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Exhibit 99.9
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CREDIT AGREEMENT
by and among
FURON COMPANY,
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK,
AS SWING LINE LENDER AND AS ADMINISTRATIVE AGENT
with
BNY CAPITAL MARKETS, INC., as Arranging Agent
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$200,000,000
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Dated as of November 12, 1996
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TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ............................................................ 1
1.1. Definitions .................................................................................... 1
1.2. Principles of Construction .................................................................... 24
2. AMOUNT AND TERMS OF LOANS ............................................................................ 25
2.1. Revolving Credit Loans ........................................................................ 25
2.2. Swing Line Loans .............................................................................. 26
2.3. Procedure for Borrowing ....................................................................... 27
2.4. Disbursement of Funds ......................................................................... 28
2.5. Increases in Aggregate Revolving Credit
Commitment Amount ............................................................................. 29
2.6. Termination or Reduction of Revolving Credit
Commitments and Swing Line Commitment ......................................................... 30
2.7. Prepayments ................................................................................... 32
2.8. Use of Proceeds ............................................................................... 33
2.9. Payments ...................................................................................... 34
2.10. Records ...................................................................................... 34
3. INTEREST, FEES, YIELD PROTECTIONS, ETC. .............................................................. 35
3.1. Interest Rate and Payment Dates ............................................................... 35
3.2. Fees .......................................................................................... 37
3.3. Conversions ................................................................................... 37
3.4. Concerning Interest Periods ................................................................... 39
3.5. Indemnification for Loss ...................................................................... 39
3.6. Increased Costs, Illegality, etc. ............................................................. 40
3.7. Taxes ......................................................................................... 42
3.8. Option to Fund ................................................................................ 44
3.9. Substitution of a Lender ...................................................................... 44
4. REPRESENTATIONS AND WARRANTIES ....................................................................... 45
4.1. Subsidiaries; Capitalization .................................................................. 45
4.2. Existence and Power ........................................................................... 45
4.3. Authority and Execution ....................................................................... 45
4.4. Binding Agreement ............................................................................. 46
4.5. Litigation .................................................................................... 46
4.6. Required Consents ............................................................................. 46
4.7. Absence of Defaults; No Conflicting Agreements ................................................ 47
4.8. Compliance with Applicable Laws ............................................................... 47
4.9. Taxes ......................................................................................... 47
4.10. Governmental Regulations ..................................................................... 47
4.11. Federal Reserve Regulations; Use of Loan
Proceeds ..................................................................................... 48
4.12. Plans ........................................................................................ 48
4.13. Financial Statements ......................................................................... 48
4.14. Property ..................................................................................... 49
4.15. Authorizations ............................................................................... 49
4.16. Environmental Matters ........................................................................ 49
4.17. Solvency ..................................................................................... 50
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4.18. Medex Acquisition Documents .................................................................. 50
4.19. No Misrepresentation ......................................................................... 50
5. CONDITIONS TO EFFECTIVENESS, FIRST LOANS AND LOANS
MADE ON THE MERGER EFFECTIVE DATE .................................................................... 51
5.1. Conditions to Effectiveness ................................................................... 51
5.2. Conditions to First Loans ..................................................................... 52
5.3. Conditions to Loans on the Merger Effective
Date .......................................................................................... 54
6. ADDITIONAL CONDITIONS OF LENDING ..................................................................... 55
6.1. Compliance .................................................................................... 55
6.2. Borrowing Request ............................................................................. 55
7. AFFIRMATIVE COVENANTS ................................................................................ 55
7.1. Financial Statements and Information .......................................................... 55
7.2. Certificates; Other Information ............................................................... 57
7.3. Legal Existence ............................................................................... 59
7.4. Taxes ......................................................................................... 59
7.5. Insurance ..................................................................................... 59
7.6. Performance of Obligations .................................................................... 59
7.7. Condition of Property ......................................................................... 60
7.8. Observance of Legal Requirements .............................................................. 60
7.9. Inspection of Property; Books and Records;
Discussions ................................................................................... 60
7.10. Authorizations ............................................................................... 60
7.11. Financial Covenants .......................................................................... 60
7.12. Merger. ...................................................................................... 61
8. NEGATIVE COVENANTS ................................................................................... 61
8.1. Indebtedness .................................................................................. 61
8.2. Liens ......................................................................................... 62
8.3. Merger, Consolidations and Acquisitions ....................................................... 63
8.4. Dispositions .................................................................................. 64
8.5. Investments, Loans, Etc. ...................................................................... 65
8.6. Restricted Payments ........................................................................... 66
8.7. Business and Name Changes ..................................................................... 67
8.8. ERISA ......................................................................................... 67
8.9. Amendments, Etc. of Certain Agreements ........................................................ 67
8.10. Transactions with Affiliates ................................................................. 67
8.11. Issuance of Capital Stock .................................................................... 67
9. DEFAULT .............................................................................................. 67
9.1. Events of Default ............................................................................. 67
9.2. Contract Remedies ............................................................................. 69
10. THE ADMINISTRATIVE AGENT ............................................................................ 70
10.1. Appointment .................................................................................. 70
10.2. Delegation of Duties ......................................................................... 70
10.3. Exculpatory Provisions ....................................................................... 71
10.4. Reliance by Administrative Agent ............................................................. 71
10.5. Notice of Default ............................................................................ 72
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10.6. Non-Reliance on Administrative Agent and Other
Lenders ...................................................................................... 72
10.7. Indemnification .............................................................................. 72
10.8. Administrative Agent in Its Individual
Capacity ..................................................................................... 73
10.9. Successor Administrative Agent ............................................................... 73
11. OTHER PROVISIONS .................................................................................... 74
11.1. Amendments and Waivers ....................................................................... 74
11.2. Notices ...................................................................................... 75
11.3. No Waiver; Cumulative Remedies ............................................................... 76
11.4. Survival of Representations and Warranties
and Certain Obligations ...................................................................... 76
11.5. Expenses ..................................................................................... 76
11.6. Applicable Lending Offices ................................................................... 77
11.7. Assignments and Participations ............................................................... 77
11.8. Indemnity .................................................................................... 79
11.9. Determination of Dollar Equivalent ........................................................... 79
11.10. Limitation of Liability ..................................................................... 80
11.11. Counterparts ................................................................................ 80
11.12. Adjustments; Set-off ........................................................................ 80
11.13. Construction ................................................................................ 81
11.14. Governing Law ............................................................................... 81
11.15. Headings Descriptive ........................................................................ 81
11.16. Severability ................................................................................ 81
11.17. Judgment Currency ........................................................................... 82
11.18. Integration ................................................................................. 82
11.19. Consent to Jurisdiction ..................................................................... 82
11.20. Service of Process .......................................................................... 83
11.21. No Limitation on Service or Suit ............................................................ 83
11.22. WAIVER OF TRIAL BY JURY ..................................................................... 83
11.23. Treatment of Certain Information ............................................................ 83
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EXHIBITS
Exhibit A List of Commitments
Exhibit B Form of Borrowing Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Opinion of O'Melveney & Xxxxx, LLP Counsel to
the Borrower and Acquisition Corp.
Exhibit E-1 Form of Opinion of Xxxxxx X. Xxxxxxx, General Counsel of
the Borrower and Counsel to Acquisition Corp.
Exhibit E-2 Form of Opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx,
Special Ohio Counsel to the Borrower and Acquisition
Corp.
Exhibit E-3 Form of Supplemental Opinion of Xxxxxx X. Xxxxxxx,
General Counsel of the Borrower and as Counsel to
Acquisition Corp.
Exhibit E-4 Form of Supplemental Opinion of Vorys, Xxxxx, Xxxxxxx
and Xxxxx, Special Ohio Counsel to the Borrower and
Acquisition Corp.
Exhibit F Form of Opinion of Special Counsel
Exhibit G Form of Assignment and Acceptance Agreement
Exhibit H Form of Note
SCHEDULES
Schedule 1.1 List of Applicable Lending Offices
Schedule 1.1A List of Applicable Payment Offices
Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.5 List of Litigation
Schedule 4.7 Exception to Section 4.7 (No Conflicting Agreements)
Schedule 4.12 List of Existing Pension Plans
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.5 List of Existing Investments
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CREDIT AGREEMENT, dated as of November 12, 1996, by and among FURON
COMPANY, a California corporation (the "Borrower"), the lenders party hereto
(together with the Swing Line Lender and their respective assigns, the
"Lenders", each a "Lender") and THE BANK OF NEW YORK, as swing line lender (in
such capacity, the "Swing Line Lender") and THE BANK OF NEW YORK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have
the meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Revolving Credit Loans (or any portions
thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base Rate.
"Accountants": Ernst & Young, LLP (or any successor thereto),
or such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
"Accumulated Funding Deficiency": as defined in Section 302
of ERISA.
"Acquisition": with respect to any Person, the purchase or
other acquisition by such Person, by any means whatsoever (including through a
merger, dividend or otherwise and whether in a single transaction or in a series
of related transactions), of (i) any Capital Stock of, or other equity
securities of, any other Person if, immediately thereafter, such other Person
would be either a Subsidiary of such Person or otherwise under the control of
such Person, (ii) any Operating Entity, or (iii) any Property of (A) any other
Person or (B) any Operating Entity, in either case other than in the ordinary
course of business, provided, however, that no acquisition of all or
substantially all of the assets of such other Person or Operating Entity shall
be deemed to be in the ordinary course of business.
"Acquisition Corp.": FCY, Inc., an Ohio corporation and a
wholly-owned Subsidiary of the Borrower.
"Acquisition Cost": with respect to any Acquisition by any
Person, the sum of (i) all cash consideration paid or agreed to be paid by such
Person to make such Acquisition, plus (ii) the fair market value of all non-cash
consideration paid by such Person in connection therewith, plus (iii) an amount
equal to the principal or stated amount of all liabilities assumed or incurred
by such Person in connection therewith plus (iv) all transaction costs incurred
in connection therewith. The principal or stated amount of any liability assumed
or incurred by a Person in connection with an Acquisition which is a contingent
liability shall be an amount equal to the stated amount of such liability or, if
the same is not stated, the maximum reasonably anticipated amount payable by
such Person in respect thereof as determined by such Person in good faith.
"Advance": an ABR Advance, a Eurodollar Advance or an
Alternate Currency Euro Advance, as the case may be.
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"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, (i) to vote 10% or more of the
securities or other interests having ordinary voting power for the election of
directors or other managing Persons thereof or (ii) to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate Credit Exposure": at any time, the sum at such
time of (i) the outstanding principal balance (determined on the basis of
the Dollar Equivalent for each outstanding Alternate Currency Loan) of
the Revolving Credit Loans of all Lenders and (ii) the outstanding
principal balance of the Swing Line Loans.
"Aggregate Revolving Credit Commitment Amount": at any time,
the sum at such time of the Revolving Credit Commitment Amounts of all
Lenders at such time.
