Exhibit 10.4
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CREDIT AGREEMENT
Dated as of October 17, 2003
among
UNIVERSAL HOSPITAL SERVICES, INC.,
as Borrower,
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, Administrative Agent, Collateral Agent and Lender
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
GECC CAPITAL MARKETS GROUP, INC.,
as Co-Lead Arranger
and
XXXXXXX XXXXX CREDIT PARTNERS, L.P.,
as Syndication Agent and Co-Lead Arranger
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TABLE OF CONTENTS
Page
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1. AMOUNT AND TERMS OF CREDIT...............................................1
1.1. Credit Facilities................................................1
1.2. Letters of Credit................................................4
1.3. Prepayments......................................................4
1.4. Use of Proceeds..................................................7
1.5. Interest and Applicable Margins..................................7
1.6. Eligible Accounts...............................................10
1.7. Eligible Rental Equipment, Eligible Wholesale
Disposables and Eligible Equipment Disposables..................12
1.8. Cash Management Systems.........................................14
1.9. Fees............................................................14
1.10. Receipt of Payments.............................................14
1.11. Application and Allocation of Payments..........................15
1.12. Loan Account and Accounting.....................................15
1.13. Indemnity.......................................................16
1.14. Access..........................................................17
1.15. Taxes...........................................................18
1.16. Capital Adequacy; Increased Costs; Illegality...................19
1.17. Single Loan.....................................................21
2. CONDITIONS PRECEDENT....................................................21
2.1. Conditions to the Initial Loans.................................21
2.2. Further Conditions to Each Loan.................................22
3. REPRESENTATIONS AND WARRANTIES..........................................23
3.1. Corporate Existence; Compliance with Law........................23
3.2. Executive Offices, Collateral Locations, FEIN...................24
3.3. Corporate Power, Authorization, Enforceable
Obligations.....................................................24
3.4. Financial Statements and Projections............................24
3.5. Material Adverse Effect.........................................25
3.6. Ownership of Property; Liens....................................26
3.7. Labor Matters...................................................26
3.8. Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness..........................................27
3.9. Government Regulation...........................................27
3.10. Margin Regulations..............................................27
3.11. Taxes...........................................................28
3.12. ERISA...........................................................28
3.13. No Litigation...................................................29
3.14. Brokers.........................................................29
3.15. Intellectual Property...........................................30
3.16. Full Disclosure.................................................30
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3.17. Environmental Matters...........................................30
3.18. Insurance.......................................................31
3.19. Deposit and Disbursement Accounts...............................31
3.20. Government Contracts............................................31
3.21. Customer and Trade Relations....................................32
3.22. Agreements and Other Documents..................................32
3.23. Solvency........................................................32
3.24. Recapitalization Agreements.....................................32
3.25. Senior Notes....................................................33
3.26. HIPAA Compliance................................................33
4. FINANCIAL STATEMENTS AND INFORMATION....................................34
4.1. Reports and Notices.............................................34
4.2. Communication with Accountants..................................34
5. AFFIRMATIVE COVENANTS...................................................34
5.1. Maintenance of Existence and Conduct of Business................34
5.2. Payment of Charges..............................................35
5.3. Books and Records...............................................35
5.4. Insurance; Damage to or Destruction of Collateral...............35
5.5. Compliance with Laws............................................37
5.6. Supplemental Disclosure.........................................37
5.7. Intellectual Property...........................................38
5.8. Environmental Matters...........................................38
5.9. Landlords' Agreements, Bailee Letters and Real
Estate Purchases................................................38
5.10. Further Assurances..............................................39
6. NEGATIVE COVENANTS......................................................39
6.1. Mergers, Subsidiaries, Etc......................................40
6.2. Investments; Loans and Advances.................................42
6.3. Indebtedness....................................................43
6.4. Affiliate Transactions..........................................45
6.5. Capital Structure and Business..................................45
6.6. Guaranteed Indebtedness.........................................45
6.7. Liens...........................................................46
6.8. Sale of Stock and Assets........................................46
6.9. ERISA...........................................................48
6.10. Financial Covenants.............................................48
6.11. Hazardous Materials.............................................48
6.12. Sale-Leasebacks.................................................48
6.13. Cancellation of Indebtedness....................................48
6.14. Restricted Payments.............................................48
6.15. Change of Corporate Name or Location; Change
of Fiscal Year..................................................49
6.16. No Impairment of Intercompany Transfers.........................49
6.17. No Speculative Transactions.....................................50
6.18. Changes Relating to Subordinated Debt and
Certain Agreements..............................................50
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7. TERM....................................................................50
7.1. Termination.....................................................50
7.2. Survival of Obligations Upon Termination of
Financing Arrangements..........................................51
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES..................................51
8.1. Events of Default...............................................51
8.2. Remedies........................................................53
8.3. Waivers by Credit Parties.......................................54
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT.....................54
9.1. Assignment and Participations...................................54
9.2. Appointment of Agent............................................57
9.3. Agent's Reliance, Etc...........................................58
9.4. GE Capital and Affiliates.......................................58
9.5. Lender Credit Decision..........................................59
9.6. Indemnification.................................................59
9.7. Successor Agent.................................................60
9.8. Setoff and Sharing of Payments..................................60
9.9. Advances; Payments; Non-Funding Lenders; Information;
Actions in Concert..............................................61
9.10. Additional Titled Agents........................................63
10. SUCCESSORS AND ASSIGNS..................................................64
10.1. Successors and Assigns..........................................64
11. MISCELLANEOUS...........................................................64
11.1. Complete Agreement; Modification of Agreement...................64
11.2. Amendments and Waivers..........................................64
11.3. Fees and Expenses...............................................66
11.4. No Waiver.......................................................68
11.5. Remedies........................................................68
11.6. Severability....................................................68
11.7. Conflict of Terms...............................................69
11.8. Confidentiality.................................................69
11.9. GOVERNING LAW...................................................70
11.10. Notices.........................................................71
11.11. Section Titles..................................................71
11.12. Counterparts....................................................71
11.13. WAIVER OF JURY TRIAL............................................71
11.14. Press Releases and Related Matters..............................72
11.15. Reinstatement...................................................72
11.16. Advice of Counsel...............................................72
11.17. No Strict Construction..........................................73
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INDEX OF APPENDICES
Annex A (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
Annex C (Section 1.8) - Cash Management System
Annex D (Section 2.1(a)) - Closing Checklist
Annex E (Section 4.1(a)) - Financial Statements and Projections -
Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A -
Commitments definition) - Commitments as of Closing Date
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.1(b)(ii) - Form of Swing Line Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 4.1(b) - Form of Borrowing Base Certificate
Exhibit 9.1(a) - Form of Assignment Agreement
Exhibit B-1 - Application for Standby Letter of Credit
Exhibit B-2 - Application for Documentary Letter of Credit
Exhibit B-3 - Application and Agreement for Documentary
Letter of Credit
Disclosure Schedule 1.1 - Agent's Representatives
Disclosure Schedule 1.4(a) - Sources and Uses as of Closing Date; Funds
Flow Memorandum as of the
Closing Date
Disclosure Schedule 1.4(b) - Sources and Uses for the Recapitalization
Disclosure Schedule 3.1 - Type of Entity; State of Organization
Disclosure Schedule 3.2 - Executive Offices; Collateral Locations; FEIN
Disclosure Schedule 3.4(a) - Financial Statements
Disclosure Schedule 3.4(b) - Pro Forma
Disclosure Schedule 3.4(c) - Projections
Disclosure Schedule 3.6 - Real Estate and Leases
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates;
Outstanding Stock
Disclosure Schedule 3.11 - Tax Matters
Disclosure Schedule 3.12 - ERISA Plans
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.14 - Brokers
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Hazardous Materials
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
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Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.21 - Customer and Trade Relations
Disclosure Schedule 3.22 - Material Agreements
Disclosure Schedule 5.1 - Trade Names
Disclosure Schedule 6.2 - Permitted Investments
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.6 - Guaranteed Indebtedness
Disclosure Schedule 6.7 - Existing Liens
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This CREDIT AGREEMENT, dated as of October 17, 2003 among UNIVERSAL
HOSPITAL SERVICES, INC., a Delaware corporation ("Borrower"); the other Credit
Parties signatory hereto; GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation (in its individual capacity, "GE Capital"), for itself, as Lender,
and as Agent for Lenders, and the other Lenders signatory hereto from time to
time.
RECITALS
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WHEREAS, Borrower has requested that Lenders extend revolving credit
facilities to Borrower of up to One Hundred Million Dollars ($100,000,000) in
the aggregate for the purposes of funding a portion of the consideration due and
owing on the date hereof under the Recapitalization Agreements, refinancing
certain indebtedness of Borrower, and providing (a) working capital financing
for Borrower, (b) funds for other general corporate purposes of Borrower and (c)
funds for other purposes permitted hereunder, including without limitation the
consummation of Capital Expenditures and Permitted Acquisitions; and for these
purposes, Lenders are willing to make certain loans and other extensions of
credit to Borrower of up to such amount upon the terms and conditions set forth
herein; and
WHEREAS, Borrower has agreed to secure all of its obligations under
the Loan Documents by granting to Agent, for the benefit of Agent and Lenders, a
security interest in and lien upon all of its existing and after-acquired
personal and real property; and
WHEREAS, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Annex A and, for purposes of this Agreement and the
other Loan Documents, the rules of construction set forth in Annex A shall
govern. All Annexes, Disclosure Schedules, Exhibits and other attachments
(collectively, "Appendices") hereto, or expressly identified to this Agreement,
are incorporated herein by reference, and taken together with this Agreement,
shall constitute but a single agreement. These Recitals shall be construed as
part of the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1. Credit Facilities.
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(a) Revolving Credit Facility.
(i) Subject to the terms and conditions hereof, each Lender
agrees to make available to Borrower from time to time until the Commitment
Termination Date its Pro Rata Share of advances (each, a "Revolving Credit
Advance"). The Pro Rata Share of the Revolving Loan of any Lender shall not at
any time exceed its separate Revolving Loan Commitment. The obligations of each
Lender hereunder shall be several and not joint. Until the Commitment
Termination Date, Borrower may borrow, repay and reborrow under this
Section 1.1(a); provided, that the amount of any Revolving Credit Advance to be
made at any time shall not exceed Borrowing Availability at such time. Borrowing
Availability may be reduced by Reserves imposed by Agent in accordance with the
provisions of Sections 1.6 and 1.7, as applicable. Each Revolving Credit Advance
shall be made on notice by Borrower to one of the representatives of Agent
identified in Schedule 1.1 at the address specified therein. Any such notice
must be given no later than (1) 11:00 a.m. (Chicago time) on the Business Day of
the proposed Revolving Credit Advance, in the case of an Index Rate Loan, or (2)
11:00 a.m. (Chicago time) on the date which is 3 Business Days prior to the
proposed Revolving Credit Advance, in the case of a LIBOR Loan. Each such notice
(a "Notice of Revolving Credit Advance") must be given in writing (by telecopy
or overnight courier) substantially in the form of Exhibit 1.1(a)(i), and shall
include the information required in such Exhibit and such other information as
may be reasonably required by Agent. If Borrower desires to have the Revolving
Credit Advances bear interest by reference to a LIBOR Rate, Borrower must comply
with Section 1.5(e).
(ii) Except as provided in Section 1.12, Borrower shall execute
and deliver to each Lender a note to evidence the Revolving Loan Commitment of
that Lender. Each note shall be in the principal amount of the Revolving Loan
Commitment of the applicable Lender, dated the Closing Date and substantially in
the form of Exhibit 1.1(a)(ii) (each a "Revolving Note" and, collectively, the
"Revolving Notes"). Each Revolving Note shall represent the obligation of the
Borrower to pay the amount of the applicable Lender's Revolving Loan Commitment
or, if less, such Lender's Pro Rata Share of the aggregate unpaid principal
amount of all Revolving Credit Advances to Borrower together with interest
thereon as prescribed in Section 1.5. Subject to the provisions of Annex B with
respect to Letters of Credit, the entire unpaid balance of the aggregate
Revolving Loan and all other non-contingent Obligations shall be immediately due
and payable in full in immediately available funds on the Commitment Termination
Date.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement or in any other Loan Document, Borrower hereby covenants and agrees
that the aggregate amount of Revolving Credit Advances made on the Closing Date
plus the aggregate amount of Revolving Credit Advances made following the
Closing Date to satisfy, in full or in part, amounts owing in connection with
the Recapitalization shall not exceed Thirty Million Dollars ($30,000,000).
(b) Swing Line Facility.
(i) Agent shall notify the Swing Line Lender upon Agent's
receipt of any Notice of Revolving Credit Advance. Subject to the terms and
conditions hereof, the Swing Line Lender may, in its discretion, make available
from time to time until the Commitment Termination Date advances (each, a "Swing
Line Advance") in accordance with any such notice. The provisions of this
Section 1.1(c) shall not relieve Lenders of their obligations to make Revolving
Credit Advances under Section 1.1(a); provided, that if the Swing Line Lender
makes a Swing Line Advance pursuant to any such notice, such Swing Line Advance
shall be in lieu of any Revolving Credit Advance that otherwise may be made
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by Lenders pursuant to such notice. The aggregate amount of Swing Line Advances
outstanding shall not exceed at any time the lesser of (A) the Swing Line
Commitment and (B) the lesser of the Maximum Amount and the Borrowing Base, in
each case, less the outstanding balance of the Revolving Loan at such time
("Swing Line Availability"). Moreover, the Swing Line Loan outstanding to
Borrower shall not exceed at any time the Borrowing Base less the Revolving Loan
outstanding to Borrower. Until the Commitment Termination Date, Borrower may
from time to time borrow, repay and reborrow under this Section 1.1(b). Each
Swing Line Advance shall be made pursuant to a Notice of Revolving Credit
Advance delivered to Agent by Borrower in accordance with Section 1.1(a). Any
such notice must be given no later than 11:00 a.m. (Chicago time) on the
Business Day of the proposed Swing Line Advance. Unless the Swing Line Lender
has received at least 1 Business Day's prior written notice from Requisite
Lenders instructing it not to make a Swing Line Advance, the Swing Line Lender
shall, notwithstanding the failure of any condition precedent set forth in
Section 2.2, be entitled to fund that Swing Line Advance, and to have each
Lender make Revolving Credit Advances in accordance with Section 1.1(b)(iii) or
purchase participating interests in accordance with Section 1.1(b)(iv).
Notwithstanding any other provision of this Agreement or the other Loan
Documents, the Swing Line Loan shall constitute an Index Rate Loan. Borrower
shall repay the aggregate outstanding principal amount of the Swing Line Loan
within 3 Business Days after demand therefor by Agent.
(ii) Borrower shall execute and deliver to the Swing Line Lender
a promissory note to evidence the Swing Line Commitment. Each note shall be in
the principal amount of the Swing Line Commitment of the Swing Line Lender,
dated the Closing Date and substantially in the form of Exhibit 1.1(b)(ii) (each
a "Swing Line Note" and, collectively, the "Swing Line Notes"). Each Swing Line
Note shall represent the obligation of Borrower to pay the amount of the Swing
Line Commitment or, if less, the aggregate unpaid principal amount of all Swing
Line Advances made to Borrower together with interest thereon as prescribed in
Section 1.5. The entire unpaid balance of the Swing Line Loan and all other
noncontingent Obligations shall be immediately due and payable in full in
immediately available funds on the Commitment Termination Date if not sooner
paid in full.
(iii) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion, but not less frequently than weekly, shall on
behalf of Borrower (and Borrower hereby irrevocably authorizes the Swing Line
Lender to so act on its behalf) request each Lender (including the Swing Line
Lender) to make a Revolving Credit Advance to Borrower (which shall be an Index
Rate Loan) in an amount equal to that Lender's Pro Rata Share of the principal
amount of Borrower's Swing Line Loan (the "Refunded Swing Line Loan")
outstanding on the date such notice is given. Unless any of the events described
in Sections 8.1(h) or 8.1(i) has occurred (in which event the procedures of
Section 1.1(b)(iv) shall apply) and regardless of whether the conditions
precedent set forth in this Agreement to the making of a Revolving Credit
Advance are then satisfied, each Lender shall disburse directly to Agent, its
Pro Rata Share of a Revolving Credit Advance on behalf of the Swing Line Lender
prior to 2:00 p.m. (Chicago time) in immediately available funds on the Business
Day next succeeding the date that notice is given. The proceeds of those
Revolving
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Credit Advances shall be immediately paid to the Swing Line Lender and applied
to repay the Refunded Swing Line Loan.
(iv) If, prior to refunding a Swing Line Loan with a Revolving
Credit Advance pursuant to Section 1.1(b)(iii), one of the events described in
Sections 8.1(h) or 8.1(i) has occurred, then, subject to the provisions of
Section 1.1(b)(v) below, each Lender shall, on the date such Revolving Credit
Advance was to have been made, purchase from the Swing Line Lender an undivided
participation interest in the Swing Line Loan in an amount equal to its Pro Rata
Share of such Swing Line Loan. Upon request, each Lender shall promptly transfer
to the Swing Line Lender, in immediately available funds, the amount of its
participation interest.
(v) Each Lender's obligation to make Revolving Credit Advances
in accordance with Section 1.1(b)(iii) and to purchase participation interests
in accordance with Section 1.1(b)(iv) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Lender may have
against the Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Default or Event of
Default; (C) any inability of Borrower to satisfy the conditions precedent to
borrowing set forth in this Agreement at any time or (D) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
If any Lender does not make available to Agent or the Swing Line Lender, as
applicable, the amount required pursuant to Sections 1.1(b)(iii) or 1.1(b)(iv),
as the case may be, the Swing Line Lender shall be entitled to recover such
amount on demand from such Lender, together with interest thereon for each day
from the date of non-payment until such amount is paid in full at the Federal
Funds Rate for the first 2 Business Days and at the Index Rate thereafter.
(c) Reliance on Notices. Agent shall be entitled to rely upon, and
shall be fully protected in relying upon, any Notice of Revolving Credit
Advance, Notice of Conversion/Continuation or similar notice believed by Agent
to be genuine. Agent may assume that each Person executing and delivering any
notice in accordance herewith was duly authorized, unless the responsible
individual acting thereon for Agent has actual knowledge to the contrary.
1.2. Letters of Credit.
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Subject to and in accordance with the terms and conditions contained
herein and in Annex B, Borrower shall have the right to request, and Lenders
agree to incur, or purchase participations in, Letter of Credit Obligations in
respect of Borrower.
1.3. Prepayments.
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(a) Voluntary Prepayments. Borrower may at any time, and from time to
time, prepay all or any portion of the Revolving Loan. Further, Borrower may at
any time on at least five (5) days' prior written notice to Agent terminate the
Revolving Loan Commitment; provided, that upon such termination, all Loans and
other Obligations shall be
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immediately due and payable in full and all Letter of Credit Obligations shall
be cash collateralized or otherwise satisfied in accordance with Annex B. Any
such voluntary prepayment and any such termination of the Revolving Loan
Commitment must be accompanied by the payment of any LIBOR funding breakage
costs in accordance with Section 1.13(b). Upon any such termination of the
Revolving Loan Commitment, Borrower's right to request Revolving Credit
Advances, or request that Letter of Credit Obligations be incurred on its
behalf, or request Swing Line Advances, shall simultaneously be terminated.
(b) Mandatory Prepayments.
(i) If on any date on which a Borrowing Base Certificate is
delivered pursuant to Annex F, the aggregate outstanding balance of the
Revolving Loan and the Swing Line Loan exceeds the Borrowing Base, Borrower
shall, no later than the Business Day immediately following the date of delivery
of such Borrowing Base Certificate, prepay the Revolving Credit Advances and/or
cash collateralize (in a manner consistent with the requirements of Annex B) or
replace Letters of Credit in an amount equal to the amount of such excess.
(ii) If on any date the aggregate outstanding balance of the
Revolving Loan and the Swing Line Loan exceeds the Maximum Amount, Borrower
shall, within one Business Day of such occurrence, prepay the Revolving Credit
Advances and/or cash collateralize (in a manner consistent with the requirements
of Annex B) or replace Letters of Credit in an amount equal to the amount of
such excess.
(iii) Borrower shall prepay the Revolving Credit Advances in an
amount equal to (i) one hundred percent (100%) of the Net Proceeds of any sale
or issuance of debt securities, and seventy-five percent (75%) of the Net
Proceeds of any sale or issuance of any equity securities, in either case by
Borrower or any Subsidiary, whether in a public offering, a private placement or
otherwise, but excluding any equity investment made by X.X. Childs or its
Affiliates or Halifax or its Affiliates, any of their applicable limited
partners or the limited partners of their applicable Affiliates, any equity
investment made by any officer, director, consultant or employee of or to
Borrower pursuant to the Stockholder's Agreement, any stock option plan or
otherwise, and any Stock issued to the owners of a Target in connection with a
Permitted Acquisition, (ii) one hundred percent (100%) of the Net Proceeds of
any sale, lease, assignment, exchange or other disposition for cash of any asset
or group of assets (including, without limitation, but subject to Section
5.4(c), insurance proceeds paid as a result of any destruction, casualty or
taking of any property of Borrower or any Subsidiary), not made in the ordinary
course of business, by Borrower or any Subsidiary of Borrower, and (iii) one
hundred percent (100%) of the Net Proceeds from the termination of any pension
plans of Borrower or any Subsidiary, in any such case no later than 3 Business
Days following receipt by Borrower or such Subsidiary of such proceeds, together
with accrued interest to such date on the amount prepaid; provided that except
as otherwise provided in Section 5.4(c), no such prepayment shall be required
pursuant to subclause (ii) of this Section 1.3(b)(iii) with respect to up to
$2,000,000 of such Net Proceeds received by Borrower and its Subsidiaries during
any Fiscal Year of Borrower so long as (x) Borrower
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shall have notified the Agent in writing of such receipt of such Net Proceeds,
the amount thereof and that Borrower or such Subsidiary intends to reinvest such
Net Proceeds in Inventory or other property useful in the business of Borrower
and its Subsidiaries within 180 days following such receipt, and (y) such Net
Proceeds are so reinvested during such 180-day period. To the extent that
Borrower shall have so notified Agent that it intended to so reinvest any such
Net Proceeds and such Net Proceeds were not so reinvested within 180 days
following receipt thereof, Borrower shall immediately give Agent notice thereof
and prepay the Revolving Credit Advances in an amount equal to such amount of
Net Proceeds which were not reinvested. Any such prepayment shall be applied in
accordance with Section 1.3(c). Notwithstanding anything herein to the contrary,
no prepayment shall be required with respect to (i) the proceeds of Indebtedness
permitted under Section 6.3, (ii) the proceeds of the Recapitalization, and
(iii) the proceeds of the Senior Notes.
(iv) If on any date that is 270 days following the receipt by
Borrower or any of its Subsidiaries of any "Net Proceeds" from any "Asset Sale"
(as such terms, solely for purposes of this clause (iv), are defined in the
Senior Note Indenture) there shall exist "Excess Proceeds" (as such term, solely
for purposes of this clause (iv), is defined in the Senior Note Indenture) in
excess of $10,000,000 (such excess amount being the "Specified Payment Amount"),
then Borrower shall, within 5 Business Days of such date, prepay Revolving
Credit Advances by an amount equal to the Specified Payment Amount. Any such
payment shall be applied in accordance with Section 1.3(c).
(c) Application of Certain Mandatory Prepayments. Any prepayments
made by Borrower pursuant to Section 1.3(b)(iii) above, and any prepayments from
insurance or condemnation proceeds in accordance with Section 5.4(c), shall be
applied as follows: first, to Fees and reimbursable expenses of Agent then due
and payable pursuant to any of the Loan Documents; second, to interest then due
and payable on the Swing Line Loan; third, to the principal balance of the Swing
Line Loan until the same has been repaid in full; fourth, to interest then due
and payable on Revolving Credit Advances; fifth, to the principal balance of
Revolving Credit Advances until the same has been paid in full; and sixth, to
any Letter of Credit Obligations of Borrower to provide cash collateral therefor
in the manner set forth in Annex B, until all such Letter of Credit Obligations
have been fully cash collateralized in the manner set forth in Annex B. Neither
the Revolving Loan Commitment nor the Swing Line Commitment shall be permanently
reduced by the amount of any such prepayments. Any prepayments made by Borrower
pursuant to Section 1.3(b)(iv) above shall be applied to the principal balance
of outstanding Revolving Credit Advances and as a concurrent and permanent
reduction of the Revolving Loan Commitment, pro rata among all Lenders.
(d) No Implied Consent. Nothing in this Section 1.3 shall be
construed to constitute Agent's or any Lender's consent to any transaction that
is not permitted by other provisions of this Agreement or the other Loan
Documents.
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1.4. Use of Proceeds.
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Borrower shall utilize the proceeds of the Revolving Loan and the
Swing Line Advances solely for the Recapitalization and the Refinancing (and to
pay any related transaction expenses), and to provide funds (a) for Borrower's
working capital, (b) for other general corporate purposes and (c) for other
purposes permitted under this Agreement, including without limitation the
consummation of Capital Expenditures and Permitted Acquisitions. Disclosure
Schedule 1.4(a) contains a description of Borrower's sources and uses of funds
as of the Closing Date, including Loans and Letter of Credit Obligations to be
made or incurred on that date, and a funds flow memorandum detailing how funds
from each source are to be transferred to particular uses. Disclosure Schedule
1.4(b) contains a projected description of Borrower's sources and uses of funds
for the consummation of the Recapitalization, including Loans (not to exceed the
amount set forth in Section 1.1(a)(iii)) and Letter of Credit Obligations
expected to be made or incurred in connection with the Recapitalization.
1.5. Interest and Applicable Margins.
-------------------------------
(a) Borrower shall pay interest to Agent, for the ratable benefit of
Lenders in accordance with the various Loans being made by each Lender, in
arrears on each applicable Interest Payment Date, at the following rates: (i)
with respect to the Revolving Credit Advances, the Index Rate plus the
Applicable Revolver Index Margin per annum or, at the election of Borrower, the
applicable LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum, based
on the aggregate Revolving Credit Advances outstanding from time to time; and
(ii) with respect to the Swing Line Loan, the Index Rate plus the Applicable
Revolver Index Margin per annum.
As of the Closing Date, the Applicable Margins are as follows:
------------------------------------------------------
Applicable Revolver Index Margin 1.75%
------------------------------------------------------
Applicable Revolver LIBOR Margin 3.00%
------------------------------------------------------
Applicable L/C Margin 3.00%
------------------------------------------------------
The Applicable Margins shall be adjusted (up or down) prospectively on a
quarterly basis as determined by Borrower's consolidated financial performance,
commencing with the first day of the first calendar month that occurs more than
5 days after delivery of Borrower's quarterly Financial Statements to Lenders
for the Fiscal Quarter ending September 30, 2003. Adjustments in Applicable
Margins shall be determined by reference to the following grids:
-7-
----------------------------------------------------------------------
If Total Leverage Level of
Ratio is: Applicable Margins:
----------------------------------------------------------------------
>=4.75 to 1.0 Level I
----------------------------------------------------------------------
>=4.00 to 1.0, but Level II
<4.75 to 1.0
----------------------------------------------------------------------
<4.00 to 1.0 Level III
----------------------------------------------------------------------
----------------------------------------------------------------------
Applicable Margins
----------------------------------------------------------------------
Level I Level II Level III
----------------------------------------------------------------------
Applicable Revolver Index Margin 2.00% 1.75% 1.50%
----------------------------------------------------------------------
Applicable Revolver LIBOR Margin 3.25% 3.00% 2.75%
----------------------------------------------------------------------
Applicable L/C Margin 3.25% 3.00% 2.75%
----------------------------------------------------------------------
All adjustments in the Applicable Margins after September 30, 2003
shall be implemented quarterly on a prospective basis, for each calendar month
commencing at least 5 days after the date of delivery to Lenders of the
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of those
Financial Statements, Borrower shall deliver to Agent and Lenders a certificate,
signed by its chief financial officer, setting forth in reasonable detail the
basis for the continuance of, or any change in, the Applicable Margins. Failure
to timely deliver such Financial Statements shall, in addition to any other
remedy provided for in this Agreement, result in an increase in the Applicable
Margins to the highest level set forth in the foregoing grid, until the first
day of the first calendar month following the delivery of those Financial
Statements demonstrating that such an increase is not required. If a Default or
Event of Default has occurred and is continuing at the time any reduction in the
Applicable Margins is to be implemented, that reduction shall be deferred until
the first day of the first calendar month following the date on which such
Default or Event of Default is waived or cured.
(b) If any payment on any Loan becomes due and payable on a day other
than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day (except as set forth in the definition of LIBOR Period)
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and
interest shall be made by Agent on the basis of a 360-day year, in each case for
the actual number of days occurring in the period for which such interest and
Fees are payable. The Index Rate is a floating rate determined for each day.
Each determination by Agent of an interest rate and Fees hereunder shall be
final, binding and conclusive on Borrower, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing
under any of Sections 8.1(a), (h) or (i), at the election of Agent (or upon the
written request of Requisite Lenders), the interest rates applicable to the
Loans and the Letter of Credit Fees
-8-
shall be increased by two percentage points (2%) per annum above the rates of
interest or the rate of such Fees otherwise applicable hereunder ("Default
Rate"), and all outstanding Obligations shall bear interest at the Default Rate
applicable to such Obligations. Interest and Letter of Credit Fees at the
Default Rate shall accrue from the initial date of such Event of Default until
that Event of Default is cured or waived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2,
Borrower shall have the option to (i) request that any Revolving Credit Advance
be made as a LIBOR Loan, (ii) convert at any time all or any part of outstanding
Loans (other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans,
(iii) convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR
breakage costs in accordance with Section 1.13(b) if such conversion is made
prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue
all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan
upon the expiration of the applicable LIBOR Period and the succeeding LIBOR
Period of that continued Loan shall commence on the first day after the last day
of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or converted
into, a LIBOR Loan must be in a minimum amount of $1,000,000 and integral
multiples of $100,000 in excess of such amount. Any such election must be made
by 11:00 a.m. (Chicago time) on the 3rd Business Day prior to (1) the date of
any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of
each LIBOR Period with respect to any LIBOR Loans to be continued as such, or
(3) the date on which Borrower wishes to convert any Index Rate Loan to a LIBOR
Loan for a LIBOR Period designated by Borrower in such election. If no election
is received with respect to a LIBOR Loan by 11:00 a.m. (Chicago time) on the 3rd
Business Day prior to the end of the LIBOR Period with respect thereto (or if a
Default or an Event of Default has occurred and is continuing or if the
additional conditions precedent set forth in Section 2.2 shall not have been
satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end
of its LIBOR Period. Borrower must make such election by notice to Agent in
writing, by telecopy or overnight courier. In the case of any conversion or
continuation, such election must be made pursuant to a written notice (a "Notice
of Conversion/Continuation") in the form of Exhibit 1.5(e). No Loan may be made
as or converted into a LIBOR Loan until the earlier of (i) 45 days after the
Closing Date or (ii) completion of primary syndication as determined by Agent.
(f) Notwithstanding anything to the contrary set forth in this
Section 1.5, if a court of competent jurisdiction determines in a final order
that the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "Maximum Lawful Rate"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder shall
be equal to the Maximum Lawful Rate; provided, however, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Closing Date as otherwise provided in this
Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
-9-
interest and in the manner provided in Sections 1.5(a) through (e), unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this Section 1.5(f), a court of competent
jurisdiction shall finally determine that a Lender has received interest
hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess in the order specified
in Section 1.11 and thereafter shall refund any excess to Borrower or as a court
of competent jurisdiction may otherwise order.
1.6. Eligible Accounts.
-----------------
All of the Accounts owned by Borrower and its Subsidiaries and
reflected in the most recent Borrowing Base Certificate delivered by Borrower to
Agent shall be "Eligible Accounts" for purposes of this Agreement, except any
Account to which any of the exclusionary criteria set forth below applies. Agent
shall have the right to (i) establish, modify or eliminate Reserves against
Eligible Accounts from time to time and (ii) adjust from time to time any of the
criteria set forth below, establish new criteria and adjust advance rates with
respect to Eligible Accounts, in each case on not less than 30 days prior
written notice to Borrower in the event that any audit of Accounts conducted by
or at the request of Agent is, in the commercially reasonable judgment of Agent,
materially and adversely different from historical performance. Any exercise of
rights by Agent pursuant to the immediately preceding sentence shall be subject
to the approval of Supermajority Lenders in the case of adjustments, new
criteria, changes in advance rates or the elimination of Reserves which have the
effect of making more credit available. Eligible Accounts shall not include any
Account of Borrower or any of its Subsidiaries:
(a) that does not arise from the sale or rental of goods or the
performance of services by Borrower or any of its Subsidiaries in the ordinary
course of its business;
(b) (i) upon which Borrower's or any Subsidiary's right to receive
payment is not absolute or is contingent upon the fulfillment of any condition
whatsoever or (ii) as to which Borrower or any Subsidiary is not legally able to
bring suit or otherwise enforce its remedies against the Account Debtor through
judicial process or (iii) to the extent that both (x) the Account represents a
progress billing consisting of an invoice for goods sold or used or services
rendered pursuant to a contract under which the Account Debtor's obligation to
pay that invoice is subject to Borrower's or any Subsidiary's completion of
further performance under such contract or is subject to the equitable lien of a
surety bond issuer and (y) the aggregate face amount of all Accounts described
in this clause (iii) exceeds $500,000;
-10-
(c) to the extent that any defense, counterclaim, setoff or dispute
has been asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered to the applicable Account Debtor;
(e) with respect to which an invoice, reasonably acceptable to Agent
in form and substance, has not been sent to the applicable Account Debtor;
(f) that (i) is not owned by Borrower or any Subsidiary or (ii) is
subject to any right, claim, security interest or other interest of any other
Person, other than Liens in favor of Agent, on behalf of itself and Lenders;
(g) that arises from a sale or rental to any director, officer, other
employee or Affiliate of any Credit Party, or to any entity that has any common
officer or director with any Credit Party (it being understood and agreed that
sales to any portfolio companies of X.X. Childs and Halifax shall not be
excluded from the category of Eligible Accounts solely by operation of this
clause (g));
(h) to the extent that both (x) the Account is the obligation of an
Account Debtor that is the United States government, or any department, agency
or instrumentality thereof, unless Agent, in its sole discretion, has agreed to
the contrary in writing and Borrower or a Subsidiary, if necessary or desirable,
has complied with respect to such obligation with the Federal Assignment of
Claims Act of 1940, and (y) the aggregate face amount of all Accounts described
in this clause (h) exceed $1,000,000;
(i) that is the obligation of an Account Debtor located in a foreign
country other than Canada unless payment thereof is assured by a letter of
credit assigned and delivered to Agent, reasonably satisfactory to Agent as to
form, amount and issuer;
(j) to the extent Borrower or any Subsidiary is liable for goods sold
or services rendered by the applicable Account Debtor to Borrower or any
Subsidiary but only to the extent of the potential offset;
(k) that arises with respect to goods that are delivered on a
xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale
or other terms by reason of which the payment by the Account Debtor is or may be
conditional;
(l) that is in default, as established upon the occurrence of any of
the following:
(i) the Account is not paid within 90 days following its original
invoice date;
-11-
(ii) the Account Debtor obligated upon such Account suspends
business, makes a general assignment for the benefit of creditors or fails to
pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other federal, state
or foreign (including any provincial) receivership, insolvency relief or other
law or laws for the relief of debtors;
(m) that is the obligation of an Account Debtor if fifty percent
(50%) or more of the Dollar amount of all Accounts owing by that Account Debtor
are ineligible under the other criteria set forth in this Section 1.6;
(n) as to which Agent's Lien thereon, on behalf of itself and
Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties in the Loan
Documents are untrue;
(p) to the extent such Account is evidenced by a judgment, Instrument
or Chattel Paper;
(q) to the extent that such Account, together with all other Accounts
owing by such Account Debtor and its Affiliates as of any date of determination
exceed ten percent (10%) of all Eligible Accounts; or
(r) that is otherwise unacceptable to Agent in its reasonable credit
judgment.
