been taken in accordance with all applicable Laws,
including without limitation all applicable SEC regulations.
12. Modification
and Survival of Representations. Borrower or any other
applicable Covered Person may at any time after the initial
Advances are made propose to Lenders in writing to modify the
representations and warranties in Section 11, the representations
and warranties in any other Loan Document and any other
representation or warranty made in any certificate, report, opinion
or other document delivered by Borrower or such other Covered
Person pursuant to the Loan Documents. If the proposed
modifications are satisfactory to Lenders as evidenced by their
written assent thereto, then such representations and warranties
shall be deemed and treated as so modified, but only as of the date
of Borrower’s or such other Covered Person’s written
modification proposal. If such proposed modifications are not
satisfactory to Lenders, then such proposed modifications shall not
be deemed or treated as modifying such representations and
warranties. All such representations and warranties, as made or
deemed made as of a particular time, shall survive execution of
each of the Loan Documents and the making of every Advance, and may
be relied upon by Administrative Agent and Lenders as being true
and correct as of the date when made or deemed made until all of
the Loan Obligations are fully and indefeasibly paid, no Letters of
Credit are outstanding and the Letter of Credit Exposure is
irreversibly zero.
1336346.6
13. Affirmative
Covenants. Borrower covenants and agrees that, while any
of the Commitments remains in effect and until all of the Loan
Obligations are fully and indefeasibly paid, no Letters of Credit
are outstanding and the Letter of Credit Exposure is irreversibly
zero, Borrower shall do, or cause to be done, the following:
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13.1. Use of
Proceeds. Subject to the terms and conditions hereof,
the proceeds of Revolving Loan Advances and Swingline Advances
shall be used solely (i) for working capital, (ii) for Capital
Expenditures, (iii) for Permitted Acquisitions, (iv) for Permitted
Redemptions, (v) for general corporate purposes, and (vi) as the
source for payment of Borrower’s reimbursement obligations
with respect to Letters of Credit, except that the proceeds of
Revolving Loan Advances may also be used to refinance existing
Indebtedness.
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13.2. Existence. Each
Covered Person shall maintain its existence in good standing and
shall maintain in good standing its right to transact business in
those states in which it is now or hereafter doing business, except
where the failure to so qualify or be in good standing will not
have and will not be reasonably likely to have a Material Adverse
Effect and except for a Covered Person which merges or consolidates
with another Covered Person or which is liquidated or dissolved
with its assets distributed to another Covered Person. Each Covered
Person shall obtain and maintain all Material Licenses for such
Covered Person.
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13.3. Maintenance of
Property and Leases. Each Covered Person shall maintain
in good condition and working order, and repair and replace as
required, all buildings, equipment, machinery, fixtures and other
real and personal property whose useful economic life has not
elapsed and which are necessary for the ordinary conduct of the
business of such Covered Person, except where the failure to so
maintain, repair and replace such property would not be reasonably
likely to have a Material Adverse Effect. Each Covered Person shall
maintain in good standing and free of defaults all of its leases of
buildings, equipment, machinery, fixtures and other real and
personal property whose useful economic life has not elapsed and
which are necessary for the ordinary conduct of the business of
such Covered Person, except where the failure to so maintain such
leases would not be reasonably likely to have a Material Adverse
Effect.
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13.4. Inventory. Each
Covered Person shall keep its Inventory in good and merchantable
condition at its own expense and shall hold such Inventory for sale
or lease, or to be furnished in connection with the rendition of
services, in the ordinary course of such Covered Person’s
business. All such Inventory shall be produced in accordance with
the Federal Fair Labor Standards Act of 1938 and all rules,
regulations, and orders thereunder.
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13.5. Insurance. Each
Covered Person shall at all times keep insured or cause to be kept
insured, in insurance companies having a rating of at least "A" by
Best’s Rating Service, all property owned by it of a
character usually insured by others carrying on businesses similar
to that of such Covered Person in such manner and to such extent
and covering such risks as such properties are usually insured.
Each Covered Person shall carry, however, business interruption
insurance in such amounts as are satisfactory to Administrative
Agent; Administrative Agent acknowledges that the amount of
business interruption insurance reflected on the insurance
certificates Borrower has delivered to Administrative Agent as
"Loss of Income" coverage is satisfactory to Administrative Agent.