"Agreement": this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on such
date plus 1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Alternate Currencies": collectively, (i) German Marks,
Japanese Yen and Sterling Pounds and (ii) such other currencies as shall be
requested by the Borrower to be an Alternate Currency hereunder subject to the
approval of the Administrative Agent and all of the Lenders in their sole and
absolute discretion (each, an "Alternate Currency").
"Alternate Currency Euro Advances": collectively, the
Alternate Currency Loans (or any portions thereof) at such time as they (or such
portions) are maintained and/or being maintained in an Alternate Currency at a
rate of interest based upon an Alternate Currency Euro Rate; each a "Alternate
Currency Euro Advance".
"Alternate Currency Euro Rate": with respect to the Interest
Period applicable to any Alternate Currency Euro Advance, a rate of interest per
annum, as determined by the Administrative Agent, obtained by dividing (and then
rounding to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then
to the next higher 1/16 of 1%):
(a)(i) the rate per annum that appears on page 3750
of the Dow Xxxxx Telerate Screen (or any successor page) for deposits of the
applicable Alternate Currency with a maturity comparable to such Interest
Period, determined as of 11:00 a.m. (London time) (x) on the date which is two
Business Days prior to the commencement of such Interest Period, in the case of
an Alternate Currency (other than Sterling Pounds) and (y) on the date of the
commencement of such Interest Period, in the case of Sterling Pounds or, if such
rate does not appear on page 3750 of the Dow Xxxxx Telerate Screen (or any
successor page) or (ii) the rate per annum equal to the offered quotation
notified to the Administrative Agent by the Reference Lender as the offered
quotation by first class banks in the London interbank market to the Reference
Lender for such Alternate Currency deposits of amounts in immediately available
funds comparable to the principal amount of such Alternate Currency Euro Advance
of the Reference Lender with a maturity comparable to such Interest Period
determined as of 11:00 a.m. (London time) (x) on the date which is two Business
Days prior to the commencement of such Interest Period,
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in the case of an Alternate Currency (other than Sterling Pounds) and (y) on the
date of the commencement of such Interest Period, in the case of Sterling
Pounds, by
(b) a number equal to 1.00 minus the aggregate of the
stated maximum rates in effect on such day (without duplication) of all reserve
requirements (including, without limitation, marginal, emergency, supplemental
and special reserves) and similar charges, expressed as a decimal, established
by any Governmental Authority, including those established by the Board of
Governors of the Federal Reserve System and any other banking authority to which
BNY and other major United States money center banks are subject in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) maintained
by a member of the Federal Reserve System to the extent Applicable;
provided, in the event that the Administrative Agent has made any determination
pursuant to Section 3.6(a)(i) in respect of such Alternate Currency Euro
Advance, the Alternate Currency Euro Rate determined pursuant to clause (a) of
this definition shall instead be the rate reported to the Administrative Agent
by the Reference Lender as the rate based on the all-in cost of funds of the
Reference Lender to fund such Alternate Currency Euro Advance with a maturity
comparable to such Interest Period. The Alternate Currency Euro Rate shall be
adjusted automatically on and as of the effective date of any change in any such
reserve requirement.
"Alternate Currency Equivalent": with respect to any Alternate
Currency, on any date of determination thereof, the amount of such Alternate
Currency which could be purchased with the amount of Dollars involved in such
computation at the spot rate at which such Alternate Currency may be exchanged
into Dollars as set forth on such date on Dow Xxxxx Telerate page RWRLD (or any
successor page) or, if such rate does not appear on such pages, at the spot
exchange rate therefor as determined by the Administrative Agent as of 11:00
a.m. (London time) on such date of determination thereof for delivery two
Business Days later.
"Alternate Currency Lending Office": in respect of (i) any
Lender listed on the signature pages hereof with respect to its Alternate
Currency Loans, initially, the office, branch or affiliate of such Lender
designated as such Lender's lending office for Alternate Currency Loans in such
Alternate Currency on Schedule 1.1; thereafter, such other office, branch or
affiliate of such Lender through which it shall be making or maintaining
Alternate Currency Euro Advances in such Alternate Currency, as reported by such
Lender to the Administrative Agent and the Borrower, and (ii) in the case of any
other Lender, initially, the office, branch or affiliate of such Lender
designated as such Lender's lending office for Alternate Currency Loans in such
Alternate Currency designated as such on Schedule 2 of the Assignment and
Acceptance Agreement or other document pursuant to which it became a Lender;
thereafter, such other office of such Lender, through which it shall be making
or maintaining Alternate Currency Euro Advances in such Alternate Currency, as
reported by such Lender to the Administrative Agent and the Borrower.
"Alternate Currency Loan": a Revolving Credit Loan
denominated in an Alternate Currency.
"Applicable": with respect to Regulation D being applicable
to any determination of an Alternate Currency Euro Rate, that Regulation D
reserves would be applicable to the Alternate Currency Euro
Advance as to which such interest rate would
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apply (including by giving effect to the assumption that the Lenders had funded
such Alternate Currency Euro Advance through the purchase of an Alternate
Currency deposit by a subsidiary or affiliate of such Lender in the London
interbank market and the transfer thereof to such Lender from
such subsidiary or affiliate).
"Applicable Currency": with respect to (i) any Revolving
Credit Loan, Dollars or an Alternate Currency and (ii) Swing Line Loan,
Dollars.
"Applicable Fee Percentage": with respect to the Commitment
Fee, at all times during which the applicable Pricing Level set forth be-
low is in effect, the percentage set forth below next to such Pricing
Level and under the applicable column:
Pricing Level Applicable Fee Percentage
Pricing Level I 0.250%
Pricing Level II 0.225%
Pricing Level III 0.200%
Pricing Level IV 0.175%
Pricing Level V 0.150%
Pricing Level VI 0.125%
Pricing Level VII 0.100%
Changes in the Applicable Fee Percentage resulting from a
change in a Pricing Level shall become effective upon the date of the delivery
by the Borrower to the Administrative Agent of a Compliance Certificate pursuant
to Section 7.1(c) evidencing a change in the Leverage Ratio which would affect
the applicable Pricing Level. If the Borrower shall fail to deliver a Compliance
Certificate within 45 days after the end of each of the first three fiscal
quarters (or 90 days after the end of the last fiscal quarter) as required by
Section 7.1(c), Pricing Level I shall apply from and including the 46th day (the
91st day in the case of the last quarter) after the end of such fiscal quarter
to the date of the delivery by the Borrower to the Administrative Agent of a
Compliance Certificate demonstrating that a different Pricing Level is
applicable.
"Applicable Lending Office": in respect of (i) any Lender, (A)
in the case of such Lender's ABR Advances, its Domestic Lending Office, (B) in
the case of such Lender's Eurodollar Advances, its Eurodollar Lending Office,
and (C) in the case of such Lender's Alternate Currency Euro Advances, its
applicable Alternate Currency Lending Office, and (ii) the Swing Line Lender
with respect to its Swing Line Loans, its Domestic Lending Office.
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"Applicable Margin": with respect to the unpaid principal
balance of Eurodollar Advances and Alternate Currency Euro Advances, in each
case at all times during which the applicable Pricing Level set forth below is
in effect, the percentage set forth below next to such Pricing Level, subject to
the provisos set forth below:
Pricing Level Applicable Margin
Pricing Level I 1.1250%
Pricing Level II 0.8750%
Pricing Level III 0.6250%
Pricing Level IV 0.5000%
Pricing Level V 0.4375%
Pricing Level VI 0.3750%
Pricing Level VII 0.3125%
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective upon the date of the delivery by the
Borrower to the Administrative Agent of a Compliance Certificate pursuant to
Section 7.1(c) evidencing a change in the Leverage Ratio which would affect the
applicable Pricing Level. If the Borrower shall fail to deliver a Compliance
Certificate within 45 days after the end of each of the first three fiscal
quarters (or 90 days after the end of the last fiscal quarter) as required by
Section 7.1(c), Pricing Level I shall apply from and including the 46th day (the
91st day in the case of the last quarter) after the end of such fiscal quarter
to the date of the delivery by the Borrower to the Administrative Agent of a
Compliance Certificate demonstrating that a different Pricing Level is
applicable.
"Applicable Payment Office": in respect of (i) all Loans
(other than Alternate Currency Loans), fees and other amounts owing under the
Loan Documents, the office of the Administrative Agent listed on Schedule 1.1A
as its "Domestic Payment Office", and (ii) in respect of Alternate Currency
Loans, the office of the Administrative Agent listed on Schedule 1.1A as its
payment office for the applicable Alternate Currency, or such other office or
offices as the Administrative Agent may from time to time hereafter designate in
writing as such to each Lender and the Borrower.
"Approved Bank": any bank whose (or whose parent company's)
unsecured non-credit supported short-term commercial paper rating from (i)
Standard & Poor's is at least A-1 or the equivalent thereof or (ii) Xxxxx'x is
at least P-1 or the equivalent thereof.
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee,
substantially in the form of Exhibit G.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": as to (i) any Person which is a
corporation, the chairman of the board, the president, any vice president, the
chief financial officer or any other officer (acceptable to the Administrative
Agent) of such Person and (ii) any Person which is not a corporation, the
general partner or other managing Person thereof.
"Benefited Lender": as defined in Section 11.12.
"BNY": The Bank of New York.
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"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"BNY Capital Markets": BNY Capital Markets, Inc.
"Borrowing Date": any Business Day specified in (i) a
Borrowing Request as a date on which the Borrower requests the Lenders to make
Revolving Credit Loans or (ii) a Borrowing Request as a date on which the
Borrower requests the Swing Line Lender to make a Swing Line Loan.
"Borrowing Request": a request for Revolving Credit Loans or
a Swing Line Loan in the form of Exhibit B.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close, and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances and Alternate Currency Euro Advances, any day which is a
Business Day described in clause (i) above and which is also a day on which
trading by and between banks in the interbank market may be carried on in
London, England.
"Capital Lease Obligations": with respect to any Person, that
portion of capital leases of such Person which are required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares, interests,
partnership interests, limited liability company interests,
participations, rights in or other equivalents (however designated) of
such Person's equity (however designated) and any rights, warrants or op-
tions exchangeable for or convertible into such shares, interests,
participations, rights or other equity.
"Cash Equivalents": (i) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in full support thereof) having maturities of not more than
one year from the date of acquisition, (ii) Dollar denominated time deposits,
certificates of deposit and bankers acceptances of (x) any Lender or (y) any
Approved Bank, in any such case with maturities of not more than one year from
the date of acquisition, (iii) commercial paper issued by any Approved Bank or
by the parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any industrial or financial company with an unsecured non-credit
supported short-term commercial paper rating of at least A-1 or the equivalent
by Standard & Poor's or at least P-1 or the equivalent by Xxxxx'x, or guaranteed
by any industrial or financial company with a long term unsecured non-credit
supported senior debt rating of at least A or A-2, or the equivalent, by
Standard & Poor's or Xxxxx'x, as the case may be, and in each case maturing
within one year after the date of acquisition, (iv) marketable direct
obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's or Xxxxx'x and (v) investments in money market funds
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substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) above.