1.7. Eligible Rental Equipment, Eligible Wholesale Disposables and
-------------------------------------------------------------
Eligible Equipment Disposables.
------------------------------
All of the Rental Equipment, Wholesale Disposables and Equipment
Disposables owned by Borrower or any of its Subsidiaries and reflected in the
most recent Borrowing Base Certificate delivered by Borrower to Agent shall be
"Eligible Rental Equipment", "Eligible Wholesale Disposables" and "Eligible
Equipment Disposables" for purposes of this Agreement, respectively, except any
Inventory or Equipment (as applicable) to which any of the exclusionary criteria
set forth below applies. Agent shall have the right to (i) establish, modify or
eliminate Reserves against Eligible Rental Equipment, Eligible Wholesale
Disposables and Eligible Equipment Disposables from time to time, and (ii)
adjust from time to time any of the criteria set forth below, establish new
criteria and adjust advance rates with respect to Eligible Rental Equipment,
Eligible Wholesale Disposables and Eligible Equipment Disposables, in each case
on not less then 30 days prior written notice to Borrower in the event that any
audit of Borrower's or any of its Subsidiaries' Rental Equipment, Wholesale
Disposables and/or Equipment Disposables is, in the commercially reasonable
judgment of Agent, materially and adversely different from historical
performance. Any exercise of rights by Agent pursuant to the immediately
preceding
-12-
sentence shall be subject to the approval of (i) Supermajority Lenders in the
case of adjustments, new criteria, changes in advance rates or the elimination
of Reserves which have the effect of making more credit available and (ii) all
Lenders in the case of adjustments, new criteria, changes in advance rates or
the elimination of Reserves, the effect of which is to make credit available to
Borrower in respect of Rental Equipment, Wholesale Disposables and Equipment
Disposables in excess of eighty-five percent (85%) of the orderly liquidation
value of such assets as reflected in the audit of such assets most recently
conducted by or at the request of Agent. Eligible Rental Equipment, Eligible
Wholesale Disposables and Eligible Equipment Disposables shall not include any
Inventory or Equipment of Borrower or any of its Subsidiaries that:
(a) is not owned by Borrower or a Subsidiary free and clear of all
Liens and rights of any other Person (including the rights of a purchaser that
has made progress payments and the rights of a surety that has issued a bond to
assure Borrower's or any Subsidiary's performance with respect to any Inventory,
but excluding the rights of any customer under a customer contract entered into
by Borrower in the ordinary course of business and consistent with past
practices), except the Liens in favor of Agent, on behalf of itself and Lenders,
and Permitted Encumbrances in favor of landlords and bailees to the extent
permitted in Section 5.9 hereof (subject to Reserves established by Agent in
accordance with Section 5.9 hereof);
(b) (i) is stored at a leased location, unless (x) a reasonably
satisfactory landlord waiver has been delivered to Agent, (y) Reserves
reasonably satisfactory to Agent have been established with respect thereto or
(z) Borrower shall have complied with the provisions of Section 5.9 with respect
to the delivery of landlord agreements or (ii) is stored with a bailee or
warehouseman unless a reasonably satisfactory, acknowledged bailee letter has
been received by Agent and Reserves reasonably satisfactory to Agent have been
established with respect thereto;
(c) is placed on consignment;
(d) is covered by a negotiable document of title, unless such
document has been delivered to Agent with all necessary endorsements, free and
clear of all Liens except those in favor of Agent and Lenders;
(e) is unrentable, obsolete, or slow-moving;
(f) consists of display items or packing or shipping materials,
manufacturing supplies or work-in-process Inventory;
(g) is not of a type held for sale or rent in the ordinary course of
Borrower's or any Subsidiary's business;
(h) is not subject to a first priority lien in favor of Agent on
behalf of itself and Lenders, subject to Permitted Encumbrances;
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(i) breaches any of the representations or warranties pertaining to
Inventory set forth in the Loan Documents;
(j) consists of Hazardous Materials;
(k) is not covered by casualty insurance reasonably acceptable to
Agent; or
(l) is otherwise unacceptable to Agent in its reasonable credit
judgment.
1.8. Cash Management Systems.
-----------------------
On or prior to the Closing Date, Borrower will establish and will
maintain until the Termination Date, the cash management systems described in
Annex C (the "Cash Management Systems").
1.9. Fees.
----
(a) Borrower shall pay to GE Capital, individually, the Fees
specified in that certain fee letter dated as of September 19, 2003 between
Borrower and GE Capital (the "GE Capital Fee Letter"), at the times specified
for payment therein.
(b) As additional compensation for the Lenders, Borrower shall pay to
Agent, for the ratable benefit of Lenders, in arrears, on the first Business Day
of each month prior to the Commitment Termination Date and on the Commitment
Termination Date, a Fee for Borrower's non-use of available funds in an amount
equal to three-fourths of one percent (0.75%) (the "Applicable ULF Margin") per
annum (calculated on the basis of a 360 day year for actual days elapsed)
multiplied by the difference between (x) the Maximum Amount (as it may be
reduced from time to time) and (y) the average for the period of the daily
closing balances of the aggregate Revolving Loan and the Swing Line Loan
outstanding during the period for which such Fee is due; provided, that if the
average daily balance of the Revolving Loans and Swing Line Loans in any month
equals or exceeds fifty percent (50%) of the Maximum Amount during such month,
the Applicable ULF Margin for such month shall be one-half of one percent
(0.50%).
(c) Borrower shall pay to Agent, for the ratable benefit of Lenders,
the Letter of Credit Fee as provided in Annex B.
1.10. Receipt of Payments.
-------------------
Borrower shall make each payment under this Agreement not later than
2:00 p.m. (New York time) on the day when due in immediately available funds in
Dollars to the Collection Account. For purposes of computing interest and Fees
and determining Borrowing Availability as of any date, all payments shall be
deemed received on the Business Day on which immediately available funds
therefor are received in the Collection Account prior to 2:00 p.m. New York
time. Payments received after 2:00 p.m. New York time on any
-14-
Business Day or on a day that is not a Business Day shall be deemed to have been
received on the following Business Day.
1.11. Application and Allocation of Payments.
--------------------------------------
(a) So long as no Default or Event of Default has occurred and is
continuing, (i) payments consisting of proceeds of Accounts received in the
ordinary course of business shall be applied, first, to the Swing Line Loan and,
second, the Revolving Loan; (ii) payments matching specific scheduled payments
then due shall be applied to those scheduled payments; (iii) voluntary
prepayments shall be applied as determined by Borrower, subject to the
provisions of Section 1.3(a); and (iv) mandatory prepayments shall be applied as
set forth in Sections 1.3(c). All payments and prepayments applied to a
particular Loan shall be applied ratably to the portion thereof held by each
Lender as determined by its Pro Rata Share. As to any other payment, and as to
all payments made when a Default or Event of Default has occurred and is
continuing or following the Commitment Termination Date, Borrower hereby
irrevocably waives the right to direct the application of any and all payments
received from or on behalf of Borrower, and Borrower hereby irrevocably agrees
that Agent shall have the continuing exclusive right to apply any and all such
payments against the Obligations as Agent may deem advisable notwithstanding any
previous entry by Agent in the Loan Account or any other books and records. In
the absence of a specific determination by Agent with respect thereto (with the
concurrence of Requisite Lenders), payments shall be applied to amounts then due
and payable in the following order: (1) to Fees and Agent's expenses
reimbursable hereunder; (2) to interest on the Swing Line Loan; (3) to principal
payments on the Swing Line Loan; (4) to interest on the other Loans, ratably in
proportion to the interest accrued as to each Loan; (5) to principal payments on
the other Loans and to provide cash collateral for Letter of Credit Obligations
in the manner described in Annex B, ratably to the aggregate, combined principal
balance of the other Loans and outstanding Letter of Credit Obligations; and (6)
to all other Obligations, including expenses of Lenders to the extent
reimbursable under Section 11.3.
(b) Agent is authorized to, and at its sole election may, upon
written notice to Borrower, charge to the Revolving Loan balance on behalf of
Borrower and cause to be paid all Fees, expenses, Charges, costs (including
insurance premiums in accordance with Section 5.4(a)) and interest and
principal, other than principal of the Revolving Loan, owing by Borrower under
this Agreement or any of the other Loan Documents if and to the extent Borrower
fails to pay promptly any such amounts as and when due, even if the amount of
such charges would exceed Borrowing Availability at such time or would cause the
balance of the Revolving Loan and the Swing Line Loan to Borrower to exceed the
Borrowing Base after giving effect to such charges. At Agent's option and to the
extent permitted by law, any charges so made shall constitute part of the
Revolving Loan hereunder.
1.12. Loan Account and Accounting.
---------------------------
Agent shall maintain a loan account (the "Loan Account") on its books
to record: all Advances, all payments made by Borrower, and all other debits and
credits as
-15-
provided in this Agreement with respect to the Loans or any other
Obligations. All entries in the Loan Account shall be made in accordance with
Agent's customary accounting practices as in effect from time to time. The
balance in the Loan Account, as recorded on Agent's most recent printout or
other written statement, shall, absent manifest error, be presumptive evidence
of the amounts due and owing to Agent and Lenders by Borrower; provided, that
any failure to so record or any error in so recording shall not limit or
otherwise affect Borrower's duty to pay the Obligations. Agent shall render to
Borrower a monthly accounting of transactions with respect to the Loans setting
forth the balance of the Loan Account for the immediately preceding month.
Unless Borrower notifies Agent in writing of any objection to any such
accounting (specifically describing the basis for such objection), within 30
days after the date thereof, each and every such accounting shall (absent
manifest error) be deemed final, binding and conclusive on Borrower in all
respects as to all matters reflected therein. Only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower.
Notwithstanding any provision herein contained to the contrary, any Lender may
elect (which election may be revoked) to dispense with the issuance of Notes to
that Lender and may rely on the Loan Account as evidence of the amount of
Obligations from time to time owing to it.
1.13. Indemnity.
---------
a) Each Credit Party that is a signatory hereto shall jointly and
severally indemnify and hold harmless each of Agent, Lenders and their
respective Affiliates, and each such Person's respective officers, directors,
employees, attorneys, agents and representatives (each, an "Indemnified
Person"), from and against any and all suits, actions, proceedings, claims,
damages, losses, liabilities and expenses (including reasonable attorneys' fees
and disbursements and other costs of investigation or defense, including those
incurred upon any appeal) that may be instituted or asserted against or incurred
by any such Indemnified Person as the result of credit having been extended,
suspended or terminated under this Agreement and the other Loan Documents and
the administration of such credit, and in connection with or arising out of the
transactions contemplated hereunder and thereunder and any actions or failures
to act in connection therewith, including any and all Environmental Liabilities
and legal costs and expenses arising out of or incurred in connection with
disputes between or among any parties to any of the Loan Documents
(collectively, "Indemnified Liabilities"); provided, that no such Credit Party
shall be liable for any indemnification to an Indemnified Person to the extent
that any such suit, action, proceeding, claim, damage, loss, liability or
expense results from that Indemnified Person's gross negligence or willful
misconduct. Without limitation of the rights to indemnification specified
herein, each Indemnified Person hereby agrees to provide Borrower with
commercially reasonable notice of (i) any suit, action, proceeding, claim,
damage, loss, liability or expense which, in the determination of such
Indemnified Person, could reasonably be likely to result in a claim or demand
for indemnification in accordance with the provisions of this Section 1.13(a) by
such Indemnified Person and (ii) any settlement or judicial or administrative
determination of any matter described in the preceding clause (i). NO
INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN
DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON
-16-
OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS
A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN
DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR
THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the terms
provided herein, if (i) any LIBOR Loans are repaid in whole or in part prior to
the last day of any applicable LIBOR Period (whether that repayment is made
pursuant to any provision of this Agreement or any other Loan Document or occurs
as a result of acceleration, by operation of law or otherwise); (ii) Borrower
shall default in payment when due of the principal amount of or interest on any
LIBOR Loan; (iii) Borrower shall refuse to accept any borrowing of, or shall
request a termination of, any borrowing of, conversion into or continuation of,
LIBOR Loans after Borrower has given notice requesting the same in accordance
herewith; or (iv) Borrower shall fail to make any prepayment of a LIBOR Loan
after Borrower has given a notice thereof in accordance herewith, then Borrower
shall indemnify and hold harmless each Lender from and against all losses, costs
and expenses resulting from or arising from any of the foregoing. Such
indemnification shall include any loss (including loss of margin) or expense
arising from the reemployment of funds obtained by it or from fees payable to
terminate deposits from which such funds were obtained. For the purpose of
calculating amounts payable to a Lender under this subsection, each Lender shall
be deemed to have actually funded its relevant LIBOR Loan through the purchase
of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount
of that LIBOR Loan and having a maturity comparable to the relevant LIBOR
Period; provided, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder. As promptly as practicable under the
circumstances, each Lender shall provide Borrower with its written calculation
of all amounts payable pursuant to this Section 1.13(b), and such calculation
shall be binding on the parties hereto unless Borrower shall object in writing
within 10 Business Days of receipt thereof, specifying the basis for such
objection in detail.
1.14. Access.
------
Each Credit Party that is a party hereto shall, during normal business
hours, from time to time upon 5 Business Days' prior notice as frequently as
Agent reasonably determines to be appropriate: (a) provide Agent and any of its
officers, employees and agents access to its properties, facilities, advisors
and employees (including officers) of each Credit Party and to the Collateral,
(b) permit Agent, and any of its officers, employees and agents, to inspect,
audit and make extracts from any Credit Party's books and records, excluding any
such records that are subject to patient confidentiality requirements, and (c)
permit Agent, and its officers, employees and agents, to inspect, review,
evaluate and make test verifications and counts of the Accounts, Inventory,
Equipment and other Collateral of any
-17-
Credit Party; provided, that activities described in this sentence
(collectively, the "Audits and Inspections") shall be limited to no more than
two per calendar year absent the occurrence of an Event of Default; provided,
further, that so long as no Event of Default has then occurred, the second Audit
and Inspection conducted in any calendar year shall be at Agent's expense. If an
Event of Default has occurred and is continuing or if access is necessary to
preserve or protect the Collateral as determined by Agent, each such Credit
Party shall provide such access to Agent and to each Lender at all times and
without advance notice. Furthermore, so long as any Event of Default has
occurred and is continuing, Borrower shall provide Agent and each Lender with
access to its suppliers and customers. Each Credit Party shall make available to
Agent and its counsel, as quickly as is possible under the circumstances,
originals or copies of all books and records that Agent may reasonably request.
Each Credit Party shall deliver any document or instrument necessary for Agent,
as it may from time to time reasonably request, to obtain records from any
service bureau or other Person that maintains records for such Credit Party, and
shall maintain duplicate records or supporting documentation on media, including
computer tapes and discs owned by such Credit Party. Agent will give Lenders at
least 5 days' prior written notice of regularly scheduled audits.
Representatives of other Lenders may accompany Agent's representatives on
regularly scheduled audits at no charge to Borrower.
1.15. Taxes.
-----
(a) Any and all payments by Borrower hereunder (including any
payments made pursuant to Section 12) or under the Notes shall be made, in
accordance with this Section 1.15, free and clear of and without deduction for
any and all present or future Taxes. If Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder (including any
sum payable pursuant to Section 12) or under the Notes, (i) the sum payable
shall be increased as much as shall be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 1.15) Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such deductions been made, (ii)
Borrower shall make such deductions, and (iii) Borrower shall pay the full
amount deducted to the relevant taxing or other authority in accordance with
applicable law. Within 30 days after the date of any payment of Taxes, Borrower
shall furnish to Agent or the applicable Lender the original or a certified copy
of a receipt evidencing payment thereof. Agent and Lenders shall not be
obligated to return or refund any amounts received pursuant to this Section.
(b) Each Credit Party that is a signatory hereto shall jointly and
severally indemnify and, within 10 days of demand therefor, pay Agent and each
Lender for the full amount of Taxes (including any Taxes imposed by any
jurisdiction on amounts payable under this Section 1.15) paid by Agent or such
Lender, as appropriate, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction outside
the United States (a "Foreign Lender") as to which payments to be made under
this Agreement or
-18-
under the Notes are exempt from United States withholding tax under an
applicable statute or tax treaty shall provide to Borrower and Agent a properly
completed and executed IRS Form W-8ECI or Form W-8BEN or other applicable form,
certificate or document prescribed by the IRS or the United States certifying as
to such Foreign Lender's entitlement to such exemption (a "Certificate of
Exemption"). Any foreign Person that seeks to become a Lender under this
Agreement shall provide a Certificate of Exemption to Borrower and Agent prior
to becoming a Lender hereunder. No foreign Person may become a Lender hereunder
if such Person fails to deliver a Certificate of Exemption in advance of
becoming a Lender.
1.16. Capital Adequacy; Increased Costs; Illegality.
---------------------------------------------
(a) If any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law), in each case, adopted after the Closing Date, from any
central bank or other Governmental Authority increases or would have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender and thereby reducing the rate of return on such
Lender's capital as a consequence of its obligations hereunder, then Borrower
shall from time to time upon written demand by such Lender (with a copy of such
demand to Agent) pay to Agent, for the account of such Lender, additional
amounts sufficient to compensate such Lender for such reduction; provided, that
Borrower shall not be obligated to pay any such amount or amounts which are
attributable to any period of time occurring more than 120 days prior to the
date of receipt by Borrower of such written demand; provided, further, that such
Lender shall disclose to Borrower the calculations of the amount necessary to
compensate for any shortfall in the rate of return. A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by such Lender to Borrower and to Agent shall, absent manifest error,
be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any
law or regulation (or any change in the interpretation thereof) or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any Loan, then
Borrower shall from time to time, upon written demand by such Lender (with a
copy of such demand to Agent), pay to Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost;
provided, that Borrower shall not be obligated to pay any such amount or amounts
which are attributable to any period of time occurring more than 120 days prior
to the date of receipt by Borrower of such written demand; provided, further,
that such Lender shall disclose to Borrower the calculations of the amount
necessary to compensate for such increased cost. A certificate as to the amount
of such increased cost, submitted to Borrower and to Agent by such Lender, shall
be conclusive and binding on Borrower for all purposes, absent manifest error.
Each Lender agrees that, as promptly as practicable after it becomes aware of
any circumstances
-19-
referred to above which would result in any such increased cost, the affected
Lender shall, to the extent not inconsistent with such Lender's internal
policies of general application, use reasonable commercial efforts to minimize
costs and expenses incurred by it and payable to it by Borrower pursuant to this
Section 1.16(b).
(c) Notwithstanding anything to the contrary contained herein, if the
introduction of or any change in any law or regulation (or any change in the
interpretation thereof) shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender to agree
to make or to make or to continue to fund or maintain any LIBOR Loan, then,
unless that Lender is able to make or to continue to fund or to maintain such
LIBOR Loan at another branch or office of that Lender without, in that Lender's
opinion, adversely affecting it or its Loans or the income obtained therefrom,
on notice thereof and demand therefor by such Lender to Borrower through Agent,
(i) the obligation of such Lender to agree to make or to make or to continue to
fund or maintain LIBOR Loans shall terminate and (ii) Borrower shall forthwith
prepay in full all outstanding LIBOR Loans owing to such Lender, together with
interest accrued thereon, unless Borrower, within 5 Business Days after the
delivery of such notice and demand, converts all LIBOR Loans into Index Rate
Loans.
(d) Within 15 days after receipt by Borrower of written notice and
demand from any Lender (an "Affected Lender") for payment of additional amounts
or increased costs as provided in Sections 1.15(a), 1.16(a) or 1.16(b), Borrower
may, at its option, notify Agent and such Affected Lender of its intention to
replace the Affected Lender. So long as no Default or Event of Default has
occurred and is continuing, Borrower, with the consent of Agent, may obtain, at
Borrower's expense, a replacement Lender ("Replacement Lender") for the Affected
Lender, which Replacement Lender must be reasonably satisfactory to Agent. If
Borrower obtains a Replacement Lender within 90 days following notice of their
intention to do so, the Affected Lender must sell and assign its Loans and
Commitments to such Replacement Lender for an amount equal to the principal
balance of all Loans held by the Affected Lender and all accrued interest and
Fees with respect thereto through the date of such sale; provided, that Borrower
shall have reimbursed such Affected Lender for the additional amounts or
increased costs that it is entitled to receive under this Agreement through the
date of such sale and assignment. Notwithstanding the foregoing, Borrower shall
not have the right to obtain a Replacement Lender if the Affected Lender
rescinds its demand for increased costs or additional amounts within 15 days
following its receipt of Borrower's notice of intention to replace such Affected
Lender. Furthermore, if Borrower gives a notice of intention to replace and does
not so replace such Affected Lender within 90 days thereafter, Borrower's rights
under this Section 1.16(d) shall terminate and Borrower shall promptly pay all
increased costs or additional amounts demanded by such Affected Lender pursuant
to Sections 1.15(a), 1.16(a) and 1.16(b).
-20-
1.17. Single Loan.
-----------
All Loans to Borrower and all of the other Obligations arising under
this Agreement and the other Loan Documents shall constitute one general
obligation of Borrower secured, until the Termination Date, by all of the
Collateral.
2. CONDITIONS PRECEDENT
2.1. Conditions to the Initial Loans.
-------------------------------
No Lender shall be obligated to make any Loan or incur any Letter of
Credit Obligations on the Closing Date, or to take, fulfill, or perform any
other action hereunder, until the following conditions have been satisfied or
provided for in a manner satisfactory to Agent, or waived in writing by Agent
and Lenders:
(a) Credit Agreement; Loan Documents. This Agreement or counterparts
hereof shall have been duly executed by, and delivered to, Borrower, Agent and
Lenders; and Agent shall have received such documents, instruments, agreements
and legal opinions as Agent shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Loan Documents,
including all those listed in the Closing Checklist attached hereto as Annex D,
each in form and substance reasonably satisfactory to Agent.
(b) Repayment of Prior Lender Obligations; Satisfaction of
Outstanding L/Cs. (i) Agent shall have received fully executed originals of pay
-off letters reasonably satisfactory to Agent confirming that all of the Prior
Lender Obligations will be repaid in full from the proceeds of the initial
Revolving Credit Advance and all Liens upon any of the property of Borrower or
any of its Subsidiaries in favor of Prior Lender shall be terminated by Prior
Lender immediately upon such payment; and (ii) all letters of credit issued or
guaranteed by Prior Lender shall have been cash collateralized, supported by a
guaranty of Agent or supported by a Letter of Credit issued pursuant to Annex B,
as mutually agreed upon by Agent, Borrower and Prior Lender.
(c) Approvals. Agent shall have received (i) satisfactory evidence
that the Credit Parties have obtained all required consents and approvals of all
Persons including all requisite Governmental Authorities (but excluding consents
and approvals of the Persons identified in Part 3.2(c) of the agreement
identified in clause (i) of the defined term "Recapitalization Agreements", to
the extent such Persons are identified as having consent and/or approval rights
in such Part), to the execution, delivery and performance of this Agreement and
the other Loan Documents and the consummation of the Related Transactions or
(ii) an officer's certificate in form and substance reasonably satisfactory to
Agent affirming that no such consents or approvals are required.
(d) Opening Availability. The Eligible Accounts, Eligible Rental
Equipment, Eligible Wholesale Disposables and Eligible Equipment Disposables
supporting the initial Revolving Credit Advance and the initial Letter of Credit
Obligations incurred and the amount of the Reserves to be established on the
Closing Date shall be sufficient, as
-21-
determined by Agent, to provide Borrower with Borrowing Availability, after
giving effect to the initial Revolving Credit Advance, the incurrence of any
initial Letter of Credit Obligations and the consummation of the Related
Transactions to be consummated on the Closing Date (on a pro forma basis, with
trade payables being paid currently, and expenses and liabilities being paid in
the ordinary course of business and without acceleration of sales) of at least
$25,000,000.
(e) Payment of Fees. Borrower shall have paid the Fees required to be
paid on the Closing Date in the respective amounts specified in Section 1.9
(including the Fees specified in the GE Capital Fee Letter), and shall have
reimbursed Agent for all fees, costs and expenses of closing presented as of the
Closing Date.
(f) Capital Structure; Other Indebtedness. The capital structure of
each Credit Party and the terms and conditions of all Indebtedness of each
Credit Party shall be acceptable to Agent in its sole discretion (it being
understood that the execution and delivery of this Agreement by Agent shall
conclusively evidence Agent's acceptance thereof).
(g) Due Diligence. Agent shall have completed its business and legal
due diligence, including a roll forward of its previous Collateral audit, with
results reasonably satisfactory to Agent (it being understood that the execution
and delivery of this Agreement by Agent shall conclusively evidence Agent's
completion of, and satisfaction with, such due diligence).
(h) Consummation of Related Transactions. Agent shall have received
fully executed copies of the Recapitalization Agreements and each of the other
Related Transactions Documents, each of which shall be in form and substance
reasonably satisfactory to Agent and its counsel. The Recapitalization and the
other Related Transactions shall have been consummated in accordance with the
terms of the Recapitalization Agreements and the other Related Transactions
Documents.
2.2. Further Conditions to Each Loan.
-------------------------------
Except as otherwise expressly provided herein, no Lender shall be
obligated to fund any Advance, convert or continue any Loan as a LIBOR Loan or
incur any Letter of Credit Obligation, if, as of the date thereof:
(a) any representation or warranty by any Credit Party contained
herein or in any other Loan Document is untrue or incorrect in any material
respect as of such date, except to the extent that such representation or
warranty expressly relates to an earlier date and except for changes therein
expressly permitted or consented to or expressly contemplated by this Agreement
and Agent or Requisite Lenders have determined not to make such Advance, convert
or continue any Loan as LIBOR Loan or incur such Letter of Credit Obligation as
a result of the fact that such warranty or representation is untrue or incorrect
in any material respect;
-22-
(b) any event or circumstance having a Material Adverse Effect has
occurred since the date hereof as determined by the Requisite Lenders and Agent
or Requisite Lenders have determined not to make such Advance, convert or
continue any Loan as a LIBOR Loan or incur such Letter of Credit Obligation as a
result of the fact that such event or circumstance has occurred;
(c) any Default or Event of Default has occurred and is continuing or
would result after giving effect to any Advance (or the incurrence of any Letter
of Credit Obligation), and Agent or Requisite Lenders shall have determined not
to make any Advance, convert or continue any Loan as a LIBOR Loan or incur any
Letter of Credit Obligation as a result of that Default or Event of Default; or
(d) after giving effect to any Advance (or the incurrence of any
Letter of Credit Obligations), the outstanding principal amount of the aggregate
Revolving Loan would exceed the lesser of the Borrowing Base and the Maximum
Amount, in each case, less the then outstanding principal amount of the Swing
Line Loan.
The request and acceptance by Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan shall be deemed to constitute, as of the
date thereof, (i) a representation and warranty by Borrower that the conditions
in this Section 2.2 (other that any such conditions that are subject to Agent's
and/or Lenders' sole determination or control) have been satisfied and (ii) a
reaffirmation by Borrower of the granting and continuance of Agent's Liens, on
behalf of itself and Lenders, pursuant to the Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of Credit
Obligations, the Credit Parties executing this Agreement, jointly and severally,
make the following representations and warranties to Agent and each Lender with
respect to all Credit Parties, each and all of which shall survive the execution
and delivery of this Agreement.
3.1. Corporate Existence; Compliance with Law.
----------------------------------------
Each Credit Party (a) is a corporation, limited liability company or
limited partnership duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or organization set
forth in Disclosure Schedule 3.1; (b) is duly qualified to conduct business and
is in good standing in each other jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect; (c) has the requisite power and authority and the legal
right to own, pledge, mortgage or otherwise encumber and operate its properties,
to lease the property it operates under lease and to conduct its business as
now, heretofore and proposed to be conducted; (d) subject to specific
representations regarding Environmental Laws, has all material licenses,
permits, consents or approvals from or by, and has made all material filings
with, and has given all material notices to, all Governmental Authorities having
-23-
jurisdiction, to the extent required for the ownership, operation and conduct of
its business; (e) is in compliance with its charter and bylaws or partnership or
operating agreement, as applicable; and (f) subject to specific representations
set forth herein regarding ERISA, Environmental Laws, healthcare, tax and other
laws, is in compliance with all applicable provisions of law, except where the
failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
3.2. Executive Offices, Collateral Locations, FEIN.
---------------------------------------------
As of the Closing Date, the current location of each Credit Party's
chief executive office and the warehouses and premises at which any Collateral
is located are set forth in Disclosure Schedule 3.2, and none of such locations
has changed within the twelve months preceding the Closing Date. In addition,
Disclosure Schedule 3.2 lists the federal employer identification number of each
Credit Party.
3.3. Corporate Power, Authorization, Enforceable Obligations.
-------------------------------------------------------
The execution, delivery and performance by each Credit Party of the
Loan Documents to which it is a party and the creation of all Liens provided for
therein: (a) are within such Person's power; (b) have been duly authorized by
all necessary corporate, limited liability company or limited partnership
action; (c) do not contravene any provision of such Person's charter, bylaws or
partnership or operating agreement as applicable; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any of its
property is bound; (f) do not result in the creation or imposition of any Lien
upon any of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and (g) do not
require the consent or approval of any Governmental Authority or any other
Person, except those referred to in Section 2.1(c), all of which will have been
duly obtained, made or complied with prior to the Closing Date. Each of the Loan
Documents shall be duly executed and delivered by each Credit Party that is a
party thereto and each such Loan Document shall constitute a legal, valid and
binding obligation of such Credit Party enforceable against it in accordance
with its terms, except as enforceability may be limited by (i) bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.4. Financial Statements and Projections.
------------------------------------
Except for the Projections, all Financial Statements concerning
Borrower and its Subsidiaries that are referred to below have been prepared in
accordance with GAAP consistently applied throughout the periods covered (except
as disclosed therein and except, with respect to unaudited Financial Statements,
for the absence of footnotes and normal year-
-24-
end audit adjustments) and present fairly in all material respects the financial
position of the Persons covered thereby as at the dates thereof and the results
of their operations and cash flows for the periods then ended.
(a) Financial Statements. The following Financial Statements attached
hereto as Disclosure Schedule 3.4(a) have been delivered on the date hereof:
(i) The audited balance sheet at December 31, 2002 and the
related statement of income and cash flows of Borrower for the Fiscal Year then
ended, certified by PriceWaterhouseCoopers LLC.
(ii) The unaudited balance sheet at August 31, 2003 and the
related statement of income and cash flows of Borrower for the eight calendar
months then ended.
(b) Pro Forma. The Pro Forma delivered on the date hereof and
attached hereto as Disclosure Schedule 3.4(b) was prepared by Borrower giving
pro forma effect to the Related Transactions, was based on the unaudited
balance sheet of Borrower dated August 31, 2003, and was prepared in accordance
with GAAP, with only such adjustments thereto as would be required in accordance
with GAAP.
(c) Projections. The Projections delivered on the date hereof and
attached hereto as Disclosure Schedule 3.4(c) have been prepared by Borrower in
light of the past operations of its business, and reflect projections for the
five year period beginning on the Closing Date on a year-by-year basis. The
Projections are based upon estimates and assumptions stated therein, all of
which Borrower believes to be reasonable and fair in light of current conditions
and current facts known to Borrower and, as of the Closing Date, reflect
Borrower's good faith and reasonable estimates of the future financial
performance of Borrower and of the other information projected therein for the
period set forth therein.
3.5. Material Adverse Effect.
-----------------------
Between December 31, 2002 and the Closing Date: (a) no Credit Party
has incurred any obligations, contingent or noncontingent liabilities,
liabilities for Charges, long-term leases or unusual forward or long-term
commitments that are not reflected in the Pro Forma and that, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, (b)
no contract, lease or other agreement or instrument has been entered into by any
Credit Party or has become binding upon any Credit Party's assets and no law or
regulation applicable to any Credit Party has been adopted that has had or could
reasonably be expected to have a Material Adverse Effect, and (c) no Credit
Party is in default and to the best of Borrower's knowledge no third party is in
default under any material contract, lease or other agreement or instrument,
that alone or in the aggregate could reasonably be expected to have a Material
Adverse Effect. Between December 31, 2002 and the Closing Date no event has
occurred, that alone or together with other events, could reasonably be expected
to have a Material Adverse Effect.
-25-
3.6. Ownership of Property; Liens.
----------------------------
As of the Closing Date, the real estate ("Real Estate") listed in
Disclosure Schedule 3.6 constitutes all of the real property owned, leased,
subleased, or used by any Credit Party. Each Credit Party owns good and
marketable fee simple title to all of its owned Real Estate, and valid and
marketable leasehold interests in all of its leased Real Estate, all as
described on Disclosure Schedule 3.6, and copies of all such leases or a summary
of terms thereof reasonably satisfactory to Agent have been delivered to Agent.