Each Covered Person shall at all times carry insurance, in
insurance companies having a rating of at least "A" by Best’s
Rating Service, against liability on account of damage to persons
or property (including product liability insurance and insurance
required under all Laws pertaining to workers’ compensation)
and covering all other liabilities common to such Covered
Person’s business, in such manner and to such extent as such
coverage
1336346.6
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is usually carried by others
conducting businesses similar to that of such Covered Person. All
policies of liability insurance maintained hereunder shall name
Administrative Agent as an additional insured for the benefit of
Lenders. All policies of insurance maintained hereunder shall
contain a clause providing that prior to the stated expiration
date, such policies will not be canceled or reduced in coverage
without 30 days prior written notice to Administrative Agent, at
its address as reflected on the insurance certificates Borrower has
delivered to Administrative Agent. Borrower shall upon request of
Administrative Agent made at any time (but in the absence of an
Existing Default, no more often than annually), furnish to
Administrative Agent updated evidence of insurance (in the form
required as a condition to Administrative Agent’s lending
hereunder) for such insurance.
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13.6. Payment of Taxes and
Other Obligations. Each Covered Person shall promptly
pay and discharge or cause to be paid and discharged, as and when
due, any and all income Taxes, federal or otherwise, lawfully
assessed and imposed upon it, and any and all lawful Taxes
whatsoever upon its properties and every part thereof, or upon the
income or profits therefrom and all claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons
for labor, materials, supplies, storage or other items or services
which if unpaid might be or become a Security Interest or charge
upon any of its property; provided, however, that a Covered Person
may diligently contest in good faith by appropriate proceedings the
validity of any such Taxes or such claims if such Covered Person
has established adequate reserves therefor in conformity with GAAP
on the books of such Covered Person and if no Security Interest in
respect of any such unpaid Taxes or any such claim has been filed
for an amount which, individually or in the aggregate (when added
to the amount of all such other Security Interests), exceeds
$100,000, other than a Permitted Security Interest.
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13.7.1. Environmental
Laws. Each Covered Person shall comply in all material
respects and shall use commercially reasonable efforts to ensure
compliance in all material respects by all tenants, subtenants and
other occupants of such Covered Person, if any, with all
Environmental Laws, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
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13.7.2. Plans. Each Covered
Person and each ERISA Affiliate of such Covered Person shall at all
times make prompt payments or contributions to meet the minimum
funding standards under ERISA and the Code with respect to any Plan
maintained by such Covered Person or such ERISA Affiliate, and
shall comply in all material respects with all reporting and
disclosure requirements and all provisions of the Code and ERISA
applicable to any Plan maintained by such Covered Person or such
ERISA Affiliate.
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13.8.
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Discovery and Clean-Up of
Hazardous Material.
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13.8.1. In
General. Upon any Covered Person receiving notice of any
violation of Environmental Laws or any similar notice described in
Section 11.10.3, or upon any Covered Person otherwise discovering
the presence of Hazardous Material on any property owned or leased
by such Covered Person which is in violation of any Environmental
Law, Borrower shall: (i) promptly take such acts as are required by
any applicable Environmental Law to prevent danger or harm to the
environment or any Person as a result of such Hazardous Material;
and (ii) take all steps required under any applicable Environmental
Law to complete all removal, remedial, response, corrective
1336346.6
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13.8.2. Asbestos
Clean-Up. In the event that any property of any Covered
Person contains Asbestos Material such that an Operations and
Maintenance Program is required under applicable Law, Borrower
shall develop and implement, as soon as reasonably possible, such
an Operations and Maintenance Program (as contemplated by EPA
guidance document entitled Managing Asbestos in Place; A
Building Owner’s Guide to Operations and Maintenance Programs
for Asbestos-Containing Materials ) for managing in place the
Asbestos Material, and deliver a true, correct and complete copy of
such Operations and Maintenance Program to Administrative Agent. In
the event that the asbestos survey done in connection with
developing the Operations and Maintenance Program reveals Asbestos
Material which, due to its condition, location or planned building
renovation is required to be encapsulated or removed, Borrower
shall promptly cause the same to be encapsulated or removed and
disposed of offsite, in either case by a licensed and experienced
asbestos contractor, all in accordance with applicable state,
federal and local Laws. Upon completion of any such encapsulation
or removal, Borrower shall deliver to Administrative Agent a
certificate in such form as is then customarily available signed by
the consultant overseeing the activity certifying to Administrative
Agent that the work has been completed in compliance with all
applicable Laws. All costs of such inspection, testing and remedial
actions shall be paid by Borrower.