"Certificate of Merger": as defined in Section 5.3(j).
"Change of Control": any transaction or series of related
transactions (i) in which any Person or two or more Persons acting in concert
acquire beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35% or more of the common stock of the
Borrower, or (ii) in which individuals who as of the Effective Date constitute
the board of directors of the Borrower (the "Incumbent Board"), cease for any
reason to constitute at least a majority of the board of directors, provided
that any person becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Borrower or shareholders, is
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election or removal of the directors of the
Borrower, as contemplated in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall, for purposes of this Agreement, be considered as thought
such person were a member of the Incumbent Board of the Borrower, or (iii)
constituting a "Change in Control," or other similar occurrence under
documentation evidencing or governing any Indebtedness of the Borrower of
$15,000,000 or more which results in an obligation of the Borrower to prepay,
purchase, offer to purchase, redeem or defease such Indebtedness.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": a Revolving Credit Commitment or the Swing Line
Commitment, as the case may be.
"Commitment Fee": as defined in Section 3.2(a).
"Commitment Percentage": as to any Lender, the percentage
equal to such Lender's Revolving Credit Commitment Amount divided by the
Aggregate Revolving Credit Commitment Amount.
"Company Option Agreement": the Company Option Agreement,
dated as of November 12, 1996, by and between Medex and the Borrower, as
same may be amended, supplemented or otherwise modified from time to
time in accordance with Section 8.9.
"Compensatory Interest Payment": as defined in Section
3.1(c).
"Compliance Certificate": a certificate substantially in
the form of Exhibit D.
"Consolidated": the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated Capital Expenditures": for any period, the
aggregate of all expenditures incurred by the Borrower and its
Subsidiaries determined on a Consolidated
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basis in accordance with GAAP during such period which, in accordance with GAAP,
are required to be included in "Additions to Property, Plant or Equipment" or
similar items reflected on the balance sheet of such Person, provided, however,
that "Capital Expenditures" shall not include (i) capitalized leases, or (ii)
expenditures of proceeds of insurance settlements in respect of lost, destroyed
or damaged assets, equipment or other property to the extent such expenditures
are made to replace or repair such lost, destroyed or damages assets, equipment
or other property within six months of the receipt of such proceeds or (iii)
Acquisition Costs incurred in connection with Permitted Acquisitions.
"Consolidated Debt Service": for any period, the sum of (i)
Consolidated Interest Expense for such period and (ii) all scheduled
payments of principal on Consolidated Total Debt during such period, all
as determined on a Consolidated basis in accordance with GAAP.
"Consolidated EBITDA": for any period, net income of the
Borrower and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP plus the sum of, without duplication, (i)
Consolidated Interest Expense, (ii) taxes of the Borrower and its Subsidiaries
based on, or measured by, income and (iii) depreciation, amortization and other
non-cash charges of the Borrower and its Subsidiaries, each to the extent
deducted in determining such net income for such period, minus extraordinary
gains from sales, exchanges and other dispositions of Property not in the
ordinary course of business and other non-recurring items (other than losses).
Consolidated EBITDA shall be calculated by disregarding non-cash restructuring
charges taken by the Borrower in connection with the Transactions so long as
such charges are taken within six months after the first Borrowing Date;
provided, however, that in the event that the income realized from the sale or
other disposition of an asset would exceed the amount of income which would have
been realized but for the taking of such charge, such excess shall be excluded
from the calculation of Consolidated EBITDA. In addition, solely for purposes of
calculating the Leverage Ratio for the period of the four fiscal quarters ending
after the date on which the Medex Acquisition is consummated, Consolidated
EBITDA shall be calculated as if Medex was a Subsidiary of the Borrower during
such period but without deduction for Medex's non-cash restructuring expenses
taken for its fiscal year ended June 30, 1996 to the extent that such
restructuring charge would ordinarily be taken into account in calculating
Medex's net income for such period.
"Consolidated Fixed Charges": for any period, the sum of,
without duplication, (i) Consolidated Debt Service for such period, and (ii)
Consolidated Rent Expense for such period.
"Consolidated Interest Expense": for any period, the sum of,
without duplication, all cash interest (adjusted to give effect to all interest
rate swap, cap or other interest rate hedging arrangements and fees and expenses
paid in connection with the same, paid or accrued in respect of Consolidated
Total Debt during such period), all as determined on a Consolidated basis in
accordance with GAAP.
"Consolidated Rent Expense": for any period, the rent expense
of the Borrower and its Subsidiaries in respect of operating leases for such
period, determined on a Consolidated basis in accordance with GAAP, provided,
however, that for purposes of this definition, at any date of determination,
Consolidated Rent Expense shall be equal to the sum of (i) the amount of such
rent expense in respect of operating leases as set forth in the most recently
delivered annual reports required under Section 7.1(a) plus (ii) an amount, if
positive, equal to rent expense in respect of operating leases entered into
after
- 8 -
14
the end of the most recent fiscal year for which such statements were delivered
minus $750,000, in each case net of any sublease income during such period.
"Consolidated Total Debt": at any date of determination, the
aggregate of (i) all indebtedness for borrowing money, (ii) Capitalized
Lease Obligations, and (iii) Contingent Obligations in excess of
$100,000.
"Contingent Obligation": as to any Person ( a "secondary
obligor"), any obligation of such secondary obligor (i) guaranteeing or in
effect guaranteeing any return on any investment made by another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation (a "primary obligation") of any other Person (a "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such secondary obligor, whether contingent, (A) to
purchase any primary obligation or any Property constituting direct or indirect
security therefor, (B) to advance or supply funds (x) for the purchase or
payment of any primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (C) to purchase Property, securities or services
primarily for the purpose of assuring the beneficiary of any primary obligation
of the ability of a primary obligor to make payment of a primary obligation, (D)
otherwise to assure or hold harmless the beneficiary of a primary obligation
against loss in respect thereof, and (E) in respect of the liabilities of any
partnership in which a secondary obligor is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such
secondary obligor and its separate Property, provided, however, that the term
"Contingent Obligation" shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to the
stated or determinable amount of a primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Conversion Date": the date on which (i) a Eurodollar Advance
is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a Eurodollar Advance, (iii) the date on which a Eurodollar Advance
is converted to a new Eurodollar Advance and (iv) the date on which an Alternate
Currency Euro Advance is converted to a new Alternate Currency Euro Advance.
"Credit Exposure": with respect to any Lender as at any time,
the sum at such time of (i) the outstanding principal balance of such Lender's
Revolving Credit Loans (determined on the basis of the Dollar Equivalent for
each outstanding Alternate Currency Loan), and (ii) the Swing Line Exposure of
such Lender.
"Currency": Dollars or any Alternate Currency.
"Default": any event or condition which constitutes an Event
of Default or which, with the giving of notice, the lapse of time, or any
other condition, would, unless cured or waived, become an Event of
Default.
"Disposition": with respect to any Person, any sale,
assignment, transfer or other disposition by such Person, by any means, of (i)
the Capital Stock of, or other equity interests of, any other Person, (ii) any
Operating Entity, or (iii) any other Property of such Person other than in the
ordinary course of business, provided, however, that no such sale, assignment,
transfer or other disposition of Property (other than inventory,
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15
except to the extent subject to a bulk sale) shall be deemed to be in the
ordinary course of business (a) if the fair market value thereof is in excess of
$250,000, or (b) to the extent that the fair market value thereof, when
aggregated with all other sales, assignments, transfers and other dispositions
made by such Person within the same fiscal year, exceeds $750,000, and then only
to the extent of such excess, if any, or (c) it is the sale, assignment,
transfer or disposition of (1) all or substantially all of the Property of such
Person or (2) any Operating Entity. The contribution of Property to a joint
venture permitted by Section 8.5 (i) shall not be deemed to be a Disposition.
"Disposition Reduction/Prepayment Date": with respect to any
Disposition pursuant to Section 8.4(c), the earlier to occur of (i) the date on
which the Borrower delivers written notice to the Administrative Agent that the
Net Cash Proceeds of such Disposition are not to be used in whole or in part to
make Consolidated Capital Expenditures or Permitted Acquisitions within one year
after the receipt of such Net Cash Proceeds by the Borrower or any of its
Subsidiaries or (ii) the date which is one year after the date of such receipt.
"Disposition Reduction/Prepayment Amount": with respect to any
Disposition pursuant to Section 8.4(c), an amount equal to that portion of the
Net Cash Proceeds received by the Borrower or any of its Subsidiaries in respect
of such Disposition that constitutes Excess Disposition Proceeds minus the
amount thereof, if any, which constitutes
Reinvested Proceeds.
"Disqualified Stock": any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable at the option of the holder thereof by contract or
otherwise, is, or upon the happening of an event or passage of time would be,
required to be redeemed or is redeemable at the option of the holder thereof at
any time, or is convertible into or exchangeable at the option of the holder
thereof for debt securities.
"Dollar Equivalent": on any date of determination thereof, the
amount of Dollars which could be purchased with the amount of the relevant
Alternate Currency involved in such computation at the spot rate at which
Dollars may be exchanged into such Alternate Currency as set forth on such date
on Dow Xxxxx Telerate page RWRLD (or any successor page) or, if such rate does
not appear on such page, as shall be determined by the Administrative Agent by
reference to such other publicly available service for displaying exchange rates
as the Administrative Agent and the Borrower agree or, in the absence of such
agreement, at the spot exchange rate therefor as determined by the
Administrative Agent as of 11:00 a.m. (London time) on such date of
determination thereof for delivery two Business Days later.
"Dollar Loan": each Dollar Revolving Credit Loan and each
Swing Line Loan.
"Dollar Revolving Credit Loan" and "Dollar Revolving Credit
Loans": a Revolving Credit Loan made in Dollars.
"Dollars" and "$": lawful currency of the United States.
"Domestic Lending Office": in respect of (i) any Lender
listed on the signature pages hereof, initially, the office, branch or
affiliate of such Lender designated as
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16
such Lender's lending office for ABR Advances of such Lender on Schedule 1.1;
thereafter, such other office, branch or affiliate of such Lender, through which
it shall be making or maintaining ABR Advances, as reported by such Lender to
the Administrative Agent and the Borrower, (ii) in the case of any other Lender,
initially, the office, branch or affiliate of such Lender designated as such
Lender's lending office for ABR Advances of such Lender on Schedule 2 of the
Assignment and Acceptance Agreement or other document pursuant to which it
became a Lender; thereafter, such other office, branch or affiliate through
which it shall be making or maintaining ABR Advances, as reported by such Lender
to the Administrative Agent and the Borrower, and (iii) the Swing Line Lender,
initially, the office, branch or affiliate of the Swing Line designated as the
Swing Line Lender's lending office on Schedule 1.1; thereafter, such other
office, branch or affiliate of the Swing Line Lender, through which it shall be
making or maintaining the Swing Line Loans, as reported by the Swing Line Lender
to the Administrative Agent and the Borrower, provided that the Swing Line
Lender may report different Domestic Lending Offices for all of its ABR Advances
and all of its Swing Line Loans, whereupon references to the Domestic Lending
Office of such Lender shall mean either or both of such offices.