Disclosure Schedule 3.6 further describes any Real Estate with respect to which
any Credit Party is a lessor, sublessor or assignor as of the Closing Date. Each
Credit Party also has good and marketable title to, or valid leasehold interests
in, all of its personal property and assets. As of the Closing Date, none of the
properties and assets of any Credit Party are subject to any Liens other than
Permitted Encumbrances, and there are no facts, circumstances or conditions
known to any Credit Party that may result in any Liens (including Liens arising
under Environmental Laws) other than Permitted Encumbrances. Each Credit Party
has received all deeds, assignments, waivers, consents, nondisturbance and
attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect such Credit Party's right, title and interest in and to all
such Real Estate and other properties and assets. Disclosure Schedule 3.6 also
describes any purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate. As of the Closing Date, no
portion of any Credit Party's Real Estate has suffered any material damage by
fire or other casualty loss that has not heretofore been repaired and restored
in all material respects to its original condition or otherwise remedied. As of
the Closing Date, all material permits required to have been issued or
appropriate to enable the Real Estate to be lawfully occupied and used for
substantially all of the purposes for which it is currently occupied and used
have been lawfully issued and are in full force and effect.
3.7. Labor Matters.
-------------
As of the Closing Date (a) no strikes or other material labor disputes
against any Credit Party are pending or, to any Credit Party's knowledge,
threatened; (b) hours worked by and payment made to employees of each Credit
Party comply with the Fair Labor Standards Act and each other federal, state,
local or foreign law applicable to such matters; (c) all payments due from any
Credit Party for employee health and welfare insurance have been paid or accrued
as a liability on the books of such Credit Party; (d) except as set forth in
Disclosure Schedule 3.7, no Credit Party is a party to or bound by any
collective bargaining agreement, management agreement, consulting agreement,
employment agreement, bonus, restricted stock, stock option, or stock
appreciation plan or agreement or any similar plan, agreement or arrangement
(and true and complete copies of any agreements described on Disclosure Schedule
3.7 have been delivered to Agent); (e) there is no organizing activity involving
any Credit Party pending or, to any Credit Party's knowledge, threatened by any
labor union or group of employees; (f) there are no representation proceedings
pending or, to any Credit Party's knowledge, threatened with the National Labor
Relations Board, and no labor organization or group of employees of any Credit
Party has made a pending demand for
-26-
recognition; and (g) except as set forth in Disclosure Schedule 3.7, there are
no material complaints or charges against any Credit Party pending or, to the
knowledge of any Credit Party, threatened to be filed with any Governmental
Authority or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by any Credit
Party of any individual.
3.8. Ventures, Subsidiaries and Affiliates; Outstanding Stock and
------------------------------------------------------------
Indebtedness.
------------
Except as set forth in Disclosure Schedule 3.8, as of the Closing
Date, no Credit Party has any Subsidiaries, is engaged in any joint venture or
partnership with any other Person, or is an Affiliate of any other Person. As of
the Closing Date, all of the issued and outstanding Stock of each Credit Party
is owned by each of the Stockholders and in the amounts set forth in Disclosure
Schedule 3.8. Except as set forth in Disclosure Schedule 3.8, there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Credit Party may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries. All outstanding Indebtedness and
Guaranteed Indebtedness of each Credit Party as of the Closing Date (except for
the Obligations) in an outstanding principal or commitment amount in excess of
$200,000 is described in Section 6.3 (including Disclosure Schedule 6.3).
3.9. Government Regulation.
---------------------
No Credit Party is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940. No Credit Party is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any other federal or state statute that restricts or
limits its ability to incur Indebtedness or to perform its obligations
hereunder. The making of the Loans by Lenders to Borrower, the incurrence of the
Letter of Credit Obligations on behalf of Borrower, the application of the
proceeds thereof and repayment thereof and the consummation of the Related
Transactions will not violate any provision of any such statute or any rule,
regulation or order issued by the Securities and Exchange Commission.
3.10. Margin Regulations.
------------------
No Credit Party is engaged, nor will it engage, principally or as one
of its important activities, in the business of extending credit for the purpose
of "purchasing" or "carrying" any "margin stock" as such terms are defined in
Regulation U of the Federal Reserve Board as now and from time to time hereafter
in effect (such securities being referred to herein as "Margin Stock"). No
Credit Party owns any Margin Stock, and none of the proceeds of the Loans or
other extensions of credit under this Agreement will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock, for the
purpose of reducing or retiring any Indebtedness that was originally incurred to
purchase or
-27-
carry any Margin Stock or for any other purpose that might cause any of the
Loans or other extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulations T, U or X of the Federal
Reserve Board. No Credit Party will take or permit to be taken any action that
might cause any Loan Document to violate any regulation of the Federal Reserve
Board.
3.11. Taxes.
-----
All tax returns, reports and statements, including information
returns, required by any Governmental Authority to be filed by any Credit Party
have been filed with the appropriate Governmental Authority and all Charges have
been paid prior to the date on which any fine, penalty, interest or late charge
may be added thereto for nonpayment thereof (or any such fine, penalty,
interest, late charge or loss has been paid), excluding Charges or other amounts
being contested in accordance with Section 5.2(b). Proper and accurate amounts
have been withheld by each Credit Party from its respective employees for all
periods in material compliance with all applicable federal, state, local and
foreign laws and such withholdings have been timely paid to the respective
Governmental Authorities. Disclosure Schedule 3.11 sets forth as of the Closing
Date those taxable years for which any Credit Party's tax returns are currently
being audited by the IRS or any other applicable Governmental Authority, and any
assessments or threatened assessments in connection with such audit, or
otherwise currently outstanding. Except as described in Disclosure Schedule
3.11, no Credit Party has executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having the
effect of extending, the period for assessment or collection of any Charges.
None of the Credit Parties and their respective predecessors are liable for any
Charges: (a) under any agreement (including any tax sharing agreements) or (b)
to each Credit Party's knowledge, as a transferee. As of the Closing Date, no
Credit Party has agreed or been requested to make any adjustment under IRC
Section 481(a), by reason of a change in accounting method or otherwise, which
could reasonably be expected to have a Material Adverse Effect.
3.12. ERISA.
-----
(a) Disclosure Schedule 3.12 lists, in each case as of the Closing
Date, (i) all ERISA Affiliates and (ii) all Plans and separately identifies all
Pension Plans, including Title IV Plans, Multiemployer Plans, ESOPs and Welfare
Plans, including all Retiree Welfare Plans. Copies of all such listed Plans,
together with a copy of the latest IRS/DOL 5500-series form for each such Plan,
have been delivered to Agent. Except with respect to Multiemployer Plans, as of
the Closing Date each Qualified Plan has been determined by the IRS to qualify
under Section 401 of the IRC, the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would cause the loss of such qualification or
tax-exempt status. Each Plan is in material compliance with the applicable
provisions of ERISA and the IRC, including the timely filing of all reports
required under the IRC or ERISA, including the statement required by 29 CFR
Section 2520.104-23. Neither any Credit Party nor ERISA Affiliate has failed to
make any contribution or pay any amount due as required by either
-28-
Section 412 of the IRC or Section 302 of ERISA or the terms of any such Plan.
Neither any Credit Party nor ERISA Affiliate has engaged in a "prohibited
transaction," as defined in Section 406 of ERISA and Section 4975 of the IRC, in
connection with any Plan, that would subject any Credit Party to a material tax
on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of
the IRC.
(b) Except as set forth in Disclosure Schedule 3.12: (i) no Title IV
Plan has any Unfunded Pension Liability; (ii) no ERISA Event or event described
in Section 4062(e) of ERISA with respect to any Title IV Plan has occurred or is
reasonably expected to occur; (iii) there are no pending, or to the knowledge of
any Credit Party, threatened claims (other than claims for benefits in the
normal course), sanctions, actions or lawsuits, asserted or instituted against
any Plan or any Person as fiduciary or sponsor of any Plan; (iv) no Credit Party
or ERISA Affiliate has incurred or reasonably expects to incur any liability as
a result of a complete or partial withdrawal from a Multiemployer Plan; (v)
within the last five years no Title IV Plan of any Credit Party or ERISA
Affiliate has been terminated, whether or not in a "standard termination" as
that term is used in Section 4041(b)(1) of ERISA, nor has any Title IV Plan of
any Credit Party or any ERISA Affiliate (determined at any time within the last
five years) with Unfunded Pension Liabilities been transferred outside of the
"controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of any
Credit Party or ERISA Affiliate (determined at such time); (vi) except in the
case of any ESOP, Stock of all Credit Parties and their ERISA Affiliates makes
up, in the aggregate, no more than ten percent (10%) of fair market value of the
assets of any Plan measured on the basis of fair market value as of the latest
valuation date of any Plan; and (vii) no liability under any Title IV Plan has
been satisfied with the purchase of a contract from an insurance company that is
not rated AAA by the Standard & Poor's Corporation or an equivalent rating by
another nationally recognized rating agency.
3.13. No Litigation.
-------------
No action, claim, lawsuit, demand, investigation or proceeding is now
pending or, to the knowledge of any Credit Party, threatened against any Credit
Party, before any Governmental Authority or before any arbitrator or panel of
arbitrators (collectively, "Litigation"), (a) that challenges any Credit Party's
right or power to enter into or perform any of its obligations under the Loan
Documents to which it is a party, or the validity or enforceability of any Loan
Document or any action taken thereunder, or (b) that has a reasonable risk of
being determined adversely to any Credit Party and that, if so determined, could
be reasonably be expected to have a Material Adverse Effect. Except as set forth
on Disclosure Schedule 3.13, as of the Closing Date there is no Litigation
pending or, to any Credit Party's knowledge, threatened, that seeks damages in
excess of $1,000,000 or injunctive relief against, or alleges criminal
misconduct of, any Credit Party.
3.14. Brokers.
-------
Except as set forth on Disclosure Schedule 3.14, no broker or finder
brought about the obtaining, making or closing of the Loans or the Related
Transactions, and no
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Credit Party or Affiliate thereof has any obligation to any Person in respect of
any finder's or brokerage fees in connection therewith.
3.15. Intellectual Property.
---------------------
As of the Closing Date, each Credit Party owns or has rights to use
all Intellectual Property necessary to continue to conduct its business as now
or heretofore conducted by it or proposed to be conducted by it, and each
Patent, Trademark, Copyright and License is listed, together with application or
registration numbers, as applicable, in Disclosure Schedule 3.15. Each Credit
Party conducts its business and affairs without infringement of or interference
with any Intellectual Property of any other Person in any material respect.
Except as set forth in Disclosure Schedule 3.15, no Credit Party is aware of any
infringement claim by any other Person with respect to any Intellectual
Property, which infringement could reasonably be expected to have a Material
Adverse Effect.
3.16. Full Disclosure.
---------------
No information contained in this Agreement, any of the other Loan
Documents, any Projections, Financial Statements or Collateral Reports or other
written reports from time to time delivered hereunder or any written statement
furnished by or on behalf of any Credit Party to Agent or any Lender pursuant to
the terms of this Agreement contains or will contain any untrue statement of a
material fact or, when taken as a whole, omits or will omit to state a material
fact necessary to make the statements contained herein or therein not misleading
in light of the circumstances under which they were made. The Liens granted to
Agent, on behalf of itself and Lenders, pursuant to the Collateral Documents
will at all times be fully perfected first priority Liens in and to the
Collateral described therein, subject, as to priority, only to Permitted
Encumbrances.
3.17. Environmental Matters.
---------------------
(a) Except as set forth in Disclosure Schedule 3.17, as of the
Closing Date: (i) to the knowledge of Borrower, the Real Estate is free of
contamination from any Hazardous Material except for such contamination that
would not adversely impact the value or marketability of such Real Estate and
that would not result in Environmental Liabilities that could reasonably be
expected to exceed $500,000; (ii) no Credit Party has caused or suffered to
occur any Release of Hazardous Materials on, at, in, under, above, to, from or
about any of its Real Estate; (iii) the Credit Parties are and have been in
compliance with all Environmental Laws, except for such noncompliance that would
not result in Environmental Liabilities which could reasonably be expected to
exceed $500,000; (iv) the Credit Parties have obtained, and are in compliance
with, all Environmental Permits required by Environmental Laws for the
operations of their respective businesses as presently conducted or as proposed
to be conducted, except where the failure to so obtain or comply with such
Environmental Permits would not result in Environmental Liabilities that could
reasonably be expected to exceed $500,000, and all such Environmental Permits
are valid, uncontested and in good standing; (v) no Credit Party is involved in
operations or knows of any facts,
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circumstances or conditions, including any Releases of Hazardous Materials, that
are likely to result in any Environmental Liabilities of such Credit Party which
could reasonably be expected to exceed $500,000, and no Credit Party has
permitted any current or former tenant or occupant of the Real Estate to engage
in any such operations; (vi) there is no Litigation arising under or related to
any Environmental Laws, Environmental Permits or Hazardous Material that seeks
damages, penalties, fines, costs or expenses in excess of $500,000 or injunctive
relief against, or that alleges criminal misconduct by, any Credit Party; (vii)
as of the Closing Date, no notice has been received by any Credit Party
identifying it as a "potentially responsible party" or requesting information
under CERCLA or analogous state statutes, and to the knowledge of the Credit
Parties, there are no facts, circumstances or conditions that may result in any
Credit Party being identified as a "potentially responsible party" under CERCLA
or analogous state statutes; and (viii) as of the Closing Date, the Credit
Parties have provided to Agent copies of all existing environmental reports,
reviews and audits and all written information pertaining to actual or potential
Environmental Liabilities, in each case relating to any Credit Party.
(b) Each Credit Party hereby acknowledges and agrees that Agent (i)
is not now, and has not ever been, in control of any of the Real Estate or any
Credit Party's affairs, and (ii) does not have the capacity through the
provisions of the Loan Documents or otherwise to influence any Credit Party's
conduct with respect to the ownership, operation or management of any of its
Real Estate or compliance with Environmental Laws or Environmental Permits.
3.18. Insurance.
---------
Disclosure Schedule 3.18 lists all insurance policies of any nature
maintained, as of the Closing Date, for current occurrences by each Credit
Party, as well as a summary of the terms of each such policy.
3.19. Deposit and Disbursement Accounts.
---------------------------------
Disclosure Schedule 3.19 lists all banks and other financial
institutions at which any Credit Party maintains deposit or other accounts as of
the Closing Date, including any Disbursement Accounts, and such Schedule
correctly identifies the name, address and telephone number of each depository,
the name in which the account is held, a description of the purpose of the
account, and the complete account number therefor.
3.20. Government Contracts.
--------------------
Except as set forth in Disclosure Schedule 3.20, as of the Closing
Date, no Credit Party is a party to any contract or agreement with any
Governmental Authority and no Credit Party's Accounts are subject to the Federal
Assignment of Claims Act (31 U.S.C. Section 3727) or any similar state or local
law.
-31-
3.21. Customer and Trade Relations.
----------------------------
Except as set forth in Disclosure Schedule 3.21, as of the Closing
Date, there exists no actual or, to the knowledge of any Credit Party,
threatened termination or cancellation of, or any material adverse modification
or change in the business relationship of any Credit Party with any customer or
group of customers whose purchases during the preceding twelve months caused
them to be ranked among the ten largest customers of such Credit Party; or the
business relationship of any Credit Party with any supplier material to its
operations.
3.22. Agreements and Other Documents.
------------------------------
As of the Closing Date, each Credit Party has provided to Agent or its
counsel, on behalf of Lenders, accurate and complete copies of all of the
following agreements or documents to which it is subject and each of which is
listed in Disclosure Schedule 3.22: equipment supply and maintenance contracts,
giving rise to rental and/or service income in excess of $1,000,000 per annum;
supply agreements and purchase agreements not terminable by such Credit Party
within 60 days following written notice issued by such Credit Party and
involving transactions in excess of $1,000,000 per annum; leases of Equipment
having a remaining term of one year or longer and requiring aggregate rental and
other payments in excess of $1,000,000 per annum; licenses and permits held by
the Credit Parties, the absence of which could be reasonably likely to have a
Material Adverse Effect; instruments and documents evidencing any Indebtedness
or Guaranteed Indebtedness of such Credit Party and any Lien granted by such
Credit Party with respect thereto; and instruments and agreements evidencing the
issuance of any equity securities, warrants, rights or options to purchase
equity securities of such Credit Party.
3.23. Solvency.
--------
Both before and after giving effect to (a) the Loans and Letter of
Credit Obligations to be made or incurred on the Closing Date or such other date
as Loans and Letter of Credit Obligations requested hereunder are made or
incurred, (b) the disbursement of the proceeds of such Loans pursuant to the
instructions of Borrower; (c) the Recapitalization, the Refinancing and the
consummation of the other Related Transactions to be consummated on the Closing
Date; and (d) the payment and accrual of all transaction costs in connection
with the foregoing, each Credit Party is and will be Solvent.
3.24. Recapitalization Agreements.
---------------------------
As of the Closing Date, Borrower has delivered to Agent complete and
correct copies of the Recapitalization Agreements (including all schedules,
exhibits, amendments, supplements, modifications, assignments and all other
documents delivered pursuant thereto or in connection therewith). No Credit
Party and no other Person party thereto is in default in the performance or
compliance with any provisions thereof. Each of the Recapitalization Agreements
complies with, and, except for the completion of the repurchase by Borrower of
the Prior Senior Notes and the redemption by Borrower of certain equity
interests of
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Borrower, in each in accordance with the applicable Recapitalization Agreements,
the Recapitalization has been consummated in accordance with, all applicable
laws. Each of the Recapitalization Agreements is in full force and effect as of
the Closing Date and has not been terminated, rescinded or withdrawn. All
requisite approvals by Governmental Authorities having jurisdiction over any
Credit Party and other Persons referenced therein with respect to the
transactions contemplated by the Recapitalization Agreements have been obtained,
and no such approvals impose any conditions to the consummation of the
transactions contemplated by the Recapitalization Agreements or to the conduct
by any Credit Party of its business thereafter. To the best of each Credit
Party's knowledge, none of the representations or warranties in any of the
Recapitalization Agreements made by any Person not a Credit Party contains any
untrue statement of a material fact or, when taken as a whole, omits any fact
necessary to make the statements therein not misleading. Each of the
representations and warranties given by each applicable Credit Party in each of
the Recapitalization Agreements is true and correct in all material respects in
light of the circumstances under which they were made. Notwithstanding anything
contained in any of the Recapitalization Agreements to the contrary, such
representations and warranties of the Credit Parties are incorporated into this
Agreement by this Section 3.24 and shall, solely for purposes of this Agreement
and the benefit of Agent and Lenders, survive the consummation of the
Recapitalization.
3.25. Senior Notes.
------------
As of the Closing Date, Borrower has delivered to Agent a complete and
correct copy of (i) the Senior Note Indenture (including all schedules,
exhibits, amendments, supplements, modifications, assignments and all other
documents delivered pursuant thereto or in connection therewith) and (ii) the
Prior Senior Note Indenture. Borrower has the corporate power and authority to
(x) incur the Indebtedness evidenced by the Senior Notes, the Prior Senior
Notes, the Senior Note Indenture and the Prior Senior Note Indenture and (y)
enter into the Closing Date Prior Senior Note Indenture Amendment.
3.26. HIPAA Compliance.
----------------
To the extent that and for so long as (i) Borrower is a "covered
entity" as defined in 45 C.F.R. Section 160.103, (ii) Borrower and/or its
business and operations are subject to or covered by the HIPAA Administrative
Requirements codified at 45 C.F.R. Parts 160 & 162 (the "Transactions Rule")
and/or the HIPAA Security and Privacy Requirements codified at 45 C.F.R. Parts
160 & 164 (the "Privacy and Security Rules"), and/or (iii) Borrower sponsors any
"group health plans" as defined in 45 C.F.R. Section 160.103, Borrower has: (x)
completed, or will complete on or before any applicable compliance date,
thorough and detailed surveys, audits, inventories, reviews, analyses and/or
assessments, including risk assessments, (collectively "Assessments") of all
areas of its business and operations subject to HIPAA and/or that could be
adversely affected by the failure of Borrower to be HIPAA Compliant (as defined
below) to the extent these Assessments are appropriate or required for Borrower
to be HIPAA Compliant; (y) developed, or will develop on or before any
applicable compliance date, a detailed plan and time line for becoming HIPAA
Compliant (a
-33-
"HIPAA Compliance Plan"); and (z) implemented, or will implement on or before
any applicable compliance date, those provisions of its HIPAA Compliance Plan
necessary to ensure that Borrower is HIPAA Compliant. For purposes of this
Agreement, "HIPAA Compliant" shall mean that Borrower (1) is, or on or before
any applicable compliance date will be, in full compliance with any and all of
the applicable requirements of HIPAA, including all requirements of the
Transactions Rule and the Privacy and Security Rules and (2) is not subject to,
and could not reasonably be expected to become subject to, any civil or criminal
penalty or any investigation, claim or process that could reasonably be expected
to have a Material Adverse Effect.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1. Reports and Notices.
-------------------
(a) Each Credit Party executing this Agreement hereby agrees that
from and after the Closing Date and until the Termination Date, it shall deliver
to Agent or to Agent and Lenders, as required, the Financial Statements,
notices, Projections and other information at the times, to the Persons and in
the manner set forth in Annex E.
(b) Each Credit Party executing this Agreement hereby agrees that,
from and after the Closing Date and until the Termination Date, it shall deliver
to Agent, as required, the various Collateral Reports (including Borrowing Base
Certificates in the form of Exhibit 4.1(b)) at the times, to the Persons and in
the manner set forth in Annex F.
4.2. Communication with Accountants.
------------------------------
Each Credit Party executing this Agreement authorizes (a) Agent, at
Agent's expense so long as no Event of Default has occurred and is continuing,
and (b) so long as an Event of Default has occurred and is continuing, each
Lender, to communicate directly with its independent certified public
accountants, including PriceWaterhouseCoopers LLC, and authorizes and, at
Agent's request, shall instruct those accountants and advisors to disclose and
make available to Agent and each Lender any and all Financial Statements and
other supporting financial documents, schedules and information relating to any
Credit Party (including copies of any issued management letters) with respect to
the business, financial condition and other affairs of any Credit Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Credit Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:
5.1. Maintenance of Existence and Conduct of Business.
------------------------------------------------
Each Credit Party shall: do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and its
rights and franchises; continue to conduct its business substantially as now
conducted or as otherwise permitted hereunder;
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at all times maintain, preserve and protect all of its assets and properties
used or useful in the conduct of its business, and keep the same in good repair,
working order and condition in all material respects (taking into consideration
ordinary wear and tear) and from time to time make, or cause to be made, all
necessary or appropriate repairs, replacements and improvements thereto
consistent with industry practices, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and transact business
only in such corporate and trade names as are set forth in Disclosure Schedule
5.1.
5.2. Payment of Charges.
------------------
(a) Subject to Section 5.2(b), each Credit Party shall pay and
discharge or cause to be paid and discharged promptly all Charges payable by it,
including (i) Charges imposed upon it, its income and profits, or any of its
property (real, personal or mixed) and all Charges with respect to tax, social
security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all
storage or rental charges payable to warehousemen or bailees, in each case,
before any thereof shall become past due.
(b) Each Credit Party may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges, Taxes or claims described in
Section 5.2(a); provided, that (i) adequate reserves with respect to such
contest are maintained on the books of such Credit Party, in accordance with
GAAP; (ii) no Lien shall be imposed to secure payment of such Charges (other
than payments to warehousemen and/or bailees) that is superior to any of the
Liens securing the Obligations and such contest is maintained and prosecuted
continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; (iv) such Credit Party shall
promptly pay or discharge such contested Charges, Taxes or claims and all
additional charges, interest, penalties and expenses, if any, and shall deliver
to Agent evidence reasonably acceptable to Agent of such compliance, payment or
discharge, if such contest is terminated or discontinued adversely to such
Credit Party or the conditions set forth in this Section 5.2(b) are no longer
met; and (v) Agent has not advised Borrower in writing that Agent believes that
nonpayment or nondischarge thereof could reasonably be expected to have or
result in a Material Adverse Effect.
5.3. Books and Records.
-----------------
Each Credit Party shall keep adequate books and records with respect
to its business activities in which proper entries, reflecting all financial
transactions, are made in accordance with GAAP and on a basis consistent with
the Financial Statements attached as Disclosure Schedule 3.4(a).
5.4. Insurance; Damage to or Destruction of Collateral.
-------------------------------------------------
(a) The Credit Parties shall, at their sole cost and expense,
maintain the policies of insurance described on Disclosure Schedule 3.18 as in
effect on the date hereof or
-35-
otherwise in form and amounts and with deductibles as is customary for similarly
situated businesses and with insurers reasonably acceptable to Agent. Agent and
the Lenders confirm that the form, amounts and insurers described on Disclosure
Schedule 3.18 are acceptable as of the Closing Date, and shall continue to be
acceptable to Agent until not less than 30 days' prior written notice by Agent
to Borrower to the contrary. Such policies of insurance (or the loss payable and
additional insured endorsements delivered to Agent) shall contain provisions
pursuant to which the insurer agrees to provide 30 days prior written notice to
Agent in the event of any non-renewal, cancellation or amendment of any such
insurance policy. If any Credit Party at any time or times hereafter shall fail
to obtain or maintain any of the policies of insurance required above, or to pay
all premiums relating thereto, Agent may at any time or times thereafter obtain
and maintain such policies of insurance and pay such premiums and take any other
action with respect thereto that Agent deems advisable. Agent shall have no
obligation to obtain insurance for any Credit Party or pay any premiums
therefor. By doing so, Agent shall not be deemed to have waived any Default or
Event of Default arising from any Credit Party's failure to maintain such
insurance or pay any premiums therefor. All sums so disbursed, including
reasonable attorneys' fees, court costs and other charges related thereto, shall
be payable on demand by Borrower to Agent and shall be additional Obligations
hereunder secured by the Collateral.
(b) Agent reserves the right at any time (but not to be exercised
more than once per Fiscal Year) upon (i) any material change in any Credit
Party's risk profile (including any change in the product mix maintained by any
Credit Party or any laws affecting the potential liability of such Credit
Party), as determined by Agent in its commercially reasonable judgment, and (ii)
not less than 30 days' prior written notice to Borrower, to require additional
forms and limits of insurance to, in Agent's commercially reasonable judgment,
adequately protect both Agent's and Lender's interests in all or any portion of
the Collateral and to ensure that each Credit Party is protected by insurance in
amounts and with coverage customary for its industry. If reasonably requested by
Agent, each Credit Party shall deliver to Agent from time to time a report of a
reputable insurance broker, reasonably satisfactory to Agent, with respect to
its insurance policies.
(c) Each Credit Party shall deliver to Agent, in form and substance
reasonably satisfactory to Agent, endorsements to (i) all "All Risk" and
business interruption insurance naming Agent, on behalf of itself and Lenders,
as lender loss payee or mortgagee (as the case may be), and (ii) all general
liability and other liability policies naming Agent, on behalf of itself and
Lenders, as additional insured. Each Credit Party irrevocably makes, constitutes
and appoints Agent (and all officers, employees or agents designated by Agent),
so long as any Event of Default has occurred and is continuing or the
anticipated insurance proceeds exceed $1,000,000, as such Credit Party's true
and lawful agent and attorney-in-fact for the purpose of making, settling and
adjusting claims under such "All Risk" policies of insurance, endorsing the name
of such Credit Party on any check or other item of payment for the proceeds of
such "All Risk" policies of insurance and for making all determinations and
decisions with respect to such "All Risk" policies of insurance. Agent shall
have no duty to exercise any rights or powers granted to it pursuant to the
foregoing power-of-attorney. Borrower shall promptly notify Agent of any loss,
damage, or destruction to the Collateral in
-36-
the amount of $500,000 or more, whether or not covered by insurance. After
deducting from such proceeds the expenses, if any, incurred by Agent in the
collection or handling thereof, Agent may, at its option, apply such proceeds to
the reduction of the Obligations in accordance with Section 1.3(c); or permit or
require the applicable Credit Party to use such money, or any part thereof, to
replace, repair, restore or rebuild the Collateral in a diligent and expeditious
manner with materials and workmanship of substantially the same quality as
existed before the loss, damage or destruction. Notwithstanding the foregoing,
if the casualty giving rise to such insurance proceeds could not reasonably be
expected to have a Material Adverse Effect and such insurance proceeds do not
exceed $1,000,000 in the aggregate, Agent shall permit the applicable Credit
Party to replace, restore, repair or rebuild the property; provided, that if
such Credit Party shall not have completed or entered into binding agreements to
complete such replacement, restoration, repair or rebuilding within 180 days of
such casualty, Agent may apply such insurance proceeds to the Obligations in
accordance with Section 1.3(c). All insurance proceeds that are to be made
available to Borrower to replace, repair, restore or rebuild the Collateral
shall be applied by Agent to reduce the outstanding principal balance of the
Revolving Loan (which application shall not result in a permanent reduction of
the Revolving Loan Commitment) and upon such application, Agent may establish a
Reserve against the Borrowing Base in an amount equal to the amount of such
proceeds so applied. Thereafter, such funds shall be made available to Borrower
to provide funds to replace, repair, restore or rebuild the Collateral as
follows: (i) Borrower shall request a Revolving Credit Advance be made to
Borrower in the amount requested to be released; (ii) so long as the conditions
set forth in Section 2.2 have been met, Lenders shall make such Revolving Credit
Advance; and (iii) in the case of insurance proceeds applied against the
Revolving Loan, the Reserve established with respect to such insurance proceeds
shall be reduced by the amount of such Revolving Credit Advance. To the extent
not used to replace, repair, restore or rebuild the Collateral, such insurance
proceeds shall be applied in accordance with Section 1.3(c).
5.5. Compliance with Laws.
--------------------
Each Credit Party shall comply with all federal, state, local and
foreign laws and regulations applicable to it, including those relating to
healthcare matters, ERISA and labor matters and Environmental Laws and
Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6. Supplemental Disclosure.
-----------------------
From time to time as may be reasonably requested by Agent (which
request will not be made more frequently than once each year absent the
occurrence and continuance of a Default or an Event of Default), the Credit
Parties shall supplement each Disclosure Schedule hereto, or any representation
herein or in any other Loan Document, with respect to any matter hereafter
arising that, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such Disclosure Schedule or as an
exception to such representation or that is necessary to correct any information
in such
-37-
Disclosure Schedule or representation which has been rendered inaccurate thereby
(and, in the case of any supplements to any Disclosure Schedule, such Disclosure
Schedule shall be appropriately marked to show the changes made therein);
provided, that (a) no such supplement to any such Disclosure Schedule or
representation shall amend, supplement or otherwise modify any Disclosure
Schedule or representation, or be or be deemed a waiver of any Default or Event
of Default resulting from the matters disclosed therein, except as consented to
by Agent and Requisite Lenders in writing, and (b) no supplement shall be
required or permitted as to representations and warranties that relate solely to
the Closing Date, have been consented to in writing by Agent and Requisite
Lenders or are expressly stated to be made as of an earlier date.
5.7. Intellectual Property.
---------------------
Each Credit Party will conduct its business and affairs without
infringement of or interference with any Intellectual Property of any other
Person in any material respect.
5.8. Environmental Matters.
---------------------
Each Credit Party shall and shall cause each Person within its control
to: (a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other than
noncompliance that could not reasonably be expected to have a Material Adverse
Effect; (b) implement any and all investigation, remediation, removal and
response actions that are appropriate or necessary to maintain the value and
marketability of the Real Estate or to otherwise comply with Environmental Laws
and Environmental Permits pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or Release of any Hazardous Material on,
at, in, under, above, to, from or about any of its Real Estate; (c) notify Agent
promptly after such Credit Party becomes aware of any violation of Environmental
Laws or Environmental Permits or any Release on, at, in, under, above, to, from
or about any Real Estate that is reasonably likely to result in Environmental
Liabilities in excess of $500,000; and (d) promptly forward to Agent a copy of
any order, notice, request for information or any communication or report
received by such Credit Party in connection with any such violation or Release
or any other matter relating to any Environmental Laws or Environmental Permits
that could reasonably be expected to result in Environmental Liabilities in
excess of $500,000, in each case whether or not the Environmental Protection
Agency or any Governmental Authority has taken or threatened any action in
connection with any such violation, Release or other matter.
5.9. Landlords' Agreements, Bailee Letters and Real Estate Purchases.
---------------------------------------------------------------
Each Credit Party shall use commercially reasonable efforts for a
period ending 60 days following the Closing Date (and, in addition thereto, in
connection with the execution of any new, replacement or extension lease
agreement or bailment arrangement) to obtain a landlord's agreement or bailee
letter, as applicable, from the lessor of each leased property or bailee with
respect to any warehouse, processor or converter facility, which
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agreement or letter shall (i) contain a waiver or subordination of all Liens or
claims that the landlord or bailee may assert against the Collateral at that
location, (ii) include, as an exhibit thereto, a copy of the lease or bailment
agreement applicable thereto, and (iii) otherwise be reasonably satisfactory in
form and substance to Agent. If, at any time, Agent has not received landlord
agreements and bailee letters, in form and content described above, covering not
less than fifty percent (50%) of the Credit Parties' Rental Equipment, Wholesale
Disposables and Equipment Disposables located at all leased facilities and held
by all bailees, then Agent shall have the right to establish such Reserves as
may be established by Agent in its reasonable credit judgment. During the
continuance of an Event of Default, no additional real property or warehouse
space shall be leased by any Credit Party and no Inventory shall be shipped to a
processor or converter under arrangements established after the occurrence and
during the continuance of such Event of Default without the prior written
consent of Agent (which consent, in Agent's discretion, may be conditioned upon
the exclusion from the Borrowing Base of Collateral at that location or the
establishment of Reserves acceptable to Agent) or, unless and until a reasonably
satisfactory landlord agreement or bailee letter, as appropriate, shall first
have been obtained with respect to such location. Each Credit Party shall timely
and fully pay and perform its obligations under all leases and other agreements
with respect to each leased location or public warehouse where any Collateral is
or may be located, except where such Credit Party contests the amounts in good
faith, subject to the terms of the proviso set forth in Section 5.2(b). To the
extent otherwise permitted hereunder, if any Credit Party proposes to acquire a
fee ownership interest in Real Estate after the Closing Date, it shall first
provide to Agent a mortgage or deed of trust granting Agent a first priority
Lien on such Real Estate, together with environmental audits, mortgage title
insurance commitment, real property survey, local counsel opinion(s), and, if
required by Agent, supplemental casualty insurance and flood insurance, and such
other documents, instruments or agreements reasonably requested by Agent, in
each case, in form and substance reasonably satisfactory to Agent.
5.10. Further Assurances.
------------------
Each Credit Party executing this Agreement agrees that it shall and
shall cause each other Credit Party to, at such Credit Party's expense and upon
request of Agent, duly execute and deliver, or cause to be duly executed and
delivered, to Agent such further instruments and do and cause to be done such
further acts as may be necessary or proper in the reasonable opinion of Agent to
carry out more effectively the provisions and purposes of this Agreement or any
other Loan Document.
