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Exhibit
10.80
REVOLVING CREDIT
AGREEMENT
dated as of June 13,
2008
among
EXACTECH,
INC.,
as Borrower
THE LENDERS FROM TIME TO
TIME PARTY HERETO
and
SUNTRUST
BANK
as Administrative
Agent
TABLE OF
CONTENTS
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Page |
| ARTICLE I DEFINITIONS; CONSTRUCTION |
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1 |
| Section 1.1. |
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Definitions |
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1 |
| Section 1.2. |
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Classifications of Loans and Borrowings |
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16 |
| Section 1.3. |
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Accounting Terms and Determination |
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17 |
| Section 1.4. |
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Terms
Generally |
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17 |
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| ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS |
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17 |
| Section 2.1. |
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General
Description of Facilities |
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17 |
| Section 2.2. |
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Revolving
Loans |
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17 |
| Section 2.3. |
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Procedure
for Revolving Borrowings |
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18 |
| Section 2.4. |
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Swingline
Commitment |
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18 |
| Section 2.5. |
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Procedure
for Swingline Borrowing; Etc |
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18 |
| Section 2.6. |
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Competitive Bid Borrowings |
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19 |
| Section 2.7. |
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Term Loan
Commitments |
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19 |
| Section 2.8. |
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Funding
of Borrowings |
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20 |
| Section 2.9. |
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Interest
Elections |
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20 |
| Section 2.10. |
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Optional
Reduction and Termination of Commitments |
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20 |
| Section 2.11. |
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Repayment
of Loans |
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21 |
| Section 2.12. |
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Evidence
of Indebtedness |
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21 |
| Section 2.13. |
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Optional
Prepayments |
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21 |
| Section 2.14. |
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Interest
on Loans |
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22 |
| Section 2.15. |
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Fees |
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22 |
| Section 2.16. |
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Computation of Interest and Fees |
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23 |
| Section 2.17. |
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Inability
to Determine Interest Rates |
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23 |
| Section 2.18. |
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Illegality |
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23 |
| Section 2.19. |
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Increased
Costs |
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23 |
| Section 2.20. |
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Funding
Indemnity |
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24 |
| Section 2.21. |
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Taxes |
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25 |
| Section 2.22. |
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Payments
Generally; Pro Rata Treatment; Sharing of Set-offs |
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26 |
| Section 2.23. |
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Mitigation of Obligations; Replacement of Lenders |
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27 |
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| ARTICLE III CONDITIONS PRECEDENT TO LOANS |
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28 |
| Section 3.1. |
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Conditions To Effectiveness |
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28 |
| Section 3.2. |
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Each
Credit Event |
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29 |
| Section 3.3. |
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Delivery
of Documents |
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29 |
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| ARTICLE IV REPRESENTATIONS AND WARRANTIES |
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30 |
| Section 4.1. |
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Existence; Power |
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30 |
| Section 4.2. |
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Organizational Power; Authorization |
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30 |
| Section 4.3. |
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Governmental Approvals; No Conflicts |
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30 |
| Section 4.4. |
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Financial
Statements |
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30 |
| Section 4.5. |
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Litigation and Environmental Matters |
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31 |
| Section 4.6. |
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Compliance with Laws and Agreements |
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31 |
| Section 4.7. |
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Investment Company Act, Etc |
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31 |
| Section 4.8. |
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Taxes |
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31 |
| Section 4.9. |
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Margin
Regulations |
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32 |
| Section 4.10. |
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ERISA |
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32 |
| Section 4.11. |
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Ownership
of Property |
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32 |
| Section 4.12. |
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Disclosure |
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32 |
| Section 4.13. |
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Labor
Relations |
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33 |
| Section 4.14. |
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Subsidiaries |
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33 |
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Section 4.15. Insolvency. After
giving effect to the execution and delivery of the Loan Documents,
the making of the Loans under this Agreement, neither the Borrower
nor its Subsidiaries will be “insolvent,” within the
meaning of such term as defined in § 101 of Title 11 of the
United States Code, as amended from time to time, or be unable to
pay its debts generally as such debts become due, or have an
unreasonably small capital to engage in any business or
transaction, whether current or contemplated. |
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33 |
| Section 4.16. |
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[INTENTIONALLY DELETED] |
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33 |
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Section 4.17. OFAC. No Loan Party
(i) is a person whose property or interest in property is
blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)),
(ii) engages in any dealings or transactions prohibited by
Section 2 of such executive order, or is otherwise associated
with any such person in any manner violative of Section 2, or
(iii) is a person on the list of Specially Designated
Nationals and Blocked Persons or subject to the limitations or
prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive
order. |
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33 |
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Section 4.18. Patriot Act. Each Loan
Party is in compliance, in all material respects, with (i) the
Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the
Uniting And Strengthening America By Providing Appropriate Tools
Required To Intercept And Obstruct Terrorism (USA Patriot Act of
2001). No part of the proceeds of the Loans will be used, directly
or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain
any improper advantage, in violation of the United States Foreign
Corrupt Practices Act of 1977, as amended. |
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33 |
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| ARTICLE V AFFIRMATIVE COVENANTS |
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34 |
| Section
5.1. |
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Financial
Statements and Other Information |
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34 |
| Section
5.2. |
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Notices
of Material Events |
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35 |
| Section
5.3. |
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Existence; Conduct of Business |
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35 |
| Section
5.4. |
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Compliance with Laws, Etc |
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36 |
| Section
5.5. |
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Payment
of Obligations |
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36 |
| Section
5.6. |
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Books and
Records |
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36 |
| Section
5.7. |
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Visitation, Inspection, Etc |
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36 |
| Section
5.8. |
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Maintenance of Properties; Insurance |
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36 |
| Section
5.9. |
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Use of
Proceeds |
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36 |
| Section
5.10. |
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Interest
Rate Protection |
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37 |
| Section
5.11. |
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Additional Subsidiaries |
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37 |
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Section 5.12. Further Assurances. The
Borrower will, and will cause each of its Subsidiaries to, execute
any and all further documents, financing statements, agreements and
instruments, and take all further action (including filing Uniform
Commercial Code and other financing statements, and preparing all
documentation relating to filings under the Assignment of Claims
Act) that may be required under applicable law, or that the
Required Lenders or the Administrative Agent may reasonably
request, in order to effectuate the transactions contemplated by
the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests
created or intended to be created by the Security Documents;
provided, however, that notwithstanding anything else to the
contrary in the Loan Documents, none of the Loan Parties shall be
required to make filings under the Assignment of Claims Act for the
assignment of Government Contracts to the Administrative Agent
unless (a) such Government Contract constitutes a Material
Contract and (b) the Administrative Agent shall have
requested, in its reasonable discretion, that a filing under the
Assignment of Claims Act be made with respect to such Government
Contract. The Borrower will cause any subsequently acquired or
organized Subsidiary (except a Foreign Subsidiary) to become a Loan
Party by executing the Security Agreement and each applicable
Security Document in favor of the Administrative Agent. In
addition, from time to time, the Borrower will, at its cost and
expense, promptly secure the Obligations by pledging or creating,
or causing to be pledged or created, perfected security interests
with respect to such of its assets and properties as the
Administrative Agent or the Required Lenders shall designate (it
being understood that it is the intent of the parties that the
Obligations shall be secured by substantially all the assets of the
Borrower and its Subsidiaries (including properties acquired
subsequent to the Closing Date)). Such security interests and Liens
will be created under the Security Documents and other security
agreements, and other instruments and documents in form and
substance reasonably satisfactory to the Administrative Agent, and
the Borrower shall deliver or cause to be delivered to the Lenders
all such instruments and documents (including legal opinions,
title |
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ii
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| insurance policies and lien searches) as the Administrative
Agent shall reasonably request to evidence compliance with this
Section 5.12. The Borrower agrees to provide such evidence as
the Administrative Agent shall reasonably request as to the
perfection and priority status of each such security interest and
Lien. |
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37 |
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Section 5.13. Primary Operating
Account. The Borrower will, and will cause each Loan Party to,
maintain its primary operating deposit accounts with the
Administrative Agent. |
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38 |