"Effective Date": the date on which the conditions to
effectiveness set forth in Section 5.1 have been satisfied.
"Eligible Assignee": a Lender, any affiliate of a Lender and
any other bank or insurance company.
"Employee Benefit Plan": an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws": any and all federal, state and local
laws relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section 6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA Section 2601 et seq.; (iv) the Water
Pollution Control Act, as amended, 33 USCA Section 1251 et seq.; (v) the Clean
Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the Hazardous Materials
Transportation Authorization Act of 1994, as amended, 49 USCA Section 5101 et
seq. and (vii) all rules, regulations, judgments and restrictions thereunder and
any analogous state law.
"Equity Offering": any public offering or private placement
by the Borrower or any of its Subsidiaries of shares of its Capital
Stock (other than any such offering or placement solely for the Capital
Stock or Property of another Person in connection with a Permitted
Acquisition).
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued
thereunder, as from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee
Benefit Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person which is a member of any group of organizations within
the meaning of Sections
- 11 -
17
414(b) or (c) of the Code (or, solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien
created under Section 302(f) of ERISA and Section 412(n) of the Code, Sections
414(m) or (o) of the Code) of which the Borrower or any of its Subsidiaries is a
member.
"ESOP": the Employee Stock Ownership Plan of Furon Company.
"Eurodollar Advances": collectively, the Revolving Credit
Loans (or any portions thereof), at such time as they (or such portions) are
made and/or being maintained at a rate of interest based upon the Eurodollar
Rate.
"Eurodollar Lending Office": in respect of (i) any Lender
listed on the signature pages hereof, initially, the office, branch or affiliate
of such Lender designated as such Lender's lending office for Eurodollar
Advances of such Lender on Schedule 1.1; thereafter, such other office, branch
or affiliate of such Lender, through which it shall be making or maintaining
Eurodollar Advances, as reported by such Lender to the Administrative Agent and
the Borrower and (ii) in the case of any other Lender, initially, the office,
branch or affiliate of such Lender designated as such Lender's lending office
for Eurodollar Advances of such Lender on Schedule 2 of the Assignment and
Acceptance Agreement or other document pursuant to which it became a Lender;
thereafter, such other office, branch or affiliate through which it shall be
making or maintaining Eurodollar Advances, as reported by such Lender to the
Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to the Interest Period
applicable to any Eurodollar Advance, a rate of interest per annum, as
determined by the Administrative Agent, obtained by dividing (and then rounding
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the
next higher 1/16 of 1%):
(a) the rate per annum for deposits having a maturity
most nearly comparable to the Interest Period in respect of such Eurodollar
Advance in Dollars which appears on page 3750 of the Dow Xxxxx Telerate Screen
(or any successor page) as of 11:00 a.m. London time on the date that is two
Business Days prior to the first day of such Interest Period, or if such a rate
does not appear on page 3750 of the Dow Xxxxx Telerate Screen, the rate of
interest per annum quoted by the Reference Lender at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior to
the first day of such Interest Period to leading banks in the interbank
eurodollar market as the rate at which the Reference Lender is offering Dollar
deposits in an amount approximately equal to its Commitment Percentage of such
Eurodollar Advance and having a period to maturity approximately equal to such
Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the
then stated maximum rates during such Interest Period of all reserve
requirements (including, without limitation, marginal, emergency, supplemental
and special reserves), expressed as a decimal, established by the Board of
Governors of the Federal Reserve System and any other banking authority to which
BNY and other major United States money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System) or in
respect of any other category of liabilities including deposits by reference to
which the interest rate on Eurodollar Advances is determined or any category of
extensions of credit or other assets which includes loans by non-domestic
offices of any Lender to United
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18
States residents. Such reserve requirements shall include, without limitation,
those imposed under such Regulation D. Eurodollar Advances shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed to be subject to
such reserve requirements without benefit of credits for proration, exceptions
or offsets which may be available from time to time to any Lender under such
Regulation D. The Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in any such reserve requirement.
"Event of Default": as defined in Section 9.1.
"Excess Cash Flow": with respect to any fiscal year,
Consolidated EBITDA for such fiscal year minus the sum of, without duplication
(i) the amount, if positive, equal to (a) the amount of the Loans (determined on
the basis of the Dollar Equivalent for each outstanding Alternate Currency Loan)
outstanding at the beginning of such fiscal year minus (b) the Aggregate
Revolving Credit Commitment Amount at the end of such fiscal year (without
giving effect to reductions thereof during such period required by Section
2.6(d)), (ii) scheduled payments of principal of Consolidated Total Debt during
such fiscal year, (iii) Consolidated Capital Expenditures made during such
fiscal year, (iv) taxes (other than income taxes) paid by the Borrower and its
Subsidiaries during such fiscal year, and (v) Cash Interest Expense for such
fiscal year.
"Excess Disposition Proceeds": with respect to any fiscal
year, the amount (if positive) equal to the amount of Net Cash Proceeds
received by the Borrower and/or any of its Subsidiaries during such
fiscal year minus $3,750,000.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Existing Furon Bank Debt": the Indebtedness of the
Borrower under the Existing Furon Loan Documents including, without limitation,
all outstanding principal, unpaid and accrued interest, unpaid and accrued fees
and other unpaid sums thereunder.
"Existing Furon Loan Documents": collectively (i) the Credit
Agreement, dated as of October 30, 1995, among the Borrower, the lenders party
thereto and Bank of America National Trust and Savings Association, as agent,
and (ii) all other documents executed and delivered in connection therewith,
each as amended to the first Borrowing Date.
"Existing Medex Bank Debt": the Indebtedness of the Medex
under the Revolving Credit Note, dated June 20, 1996, made by Medex to the order
of Huntington National Bank, including, without limitation, all outstanding
principal, unpaid and accrued interest, unpaid and accrued fees and other unpaid
sums thereunder.
"Existing Medex Bond Documents": collectively, (i) the Loan
Agreement, dated as of July 1, 1996, between the City of Hilliard, Ohio and
Medex, (ii) the Reimbursement Agreement, dated as of July 1, 1996, between Bank
One, Columbus, NA and Medex, (iii) the Project Note, dated July 16, 1996, made
by Medex in favor of Bank One Trust Company, N.A., and (iv) the Trust Indenture,
dated as of July 1, 1996, between the City of Hilliard, Ohio, as issuer and Bank
One Trust Company, NA, as trustee, in each case in connection with the City of
Hilliard, Ohio Adjustable Rate Industrial Development Revenue Bonds, Series 1996
(Medex, Inc. Project), as each may be amended, supplemented or otherwise
modified from time to time in accordance with Section 8.9.
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19
"Existing Medfusion Bond Documents": collectively, (i) the
Loan Agreement dated as of June 1, 1992, between the Development Authority of
Xxxxxx County and Medfusion, Inc., (ii) the Direct Pay Letter of Credit
Reimbursement Agreement, dated as of June 1, 1992, between Wachovia Bank of
Georgia, National Association, and Medfusion, Inc., (iii) the Trust Indenture
dated as of June 1, 1992, between Development Authority of Xxxxxx County, as
issuer, and AmSouth Bank N.A., as trustee, in each case in connection with the
Development Authority of Xxxxxx County Industrial Development Revenue Bonds
(Medfusion, Inc. Project), as each may be amended, supplemented or otherwise
modified from time to time in accordance with Section 8.9.
"Existing Pension Plans": as defined in Section 4.12.
"Federal Funds Rate": for any day, a rate per annum (expressed
as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%)
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average of the quotations for such day on such transactions
received by BNY as determined by BNY and reported to the Administrative Agent.
"Fees": as defined in Section 2.9.
"Financial Officer": as to any Person, the chief financial
officer of such Person or such other officer as shall be satisfactory to
the Administrative Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Charge Coverage Ratio": at any date of determination,
the ratio of (i) Consolidated EBITDA plus Consolidated Rent Expense minus
Consolidated Capital Expenditures to (ii) Consolidated Fixed Charges for the
four fiscal quarter period ending on such date or, if such date is not the last
day of a fiscal quarter, for the immediately
preceding four fiscal quarter period.
"Fixed Rate Advance": a Eurodollar Advance, an Alternate
Currency Euro Advance or a Swing Line Negotiated Rate Advance, as the
case may be.
"Funded Current Liability Percentage": as defined in Section
401(a)(29) of the Code.
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"German Marks": freely transferable lawful money of Germany.
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20
"Governmental Authority": any foreign, federal, state, munici-
pal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or
arbitrator.
"HSR Act": the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements thereof and (ii) any substance, pollutant or material defined as,
or designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender on its Loans, or which may be owing to
such Lender pursuant the Loan Documents under the laws applicable to such Lender
and this transaction.
"Indebtedness": as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of Property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other than carriers', warehousemen's, mechanics', repairmen's or other
like non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations and (viii) Contingent Obligations.
"Indemnified Liability": as defined in Section 11.5.
"Indemnified Person": as defined in Section 11.8.
"Indemnified Tax": as to any Person, any Tax, except (i) a Tax
on the Income imposed on such Person and (ii) any interest, fees or penalties
for late payment imposed on such Person, in each case under clauses (i) and (ii)
to the extent not attributable to the failure of the Borrower or any of its
Subsidiaries to obtain any necessary approvals or consents of, or file or cause
to be filed any reports, applications, documents, instruments or information
required to be filed pursuant to any applicable law, rule, regulation or request
of, any Governmental Authority.
"Indemnified Tax Person": the Administrative Agent or any
Lender.
"Intercompany Indebtedness": loans which are (i) made by the
Borrower to any of its direct or indirect Subsidiaries or Affiliates or
(ii) made by direct or indirect
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21
Subsidiaries or any Affiliates of the Borrower to the Borrower or to other
direct or indirect Subsidiaries or Affiliates of the Borrower.
"Interest Payment Date": (i) as to any ABR Advance, the last
day of each fiscal quarter of the Borrower commencing on the first of such days
to occur after such ABR Advance is made or any Eurodollar Advance is converted
to an ABR Advance, (ii) as to any Swing Line Loan, the date on which the
outstanding principal balance of such Swing Line Loan shall become due and
payable in accordance with Section 2.2(b), (iii) as to any Eurodollar Advance or
Alternate Currency Euro Advance as to which the Borrower has selected an
Interest Period of seven days, one, two or three months, the last day of such
Interest Period, (iv) as to any Eurodollar Advance or Alternate Currency Euro
Advance as to which the Borrower has selected an Interest Period of six months,
the last day of each three month interval occurring during such Interest Period
and the last day of such Interest Period; and (v) as to all Eurodollar Advances,
Alternate Currency Euro Advances and Swing Line Loans, the Maturity Date.