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof until the
Termination Date:
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6.1. Mergers, Subsidiaries, Etc.
--------------------------
Except as otherwise permitted under Sections 6.2 or 6.8, no Credit
Party shall directly or indirectly, by operation of law or otherwise, (a) form
or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or
substantially all of the assets or Stock of, or otherwise combine with or
acquire, any Person. Notwithstanding the foregoing:
(i) Borrower may acquire all or substantially all of the assets
or all of the Stock of any Person (the "Target") (in each case, a "Permitted
Acquisition") with the consent of Requisite Lenders or without consent of Agent
or Requisite Lenders, but subject to the satisfaction of each of the following
conditions:
(A) Agent shall receive reasonable (and, in any event, not
less than 14 days') prior written notice of the expected consummation
date of such proposed Permitted Acquisition, which notice shall
include a reasonably detailed description of such proposed Permitted
Acquisition;
(B) such Permitted Acquisition shall only involve assets
located in the United States and comprising a business, or those
assets of a business, of the type engaged in by Borrower as of the
Closing Date and other businesses that, in the good faith judgment of
the board of directors of Borrower, are reasonably related, ancillary
or complimentary thereto, or reasonable extensions thereof, including
without limitation the leasing of medical equipment, and which
businesses would not subject Agent or any Lender to regulatory or
third party approvals in connection with the exercise of its rights
and remedies under this Agreement or any other Loan Documents other
than approvals applicable to the exercise of such rights and remedies
with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and
shall have been approved by the Target's board of directors (or
comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness,
contingent obligations or other liabilities shall be incurred, assumed
or shall otherwise be reflected on a consolidated balance sheet of
Borrower and Target after giving effect to such Permitted Acquisition,
except (x) Indebtedness otherwise permitted under Section 6.3, (y)
Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z)
ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any
single Permitted Acquisition (including all transaction costs and all
Indebtedness, liabilities and contingent obligations incurred or
assumed in connection therewith or otherwise reflected in a
consolidated balance sheet of Borrower and Target) shall not exceed
$5,000,000, and the sum of such
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amounts for all Permitted Acquisitions in any Fiscal Year shall not
exceed $15,000,000;
(F) the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens (other than Permitted
Encumbrances);
(G) Concurrently with delivery of the notice referred to
in clause (A) above, Borrower shall have delivered to Agent, in form
and substance reasonably satisfactory to Agent:
(x) a pro forma consolidated balance sheet, income
statement and cash flow statement of Borrower and its Subsidiaries
utilizing the Pro Forma Basis (the "Acquisition Pro Forma"), based on
recent financial statements, which shall be complete and shall fairly
present in all material respects the assets, liabilities, financial
condition and results of operations of Borrower and its Subsidiaries in
accordance with GAAP consistently applied, but taking into account such
Permitted Acquisition and the funding of all Loans in connection therewith,
and such Acquisition Pro Forma shall reflect that (i) Borrowing
Availability after giving effect to such Permitted Acquisition shall not be
less than $10,000,000, and (ii) on a pro forma basis, no Event of Default
has occurred and is continuing or would result after giving effect to such
Permitted Acquisition and the Credit Parties would have been in compliance
with the Financial Covenants for the four quarter period reflected in the
Compliance Certificate most recently delivered to Agent pursuant to Annex E
prior to the consummation of such Permitted Acquisition (after giving
effect to such Permitted Acquisition and all Loans funded in connection
therewith as if made on the first day of such period); and
(y) a certificate of the chief financial officer of
Borrower to the effect that: (i) Borrower will be Solvent upon the
consummation of the Permitted Acquisition; and (ii) the Acquisition Pro
Forma fairly presents the financial condition of Borrower (on a
consolidated basis) as of the date thereof after giving effect to the
Permitted Acquisition;
(H) on or prior to the date of consummation of such
Permitted Acquisition, Agent shall have received, in form and
substance reasonably satisfactory to Agent, copies of the acquisition
agreement and related agreements and instruments, and all opinions,
certificates, lien search results and other documents reasonably
requested by Agent; and
(I) at the time of such Permitted Acquisition and after
giving effect thereto, no Default or Event of Default has occurred and
is continuing;
(ii) any Subsidiary of Borrower may be merged or consolidated
with or into Borrower (provided that Borrower shall be the continuing or
surviving corporation) or
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with or into any one or more wholly-owned Subsidiaries of Borrower (provided
that the wholly-owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation); and
(iii) Borrower or any wholly-owned Subsidiary may form one or
more wholly-owned Subsidiaries, either to facilitate the consummation of
Permitted Acquisitions or for other lawful business purposes.
Without limitation of the other provisions of this Section 6.1, no Credit Party
shall acquire or form any Subsidiary unless, (i) such Subsidiary is organized
under the laws of a State of the United States and (ii) within 10 days of such
formation or acquisition, such Subsidiary shall execute a guarantee and a
security agreement in favor of the Agent for the benefit of the Lenders, and the
Borrower and/or any Subsidiary which is a holder of any capital Stock of such
Subsidiary shall execute such pledge agreements, each in form and substance
reasonably satisfactory to the Agent, and shall take such other action as shall
be necessary or advisable (including, without limitation, authorizing the filing
of financing statements on form UCC-1) in order to perfect the Liens granted by
such Subsidiary in favor of the Agent for the benefit of the Lenders and to
effect and perfect the pledge of all of the capital Stock of such Subsidiary in
favor of the Agent for the benefit of the Lenders. Until such time that the
provisions of this paragraph shall have been complied with respect to any
Subsidiary, (i) none of the Accounts, Inventory and Equipment of such Subsidiary
shall be deemed to be Eligible Accounts, Eligible Rental Equipment, Eligible
Wholesale Disposables or Eligible Equipment Disposables, as applicable and (ii)
the financial performance of such Subsidiary shall be disregarded for purposes
of calculating EBITDA over any applicable measurement period.
6.2. Investments; Loans and Advances.
-------------------------------
Except as otherwise expressly permitted by this Section 6, no Credit
Party shall make or permit to exist any investment in, or make, accrue or permit
to exist loans or advances of, or commitments to advance money to, any Person,
through the direct or indirect lending of money, holding of securities or
otherwise, except:
(i) extensions of trade credit in the ordinary course of
business;
(ii) investments in Cash Equivalent Investments;
(iii) loans and advances to officers and employees of Borrower or
its Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for Borrower and its
Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(iv) investments by the Borrower in any Subsidiary, and
investments by any Subsidiary in another Subsidiary;
-42-
(v) the investments held by Borrower on the Closing Date and
described on Disclosure Schedule 6.2, provided that any additional investments
made with respect thereto shall be permitted only if independently justified
under the other provisions of this Section 6.2;
(vi) intercompany Indebtedness permitted by Section 6.3;
(vii) Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of and other disputes with, customers and suppliers
arising in the ordinary course of business;
(viii) Borrower may hold any promissory notes acquired in
connection with the dispositions of assets permitted under Section 6.8(ii) or
(iii);
(ix) Permitted Acquisitions; and
(x) additional Investments of Borrower and its Subsidiaries
not exceeding $1,000,000 at any time outstanding.
6.3. Indebtedness.
------------
(a) No Credit Party shall create, incur, assume or permit
to exist any Indebtedness, except (without duplication):
(i) Indebtedness secured by purchase money security interests
and Capital Leases permitted in Section 6.7(c);
(ii) the Loans and the other Obligations;
(iii) Indebtedness outstanding in an aggregate amount not to
exceed $275,000,000 on the Closing Date and in an aggregate amount not to exceed
$300,000,000 at any time thereafter, in each case issued pursuant to the Senior
Note Indenture;
(iv) Indebtedness evidenced by the Prior Senior Note Indenture
and the Prior Senior Notes; provided, that all such Indebtedness, together with
all accrued and unpaid interest thereon and all fees and expenses with respect
thereto, shall be prepaid and paid in full no later than December 31, 2003, and
Borrower shall deliver to Agent, promptly following such prepayment and payment,
evidence of the defeasance of the Prior Senior Notes and the Prior Senior Note
Indenture;
(v) unfunded pension fund and other employee benefit plan
obligations and liabilities to the extent they are permitted to remain unfunded
under applicable law;
(vi) existing Indebtedness described in Disclosure Schedule 6.3
and extensions and refinancings thereof or amendments or modifications thereto
that do not have
-43-
the effect of increasing the principal amount thereof or changing the
amortization thereof (other than to extend the same) and that are otherwise on
terms and conditions no less favorable to any Credit Party, Agent or any Lender
than the terms of the Indebtedness being extended, refinanced, amended or
modified;
(vii) Indebtedness of Borrower to any Subsidiary that is a
Guarantor, or of any such Subsidiary to Borrower or any other Guarantor;
(viii) Indebtedness to be repaid in connection with the
Recapitalization or the Refinancing which by the terms of the Related
Transactions Documents is not payable or required to be paid as of the Closing
Date; provided, that (i) all Prior Lender Obligations shall be paid in full as
of the Closing Date and (ii) all other Indebtedness described in this clause
(ix) shall be repaid in accordance with the terms of the applicable Related
Transactions Documents;
(ix) Indebtedness under Interest Rate Agreements relating to
Indebtedness otherwise permitted under this Section 6.3 entered into for bona
fide and non-speculative hedging purposes;
(x) Indebtedness owing to the sellers of a Target (or to the
Target, in the case of asset sales) arising in connection with a Permitted
Acquisition in an aggregate principal amount with respect to all such
Indebtedness not to exceed $10,000,000 at any time outstanding; provided, that
the terms of such Indebtedness shall provide for (w) no cash payment of
principal or interest following the occurrence and during the continuance of an
Event of Default, (x) not less than 180 days' prior written notice to Agent by
the holder or holders of any such Indebtedness prior to the exercise of any
enforcement remedies thereunder, including, without limitation, the acceleration
of all or any portion of such Indebtedness, (y) no scheduled or other mandatory
principal payments or prepayments prior to the date six months following the
date set forth in clause (a) of the defined term "Commitment Termination Date"
and (z) provide for no voluntary principal payment or prepayment, absent the
written consent of Agent and Requisite Lenders;
(xi) Subordinated Debt of Borrower to X.X. Childs or Halifax
evidenced by Qualified Subordinated Notes; and
(xii) additional Indebtedness of Borrower and its Subsidiaries
not exceeding $4,000,000 in aggregate principal amount at any time outstanding.
(b) No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness described in any of
Sections 6.3(a)(iii) and Section 6.3(a)(x).
(c) Notwithstanding anything to the contrary in the preceding clauses
(a) and (b), no Credit Party shall create, incur, assume or permit to exist any
Indebtedness (other than the Obligations) under any "Credit Facilities", as such
term is defined in the Senior Note Indenture.
-44-
6.4. Affiliate Transactions.
----------------------
No Credit Party shall enter into any transaction or series of
transactions after the Closing Date whether or not in the ordinary course of
business, with any Affiliate of any Credit Party other than on terms and
conditions that are no less favorable to such Credit Party as would be
obtainable by such Credit Party at the time in a comparable arm's length
transaction with a Person other than an Affiliate of any Credit Party; provided
that the foregoing restrictions shall not apply to (i) advances to officers or
employees of Borrower and its Subsidiaries to the extent otherwise expressly
permitted pursuant to Section 6.2, (ii) Restricted Payments to the extent
otherwise expressly permitted pursuant to Section 6.12, (iii) transactions
between Borrower and its Subsidiaries to the extent otherwise expressly
permitted under this Agreement, (iv) employment arrangements (including
arrangements made with respect to bonuses) entered into in the ordinary course
of business with members of the board of directors and officers of Borrower and
of its Subsidiaries, (v) the Stockholder's Agreement and (vi) the payment of
management fees to the extent otherwise expressly permitted pursuant to Section
6.14.
6.5. Capital Structure and Business.
------------------------------
No Credit Party shall (a) make any changes in any of its business
objectives, purposes or operations that could in any way adversely affect the
repayment of the Loans or any of the other Obligations or could reasonably be
expected to have or result in a Material Adverse Effect, (b) make any change in
its capital structure as described in Disclosure Schedule 3.8, including the
issuance or sale of any shares of Stock, warrants or other securities
convertible into Stock or any revision of the terms of its outstanding Stock;
provided, that Borrower may issue or sell shares of its common Stock as
consideration in connection with Permitted Acquisitions (so long as no Change of
Control occurs after giving effect thereto), and may further issue or sell
shares of its common Stock for cash so long as (i) the proceeds thereof are
applied in prepayment of the Obligations as required by Section 1.3(b)(iii), and
(ii) no Change of Control occurs after giving effect thereto, or (c) amend its
charter or bylaws in a manner that would adversely affect Agent or Lenders or
such Credit Party's duty or ability to repay the Obligations. No Credit Party
shall engage in any business other than the businesses currently engaged in by
it and other businesses that, in the good faith judgment of the board of
directors of Borrower, are reasonably related, ancillary or complimentary
thereto, or reasonable extensions thereof, including, without limitation, the
leasing of medical equipment.
6.6. Guaranteed Indebtedness.
-----------------------
No Credit Party shall create, incur, assume or permit to exist any
Guaranteed Indebtedness except:
(i) by endorsement of instruments or items of payment for
deposit to the general account of any Credit Party;
-45-
(ii) for Guaranteed Indebtedness incurred for the benefit of
any other Credit Party if the primary obligation is expressly permitted by this
Agreement;
(iii) Guaranteed Indebtedness in existence on the Closing Date
and listed on Disclosure Schedule 6.6 and any subsequent affirmation, extension
or renewal thereof which does not include an increase in the principal amount
guaranteed thereunder, or an increase in the fees or the rate of interest
guaranteed with respect thereto;
(iv) any guaranty or other similar agreement in favor of Agent,
for itself and the ratable benefit of Lenders, in connection with the
transactions contemplated by the Agreement and the other Loan Documents; and
(v) any unsecured guaranty or other similar agreement in
favor of the holders of the Senior Notes, to the extent such guaranty or other
agreement is required pursuant to the terms of the Senior Note Indenture.
6.7. Liens.
-----
No Credit Party shall create, incur, assume or permit to exist any
Lien on or with respect to its Accounts or any of its other properties or assets
(whether now owned or hereafter acquired) except for (a) Permitted Encumbrances;
(b) Liens in existence on the date hereof and summarized on Disclosure Schedule
6.7 securing the Indebtedness described on Disclosure Schedule 6.3 and permitted
refinancings, extensions and renewals thereof, including extensions or renewals
of any such Liens; provided, that the principal amount of the Indebtedness so
secured is not increased and the Lien does not attach to any other property; (c)
Liens created prior to or following the date hereof by conditional sale or other
title retention agreements (including Capital Leases) or in connection with
purchase money Indebtedness with respect to Equipment (exclusive of Equipment
held for rent or sale) and Fixtures acquired by any Credit Party in the ordinary
course of business, involving the incurrence of an aggregate amount of purchase
money Indebtedness and Capital Lease Obligations of not more than $10,000,000
outstanding at any one time for all such Liens (provided that such Liens attach
only to the assets subject to such purchase money debt and such Indebtedness is
incurred within 20 days following such purchase and does not exceed one hundred
percent (100%) of the purchase price of the subject assets) and (d) other Liens
securing Indebtedness not in excess of $500,000 at any time outstanding. In
addition, no Credit Party shall become a party to any agreement, note, indenture
or instrument, or take any other action, that would prohibit the creation of a
Lien on any of its properties or other assets in favor of Agent, on behalf of
itself and Lenders, as additional collateral for the Obligations, except
operating leases, Capital Leases or Licenses which prohibit Liens upon the
assets that are subject thereto.
6.8. Sale of Stock and Assets.
------------------------
No Credit Party shall convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any
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Subsidiary, issue or sell any shares of such Subsidiary's capital Stock to any
Person other than Borrower or any wholly-owned Subsidiary, except:
(i) The sale, lease or other disposition of Inventory,
Equipment and leases in the ordinary course of business (consistent with past
practice, in the case of sales of leases), other than obsolete or worn out
property;
(ii) the sale or other disposition of obsolete or worn out
property in the ordinary course of business for proceeds consisting solely of
not less than (A) 75% cash and (B) Indebtedness evidenced by promissory notes;
(iii) other sales or dispositions of assets not described in the
preceding clauses (i) and (ii) for proceeds consisting solely of not less than
(A) 75% cash and (B) Indebtedness evidenced by promissory notes; provided, that
the aggregate book value of all assets so sold in any Fiscal Year shall not
exceed $5,000,000;
(iv) the lease by Borrower and its Subsidiaries (as lessee) and
license of real or personal property in the ordinary course of business (so long
as such lease is not a Capital Lease not otherwise permitted by Section 6.3);
(v) the investments, acquisitions and transfers or
dispositions of properties permitted pursuant to Section 6.2;
(vi) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection with the
compromise or collection thereof;
(vii) as permitted by either of Sections 6.1 and 6.12;
(viii) the sales, transfer, conveyance or other disposition of
Real Estate by a Credit Party;
(ix) the sale or issuance of any Subsidiary's capital Stock to
the Borrower or any wholly-owned Subsidiary; and
(x) dispositions of property to Borrower or to any
wholly-owned Subsidiary.
To the extent Requisite Lenders (or, if required pursuant to Section 11.2, all
of the Lenders) waive the provisions of this Section 6.8 with respect to the
sale or other disposition of any Collateral, or any Collateral is sold or
otherwise disposed of as permitted by this Section 6.8, such Collateral (unless
sold to another Credit Party) shall be sold or otherwise disposed of free and
clear of the Liens created by the Security Agreement, and the Agent shall be
authorized to take any actions deemed appropriate in order to effect the
foregoing. Nothing set forth in this Section 6.8 shall be construed to modify in
any respect Borrower's prepayment obligations set forth in Section 1.3.
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6.9. ERISA.
-----
No Credit Party shall, or shall cause or permit any ERISA Affiliate
to, cause or permit to occur an event that could result in the imposition of a
Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA or cause or
permit to occur an ERISA Event to the extent such ERISA Event could reasonably
be expected to have a Material Adverse Effect.
6.10. Financial Covenants.
-------------------
Borrower shall not breach or fail to comply with any of the Financial
Covenants.
6.11. Hazardous Materials.
-------------------
No Credit Party shall cause or permit a Release of any Hazardous
Material on, at, in, under, above, to, from or about any of the Real Estate
where such Release would (a) violate in any material respect, or form the basis
for any Environmental Liabilities under, any Environmental Laws or Environmental
Permits or (b) otherwise materially adversely impact the value or marketability
of any of the Real Estate or any of the Collateral.
6.12. Sale-Leasebacks.
---------------
No Credit Party shall engage in any sale-leaseback, synthetic lease or
similar transaction involving any of its assets; provided, however, that the
Credit Parties may consummate sale-leaseback, synthetic lease and similar
transactions so long as (i) each such sale-leaseback, synthetic lease and each
such similar transaction is an arms-length transaction, and (ii) the aggregate
consideration received by the Credit Parties in connection with the disposition
of Eligible Rental Equipment, Eligible Wholesale Disposables and Eligible
Equipment Disposables pursuant to this Section 6.12 does not exceed $3,000,000.
6.13. Cancellation of Indebtedness.
----------------------------
No Credit Party shall cancel any claim or debt owing to it, except for
reasonable consideration negotiated on an arm's length basis and in the ordinary
course of its business consistent with past practices.
6.14. Restricted Payments.
-------------------
No Credit Party shall make any Restricted Payment, except:
(i) dividends and distributions by Subsidiaries of Borrower
paid to Borrower;
(ii) employee loans and advances permitted under Section 6.2;
(iii) so long as no Event of Default has occurred and is
continuing or would result after giving effect thereto, in each case solely with
respect to any of
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Sections 8.1(a), 8.1(b) (solely as it pertains to Annex G), 8.1(h) and 8.1(i),
payments of management fees in an aggregate amount not to exceed $750,000 (plus
the reimbursement of reasonable out-of-pocket expenses) in any Fiscal Year
pursuant to (a) that certain Management Agreement dated as of February 25, 1998
by and between X.X. Childs Associates, L.P., a Delaware limited partnership, and
Borrower, as amended by that certain Amendment to Management Agreement dated as
of October 17, 2003 and (b) that certain Management Agreement dated as of
October 17, 2003 by and between Halifax GenPar, L.P., a Delaware limited
partnership, and Borrower, as in existence on the Closing Date;
(iv) so long as no Event of Default has occurred and is
continuing or would result after giving effect thereto, the redemption or
repurchase for cash, at fair value, of the Stock of Borrower (or options to
purchase capital stock) from any employee of Borrower upon the death,
disability, retirement or other termination of such employee, provided, that all
such repurchases under this clause (iv) shall not exceed $1,000,000 in any given
year;
(v) Restricted Payments made in connection with the
Recapitalization and in accordance with the terms of the applicable Related
Transactions Documents; and
(vi) Restricted Payments in the form of, or with respect to,
Qualified Subordinated Notes issued to X.X. Childs or Halifax, to the extent
permitted to be issued pursuant to Section 6.3.
6.15. Change of Corporate Name or Location; Change of Fiscal Year.
-----------------------------------------------------------
No Credit Party shall (a) change its name as it appears in official
filings in the state of its incorporation or other organization, (b) change its
chief executive office, principal place of business, corporate offices or
warehouses or locations at which Collateral is held or stored, or the location
of its records concerning the Collateral, (c) change the type of entity that it
is, (d) change its organization identification number, if any, issued by its
state of incorporation or other organization, or (e) change its state of
incorporation or organization, in each case without at least 30 days prior
written notice to Agent and after Agent's written acknowledgment that any
reasonable action requested by Agent in connection therewith, including to
continue the perfection of any Liens in favor of Agent, on behalf of Lenders, in
any Collateral, has been completed or taken, and provided that any such new
location shall be in the continental United States. No Credit Party shall permit
its Fiscal Year to end on a date other than December 31.
6.16. No Impairment of Intercompany Transfers.
---------------------------------------
No Credit Party shall directly or indirectly enter into or become
bound by any agreement, instrument, indenture or other obligation (other than
this Agreement, the other Loan Documents and the Senior Note Indenture) that
could directly or indirectly restrict, prohibit or require the consent of any
Person with respect to the payment of dividends or
-49-
distributions or the making or repayment of intercompany loans by a Subsidiary
of Borrower to Borrower.
6.17. No Speculative Transactions.
---------------------------
No Credit Party shall engage in any transaction involving commodity
options, futures contracts or similar transactions, except solely to hedge
against fluctuations in the prices of commodities owned or purchased by it and
the values of foreign currencies receivable or payable by it and interest swaps,
caps or collars.
6.18. Changes Relating to Subordinated Debt and Certain Agreements.
------------------------------------------------------------
(a) No Credit Party shall change or amend the terms of any
Subordinated Debt (or any indenture or agreement in connection therewith) if the
effect of such amendment is to: (a) increase the interest rate on such
Subordinated Debt, to the extent such interest is payable in cash; (b) change
the dates upon which payments of principal or interest are due on such
Subordinated Debt other than to extend such dates; (c) change any default or
event of default other than to delete or make less restrictive any default
provision therein, or add any covenant with respect to such Subordinated Debt;
(d) change the redemption or prepayment provisions of such Subordinated Debt
other than to extend the dates therefor or to reduce the premiums payable in
connection therewith; (e) grant any security or collateral to secure payment of
such Subordinated Debt; or (f) change or amend any other term if such change or
amendment would materially increase the obligations of the Credit Party
thereunder or confer additional material rights on the holder of such
Subordinated Debt in a manner adverse to any Credit Party, Agent or any Lender;
provided, that any Subordinated Debt owed to X.X. Childs or Halifax may be paid
and discharged at any time by issuance of Borrower's common Stock.
(b) No Credit Party shall change or amend the terms of either the
Senior Note Indenture or the Prior Senior Note Indenture.
(c) Subject to the provisions of the preceding clause (b), no Credit
Party shall change or amend any of (i) any Recapitalization Agreement, (ii) the
Stockholder's Agreement, or (iii) any of the management agreements described in
Section 6.14, except for such changes or amendments which are neither material
nor reasonably likely in any manner to be in any way materially adverse to the
interests of the Lenders; provided, that Borrower promptly provide Agent with
copies of any such amendments or modifications.
7. TERM
7.1. Termination.
-----------
The financing arrangements contemplated hereby shall be in effect
until the Commitment Termination Date, and the Loans and all other Obligations
shall be automatically due and payable in full on such date.
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7.2. Survival of Obligations Upon Termination of Financing
-----------------------------------------------------
Arrangements.
------------
Except as otherwise expressly provided for in the Loan Documents, no
termination or cancellation (regardless of cause or procedure) of any financing
arrangement under this Agreement shall in any way affect or impair the
obligations, duties and liabilities of the Credit Parties or the rights of Agent
and Lenders relating to any unpaid portion of the Loans or any other
Obligations, due or not due, liquidated, contingent or unliquidated, or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Commitment Termination
Date. Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Credit Parties, and all rights of Agent
and each Lender, all as contained in the Loan Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
provisions of Section 11, the payment obligations under Sections 1.15 and 1.16,
and the indemnities contained in the Loan Documents shall survive the
Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1. Events of Default.
-----------------
The occurrence of any one or more of the following events (regardless
of the reason therefor) shall constitute an "Event of Default" hereunder:
(a) Borrower (i) fails to make any payment of principal of the Loans
when due and payable, (ii) fails to make any payment of interest on, or Fees
owing in respect of, the Loans or any of the other Obligations when due and
payable, and the same shall remain unremedied for 5 days or more, or (iii) fails
to pay or reimburse Agent or Lenders for any expense reimbursable hereunder or
under any other Loan Document within 10 days following Agent's demand for such
reimbursement or payment of expenses.
(b) Any Credit Party fails or neglects to perform, keep or observe
any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6, or any of the
provisions set forth in Annexes C or G, respectively.
(c) Borrower fails or neglects to perform, keep or observe any of the
provisions of Section 4 or any provisions set forth in Annexes E or F,
respectively, and the same shall remain unremedied for 5 days or more.
(d) Any Credit Party fails or neglects to perform, keep or observe
any other provision of this Agreement or of any of the other Loan Documents
(other than any provision embodied in or covered by any other clause of this
Section 8.1) and the same shall remain unremedied for 30 days or more.
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(e) A default or breach occurs under any other agreement, document or
instrument to which any Credit Party is a party that is not cured within any
applicable grace period therefor, and such default or breach (i) involves the
failure to make any payment when due in respect of any Indebtedness or
Guaranteed Indebtedness (other than the Obligations) of any Credit Party in
excess of $5,000,000 in the aggregate (including (x) undrawn committed or
available amounts and (y) amounts owing to all creditors under any combined or
syndicated credit arrangements), or (ii) causes, or permits any holder of such
Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or
Guaranteed Indebtedness or a portion thereof in excess of $5,000,000 in the
aggregate to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, or cash collateral in respect thereof to be
demanded, in each case, regardless of whether such default or breach is waived,
or such right is exercised, by such holder or trustee.
(f) Any information contained in any Borrowing Base Certificate is
untrue or incorrect in any respect (other than inadvertent, immaterial errors in
any Borrowing Base Certificate), or any representation or warranty herein or in
any Loan Document or in any written statement, report, financial statement or
certificate (other than a Borrowing Base Certificate) made or delivered to Agent
or any Lender by any Credit Party is untrue or incorrect in any material respect
as of the date when made or deemed made.
(g) Assets of any Credit Party with a fair market value of $1,000,000
or more are attached, seized, levied upon or subjected to a writ or distress
warrant, or come within the possession of any receiver, trustee, custodian or
assignee for the benefit of creditors of any Credit Party and such condition
continues for 60 days or more.
(h) A case or proceeding is commenced against any Credit Party
seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party's assets, or (iii) ordering the
winding-up or liquidation of the affairs of such Credit Party, and such case
or proceeding shall remain undismissed or unstayed for 90 days or more or a
decree or order granting the relief sought in such case or proceeding shall be
entered by a court of competent jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief under the
Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) consents to or fails to contest in a timely and
appropriate manner the institution of proceedings thereunder or the filing of
any such petition or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for such Credit Party or for any substantial part of any such Credit Party's
assets, (iii) makes an assignment for the benefit of creditors, (iv) takes any
action in furtherance of any of the foregoing; or (v) admits in writing its
inability to, or is generally unable to, pay its debts as such debts become due.
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(j) A final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate not fully covered by insurance at any time are
outstanding against one or more of the Credit Parties and the same are not,
within 60 days after the entry thereof, discharged or execution thereof stayed
or bonded pending appeal, or such judgments are not discharged prior to the
expiration of any such stay.
(k) Any material provision of any Loan Document for any reason ceases
to be valid, binding and enforceable in accordance with its terms (or any Credit
Party shall challenge the enforceability of any Loan Document or shall assert in
writing, or engage in any action or inaction based on any such assertion, that
any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms), or any Lien
created under any Loan Document ceases to be a valid and perfected first
priority Lien (except as otherwise permitted herein or therein) in any of the
Collateral purported to be covered thereby.
(l) Any Change of Control occurs.
(m) Any default or breach by Borrower occurs and is continuing (after
the expiration of any applicable grace period therein) under either the Senior
Note Indenture or the Prior Senior Note Indenture, or either the Senior Note
Indenture or the Prior Senior Note Indenture shall be terminated for any reason,
other than in connection with the full payment and defeasance of all
Indebtedness arising in connection therewith.
8.2. Remedies.
--------
(a) If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice, suspend the Revolving Loan facility with respect to
additional Advances and/or the incurrence of additional Letter of Credit
Obligations, whereupon any additional Advances and additional Letter of Credit
Obligations shall be made or incurred in Agent's sole discretion (or in the
sole discretion of the Requisite Lenders, if such suspension occurred at their
direction) so long as such Default or Event of Default is continuing. If any
Event of Default has occurred and is continuing under any of Sections 8.1(a),
(h) or (i), Agent may (and at the written request of Requisite Lenders shall),
without notice except as otherwise expressly provided herein, increase the rate
of interest applicable to the Loans and the Letter of Credit Fees to the Default
Rate.
(b) If any Event of Default has occurred and is continuing, Agent may
(and at the written request of the Requisite Lenders shall), without notice: (i)
terminate the Revolving Loan facility with respect to further Advances or the
incurrence of further Letter of Credit Obligations; (ii) declare all or any
portion of the Obligations, including all or any portion of any Loan to be
forthwith due and payable, and require that the Letter of Credit Obligations be
cash collateralized as provided in Annex B, all without presentment, demand,
protest or further notice of any kind, all of which are expressly waived by
Borrower and each other Credit Party; or (iii) exercise any rights and remedies
provided to Agent under the Loan
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Documents or at law or equity, including all remedies provided under the Code;
provided, that upon the occurrence of an Event of Default specified in Sections
8.1(h) or (i), the Revolving Loan facility shall be immediately terminated and
all of the Obligations, including the aggregate Revolving Loan, shall become
immediately due and payable without declaration, notice or demand by any Person.
8.3. Waivers by Credit Parties.
-------------------------
Except as otherwise provided for in this Agreement or by applicable
law, each Credit Party waives (including for purposes of Section 12): (a)
presentment, demand and protest and notice of presentment, dishonor, notice of
intent to accelerate, notice of acceleration, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or all
commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties at any time held by Agent on which any Credit Party may in
any way be liable, and hereby ratifies and confirms whatever Agent may do in
this regard, (b) all rights to notice and a hearing prior to Agent's taking
possession or control of, or to Agent's replevy, attachment or levy upon, the
Collateral or any bond or security that might be required by any court prior to
allowing Agent to exercise any of its remedies, and (c) the benefit of all
valuation, appraisal, marshaling and exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1. Assignment and Participations.
-----------------------------
(a) Subject to the terms of this Section 9.1, any Lender may make an
assignment to a Qualified Assignee of, or sell participations in, at any time or
times, the Loan Documents, Loans, Letter of Credit Obligations and any
Commitment or any portion thereof or interest therein, including any Lender's
rights, title, interests, remedies, powers or duties thereunder. Any assignment
by a Lender shall: (i) require the consent of Agent (which consent shall not be
unreasonably withheld or delayed with respect to a Qualified Assignee) and, so
long as no Event of Default has occurred and is then continuing, Borrower (which
consent shall not be unreasonably withheld or delayed; provided, that any
assignment to Black Diamond Capital Management or any of its Affiliates shall
require the consent of Borrower so long as no Event of Default pursuant to
Sections 8.1(a)(i), 8.1(a)(ii), 8.1(h) or 8.1(i) has occurred and is then
continuing), and the execution of an assignment agreement (an "Assignment
Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and
otherwise in form and substance reasonably satisfactory to, and acknowledged by,
Agent; (ii) be conditioned on such assignee Lender representing to the assigning
Lender and Agent that it is purchasing the applicable Loans to be assigned to it
for its own account, for investment purposes and not with a view to the
distribution thereof; (iii) after giving effect to any such partial assignment,
the assignee Lender shall have Commitments in an amount at least equal to
$5,000,000 and the assigning Lender shall have retained Commitments in an amount
at least equal to $2,500,000; and (iv) include a payment to Agent of an
assignment fee of $3,500. In the case of an assignment by a Lender under this
Section 9.1, the assignee shall have, to the extent of such assignment, the same
rights, benefits and obligations as all
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other Lenders hereunder. The assigning Lender shall be relieved of its
obligations hereunder with respect to its Commitments or assigned portion
thereof and/or Loans, other rights, obligations or interests assigned from and
after the date of such assignment. Borrower hereby acknowledges and agrees that
any assignment shall give rise to a direct obligation of Borrower to the
assignee and that the assignee shall be considered to be a "Lender". In all
instances, each Lender's liability to make Loans hereunder shall be several and
not joint and shall be limited to such Lender's Pro Rata Share of the applicable
Commitment. In the event Agent or any Lender assigns or otherwise transfers all
or any part of the Obligations, Agent or any such Lender shall so notify
Borrower and Borrower shall, upon the request of Agent or such Lender, execute
new Notes in exchange for the Notes, if any, being assigned. Notwithstanding the
foregoing provisions of this Section 9.1(a), (a) any Lender may at any time
pledge the Obligations held by it and such Lender's rights under this Agreement
and the other Loan Documents to a Federal Reserve Bank, and any Lender that is
an investment fund may assign the Obligations held by it and such Lender's
rights under this Agreement and the other Loan Documents to another investment
fund managed by the same investment advisor; provided, that no such pledge to a
Federal Reserve Bank shall release such Lender from such Lender's obligations
hereunder or under any other Loan Document; and (b) in the case of an assignment
to a Qualified Assignee which is, immediately prior to such assignment, an
Affiliate of the assigning Lender, such assignment shall be effective between
such Lender and its Affiliate immediately without compliance with the conditions
for assignment under this Section 9.1(a), but shall not be effective with
respect to Borrower, Agent, L/C Issuer or any Lender, and each of Borrower,
Agent, L/C Issuer and each Lender shall be entitled to deal solely with such
assigning Lender under any such assignment, in each case until the conditions
for assignment under this Section 9.1(a) have been complied with. Agent hereby
agrees to provide Borrower with commercially reasonable prior written notice of
any assignment or sale contemplated by this Section 9.1(a), the consummation of
which does not require consent of Borrower.