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Section 5.14. Security
Documents. The Security Agreement, upon execution and delivery
thereof by the parties thereto, will create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral
(as defined in the Security Agreement) and the proceeds thereof, in
which a security interest may be perfected under the Florida
Uniform Commercial Code as in effect at the relevant time by filing
of financing statements or obtaining control or possession, and the
Lien created under the Security Agreement is (or will be, upon the
filing of appropriate financing statements, the execution of
appropriate control agreements and delivery of certificated
securities and instruments to the Administrative Agent) a fully
perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral), in each case
prior and superior in right to any other person, other than with
respect to Liens permitted by Section 7.2. Notwithstanding
anything stated herein to the contrary, absent mutual agreement
between the Borrower, the Administrative Agent and the Required
Lenders (to the extent applicable), in no event shall Borrower or
any Subsidiary be required to grant a mortgage with respect to any
real property owned by Borrower or any Subsidiary. |
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38 |
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| ARTICLE VI FINANCIAL COVENANTS |
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38 |
| Section 6.1. |
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Leverage
Ratio |
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38 |
| Section 6.2. |
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Fixed
Charge Coverage Ratio |
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39 |
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| ARTICLE VII NEGATIVE COVENANTS |
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39 |
| Section 7.1. |
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Indebtedness |
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39 |
| Section 7.2. |
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Negative
Pledge |
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40 |
| Section 7.3. |
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Fundamental Changes |
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41 |
| Section 7.4. |
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Investments, Loans, Etc |
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41 |
| Section 7.5. |
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Restricted Payments |
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42 |
| Section 7.6. |
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Sale of
Assets |
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42 |
| Section 7.7. |
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Transactions with Affiliates |
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42 |
| Section 7.8. |
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Restrictive Agreements |
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43 |
| Section 7.9. |
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Sale and
Leaseback Transactions |
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43 |
| Section 7.10. |
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Hedging
Agreements |
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43 |
| Section 7.11. |
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Amendment
to Material Documents |
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43 |
| Section 7.12. |
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Accounting Changes |
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43 |
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| ARTICLE VIII EVENTS OF DEFAULT |
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43 |
| Section 8.1. |
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Events of
Default |
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43 |
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| ARTICLE IX THE ADMINISTRATIVE AGENT |
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46 |
| Section 9.1. |
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Appointment of Administrative Agent |
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46 |
| Section 9.2. |
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Nature of
Duties of Administrative Agent |
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46 |
| Section 9.3. |
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Lack of
Reliance on the Administrative Agent |
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47 |
| Section 9.4. |
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Certain
Rights of the Administrative Agent |
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47 |
| Section 9.5. |
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Reliance
by Administrative Agent |
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47 |
| Section 9.6. |
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The
Administrative Agent in its Individual Capacity |
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47 |
| Section 9.7. |
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Successor
Administrative Agent |
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48 |
| Section 9.8. |
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Authorization to Execute other Loan Documents;
Collateral |
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48 |
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Section 9.9. Benefits of
Article 9. None of the provisions of this Article 9 shall inure to
the benefit of the Borrower or of any Person other than
Administrative Agent and each of the Lenders and their respective
successors and permitted assigns. Accordingly, neither the Borrower
nor any Person other than Administrative Agent and the Lenders (and
their respective successors and permitted assigns) shall be
entitled to rely upon, or to raise as a defense, the failure of the
Administrative Agent or any Lenders to comply with the provisions
of this Article 9. |
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49 |
iii
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| ARTICLE X MISCELLANEOUS |
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49 |
| Section
10.1. |
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Notices |
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49 |
| Section
10.2. |
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Waiver;
Amendments |
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51 |
| Section
10.3. |
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Expenses;
Indemnification |
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52 |
| Section
10.4. |
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Successors and Assigns |
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53 |
| Section
10.5. |
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Governing
Law; Jurisdiction; Consent to Service of Process |
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55 |
| Section
10.6. |
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WAIVER OF
JURY TRIAL |
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55 |
| Section
10.7. |
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Right of
Setoff |
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56 |
| Section
10.8. |
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Counterparts; Integration |
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56 |
| Section
10.9. |
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Survival |
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56 |
| Section
10.10. |
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Severability |
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57 |
| Section
10.11. |
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Confidentiality |
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57 |
| Section 10.12. |
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Interest
Rate Limitation |
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57 |
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Section 10.13. Patriot Act. The Administrative
Agent and each Lender hereby notifies the Loan Parties that
pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Patriot Act”), it is required to obtain, verify and
record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and
other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance
with the Patriot Act. Each Loan Party shall, and shall cause each
of its Subsidiaries to, provide to the extent commercially
reasonable, such information and take such other actions as are
reasonably requested by the Administrative Agent or any Lender in
order to assist the Administrative Agent and the Lenders in
maintaining compliance with the Patriot Act |
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57 |
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| Schedules |
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Schedule I
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Applicable Margin and Applicable Percentage |
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Schedule
4.5
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Intentionally Deleted |
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Schedule 4.14
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Subsidiaries |
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Schedule
7.1
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- |
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Outstanding Indebtedness |
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Schedule
7.2
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Existing
Liens |
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Schedule
7.4
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Existing
Investments |
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Schedule
I-F
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To the
Subsidiary Guaranty Agreement |
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Schedule
I-G
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To the
Indemnity, Subrogation and Contribution Agreement |
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Schedule I-G-
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- |
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To
Supplement No.
to the
Indemnity, Subrogation and Contribution Agreement |
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Annex
I-F
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To the
Subsidiary Guaranty Agreement |
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Annex
I-G
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To the
Indemnity, Subrogation and Contribution Agreement |
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| Exhibits |
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Exhibit
A
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Revolving
Credit Note |
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Exhibit
B
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Intentionally Deleted |
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Exhibit
C
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- |
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Intentionally Deleted |
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Exhibit
D
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Swingline
Note |
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Exhibit
E
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- |
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Form of
Assignment and Acceptance |
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Exhibit
F
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Form of
Subsidiary Guaranty Agreement |
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Exhibit
G
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- |
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Form of
Indemnity, Subrogation and Contribution Agreement |
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Exhibit
H
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- |
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Form of
Security Agreement |
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Exhibit
2.3
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- |
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Notice of
Revolving Borrowing |
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Exhibit
2.5
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- |
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Notice of
Swingline Borrowing |
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Exhibit 2.6-A
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Intentionally Deleted |
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Exhibit
2.6-B
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- |
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Intentionally Deleted |
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Exhibit 2.6-C
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- |
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Intentionally Deleted |
iv
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Exhibit
2.9
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- |
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Intentionally Deleted |
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Exhibit
3.1(b)(iv)
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Form of
Secretary’s Certificate of Exactech, Inc. |
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Exhibit
3.1(b)(vii)
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Form of
Officer’s Certificate |
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Exhibit 3.1(b)(viii)
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- |
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Form of
Opinion Letter |
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Exhibit
5.1(c)
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- |
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Form of
Compliance Certificate |
v
REVOLVING CREDIT
AGREEMENT
THIS REVOLVING CREDIT
AGREEMENT ( this “Agreement”) is made and
entered into as of June 13, 2008, by and among EXACTECH,
INC., a Florida corporation (the “Borrower”), the
several banks and other financial institutions from time to time
party hereto (the “Lenders”), and SUNTRUST BANK
, in its capacity as administrative agent for the Lenders (the
“Administrative Agent”), as a Lender and as swingline
lender (the “Swingline Lender”).