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13.9. Notice to
Administrative Agent of Material Events. Borrower shall,
promptly upon any Responsible Officer of Borrower obtaining
knowledge or notice thereof, give notice to Administrative Agent of
(i) any breach of any of the covenants in Section 13, 14, or 15;
(ii) any Default or Event of Default; (iii) the commencement of any
Material Proceeding; and (iv) any loss of or damage to any assets
of a Covered Person or the commencement of any proceeding for the
condemnation or other taking of any of the assets of a Covered
Person if such loss, damage or proceeding has or is reasonably
likely to have a Material Adverse Effect. In addition,
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13.9.2. Borrower shall furnish
to Administrative Agent from time to time all information known to
Borrower with respect to any fact, circumstance or event in
connection with any Plan established by a Covered Person or an
ERISA Affiliate of any Covered Person which could reasonably be
expected to cause, or to materially increase the likelihood of the
occurrence of, a Material Adverse Effect.
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13.9.4. Borrower shall promptly
inform Administrative Agent of its receipt of, and deliver to
Administrative Agent a copy of, any: (i) notice that any violation
of any Environmental Law or Employment Law may have been committed
or is about to be committed by any Covered Person, (ii) notice that
any administrative or judicial complaint or order has been filed or
is about to be filed against any Covered Person alleging violations
of any Environmental Law or Employment Law or requiring such
1336346.6
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Covered Person to take any action
in connection with the release of any Hazardous Material into the
environment, (iii) notice from a Governmental Authority or private
party alleging that a Covered Person may be liable or responsible
for costs associated with a response to or cleanup of a release of
Hazardous Material into the environment or any damages caused
thereby, (iv) notice that a Covered Person is subject to federal,
state or local investigation regarding the improper transportation,
storage, disposal, generation or release into the environment of
any Hazardous Material, or (v) notice that any properties or assets
of a Covered Person are subject to a Security Interest in favor of
any Governmental Authority for any liability under any
Environmental Law or damages arising from or costs incurred by such
Governmental Authority in response to a release of Hazardous
Material into the environment.
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13.9.5. Borrower shall deliver
to Administrative Agent notice of the following events promptly
after they occur or, in the case of clause (ii) below, promptly
after Borrower receives notice or has knowledge of their
occurrence: (i) the failure of any Covered Person or ERISA
Affiliate of such Covered Person to make any required installment
or any other required payment to any Plan in sufficient amount to
comply with ERISA and the Code on or before the due date for such
installment or payment; (ii) the occurrence of any Reportable
Event, or a PROHIBITED TRANSACTION or
ACCUMULATED FUNDING DEFICIENCY (as those terms are defined in ERISA), with respect
to any Pension Benefit Plan maintained or contributed to by a
Covered Person or an ERISA Affiliate of such Covered Person; (iii)
receipt by a Covered Person or ERISA Affiliate of such Covered
Person of any notice from a Multi-employer Plan regarding the
imposition of withdrawal liability; and (iv) receipt by a Covered
Person or ERISA Affiliate of such Covered Person of any notice of
the institution of any proceeding, or receipt by such Covered
Person or such ERISA Affiliate of any notice of the taking of any
other action, which is reasonably likely to result in the
termination of any Pension Benefit Plan maintained or contributed
to by such Covered Person or such ERISA Affiliate and subject to
Title IV of ERISA or in the termination of any Plan with respect to
which the funding obligations under such Plan would be accelerated
pursuant to Plan terms as a result of such termination, or the
withdrawal or partial withdrawal by a Covered Person or ERISA
Affiliate of such Covered Person from any Pension Benefit Plan
subject to Title IV of ERISA, and the filing or receipt by a
Covered Person or ERISA Affiliate of such Covered Person of any
such notice and filing or receipt of all subsequent reports or
notices under ERISA with or from the IRS, the PBGC, or the DOL
relating to the same; and, in addition to such notice, deliver to
Administrative Agent a certificate of a Responsible Officer of
Borrower, setting forth details as to such events and the action
that the affected Covered Person or ERISA Affiliate of such Covered
Person proposes to take with respect thereto as soon as reasonably
practicable after said detailed and proposed actions can be
reasonably determined. For purposes of this Section, each Covered
Person and any ERISA Affiliate of such Covered Person shall be
deemed to know all facts known by the administrator of any Plan of
which such Covered Person or such ERISA Affiliate is the plan
sponsor.
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13.9.6. Borrower shall promptly
deliver to Administrative Agent notice of any default or event of
default, or the occurrence of any event which would with the
passage of time, giving of notice or otherwise, constitute a
default or event of default with respect to any Permitted
Indebtedness.
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$500,000 that a default exists
with respect thereto or that such Covered Person is not in
compliance with the terms thereof, or of the threat or commencement
by such holder of any enforcement action because of such asserted
default or noncompliance.
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13.9.8. Borrower shall, promptly
after becoming aware thereof, deliver notice to Administrative
Agent of any pending or threatened strike, work stoppage, material
unfair labor practice claim or other material labor dispute
affecting a Covered Person.