(b) Any participation by a Lender of all or any part of its
Commitments shall be made with the understanding that all amounts payable by
Borrower hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the principal
amount of any Loan in which such holder participates or the final maturity date
thereof, and (iii) any release of all or substantially all of the Collateral
(other than in accordance with the terms of this Agreement, the Collateral
Documents or the other Loan Documents). Solely for purposes of Sections 1.13,
1.15, 1.16 and 9.8, Borrower acknowledges and agrees that a participation shall
give rise to a direct obligation of Borrower to the participant and the
participant shall be considered to be a "Lender". Except as set forth in the
preceding sentence, neither Borrower nor any other Credit Party shall have any
obligation or duty to any participant. Neither Agent nor any Lender (other than
the Lender selling a participation) shall have any duty to any
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participant and may continue to deal solely with the Lender selling a
participation as if no such sale had occurred.
(c) Except as expressly provided in this Section 9.1, no Lender
shall,as between Borrower and that Lender, or Agent and that Lender, be relieved
of any of its obligations hereunder as a result of any sale, assignment,
transfer or negotiation of, or granting of participation in, all or any part of
the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party executing this Agreement shall assist any
Lender permitted to sell assignments or participations under this Section 9.1 as
reasonably required to enable the assigning or selling Lender to effect any such
assignment or participation, including the execution and delivery of any and all
agreements, notes and other documents and instruments as shall be requested and,
if requested by Agent, the preparation of informational materials for, and the
participation of management in meetings with, potential assignees or
participants. Each Credit Party executing this Agreement shall certify the
correctness, completeness and accuracy of all descriptions of the Credit Parties
and their respective affairs contained in any selling materials provided by them
and all other information provided by them and included in such materials,
except that any Projections delivered by Borrower shall only be certified by
Borrower as having been prepared by Borrower in compliance with the
representations contained in Section 3.4(c).
(e) Any Lender may furnish any information concerning Credit Parties
in the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants); provided, that such Lender
shall obtain from assignees or participants written confidentiality covenants
substantially equivalent to those contained in Section 11.8.
(f) So long as no Event of Default has occurred and is continuing, no
Lender shall assign or sell participations in any portion of its Loans or
Commitments to a potential Lender or participant, if, as of the date of the
proposed assignment or sale, the assignee Lender or participant would be subject
to capital adequacy or similar requirements under Section 1.16(a), increased
costs under Section 1.16(b), an inability to fund LIBOR Loans under Section
1.16(c), or withholding taxes in accordance with Section 1.15(a).
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender"), may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing by the Granting Lender to Agent and
Borrower, the option to provide to Borrower all or any part of any Loans that
such Granting Lender would otherwise be obligated to make to Borrower pursuant
to this Agreement; provided, that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan; and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if such Loan were made by such
Granting Lender. No SPC shall be liable for
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any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). Any SPC may (i) with notice
to, but without the prior written consent of, Borrower and Agent and without
paying any processing fee therefor assign all or a portion of its interests in
any Loans to the Granting Lender or to any financial institutions (consented to
by Borrower and Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g)
may not be amended without the prior written consent of each Granting Lender,
all or any of whose Loans are being funded by an SPC at the time of such
amendment. For the avoidance of doubt, the Granting Lender shall for all
purposes, including without limitation, the approval of any amendment or waiver
of any provision of any Loan Document or the obligation to pay any amount
otherwise payable by the Granting Lender under the Loan Documents, continue to
be the Lender of record hereunder.
9.2. Appointment of Agent.
--------------------
GE Capital is hereby appointed to act on behalf of all Lenders as
Agent under this Agreement and the other Loan Documents. The provisions of this
Section 9.2 are solely for the benefit of Agent and Lenders and no Credit Party
nor any other Person shall have any rights as a third party beneficiary of any
of the provisions hereof. In performing its functions and duties under this
Agreement and the other Loan Documents, Agent shall act solely as an agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for any Credit
Party or any other Person. Agent shall have no duties or responsibilities except
for those expressly set forth in this Agreement and the other Loan Documents.
The duties of Agent shall be mechanical and administrative in nature and Agent
shall not have, or be deemed to have, by reason of this Agreement, any other
Loan Document or otherwise a fiduciary relationship in respect of any Lender.
Except as expressly set forth in this Agreement and the other Loan Documents,
Agent shall not have any duty to disclose, and shall not be liable for failure
to disclose, any information relating to any Credit Party or any of their
respective Subsidiaries or any Account Debtor that is communicated to or
obtained by GE Capital or any of its Affiliates in any capacity. Neither Agent
nor any of its Affiliates nor any of their respective officers, directors,
employees, agents or representatives shall be liable to any Lender for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document, or in connection herewith or therewith, except for damages caused by
its or their own gross negligence, bad faith or willful misconduct.
If Agent shall request instructions from Requisite Lenders,
Supermajority Lenders or all affected Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Loan
Document, then Agent shall be entitled to refrain from such act or taking such
action unless and until Agent shall have received instructions from Requisite
Lenders, Supermajority Lenders or all affected Lenders, as the case may be, and
Agent shall not incur liability to any Person by reason of so refraining.
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Agent shall be fully justified in failing or refusing to take any action
hereunder or under any other Loan Document (a) if such action would, in the
opinion of Agent, be contrary to law or the terms of this Agreement or any other
Loan Document, (b) if such action would, in the opinion of Agent, expose Agent
to Environmental Liabilities or (c) if Agent shall not first be indemnified to
its satisfaction against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against Agent as a result of Agent acting or refraining from acting hereunder or
under any other Loan Document in accordance with the instructions of Requisite
Lenders, Supermajority Lenders or all affected Lenders, as applicable.
9.3. Agent's Reliance, Etc.
----------------------
Neither Agent nor any of its Affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement or
the other Loan Documents, except for damages caused by its or their own gross
negligence, bad faith or willful misconduct. Without limiting the generality of
the foregoing, Agent: (a) may treat the payee of any Note as the holder thereof
until Agent receives written notice of the assignment or transfer thereof signed
by such payee and in form reasonably satisfactory to Agent; (b) may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations made
in or in connection with this Agreement or the other Loan Documents; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or the other Loan
Documents on the part of any Credit Party or to inspect the Collateral
(including the books and records) of any Credit Party; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; and (f) shall incur no liability under or in respect of this Agreement
or the other Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopy, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
9.4. GE Capital and Affiliates.
-------------------------
With respect to its Commitments hereunder, GE Capital (or any
successor Agent, as the case may be) shall have the same rights and powers under
this Agreement and the other Loan Documents as any other Lender and may exercise
the same as though it were not Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include GE Capital (or such successor
Agent, as the case may be) in its individual capacity. GE Capital (or any
successor Agent, as the case may be) and its Affiliates may lend money to,
invest in, and generally engage in any kind of business with, any Credit Party,
any of their
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Affiliates and any Person who may do business with or own securities of any
Credit Party or any such Affiliate, all as if GE Capital (or such successor
Agent, as the case may be) were not Agent and without any duty to account
therefor to Lenders. GE Capital (or any successor Agent, as the case may be) and
its Affiliates may accept fees and other consideration from any Credit Party for
services in connection with this Agreement or otherwise without having to
account for the same to Lenders. Each Lender acknowledges the potential conflict
of interest between GE Capital (or any successor Agent, as the case may be) as a
Lender holding disproportionate interests in the Loans, and GE Capital (or such
successor Agent, as the case may be) as Agent.
9.5. Lender Credit Decision.
----------------------
Each Lender acknowledges that it has, independently and without
reliance upon Agent or any other Lender and based on the Financial Statements
referred to in Section 3.4(a) and such other documents and information as it has
deemed appropriate, made its own credit and financial analysis of the Credit
Parties and its own decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement. Each Lender acknowledges the potential
conflict of interest of each other Lender as a result of Lenders holding
disproportionate interests in the Loans, and expressly consents to, and waives
any claim based upon, such conflict of interest.
9.6. Indemnification.
---------------
Lenders agree to indemnify Agent (to the extent not reimbursed by
Credit Parties and without limiting the obligations of Borrower hereunder),
ratably according to their respective Pro Rata Shares, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against Agent in any way relating to
or arising out of this Agreement or any other Loan Document or any action taken
or omitted to be taken by Agent in connection therewith; provided, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence, bad faith or willful misconduct.
Without limiting the foregoing, each Lender agrees to reimburse Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement and each
other Loan Document, to the extent that Agent is not reimbursed for such
expenses by Credit Parties.
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9.7. Successor Agent.
---------------
Agent may resign at any time by giving not less than 30 days' prior
written notice thereof to Lenders and Borrower. Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Agent, which
successor Agent, absent the occurrence and continuance of an Event of Default,
shall be acceptable to Borrower, such acceptance not to be unreasonably withheld
or delayed. If no successor Agent shall have been so appointed by the Requisite
Lenders and shall have accepted such appointment within 30 days after the
resigning Agent's giving notice of resignation, then the resigning Agent may, on
behalf of Lenders, appoint a successor Agent, which shall be a Lender, if a
Lender is willing to accept such appointment, or otherwise shall be a commercial
bank or financial institution or a subsidiary of a commercial bank or financial
institution if such commercial bank or financial institution is organized under
the laws of the United States of America or of any State thereof and has a
combined capital and surplus of at least $300,000,000. If no successor Agent has
been appointed pursuant to the foregoing, within 30 days after the date such
notice of resignation was given by the resigning Agent, such resignation shall
become effective and the Requisite Lenders shall thereafter perform all the
duties of Agent hereunder until such time, if any, as the Requisite Lenders
appoint a successor Agent as provided above. Any successor Agent appointed by
Requisite Lenders hereunder shall be subject to the approval of Borrower, such
approval not to be unreasonably withheld or delayed; provided, that such
approval shall not be required if a Default or an Event of Default has occurred
and is continuing. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Agent. Upon the
earlier of the acceptance of any appointment as Agent hereunder by a successor
Agent or the effective date of the resigning Agent's resignation, the resigning
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents, except that any indemnity rights or other rights
in favor of such resigning Agent shall continue. After any resigning Agent's
resignation hereunder, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was acting
as Agent under this Agreement and the other Loan Documents.
9.8. Setoff and Sharing of Payments.
------------------------------
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence and
during the continuance of any Event of Default and subject to Section 9.9(f),
each Lender is hereby authorized at any time or from time to time, to offset and
to appropriate and to apply any and all balances held by it at any of its
offices for the account of Borrower or any Guarantor (regardless of whether such
balances are then due to Borrower or any Guarantor) and any other properties or
assets at any time held or owing by that Lender or that holder to or for the
credit or for the account of Borrower or any Guarantor against and on account of
any of the Obligations that are not paid when due. Each Lender agrees to
promptly notify Borrower and Agent of any such setoff made by such Lender;
provided, that the failure to give such notice shall not affect the validity of
such set-off. Any Lender exercising a right of setoff or otherwise receiving any
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payment on account of the Obligations in excess of its Pro Rata Share thereof
shall purchase for cash (and the other Lenders or holders shall sell) such
participations in each such other Lender's or holder's Pro Rata Share of the
Obligations as would be necessary to cause such Lender to share the amount so
offset or otherwise received with each other Lender entitled thereto or holder
in accordance with their respective Pro Rata Shares (other than offset rights
exercised by any Lender with respect to Sections 1.13, 1.15 or 1.16). Each
Lender's obligation under this Section 9.8 shall be in addition to and not in
limitation of its obligations to purchase a participation in an amount equal to
its Pro Rata Share of the Swing Line Loans under Section 1.1. Each Credit Party
that is Borrower or a Guarantor agrees, to the fullest extent permitted by law,
that (a) any Lender may exercise its right to offset with respect to amounts in
excess of its Pro Rata Share of the Obligations and may sell participations in
such amounts so offset to other Lenders and holders and (b) any Lender so
purchasing a participation in the Loans made or other Obligations held by other
Lenders or holders may exercise all rights of offset, bankers' lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender or holder were a direct holder of the Loans and the other
Obligations in the amount of such participation. Notwithstanding the foregoing,
if all or any portion of the offset amount or payment otherwise received is
thereafter recovered from the Lender that has exercised the right of offset, the
purchase of participations by that Lender shall be rescinded and the purchase
price restored without interest.
9.9. Advances; Payments; Non-Funding Lenders; Information; Actions
-------------------------------------------------------------
in Concert.
----------
(a) Advances; Payments.
(i) Lenders shall refund or participate in the Swing Line Loan
in accordance with clauses (iii) and (iv) of Section 1.1(c). If the Swing Line
Lender declines to make a Swing Line Loan or if Swing Line Availability is zero,
Agent shall notify Lenders, promptly after receipt of a Notice of Revolving
Credit Advance and in any event prior to 1:00 p.m. (New York time) on the date
such Notice of Revolving Advance is received, by telecopy, telephone (promptly
confirmed thereafter by telecopy or other form of written transmission) or other
similar form of written transmission. Each Lender shall make the amount of such
Lender's Pro Rata Share of such Revolving Credit Advance available to Agent in
same day funds by wire transfer to Agent's account as set forth in Annex H not
later than 3:00 p.m. (New York time) on the requested funding date, in the case
of an Index Rate Loan, and not later than 11:00 a.m. (New York time) on the
requested funding date, in the case of a LIBOR Loan. After receipt of such wire
transfers (or, in the Agent's sole discretion, before receipt of such wire
transfers), subject to the terms hereof, Agent shall make the requested
Revolving Credit Advance to Borrower. All payments by each Lender shall be made
without setoff, counterclaim or deduction of any kind.
(ii) On the 2nd Business Day of each calendar week or more
frequently at Agent's election (each, a "Settlement Date"), Agent shall advise
each Lender by telephone (promptly confirmed thereafter by telecopy or other
form of written transmission), or telecopy of the amount of such Lender's Pro
Rata Share of principal, interest and Fees paid
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for the benefit of Lenders with respect to each applicable Loan. Provided that
each Lender has funded all payments or Advances required to be made by it and
has purchased all participations required to be purchased by it under this
Agreement and the other Loan Documents as of such Settlement Date, Agent shall
pay to each Lender such Lender's Pro Rata Share of principal, interest and Fees
paid by Borrower since the previous Settlement Date for the benefit of such
Lender on the Loans held by it. To the extent that any Lender (a "Non-Funding
Lender") has failed to fund all such payments and Advances or failed to fund the
purchase of all such participations, Agent shall be entitled to set off the
funding short-fall against that Non-Funding Lender's Pro Rata Share of all
payments received from Borrower. Such payments shall be made by wire transfer to
such Lender's account (as specified by such Lender in Annex H or the applicable
Assignment Agreement) not later than 1:00 p.m. (Chicago time) on the next
Business Day following each Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may assume that
each Lender will make its Pro Rata Share of each Revolving Credit Advance
available to Agent on each funding date. If such Pro Rata Share is not, in fact,
paid to Agent by such Lender when due, Agent will be entitled to recover such
amount on demand from such Lender without setoff, counterclaim or deduction of
any kind. If any Lender fails to pay the amount of its Pro Rata Share forthwith
upon Agent's demand, Agent shall promptly notify Borrower and Borrower shall
immediately repay such amount to Agent. Nothing in this Section 9.9(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender
from its obligation to fulfill its Commitments hereunder or to prejudice any
rights that Borrower may have against any Lender as a result of any default by
such Lender hereunder. To the extent that Agent advances funds to Borrower on
behalf of any Lender and is not reimbursed therefor on the same Business Day as
such Advance is made, Agent shall be entitled to retain for its account all
interest accrued on such Advance until reimbursed by the applicable Lender.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement in
the belief or expectation that a related payment has been or will be received by
Agent from Borrower and such related payment is not received by Agent, then
Agent will be entitled to recover such amount from such Lender on demand without
setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount received by
Agent under this Agreement must be returned to Borrower or paid to any other
Person pursuant to any insolvency law or otherwise, then, notwithstanding any
other term or condition of this Agreement or any other Loan Document, Agent will
not be required to distribute any portion thereof to any Lender. In addition,
each Lender will repay to Agent on demand any portion of such amount that Agent
has distributed to such Lender, together with interest at such rate, if any, as
Agent is required to pay to Borrower or such other Person, without setoff,
counterclaim or deduction of any kind.
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(d) Non-Funding Lenders. The failure of any Non-Funding Lender to
make any Revolving Credit Advance or any payment required by it hereunder or to
purchase any participation in any Swing Line Loan to be made or purchased by it
on the date specified therefor shall not relieve any other Lender (each such
other Lender, an "Other Lender") of its obligations to make such Advance or
purchase such participation on such date, but neither any Other Lender nor Agent
shall be responsible for the failure of any Non-Funding Lender to make an
Advance, purchase a participation or make any other payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender
shall not have any voting or consent rights under or with respect to any Loan
Document or constitute a "Lender", other than with respect to matters regarding
the agreement or consent of a Lender directly affected thereby under Section
11.2(c)(i)-(iv) and (vii) (initial clause) (or be included in the calculation of
"Requisite Lenders" or "Supermajority Lenders" hereunder) for any voting or
consent rights under or with respect to any Loan Document. At Borrower's
request, Agent or a Person reasonably acceptable to Agent shall have the right
with Agent's consent and in Agent's sole discretion (but shall have no
obligation) to purchase from any Non-Funding Lender, and each Non-Funding Lender
agrees that it shall, at Agent's request, sell and assign to Agent or such
Person, all of the Commitments of that Non-Funding Lender for an amount equal to
the principal balance of all Loans held by such Non-Funding Lender and all
accrued interest and fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement.
(e) Dissemination of Information. Agent shall use reasonable efforts
to provide Lenders with any notice of Default or Event of Default received by
Agent from, or delivered by Agent to, any Credit Party, with notice of any Event
of Default of which Agent has actually become aware and with notice of any
action taken by Agent following any Event of Default; provided, that Agent shall
not be liable to any Lender for any failure to do so, except to the extent that
such failure is attributable to Agent's gross negligence, bad faith or willful
misconduct. Agent shall deliver to each Lender, promptly following its receipt
thereof, copies of the financial statements and other written materials
described in paragraphs (a)-(g) of Annex E and in paragraph (a) of Annex F.
(f) Actions in Concert. Anything in this Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no Lender
shall take any action to protect or enforce its rights arising out of this
Agreement or the Notes (including exercising any rights of setoff) without first
obtaining the prior written consent of Agent and Requisite Lenders, it being the
intent of Lenders that any such action to protect or enforce rights under this
Agreement and the Notes shall be taken in concert and at the direction or with
the consent of Agent or Requisite Lenders.
9.10. Additional Titled Agents.
------------------------
Borrower, Agent and each Lender acknowledge that, except for rights
and powers, if any, expressly reserved to any of the Administrative Agent, the
Syndication Agent, any Co-Lead Arranger or any other titled agent named on the
cover page of this Agreement, other than Agent (collectively, the "Additional
Titled Agents"), and except for obligations,
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liabilities, duties and responsibilities, if any, expressly assumed by any
Additional Titled Agent, no Additional Titled Agent, in such capacity, has any
rights, powers, liabilities, duties or responsibilities hereunder or under any
of the Loan Documents. Without limiting the foregoing, no Additional Titled
Agent shall have nor be deemed to have a fiduciary relationship with any Lender.
At any time that any Additional Titled Agent shall have transferred to any other
Person (other than any Affiliates) all of its interests in the Loans and the
Commitments, such Additional Titled Agent shall be deemed to have concurrently
resigned as such Additional Titled Agent. No successor or replacement Additional
Titled Agent shall be designated or elected to serve upon the resignation by any
Person of its role as an Additional Titled Agent.
10. SUCCESSORS AND ASSIGNS
10.1. Successors and Assigns.
----------------------
This Agreement and the other Loan Documents shall be binding on and
shall inure to the benefit of each Credit Party, Agent, Lenders and their
respective successors and assigns (including, in the case of any Credit Party, a
debtor-in-possession on behalf of such Credit Party), except as otherwise
provided herein or therein. No Credit Party may assign, transfer, hypothecate or
otherwise convey its rights, benefits, obligations or duties hereunder or under
any of the other Loan Documents without the prior express written consent of
Agent and Lenders. Any such purported assignment, transfer, hypothecation or
other conveyance by any Credit Party without the prior express written consent
of Agent and Lenders shall be void. The terms and provisions of this Agreement
are for the purpose of defining the relative rights and obligations of each
Credit Party, Agent and Lenders with respect to the transactions contemplated
hereby and no Person (other than any Indemnified Person) shall be a third party
beneficiary of any of the terms and provisions of this Agreement or any of the
other Loan Documents.
11. MISCELLANEOUS
11.1. Complete Agreement; Modification of Agreement.
---------------------------------------------
The Loan Documents constitute the complete agreement between the
parties with respect to the subject matter thereof and may not be modified,
altered or amended except as set forth in Section 11.2. Any letter of interest,
commitment letter or fee letter (other than the GE Capital Fee Letter), if any,
between any Credit Party and Agent or any Lender or any of their respective
Affiliates, predating this Agreement and relating to a financing of
substantially similar form, purpose or effect shall be superseded by this
Agreement.
11.2. Amendments and Waivers.
----------------------
(a) Except for actions expressly permitted to be taken by Agent, no
amendment, modification, termination or waiver of any provision of this
Agreement or any other Loan Document, or any consent to any departure by any
Credit Party therefrom, shall in
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any event be effective unless the same shall be in writing and signed by Agent
and Borrower, and by Requisite Lenders, Supermajority Lenders or all affected
Lenders, as applicable. Except as set forth in clauses (b) and (c) below, all
such amendments, modifications, terminations or waivers requiring the consent of
any Lender shall require the written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or consent
with respect to any provision of this Agreement that (i) increases the
percentage advance rates set forth in the definition of the Borrowing Base, (ii)
makes less restrictive the nondiscretionary criteria for exclusion from Eligible
Accounts, Eligible Rental Equipment, Eligible Wholesale Disposables and Eligible
Equipment Disposables set forth in Sections 1.6 and 1.7, (iii) alters, in any
respect, the provisions of Section 6.14(iii), or (iv) permits, directly or
indirectly, the voluntary purchase, redemption, defeasance or prepayment of any
Indebtedness described in Section 6.3(a)(iii) at any time that Borrowing
Availability, after giving effect to such event, would equal less than
$10,000,000, shall be effective unless the same shall be in writing and signed
by Agent, Supermajority Lenders and Borrower. No amendment, modification,
termination or waiver of or consent with respect to any provision of this
Agreement that waives compliance with the conditions precedent set forth in
Section 2.2 to the making of any Loan or the incurrence of any Letter of Credit
Obligations shall be effective unless the same shall be in writing and signed by
Agent, Requisite Lenders and Borrower. Notwithstanding anything contained in
this Agreement to the contrary, no waiver or consent with respect to any Default
or any Event of Default shall be effective for purposes of the conditions
precedent to the making of Loans or the incurrence of Letter of Credit
Obligations set forth in Section 2.2 unless the same shall be in writing and
signed by Agent, Requisite Lenders and Borrower.
(c) No amendment, modification, termination or waiver shall, unless
in writing and signed by Agent and each Lender directly affected thereby: (i)
increase the principal amount of any Lender's Commitment (which action shall be
deemed to directly affect all Lenders) or amend or waive any provision of this
Agreement or any other Loan Document requiring pro rata treatment of Lenders;
(ii) reduce the principal of, rate of interest on or Fees payable with respect
to any Loan or Letter of Credit Obligations of any affected Lender; (iii) extend
any scheduled payment date (other than payment dates of mandatory prepayments
under Section 1.3(b)(iii)-(iv)) or final maturity date of the principal amount
of any Loan of any affected Lender; (iv) waive, forgive, defer, extend or
postpone any payment of interest or Fees as to any affected Lender; (v) permit
any assignment by a Credit Party under Section 10.1 or, except as otherwise
permitted herein or in the other Loan Documents, release any Collateral; (vi)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans that shall be required for Lenders or any of them to take
any action hereunder; (vii) amend or waive this Section 11.2 or the definitions
of the terms "Requisite Lenders" or "Supermajority Lenders" insofar as such
definitions affect the substance of this Section 11.2; and (viii) amend or waive
Section 1.7, to the extent it pertains to items providing for unanimous Lender
consent. Furthermore, no amendment, modification, termination or waiver
affecting the rights or duties of Agent or L/C Issuer under this Agreement or
any other Loan Document shall be effective unless in writing and
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signed by Agent or L/C Issuer, as the case may be, in addition to Lenders
required hereinabove to take such action. Each amendment, modification,
termination or waiver shall be effective only in the specific instance and for
the specific purpose for which it was given. No amendment, modification,
termination or waiver shall be required for Agent to take additional Collateral
pursuant to any Loan Document. No amendment, modification, termination or waiver
of any provision of any Note shall be effective without the written concurrence
of the holder of that Note. No notice to or demand on any Credit Party in any
case shall entitle such Credit Party or any other Credit Party to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
Section 11.2 shall be binding upon each holder of the Notes at the time
outstanding and each future holder of the Notes.
(d) If, in connection with any proposed amendment, modification,
waiver or termination (a "Proposed Change"):
(i) requiring the consent of all affected Lenders, the consent
of Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender whose consent is not obtained as
described in this clause (i) and in clause (ii) below being referred to as a
"Non-Consenting Lender"), or
(ii) requiring the consent of Supermajority Lenders, the consent
of Requisite Lenders is obtained, but the consent of Supermajority Lenders is
not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower's request,
Agent or a Person reasonably acceptable to Agent shall have the right with
Agent's consent and in Agent's sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Lenders, and such Non-Consenting Lenders agree
that they shall, upon Agent's request, sell and assign to Agent or such Person,
all of the Commitments of such Non-Consenting Lenders for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lenders and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement.
(e) Upon payment in full in cash and performance of all of the
Obligations (other than indemnification Obligations), termination of the
Commitments and a release of all claims against Agent and Lenders, and so long
as no suits, actions, proceedings or claims are pending or threatened against
any Indemnified Person asserting any damages, losses or liabilities that are
Indemnified Liabilities, Agent shall deliver to Borrower termination statements,
mortgage releases and other documents necessary or appropriate to evidence the
termination of the Liens securing payment of the Obligations.
11.3. Fees and Expenses.
-----------------
Borrower shall reimburse (i) Agent for all reasonable fees, costs and
expenses (including the reasonable fees and expenses of all of its counsel,
advisors, consultants and auditors) and (ii) Agent (and, with respect to clauses
(c) and (d) below, all Lenders) for all fees, costs and expenses, including the
reasonable fees, costs and expenses of counsel or
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other advisors (including environmental and management consultants and
appraisers), incurred in connection with the negotiation and preparation of the
Loan Documents and incurred in connection with:
(a) the forwarding to Borrower or any other Person on behalf of
Borrower by Agent of the proceeds of any Loan (including a wire transfer fee of
$25 per wire transfer);
(b) any amendment, modification or waiver of, consent with respect
to, or termination of, any of the Loan Documents or Related Transactions
Documents or advice in connection with the syndication and administration of the
Loans made pursuant hereto or its rights hereunder or thereunder;
(c) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by Agent, any Lender, Borrower or any other Person and
whether as a party, witness or otherwise) in any way relating to the Collateral,
any of the Loan Documents or any other agreement to be executed or delivered in
connection herewith or therewith, including any litigation, contest, dispute,
suit, case, proceeding or action, and any appeal or review thereof, in
connection with a case commenced by or against Borrower or any other Person that
may be obligated to Agent by virtue of the Loan Documents; including any such
litigation, contest, dispute, suit, proceeding or action arising in connection
with any work-out or restructuring of the Loans during the pendency of one or
more Events of Default; provided, that in the case of reimbursement of counsel
for Lenders other than Agent, such reimbursement shall be limited to one counsel
for all such Lenders; provided, further, that no Person shall be entitled to
reimbursement under this clause (c) in respect of any litigation, contest,
dispute, suit, proceeding or action to the extent any of the foregoing results
from such Person's gross negligence or willful misconduct;
(d) any attempt to enforce any remedies of Agent against any or all
of the Credit Parties or any other Person that may be obligated to Agent or any
Lender by virtue of any of the Loan Documents, including any such attempt to
enforce any such remedies in the course of any work-out or restructuring of the
Loans during the pendency of one or more Events of Default; provided, that in
the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;
(e) any workout or restructuring of the Loans during the pendency of
one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other Obligations,
(ii) evaluate, observe or assess any of the Credit Parties or their respective
affairs, and (iii) verify, protect, evaluate, assess, appraise, collect, sell,
liquidate or otherwise dispose of any of the Collateral;
including, as to each of clauses (a) through (f) above, all reasonable
attorneys' and other professional and service providers' fees arising from such
services and other advice, assistance or other representation, including those
in connection with any appellate proceedings, and all reasonable expenses,
costs, charges and other fees incurred by such
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counsel and others in connection with or relating to any of the events or
actions described in this Section 11.3, all of which shall be payable, on
demand, by Borrower to Agent, the Lenders or the applicable Lender (as the case
may be). Without limiting the generality of the foregoing, such reasonable
expenses, costs, charges and fees may include: reasonable fees, costs and
expenses of accountants, environmental advisors, appraisers, investment bankers,
management and other consultants and paralegals; court costs and expenses;
photocopying and duplication expenses; court reporter fees, costs and expenses;
long distance telephone charges; air express charges; telegram or telecopy
charges; secretarial overtime charges; and reasonable expenses for travel,
lodging and food paid or incurred in connection with the performance of such
legal or other advisory services. Borrower hereby agrees that, solely with
respect to the fees, costs and expenses described in the preceding clauses (c)
and (d), the determination as to the reasonableness of any such fees, costs and
expenses shall be made in the sole determination of Agent or each applicable
Lender, and Borrower waives any and all rights to challenge or contest any such
determination; provided, that following payment in full by Borrower to Agent and
Lenders (as applicable) of any and all such amounts, Borrower shall thereafter
have the right to challenge or contest any such determination.
11.4. No Waiver.
---------
Agent's or any Lender's failure, at any time or times, to require
strict performance by the Credit Parties of any provision of this Agreement or
any other Loan Document shall not waive, affect or diminish any right of Agent
or such Lender thereafter to demand strict compliance and performance herewith
or therewith. Any suspension or waiver of an Event of Default shall not suspend,
waive or affect any other Event of Default whether the same is prior or
subsequent thereto and whether the same or of a different type. Subject to the
provisions of Section 11.2, none of the undertakings, agreements, warranties,
covenants and representations of any Credit Party contained in this Agreement or
any of the other Loan Documents and no Default or Event of Default by any Credit
Party shall be deemed to have been suspended or waived by Agent or any Lender,
unless such waiver or suspension is by an instrument in writing signed by an
officer of or other authorized employee of Agent and the applicable required
Lenders, and directed to Borrower specifying such suspension or waiver.
11.5. Remedies.
--------
Agent's and Lenders' rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that Agent or any
Lender may have under any other agreement, including the other Loan Documents,
by operation of law or otherwise. Recourse to the Collateral shall not be
required.
11.6. Severability.
------------
Wherever possible, each provision of this Agreement and the other Loan
Documents shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement or any other Loan
Document shall be prohibited
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by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement or such other
Loan Document.
11.7. Conflict of Terms.
-----------------
Except as otherwise provided in this Agreement or any of the other
Loan Documents by specific reference to the applicable provisions of this
Agreement, if any provision contained in this Agreement conflicts with any
provision in any of the other Loan Documents, the provision contained in this
Agreement shall govern and control.
11.8. Confidentiality.
---------------
Agent and each Lender agree to use commercially reasonable efforts
(equivalent to the efforts Agent or such Lender applies to maintaining the
confidentiality of its own confidential information) to maintain as confidential
all confidential information provided to them by the Credit Parties for a period
of two years following the Termination Date, except that Agent and any Lender
may disclose such information (a) to Persons employed or engaged by or on behalf
of Agent or such Lender; (b) to any bona fide assignee or participant or
potential assignee or participant that has agreed to comply with the covenant
contained in this Section 11.8 (and any such bona fide assignee or participant
or potential assignee or participant may disclose such information to Persons
employed or engaged by or on behalf of them as described in clause (a) above);
(c) as required or requested by any Governmental Authority or reasonably
believed by Agent or such Lender to be compelled by any court decree, subpoena
or legal or administrative order or process; (d) as, on the advice of Agent's or
such Lender's counsel, is required by law; (e) in connection with the exercise
of any right or remedy under the Loan Documents or in connection with any
Litigation to which Agent or such Lender is a party; or (f) that ceases to be
confidential through no fault of Agent or any Lender. Notwithstanding anything
to the contrary set forth herein or in any other agreement to which the parties
hereto are parties or by which they are bound, the obligations of
confidentiality contained herein and therein, as they relate to the transactions
contemplated by the Agreement and the other Loan Documents (the "Transaction"),
shall not apply to the federal tax structure or federal tax treatment of the
Transaction, and each party hereto (and any employee, representative, or agent
of or on behalf of any party hereto) may disclose to any and all persons,
without limitation of any kind, the federal tax structure and federal tax
treatment of the Transaction. The preceding sentence is intended to cause the
Transaction to be treated as not having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended, and shall be construed in a manner
consistent with such purpose. In addition, each party hereto acknowledges that
it has no proprietary or exclusive rights to the federal tax structure of the
Transaction or any federal tax matter or federal tax idea related to the
Transaction.
If Agent or any Lender is required to disclose any portion of
non-public, confidential or proprietary information pursuant to either of
clauses (c) or (e) of the
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preceding paragraph, to the extent practicable and not otherwise prohibited by
law or by any legal, administrative or regulatory order or process, such entity
shall notify Borrower of such disclosure as soon as is commercially reasonable,
and shall reasonably cooperate in any effort of Borrower to maintain, at
Borrower's sole cost and expense, the confidentiality of such information,
including without limitation applying for protective court orders.