W I T N E S S E T
H:
WHEREAS , the Borrower
has requested that the Lenders establish a $40,000,000 revolving
credit facility;
WHEREAS , subject to
the terms and conditions of this Agreement, the Lenders severally,
to the extent of their respective Commitments, are willing to
establish the requested revolving credit facility for
Borrower.
NOW, THEREFORE , in
consideration of the premises and the mutual covenants herein
contained, the Borrower, the Lenders and the Administrative Agent
agree as follows:
ARTICLE I
DEFINITIONS;
CONSTRUCTION
Section 1.1.
Definitions . In addition to the other terms defined
herein, the following terms used herein shall have the meanings
herein specified (to be equally applicable to both the singular and
plural forms of the terms defined):
“Administrative
Agent” shall have the meaning assigned to such term
in the opening paragraph hereof.
“Administrative
Questionnaire” shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly
completed by such Lender.
“Affiliate” shall mean, as to any
Person, any other Person that directly, or indirectly through one
or more intermediaries, Controls, is Controlled by, or is under
common Control with, such Person.
“Aggregate
Revolving Commitment Amount” shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time
to time. On the Closing Date, the Aggregate Revolving Commitment
Amount equals $40,000,000.
“Aggregate
Revolving Commitments” shall mean collectively, all
Revolving Commitments of all Lenders at any time
outstanding.
“Applicable
Lending Office” shall mean, for each Lender and for
each Type of Loan, the “Lending Office” of such Lender
(or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or
such other office of such Lender (or an Affiliate of such Lender)
as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
“Applicable
Margin” shall mean, as of any date, with respect to
interest on all Loans outstanding on any date, as the case may be,
a percentage per annum determined by reference to the applicable
Leverage Ratio in effect from time to time as set forth on
Schedule 1 ; provided that a change in the Applicable
Margin resulting from a change in the Leverage Ratio shall be
effective on the second Business Day after which the Borrower is
required to deliver the financial statements required by
Section 5.1 ( a ) or ( b ) and the
compliance certificate required by Section 5.1 (
c ); provided further , that if at any time the
Borrower shall have failed to deliver such financial statements and
such certificate, the Applicable Margin shall be at Level I
until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined
as provided above; and provided , further , that in
the event that any financial statement delivered pursuant to
Section 5.1(a ) or (b) or any Compliance
Certificate delivered pursuant to Section 5.1(c) is
shown to be inaccurate (regardless of whether this Agreement or the
Commitments are in effect when such inaccuracy is discovered), and
such inaccuracy, if corrected, would have led to the application of
a higher Applicable Margin for any period (an “
Applicable Margin Period ” ) than the Applicable
Margin applied for such Applicable Margin Period, and only in such
case, then the Borrower shall immediately (i) deliver to the
Administrative Agent a corrected Compliance Certificate for such
Applicable Margin Period, (ii) determine the Applicable Margin
for such Applicable Margin Period based upon the corrected
Compliance Certificate, and (iii) immediately pay to the
Administrative Agent the accrued additional interest owing as a
result of such increased Applicable Margin for such Applicable
Margin Period, which payment shall be promptly applied by the
Administrative Agent in accordance with Section 2.22 .
In the event that any financial statement delivered pursuant to
Section 5.1(a) or (b) or any Compliance Certificate
delivered pursuant to Section 5.1(c) is shown to be
inaccurate, and such inaccuracy, if corrected, would have led to
the application of a lower Applicable Margin for any Applicable
Margin Period than the Applicable Margin applied for such
Applicable Margin Period, then (i) the Borrower shall
immediately deliver to the Administrative Agent a correct
Compliance Certificate for such Applicable Margin Period,
(ii) the Applicable Margin shall be as if the lower applicable
percentage were applicable for such Applicable Margin Period, and
(iii) Borrower shall receive a credit towards any future
interest payments in an amount equal to the excess interest paid by
Borrower as a result of the application of such lower Applicable
Margin. The provisions of this definition are in addition to rights
of the Administrative Agent and Lenders with respect to
Section 2.14(c) and Article 8 and other of their
respective rights under this Agreement. Notwithstanding the
foregoing, the Applicable Margin from the Closing Date until the
first financial statement and Compliance Certificate are required
to be delivered shall be at Level IV.
“Applicable
Percentage” shall mean, with respect to the facility
fee as of any date, the percentage per annum determined by
reference to the applicable Leverage Ratio in effect on such date
as set forth on Schedule I attached hereto;
provided , that a change in the Applicable Percentage
resulting from a change in the Leverage Ratio shall be effective on
the second Business Day after which the Borrower is required to
deliver the financial statements required by
Section 5.1 (a) or (b) and the compliance
certificate required by Section 5.1 ( c );
provided, further , that if at any time the Borrower shall
have failed to deliver such financial statements and such
certificate, the Applicable Percentage shall be at Level I
until such time as such financial statements and certificate are
delivered, at which time the Applicable Percentage shall be
determined as provided above. Notwithstanding the foregoing, the
Applicable Percentage for the facility fee from the Closing Date
until the first financial statement and Compliance Certificate are
required to be delivered shall be at Level IV.
2
“Assignment and
Acceptance” shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4 (
b )) and accepted by the Administrative Agent, in the form
of Exhibit E attached hereto or any other form
approved by the Administrative Agent.
“Availability
Period” shall mean the period from the Closing Date
to the Commitment Termination Date.
“Base
Rate” shall mean the higher of (i) the per annum
rate which the Administrative Agent publicly announces from time to
time to be its prime lending rate, as in effect from time to time,
and (ii) the Federal Funds Rate, as in effect from time to
time, plus one-half of one percent (0.50%). The Administrative
Agent’s prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers.
The Administrative Agent may make commercial loans or other loans
at rates of interest at, above or below the Administrative
Agent’s prime lending rate. Each change in the Administrative
Agent’s prime lending rate shall be effective from and
including the date such change is publicly announced as being
effective.
“Borrower” shall have the meaning in
the introductory paragraph hereof.
“Borrowing” shall mean a borrowing
consisting of (i) Loans of the same Class and Type, made on
the same date, or (ii) a Swingline Loan.
“Borrowing
Availability” means, at any time, the amount by which
the Aggregate Revolving Commitment Amount exceeds the sum of the
outstanding Revolving Loans and Swingline Loans.
“Business
Day” shall mean (i) any day other than a
Saturday, Sunday or other day on which commercial banks in
Gainesville, Florida are authorized or required by law to close and
(ii) if such day relates to a Borrowing of, a payment or
prepayment of principal or interest on an Index Rate Loan or a
Index Rate Loan or a notice with respect to any of the foregoing,
any day on which dealings in Dollars are carried on in the London
interbank market.