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13.9.10. Borrower shall,
promptly after becoming aware thereof, deliver notice to
Administrative Agent of an actual, alleged, or potential violation
of any Material Law applicable to a Covered Person or the property
of a Covered Person.
13.9.11. Borrower shall
promptly deliver notice to Administrative Agent of the acquisition,
creation or organization of any Subsidiary of any Covered Person
after the Effective Date, including the identity, nature, chief
executive office, and state of incorporation or organization
thereof.
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13.12. Tracing of
Proceeds. Each Covered Person shall maintain detailed
and accurate records of all transfers of any proceeds of the Loans
from Borrower to a Covered Person. Borrower and each Guarantor
agrees that (a) the business operations thereof are
interrelated and complement one another, and such entities have a
common business purpose and common management, and (b) the
proceeds of Advances hereunder will benefit each of them regardless
of who requests or receives part or all of any Advance.
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13.13.
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Financial
Statements. Borrower shall deliver to Administrative
Agent for each Lender:
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13.13.1.
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Annual Financial
Statements.
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Within 120 days after the close
of each fiscal year of Borrower, year end consolidated financial
statements of Borrower and its Subsidiaries, containing a balance
sheet, income statement, statement of cash flows and an audit
report without qualification by an independent certified public
accounting firm selected by Borrower and satisfactory to
Administrative Agent, and accompanied by (i) a Compliance
Certificate of the Chief Financial Officer of Borrower, (ii) a
certificate of the independent certified public accounting firm
that examined such financial statements to the effect that they
have reviewed and are familiar with this Agreement and that, in
examining such financial statements, they did not become aware
of any fact or condition which then constituted a Default or Event
of Default, except for those, if any, described in reasonable
detail in such certificate, (iii) the management letter and
report on internal controls delivered by
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such independent certified public
accounting firm in connection with their audit, and (iv) if
requested by Administrative Agent, any summary prepared by such
independent certified public accounting firm of the adjustments
proposed by the members of its audit team. Notwithstanding the
foregoing requirements respecting financial statement delivery, for
any fiscal year of Borrower, delivery by Borrower to Administrative
Agent of Borrower’s Annual Report on Form 10-K for such
fiscal year, as filed with the Securities and Exchange Commission,
on the earlier of (a) a date within the time period set forth
herein for delivery of Borrower’s financial statements for
such fiscal year, or (b) the date of Borrower’s filing of
such report with the Securities and Exchange Commission will
satisfy the financial statement delivery requirements under this
Section.
13.13.2. Quarterly Financial
Statements. Within 60 days after the end of each fiscal
quarter of Borrower, unaudited consolidated financial statements of
Borrower and its Subsidiaries for each fiscal quarter of Borrower,
in each case containing a balance sheet, income statement, and
statement of cash flows and accompanied by a Compliance Certificate
of the Chief Financial Officer of Borrower. Notwithstanding the
foregoing requirements respecting financial statement delivery, for
any fiscal quarter of Borrower, delivery by Borrower to
Administrative Agent of Borrower’s Quarterly Report on Form
10-Q for such fiscal quarter, as filed with the Securities and
Exchange Commission, on the earlier of (a) a date within the time
period set forth herein for delivery of Borrower’s financial
statements for such fiscal quarter, or (b) the date of
Borrower’s filing of such report with the Securities and
Exchange Commission will satisfy financial statement delivery
requirements under this Section.
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Each Compliance Certificate shall be in the form
of Exhibit 13.13, shall contain detailed calculations of the
financial measurements referred to in Section 15 for the
relevant periods, and shall contain statements by the signing
officer to the effect that, except as explained in reasonable
detail in such Compliance Certificate, (i) the attached
Financial Statements are complete and correct in all material
respects (subject, in the case of Financial Statements other than
annual, to normal year-end audit adjustments made in accordance
with GAAP and the absence of footnotes) and have been prepared in
accordance with GAAP applied consistently throughout the periods
covered thereby and with prior periods (except as disclosed
therein), (ii) all of the Representations and Warranties are
true and correct as of the date such certification is given as if
made on such date, and (iii) there is no Existing Default. If
any Compliance Certificate delivered to under this Section
discloses that a representation or warranty is not true and
correct, or that there is an Existing Default that has not been
waived in writing by Lenders or Required Lenders, as applicable,
such Compliance Certificate shall state what action Borrower has
taken or proposes to take with respect thereto.
13.14. Other
Financial Information. Borrower shall also deliver the
following to Administrative Agent for each Lender:
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13.14.1. Other Reports or Information
Concerning Accounts or Inventory. Such other reports and
information, in form and detail satisfactory to Administrative
Agent, and documents as Administrative Agent may request from time
to time concerning Accounts or Inventory.