11.9. GOVERNING LAW.
-------------
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS,
IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH CREDIT PARTY HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY,
CITY OF CHICAGO, ILLINOIS SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT PARTIES, AGENT AND LENDERS
PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED, THAT AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
XXXX COUNTY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT.
EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY
WAIVES ANY OBJECTION THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN
ANNEX I OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH
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CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE UNITED
STATES MAILS, PROPER POSTAGE PREPAID.
11.10. Notices.
-------
Except as otherwise provided herein, whenever it is provided herein
that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other parties, or whenever any of the parties desires to give or serve upon any
other parties any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be deemed to have been validly served, given or
delivered: (a) upon the earlier of actual receipt and 3 Business Days after
deposit in the United States Mail, registered or certified mail, return receipt
requested, with proper postage prepaid; (b) upon transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this Section 11.10); (c) 1 Business
Day after deposit with a reputable overnight courier with all charges prepaid or
(d) when delivered, if hand-delivered by messenger, all of which shall be
addressed to the party to be notified and sent to the address or facsimile
number indicated in Annex I or to such other address (or facsimile number) as
may be substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to any Person
(other than Borrower or Agent) designated in Annex I to receive copies shall in
no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
11.11. Section Titles.
--------------
The Section titles and Table of Contents contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
11.12. Counterparts.
------------
This Agreement may be executed in any number of separate counterparts,
each of which shall collectively and separately constitute one agreement.
11.13. WAIVER OF JURY TRIAL.
--------------------
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
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TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT PARTY ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
11.14. Press Releases and Related Matters.
----------------------------------
Each Credit Party executing this Agreement agrees that neither it nor
its Affiliates will in the future issue any press releases or other public
disclosure using the name of GE Capital or its affiliates or referring to this
Agreement, the other Loan Documents or the Related Transactions Documents
without at least 2 Business Days' prior notice to GE Capital and without the
prior written consent of GE Capital unless (and only to the extent that) such
Credit Party or Affiliate is required to do so under law and then, in any event,
such Credit Party or Affiliate will consult with GE Capital before issuing such
press release or other public disclosure. Each Credit Party consents to the
publication by Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement,
subject to Borrower's review and approval of the content thereof. Agent reserves
the right to provide to industry trade organizations information necessary and
customary for inclusion in league table measurements.
11.15. Reinstatement.
-------------
This Agreement shall remain in full force and effect and continue to
be effective should any petition be filed by or against Borrower for liquidation
or reorganization, should Borrower become insolvent or make an assignment for
the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of Borrower's assets, and shall
continue to be effective or to be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a "voidable preference,"
"fraudulent conveyance," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
11.16. Advice of Counsel.
-----------------
Each of the parties represents to each other party hereto that it has
discussed this Agreement and, specifically, the provisions of Sections 11.9 and
11.13, with its counsel.
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11.17. No Strict Construction.
----------------------
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
BORROWER:
UNIVERSAL HOSPITAL SERVICES, INC.
By /s/ Xxxx X Xxxxx
-------------------------------------
Name Xxxx X Xxxxx
-----------------------------------
Title Senior Vice President +
----------------------------------
Chief financial officer
----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and as a Lender
By /s/ Xxxxxx Xxxxxx
-------------------------------------
Duly Authorized Signatory
FLEET NATIONAL BANK, as a Lender
By /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Title Vice President
----------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By /s/ Xxx Xxxxxx
-------------------------------------
Its Vice President
------------------------------------
CIT LENDING SERVICES CORPORATION,
as a Lender
By /s/ Xxxx Xxxxxx
-------------------------------------
Title Vice President
----------------------------------
LASALLE BUSINESS CREDIT, LLC,
as a Lender
By /s/ Xxxxxx Xxxxxx
-------------------------------------
Title Vice President/Senior Counsel
----------------------------------
ANNEX A (Recitals)
to
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have (unless
otherwise provided elsewhere in the Loan Documents) the following respective
meanings, and all references to Sections, Exhibits, Schedules or Annexes in the
following definitions shall refer to Sections, Exhibits, Schedules or Annexes of
or to the Agreement:
"Account Debtor" means any Person who may become obligated to any
Credit Party under, with respect to, or on account of, an Account, Chattel Paper
or General Intangibles (including a payment intangible).
"Accounting Changes" has the meaning ascribed thereto in Annex G.
"Accounts" means all "accounts," as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, including (a) all accounts
receivable, other receivables, book debts and other forms of obligations (other
than forms of obligations evidenced by Chattel Paper or Instruments), (including
any such obligations that may be characterized as an account or contract right
under the Code), (b) all of each Credit Party's rights in, to and under all
purchase orders or receipts for goods or services, (c) all of each Credit
Party's rights to any goods represented by any of the foregoing (including
unpaid sellers' rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods), (d) all rights
to payment due to any Credit Party for property sold, leased, licensed, assigned
or otherwise disposed of, for a policy of insurance issued or to be issued, for
a secondary obligation incurred or to be incurred, for energy provided or to be
provided, for the use or hire of a vessel under a charter or other contract,
arising out of the use of a credit card or charge card, or for services rendered
or to be rendered by such Credit Party or in connection with any other
transaction (whether or not yet earned by performance on the part of such Credit
Party), (e) all health care insurance receivables and (f) all collateral
security and guaranties of any kind, given by any Account Debtor or any other
Person with respect to any of the foregoing.
"Activation Event" and "Activation Notice" have the meanings ascribed
thereto in Annex C.
"Advance" means any Revolving Credit Advance or Swing Line Advance, as
the context may require.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, ten percent (10%) or more of the Stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common
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control with such Person, (c) each of such Person's officers, directors, joint
venturers and partners and (d) in the case of Borrower, the immediate family
members, spouses and lineal descendants of individuals who are Affiliates of
Borrower. For the purposes of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise; provided, however, that the term
"Affiliate" shall specifically exclude Agent and each Lender.
"Agent" means GE Capital in its capacity as Agent for Lenders or its
successor appointed pursuant to Section 9.7.
"Agreement" means the Credit Agreement dated as of October 17, 2003,
by and among Borrower, the other Credit Parties party thereto, GE Capital, as
Agent and Lender and the other Lenders from time to time party thereto, as the
same may be amended, supplemented, restated or otherwise modified from time to
time.
"Appendices" has the meaning ascribed to it in the recitals to the
Agreement.
"Applicable L/C Margin" means the per annum fee, from time to time in
effect, payable with respect to outstanding Letter of Credit Obligations as
determined by reference to Section 1.5(a).
"Applicable Margins" means collectively the Applicable L/C Margin, the
Applicable Revolver Index Margin, and the Applicable Revolver LIBOR Margin.
"Applicable Revolver Index Margin" means the per annum interest rate
margin from time to time in effect and payable in addition to the Index Rate
applicable to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable Revolver LIBOR Margin" means the per annum interest rate
margin from time to time in effect and payable in addition to the LIBOR Rate
applicable to the Revolving Loan, as determined by reference to Section 1.5(a).
"Assignment Agreement" has the meaning ascribed to it in Section
9.1(a).
"Bankruptcy Code" means the provisions of Title 11 of the United
States Code, 11 U.S.C. Sections 101 et seq.
"Blocked Accounts" has the meaning ascribed to it in Annex C.
"Borrower" shall have the meaning ascribed thereto in the preamble to
the Agreement.
"Borrowing Availability" means, as of any date of determination, the
lesser of (i) the Maximum Amount and (ii) the Borrowing Base, in each case, less
the sum of the aggregate Revolving Loan and Swing Line Loan then outstanding.
A-2
"Borrowing Base" means, as of any date of determination by Agent, from
time to time, an amount equal to the sum at such time of:
(a) up to eighty-five percent (85%) of the total face amount of
Borrower's Eligible Accounts; and
(b) the sum of:
(i) up to fifty-five percent (55%) of Borrower's Eligible
Rental Equipment valued on a net book value basis consistent with Borrower's
consolidated month-end balance sheet;
(ii) up to fifty percent (50%) of Borrower's Eligible Wholesale
Disposables valued on a net book value basis consistent with Borrower's
consolidated month-end balance sheet; and
(iii) up to twenty percent (20%) of Borrower's Eligible Equipment
Disposables valued on a net book value basis consistent with Borrower's
consolidated month-end balance sheet;
in each case, less any Reserves established by Agent at such time in accordance
with the terms and provisions of the Agreement.
"Borrowing Base Certificate" means a certificate to be executed and
delivered from time to time by Borrower in the form attached to the Agreement as
Exhibit 4.1(b).
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the States of Illinois
and/or New York and in reference to LIBOR Loans shall mean any such day that is
also a LIBOR Business Day.
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness) by
such Person during any measuring period for any fixed assets or improvements or
for replacements, substitutions or additions thereto that have a useful life of
more than one year and that are required to be capitalized under GAAP, excluding
(i) any such expenditures made within the applicable time periods set forth in
Section 1.3 or Section 5.4(c), as applicable, with the Net Proceeds obtained
from the disposition of property, plant and equipment and (ii) to the extent
otherwise deemed capital expenditures, expenditures made as part of Permitted
Acquisitions.
"Capital Lease" means, with respect to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee that, in
accordance with GAAP, would be required to be classified and accounted for as a
capital lease on a balance sheet of such Person.
A-3
"Capital Lease Obligation" means, with respect to any Capital Lease of
any Person, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in respect
of such Capital Lease.
"Cash Collateral Account" has the meaning ascribed to it Annex B.
"Cash Equivalents" has the meaning ascribed to it in Annex B.
"Cash Equivalent Investments" means (a) securities with maturities of
360 days or less from the date of acquisition issued or fully guaranteed or
insured by the United States government or any agency thereof, (b) certificates
of deposit and eurodollar time deposits with maturities of 360 days or less from
the date of acquisition and overnight bank deposits of any Lender or of any
commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than
seven days with respect to securities issued or fully guaranteed or insured by
the United States government, (d) commercial paper of a domestic issuer rated at
least A-1 or the equivalent thereof by Standard and Poor's Ratings Group ("S&P")
or P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc. ("Moody's")
and in either case maturing within 90 days after the day of acquisition, (e)
securities with maturities of 90 days or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of 90 days or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Cash Management Systems" has the meaning ascribed to it in Section
1.8.
"Change of Control" means (i) any event, transaction or occurrence as
a result of which (a) X.X. Childs and Halifax collectively cease to own and
control all of the economic and voting rights associated with ownership of at
least fifty and one-tenth percent (50.1%) of the outstanding capital Stock of
all classes of Borrower on a fully diluted basis, or (b) except to the extent
resulting from transfers permitted under Section 6.1, Borrower ceases to own and
control all of the economic and voting rights associated with all of the
outstanding capital Stock of any of its Subsidiaries and (ii) any "Change of
Control", "Change in Control" or any similar definition set forth in each of the
Prior Senior Note indenture and the Senior Note Indenture.
"Charges" means all federal, state, county, city, municipal, local,
foreign or other governmental taxes (including taxes owed to the PBGC at the
time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the
A-4
Collateral, (b) the Obligations, (c) the employees, payroll, income or gross
receipts of any Credit Party, (d) any Credit Party's ownership or use of any
properties or other assets, or (e) any other aspect of any Credit Party's
business.
"Chattel Paper" means any "chattel paper," as such term is defined in
the Code, including electronic chattel paper, now owned or hereafter acquired by
any Credit Party.
"Closing Checklist" means the schedule, including all appendices,
exhibits or schedules thereto, listing certain documents and information to be
delivered in connection with the Agreement, the other Loan Documents and the
transactions contemplated thereunder, substantially in the form attached hereto
as Annex D.
"Closing Date" means October 17, 2003.
"Closing Date Prior Senior Note Indenture Amendment" means that
certain First Supplemental Indenture, dated as of October 8, 2003, between
Borrower and U.S. Bank National Association (as successor to First Trust
National Association), as trustee.
"Code" means the Uniform Commercial Code as the same may, from time to
time, be enacted and in effect in the State of Illinois; provided, that to the
extent that the Code is used to define any term herein or in any Loan Document
and such term is defined differently in different Articles or Divisions of the
Code, the definition of such term contained in Article or Division 9 shall
govern; provided, further, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Agent's or any Lender's Lien on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of Illinois, the term "Code" shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such
provisions.
"Collateral" means the property covered by the Security Agreement and
the other Collateral Documents and any other property, real or personal,
tangible or intangible, now existing or hereafter acquired, that may at any time
be or become subject to a security interest or Lien in favor of Agent, on behalf
of itself and Lenders, to secure the Obligations.
"Collateral Documents" means the Security Agreement, the Patent
Security Agreement, the Trademark Security Agreement, the Copyright Security
Agreement and all similar agreements entered into guaranteeing payment of, or
granting a Lien upon property as security for payment of, the Obligations.
"Collateral Reports" means the reports with respect to the Collateral
referred to in Annex F.
"Collection Account" means that certain account of Agent, account
number 000-000-00 in the name of Agent at Bankers Trust Company in New York, New
York ABA
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No. 021 001 033, or such other account as may be specified in writing by Agent
as the "Collection Account.".
"Commitment Termination Date" means the earliest of (a) the sixty (60)
month anniversary date of the Closing Date, (b) the date of termination of
Lenders' obligations to make Advances and to incur Letter of Credit Obligations
or permit existing Loans to remain outstanding pursuant to Section 8.2(b), and
(c) the date of indefeasible prepayment in full by Borrower of the Loans and the
cancellation and return (or stand-by guarantee) of all Letters of Credit or the
cash collateralization of all Letter of Credit Obligations pursuant to Annex B,
and the permanent reduction of all Commitments to zero dollars ($0).
"Commitments" means (a) as to any Lender, the aggregate of such
Lender's Revolving Loan Commitment (including without duplication the Swing Line
Lender's Swing Line Commitment as a subset of its Revolving Loan Commitment) as
set forth on Annex J to the Agreement or in the most recent Assignment Agreement
executed by such Lender and (b) as to all Lenders, the aggregate of all Lenders'
Revolving Loan Commitments (including without duplication the Swing Line
Lender's Swing Line Commitment as a subset of its Revolving Loan Commitment),
which aggregate commitment shall be $100,000,000 on the Closing Date, as to each
of clauses (a) and (b), as such Commitments may be reduced, amortized or
adjusted from time to time in accordance with the Agreement.
"Compliance Certificate" has the meaning ascribed to it in Annex E.
"Contracts" means all "contracts," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest, including
any agreement relating to the terms of payment or the terms of performance of
any Account.
"Control Letter" means a letter agreement between Agent and (i) the
issuer of uncertificated securities with respect to uncertificated securities in
the name of any Credit Party, (ii) a securities intermediary with respect to
securities, whether certificated or uncertificated, securities entitlements and
other financial assets held in a securities account in the name of any Credit
Party or (iii) a futures commission merchant or clearing house, as applicable,
with respect to commodity accounts and commodity contracts held by any Credit
Party, whereby, among other things, the issuer, securities intermediary or
futures commission merchant disclaims or subordinates to the Lien of the Agent
any security interest in the applicable financial assets, acknowledges the Lien
of Agent, on behalf of itself and Lenders, on such financial assets, and agrees
to follow the instructions or entitlement orders of Agent without further
consent by the affected Credit Party.
"Copyright License" means any and all rights now owned or hereafter
acquired by any Credit Party under any written agreement granting any right to
use any Copyright or Copyright registration.
A-6
"Copyright Security Agreements" means the Copyright Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Copyrights" means all of the following now owned or hereafter adopted
or acquired by any Credit Party: (a) all copyrights and General Intangibles of
like nature (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright Office
or in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof, and (b) all
reissues, extensions or renewals thereof.
"Credit Parties" means Borrower, and each of its Subsidiaries.
"Default" means any event that, with the passage of time or notice or
both, would, unless cured or waived, become an Event of Default.
"Default Rate" has the meaning ascribed to it in Section 1.5(d).
"Deposit Accounts" means all "deposit accounts" as such term is
defined in the Code, now or hereafter held in the name of any Credit Party.
"Disbursement Accounts" has the meaning ascribed to it in Annex C.
"Disclosure Schedules" means the Schedules prepared by Borrower and
denominated as Disclosure Schedules 1.4 through 6.7 in the Index to the
Agreement.
"Documents" means all "documents," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located.
"Dollars" or "$" means lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of such
Person for such period determined in accordance with GAAP, minus (b) the sum of
(i) income tax credits for such period, (ii) interest income for such period,
(iii) gain from extraordinary items for such period, (iv) non-recurring gains
(as determined in accordance with GAAP) for such period, except as otherwise
determined by Agent in its reasonable discretion, (v) any aggregate net gain
(but not any aggregate net loss) during such period arising from the sale,
exchange or other disposition of capital assets by such Person (including any
fixed assets, whether tangible or intangible, all inventory sold in conjunction
with the disposition of fixed assets and all securities) excluding asset sales
occurring in the ordinary course of business and (vi) any other non-cash gains
for such period that have been added in determining consolidated net income, in
each case to the extent included in the calculation of consolidated net income
of such Person for such period in accordance with GAAP, but without duplication,
plus (c) the sum of (i) any provision for income taxes for such period, (ii)
interest expense for such period as defined by GAAP, (iii) loss from
extraordinary items
A-7
for such period, (iv) non-recurring loss for such period (as determined in
accordance with GAAP) to the extent approved by Agent in its reasonable
discretion, (v) the amount of non-cash charges (including depreciation and
amortization) for such period, (vi) amortized debt discount for such period,
(vii) expenses incurred during such period in connection with the Related
Transactions, to the extent disclosed in writing to Agent on or prior to the
Closing Date, (viii) expenses during such period in respect of management fees
and related expense reimbursements paid by any Credit Party, to the extent such
payments were permitted when made pursuant to Section 6.14, and do not exceed
$620,000 in the aggregate for any Fiscal Year with respect to all Credit Parties
and (ix) the amount of any deduction to consolidated net income for such period
as the result of any grant to any members of the management of such Person of
any Stock, in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with GAAP,
but without duplication. For purposes of this definition, the following items
shall be excluded in determining consolidated net income of a Person: (1) the
income (or deficit) of any other Person accrued prior to the date it became a
Subsidiary of, or was merged or consolidated into, such Person or any of such
Person's Subsidiaries; (2) the income (or deficit) of any other Person (other
than a Subsidiary) in which such Person has an ownership interest, except to the
extent any such income has actually been received by such Person in the form of
cash dividends or distributions; (3) the undistributed earnings of any
Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation or requirement of law
applicable to such Subsidiary; (4) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
income accrued during such period; (5) any write-up of any asset; (6) any net
gain from the collection of the proceeds of life insurance policies; (7) any net
gain arising from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness, of such Person, (8) in the case of a successor
to such Person by consolidation or merger or as a transferee of its assets, any
earnings of such successor prior to such consolidation, merger or transfer of
assets, and (9) any deferred credit representing the excess of equity in any
Subsidiary of such Person at the date of acquisition of such Subsidiary over the
cost to such Person of the investment in such Subsidiary. Determinations of
EBITDA in connection with Permitted Acquisitions shall be determined utilizing
the Pro Forma Basis.
"Eligible Accounts" has the meaning ascribed to it in Section 1.6.
"Eligible Equipment Disposables" means, as of any date of
determination, all Equipment Disposables of Borrower which (i) conform to the
requirements of Section 1.7 of the Agreement, and (ii) at all times continue to
be acceptable to the Agent in its commercially reasonable judgment.
"Eligible Rental Equipment" means, as of any date of determination,
the amount of all Rental Equipment of Borrower which (i) is held by Borrower
(other than for sale) or is rented to third Persons in the ordinary course of
business by Borrower or which is the subject of an equipment rental program or
similar equipment outsourcing program, (ii) conforms to the requirements of
Section 1.7 of the Agreement and (iii) at all times
A-8
continues to be acceptable to the Agent in its commercially reasonable judgment.
In any event, Eligible Rental Equipment shall (i) exclude the net book value of
Borrower's "Bazooka Bed" inventory, and (ii) account for reserves for Rental
Equipment that is unrentable, obsolete or slow moving.
"Eligible Wholesale Disposables" means, as of any date of
determination, all Wholesale Disposables of Borrower which (i) conform to the
requirements of Section 1.7 of the Agreement, and (ii) at all times continue to
be acceptable to the Agent in its commercially reasonable judgment.
"Environmental Laws" means all applicable federal, state, local and
foreign laws, statutes, ordinances, codes, rules, standards and regulations, now
or hereafter in effect, and any applicable judicial or administrative
interpretation thereof, including any applicable judicial or administrative
order, consent decree, order or judgment, imposing liability or standards of
conduct for or relating to the regulation and protection of human health,
safety, the environment and natural resources (including ambient air, surface
water, groundwater, wetlands, land surface or subsurface strata, wildlife,
aquatic species and vegetation). Environmental Laws include the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
Sections 9601 et seq.) ("CERCLA"); the Hazardous Materials Transportation
Authorization Act of 1994 (49 U.S.C. Sections 5101 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sections 136 et seq.); the
Solid Waste Disposal Act (42 U.S.C. Sections 6901 et seq.); the Toxic Substance
Control Act (15 U.S.C. Sections 2601 et seq.); the Clean Air Act (42 U.S.C.
Sections 7401 et seq.); the Federal Water Pollution Control Act (33 U.S.C.
Sections 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C.
Sections 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. Sections
300(f) et seq.), and any and all regulations promulgated thereunder, and all
analogous state, local and foreign counterparts or equivalents and any transfer
of ownership notification or approval statutes.
"Environmental Liabilities" means, with respect to any Person, all
liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel, experts
and consultants), fines, penalties, sanctions and interest incurred as a result
of or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"Environmental Permits" means all permits, licenses, authorizations,
certificates, approvals or registrations required by any Governmental Authority
under any Environmental Laws.
A-9
"Equipment" means all "equipment," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located and,
in any event, including all such Credit Party's machinery and equipment,
including processing equipment, conveyors, machine tools, data processing and
computer equipment, including embedded Software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery,
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and Fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"Equipment Disposables" means repair or replacement parts purchased by
Borrower or any of its Subsidiaries for repair of its Rental Equipment or for
sale to customers of Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Credit Party, any trade
or business (whether or not incorporated) that, together with such Credit Party,
are treated as a single employer within the meaning of Sections 414(b), (c), (m)
or (o) of the IRC.
"ERISA Event" means, with respect to any Credit Party or any ERISA
Affiliate, (a) any event described in Section 4043(c) of ERISA with respect to a
Title IV Plan; (b) the withdrawal of any Credit Party or ERISA Affiliate from a
Title IV Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of any Credit Party or any ERISA Affiliate from
any Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Title IV Plan or the treatment of a plan amendment as a termination under
Section 4041 of ERISA; (e) the institution of proceedings to terminate a Title
IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Credit Party
or ERISA Affiliate to make when due required contributions to a Multiemployer
Plan or Title IV Plan unless such failure is cured within 30 days; (g) any other
event or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of
liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; or (i)
the loss of a Qualified Plan's qualification or tax exempt status; or (j) the
termination of a Plan described in Section 4064 of ERISA.
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"ESOP" means a Plan that is intended to satisfy the requirements of
Section 4975(e)(7) of the IRC.
"Event of Default" has the meaning ascribed to it in Section 8.1.
"Fair Labor Standards Act" means the Fair Labor Standards Act, 29
U.S.C. Section 201 et seq.
"Federal Funds Rate" means, for any day, a floating rate equal to the
weighted average of the rates on overnight Federal funds transactions among
members of the Federal Reserve System, as determined by Agent in its sole
discretion, which determination shall be final, binding and conclusive (absent
manifest error).
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fees" means any and all fees payable to Agent or any Lender pursuant
to the Agreement or any of the other Loan Documents.
"Financial Covenants" means the financial covenants set forth in Annex
G.
"Financial Statements" means the consolidated and consolidating income
statements, statements of cash flows and balance sheets of Borrower delivered in
accordance with Section 3.4 and Annex E.
"Fiscal Month" means any of the monthly accounting periods of
Borrower.
"Fiscal Quarter" means any of the quarterly accounting periods of
Borrower, ending on March 31, June 30, September 30, and December 31of each
year.
"Fiscal Year" means any of the annual accounting periods of Borrower
ending on December 31 of each year.
"Fixtures" means all "fixtures" as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party.
"Funded Debt" means, with respect to any Person, without duplication,
all Indebtedness for borrowed money evidenced by notes, bonds, debentures, or
similar evidences of Indebtedness that by its terms matures more than one year
from, or is directly or indirectly renewable or extendible at such Person's
option under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of more than one year from the date of
creation thereof, and specifically including Capital Lease Obligations, current
maturities of long-term debt, revolving credit and short-term debt extendible
beyond one year at the option of the debtor, and also including, in the case of
Borrower, the Obligations and, without duplication, Guaranteed Indebtedness
consisting of guaranties of Funded Debt of other Persons.
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"GAAP" means generally accepted accounting principles in the United
States of America consistently applied, as such term is further defined in Annex
G to the Agreement.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"GE Capital Fee Letter" means that certain letter, dated as of
September 19, 2003, between GE Capital and Borrower with respect to certain Fees
to be paid from time to time by Borrower to GE Capital.
"General Intangibles" means all "general intangibles," as such term is
defined in the Code, now owned or hereafter acquired by any Credit Party,
including all right, title and interest that such Credit Party may now or
hereafter have in or under any Contract, all payment intangibles, customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor
and reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, Software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all
liability, life, key man and business interruption insurance, and all unearned
premiums), uncertificated securities, choses in action, deposit, checking and
other bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Credit Party or any computer bureau or service company from time to time acting
for such Credit Party.
"Goods" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, including embedded
Software to the extent included in "goods" as defined in the Code, manufactured
homes, standing timber that is cut and removed for sale and unborn young of
animals.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Indebtedness" means as to any Person, any obligation of
such Person guaranteeing, providing comfort or otherwise supporting any
Indebtedness, lease, dividend, or other obligation ("primary obligation") of any
other Person (the "primary
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obligor") in any manner, including any obligation or arrangement of such Person
to (a) purchase or repurchase any such primary obligation, (b) advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, (d) protect the
beneficiary of such arrangement from loss (other than product warranties given
in the ordinary course of business) or (e) indemnify the owner of such primary
obligation against loss in respect thereof. The amount of any Guaranteed
Indebtedness at any time shall be deemed to be an amount equal to the lesser at
such time of (x) the stated or determinable amount of the primary obligation in
respect of which such Guaranteed Indebtedness is incurred and (y) the maximum
amount for which such Person may be liable pursuant to the terms of the
instrument embodying such Guaranteed Indebtedness, or, if not stated or
determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof, as determined by such Person in good faith,
provided that the amount of any Guaranteed Indebtedness shall not, in any event,
exceed the amount which in light of the facts and circumstances, represents the
amount that can reasonably be expected to become an actual or matured liability
in accordance with GAAP.
"Guarantor" means each Person, if any, that executes a guaranty or
other similar agreement in favor of Agent, for itself and the ratable benefit of
Lenders, in connection with the transactions contemplated by the Agreement and
the other Loan Documents.
"Halifax" means Halifax Capital Partners, L.P., a Delaware limited
partnership.
"Hazardous Material" means any substance, material or waste that is
regulated by, or forms the basis of liability now or hereafter under, any
Environmental Laws, including any material or substance that is (a) defined as a
"solid waste," "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste," "pollutant,"
"contaminant," "hazardous constituent," "special waste," "toxic substance" or
other similar term or phrase under any Environmental Laws, or (b) petroleum or
any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB's),
or any radioactive substance.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property payment for which is deferred six months or more, but
excluding obligations to trade creditors incurred in the ordinary course of
business that are unsecured and not overdue by more than six months unless being
contested in good faith, (b) all reimbursement and other obligations with
respect to letters of credit, bankers' acceptances and surety bonds, whether or
not matured, (c) all obligations evidenced by notes, bonds, debentures or
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title
A-13
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property) in an
amount equal to the lesser of (A) such indebtedness and (B) if such indebtedness
has not been assumed by such Person and is otherwise non-recourse to such
Person, the fair market value of such property, (e) all Capital Lease
Obligations and the present value (discounted at the Index Rate as in effect on
the Closing Date) of future rental payments under all synthetic leases, (f) all
obligations of such Person under commodity purchase or option agreements or
other commodity price hedging arrangements, in each case whether contingent or
matured, (g) all obligations of such Person under any foreign exchange contract,
currency swap agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of that Person
arising from fluctuations in currency values or interest rates, in each case
whether contingent or matured, (h) all Indebtedness referred to above secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property or other assets
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness, in
an amount equal to the lesser of (A) such indebtedness and (B) if such
indebtedness has not been assumed by such Person and is otherwise non-recourse
to such Person, the fair market value of such property, and (i) the Obligations.
"Indemnified Liabilities" has the meaning ascribed to it in Section
1.13.
"Indemnified Person" has the meaning ascribed to in Section 1.13.
"Index Rate" means, for any day, a floating rate equal to the higher
of (i) the rate publicly quoted from time to time by The Wall Street Journal as
the "base rate on corporate loans posted by at least seventy-five percent (75%)
of the nation's 30 largest banks" (or, if The Wall Street Journal ceases quoting
a base rate of the type described, the highest per annum rate of interest
published by the Federal Reserve Board in Federal Reserve statistical release
H.15 (519) entitled "Selected Interest Rates" as the Bank prime loan rate or its
equivalent), and (ii) the Federal Funds Rate plus 50 basis points per annum.
Each change in any interest rate provided for in the Agreement based upon the
Index Rate shall take effect at the time of such change in the Index Rate.
"Index Rate Loan" means a Loan or portion thereof bearing interest by
reference to the Index Rate.
"Instruments" means all "instruments," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located,
and, in any event, including all certificated securities, all certificates of
deposit, and all promissory notes and other evidences of indebtedness, other
than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Intellectual Property" means any and all Licenses, Patents,
Copyrights, Trademarks, and the goodwill associated with such Trademarks.
A-14
"Interest Coverage Ratio" means with respect to any Person for any
fiscal period, the ratio of EBITDA for such period to Interest Expense for such
period.
"Interest Expense" means, with respect to any Person for any fiscal
period, cash interest expense of such Person determined in accordance with GAAP
for the relevant period ended on such date, including, interest expense with
respect to any Funded Debt of such Person.
"Interest Payment Date" means (a) as to any Index Rate Loan, the first
Business Day of each month to occur while such Loan is outstanding, and (b) as
to any LIBOR Loan, the last day of the applicable LIBOR Period; provided, that
in the case of any LIBOR Period greater than three months in duration, interest
shall be payable at three-month intervals and on the last day of such LIBOR
Period; and provided, further that, in addition to the foregoing, each of (x)
the date upon which all of the Commitments have been terminated and the Loans
have been paid in full and (y) the Commitment Termination Date shall be deemed
to be an "Interest Payment Date" with respect to any interest that has then
accrued under the Agreement.
"Interest Rate Agreement" means any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other similar
agreement or arrangement designed to hedge the position of Borrower or any
Subsidiary with respect to interest rates.
"Inventory" means all "inventory," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located, and
in any event including inventory, merchandise, goods and other personal property
that are held by or on behalf of any Credit Party for sale or lease or are
furnished or are to be furnished under a contract of service, or that constitute
raw materials, work in process, finished goods, returned goods, or materials or
supplies of any kind, nature or description used or consumed or to be used or
consumed in such Credit Party's business or in the processing, production,
packaging, promotion, delivery or shipping of the same, including all supplies
and embedded Software.
"Investment Property" means all "investment property" as such term is
defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"IRC" means the Internal Revenue Code of 1986 and all regulations
promulgated thereunder.
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"IRS" means the Internal Revenue Service.
"X.X. Childs" means, collectively, X.X. Childs Equity Partners III,
L.P., a Delaware limited partnership, and X.X. Childs Equity Partners, L.P., a
Delaware limited partnership.
"L/C Issuer" has the meaning ascribed to it in Annex B.
"L/C Sublimit" has the meaning ascribed to it in Annex B.
"Lenders" means GE Capital, the other Lenders named on the signature
pages of the Agreement, and, if any such Lender shall decide to assign all or
any portion of the Obligations, such term shall include any assignee of such
Lender.
"Letter of Credit Fee" has the meaning ascribed to it in Annex B.
"Letter of Credit Obligations" means all outstanding obligations
incurred by Agent and Lenders at the request of Borrower, whether direct or
indirect, contingent or otherwise, due or not due, in connection with the
issuance of Letters of Credit by Agent or another L/C Issuer or the purchase of
a participation as set forth in Annex B with respect to any Letter of Credit.
The amount of such Letter of Credit Obligations shall equal the maximum amount
that may be payable at such time or at any time thereafter by Agent or Lenders
thereupon or pursuant thereto.
"Letter-of-Credit Rights" means "letter-of-credit rights" as such term
is defined in the Code, now owned or hereafter acquired by any Credit Party,
including rights to payment or performance under a letter of credit, whether or
not such Credit Party, as beneficiary, has demanded or is entitled to demand
payment or performance.
"Letters of Credit" means documentary or standby letters of credit
issued for the account of Borrower by any L/C Issuer, and bankers' acceptances
issued by Borrower, for which Agent and Lenders have incurred Letter of Credit
Obligations.
"LIBOR Business Day" means a Business Day on which banks in the City
of London are generally open for interbank or foreign exchange transactions.
"LIBOR Loan" means a Loan or any portion thereof bearing interest by
reference to the LIBOR Rate.
"LIBOR Period" means, with respect to any LIBOR Loan, each period
commencing on a LIBOR Business Day selected by Borrower pursuant to the
Agreement and ending one, two, three or six months thereafter, as selected by
Borrower's irrevocable notice to Agent as set forth in Section 1.5(e); provided,
that the foregoing provision relating to LIBOR Periods is subject to the
following:
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(a) if any LIBOR Period would otherwise end on a day that is not a
LIBOR Business Day, such LIBOR Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such extension would be
to carry such LIBOR Period into another calendar month in which event such
LIBOR Period shall end on the immediately preceding LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the
Commitment Termination Date shall end 2 LIBOR Business Days prior to such
date;
(c) any LIBOR Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such LIBOR Period) shall end on the
last LIBOR Business Day of a calendar month;
(d) Borrower shall select LIBOR Periods so as not to require a
payment or prepayment of any LIBOR Loan during a LIBOR Period for such
Loan; and
(e) Borrower shall select LIBOR Periods so that there shall be no
more than 5 separate LIBOR Loans in existence at any one time.
"LIBOR Rate" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
(a) the offered rate for deposits in United States Dollars for the
applicable LIBOR Period that appears on Telerate Page 3750 as of 11:00 a.m.