“Capital
Expenditures” shall mean for any period, without
duplication, (i) the additions to property, plant and
equipment and other capital expenditures of the Borrower and its
Subsidiaries that are (or would be) set forth on a consolidated
statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (ii) Capital Lease Obligations
required to be paid by the Borrower and its Subsidiaries during
such period. For purposes of this definition, Capital Expenditures:
(a) shall not include any expenditure by Borrower or its
Subsidiaries which is reimbursed in cash by a third party (other
than a Loan Party or any Subsidiary of a Loan Party) during the
same period in which such expenditure was made, so long as
Consolidated Net Income for such period does not include the amount
of the reimbursement from the third party; (b) shall only
include the amount spent by Borrower and/or its Subsidiaries in
excess of insurance proceeds received by Borrower and/or its
Subsidiaries on the purchase of replacement equipment, so long as
such insurance proceeds were not included in Consolidated Net
Income; and (c) shall include expenditures for equipment
purchased substantially contemporaneously with the trade-in or sale
of similar equipment only to the extent such purchase price exceeds
the credit granted by the seller of such equipment for the
equipment being traded in at such time or the proceeds of such
sale, as the case may be, and provided such sale proceeds were not
included in Consolidated Net Income.
3
“Capital Lease
Obligations” of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance
with GAAP.
“Cash Management
Swingline Loans” shall have the meaning assigned to
such term in Section 2.4(b).
“Change in
Control” shall mean the occurrence of one or more of
the following events: (a) any sale, lease, exchange or other
transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the
Borrower to any Person or “group” (within the meaning
of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder in effect on the date
hereof), (b) the acquisition of ownership, directly or
indirectly, beneficially or of record by any Person or
“group” (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of 50% or more of the
outstanding shares of the voting stock of the Borrower; or
(c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who
were neither (i) nominated by the current board of directors
or (ii) appointed by directors so nominated.
“Change in
Law” shall mean (i) the adoption of any
applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or
regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its
Applicable Lending Office) with any request, guideline or directive
(whether or not having the force of law) of any Governmental
Authority made or issued after the date of this
Agreement.
“Class” , when used in reference to
any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Loans or Swingline Loans
and when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment, or a Swingline
Commitment.
“Closing
Date” shall mean the date on which the conditions
precedent set forth in Section 3.1 and
Section 3.2 have been satisfied or waived in accordance
with Section 10.2 .
“Code” shall mean the Internal
Revenue Code of 1986, as amended and in effect from time to
time.
“Collateral” shall mean all property
and assets of the Loan Parties, now owned or hereafter acquired,
upon which a Lien is purported to be created by any Security
Document.
“Commitment” shall mean a Revolving
Commitment or a Swingline Commitment or any combination thereof (as
the context shall permit or require).
“Commitment
Termination Date” shall mean the earliest of
(i) June 13, 2013, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.10 and
(iii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
4
“Consolidated
EBITDA” shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of
(a) Consolidated Net Income for such period plus (b) to
the extent deducted in determining Consolidated Net Income for such
period, (i) Consolidated Interest Expense, (ii) Federal,
state, local and foreign income taxes payable by the Borrower and
its Subsidiaries, (iii) depreciation and amortization expense,
(iv) all other non-cash charges, (v) other non-recurring
or extraordinary charges or expenses made in conformance with GAAP,
and (vii) any expenses deducted in calculating Consolidated
Net Income for such period and reimbursed during such period by
third parties (other than the Borrower or any of its Subsidiaries),
in each case such deductions shall be for such period determined on
a consolidated basis in accordance with GAAP. Consolidated EBITDA
shall include the pro forma Consolidated EBITDA of any Person or
business acquired for the applicable period preceding such
acquisition, not to exceed four fiscal quarters, so long as the
calculation thereof is done in a manner reasonably calculated to
comply with GAAP and such calculation is detailed in the supporting
calculations to each applicable Compliance Certificate as detailed
and measured to the Administrative Agent’s reasonable
satisfaction.
“Consolidated
Fixed Charges” shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of
(a) Consolidated Interest Expense for such period,
(b) scheduled principal payments made on Consolidated Total
Debt during such period, and (c) any Permitted Dividend
Payments paid during such period.
“Consolidated
Funded Debt” shall mean and include (without
duplication) (a) all Funded Debt of the Borrower on a
consolidated basis, (b) all Funded Debt of other Persons,
which has been guaranteed by the Borrower, which is supported by a
letter of credit issued for the account of any one or more of the
Borrower, or as to which and to the extent that any of the Borrower
or its assets have otherwise become liable for payment thereof,
(c) all Indebtedness for money borrowed by the Borrower
pursuant to lines of credit or revolving credit facilities
(regardless of the term thereof), and (d) all Permitted
Subordinated Debt (if any).
“Consolidated
Interest Expense” shall mean, for the Borrower and
its Subsidiaries for any period determined on a consolidated basis
in accordance with GAAP, the sum of (i) total cash interest
expense, including without limitation the interest component of any
payments in respect of Capital Leases Obligations capitalized or
expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus
the net amount receivable) under Hedging Agreements during such
period (whether or not actually paid or received during such
period).
“Consolidated Net
Income” shall mean, for the Borrower and its
Subsidiaries, for any period, the net income (or loss) of the
Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom
(to the extent otherwise included therein) (i) any gains
attributable to write-ups of assets and (ii) any equity
interest of the Borrower or any Subsidiary of the Borrower in the
unremitted earnings of any Person that is not a Subsidiary and
(iv) any income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with
the Borrower or any Subsidiary on the date that such Person’s
assets are acquired by the Borrower or any Subsidiary.
5
“Consolidated
Total Debt” shall mean, as of any date of
determination, all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance
sheet of the Borrower prepared in accordance with GAAP as of such
date.
“Control” shall mean the power,
directly or indirectly, to direct or cause the direction of the
management and policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. The terms
“Controlling” , “Controlled
by” , and “under common Control
with” have meanings correlative thereto.
“Default” shall mean any condition or
event that, with the giving of notice or the lapse of time or both,
would constitute an Event of Default.
“Default
Interest” shall have the meaning set forth in
Section 2.14 ( d ).
“Dollar(s)” and the sign
“$” shall mean lawful money of the United
States of America.
“Environmental
Laws” shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, or injunctions issued or
promulgated by or with any Governmental Authority, relating in any
way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of any
Hazardous Material.
“Environmental
Liability” shall mean any liability, (including any
liability for damages, costs of environmental investigation and
remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any
Subsidiary resulting from or based upon (a) any violation of
any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials in violation of any Environmental Law, (c) any
exposure to any Hazardous Materials in violation of any
Environmental Law, (d) the Release or threatened Release of
any Hazardous Materials in violation of any Environmental Law, or
(e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to
time, and any successor statute.
“ERISA
Affiliate” shall mean any trade or business (whether
or not incorporated), which, together with the Borrower, is treated
as a single employer under Section 414 ( b ) or
( c ) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414
of the Code.
“ERISA
Event” shall mean (a) any “reportable
event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the
incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator appointed
by the PBGC of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect
6
to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of
ERISA.
“Event of
Default” shall have the meaning provided in
Article VIII.
“Excluded
Taxes” shall mean with respect to the Administrative
Agent, any Lender, or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its
net income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which any Lender
is located and (c) in the case of a Foreign Lender, any
withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable
to such Foreign Lender’s failure to comply with
Section 2.21 ( e ), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.21 ( a
).
“Federal Funds
Rate” shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100
th
of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal
funds brokers, as published by the Federal Reserve Bank of New York
on the next succeeding Business Day or if such rate is not so
published for any Business Day, the Federal Funds Rate for such day
shall be the average rounded upwards, if necessary, to the next
1/100th of 1% of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative
Agent.