"Interest Period":
(a) subject to the provisions of Section 3.4, with
respect to any Eurodollar Advance or Alternate Currency Euro Advance requested
by the Borrower, the period commencing on, as the case may be, the Borrowing
Date or Conversion Date with respect to such Eurodollar Advance or Alternate
Currency Euro Advance and ending one, two, three or six months thereafter, as
selected by the Borrower in its irrevocable Borrowing Request or its irrevocable
Notice of Conversion, provided, however, that (i) during the Syndication Period,
Interest Periods of seven days shall be available, (ii) if any Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day and (iii) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(b) subject to the provisions of Section 3.4, with respect to
any Swing Line Loan requested by the Borrower, the period commencing on the
Borrowing Date with respect to such Swing Line Loan and ending on or between one
and five days thereafter, as selected by the Borrower in its irrevocable
Borrowing Request, provided, however, that (i) during the Syndication Period,
Interest Periods of up to seven days shall be available, (ii) if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day, and (iii) the
Borrower shall select Interest Periods so as not to have more than three
different Interest Periods outstanding at any one time for all Swing Line Loans.
(c) Interest Periods shall be subject to the provisions of
Section 3.4.
"Interest Rate Protection Arrangement": any interest rate
swap, cap or collar arrangement or any other derivative product customarily
offered by banks to their customers in order to reduce the exposure of such
customers to interest rate fluctuations, as the same may be amended,
supplemented or otherwise modified from time to time.
"Investments": as defined in Section 8.5.
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22
"Japanese Yen": freely transferable lawful money of Japan.
"Judgment Currency": as defined in Section 11.17.
"Judgment Currency Conversion Date": as defined in Section
11.17.
"Leverage Ratio": at any date of determination, the ratio of
(x) Consolidated Total Debt on such date to (y) Consolidated EBITDA for the four
fiscal quarter period ending on such date or, if such date is not the last day
of a fiscal quarter, for the immediately preceding four fiscal quarter period.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan": a Revolving Credit Loan or a Swing Line Loan, as the
case may be.
"Loans": the Revolving Credit Loans and/or the Swing Line
Loans, as the case may be.
"Loan Documents": collectively, this Agreement and any
promissory notes issued pursuant to Section 2.10.
"Managing Person": with respect to any Person that is a (i)
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership, its managing partner or executive committee
or (v) such other managing body or Person analogous to the foregoing.
"Mandatory Borrowing": as defined in Section 2.2(c).
"Margin Stock": any "margin stock", as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as amended,
supplemented or otherwise modified from time to time.
"Material Adverse Change": a material adverse change in (i)
the financial condition, operations, business or Property of the Borrower and
its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any of
its Subsidiaries to perform its obligations under the Loan Documents to which it
is a party or (iii) the ability of the Administrative Agent and the Lenders to
enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i)
the financial condition, operations, business or Property of the Borrower and
its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any of
its Subsidiaries to perform its obligations under the Loan Documents to which it
is a party or (iii) the ability of the Administrative Agent and the Lenders to
enforce the Loan Documents.
"Maturity Date": November 12, 2001, or such earlier date on
which the Loans shall become due and payable, whether by acceleration or
otherwise.
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"Medex": Medex, Inc., an Ohio corporation.
"Medex Acquisition": the acquisition of Medex pursuant to the
Medex Acquisition Documents.
"Medex Acquisition Documents": collectively, the Merger
Documents and the Offer Documents.
"Medex Stock": the common stock of Medex, $0.01 per value.
"Medex Stock Purchase": the purchase of Medex Stock by
Acquisition Corp. pursuant to the Offer to Purchase.
"Merger": the merger of Medex with and into Acquisition Corp.
pursuant to and in accordance with the Merger Agreement, with Medex as the
survivor thereof.
"Merger Agreement": the Agreement and Plan of Merger, dated as
of November 12, 1996, by and among Medex, Acquisition Corp. and the Borrower, as
same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 8.9.
"Merger Documents": collectively, (i) the Merger Agreement,
(ii) the Company Option Agreement, (iii) the Shareholder Option Agreements and
(iv) all exhibits, schedules, and disclosure letters referred to therein and any
side letters or other agreements affecting the terms of any thereof, as each may
be amended, supplemented or otherwise modified in accordance with the provisions
of Section 8.9.
"Merger Effective Date": the date upon which the Merger shall
become effective.
"Moody's": Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Multiemployer Plan": a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Negotiated Rate": with respect to each Swing Line Negotiated
Rate Advance, the rate per annum agreed to by the Borrower and the Swing Line
Lender in accordance with section 2.3(b)(ii) as the interest rate that such
Swing Line Negotiated Rate Advance shall bear.
"Net Cash Proceeds": with respect to any Disposition by the
Borrower or any of its Subsidiaries, the aggregate gross sales proceeds received
by the Borrower or such Subsidiary in cash in connection with such Disposition
minus the sum of (i) sales and other commissions and legal and other expenses
incurred in connection with such Disposition, (ii) any taxes paid or payable by
the Borrower or such Subsidiary in connection therewith (determined on a
Consolidated basis after giving effect to net operating loss and other
deductions and applicable tax credits), and (iii) the amount of Indebtedness
(other than the Loans) secured by the Property subject to such Disposition
which, in accordance with the terms governing such Indebtedness, is required to
be repaid upon such Disposition.
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"Net Issuance Proceeds": with respect to any issuance, sale or
incurrence of any Refinancing Debt or any Equity Offering, the aggregate amount
of cash received by or on behalf of the Borrower after deducting therefrom
placement agents' or underwriters' commissions and other reasonable fees and
expenses (including fees and expenses of counsel and investment bankers) payable
by the Borrower or any Subsidiary in connection with such issuance, sale or
incurrence.
"Notice of Conversion": a notice substantially in the form of
Exhibit C.
"Obligation Currency": as defined in Section 11.17.
"Offer Documents": collectively, a Tender Offer Statement on
Schedule 14D-1 together with all exhibits and schedules thereto and the Offer to
Purchase, as each may be amended, supplemented or otherwise modified from time
to time in accordance with Section 8.9.
"Offer to Purchase": the Offer to Purchase pursuant to which
the Borrower makes the Tender Offer, as the same may be amended, supplemented or
otherwise modified in accordance with Section 8.9.
"Other Taxes": as defined in Section 3.7(f).
"Operating Entity": any Person or any business or operating
unit of a Person which is, or could be, operated separate and apart from (i) the
other businesses and operations of such Person, or (ii) any other line of
business or business segment.
"Organizational Documents": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Pension Plan": at any date of determination, any Employee
Benefit Plan (including a Multiemployer Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within the six years immediately preceding such date, were in whole or in part,
the responsibility of the Borrower, any of its Subsidiaries or any ERISA
Affiliate.
"Permitted Acquisition": an Acquisition permitted by Section
8.3.
"Permitted Lien": a Lien permitted to exist under Section
8.2(a).
"Person": any individual, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary, or other capacity, and
for the purpose of the definition of "ERISA Affiliate", a trade or business.
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"Pricing Level": Pricing Level I, Pricing Level II, Pricing
Level III, Pricing Level IV, Pricing Level V, Pricing Level VI or Pricing Level
VII, as applicable.
"Pricing Level I": any time when the Leverage Ratio is
greater than 3.50:1.00.
"Pricing Level II": any time when the Leverage Ratio is
greater than 3.00:1.00 but less than or equal to 3.50:1.00.
"Pricing Level III": any time when the Leverage Ratio is
greater than 2.50:1.00 but less than or equal to 3.00:1.00.
"Pricing Level IV": any time when the Leverage Ratio is
greater than 2.00:1.00 but less than or equal to 2.50:1.00.
"Pricing Level V": any time when the Leverage Ratio is
greater than 1.50:1.00 but less than or equal to 2.00:1.00.
"Pricing Level VI": any time when the Leverage Ratio is
greater than 1.00:1.00 but less than or equal to 1.50:1.00.
"Pricing Level VII": any time when the Leverage Ratio less
than or equal to 1.00:1.00.
"Prohibited Transaction": a transaction which is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt (by reason
of statutory, class or individual exemption) under Section 4975 of the Code or
Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible
or mixed property.
"Proposed Lender": as defined in Section 3.9.
"Real Property": all real property owned or leased by the
Borrower or any of its Subsidiaries.
"Reference Lender": The Bank of New York.
"Refinancing Debt": unsecured Indebtedness incurred by the
Borrower to refinance all or a portion of the Indebtedness incurred
hereunder to the extent permitted to be incurred by Section 8.1(v).
"Regulatory Change": (i) the introduction or phasing in of any
law, rule or regulation after the Effective Date, (ii) the issuance or
promulgation after the Effective Date of any directive, guideline or request
from any central bank or United States or foreign Governmental Authority
(whether or not having the force of law), or (iii) any change after the
Effective Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any central bank or United States or foreign
Governmental Authority charged with the administration thereof.
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26
"Reinvested Proceeds": with respect to that portion of Net
Cash Proceeds of any Disposition pursuant to Sections 8.4(c) which constitute
Excess Disposition Proceeds, the portion of such Net Cash Proceeds which are
used to make Consolidated Capital Expenditures or Permitted Acquisitions within
one year after the receipt of such Net Cash Proceeds by the Borrower or any of
its Subsidiaries.
"Reportable Event": with respect to any Pension Plan, (i) any
event set forth in Sections 4043(c) (other than a Reportable Event as to which
the 30 day notice requirement is waived by the PBGC under applicable
regulations), 4062(c) or 4063(a) of ERISA or the regulations thereunder, (ii) an
event requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or
(iii) any failure to make any payment required by Section 412(m) of the Code.
"Required Lenders": at any time when (i) no Loans are
outstanding, Lenders having Revolving Credit Commitment Amounts (or if no
Revolving Credit Commitments then exist, Lenders having Revolving Credit
Commitment Amounts on the last day on which Revolving Credit Commitments did
exist) greater than or equal to 51% of the Aggregate Revolving Credit Commitment
Amount and (ii) at any time when Loans are outstanding, Lenders with Credit
Exposure greater than or equal to 51% of the Aggregate Credit Exposure.
"Required Payment": as defined in Section 3.7(a).
"Restricted Payment": as to any Person (i) any dividend or
other distribution, direct or indirect, on account of any shares of Capital
Stock or other equity interest in such Person now or hereafter outstanding
(other than a dividend payable solely in shares of such Capital Stock to the
holders of such shares), (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition, direct or indirect, of any
shares of any class of Capital Stock or other equity interest in such Person now
or hereafter outstanding and (iii) any repayment of Intercompany Indebtedness.