(London time), on the second full LIBOR Business Day next preceding the
first day of such LIBOR Period (unless such date is not a Business Day, in
which event the next succeeding Business Day will be used); divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is 2 LIBOR Business Days prior to
the beginning of such LIBOR Period (including basic, supplemental, marginal
and emergency reserves under any regulations of the Federal Reserve Board
or other Governmental Authority having jurisdiction with respect thereto,
as now and from time to time in effect) for Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Federal
Reserve Board that are required to be maintained by a member bank of the
Federal Reserve System.
If such interest rates shall cease to be available from Telerate News Service,
the LIBOR Rate shall be determined from such financial reporting service or
other information as shall be mutually acceptable to Agent and Borrower.
A-17
"License" means any Copyright License, Patent License, Trademark
License or other license of rights or interests now held or hereafter acquired
by any Credit Party.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).
"Litigation" has the meaning ascribed to it in Section 3.13.
"Loan Account" has the meaning ascribed to it in Section 1.12.
"Loan Documents" means the Agreement, the Notes, the Collateral
Documents, the Master Standby Agreement, the Master Documentary Agreement, and
all other agreements, instruments, documents and certificates identified in the
Closing Checklist executed and delivered to, or in favor of, Agent or any
Lenders and including all other pledges, powers of attorney, consents,
assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party, or
any employee of any Credit Party, and delivered to Agent or any Lender in
connection with the Agreement or the transactions contemplated thereby. Any
reference in the Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to the
Agreement or such Loan Document as the same may be in effect at any and all
times such reference becomes operative.
"Loans" means the Revolving Loan and the Swing Line Loan.
"Lock Boxes" has the meaning ascribed to it in Annex C.
"Margin Stock" has the meaning ascribed to in Section 3.10.
"Master Documentary Agreement" means the Master Agreement for
Documentary Letters of Credit dated as of the Closing Date between Borrower, as
Applicant, and GE Capital.
"Master Standby Agreement" means the Master Agreement for Standby
Letters of Credit dated as of the Closing Date between Borrower, as Applicant,
and GE Capital, as issuer.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition (financial or otherwise) of any Credit
Party, (b) Borrower's ability to pay any of the Loans or any of the other
Obligations in accordance with the terms of the Agreement, (c) the Collateral or
Agent's Liens, on behalf of itself and Lenders, on the
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Collateral or the priority of such Liens, or (d) Agent's or any Lender's rights
and remedies under the Agreement and the other Loan Documents.
"Maximum Amount" means, as of any date of determination, an amount
equal to the Revolving Loan Commitment of all Lenders as of that date.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and to which any Credit Party or ERISA Affiliate is
making, is obligated to make or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
"Net Proceeds" means (i) the aggregate cash consideration received by
Borrower or a Subsidiary in connection with any transaction referred to in
Section 1.3(b)(iii) less (ii) the reasonable expenses (including out-of-pocket
expenses) incurred by Borrower or such Subsidiary in connection with such
transaction (including, in the case of any issuance of debt or equity
securities, reasonable underwriters' commissions and fees) and the amount of any
federal and state taxes incurred in connection with such transaction, in each
case as certified to Agent at the time of such transaction.
"Non-Funding Lender" has the meaning ascribed to it in Section
9.9(a)(ii).
"Notes" means, collectively, the Revolving Notes and the Swing Line
Notes.
"Notice of Conversion/Continuation" has the meaning ascribed to it in
Section 1.5(e).
"Notice of Revolving Credit Advance" has the meaning ascribed to it in
Section 1.1(a).
"Obligations" means all loans, advances, debts, liabilities and
obligations for the performance of covenants, tasks or duties or for payment of
monetary amounts (whether or not such performance is then required or
contingent, or such amounts are liquidated or determinable) owing by any Credit
Party to Agent or any Lender, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note, agreement or other instrument, arising under the Agreement or any of
the other Loan Documents. This term includes all principal, interest (including
all interest that accrues after the commencement of any case or proceeding by or
against any Credit Party in bankruptcy, whether or not allowed in such case or
proceeding), Fees, Charges, expenses, attorneys' fees and any other sum
chargeable to any Credit Party under the Agreement or any of the other Loan
Documents.
"Patent License" means rights under any written agreement now owned or
hereafter acquired by any Credit Party granting any right with respect to any
invention on which a Patent is in existence.
A-19
"Patent Security Agreements" means the Patent Security Agreements made
in favor of Agent, on behalf of itself and Lenders, by each applicable Credit
Party.
"Patents" means all of the following in which any Credit Party now
holds or hereafter acquires any interest: (a) all letters patent of the United
States or of any other country, all registrations and recordings thereof, and
all applications for letters patent of the United States or of any other
country, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State, or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a Plan described in Section 3(2) of ERISA.
"Permitted Acquisition" has the meaning ascribed to it in Section
6.1(i).
"Permitted Encumbrances" means the following encumbrances: (a) Liens
for taxes or assessments or other governmental Charges not yet due and payable
or which are being contested in accordance with Section 5.2(b); (b) pledges or
deposits of money securing statutory obligations under workmen's compensation,
unemployment insurance, social security or public liability laws or similar
legislation (excluding Liens under ERISA); (c) pledges or deposits of money
securing bids, tenders, contracts (other than contracts for the payment of
money) or leases to which any Credit Party is a party as lessee made in the
ordinary course of business; (d) inchoate and unperfected workers', mechanics'
or similar liens arising in the ordinary course of business, so long as such
Liens attach only to Equipment, Fixtures and/or Real Estate; (e) carriers',
warehousemen's, suppliers' or other similar possessory liens arising in the
ordinary course of business and securing liabilities in an outstanding aggregate
amount not in excess of $250,000 at any time, so long as such Liens attach only
to Inventory; (f) deposits securing, or in lieu of, surety, appeal or customs
bonds in proceedings to which any Credit Party is a party; (g) any attachment or
judgment lien not constituting an Event of Default under Section 8.1(j); (h)
zoning restrictions, easements, licenses, or other restrictions on the use of
any Real Estate or other minor irregularities in title (including leasehold
title) thereto, so long as the same do not materially impair the use, value, or
marketability of such Real Estate; (i) presently existing or hereafter created
Liens in favor of Agent, on behalf of Lenders; (j) licenses, leases or subleases
granted to other Persons not interfering in any material respect with the
business of Borrower or any of its Subsidiaries; (k) bankers' Liens, rights of
setoff and similar Liens incurred on deposits made in the ordinary course of
business; (l) Liens arising from precautionary UCC financing statements
regarding operating leases; and (m) Liens expressly permitted under clauses (b),
(c) and (d) of Section 6.7 of the Agreement.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, other entity or
government (whether federal, state,
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county, city, municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" means, at any time, an "employee benefit plan", as defined in
Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate maintains,
contributes to or has an obligation to contribute to or has maintained,
contributed to or had an obligation to contribute to at any time within the past
seven years on behalf of participants who are or were employed by any Credit
Party or ERISA Affiliate.
"Prior Lender" means collectively, each holder of all or any portion
of the Prior Lender Obligations.
"Prior Lender Obligations" means the indebtedness arising under that
certain Credit Agreement dated as of October 25, 1999 among Borrower, Key
Corporate Capital, Inc., as Collateral Agent, Xxxxxx Financial, Inc., as
Syndication Agent and Canadian Imperial Board of Commerce, as Administrative
Agent, as amended.
"Prior Senior Note Indenture" means that certain Indenture, dated as
of February 25, 1998, between Borrower and First Trust National Association, as
trustee, as amended or otherwise modified through and including the Closing Date
(including without limitation pursuant to the Closing Date Prior Senior Note
Indenture Amendment).
"Prior Senior Notes" means those certain 10 1/4% Senior Notes due
2008, Series A and those certain 10 1/4% Senior Notes due 2008, Series B of
Borrower issued pursuant to the Prior Senior Note Indenture, as amended or
otherwise modified through and including the Closing Date.
"Proceeds" means "proceeds," as such term is defined in the Code,
including (a) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to any Credit Party from time to time with respect to any of
the Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to any Credit Party from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting under
color of governmental authority), (c) any claim of any Credit Party against
third parties (i) for past, present or future infringement of any Patent or
Patent License, or (ii) for past, present or future infringement or dilution of
any Copyright, Copyright License, Trademark or Trademark License, or for injury
to the goodwill associated with any Trademark or Trademark License, (d) any
recoveries by any Credit Party against third parties with respect to any
litigation or dispute concerning any of the Collateral including claims arising
out of the loss or nonconformity of, interference with the use of, defects in,
or infringement of rights in, or damage to, Collateral, (e) all amounts
collected on, or distributed on account of, other Collateral, including
dividends, interest, distributions and Instruments with respect to Investment
Property and Stock, and (f) any and all other amounts, rights to payment or
other property acquired upon the sale, lease, license, exchange or other
disposition of Collateral and all rights arising out of Collateral.
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"Pro Forma" means the unaudited consolidated balance sheet of Borrower
as of June 30, 2003 after giving pro forma effect to the Related Transactions.
"Pro Forma Basis" means, for purposes of calculating compliance with
each of the financial covenants set forth in Annex G in respect of a proposed
Permitted Acquisition, that such proposed Permitted Acquisition shall be deemed
to have occurred as of the first day of the four fiscal quarter period ending as
of the most recent fiscal quarter end preceding the date of such proposed
Permitted Acquisition with respect to which Agent has received the required
financial information, but solely to the extent that either (i) Agent shall have
provided its express written approval to the financial statements of a Target
the subject of a Permitted Acquisition or (ii) the financial statements of a
Target provided to Agent shall have been audited by independent accountants
reasonably acceptable to Agent. As used herein, "transaction" shall mean any
Permitted Acquisition. In connection with any calculation of the financial
covenants set forth in Annex G, upon giving effect to a Permitted Acquisition on
a Pro Forma Basis:
(A) for purposes of any such calculation in respect of any incurrence or
assumption of Indebtedness in connection with such proposed Permitted
Acquisition, any Indebtedness which is retired in connection with such
incurrence or assumption shall be excluded and deemed to have been
retired as of the first day of the applicable period;
(B) for purposes of any such calculation in respect of any Permitted
Acquisition, (1) any Indebtedness incurred or assumed by any Credit
Party in connection with such transaction (including the Person or
property acquired) and any Indebtedness of the Person or property
acquired which is not retired in connection with such transaction (x)
shall be deemed to have been incurred as of the first day of the
applicable period and (y) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination and (2) income
statement items (whether positive or negative) attributable to the
Person or property acquired shall be included beginning as of the
first day of the applicable period.
"Projections" means Borrower's forecasted consolidated and
consolidating: (a) balance sheets; (b) profit and loss statements; (c) cash flow
statements; and (d) capitalization statements, all prepared on a Subsidiary by
Subsidiary or division-by-division basis, if applicable, and otherwise
consistent with the historical Financial Statements of the Borrower, together
with appropriate supporting details and a statement of underlying assumptions.
"Pro Rata Share" means with respect to all matters relating to any
Lender, (a) with respect to the Loans, the percentage obtained by dividing (i)
the Revolving Loan
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Commitment of that Lender by (ii) the aggregate Revolving Loan Commitments of
all Lenders, and (b) with respect to all Loans on and after the Commitment
Termination Date, the percentage obtained by dividing (i) the aggregate
outstanding principal balance of the Loans held by that Lender, by (ii) the
outstanding principal balance of the Loans held by all Lenders.
"Qualified Assignee" means (a) any Lender, any Affiliate of any Lender
and, with respect to any Lender that is an investment fund that invests in
commercial loans, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor, and (b) any commercial bank, savings
and loan association or savings bank or any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act of 1933) which
extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Xxxxx'x at the date that it becomes a Lender and
which, through its applicable lending office, is capable of lending to Borrower
without the imposition of any withholding or similar taxes; provided, that (i)
no Person determined by Agent to be acting in the capacity of a vulture fund or
distressed debt purchaser shall be a Qualified Assignee, (ii) no Person or
Affiliate of such Person (other than a Person that is already a Lender) holding
Subordinated Debt or Stock issued by any Credit Party shall be a Qualified
Assignee and (iii) at any time no Event of Default described in any of Sections
8.1(a), 8.1(h) or 8.1(i) is then in existence, no Person that is engaged in any
line of business involving the sale, rental, leasing, management, servicing or
outsourcing of medical equipment, and is identified by Borrower to Agent as
being disqualified as a Qualified Assignee due to being engaged in any such line
of business prior to the consummation of an assignment or sale to such Person
described in Section 9.1(a), shall be a Qualified Assignee.
"Qualified Plan" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"Qualified Subordinated Notes" means promissory notes that (i) provide
for no scheduled or other mandatory principal payments or prepayments prior to
the date six months following the date set forth in clause (a) of the defined
term "Commitment Termination Date", (ii) provide for no voluntary principal
payment or prepayment, except (x) in the manner set forth in the proviso to
Section 6.18(a) or (y) with the prior written consent of Agent and Requisite
Lenders, (iii) provide for no cash interest payments prior to the date set forth
in clause (i) above and (iv) otherwise qualify as Subordinated Debt.
"Real Estate" has the meaning ascribed to it in Section 3.6.
"Recapitalization" means the transactions contemplated by the
Recapitalization Agreements.
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"Recapitalization Agreements" mean, collectively, (i) that certain
Stock Purchase Agreement dated as of September 26, 2003 among X.X. Childs Equity
Partners III, L.P., JWC Co-invest III LLC, Halifax, Borrower and certain other
parties named therein, (ii) those certain Repurchase Agreements dated on or
about October 17, 2003 among Borrower and certain Stockholders of Borrower;
(iii) that certain letter agreement dated as of September 26, 2003 between
Borrower and Security Life of Denver Insurance Company, (iv) the Senior Note
Indenture and the Senior Notes, (v) the Closing Date Prior Senior Note Indenture
Amendment and (vi) that certain Offer to Purchase and Consent Solicitation
Statement of Borrower dated September 24, 2003.
"Refinancing" means the repayment in full by Borrower of the Prior
Lender Obligations on the Closing Date.
"Refunded Swing Line Loan" has the meaning ascribed to it in Section
1.1(b)(iii).
"Related Transactions" means the initial borrowing (if any) under the
Revolving Loan on the Closing Date, the Recapitalization, the Refinancing, the
issuance of the Senior Notes, the execution and delivery of the Closing Date
Prior Senior Note Indenture Amendment, the payment of all fees, costs and
expenses associated with all of the foregoing and the execution and delivery of
all of the Related Transactions Documents.
"Related Transactions Documents" means the Loan Documents, the
Recapitalization Agreements and all other agreements or instruments executed in
connection with the Related Transactions.
"Release" means any release, threatened release, spill, emission,
leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Material in the indoor or outdoor environment, including the movement of
Hazardous Material through or in the air, soil, surface water, ground water or
property.
"Rental Equipment" means all movable medical equipment owned by
Borrower or any of its Subsidiaries generally consisting of, but not limited to,
critical care equipment, monitoring equipment, newborn care equipment and
respiratory therapy equipment.
"Requisite Lenders" means Lenders having (a) more than fifty percent
(50%) of the Commitments of all Lenders, or (b) if the Commitments have been
terminated, more than fifty percent (50%) of the aggregate outstanding amount of
all Loans.
"Reserves" means reserves established pursuant to either of Sections
1.6 or 1.7 and such other reserves against Borrowing Availability expressly
authorized by any Loan Document.
A-24
"Restricted Payment" means, with respect to any Credit Party (a) the
declaration or payment of any dividend or the incurrence of any liability to
make any other payment or distribution of cash or other property or assets in
respect of Stock; (b) any payment on account of the purchase, redemption,
defeasance, sinking fund or other retirement of such Credit Party's Stock or any
other payment or distribution made in respect thereof, either directly or
indirectly; (c) any payment or prepayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim
for rescission with respect to, any Subordinated Debt; (d) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire Stock of such Credit
Party now or hereafter outstanding; (e) any payment of a claim for the
rescission of the purchase or sale of, or for material damages arising from the
purchase or sale of, any shares of such Credit Party's Stock or of a claim for
reimbursement, indemnification or contribution arising out of or related to any
such claim for damages or rescission; (f) any payment, loan, contribution, or
other transfer of funds or other property to any Stockholder of such Credit
Party other than payment of compensation in the ordinary course of business to
Stockholders who are employees of such Person; and (g) any payment of management
fees (or other fees of a similar nature) by such Credit Party to any Stockholder
of such Credit Party or its Affiliates.
"Retiree Welfare Plan" means, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of employment,
other than continuation coverage provided pursuant to Section 4980B of the IRC
and at the sole expense of the participant or the beneficiary of the
participant.
"Revolving Credit Advance" has the meaning ascribed to it in Section
1.1(a)(i).
"Revolving Loan" means, at any time, the sum of (i) the aggregate
amount of Revolving Credit Advances outstanding to Borrower plus (ii) the
aggregate Letter of Credit Obligations incurred on behalf of Borrower. Unless
the context otherwise requires, references to the outstanding principal balance
of the Revolving Loan shall include the outstanding balance of Letter of Credit
Obligations.
"Revolving Loan Commitment" means (a) as to any Lender, the aggregate
commitment of such Lender to make Revolving Credit Advances or incur Letter of
Credit Obligations as set forth on Annex J to the Agreement or in the most
recent Assignment Agreement executed by such Lender and (b) as to all Lenders,
the aggregate commitment of all Lenders to make Revolving Credit Advances or
incur Letter of Credit Obligations, which aggregate commitment shall be
$100,000,000 on the Closing Date, as such amount may be adjusted, if at all,
from time to time in accordance with the Agreement.
"Revolving Note" has the meaning ascribed to it in Section 1.1(a)(ii).
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"Security Agreement" means the Security Agreement of even date
herewith entered into by and among Agent, on behalf of itself and Lenders, and
each Credit Party that is a signatory thereto.
"Senior Note Indenture" means that certain Indenture dated as of
October 17, 2003 between Borrower and Xxxxx Fargo Bank Minnesota, National
Association, as trustee.
"Senior Notes" means those certain 10.125% Senior Notes due November
1, 2011 issued by Borrower pursuant to the Senior Note Indenture in an aggregate
original principal amount of $260,000,000 pursuant to the Senior Note Indenture.
"Software" means all "software" as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, other than software
embedded in any category of Goods, including all computer programs and all
supporting information provided in connection with a transaction related to any
program.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person; (b) the present fair salable value of the assets of such Person on a
going concern basis is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured; (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities (such as litigation, guaranties and pension
plan liabilities) at any time shall be computed as the amount that, in light of
all the facts and circumstances existing at the time, represents the amount that
can be reasonably be expected to become an actual or matured liability.
"Stock" means all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited liability company
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934).
"Stockholder" means, with respect to any Person, each holder of Stock
of such Person.
"Stockholder's Agreement" means that certain Amended and Restated
Stockholder's Agreement dated as of October 17, 2003 among Borrower and its
Stockholders, as in effect on the Closing Date, and as the same may be further
amended, supplemented or otherwise modified from time to time in accordance with
the provisions of Section 6.18.
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"Subordinated Debt" means any Indebtedness of any Credit Party
subordinated to the Obligations in a manner and form satisfactory to Agent and
Requisite Lenders in their sole discretion, as to right and time of payment and
as to any other rights and remedies thereunder.
"Subsidiary" means, with respect to any Person, (a) any corporation of
which an aggregate of more than fifty percent (50%) of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of fifty percent (50%) or more of such Stock whether by
proxy, agreement, operation of law or otherwise, and (b) any partnership or
limited liability company in which such Person and/or one or more Subsidiaries
of such Person shall have an interest (whether in the form of voting or
participation in profits or capital contribution) of more than fifty percent
(50%) or of which any such Person is a general partner or may exercise the
powers of a general partner. Unless the context otherwise requires, each
reference to a Subsidiary shall be a reference to a Subsidiary of Borrower.
"Supermajority Lenders" means Lenders having (a) sixty-six and
two-thirds percent (66 2/3%) or more of the Revolving Loan Commitments of all
Lenders, or (b) if the Revolving Loan Commitments have been terminated,
sixty-six and two-thirds percent (66 2/3%) or more of the aggregate outstanding
amount of the Revolving Loan (with the Swing Line Loan being attributed to the
Lender making such Loan) and Letter of Credit Obligations.
"Swing Line Advance" has the meaning ascribed to it in Section
1.1(b)(i).
"Swing Line Availability" has the meaning ascribed to it in Section
1.1(b)(i).
"Swing Line Commitment" means, as to the Swing Line Lender, the
commitment of the Swing Line Lender to make Swing Line Advances as set forth on
Annex J to the Agreement, which commitment constitutes a subfacility of the
Revolving Loan Commitment of the Swing Line Lender.
"Swing Line Lender" means GE Capital.
"Swing Line Loan" means, as the context may require, at any time, the
aggregate amount of Swing Line Advances outstanding to Borrower.
"Swing Line Note" has the meaning ascribed to it in Section
1.1(b)(ii).
"Target" has the meaning ascribed to its in Section 6.1(i).
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"Taxes" means taxes, levies, imposts, deductions, Charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income of Agent or a Lender by the jurisdictions under
the laws of which Agent and Lenders are organized or conduct business or any
political subdivision thereof.
"Termination Date" means the date on which (a) the Loans have been
indefeasibly repaid in full, (b) all other Obligations under the Agreement and
the other Loan Documents (other than unasserted contingent indemnification
obligations) have been completely discharged (c) all Letter of Credit
Obligations have been cash collateralized, canceled or backed by standby letters
of credit in accordance with Annex B, and (d) Borrower shall have no further
right to borrow any monies under the Agreement.
"Title IV Plan" means a Pension Plan (other than a Multiemployer
Plan), that is covered by Title IV of ERISA, and that any Credit Party or ERISA
Affiliate maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.
"Total Leverage Ratio" means, with respect to Borrower, on a
consolidated basis, the ratio of (a) Funded Debt as of any date of
determination, to (b) EBITDA for the twelve months ending on that date of
determination.
"Trademark License" means rights under any written agreement now owned
or hereafter acquired by any Credit Party granting any right to use any
Trademark.
"Trademark Security Agreements" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
"Trademarks" means all of the following now owned or hereafter
existing or adopted or acquired by any Credit Party: (a) all trademarks, trade
names, corporate names, business names, trade styles, service marks, logos,
other source or business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of like
nature (whether registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including registrations,
recordings and applications in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof; (b) all
reissues, extensions or renewals thereof; and (c) all goodwill associated with
or symbolized by any of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate amount,
if any, of the sum of (a) the amount by which the present value of all accrued
benefits under each Title IV Plan exceeds the fair market value of all assets of
such Title IV Plan allocable to such benefits in accordance with Title IV of
ERISA, all determined as of the most recent valuation date for each such Title
IV Plan using the actuarial assumptions for funding purposes in effect under
such Title IV Plan, and (b) for a period of five years following a transaction
which might reasonably be expected to be covered by Section 4069 of ERISA,
A-28
the liabilities (whether or not accrued) that could be avoided by any Credit
Party or any ERISA Affiliate as a result of such transaction.
"Welfare Plan" means a Plan described in Section 3(i) of ERISA.
"Wholesale Disposables" means Inventory purchased by Borrower or any
of its Subsidiaries for sale to customers of Borrower or any of its
Subsidiaries.
Rules of construction with respect to accounting terms used in the
Agreement or the other Loan Documents shall be as set forth in Annex G. All
other undefined terms contained in any of the Loan Documents shall, unless the
context indicates otherwise, have the meanings provided for by the Code to the
extent the same are used or defined therein; in the event that any term is
defined differently in different Articles or Divisions of the Code, the
definition contained in Article or Division 9 shall control. Unless otherwise
specified, references in the Agreement or any of the Appendices to a Section,
subsection or clause refer to such Section, subsection or clause as contained in
the Agreement. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Agreement as a whole, including all Annexes,
Exhibits and Schedules, as the same may from time to time be amended, restated,
modified or supplemented, and not to any particular section, subsection or
clause contained in the Agreement or any such Annex, Exhibit or Schedule.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation"; the
word "or" is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Loan Documents) or, in the case of governmental Persons, Persons succeeding to
the relevant functions of such Persons; and all references to statutes and
related regulations shall include any amendments of the same and any successor
statutes and regulations. Whenever any provision in any Loan Document refers to
the knowledge (or an analogous phrase) of any Credit Party, such words are
intended to signify that such Credit Party has actual knowledge or awareness of
a particular fact or circumstance or that such Credit Party, if it had exercised
reasonable diligence, would have known or been aware of such fact or
circumstance.
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ANNEX B (Section 1.2)
to
CREDIT AGREEMENT
LETTERS OF CREDIT
(a) Issuance. Subject to the terms and conditions of the Agreement,
Agent and Lenders agree to incur, from time to time prior to the Commitment
Termination Date, upon the request of Borrower and for Borrower's account,
Letter of Credit Obligations by causing Letters of Credit to be issued by GE
Capital or a Subsidiary thereof or a bank or other legally authorized Person
selected by or acceptable to Agent in its sole discretion (each, an "L/C
Issuer") for Borrower's account and guaranteed by Agent; provided, that if the
L/C Issuer is a Lender, then such Letters of Credit shall not be guaranteed by
Agent but rather each Lender shall, subject to the terms and conditions
hereinafter set forth, purchase (or be deemed to have purchased) risk
participations in all such Letters of Credit issued with the written consent of
Agent, as more fully described in paragraph (b)(ii) below. The aggregate amount
of all such Letter of Credit Obligations shall not at any time exceed the least
of (i) $5,000,000 (the "L/C Sublimit") and (ii) the Maximum Amount less the
aggregate outstanding principal balance of the Revolving Credit Advances and the
Swing Line Loan, and (iii) the Borrowing Base less the aggregate outstanding
principal balance of the Revolving Credit Advances and the Swing Line Loan. No
such Letter of Credit shall have an expiry date that is less than 5 Business
Days prior to the Commitment Termination Date or more than one year following
the date of issuance thereof, unless otherwise determined by the Agent, in its
sole discretion, and neither Agent nor Lenders shall be under any obligation to
incur Letter of Credit Obligations in respect of, or purchase risk
participations in, any Letter of Credit having an expiry date that is later than
the Commitment Termination Date; provided, however, that subject to the
remaining terms of this Agreement, a Letter of Credit may have an expiry date
that is later than 5 Business Days prior to the Commitment Termination Date
(and, subject to the terms hereof, Agent and Lenders shall be obligated to incur
Letter of Credit Obligations in respect thereof, or purchase risk participations
therein, as applicable) so long as Borrower shall have deposited with Agent Cash
Equivalents (as defined below) in an amount equal to one hundred five percent
(105%) of the maximum amount then available to be drawn thereunder and in
accordance with the provisions of paragraph (c) below.
(b) Advances Automatic; Participations.
(i) In the event that Agent or any Lender shall make any payment on
or pursuant to any Letter of Credit Obligation, such payment shall then be
deemed automatically to constitute a Revolving Credit Advance to Borrower
under Section 1.1(a) of the Agreement regardless of whether a Default or
Event of Default has occurred and is continuing and notwithstanding
Borrower's failure to satisfy the conditions precedent set forth in Section
2, and each Lender shall be obligated to pay its Pro Rata Share thereof in
accordance with the Agreement upon Agent's request.
B-1
The failure of any Lender to make available to Agent for Agent's own
account its Pro Rata Share of any such Revolving Credit Advance or payment
by Agent under or in respect of a Letter of Credit shall not relieve any
other Lender of its obligation hereunder to make available to Agent its Pro
Rata Share thereof, but no Lender shall be responsible for the failure of
any other Lender to make available such other Lender's Pro Rata Share of
any such payment.
(ii) If it shall be illegal or unlawful for Borrower to incur
Revolving Credit Advances as contemplated by paragraph (b)(i) above because
of an Event of Default described in Sections 8.1(h) or (i) or otherwise or
if it shall be illegal or unlawful for any Lender to be deemed to have
assumed a ratable share of the reimbursement obligations owed to an L/C
Issuer, or if the L/C Issuer is a Lender, then (A) immediately and without
further action whatsoever, each Lender shall be deemed to have irrevocably
and unconditionally purchased from Agent (or such L/C Issuer, as the case
may be) an undivided interest and participation equal to such Lender's Pro
Rata Share (based on the Revolving Loan Commitments) of the Letter of
Credit Obligations in respect of all Letters of Credit then outstanding and
(B) thereafter, immediately upon issuance of any Letter of Credit, each
Lender shall be deemed to have irrevocably and unconditionally purchased
from Agent (or such L/C Issuer, as the case may be) an undivided interest
and participation in such Lender's Pro Rata Share (based on the Revolving
Loan Commitments) of the Letter of Credit Obligations with respect to such
Letter of Credit on the date of such issuance. Each Lender shall fund its
participation in all payments or disbursements made under the Letters of
Credit upon Agent's request in the same manner as provided in the Agreement
with respect to Revolving Credit Advances.
(c) Cash Collateral.
(i) If Borrower is required to provide cash collateral for any
Letter of Credit Obligations pursuant to the Agreement prior to the
Commitment Termination Date, Borrower will pay to Agent for the ratable
benefit of itself and Lenders cash or cash equivalents acceptable to Agent
("Cash Equivalents") in an amount equal to one hundred five percent (105%)
of the maximum amount then available to be drawn under each applicable
Letter of Credit outstanding for the benefit of Borrower. Such funds or
Cash Equivalents shall be held by Agent in a cash collateral account (the
"Cash Collateral Account") maintained at a bank or financial institution
reasonably acceptable to Agent. The Cash Collateral Account shall be in the
name of Borrower and shall be pledged to, and subject to the control of,
Agent, for the benefit of Agent and Lenders, in a manner reasonably
satisfactory to Agent. Borrower hereby pledges and grants to Agent, on
behalf of itself and Lenders, a security interest in all such funds and
Cash Equivalents held in the Cash Collateral Account from time to time and
all proceeds thereof, as security for the payment of all amounts due in
respect of the Letter of Credit Obligations and other Obligations, whether
or not then due. The Agreement, including this Annex B, shall constitute a
security agreement under applicable law.
B-2
(ii) If any Letter of Credit Obligations, whether or not then due and
payable, shall for any reason be outstanding on the Commitment Termination
Date, Borrower shall either (A) provide cash collateral therefor in the
manner described above, or (B) cause all such Letters of Credit and
guaranties thereof, if any, to be canceled and returned, or (C) deliver a
stand-by letter (or letters) of credit in guaranty of such Letter of Credit
Obligations, which stand-by letter (or letters) of credit shall be of like
tenor and duration (plus 30 additional days) as, and in an amount equal to
one hundred five percent (105%) of the aggregate maximum amount then
available to be drawn under, the Letters of Credit to which such
outstanding Letter of Credit Obligations relate and shall be issued by a
Person, and shall be subject to such terms and conditions, as are be
satisfactory to Agent in its sole discretion. So long as no Event of
Default is then in existence, as the aggregate maximum amount available to
be drawn under such Letters of Credit is reduced, Agent shall, upon request
of Borrower, deliver to Borrower or permit Borrower to withdraw from the
Cash Collateral Account such amount as shall cause the cash collateral not
to exceed 105% of the maximum amount then available to be drawn under such
Letters of Credit.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by Borrower, whether before or after the Commitment
Termination Date, Agent may apply such funds or Cash Equivalents then held
in the Cash Collateral Account to the payment of any amounts, and in such
order as Agent may elect, as shall be or shall become due and payable by
Borrower to Agent and Lenders with respect to such Letter of Credit
Obligations of Borrower and, upon the satisfaction in full of all Letter of
Credit Obligations of Borrower, to any other Obligations then due and
payable.
(iv) Except as provided in clause (ii) above, neither Borrower nor
any Person claiming on behalf of or through Borrower shall have any right
to withdraw any of the funds or Cash Equivalents held in the Cash
Collateral Account, except that upon the termination of all Letter of
Credit Obligations and the payment of all amounts payable by Borrower to
Agent and Lenders in respect thereof, any funds remaining in the Cash
Collateral Account shall be applied to other Obligations then due and owing
and upon payment in full of such Obligations, any remaining amount shall be
paid to Borrower or as otherwise required by law. Interest earned on
deposits in the Cash Collateral Account shall be for the account of Agent.
(d) Fees and Expenses. Borrower agrees to pay to Agent for the
benefit of Lenders, as compensation to such Lenders for Letter of Credit
Obligations incurred hereunder, (i) all costs and expenses incurred by Agent or
any Lender on account of such Letter of Credit Obligations, and (ii) for each
month during which any Letter of Credit Obligation shall remain outstanding, a
fee (the "Letter of Credit Fee") in an amount equal to the Applicable L/C Margin
from time to time in effect multiplied by the maximum amount available from time
to time to be drawn under the applicable Letter of Credit. Such fee shall be
paid to Agent for the benefit of the Lenders in arrears, on the first day of
each month and on the Commitment Termination Date. In addition, Borrower shall
pay to any L/C Issuer, on
B-3
demand, such reasonable fees (including all per annum fees), charges and
expenses of such L/C Issuer in respect of the issuance, negotiation, acceptance,
amendment, transfer and payment of such Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter of
Credit is issued.
(e) Request for Incurrence of Letter of Credit Obligations. Borrower
shall give Agent at least 2 Business Days' prior written notice requesting the
incurrence of any Letter of Credit Obligation. The notice shall be accompanied
by the form of the Letter of Credit (which shall be acceptable to the L/C
Issuer) and a completed Application for Standby Letter of Credit or Application
and Documentary Letter of Credit or Application for Documentary Letter of Credit
(as applicable). Notwithstanding anything contained herein to the contrary,
Letter of Credit applications by Borrower and approvals by Agent and the L/C
Issuer may be made and transmitted pursuant to electronic codes and security
measures mutually agreed upon and established by and among Borrower, Agent and
the L/C Issuer.
(f) Obligation Absolute. The obligation of Borrower to reimburse
Agent and Lenders for payments made with respect to any Letter of Credit
Obligation shall be absolute, unconditional and irrevocable, without necessity
of presentment, demand, protest or other formalities, and the obligations of
each Lender to make payments to Agent with respect to Letters of Credit shall be
unconditional and irrevocable. Such obligations of Borrower and Lenders shall be
paid strictly in accordance with the terms hereof under all circumstances
including the following:
(i) any lack of validity or enforceability of any Letter of Credit
or the Agreement or the other Loan Documents or any other agreement;
(ii) the existence of any claim, setoff, defense or other right that
Borrower or any of its Affiliates or any Lender may at any time have
against a beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such transferee may be acting), Agent, any
Lender, or any other Person, whether in connection with the Agreement, the
Letter of Credit, the transactions contemplated herein or therein or any
unrelated transaction (including any underlying transaction between
Borrower or any of its Affiliates and the beneficiary for which the Letter
of Credit was procured);
(iii) any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by Agent (except as otherwise expressly provided in
paragraph (g)(ii)(C) below) or any L/C Issuer under any Letter of Credit or
guaranty thereof against presentation of a demand, draft or certificate or
other document that does not comply with the terms of such Letter of Credit
or such guaranty;
(v) any other circumstance or event whatsoever, that is similar to
any of the foregoing; or
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(vi) the fact that a Default or an Event of Default has occurred and
is continuing.