“Fixed Charge
Coverage Ratio” shall mean, as of any date, the ratio
of (a) Consolidated EBITDA minus the actual amount paid
by Borrower and its Subsidiaries in cash during such period on
account of income tax expenses and minus the actual amount
paid by Borrower and its Subsidiaries in cash during such period on
account of Capital Expenditures, except to the extent that any such
Capital Expenditure was paid for with the direct proceeds of any
Indebtedness other than the Loans, all as determined on a
consolidated basis in accordance with GAAP, to
(b) Consolidated Fixed Charges for such period to the extent
payable in cash during such period, in each case measured for the
four consecutive fiscal quarters ending on or immediately prior to
such date.
“Foreign
Lender” shall mean any Lender that is not a United
States person under Section 7701(a)(3) of the Code.
“Foreign
Subsidiary” shall mean any Subsidiary that is
organized under the laws of a jurisdiction other than one of the
fifty states of the United States of America.
“Funded
Debt” shall mean and include all Indebtedness for
money borrowed, Indebtedness evidenced or secured by purchase money
Liens, Capital Lease Obligations, and conditional sales contracts
and similar title retention debt instruments (regardless of when
such Indebtedness matures).
7
“GAAP” shall mean generally accepted
accounting principles in the United States applied on a consistent
basis and subject to the terms of Section 1.3
.
“Governmental
Authority” shall mean the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government.
“Guarantee” or
“Guaranty” of or by any Person (the
“guarantor” ) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the “primary
obligor” ) in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided , that
the term “Guarantee” shall not include endorsements for
collection or deposits in the ordinary course of business. The
amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in
respect of which Guarantee is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term
“Guarantee” used as a verb has a corresponding
meaning.
“Hazardous
Materials” means all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes,
and all other substances of wastes of any nature regulated pursuant
to any Environmental Law.
“Hedging
Agreements” shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts,
commodity agreements and other similar agreements or arrangements
designed to protect against fluctuations in interest rates,
currency values or commodity values and any transaction (including
an agreement with respect thereto) now existing or hereafter
entered into by any such Person that is a rate swap, basis swap,
forward rate transaction, commodity swap, interest rate option,
foreign exchange transaction, cap transaction, floor transaction,
collateral transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect
to any of these transactions) or any combination thereof, whether
linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
8
“Hedging
Obligations” of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
under (i) any and all Hedging Agreements, (ii) any and
all cancellations, buy backs, reversals, terminations or
assignments of any Hedging Agreements and (iii) any and all
renewals, extensions and modifications of any Hedging Agreements
and any and all substitutions for any Hedging
Agreements.
“Indebtedness” of any Person shall
mean, without duplication (i) all obligations of such Person
for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the
deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of business;
provided , that for purposes of Section 8.1 (
f ), trade payables overdue by more than 120 days shall be
included in this definition except to the extent that any of such
trade payables are being disputed in good faith and by appropriate
measures), (iv) all obligations of such Person under any
conditional sale or other title retention agreement(s) relating to
property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent
or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described in
clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned
by such Person, whether or not such Indebtedness has been assumed
by such Person, (ix) Off-Balance Sheet Liabilities, and
(x) all Hedging Obligations. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor.
“Indemnified
Taxes” shall mean Taxes other than Excluded
Taxes.
“Indemnity and
Contribution Agreement” shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form
of Exhibit G , among the Borrower, the
Subsidiary Loan Parties and the Administrative Agent.
“Index
Rate” shall mean the rate per annum equal to the
London Interbank Offered Rate for deposits in U.S. dollars for a
one (1) month period, which rate appears on the page of
Bloomberg Financial Markets reporting service (or such
similar service as determined by the Administrative Agent) that
displays British Bankers’ Association interest settlement
rates for deposits in U.S. Dollars, as of 11:00 A.M. (London,
England time) two (2) Business Days prior to the Index Rate
Determination Date; provided, that if no such offered rate appears
on such page, the rate used for such period will be the per annum
rate of interest determined by the Administrative Agent to be the
rate at which U.S. dollar deposits for such period, are offered to
the Administrative Agent in the London Inter-Bank Market as of
11:00 A.M. (London, England time), on the day which is two
(2) Business Days prior to the Index Rate Determination
Date.
“Index Rate
Borrowing ” and “Index Rate
Loan” when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate determined by reference to
the Index Rate.
“Index Rate
Determination Date” means the Closing Date and the
first Business Day of each calendar month thereafter.
“Lenders” shall have the meaning
assigned to such term in the opening paragraph of this Agreement
and shall include, where appropriate, the Swingline
Lender.
9
“Leverage
Ratio” shall mean, as of any date of determination
with respect to the Borrower, the ratio of (i) Consolidated
Funded Debt as of such date to (ii) Consolidated EBITDA for
the four consecutive fiscal quarters ending on or immediately prior
to such date.
“Lien” shall mean any mortgage,
pledge, security interest, lien (statutory or otherwise), charge,
encumbrance, hypothecation, assignment, deposit arrangement, or
other arrangement having the practical effect of the foregoing or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement
and any capital lease having the same economic effect as any of the
foregoing).
“Loan
Documents” shall mean, collectively, this Agreement,
the Notes, all Notices of Borrowing, the Subsidiary Guaranty
Agreement, the Indemnity and Contribution Agreement, the Security
Agreement, and any and all other instruments, agreements, documents
and writings executed in connection with any of the
foregoing.
“Loan
Parties” shall mean the Borrower and the Subsidiary
Loan Parties.
“Loans” shall mean all Revolving
Loans and Swingline Loans in the aggregate or any of them, as the
context shall require.
“Material Adverse
Effect” shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental
investigation or proceeding), whether singularly or in conjunction
with any other related event or events, act or acts, condition or
conditions, occurrence or occurrences, a material adverse change
in, or a material adverse effect on, (i) the business, results
of operations, financial condition, assets, or liabilities of the
Borrower and of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Loan Parties to perform any of their
respective obligations under the Loan Documents, (iii) the
rights and remedies of the Administrative Agent, the Lenders and
the Swingline Lender under any of the Loan Documents or
(iv) the legality, validity or enforceability of any of the
Loan Documents.
“Material
Indebtedness” shall mean Indebtedness (other than the
Loans) plus any obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries
in an aggregate principal amount exceeding One Million Dollars
($1,000,000.00) during any calendar quarter. For purposes of
determining Material Indebtedness, the “principal
amount” of the obligations of the Borrower or any Subsidiary
in respect to any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
“Moody’s” shall mean
Moody’s Investors Service, Inc.
“Multiemployer
Plan” shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
“Notes” shall mean, collectively, the
Revolving Credit Notes and the Swingline Note.
“Notices of
Borrowing” shall mean, collectively, the Notices of
Revolving Borrowing, and the Notices of Swingline
Borrowing.
10
“Notice of
Revolving Borrowing” shall have the meaning as set
forth in Section 2.3 .
“Notice of
Swingline Borrowing” shall have the meaning as set
forth in Section 2.5 .
“Obligations” shall mean all amounts
owing by the Borrower to the Administrative Agent or any Lender
(including the Swingline Lender) pursuant to or in connection with
this Agreement or any other Loan Document, including without
limitation, all principal, interest (including any interest
accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), all
reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and
expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this
Agreement or any other Loan Document), the due and punctual payment
and performance of all obligations of Borrower in respect of
overdrafts and related liabilities owed to the Administrative Agent
and any Lender (including the Swingline Lender) arising from
treasury, depositary and cash management services or in connection
with any automated clearinghouse transfer of funds, whether direct
or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising hereunder or thereunder, and all
Hedging Obligations owed to the Administrative Agent, any Lender or
any of their Affiliates incurred in order to limit interest rate or
fee fluctuation with respect to the Loans, and all obligations and
liabilities incurred in connection with collecting and enforcing
the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
“Off-Balance
Sheet Liabilities” of any Person shall mean
(i) any repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person,
(ii) any liability of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet
of such Person, (iii) any liability of such Person under any
so-called “synthetic” lease transaction or
(iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
balance sheet of such Person.