"Revolving Credit Commitment": in respect of any Lender, such
Lender's undertaking during the Revolving Credit Commitment Period to make
Revolving Credit Loans, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount not exceeding the Revolving Credit
Commitment Amount of such Lender.
"Revolving Credit Commitment Amount": as of any date and with
respect to any Lender, the amount set forth adjacent to its name under the
heading "Revolving Credit Commitment Amount" in Exhibit A on such date or, in
the event that such Lender is not listed in Exhibit A, the "Revolving Credit
Commitment Amount" which such Lender shall have assumed from another Lender in
accordance with Section 11.7 on or prior to such date, as the same may be
increased from time to time pursuant to Section 2.5 or reduced from time to time
pursuant to Section 2.6.
"Revolving Credit Commitment Period": the period from the
Effective Date until the Revolving Credit Commitment Termination Date.
"Revolving Credit Commitment Termination Date": the earlier of
the Business Day immediately preceding the Maturity Date or such other date upon
which the Revolving Credit Commitments shall have been terminated in accordance
with Section 2.6 or Section 9.2.
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"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"SEC": the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Shareholder Option Agreements": collectively, each of the
Agreements, dated as of November 12, 1996, by and among certain shareholders of
Medex who are officers or directors of Medex, Acquisition Corp. and the
Borrower, as same may be amended, supplemented or otherwise modified from time
to time in accordance with Section 8.9.
"Solvent": with respect to any Person on a particular date,
the condition that on such date, (i) the fair value of the Property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the present fair
salable value of the assets of such Person 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, (iii) 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 (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's Property would constitute an unreasonably
small amount of capital. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability after
taking into account probable payments by co-obligors.
"Special Counsel": Xxxxx, Xxxxxx & Xxxxxx, LLP, special
counsel to the Administrative Agent.
"Standard & Poor's": Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Sterling Pounds": freely transferable lawful money of the
United Kingdom.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the Managing Person, irrespective of whether a class or classes shall or might
have voting power by reason of the happening of any contingency, or (ii) in
respect of an association, partnership, limited liability company, joint venture
or other business entity, is entitled to share in more than 50% of the profits
and losses, however determined.
"Swing Line ABR Advances": the Swing Line Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base Rate.
"Swing Line Commitment": the undertaking of the Swing Line
Lender during the Swing Line Commitment Period to make Swing Line Loans,
subject to the
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terms and conditions hereof, in an aggregate outstanding principal amount not in
excess of the Swing Line Commitment Amount, and the commitment of the Lenders to
participate therein as set forth in Section 2.2, as the same may be reduced
pursuant to Section 2.6.
"Swing Line Commitment Amount": $10,000,000.
"Swing Line Commitment Period": the period from the Effective
Date to, but excluding, the Swing Line Termination Date.
"Swing Line Exposure": at any time, in respect of any Lender,
an amount equal to the aggregate outstanding principal amount of the Swing Line
Loans at such time multiplied by such Lender's Commitment Percentage at such
time.
"Swing Line Loan" and "Swing Line Loans": as defined in
Section 2.2(a).
"Swing Line Negotiated Rate Advances": the Swing Line Loans
(or any portions thereof), at such time as they (or such portions) are made
and/or being maintained at a rate of interest based upon a Negotiated Rate.
"Swing Line Participation Amount": as defined in Section
2.2(d).
"Swing Line Termination Date": the date which is five Business
Days prior to the Maturity Date.
"Syndication Period": the period commencing on the Effective
Date and ending on the earlier of the day which is 90 days after the first
Borrowing Date and the date on which the Administrative Agent gives written
notice to the Borrower that the syndication of the Revolving Credit Commitments
and the Revolving Credit Loans have been completed.
"Tax": any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"Tax on the Income": as to any Person, a Tax imposed by one of
the following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, or (iv) in the case of each Lender or the Administrative Agent, any
jurisdiction in which such Person is deemed to be doing business; which Tax is
an income tax or franchise tax imposed on all or part of the net income or net
profits of such Person or which Tax represents interest, fees, or penalties for
late payment of such an income tax or franchise tax.
"Tender Offer": the offer by the Borrower to purchase all of
the issued and outstanding shares of Medex Stock pursuant to the Offer to
Purchase.
"Termination Event": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination, in each case under Section 4041(c) of ERISA, (iii)
the institution of proceedings to terminate a Pension Plan under Section 4042 of
ERISA, or (iv) the appointment of a trustee to administer any Pension Plan under
Section 4042 of ERISA.
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"Transaction Documents": collectively, the Loan Documents and
the Merger Documents.
"Transactions": collectively, the making of the Loans, the
Tender Offer, the Medex Stock Purchase and the Merger.
"Type": with respect to any Revolving Credit Loan, the
character of such Revolving Credit Loan as an ABR Advance, an Alternate Currency
Euro Advance or a Eurodollar Advance, each of which constitutes a type of loan.
"Unfunded Pension Liabilities": with respect to any Pension
Plan, at any date of determination, the amount determined by taking the
accumulated benefit obligation, as disclosed in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for Pensions", over the fair
market value of Pension Plan assets.
"United States": the United States of America (including the
States thereof and the District of Columbia).
"Unqualified Amount": as defined in Section 3.1(c).
"Unrecognized Retiree Welfare Liability": with respect to any
Employee Benefit Plan that provides postretirement benefits other than pension
benefits and other than as required by Section 601 through 608 of ERISA, the
amount of the transition obligation, as determined in accordance with Statement
of Financial Accounting Standards No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of the
Borrower and its Subsidiaries, provided that prior to the date such Statement is
applicable to the Borrower, such amount shall be based on an estimate made in
good faith of such transition obligation.
"U.S. Person": a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under any
laws of the United States, or any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall have the
meanings given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto,
unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant thereto, accounting terms
not defined in Section 1.1, and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP. If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in this Agreement, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to reflect such change in GAAP (subject to
the approval of the Required Lenders), provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders
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financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, any reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to the
contrary, in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
(h) References in any Loan Document to a fiscal period shall
refer to that fiscal period of the Borrower.
2. AMOUNT AND TERMS OF LOANS
2.1. Revolving Credit Loans
Subject to the terms and conditions hereof, each Lender
severally (and not jointly) agrees to make revolving credit loans (each a
"Revolving Credit Loan" and, as the context may require, collectively with all
other Revolving Credit Loans of such Lender and with the Revolving Credit Loans
of all other Lenders, the "Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period, provided that immediately
after giving effect thereto (i) such Lender's Credit Exposure would not exceed
such Lender's Revolving Credit Commitment Amount, and (ii) the Aggregate Credit
Exposure would not exceed the Aggregate Revolving Credit Commitment Amount.
During the Revolving Credit Commitment Period, the Borrower may borrow, prepay
in whole or in part and reborrow under the Revolving Credit Commitments, all in
accordance with the terms and conditions of this Agreement. Subject to the
provisions of Sections 2.3 and 3.3, at the option of the Borrower, Revolving
Credit Loans may be (i) Dollar Revolving Credit Loans in which case they may be
made as one or more (A) ABR Advances, (B) Eurodollar Advances or (C) any
combination thereof or (ii) Alternate Currency Loans in which case they shall be
made as one or more Alternate Currency Euro Advances, provided, however, in no
event shall the aggregate outstanding principal balance of Alternate Currency
Loans (determined on the basis of the Dollar Equivalent of each Alternate
Currency Loan) exceed $30,000,000. The Revolving Credit Loans, together with all
accrued and unpaid interest thereon, shall mature and be due and payable in the
Applicable Currency on the Maturity Date.
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2.2. Swing Line Loans
(a) Subject to the terms and conditions of this Agreement, the
Swing Line Lender agrees to make swing line loans (each a "Swing Line Loan" and,
collectively, the "Swing Line Loans") to the Borrower in Dollars from time to
time during the Swing Line Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed the Swing Line Commitment Amount,
provided that immediately after making each Swing Line Loan, (i) the Swing Line
Lender's Credit Exposure would not exceed the Swing Line Lender's Revolving
Credit Commitment Amount (in its capacity as a Lender), (ii) the aggregate
unpaid balance of the Swing Line Loans would not exceed the Swing Line
Commitment Amount and (iii) the Aggregate Credit Exposure of all Lenders would
not exceed the Aggregate Revolving Credit Commitment Amount. During the Swing
Line Commitment Period, the Borrower may borrow, prepay in whole or in part and
reborrow under the Swing Line Commitment, all in accordance with the terms and
conditions of this Agreement. No Swing Line Loan shall be made prior to the
making of the first Revolving Credit Loans on the first Borrowing Date.
(b) The Swing Line Lender shall not be obligated to make any
Swing Line Loan at a time when any Lender shall be in default of its obligations
under this Agreement unless the Swing Line Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swing Line Lender's risk
with respect to such defaulting Lender's participation in such Swing Line Loan.
The Swing Line Lender will not make a Swing Line Loan if the Administrative
Agent, or any Lender by notice to the Swing Line Lender and the Borrower no
later than one Business Day prior to the Borrowing Date with respect to such
Swing Line Loan, shall have determined that the conditions set forth in Section
6 have not been satisfied and such conditions remain unsatisfied as of the
requested time of the making such Loan. Each Swing Line Loan shall be due and
payable on the day being the earliest of the last day of the Interest Period
applicable thereto, the date on which the Swing Line Commitment shall have been
voluntarily terminated by the Borrower in accordance with Section 2.6, and the
Maturity Date.
(c) On any Business Day on which a Swing Line Loan shall be
due and payable and shall remain unpaid, the Swing Line Lender may, in its sole
discretion, give notice to the Lenders and the Borrower that such outstanding
Swing Line Loan shall be funded with a borrowing of Revolving Credit Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Sections 9.1(g) or
(h)), in which case a borrowing of Revolving Credit Loans made as ABR Advances
(each such borrowing, a "Mandatory Borrowing"), shall be made by all Lenders pro
rata based on each such Lender's Commitment Percentage on the Business Day
immediately succeeding the giving of such notice. The proceeds of each Mandatory
Borrowing shall be remitted directly to the Swing Line Lender to repay such
outstanding Swing Line Loan. Each Lender irrevocably agrees to make a Revolving
Credit Loan pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by the
Swing Line Lender notwithstanding: (i) the amount of such Mandatory Borrowing
may not comply with the minimum amount for Loans otherwise required hereunder,
(ii) whether any condition specified in Section 6 is then unsatisfied, (iii)
whether a Default or an Event of Default then exists, (iv) the Borrowing Date of
such Mandatory Borrowing, (v) the aggregate principal amount of all Loans then
outstanding (determined on the basis of the Dollar Equivalent of each
outstanding Alternate Currency Loan), (vi) the Aggregate Credit Exposure at such
time and (vii) the Aggregate Revolving Credit Commitment Amount at such time.