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13.14.2. Stockholder and SEC
Reports. Contemporaneously with their filing by or on
behalf of Borrower or any other Covered Person, copies of any (i)
proxy statements, financial statements and reports which Borrower
makes available to its stockholders, members or partners, and (ii)
reports, registration statements and prospectuses filed by
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Borrower or any other Covered
Person with any securities exchange or the Securities and Exchange
Commission or any Governmental Authority succeeding to any of its
functions.
13.14.3. Quarterly Report of Acquisition
Activity. Quarterly, at the same time when financial
statements of Borrower and its Subsidiaries are delivered under
Section 13.13.2, a summary of the acquisition activity of Borrower
and its Subsidiaries during Borrower’s fiscal quarter most
recently ended, specifying in reasonable detail for each
acquisition (as applicable), the name of the Target Company, the
name of the Acquiring Company, the name of the Surviving Company
and whether any new Subsidiary was created, organized or acquired,
the nature of the acquisition (e.g., asset or entity acquisition,
merger or consolidation), the aggregate purchase price paid, the
nature of the business(es) or assets acquired, the location(s) of
the business(es) or assets acquired, the historical revenues of the
business(es) or assets acquired, any Indebtedness, Indirect
Obligations or Security Interests affecting the business(es) or
assets acquired, any Investments acquired in connection with the
acquisition and a certification that any such Indebtedness,
Indirect Obligations, Security Interests and Investments, are
Permitted Indebtedness, Permitted Indirect Obligations, Permitted
Security Interests or Permitted Investments, respectively, and
certifying that, at the time of each acquisition, there was no
Existing Default and that no Default or Event of Default has
occurred as a result of any of the acquisitions described.
13.15. Other
Information. Upon the request of Administrative Agent,
Borrower shall promptly deliver to Administrative Agent such other
information about the business, operations, revenues, financial
condition, property, or business prospects of Borrower and every
other Covered Person as Administrative Agent may, from time to
time, reasonably request.
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13.16. Audits by
Administrative Agent. Administrative Agent or Persons
authorized by and acting on behalf of Administrative Agent or any
Lender may at any time during normal business hours audit the books
and records and inspect any of the property of each Covered Person
from time to time upon reasonable notice to such Covered Person,
and in the course thereof may make copies or abstracts of such
books and records and discuss the affairs, finances and books and
records of such Covered Person with its accountants, officers,
managers, members, and employees. Each Covered Person shall
cooperate with Administrative Agent and such Persons in the conduct
of such audits and shall deliver to Administrative Agent any
instrument necessary for Administrative Agent to obtain records
from any service bureau maintaining records for such Covered
Person. Borrower shall reimburse Administrative Agent for all costs
and expenses by it in conducting each audit; provided however,
that, unless there exists an Event of Default that has not been
waived in writing, (i) such reimbursement for each such audit shall
be limited to $500 per day for each Person involved in conducting
the audit plus Administrative Agent’s other actual
out-of-pocket costs and expenses, and (ii) no more than one such
audit will be reimbursed by Borrower during any fiscal year of
Borrower.
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13.17. Access to
Officers and Auditors. Each Covered Person shall permit
any Lender and Persons authorized by Administrative Agent to
discuss, the business, operations, revenues, financial condition,
property, or business prospects of such Covered Person with its
officers, members, managers, employees, accountants and independent
auditors as often as Administrative Agent may request in its
discretion, and such Covered Person shall direct such officers,
members, managers, employees, accountants and independent auditors
to cooperate with Administrative Agent and make full disclosure to
Administrative Agent of those matters that they may deem relevant
to the continuing ability of Borrower timely to pay and perform the
Loan Obligations.
1336346.6
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Administrative Agent and each
Lender agrees that it will not disclose to third Persons any
information that it obtains about Borrower or its operations or
finances. Administrative Agent and any Lender may, however,
disclose such information to each other and all of their respective
officers, attorneys, auditors, accountants, bank examiners, agents
and representatives who have a need to know such information in
connection with the administration, interpretation or enforcement
of the Loan Documents or the lending and collection activity
contemplated therein or to the extent required by Law or a
Governmental Authority having jurisdiction over Administrative
Agent or any Lender. Administrative Agent or such Lender shall
advise such Persons that such information is to be treated as
confidential. Administrative Agent or a Lender may also disclose
such information in any documents that it files in any legal
proceeding to pursue, enforce or preserve its rights under the Loan
Documents to the extent that its counsel advises in writing that
such disclosure is reasonably necessary. Administrative
Agent’s and Lenders’ non-disclosure obligation shall
not apply to any information that (i) is disclosed to
Administrative Agent or any Lender by a third Person not affiliated
with or employed by Borrower who does not have a commensurate duty
of non-disclosure, or (ii) is or becomes publicly known other
than as a result of disclosure by Administrative Agent or a
Lender.