“Other
Taxes” shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges
or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
“Participant” shall have the meaning
set forth in Section 10.4 ( c ).
“Payment
Office” shall mean the office of the Administrative
Agent located at 5080 Newberry Road, Gainesville, Florida 32607, or
such other location as to which the Administrative Agent shall have
given written notice to the Borrower and the other
Lenders.
“PBGC” shall mean the Pension Benefit
Guaranty Corporation referred to and defined in ERISA, and any
successor entity performing similar functions.
“Permitted
Acquisition” means any transaction consummated after
the date hereof, in which the Borrower or a Subsidiary acquires the
assets or all or substantially all of the outstanding capital stock
or equity interests, or, subject to the limitation contained in
Section 7.4(h) , a minority share of the outstanding
capital stock or equity interests, of any Person or any division or
business line of any Person, or merges or consolidates with any
Person (with any such acquisition being referred to as an “
Acquired Business ” and
11
any such Person, division or line of
business being the “ Target ”), provided that
(a) at the closing of such transaction, after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing, (b) such acquisition has been approved by the
Board of Directors and/or shareholders of the Borrower and the
applicable Subsidiary, (c) at least five (5) Business
Days prior to the consummation of such transaction, the Borrower
shall give written notice of such transaction to the Administrative
Agent (the “ Acquisition Notice ”), which shall
include either (i) the final acquisition agreement or the then
current draft of the acquisition agreement or (ii) a
reasonably detailed description of the material terms of such
Permitted Acquisition (including, without limitation, the purchase
price and method and structure of payment), (d) the Borrower
or a Subsidiary shall be the surviving entity of any merger, and
the surviving entity shall not be a Foreign Subsidiary,
(e) the Acquired Business shall be in substantially the same
line of business as the Borrower and its Subsidiaries or a line of
business permitted by Section 5.3 , and (f) at the
time it gives the Acquisition Notice, the Borrower shall deliver to
the Administrative Agent (which shall promptly deliver a copy to
the Lenders) a certificate, executed by a Responsible Officer of
the Borrower, demonstrating in sufficient detail compliance with
the financial covenants contained in Section 6 of the
Agreement on a pro forma basis after giving effect to such
acquisition and, further, certifying that, after giving effect to
the consummation of such acquisition, the representations and
warranties of the Borrower contained herein will be true and
correct in all material respects and as of the date of such
consummation, except to the extent such representations or
warranties expressly relate to an earlier date, and that the
Borrower, as of the date of such consummation, will be in
compliance with all other terms and conditions contained
herein.
“Permitted
Encumbrances” shall mean
(i) Liens imposed by law for
taxes or other governmental charges not yet due or which are being
contested in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained in accordance with
GAAP;
(ii) statutory Liens of
landlords and Liens of suppliers, carriers, warehousemen,
mechanics, materialmen and other similar Liens imposed by law
created in the ordinary course of business for amounts not yet due
or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) Liens, pledges and
deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other
social security laws or regulations;
(iv) Liens and deposits to
secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment
liens not giving rise to an Event of Default or Liens created by or
existing from any litigation or legal proceeding that are currently
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in
accordance with GAAP;
(vi) easements, zoning
restrictions, title defects, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
12
(vii) customary
banker’s liens, rights of setoff and other similar Liens
existing solely with respect to cash and cash equivalents on
deposit in one or more accounts (including securities accounts)
maintained by the Borrower or its Subsidiaries, including those
granted in the ordinary course of business in favor of the bank or
banks with which such accounts are maintained securing amounts
owing to such bank with respect to cash management and operating
account arrangements, including those involving pooled accounts and
netting arrangements and Liens deemed to exist in connection with
investments in repurchase agreements meeting the requirements of
cash equivalents;
(viii) any interest or title
of a licensor, sub licensor, lessor or sublessor with respect to
any assets under any license or lease agreement to the Borrower or
any of its Subsidiaries entered into in the ordinary course of
business;
(ix) Liens which arise under
Article 4 of the Uniform Commercial Code in any applicable
jurisdictions on items in collection and documents and proceeds
related thereto;
(x) precautionary filings of
financing statements under the Uniform Commercial Code of any
applicable jurisdictions in respect of operating leases or
consignments entered into by the Borrower or its Subsidiaries in
the ordinary course of business; and
(xi) Liens in favor of
customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation
of goods.
provided , that the term
“Permitted Encumbrances” shall not include any Lien
securing Indebtedness.
“Permitted
Investments” shall mean:
(i) direct obligations of, or
obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency
thereof to the extent such obligations are backed by the full faith
and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
(ii) commercial paper having
the highest rating, at the time of acquisition thereof, of S&P
or Moody’s and in either case maturing within one year from
the date of acquisition thereof;
(iii) certificates of
deposit, bankers’ acceptances and time deposits maturing
within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
13
(iv) fully collateralized
repurchase agreements with a term of not more than 30 days for
securities described in clause (i) above and entered into with
a financial institution satisfying the criteria described in
clause (iii) above;
(v) mutual funds investing
solely in any one or more of the Permitted Investments described in
clauses (i) through (iv) above;
(vi) investments held by the
Borrower or Subsidiary in the form of cash or cash equivalents;
and
(vii) prepaid expenses or
lease, utility and other similar deposits, in each case made in the
ordinary course of business.
“Permitted
Subordinated Debt” shall mean any Indebtedness of the
Borrower or any Subsidiary (i) that is expressly subordinated
to the Obligations on terms satisfactory to the Administrative
Agent and the Required Lenders in their reasonable discretion,
(ii) that matures by its terms no earlier than six months
after the Commitment Termination Date then in effect with
commercially reasonable principal payment schedules and no
un-scheduled principal payments permitted prior to such maturity,
and (iii) that is evidenced by an indenture or other similar
agreement that is in a form reasonably satisfactory to the
Administrative Agent and the Required Lenders.
“Person” shall mean any individual,
partnership, firm, corporation, association, joint venture, limited
liability company, trust or other entity, or any Governmental
Authority.
“Plan” means any employee pension
benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of
ERISA.
“Pro Rata
Share” shall mean, with respect to any Lender at any
time, a percentage, the numerator of which shall be such
Lender’s Revolving Commitment and the denominator of which
shall be the sum of all Lenders’ Revolving Commitments; or if
the Revolving Commitments have been terminated or expired or if the
Loans have been declared to be due and payable, a percentage, the
numerator of which shall be the sum of such Lender’s
Revolving Credit Exposure, and the denominator of which shall be
the sum of the aggregate Revolving Credit Exposure of all
Lenders.
“Regulation
D” shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time, and any successor regulations.
“Related
Parties” shall mean, with respect to any specified
Person, such Person’s Affiliates and the respective
directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Release” means any release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or
subsurface strata) or within any building, structure, facility or
fixture.
14
“Required
Lenders” shall mean, at any time, Lenders holding
more than 50% of the aggregate outstanding Revolving Credit
Exposures at such time or if the Lenders have no Revolving Credit
Exposure outstanding, then Lenders holding more than 50% of the
Aggregate Revolving Commitments.
“Responsible
Officer” shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such
other representative of the Borrower as may be designated in
writing by any one of the foregoing with the consent of the
Administrative Agent; and, with respect to the financial covenants
only, the chief financial officer or the treasurer of the
Borrower.
“Restricted
Payment” shall have the meaning set forth in
Section 7.5 .