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(d) Upon each receipt by a Lender of notice of an Event of
Default from the Administrative Agent pursuant to Section 10.5, such Lender
shall purchase unconditionally, irrevocably, and severally (and not jointly)
from the Swing Line Lender a participation in the outstanding Swing Line Loans
(including accrued interest thereon) in an amount equal to the product of its
Commitment Percentage and the outstanding amount of the Swing Line Loans (the
"Swing Line Participation Amount"). Each Lender shall also be liable for an
amount equal to the product of its Commitment Percentage and any amounts paid by
the Borrower pursuant to this subsection (d) that are subsequently rescinded or
avoided, or must otherwise be restored or returned. Such liabilities shall be
unconditional and without regard to the occurrence of any Default or Event of
Default or the compliance by the Borrower with any of its obligations under the
Loan Documents.
(e) In furtherance of subsection (d) above, upon each receipt
by a Lender of notice of an Event of Default from the Administrative Agent
pursuant to Section 10.5, such Lender shall promptly make available to the
Administrative Agent for the account of the Swing Line Lender its Swing Line
Participation Amount at the Applicable Payment Office of the Administrative
Agent in lawful money of the United States and in immediately available funds.
The Administrative Agent shall deliver the payments made by each Lender pursuant
to the immediately preceding sentence to the Swing Line Lender promptly upon
receipt thereof in like funds as received. Each Lender shall indemnify and hold
harmless the Administrative Agent and the Swing Line Lender from and against any
and all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, costs and expenses resulting from any failure on the
part of such Lender to pay, or from any delay in paying the Administrative Agent
any amount such Lender is required to pay in accordance with this subsection (e)
upon receipt of notice of Event of Default from the Administrative Agent
pursuant to Section 10.5 (except in respect of losses, liabilities or other
obligations suffered by the Administrative Agent or the Swing Line Lender, as
the case may be, resulting from the gross negligence or willful misconduct of
the Administrative Agent or the Swing Line Lender, as the case may be), and such
Lender shall be required to pay interest to the Administrative Agent for the
account of the Swing Line Lender from the date such amount was due until paid in
full, on the unpaid portion thereof, at a rate of interest per annum equal to
the Federal Funds Rate, payable upon demand by the Swing Line Lender. The
Administrative Agent shall distribute such interest payments to the Swing Line
Lender upon receipt thereof in like funds as received.
(f) Whenever the Administrative Agent is reimbursed by the
Borrower, for the account of the Swing Line Lender, for any payment in
connection with Swing Line Loans and such payment relates to an amount
previously paid by a Lender pursuant to this Section, the Administrative Agent
will promptly pay over such payment to such Lender.
2.3. Procedure for Borrowing
(a) Revolving Credit Loans. The Borrower may borrow under the
Revolving Credit Commitments on any Business Day during the Revolving Credit
Commitment Period, provided that the Borrower shall notify the Administrative
Agent by the delivery of a Borrowing Request, which shall be sent by telecopy
and shall be irrevocable (confirmed promptly, and in any event within five
Business Days, by the delivery to the Administrative Agent of a Borrowing
Request manually signed by the Borrower), no later than: 11:00 a.m., four
Business Days prior to the requested Borrowing Date, in the case of Alternate
Currency Euro Advances, 2:00 p.m., three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Advances, and 2:00 p.m., one Business
Day prior to the requested Borrowing Date, in the case of ABR Advances,
specifying (A)
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the aggregate principal amount to be borrowed under the Revolving Credit
Commitments (stated in the applicable Alternate Currency in the case of an
Alternate Currency Loan), (B) the requested Borrowing Date, (C) whether such
borrowing is of a Dollar Revolving Credit Loan and, if so, whether such
borrowing is to consist of one or more Eurodollar Advances, ABR Advances, or a
combination thereof, (D) whether such borrowing is of an Alternate Currency Loan
and, if so, the applicable Alternate Currency, and (E) if the borrowing is to
consist of one or more Eurodollar Advances or Alternate Currency Euro Advances,
the length of the Interest Period for each such Eurodollar Advance or Alternate
Currency Euro Advance. Each (i) Eurodollar Advance to be made on a Borrowing
Date, when aggregated with all amounts to be converted to a Eurodollar Advance
on such date and having the same Interest Period as such first Eurodollar
Advance, shall equal no less than $5,000,000 or such amount plus a whole
multiple of $1,000,000 in excess thereof, (ii) Alternate Currency Euro Advance
to be made on a Borrowing Date shall equal no less than an amount in the
applicable Alternate Currency having a Dollar Equivalent of approximately
$5,000,000 or such amount plus a whole multiple of approximately $1,000,000 in
excess thereof, and (iii) ABR Advance made on each Borrowing Date shall equal no
less than $1,000,000 or such amount plus a whole multiple of $500,000 in excess
thereof or, if less, unused portion of the Aggregate Revolving Credit Commitment
Amount. Upon receipt of each Borrowing Request requesting Revolving Credit
Loans, the Administrative Agent shall promptly notify each Lender thereof.
(b) Swing Line Loans. The Borrower may borrow under the Swing
Line Commitment on any Business Day during the Swing Line Commitment Period,
provided that the Borrower shall notify the Administrative Agent and the Swing
Line Lender by the delivery of a Borrowing Request, which shall be sent by
telecopy and shall, subject to the agreement of the Borrower and the Swing Line
Lender as to the Negotiated Rate to be applicable to a requested Swing Line
Negotiated Rate Advance, be irrevocable (confirmed promptly, and in any event
within five Business Days, by the delivery to the Administrative Agent of a
Borrowing Request manually signed by the Borrower), no later than: 3:00 p.m. on
the requested Borrowing Date, specifying (i) the aggregate principal amount to
be borrowed under the Swing Line Commitment, (ii) the requested Borrowing Date,
(iii) whether such borrowing is to consist of one or more Swing Line Negotiated
Rate Advances, Swing Line ABR Advances, or a combination thereof and (iv) the
length of the Interest Period for each Swing Line Loan, provided, however, that
no Interest Period selected in respect of any Swing Line Loan shall end after
the Swing Line Termination Date. Each borrowing of Swing Line Loans shall be in
a principal amount not less than $1,000,000 or such amount plus a whole multiple
of $250,000 in excess thereof, or, if less, the unused portion of the Swing Line
Commitment Amount.
2.4. Disbursement of Funds
(a) Revolving Credit Loans. No later than (i) 12:00 noon
(local time in the city in which the proceeds of Alternate Currency Loans are to
be made available in accordance with the terms hereof) on the date specified in
each Borrowing Request for the borrowing of Alternate Currency Loans and (ii)
12:00 noon on the date specified in each Borrowing Request for the borrowing of
Dollar Revolving Credit Loans, each Lender will make available its pro rata
portion of the Loans requested to be made on such date in the Applicable
Currency. All Revolving Credit Loans shall be made available in immediately
available funds at the Applicable Payment Office of the Administrative Agent,
and the Administrative Agent, will, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Administrative Agent, make
available to the Borrower at
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such Applicable Payment Office, in the Applicable Currency, and in like funds as
received, the aggregate of the amounts so made available by the Lenders.
(b) Swing Line Loans. The Swing Line Lender will, subject to
its determination that the terms and conditions of this Agreement have been
satisfied and, in the case of a Swing Line Negotiated Rate Advance, subject to
its agreement with the Borrower on the Negotiated Rate to be applicable thereto,
make the requested amount available promptly on that same day to the
Administrative Agent at its Applicable Payment Office who, thereupon, will
promptly make available to the Borrower at such Applicable Payment Office, in
like funds as received, the amount so made available by the Swing Line Lender,
to the extent of funds actually received by the Administrative Agent.
(c) Failure to Fund. Unless the Administrative Agent shall
have received prior notice from a Lender (by telephone or otherwise, such notice
to be promptly confirmed by telecopy or other writing) that such Lender will not
make available to the Administrative Agent such Lender's Commitment Percentage
of the Revolving Credit Loans requested by the Borrower, the Administrative
Agent may assume that such Lender has made such share available to the
Administrative Agent on the Borrowing Date in accordance with this Section,
provided that such Lender received notice of the requested Revolving Credit
Loans from the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on the Borrowing
Date a corresponding amount. If and to the extent such Lender shall not have so
made its Commitment Percentage of such Revolving Credit Loans available to the
Administrative Agent, such Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to the Borrower to the date
such amount is paid to the Administrative Agent, at a rate per annum equal to,
in the case of the Borrower, the applicable interest rate for such Revolving
Credit Loan as set forth in Section 3.1, and, in the case of such Lender, at a
rate of interest per annum equal to the Federal Funds Rate (or, in the case of
an Alternate Currency Loan, at a rate based upon the all-in cost of the funds
for the Applicable Currency as determined by the Administrative Agent). Such
payment by the Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Revolving Credit Loan as part of the Revolving Credit Loans for purposes of this
Agreement, which Loan shall be deemed to have been made by such Lender on the
Borrowing Date applicable to such Revolving Credit Loans.
2.5. Increases in Aggregate Revolving Credit Commitment Amount
(a) Provided that no Default or Event of Default shall exist
immediately before and after giving effect thereto, the Borrower may, subject to
the provisions of this Section, from time to time elect that the Aggregate
Revolving Credit Commitment Amount be increased by an amount not in excess of
$50,000,000, provided that, in no event shall the Aggregate Revolving Credit
Commitment Amount exceed $250,000,000. Any such increase shall be in an amount
equal to $5,000,000 or such amount plus a whole multiple of $1,000,000 in excess
thereof. Such election shall be made in a writing delivered by the Borrower to
the Administrative Agent which shall, in turn, promptly deliver a copy thereof
to each Lender.
(b) In the event that the Borrower elects to increase the
Aggregate Revolving Credit Commitment Amount, (i) the Borrower may request any
one or more
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Lenders to elect to increase its Revolving Credit Commitment Amount (it being
understood that no Lender shall have a right to participate in whole or in part
in any such increase), (ii) any Lender requested by the Borrower to do so may
(but is not obligated to) elect to increase its Revolving Credit Commitment
Amount and (iii) with the written consent of the Administrative Agent and the
Swing Line Lender (such consents not to be unreasonably withheld), one or more
additional banks or other financial institutions may, by execution of this
Agreement, become parties hereto and undertake Revolving Credit Commitments
hereunder and any such Lender, bank or other financial institution shall
thereafter for all purposes be treated as a Lender as though it had been an
original signatory to this Agreement. To the extent that no such Lender or
acceptable additional bank or other financial institution is willing to increase
its Revolving Credit Commitment Amount or undertake a Revolving Credit
Commitment, as the case may be, the Aggregate Revolving Credit Commitment Amount
shall not be increased.