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13.18. Further
Assurances. Borrower shall execute and deliver, or cause
to be executed and delivered, to Administrative Agent such
documents and agreements, and shall take or cause to be taken such
actions, as Administrative Agent may from time to time request to
carry out the terms and conditions of this Agreement and the other
Loan Documents.
13.19. Permitted
Redemptions. All Permitted Redemptions will be completed
in accordance with all applicable Laws, including without
limitation all applicable SEC regulations.
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13.20. Patriot Act
Covenant. The Borrower shall (a) ensure, and cause
each other Covered Person to ensure, that no Person who owns a
controlling interest in or otherwise controls the Borrower or any
other Covered Person is or shall be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists
maintained by the Office of Foreign Assets Control ("OFAC"), the
Department of the Treasury, or included in any Executive Orders,
(b) not use or permit the use of the proceeds of the Loans to
violate any of the foreign asset control regulations of OFAC or any
enabling statute or Executive Order relating thereto, and
(c) comply, and cause each other Covered Person to comply,
with all applicable Bank Secrecy Act Laws and regulations, as
amended.
14. Negative
Covenants. Borrower covenants and agrees that, while any
of the Commitments remains in effect and until all of the Loan
Obligations are fully and indefeasibly paid, no Letters of Credit
are outstanding and the Letter of Credit Exposure is zero, Borrower
shall not, directly or indirectly, do any of the following, or
permit any Covered Person to do any of the following, without the
prior written consent of Required Lenders:
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14.1.
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Investments. Make any
Investments in any other Person except the following:
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14.1.1. Investments in
(i) interest-bearing United States government obligations;
(ii) certificates of deposit issued by any Lender;
(iii) prime commercial paper rated A1 or better by Standard
and Poor’s Corporation or Prime P1 or better by Moody’s
Investor Service, Inc.; (iv) agreements involving the sale to
Borrower of United States government securities and their
guarantied repurchase within 7 days by a commercial bank chartered
under the Laws of the United States or any state thereof which has
capital and surplus of not less than $500,000,000, (v) tax-exempt
municipal bonds with maturities of less than 180 days, or
(vi) certificates of deposit issued by and time deposits with
any commercial
1336346.6
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bank chartered under the Laws of
the United States or any state thereof which has capital and
surplus of not less than $500,000,000.
14.1.2. Accounts arising in the
ordinary course of business and payable in accordance with
Borrower’s customary trade terms.
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14.1.3.
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Investments by any Covered Person
in any Guarantor.
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14.1.4.
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Any Investments that are
Permitted Acquisitions.
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14.1.5. Investments existing
on the Execution Date and disclosed in section 14.1 of the
Disclosure Schedule.
14.1.6. Notes
received by a Covered Person in settlement of Indebtedness of other
Persons to such Covered Person that was incurred in the ordinary
course of such Covered Person’s business.
14.1.7. Loans
or advances to officers and employees of Borrower to the extent
that the aggregate amount of all such loans and advances does not
at any one time exceed $1,500,000.
14.1.8. Loans
by Young Acquisitions Company and/or Panoramic Rental Corp to its
customers to finance the purchase of panoramic x-ray equipment from
such Person, provided that (i) each such loan is secured by the
equipment financed, (ii) the term of each such loan is no longer
than three years, (iii) the other terms of each such loan,
including the loan amount and interest rate, reflect that such loan
was made on an arm’s-length basis, and (iv) the amount of all
such loans made by Young Acquisitions and Panoramic Rental Corp do
not at any one time exceed $12,000,000 in the aggregate.
14.1.9. Notes
payable to any Covered Person in payment for the assets of such
Covered Person sold, transferred, exchanged, leased or otherwise
disposed of as permitted herein and Investments of Persons acquired
in a Permitted Acquisition which do not fall within the Investments
listed in Sections 14.1.1 through 14.1.8, to the extent the
aggregate amount of such notes and such Investments does not at any
one time exceed $250,000.
14.1.10. Investments
aggregating up to $5,000,000 in an entity to be formed for the
purpose of providing insurance products or other related financial
services to the dental profession.
14.1.11. Other Investments
(exclusive of other Investments permitted elsewhere in this Section
14.1) in an amount that does not exceed $5,000,000 in aggregate
principal amount outstanding at any one time.
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14.2. Indebtedness. Create,
incur, assume, or allow to exist any Indebtedness of any kind or
description, except the following:
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14.2.2.