“Revolving
Commitment” shall mean, with respect to each Lender,
the obligation of such Lender to make Revolving Loans to the
Borrower and Swingline Loans in an aggregate principal amount not
exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person
becoming a Lender after the Closing Date, the amount of the
assigned “Revolving Commitment” as provided in the
Assignment and Acceptance Agreement executed by such Person as an
assignee, as the same may be changed pursuant to terms
hereof.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such
Lender’s Revolving Loans, and such Lender’s Swingline
Exposure.
“Revolving Credit
Note” shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount
of such Lender’s Revolving Commitment, in substantially the
form of Exhibit A .
“Revolving
Loan” shall mean a loan made by a Lender (other than
the Swingline Lender) to the Borrower under its Revolving
Commitment, which may either be a Base Rate Loan or an Index Rate
Loan.
“S&P” shall mean
Standard & Poor’s.
“Security
Agreement” shall mean the Security Agreement, dated
as of the date hereof and substantially in the form of
Exhibit H , made by the Borrower in favor of the
Administrative Agent for the benefit of the Lenders.
“Security
Document” shall mean the Security Agreement and each
of the security agreements and other instruments and documents
executed and delivered pursuant thereto or pursuant to
Section 5.11 .
“Subsidiary” shall mean, with respect
to any Person (the “parent”), any corporation,
partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation,
partnership, joint venture, limited liability company, association
or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50%
of the ordinary voting power, or in the case of a partnership, more
than 50% of the general partnership interests are, as of such date,
owned, Controlled or held, or (ii) that is, as of
15
such date, otherwise Controlled, by the
parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent. Unless otherwise
indicated, all references to “Subsidiary” hereunder
shall mean a Subsidiary of the Borrower.
“Subsidiary
Guaranty Agreement” shall mean the Subsidiary
Guaranty Agreement, dated as of the date hereof and substantially
in the form of Exhibit F , made by the Subsidiary
Loan Parties in favor of the Administrative Agent for the benefit
of the Lenders, and by Subsidiaries of the Borrower pursuant to
Section 5.11.
“Subsidiary Loan
Party” shall mean any Subsidiary that executes or
becomes a party to the Subsidiary Guaranty Agreement.
“Swingline
Commitment” shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal
amount at any time outstanding not to exceed Three Million
($3,000,000.00).
“Swingline
Exposure” shall mean, with respect to each Lender,
the principal amount of the Swingline Loans in which such Lender is
legally obligated either to make a Base Rate Loan or to purchase a
participation in accordance with Section 2.5 , which
shall equal such Lender’s Pro Rata Share of all outstanding
Swingline Loans.
“Swingline
Lender” shall mean SunTrust Bank, or any other Lender
that may agree to make Swingline Loans hereunder.
“Swingline
Loan” shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
“Swingline
Note” shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal
amount of the Swingline Commitment, substantially the form of
Exhibit D .
“Swingline
Termination Date” shall mean the date that is ten
(10) Business Days prior to the Commitment Termination
Date.
“Taxes” shall mean any and all
present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental
Authority.
“Type” , when used in reference to a
Loan or Borrowing, refers to whether the rate of interest on such
Loan, or on the Loans comprising such Borrowing, is determined by
reference to the Index Rate or the Base Rate.
“Withdrawal
Liability” shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Section 1.2.
Classifications of Loans and Borrowings . For purposes
of this Agreement, Loans may be classified and referred to by Type
(e.g. a “Index Rate Loan”, or “Base Rate
Loan”) or by Class and Type (e.g. “Revolving Index Rate
Loan”). Borrowings also may be classified and referred to by
Class (e.g. “Revolving Borrowing”) or by Type (e.g.
“Index Rate Borrowing”) or by Class and Type (e.g.
“Revolving Index Rate Borrowing”).
16
Section 1.3.
Accounting Terms and Determination . Unless otherwise
defined or specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect
from time to time, applied on a basis consistent (except for such
changes approved by the Borrower’s independent public
accountants) with the most recent audited consolidated financial
statement of the Borrower delivered pursuant to
Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant
in Article VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Article VI for
such purpose), then the Borrower’s compliance with such
covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required
Lenders.
Section 1.4. Terms
Generally . The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. In the computation of
periods of time from a specified date to a later specified date,
the word “from” means “from and including”
and the word “to” means “to but excluding”.
Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as it was originally executed or as it may from time
to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to
any Person shall be construed to include such Person’s
successors and permitted assigns, (iii) the words
“hereof”, “herein” and
“hereunder” and words of similar import shall be
construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles, Sections, Exhibits and Schedules to this Agreement and
(v) all references to a specific time shall be construed to
refer to the time in the city and state of the Administrative
Agent’s principal office, unless otherwise
indicated.
ARTICLE II
AMOUNT AND TERMS OF THE
COMMITMENTS
Section 2.1.
General Description of Facilities . Subject to and upon
the terms and conditions herein set forth, (i) the Lenders
hereby establish in favor of the Borrower a revolving credit
facility pursuant to which the Lenders severally agree (to the
extent of each Lender’s Pro Rata Share up to such
Lender’s Revolving Commitment) to make Revolving Loans to the
Borrower in accordance with Section 2.2 , and
(ii) the Swingline Lender agrees to make Swingline Loans in
accordance with Section 2.4 ; provided , that in
no event shall the aggregate principal amount of all outstanding
Revolving Loans and Swingline Loans exceed at any time the
Aggregate Revolving Commitment Amount from time to time in
effect.
Section 2.2.
Revolving Loans . Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving
Loans to the Borrower, from time to time during the Availability
Period, in an aggregate principal amount outstanding at any time
that will not result in (a) such Lender’s Revolving
Credit Exposure exceeding such Lender’s Revolving Commitment
or
17
(b) the sum of the aggregate
Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitments. During the Availability Period, the Borrower
shall be entitled to borrow, prepay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement;
provided, that the Borrower may not borrow or reborrow should there
exist a Default or Event of Default.
Section 2.3.
Procedure for Revolving Borrowings . The Borrower shall
give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 attached
hereto (a “Notice of Revolving Borrowing”
) prior to 11:00 a.m. (Gainesville, FL time) on the requested
date of each Revolving Borrowing. Each Notice of Revolving
Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, and (ii) the
date of such Borrowing (which shall be a Business Day). The
aggregate principal amount of each Revolving Borrowing shall be not
less than $1,000,000 or a larger multiple of $100,000;
provided , that Loans made pursuant to
Section 2.5 may be made in lesser amounts as provided
therein. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such
Lender’s Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4.
Swingline Commitment .
(a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower, from time to time from the Closing
Date to the Swingline Termination Date, in an aggregate principal
amount outstanding at any time not to exceed the lesser of
(i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitments and the
aggregate Revolving Credit Exposures of all Lenders;
provided , that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline
Loan. The Borrower shall be entitled to borrow, repay and reborrow
Swingline Loans in accordance with the terms and conditions of this
Agreement.
(b) The Swingline Lender
agrees to make Swingline Loans to the Borrower from time to time in
accordance with the treasury and cash management services and
products provided to the Borrower by the Swingline Lender (the
“ Cash Management Swingline Loans ”). For other
Swingline Loans, the Borrower shall follow the procedure provided
in Section 2.5(a).
Section 2.5. Procedure
for Swingline Borrowing; Etc .