(g) Indemnification; Nature of Lenders' Duties.
(i) In addition to amounts payable as elsewhere provided in the
Agreement, Borrower hereby agrees to pay and to protect, indemnify, and
save harmless Agent and each Lender from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees and allocated costs of internal
counsel) that Agent or any Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or guaranty thereof, or (B) the failure of Agent or any Lender
seeking indemnification or of any L/C Issuer to honor a demand for payment
under any Letter of Credit or guaranty thereof as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or
de facto government or Governmental Authority, in each case other than to
the extent solely as a result of the gross negligence or willful misconduct
of Agent or such Lender (as finally determined by a court of competent
jurisdiction).
(ii) As between Agent and any Lender and Borrower, Borrower assumes
all risks of the acts and omissions of, or misuse of any Letter of Credit
by beneficiaries, of any Letter of Credit. In furtherance and not in
limitation of the foregoing, to the fullest extent permitted by law,
neither Agent nor any Lender shall be responsible for: (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document issued by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
that may prove to be invalid or ineffective for any reason; (C) failure of
the beneficiary of any Letter of Credit to comply fully with conditions
required in order to demand payment under such Letter of Credit; provided,
that in the case of any payment by Agent under any Letter of Credit or
guaranty thereof, Agent shall be liable to the extent such payment was made
solely as a result of its gross negligence or willful misconduct (as
finally determined by a court of competent jurisdiction) in determining
that the demand for payment under such Letter of Credit or guaranty thereof
complies on its face with any applicable requirements for a demand for
payment under such Letter of Credit or guaranty thereof; (D) errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they may be in cipher; (E) errors in interpretation of technical terms; (F)
any loss or delay in the transmission or otherwise of any document required
in order to make a payment under any Letter of Credit or guaranty thereof
or of the proceeds thereof; (G) the credit of the proceeds of any drawing
under any Letter of Credit or guaranty thereof; and (H) any consequences
arising from causes beyond the control of Agent or any Lender. None of the
above shall affect,
B-5
impair, or prevent the vesting of any of Agent's or any Lender's rights or
powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to expand
any waivers, covenants or indemnities made by Borrower in favor of any L/C
Issuer in any letter of credit application, reimbursement agreement or
similar document, instrument or agreement between Borrower and such L/C
Issuer, including an Application and Agreement For Documentary Letter of
Credit, a Master Documentary Agreement and a Master Standby Agreement
entered into with Agent; provided, that, to the extent of a conflict
between the terms of this Annex B and any Application and Agreement for
Documentary Letter of Credit, Master Documentary Agreement or Master
Standby Agreement, the terms of this Annex B shall control.
B-6
ANNEX C (Section 1.8)
to
CREDIT AGREEMENT
CASH MANAGEMENT SYSTEMS
Borrower shall, and shall cause its Subsidiaries to, establish and
maintain the Cash Management Systems described below:
(a) Borrower may maintain, in its name, one or more accounts (each a
"Disbursement Account" and collectively, the "Disbursement Accounts") at a bank
reasonably acceptable to Agent into which Agent shall, from time to time,
deposit proceeds of Revolving Credit Advances and Swing Line Advances made to
Borrower pursuant to Section 1.1 for use by Borrower solely in accordance with
the provisions of Section 1.4.
(b) On or before the Closing Date, each bank where a Disbursement
Account is maintained and all other banks identified in Disclosure Schedule 3.19
(each, a "Relationship Bank") shall have entered into tri-party deposit account
control agreements with Agent, for the benefit of itself and Lenders, and
Borrower and the applicable Subsidiaries thereof, as applicable, in form and
substance reasonably acceptable to Agent, which shall become operative on or
prior to the Closing Date. Each such deposit account control agreement shall
provide, among other things, that (i) the bank executing such agreement has no
rights of setoff or recoupment or any other claim against such account, as the
case may be, other than for payment of its service fees and other charges
directly related to the administration of such account and for returned checks
or other items of payment and as may otherwise be agreed to by Agent and (ii)
the bank party thereto shall agree to comply with Agent's instructions directing
disposition of funds on deposit without further consent of Borrower or the
applicable Subsidiary (as applicable). Agent hereby agrees with Borrower that
Agent shall not deliver to any bank described above any notice directing
disposition of funds on deposit (herein an "Activation Notice") unless and until
the occurrence and continuance of an Event of Default. From and after the date
Agent has delivered an Activation Notice to any bank, Borrower shall not, nor
shall Borrower cause or permit any Subsidiary thereof to, accumulate or maintain
cash in Disbursement Accounts or payroll accounts as of any date of
determination in excess of checks outstanding against such accounts as of that
date, amounts necessary to meet minimum balance requirements and additional
amounts not to exceed $10,000 in any such account and $50,000 in all such
accounts in the aggregate at any time outstanding.
(c) So long as no Event of Default has occurred and is continuing,
Borrower may amend Disclosure Schedule 3.19 to add or replace a Relationship
Bank or replace any Disbursement Account; provided, that (i) Agent shall have
consented in writing in advance to the opening of such account with the relevant
bank and (ii) prior to the time of the opening of such account, Borrower or its
Subsidiaries, as applicable, and such bank shall have executed and delivered to
Agent a tri-party deposit account control agreement, in form and substance
described above. Borrower shall close any of its accounts (and establish
C-1
replacement accounts in accordance with the foregoing sentence) promptly and in
any event within 30 days following notice from Agent that the creditworthiness
of any bank holding an account is no longer acceptable in Agent's reasonable
judgment, or as promptly as practicable and in any event within 60 days
following notice from Agent that the operating performance, funds transfer or
availability procedures or performance with respect to accounts of the bank
holding such accounts or Agent's liability under any tri-party deposit account
control agreement with such bank is no longer acceptable in Agent's reasonable
judgment.
(d) Following the occurrence of an Event of Default, at the request
of Agent or Requisite Lenders (which request may be made solely during the
continuance of an Event of Default) Borrower shall (i) establish lock boxes
("Lock Boxes") and/or blocked accounts ("Blocked Accounts") at one or more of
the banks set forth in Disclosure Schedule 3.19, and shall request in writing
and otherwise take such reasonable steps to ensure that all Account Debtors
forward payment directly to such Lock Boxes, (ii) deposit and cause its
Subsidiaries to deposit or cause to be deposited promptly, and in any event no
later than the first Business Day after the date of receipt thereof, all cash,
checks, drafts or other similar items of payment relating to or constituting
payments made in respect of any and all Collateral (whether or not otherwise
delivered to a Lock Box) into one or more Blocked Accounts in Borrower's name or
any such Subsidiary's name and at a Relationship Bank and (iii) deliver to each
Relationship Bank instructions, revocable only upon Agent's express
authorization, directing each Relationship Bank to immediately forward all
amounts on deposit to the Collection Account through daily sweeps from such
accounts into the Collection Account.
(e) The Disbursement Accounts, each account maintained with a
Relationship Bank and the Lock Boxes and Blocked Accounts (if any) shall be cash
collateral accounts, with all cash, checks and other similar items of payment in
such accounts securing payment of the Loans and all other Obligations, and in
which Borrower and each Subsidiary thereof shall have granted a Lien to Agent,
on behalf of itself and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed
received by Agent in accordance with Section 1.10 and shall be applied (and
allocated) by Agent in accordance with Section 1.11. In no event shall any
amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(g) Borrower shall and shall cause its Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with
Borrower (each a "Related Person") to (i) hold in trust for Agent, for the
benefit of itself and Lenders, all checks, cash and other items of payment
received by Borrower or any such Related Person (other than cash proceeds of the
Recapitalization held by Borrower to consummate certain payments to be made by
Borrower with respect to the Recapitalization), and (ii) within 1 Business Day
after receipt by Borrower or any such Related Person of any checks, cash or
other items of payment (other than cash proceeds of the Recapitalization),
deposit the same into a deposit
C-2
account subject to a deposit account control agreement described herein.
Borrower and each Related Person thereof acknowledges and agrees that all cash,
checks or other items of payment constituting proceeds of Collateral are part of
the Collateral. All proceeds of the sale or other disposition of any Collateral,
shall be deposited directly into a deposit account subject to a deposit account
control agreement described herein.
C-3
ANNEX D (Section 2.1(a))
to
CREDIT AGREEMENT
CLOSING CHECKLIST
In addition to, and not in limitation of, the conditions described in
Section 2.1 of the Agreement, pursuant to Section 2.1(a), the following items
must be received by Agent in form and substance satisfactory to Agent on or
prior to the Closing Date (each capitalized term used but not otherwise defined
herein shall have the meaning ascribed thereto in Annex A to the Agreement):
A. Appendices. All Appendices to the Agreement, in form and substance
satisfactory to Agent.
B. Revolving Notes and Swing Line Notes. Duly executed originals of the
Revolving Note and Swing Line Notes for each applicable Lender, dated the
Closing Date.
C. Security Agreement. Duly executed originals of the Security Agreement,
dated the Closing Date, and all instruments, documents and agreements executed
pursuant thereto.
D. Insurance. Satisfactory evidence that the insurance policies required
by Section 5.4 are in full force and effect, together with appropriate evidence
showing lender loss payable and/or additional insured clauses or endorsements,
as requested by Agent, in favor of Agent, on behalf of Lenders.
E. Security Interests and Code Filings.
(a) Evidence satisfactory to Agent that Agent (for the benefit of
itself and Lenders) has a valid and perfected first priority security
interest in the Collateral, including (i) such documents duly executed by
each Credit Party (including financing statements under the Code and other
applicable documents under the laws of any jurisdiction with respect to the
perfection of Liens) as Agent may request in order to perfect its security
interests in the Collateral and (ii) copies of Code search reports listing
all effective financing statements that name any Credit Party as debtor,
together with copies of such financing statements, none of which shall
cover the Collateral, except for those relating to the Prior Lender
Obligations (all of which shall be terminated on the Closing Date) and
Permitted Encumbrances.
(b) Evidence satisfactory to Agent, including copies, of all UCC-1
and other financing statements filed in favor of any Credit Party with
respect to each location, if any, at which Inventory may be consigned.
D-1
(c) Control Letters from (i) all issuers of uncertificated securities
held by Borrower, (ii) all securities intermediaries with respect to all
securities accounts and securities entitlements of Borrower, and (iii) all
futures commission agents and clearing houses with respect to all
commodities contracts and commodities accounts held by Borrower.
F. Payoff Letters; Termination Statements. Copy of a duly executed payoff
letter, in form and substance reasonably satisfactory to Agent, executed by the
"Agent" under the Prior Lender loan documents evidencing repayment in full of
all Prior Lender Obligations, together with (a) duly authorized UCC-3 or other
appropriate termination statements, in form and substance satisfactory to Agent,
releasing all liens of Prior Lender upon any of the personal property of each
Credit Party, and (b) termination of all blocked account agreements, bank agency
agreements or other similar agreements or arrangements in favor of Prior Lender
or relating to the Prior Lender Obligations.
G. Intellectual Property Security Agreements. Duly executed originals of
Trademark Security Agreements, Copyright Security Agreements and Patent Security
Agreements, each dated the Closing Date and signed by each Credit Party which
owns Trademarks, Copyrights and/or Patents, as applicable, all in form and
substance reasonably satisfactory to Agent, together with all instruments,
documents and agreements executed pursuant thereto.
H. Initial Borrowing Base Certificate. Duly executed originals of an
initial Borrowing Base Certificate, dated the Closing Date, reflecting
information concerning Eligible Accounts, Eligible Rental Equipment, Eligible
Wholesale Disposables and Eligible Equipment Disposables as of September 30,
2003.
I. Initial Notice of Revolving Credit Advance. Duly executed originals
of a Notice of Revolving Credit Advance, dated the Closing Date, with respect to
the initial Revolving Credit Advance to be requested by Borrower on the Closing
Date.
J. Letter of Direction. Duly executed originals of a letter of direction
from Borrower addressed to Agent, on behalf of itself and Lenders, with respect
to the disbursement on the Closing Date of the initial Revolving Credit Advance.
K. Cash Management System; Blocked Account Agreements. Evidence
satisfactory to Agent that, as of the Closing Date, Cash Management Systems
complying with Annex C to the Agreement have been established and are currently
being maintained in the manner set forth in such Annex C, together with copies
of duly executed deposit account control agreements, reasonably satisfactory to
Agent, with the banks as required by Annex C.
L. Charter and Good Standing. For each Credit Party, such Person's (a)
charter and all amendments thereto, (b) good standing certificates (including
verification of tax status) in its state of incorporation and (c) good standing
certificates (including verification of tax status) and certificates of
qualification to conduct business in each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
each
D-2
dated a recent date prior to the Closing Date and certified by the applicable
Secretary of State or other authorized Governmental Authority.
M. Bylaws and Resolutions. For each Credit Party, (a) such Person's
bylaws, together with all amendments thereto and (b) resolutions of such
Person's Board of Directors, approving and authorizing the execution, delivery
and performance of the Loan Documents to which such Person is a party and the
transactions to be consummated in connection therewith, each certified as of the
Closing Date by such Person's corporate secretary or an assistant secretary as
being in full force and effect without any modification or amendment.
N. Incumbency Certificates. For each Credit Party, signature and
incumbency certificates of the officers of each such Person executing any of the
Loan Documents, certified as of the Closing Date by such Person's corporate
secretary or an assistant secretary as being true, accurate, correct and
complete.
O. Opinions of Counsel. Duly executed originals of opinions of Xxxxxx &
Xxxxxxx LLP, counsel for the Credit Parties, together with any local counsel
opinions reasonably requested by Agent, each in form and substance reasonably
satisfactory to Agent and its counsel, dated the Closing Date, and each
accompanied by a letter addressed to such counsel from the Credit Parties,
authorizing and directing such counsel to address its opinion to Agent, on
behalf of Lenders, and to include in such opinion an express statement to the
effect that Agent and Lenders are authorized to rely on such opinion.
P. Accountants' Letters. A letter from the Credit Parties to their
independent auditors authorizing the independent certified public accountants of
the Credit Parties to communicate with Agent and Lenders in accordance with
Section 4.2.
Q. Fee Letter. Duly executed originals of the GE Capital Fee Letter.
R. Officer's Certificate. Agent shall have received duly executed
originals of a certificate of the Chief Financial Officer of Borrower, dated the
Closing Date, stating that, since December 31, 2002 (a) no event or condition
has occurred or is existing which could reasonably be expected to have a
Material Adverse Effect; (b) there has been no material adverse change in the
industry in which Borrower operates; (c) no Litigation has been commenced which,
if successful, could reasonably be expected to have a Material Adverse Effect or
could challenge any of the transactions contemplated by the Agreement and the
other Loan Documents; (d) there have been no Restricted Payments made by any
Credit Party not permitted under the Agreement; and (e) there has been no
material increase in liabilities, liquidated or contingent, and no material
decrease in assets of Borrower or any of its Subsidiaries.
S. Environmental Reports. Agent shall have received Phase I Environmental
Site Assessment Reports, consistent with American Society for Testing and
Materials (ASTM) Standard E 1527-94 and applicable state requirements, on all of
the Real Estate owned by Borrower, dated or brought down to date no more than
six months prior to the Closing Date, prepared by environmental engineers
reasonably satisfactory to Agent, all in form and
D-3
substance reasonably satisfactory to Agent, in its sole discretion; and Agent
shall have further received such environmental review and audit reports,
including Phase II reports, with respect to the Real Estate owned by Borrower as
Agent shall have requested, and Agent shall be satisfied, in its sole
discretion, with the contents of all such environmental reports. Agent shall
have received letters executed by the environmental firms preparing such
environmental reports, in form and substance reasonably satisfactory to Agent,
authorizing Agent and Lenders to rely on such reports.
T. Appraisals. Agent shall have received appraisals as to all Equipment,
each of which shall be in form and substance reasonably satisfactory to Agent.
U. Audited Financials; Financial Condition. Agent shall have received the
Financial Statements, Projections and other materials set forth in Section 3.4,
certified by Borrower's Chief Financial Officer, in each case in form and
substance reasonably satisfactory to Agent, and Agent shall be satisfied, in its
sole discretion, with all of the foregoing. Agent shall have further received a
certificate of the Chief Executive Officer and/or the Chief Financial Officer of
Borrower, based on such Pro Forma and Projections, to the effect that (a)
Borrower will be Solvent upon the consummation of the transactions contemplated
herein; (b) the Pro Forma fairly presents the financial condition of Borrower as
of the date thereof after giving effect to the transactions contemplated by the
Loan Documents; (c) the Projections are based upon estimates and assumptions
stated therein, all of which Borrower believes to be reasonable and fair in
light of current conditions and current facts known to Borrower and, as of the
Closing Date, reflect Borrower's good faith and reasonable estimates of its
future financial performance and of the other information projected therein for
the period set forth therein; and (d) containing such other statements with
respect to the solvency of Borrower and matters related thereto as Agent shall
request.
V. Master Standby Agreement. A Master Agreement for Standby Letters of
Credit among Borrower and GE Capital.
W. Master Documentary Agreement. A Master Agreement for Documentary
Letters of Credit among Borrower and GE Capital.
X. Other Documents. Such other certificates, documents and agreements
respecting any Credit Party as Agent may, in its sole discretion, request.
D-4
ANNEX E (Section 4.1(a))
to
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS--REPORTING
Borrower shall deliver or cause to be delivered to Agent or to Agent
and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent, within 30 days after the end of
each Fiscal Month, financial information regarding Borrower and its
Subsidiaries, certified by the Chief Financial Officer of Borrower, consisting
of consolidated and consolidating (i) unaudited balance sheets as of the close
of such Fiscal Month and the related statements of income and cash flows for
that portion of the Fiscal Year ending as of the close of such Fiscal Month; and
(ii) unaudited statements of income and cash flows for such Fiscal Month,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections for such Fiscal
Year, all prepared in accordance with GAAP (subject to normal year-end
adjustments and the absence of footnotes). Such financial information shall be
accompanied by the certification of the Chief Financial Officer of Borrower that
(i) such financial information presents fairly in accordance with GAAP (subject
to normal year-end adjustments and the absence of footnotes) the financial
position and results of operations of Borrower and its Subsidiaries, on a
consolidated and consolidating basis, in each case as at the end of such Fiscal
Month and for that portion of the Fiscal Year then ended and (ii) any other
information presented is true, correct and complete in all material respects and
that there was no Event of Default in existence as of such time or, if an Event
of Default has occurred and is continuing, describing the nature thereof and all
efforts undertaken to cure such Event of Default.
(b) Quarterly Financials. To Agent, within 45 days after the end of
each Fiscal Quarter, consolidated and consolidating financial information
regarding Borrower and its Subsidiaries, certified by the Chief Financial
Officer of Borrower, including (i) unaudited balance sheets as of the close of
such Fiscal Quarter and the related statements of income and cash flow for that
portion of the Fiscal Year ending as of the close of such Fiscal Quarter and
(ii) unaudited statements of income and cash flows for such Fiscal Quarter, in
each case setting forth in comparative form the figures for the corresponding
period in the prior year and the figures contained in the Projections for such
Fiscal Year, all prepared in accordance with GAAP (subject to normal year-end
adjustments and the absence of footnotes). Such financial information shall be
accompanied by (A) a statement in reasonable detail (each, a "Compliance
Certificate" showing the calculations used in determining compliance with each
of the Financial Covenants that is tested on a quarterly basis and (B) the
certification of the Chief Financial Officer of Borrower that (i) such financial
information presents fairly in accordance with GAAP (subject to normal year-end
adjustments and the absence of footnotes) the financial position, results of
operations and statements of cash flows of Borrower and its Subsidiaries, on
both a consolidated and consolidating basis, as at the end of
E-1
such Fiscal Quarter and for that portion of the Fiscal Year then ended, (ii) any
other information presented is true, correct and complete in all material
respects and that there was no Event of Default in existence as of such time or,
if an Event of Default has occurred and is continuing, describing the nature
thereof and all efforts undertaken to cure such Event of Default. In addition,
Borrower shall deliver to Agent and Lenders, within 45 days after the end of
each Fiscal Quarter, a management discussion and analysis that includes a
comparison to budget for that Fiscal Quarter and a comparison of performance for
that Fiscal Quarter to the corresponding period in the prior year.
(c) Operating Plan. To Agent, as soon as available, but not later
than 30 days after the end of each Fiscal Year, an annual operating plan for
Borrower, on a consolidated and consolidating basis, approved by the Board of
Directors of Borrower, for the following Fiscal Year, which (i) includes a
statement of all of the material assumptions on which such plan is based, (ii)
includes monthly balance sheets, income statements and statements of cash flows
for the following year and (iii) integrates sales, gross profits, operating
expenses, operating profit, cash flow projections and Borrowing Availability
projections, all prepared on the same basis and in similar detail as that on
which operating results are reported (and in the case of cash flow projections,
representing management's good faith estimates of future financial performance
based on historical performance), and including plans for personnel, Capital
Expenditures and facilities.
(d) Annual Audited Financials. To Agent, within 90 days after the end
of each Fiscal Year, audited Financial Statements for Borrower and its
Subsidiaries on a consolidated and (unaudited) consolidating basis, consisting
of balance sheets and statements of income and retained earnings and cash flows,
setting forth in comparative form in each case the figures for the previous
Fiscal Year, which Financial Statements shall be prepared in accordance with
GAAP and certified without qualification, by an independent certified public
accounting firm of national standing or otherwise reasonably acceptable to
Agent. Such Financial Statements shall be accompanied by (i) a statement
prepared in reasonable detail showing the calculations used in determining
compliance with each of the Financial Covenants, (ii) the annual letters to such
accountants in connection with their audit examination detailing contingent
liabilities and material litigation matters, and (iii) the certification of the
Chief Executive Officer or Chief Financial Officer of Borrower that all such
Financial Statements present fairly in accordance with GAAP the financial
position, results of operations and statements of cash flows of Borrower and its
Subsidiaries on a consolidated and consolidating basis, as at the end of such
Fiscal Year and for the period then ended, and that there was no Event of
Default in existence as of such time or, if an Event of Default has occurred and
is continuing, describing the nature thereof and all efforts undertaken to cure
such Event of Default.
(e) Management Letters. To Agent, within 5 Business Days after
receipt thereof by any Credit Party, copies of all management letters, exception
reports or similar letters or reports received by such Credit Party from its
independent certified public accountants.
E-2
(f) Default Notices. To Agent, as soon as practicable, and in any
event within 5 Business Days after an executive officer of Borrower has actual
knowledge of the existence of any Default, Event of Default or other event that
has had a Material Adverse Effect (in each case not previously disclosed to
Agent), telephonic or telecopied notice specifying the nature of such Default or
Event of Default or other event, including the anticipated effect thereof, which
notice, if given telephonically, shall be promptly confirmed in writing on the
next Business Day.
(g) SEC Filings and Press Releases. To Agent, promptly upon their
becoming available, copies of: (i) all Financial Statements, reports, notices
and proxy statements made publicly available by any Credit Party to its security
holders; (ii) all regular and periodic reports and all registration statements
and prospectuses, if any, filed by any Credit Party with any securities exchange
or with the Securities and Exchange Commission or any governmental or private
regulatory authority; and (iii) all press releases and other statements made
available by any Credit Party to the public concerning material changes or
developments in the business of any such Person.
(h) Subordinated Debt and Equity Notices. To Agent, as soon as
practicable, copies of all material written notices given or received by any
Credit Party with respect to any Subordinated Debt or Stock of such Person, and,
within 5 Business Days after any Credit Party obtains knowledge of any matured
or unmatured event of default with respect to any Subordinated Debt, notice of
such event of default.
(i) Supplemental Schedules. To Agent, supplemental disclosures, if
any, required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon learning thereof,
notice of any Litigation commenced or threatened against any Credit Party that
(i) seeks damages in excess of $1,000,000, (ii) seeks injunctive relief, (iii)
is asserted or instituted against any Plan, its fiduciaries or its assets or
against any Credit Party or ERISA Affiliate in connection with any Plan, (iv)
alleges criminal misconduct by any Credit Party, (v) alleges the violation of
any law regarding, or seeks remedies in connection with, any Environmental
Liabilities or (vi) involves any product recall.
(k) Insurance Notices. To Agent, disclosure of losses or casualties
required by Section 5.4.
(l) Lease Default Notices. To Agent, within 5 Business Days after
receipt thereof, copies of any and all default notices received under or with
respect to any leased location or public warehouse where Collateral is located.
(m) Other Documents. To Agent and Lenders, such other financial and
other information respecting any Credit Party's business or financial condition
as Agent or any Lender shall from time to time reasonably request.
E-3
ANNEX F (Section 4.1(b))
to
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrower shall deliver or cause to be delivered the following:
(a) To Agent, upon its request at any time Borrowing Availability is
less than $3,000,000, and in any event no less frequently than 5 Business Days
after the end of each Fiscal Month (together with a copy of all or any part of
the following reports requested by any Lender in writing after the Closing
Date), each of the following reports, each of which shall be prepared by
Borrower as of the last day of the immediately preceding Fiscal Month or the
date 2 days prior to the date of any such request:
(i) a Borrowing Base Certificate, accompanied by such supporting
detail and documentation as shall be reasonably requested by Agent; and
(ii) a monthly trial balance showing Accounts outstanding aged from
invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91
days or more, accompanied by such supporting detail and documentation as
shall be reasonably requested by Agent.
(b) To Agent, at the time of delivery of each of the quarterly
Financial Statements delivered pursuant to Annex E, a list of any applications
for the registration of any Patent, Trademark or Copyright filed by any Credit
Party with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in the prior Fiscal Quarter;
(c) Borrower, at its own expense, shall deliver to Agent the results
of each physical verification, if any, that Borrower or any of its Subsidiaries
may in their discretion have made, or caused any other Person to have made on
their behalf, of all or any portion of their Inventory (and, if an Event of
Default has occurred and is continuing, Borrower shall, upon the request of
Agent, conduct, and deliver the results of, such physical verifications as Agent
may require);
(d) Borrower, at its own expense, shall deliver to Agent such
appraisals of its assets as Agent may request at any time after the occurrence
and during the continuance of an Event of Default, such appraisals to be
conducted by an appraiser, and in form and substance reasonably satisfactory to
Agent; and
(e) Such other reports, statements and reconciliations with respect
to the Borrowing Base, Collateral or Obligations of any or all Credit Parties as
Agent shall from time to time reasonably request.
F-1
ANNEX G (Section 6.10)
to
CREDIT AGREEMENT
FINANCIAL COVENANTS
Borrower shall not breach or fail to comply with any of the following
financial covenants, each of which shall be calculated in accordance with GAAP
consistently applied:
(a) Maximum Capital Expenditures. Borrower and its Subsidiaries on a
consolidated basis shall not make Capital Expenditures during the following
periods that exceed in the aggregate the amounts set forth opposite each of such
periods:
Maximum Capital
Expenditures
Period per Period
------------------------------------ ---------------
Fiscal Year ending December 31, 2003 $ 42,500,000
Fiscal Year ending December 31, 2004 $ 53,500,000
Fiscal Year ending December 31, 2005 $ 62,000,000
Fiscal Year ending December 31, 2006 $ 74,000,000
Fiscal Year ending December 31, 2007 $ 86,000,000
Fiscal Year ending December 31, 2008
and each Fiscal Year thereafter $ 100,000,000
; provided, however, that the amount of permitted Capital Expenditures
referenced above will be increased in any period by the positive amount equal to
the lesser of (i) one hundred percent (100%) of the amount of permitted Capital
Expenditures for the immediately prior period (not to exceed $10,000,000), and
(ii) the amount (if any), equal to the difference obtained by taking the Capital
Expenditures limit specified above for the immediately prior period minus the
actual amount of any Capital Expenditures expended during such prior period (the
"Carry Over Amount"), and for purposes of measuring compliance herewith, the
Carry Over Amount shall be deemed to be the last amount spent on Capital
Expenditures in that succeeding year.
(b) Minimum Interest Coverage Ratio. Borrower and its Subsidiaries
shall have on a consolidated basis at each date set forth below, an Interest
Coverage Ratio for the twelve-month period then ended of not less than the
following:
G-1
-------------------------------------------------------
Minimum Interest
Twelve Month Period Ending Coverage Ratio
-------------------------------------------------------
December 31, 2003 2.00 to 1.0
-------------------------------------------------------
March 31, 2004 2.00 to 1.0
-------------------------------------------------------
June 30, 2004 2.00 to 1.0
-------------------------------------------------------
September 30, 2004 2.00 to 1.0
-------------------------------------------------------
December 31, 2004 2.15 to 1.0
-------------------------------------------------------
March 31, 2005 2.15 to 1.0
-------------------------------------------------------
June 30, 2005 2.15 to 1.0
-------------------------------------------------------
September 30, 2005 2.15 to 1.0
-------------------------------------------------------
December 31, 2005 2.25 to 1.0
-------------------------------------------------------
March 31, 2006 2.25 to 1.0
-------------------------------------------------------
June 30, 2006 2.25 to 1.0
-------------------------------------------------------
September 30, 2006 2.25 to 1.0
-------------------------------------------------------
December 31, 2006 2.50 to 1.0
-------------------------------------------------------
March 31, 2007 2.50 to 1.0
-------------------------------------------------------
June 30, 2007 2.50 to 1.0
-------------------------------------------------------
September 30, 2007 2.50 to 1.0
-------------------------------------------------------
December 31, 2007 and each March 31,
June 30, September 30, and
December 31 thereafter 2.75 to 1.0
-------------------------------------------------------
(c) Maximum Total Leverage Ratio. Borrower and its Subsidiaries on a
consolidated basis shall have, at each date set forth below, a Total Leverage
Ratio as of such date and for the twelve-month period then ended of not more
than the following:
-------------------------------------------------------
Maximum Total
Twelve Month Period Ending Leverage Ratio
-------------------------------------------------------
December 31, 2003 4.75 to 1.0
-------------------------------------------------------
March 31, 2004 4.75 to 1.0
-------------------------------------------------------
June 30, 2004 4.75 to 1.0
-------------------------------------------------------
September 30, 2004 4.75 to 1.0
-------------------------------------------------------
December 31, 2004 4.60 to 1.0
-------------------------------------------------------
March 31, 2005 4.60 to 1.0
-------------------------------------------------------
June 30, 2005 4.60 to 1.0
-------------------------------------------------------
September 30, 2005 4.60 to 1.0
-------------------------------------------------------
December 31, 2005 4.35 to 1.0
-------------------------------------------------------
March 31, 2006 4.35 to 1.0
-------------------------------------------------------
June 30, 2006 4.35 to 1.0
-------------------------------------------------------
September 30, 2006 4.35 to 1.0
-------------------------------------------------------
December 31, 2006 4.00 to 1.0
-------------------------------------------------------
March 31, 2007 4.00 to 1.0
-------------------------------------------------------
June 30, 2007 4.00 to 1.0
-------------------------------------------------------
September 30, 2007 4.00 to 1.0
-------------------------------------------------------
December 31, 2007 and each March 31,
June 30, September 30, and
December 31 thereafter 3.75 to 1.0
-------------------------------------------------------
G-2
Unless otherwise specifically provided herein, any accounting term
used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrower, Agent and Lenders agree to enter into negotiations in
order to amend such provisions of the Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
Borrower's and its Subsidiaries' financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made;
provided, however, that the agreement of Requisite Lenders to any required
amendments of such provisions shall be sufficient to bind all Lenders.
"Accounting Changes" means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successor thereto or any agency with similar functions), (ii)
changes in accounting principles concurred in by Borrower's certified public
accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17 and
EITF 88-16, and the application of the accounting principles set forth in FASB
109, including the establishment of reserves pursuant thereto and any subsequent
reversal (in whole or in part) of such reserves; and (iv) the reversal of any
reserves established as a result of purchase accounting adjustments. All such
adjustments resulting from expenditures made subsequent to the Closing Date
(including capitalization of costs and expenses or payment of pre-Closing Date
liabilities) shall be treated as expenses in the period the expenditures are
made and deducted as part of the calculation of EBITDA in such period. If Agent,
Borrower and Requisite Lenders agree upon the required amendments, then after
appropriate amendments have been executed and the underlying Accounting Change
with respect thereto has been implemented, any reference to GAAP contained in
the Agreement or in any other Loan Document shall, only to the extent of such
Accounting Change, refer to GAAP, consistently applied after giving effect to
the implementation of such Accounting Change. If Agent, Borrower and Requisite
Lenders cannot agree upon the required amendments within 30 days following the
date of implementation of any Accounting Change, then all Financial Statements
delivered and all calculations of financial covenants and other standards and
terms in accordance with the Agreement and the other Loan Documents shall be
prepared, delivered and made without regard to the underlying Accounting Change.
For purposes of Section 8.1, a breach of a Financial Covenant contained in this
Annex G shall be deemed to have occurred as of any date of determination by
Agent or as of the last day of any specified measurement period, regardless of
when the Financial Statements reflecting such breach are delivered to Agent.
G-3
ANNEX H (Section 9.9(a))
to
CREDIT AGREEMENT
WIRE TRANSFER INFORMATION
Name: General Electric Capital Corporation
Bank: Bankers Trust Company
New York, New York
ABA #: 000000000
Account #: 00000000
Account Name: GECC/CAF Depository
Reference: CFC Universal Hospital Services
H-1
ANNEX I (Section 11.10)
to
CREDIT AGREEMENT
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Account Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
General Electric Capital Corporation
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(B) If to Borrower, at
Universal Hospital Services, Inc.
0000 Xxxx 00/xx/ Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
I-1
with copies to:
Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
I-2
ANNEX J (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Revolving Loan Commitment: Lender(s)
-------------------------------------- --------------------------------------
$30,000,000 General Electric Capital Corporation
(plus Swing Line Commitment of
$5,000,000)
$15,000,000 Fleet National Bank
$22,500,000 PNC Bank, National Association
$17,500,000 LaSalle Business Credit, LLC
$15,000,000 CIT Lending Services Corporation
J-1