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The Loan Obligations.
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14.2.3.
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Indebtedness secured by Permitted
Security Interests.
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1336346.6
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14.2.4. Indebtedness
existing on the Execution Date and disclosed in section 11.16 of
the Disclosure Schedule.
14.2.5. Capital Leases for
capital assets whose aggregate cost if purchased would not exceed
$5,000,000.
14.2.6. Indebtedness secured by
real property assets provided that (a) the terms of all such
Indebtedness shall be satisfactory to Administrative Agent, (b)
before any such Indebtedness is incurred, Borrower has provided to
Administrative Agent a pro forma Compliance Certificate reflecting
pro forma compliance with the financial covenants contained in
Section 15 after giving effect to the incurrence of such
Indebtedness, (c) 100% of the proceeds of all such Indebtedness
must be applied to reduce the outstanding balance of the Aggregate
Revolving Loan, (d) immediately before, and after giving effect to,
the incurrence of any such Indebtedness, there shall be no Existing
Default, (e) all such Indebtedness shall be included as Total
Funded Indebtedness in calculating the Maximum Ratio of Total
Funded Indebtedness to Adjusted EBITDA under Section 15.2, and (f)
the aggregate principal amount of all such Indebtedness incurred
during the term of this Agreement shall not exceed $25,000,000.
14.2.7. Other
Indebtedness (exclusive of other Indebtedness permitted elsewhere
in this Section 14.2) in an amount that does not exceed $200,000 in
aggregate principal amount outstanding at any one time.
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14.3. Prepayments. Voluntarily
prepay any Indebtedness if there is an Existing Default or if the
making of such payment would cause or result in a Default or Event
of Default, except for (a) the Loan Obligations in accordance with
the terms of the Loan Documents, and (b) trade payables and normal
accruals in the ordinary course of business.
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14.4. Indirect
Obligations. Create, incur, assume or allow to exist any
Indirect Obligations except (a) Indirect Obligations existing on
the Execution Date and disclosed on Section 14.4 of the
Disclosure Schedule, and (b) Indirect Obligations of Covered
Persons to financial institutions which are financing equipment
purchases by certain customers of such Covered Persons, provided
such Indirect Obligations at any one time outstanding for all
Covered Persons does not exceed $1,000,000.
14.5. Security
Interests. Create, incur, assume or allow to exist any
Security Interest upon all or any part of its property, real or
personal, now owned or hereafter acquired, except the
following:
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14.5.1. Security Interests for
taxes, assessments or governmental charges not delinquent or being
diligently contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with GAAP are
maintained on the books of Borrower and its Subsidiaries.
14.5.2. Security Interests
arising out of deposits in connection with workers’
compensation insurance, unemployment insurance, old age pensions,
or other social security or retirement benefits legislation.
14.5.3. Deposits or pledges to
secure bids, tenders, contracts (other than contracts for the
payment of money), leases, statutory obligations, surety and appeal
bonds, and other obligations of like nature arising in the ordinary
course of business.
1336346.6
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14.5.4. Security Interests
imposed by any Law, such as mechanics’, workmen’s,
materialmen’s, landlords’, carriers’, or other
like Security Interests arising in the ordinary course of business
which secure payment of obligations which are not past due or which
are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
are maintained on the books of Borrower and its Subsidiaries.
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14.5.8. Security Interests
arising in connection with Permitted Acquisitions that are
acceptable to Lenders.
14.5.9. Security Interests in
real property arising in connection with Indebtedness permitted
under Section 14.2.6.
14.6. Acquisitions. Acquire
stock or membership interests of, or any other equity interest in,
another Person sufficient for such Person to become a Subsidiary or
Affiliate of a Covered Person or a Joint Venture, or acquire all or
substantially all of the assets of a Person or acquire a portion of
the assets of a Person which constitute an operating division or
operating group of such Person, except for, if there is no Existing
Default and no Default or Event of Default will occur as a result
of thereof, (i) asset acquisitions in the ordinary course of
business that are not otherwise prohibited herein, (ii)
acquisitions not otherwise permitted under this Section as are
approved in writing by, and on terms and conditions satisfactory
to, Required Lenders, and (iii) any acquisition of stock or
membership interests of, or other equity interests in or assets of
a Person with respect to which all of the following requirements
have been met (in each case a Permitted Acquisition ):
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14.6.1. Non-hostile
Acquisitions; Similar Business Line. The acquisition
must be non-hostile and must be of assets, or equity interests in a
Person, in the same or similar line of business as Borrower or in a
line of business that is synergistic with, or reasonably related
to, the line of business of Borrower.