(a) The Borrower shall give
the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Borrowing (
“Notice of Swingline Borrowing” ) prior
to 11:00 a.m. (Gainesville, FL time) on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of
such Swingline Loan, (ii) the date of such Swingline Loan
(which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be
credited. The Administrative Agent will promptly advise the
Swingline Lender of each Notice of Swingline Borrowing. Each
Swingline Loan shall accrue interest at the Index Rate Plus the
Applicable Margin or any other interest rate as agreed between the
Borrower and the Swingline Lender. The Swingline Lender will make
the proceeds of each Swingline Loan available to the Borrower in
Dollars in immediately available funds at the account specified by
the Borrower in the applicable Notice of Swingline Borrowing not
later than 1:00 p.m. (Gainesville, FL time) on the requested date
of such Swingline Loan. The Administrative Agent will notify the
Lenders on a quarterly basis if any Swingline Loans occurred during
such quarter.
18
(b) Once a week on the first
Business Day of the week, and at other times and from time to time
in the Swingline Lender’s sole discretion, the Swingline
Lender may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf),
give a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders (including the Swingline Lender) to make
Revolving Loans in an amount equal to the unpaid principal amount
of any Swingline Loan. Each Lender will make the proceeds of its
Revolving Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in
accordance with Section 2.8 , which will be used solely
for the repayment of such Swingline Loan.
(c) If for any reason a
Revolving Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other
than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to
its Pro Rata Share thereof on the date that such Revolving
Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender. If
such Swingline Loan bears interest at a rate other than the Index
Rate, such Swingline Loan shall automatically become a Revolving
Loan on the effective date of any such participation and interest
shall become payable on demand.
(d) Each Lender’s
obligation to make a Revolving Loan pursuant to
Section 2.5 ( b ) or to purchase the
participating interests pursuant to Section 2.5 (
c ) shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation
(i) any setoff, counterclaim, recoupment, defense or other
right that such Lender or any other Person may have or claim
against the Swingline Lender, the Borrower or any other Person for
any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of any Lender’s Revolving
Commitment, (iii) the existence (or alleged existence) of any
event or condition which has had or could reasonably be expected to
have a Material Adverse Effect, (iv) any breach of this
Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other
circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline
Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from
the date of demand thereof at the Federal Funds Rate. Until such
time as such Lender makes its required payment, the Swingline
Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of
the Loan Documents. In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest
on its Loans and any other amounts due to it hereunder, to the
Swingline Lender to fund the amount of such Lender’s
participation interest in such Swingline Loans that such Lender
failed to fund pursuant to this Section, until such amount has been
purchased in full.
Section 2.6.
Competitive Bid Borrowings . [Intentionally
Deleted]
Section 2.7. Term
Loan Commitments . [Intentionally Deleted]
19
Section 2.8.
Funding of Borrowings .
(a) Each Lender will make
available each Loan to be made by it hereunder on the proposed date
thereof by wire transfer in immediately available funds by
11:00 a.m. (Gainesville, FL time) to the Administrative Agent
at the Payment Office; provided, that the Swingline Loans will be
made as set forth in Section 2.5 . The Administrative
Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close
of business on such proposed date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower’s
option, by effecting a wire transfer of such amounts to an account
designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative
Agent shall have been notified by any Lender prior to 5 p.m.
(Gainesville, FL time) one (1) Business Day prior to the date
of a Borrowing in which such Lender is participating that such
Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on
such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender on the date of such Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand
from such Lender together with interest at the Federal Funds Rate
for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent together with interest at the
rate specified for such Borrowing. Nothing in this subsection shall
be deemed to relieve any Lender from its obligation to fund its Pro
Rata Share of any Borrowing hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(c) All Revolving Borrowings
shall be made by the Lenders on the basis of their respective Pro
Rata Shares. No Lender shall be responsible for any default by any
other Lender in its obligations hereunder, and each Lender shall be
obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans
hereunder.
Section 2.9.
Interest Elections . [Intentionally Deleted]
Section 2.10.
Optional Reduction and Termination of Commitments
.
(a) Unless previously
terminated, all Revolving Commitments shall terminate on the
Commitment Termination Date, except that the Swingline Commitment
shall terminate on the Swingline Termination Date.
(b) Upon at least three
(3) Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the
Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided , that (i) any
partial reduction shall apply to reduce proportionately and
permanently the Revolving Commitment of each Lender, (ii) any
partial reduction pursuant to this Section 2.10 shall
be in an amount of at least $5,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted
which would reduce the Aggregate Revolving Commitment Amount to an
amount less than the outstanding Revolving Credit
20
Exposures of all Lenders. Any such
reduction in the Aggregate Revolving Commitment Amount shall result
in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment.
Section 2.11.
Repayment of Loans .
(a) The outstanding principal
amount of all Revolving Loans shall be due and payable (together
with accrued and unpaid interest thereon) on the Commitment
Termination Date.
(b) The principal amount of
each Swingline Borrowing shall be due and payable (together with
accrued interest thereon) on the Swingline Termination
Date.
Section 2.12.
Evidence of Indebtedness .
(a) Each Lender shall
maintain in accordance with its usual practice appropriate records
evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and
paid to such Lender from time to time under this Agreement. The
Administrative Agent shall maintain appropriate records in which
shall be recorded (i) the Revolving Commitment of each Lender,
(ii) the amount of each Loan made hereunder by each Lender and
the Class and Type thereof, (iii) the date and amount of any
principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder in respect of such
Loans, and (iv) both the date and amount of any sum received
by the Administrative Agent hereunder from the Borrower in respect
of the Loans and each Lender’s Pro Rata Share thereof. The
entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein
recorded; provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such
record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and
unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement.
(b) At the request of any
Lender (including the Swingline Lender) at any time, the Borrower
agrees that it will execute and deliver to such Lender a Revolving
Credit Note, and, in the case of the Swingline Lender only, a
Swingline Note, payable to the order of such Lender.
Section 2.13.
Optional Prepayments . The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole
or in part, without premium or penalty, by giving irrevocable
written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent no later than (i) in the case of
prepayment of any Revolving Borrowing, 11:00 a.m.
(Gainesville, FL time) not less than three (3) Business Days
prior to any such prepayment, and (ii) in the case of
Swingline Borrowings, prior to 11:00 a.m. (Gainesville, FL
time) on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment
and the principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender of the contents thereof
and of such Lender’s Pro Rata Share of any such prepayment.
If such notice is given, the aggregate amount specified in such
notice shall be due and payable on the date designated in such
notice, together with accrued interest to such date on the amount
so prepaid in accordance with Section 2.14 ( e
). Each partial prepayment of any Loan (other than a Swingline
Loan) shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type pursuant to
Section 2.2 or in the case of a Swingline Loan pursuant
to Section 2.5 . Each prepayment of a Borrowing shall
be applied ratably to the Loans comprising such
Borrowing.
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Section 2.14.
Interest on Loans .
(a) The Borrower shall pay
interest on each Revolving Loan at the Index Rate in effect from
time to time, plus the Applicable Margin in effect from time to
time.
(b) The Borrower shall pay
interest on each Swingline Loan at the Index Rate in effect from
time to time, plus the Applicable Margin in effect from time to
time.
(c) While an Event of Default
exists or after acceleration, at the option of the Required
Lenders, the Borrower shall pay interest ( “Default
Interest” ) with respect to all Revolving Loans and
Swingline Loans at the rate otherwise applicable plus an
additional five percent (5%) per annum.
(d) Interest on the principal
amount of all Loans shall accrue from and including the date such
Loans are made to but excluding the date of any repayment thereof.
Interest on all outstanding Revolving Loans shall be payable
monthly in arrears on the fifteenth day of each calendar month and
on the Commitment Termination Date, as the case may be. Interest on
each Swingline L
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