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14.6.2. Individual
Acquisition Dollar Limitation. The total consideration
to be paid in any particular acquisition may not exceed
$25,000,000, unless otherwise approved by the Required Lenders.
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14.6.3. Surviving Company
Becomes a Guarantor. If upon the consummation of the
acquisition the Surviving Company will not be a Joint Venture, a
Borrower or a Guarantor under this Agreement, Borrower shall
provide notice of that fact to Administrative Agent no later than
the date of the consummation of the acquisition. In
1336346.6
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such event, within 60 days after
the consummation of the acquisition, at Administrative
Agent’s option, the Surviving Company shall become either
(i) a Guarantor hereunder (by execution of a separate Guaranty
or a joinder to an existing Guaranty which is satisfactory to
Administrative Agent and the Lenders), or (ii) a Borrower hereunder
(by execution and delivery of an amendment to this Agreement and
appropriate notes, and other documents, and instruments which are
satisfactory to Administrative Agent and the Lenders) and, if such
Surviving Company is a Domestic Subsidiary that is a Material
Subsidiary, shall deliver to Administrative Agent and the Lenders
all other documents required by Section 8 for a Domestic Subsidiary
that is a Material Subsidiary acquired, created or organized after
the Execution Date.
14.6.4. Surviving Company
Is Solvent. The Surviving Company will be Solvent upon
consummation of the acquisition and upon the passage of time
thereafter, and none of the covenants in Section 15 will be
violated as a consequence of such acquisition or with the passage
of time thereafter.
14.7. Distributions. Directly
or indirectly declare or make, or incur any liability to make, any
Distribution to any Person, except that a Distribution may be made
if there is no Existing Default that remains unwaived and if the
declaration or payment of such Distribution would not be reasonably
likely to cause a Default or Event of Default, immediately or in
the reasonably foreseeable future. For purposes of this Section, a
Distribution means and includes (i) any cash dividend or payment by
any Covered Person to any shareholder, or other equity holder of
any Covered Person, (ii) any acquisition or redemption by any
Covered Person of any of its outstanding stock, membership
interests or other equity interests, including any Permitted
Redemption, (iii) any retirement or prepayment of debt
securities of any Covered Person by any Covered Person before the
regularly scheduled maturity dates of such debt securities,
(iv) any loan or advance by any Covered Person to a
shareholder, partner or other equity holder of any Covered Person,
(v) any compensation payment (including any payment based upon
Net Income or other measures of economic performance, whether or
not designated as a bonus) to a shareholder, partner or other
equity holder employee of any Covered Person that is in excess of
such employee’s regular compensation, and (vi) any
management or other fees paid to any Affiliate of a Covered Person
that is not the Borrower or a Guarantor.
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14.8. Capital Structure;
Equity Securities. Make any change in the capital
structure of any Covered Person which has or is reasonably likely
to have a Material Adverse Effect (except in connection with the
merger or consolidation of a Covered Person and its assets into or
with Borrower or a Guarantor and its assets or in connection with
the liquidation or dissolution of a Covered Person if the assets of
such Covered Person are distributed to Borrower or a Guarantor); or
issue or create any stock, membership interest or other equity
interest (or class or series thereof) or non-equity interest that
is convertible into stock, membership interests or other equity
interest (or class or series thereof), in any Covered Person (other
than Borrower), except stock, membership interests or other equity
interests (or class or series thereof) that are subordinated in
right of payment to all the Loan Obligations in a manner
satisfactory to Required Lenders.
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14.9. Change of
Business. Engage in any business if, as a result
thereof, the general nature of the business, on a consolidated
basis, which would then be principally engaged in by Borrower and
its Subsidiaries would be substantially changed from the general
nature of the business engaged in by Borrower and its Subsidiaries
on the Effective Date.
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14.10. Transactions
With Affiliates. Enter into or be a party to any
transaction or arrangement, including the purchase, sale or
exchange of property of any kind or the rendering of any
service,
1336346.6
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with any Affiliate, or make any
loans or advances to any Affiliate; provided, however, that a
Covered Person may engage in such transactions if such transactions
are in the ordinary course of business and pursuant to the
reasonable requirements of such Covered Person’s business and
on fair and reasonable terms substantially as favorable to it as
those which it could obtain in a comparable arm’s-length
transaction with a non-Affiliate.
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14.11. Disposal of
Property. Sell, transfer, exchange, lease, or otherwise
dispose of any of its assets to any Person; provided, however, that
the Covered Persons may (i) sell, transfer or otherwise dispose of
assets to Borrower or to any Guarantor; (ii) sell Inventory in the
ordinary course of business in arm's-length transactions; (iii)
sell assets if, within 180 days of
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