(c) On and as of the date upon which an increase in the
Aggregate Revolving Credit Commitment Amount shall become effective, each Lender
increasing its Revolving Credit Commitment Amount and each existing Lender or
new bank or financial institution assuming a Revolving Credit Commitment shall
pay to the Administrative Agent such amount as may be necessary so that such
Lender's or such new bank's or financial institution's outstanding principal
balance of Revolving Credit Loans shall equal its Commitment Percentage of the
aggregate outstanding principal balance of the Revolving Credit Loans after
giving effect to such increase, and the Administrative Agent shall distribute
such amounts among the other Lenders accordingly. If the Administrative Agent
deems it appropriate in connection with any such increase, as a condition
thereto, the Borrower and the affected Lenders shall execute a master assignment
and acceptance agreement or other document mutually acceptable to the parties
thereto.
(d) Upon any increase of the Aggregate Revolving Credit
Commitment Amounts pursuant to this Section, the Administrative Agent shall
revise Exhibit A and Schedules 1.1 and 1.1A accordingly.
2.6. Termination or Reduction of Revolving Credit Commitments and
Swing Line Commitment
(a) Voluntary Reductions. (i) The Borrower shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent, to reduce permanently the Aggregate Revolving Credit
Commitment Amount, in whole at any time, or in part from time to time, to an
amount not less than the sum of (A) the aggregate principal balance (determined
on the basis of the Dollar Equivalent for each Alternate Currency Loan) of the
Revolving Credit Loans then outstanding (after giving effect to any
contemporaneous prepayment thereof) and (B) the Swing Line Exposure, provided,
however, that each partial reduction of the Aggregate Revolving Credit
Commitment Amount shall be an amount equal to $5,000,000 or such amount plus a
whole multiple of $1,000,000 in excess thereof.
(ii) The Borrower shall have the right, upon at least
one Business Day's prior written notice to the Administrative Agent and the
Swing Line Lender to reduce permanently the Swing Line Commitment Amount in
whole at any time, or in part from time to time, to an amount not less than the
aggregate principal balance of the Swing Line Loans then outstanding (after
giving effect to any contemporaneous prepayment thereof), provided, however,
that each partial reduction of the Swing Line Commitment
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Amount shall be in an amount equal to of $1,000,000 or such amount plus a whole
multiple of $250,000 in excess thereof.
(b) Mandatory Reduction in Respect of an Equity Offering or
Issuance of Refinancing Debt. The Aggregate Revolving Credit Commitment Amount
shall be permanently reduced in the event of any Equity Offering or the issuance
of any Refinancing Debt by an amount equal to (i) in the case of an Equity
Offering consummated within one year after the consummation of the Medex Stock
Purchase, 100% of the Net Issuance Proceeds thereof, (ii) in the case of any
other Equity Offering, 50% of the Net Issuance Proceeds thereof and (iii) in the
case of the issuance of any Refinancing Debt, 100% of the Net Issuance Proceeds
thereof; provided, however, that the Aggregate Revolving Credit Commitment
Amount shall not be reduced to less than $150,000,000 pursuant to this
subsection.
(c) Mandatory Termination on Change of Control. Upon the
occurrence of a Change of Control, the Revolving Credit Commitments and the
Swing Line Commitment shall terminate as of the effective date of such Change of
Control unless the Borrower requests by written notice to the Administrative
Agent that the Lenders unanimously approve a waiver of this Section 2.6(c) and
agree that all or a portion of the Revolving Credit Commitments and the Swing
Line Commitment shall remain in effect. In the event that the Change of Control
has not been approved by the board of directors of the Borrower, the Lenders'
decision whether or not to grant a waiver under this Section 2.6(c) shall be in
their absolute and sole discretion. In the event that the Change of Control as
been approved by the board of directors of the Borrower, the Lenders' decision
whether or not to grant a waiver under this Section 2.6(c) shall be in their
reasonable judgment. Any waiver of this Section 2.6(c) shall not be effective
unless approved by all the Lenders in writing.
(d) Mandatory Reductions Relating to Dispositions. With
respect to each Disposition described in Section 8.4(c), the Aggregate Revolving
Credit Commitment Amount shall be permanently reduced on the applicable
Disposition Reduction/Prepayment Date by an amount equal to the Disposition
Reduction/Prepayment Amount in respect of such Disposition.
(e) In General. Reductions of the Aggregate Revolving Credit
Commitment Amount shall be applied pro rata according to the Revolving Credit
Commitment Amount of each Lender, provided, however, that in the event that at
any time during the Syndication Period, the Aggregate Revolving Credit
Commitments are to be reduced pursuant to subsection (b) above and if at such
time the Revolving Credit Commitment Amount of BNY exceeds the Revolving Credit
Commitment Amount of any other Lender, the first $100,000,000 of such reduction
(or such lesser amount as BNY shall direct) shall be applied first to reduce
BNY's Revolving Credit Commitment Amount and the balance thereof shall be
applied pro rata according to the Revolving Credit Commitment Amount of each
Lender (including BNY). In the event that the Aggregate Revolving Credit
Commitment Amount is reduced to any amount less than the Swing Line Commitment
Amount, the Swing Line Commitment Amount shall be permanently reduced to an
amount equal to such Aggregate Revolving Credit Commitment Amount as so reduced.
Simultaneously with each reduction of the Aggregate Revolving Credit Commitment
Amount under this Section, the Borrower shall pay the Commitment accrued on the
amount by which the Aggregate Revolving Credit Commitment Amount has been
reduced and prepay the Revolving Credit Loans and the Swing Line Loans as
required by Section 2.7(b).
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2.7. Prepayments
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the Revolving Credit Loans without premium or penalty (but subject to
Section 3.5), in full at any time or in part from time to time by notifying the
Administrative Agent in writing at least one Business Day prior to the proposed
prepayment date, in the case of Revolving Credit Loans consisting of ABR
Advances, and at least three Business Days prior to the proposed prepayment
date, in the case of Revolving Credit Loans consisting of Eurodollar Advances or
Alternate Currency Euro Advances, specifying whether the Revolving Credit Loans
to be prepaid consist of ABR Advances, Eurodollar Advances, Alternate Currency
Euro Advances or a combination thereof, the amount to be prepaid and the date
of prepayment. Each such notice shall be irrevocable and the amount specified in
each such notice shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount prepaid. Upon receipt
of such notice, the Administrative Agent shall promptly notify each Lender
thereof. Each partial prepayment of ABR Advances pursuant to this subsection
shall be in an aggregate principal amount of $1,000,000 or such amount plus a
whole multiple of $500,000 in excess thereof, or, if less, the outstanding
principal balance of the ABR Advances. After giving effect to any partial
prepayment with respect to Eurodollar Advances which were made (whether as the
result of a borrowing or a conversion) on the same date and which had the same
Interest Period, the outstanding principal amount of such Eurodollar Advances
shall equal (subject to Section 3.3) $5,000,000 or such amount plus a whole
multiple of $1,000,000 in excess thereof. After giving effect to any partial
prepayment with respect to Alternate Currency Euro Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Alternate Currency Euro Advances shall equal the Alternate Currency Equivalent
of approximately $5,000,000 or such amount plus a whole multiple of
approximately $1,000,000 in excess thereof.
(b) Mandatory Prepayments of Revolving Credit Loans and Swing
Line Loans Relating to Reductions of the Aggregate Revolving Credit Commitment
Amount and the Swing Line Commitment Amount. Simultaneously with each reduction
of the Aggregate Revolving Credit Commitment Amount or the Swing Line Commitment
Amount under Section 2.6, the Borrower shall prepay the Revolving Credit Loans
or the Swing Line Loans, as the case may be, by the amount, if any, by which (i)
in the case of a reduction of the Aggregate Revolving Credit Commitment Amount,
the Aggregate Credit Exposure exceeds the Aggregate Revolving Credit Commitment
Amount after giving effect to such reduction and (ii) in the case of a reduction
of the Swing Line Commitment Amount, the outstanding principal balance of the
Swing Line Loans exceeds the Swing Line Commitment Amount after giving effect to
such reduction.
(c) Mandatory Prepayments of Revolving Credit Loans and Swing
Line Loans Relating to a Termination of the Revolving Credit Commitments and
Swing Line Commitment. Upon the termination of the Revolving Credit Commitments
and Swing Line Commitment pursuant to Sections 2.6(a) or (c), the Borrower shall
(i) prepay in full the outstanding principal balance of the Revolving Credit
Loans and the Swing Line Loans, together with accrued and unpaid interest
thereon and (ii) pay in full all fees and other amounts payable under the Loan
Documents.
(d) Mandatory Prepayments in Respect of an Equity Offering or
Issuance of Refinancing Debt. In the event of an Equity Offering or the issuance
of Refinancing Debt, the Borrower shall prepay the Revolving Credit Loans by an
amount equal to (i)
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in the case of an Equity Offering consummated within one year after the
consummation of the Medex Stock Purchase, 100% of the Net Issuance Proceeds
thereof, (ii) in the case of any other Equity Offering, 50% of the Net Issuance
Proceeds thereof and (iii) in the case of the issuance of any Refinancing Debt,
100% of the Net Issuance Proceeds thereof. Each payment required to be made
under this subsection shall be made on the date of the receipt of the relevant
Net Issuance Proceeds.
(e) Prepayments Relating to Dollar Equivalent Calculation. If
on any date that the Dollar Equivalent is required to be calculated pursuant to
Section 11.9 the Aggregate Credit Exposure shall exceed the Aggregate Revolving
Credit Commitment Amount, the Borrower shall prepay the Loans in an aggregate
principal amount such that immediately after giving effect thereto, the
Aggregate Credit Exposure shall not exceed the Aggregate Revolving Credit
Commitment Amount. In addition, if on any date that the Dollar Equivalent is
required to be calculated pursuant to Section 11.9 the outstanding principal
balance of Alternate Currency Loans (determined on the basis of the Dollar
Equivalent for each outstanding Alternate Currency Loan) shall exceed
$30,000,000, the Borrower shall prepay the Alternate Currency Loans in an
aggregate principal amount such that immediately after giving effect thereto,
the outstanding principal balance of the Alternate Currency Loans (determined on
the basis of the Dollar Equivalent for each outstanding Alternate Currency Loan)
shall not exceed $30,000,000.
(f) Mandatory Prepayments Relating to Dispositions. In respect
of any Disposition described in Section 8.4(c), on the applicable Disposition
Reduction/Prepayment Date, the Borrower shall prepay the Revolving Credit Loans
by an amount equal to 100% of the Disposition Reduction/Prepayment Amount if
any.
(g) In General. Simultaneously with each prepayment of a Loan,
the Borrower shall prepay all accrued interest on the amount prepaid through the
date of prepayment. Unless otherwise specified by the Borrower, each prepayment
of (i) Revolving Credit Loans shall first be applied to ABR Advances and (ii)
Swing Line Loans shall first be applied to Swing Line ABR Advances. If any
prepayment is made in respect of any Eurodollar Advance, Alternate Currency Euro
Advance or any Swing Line Negotiated Rate Advance, in whole or in part, prior to
the last day of the applicable Interest Period, the Borrower agrees to indemnify
the Lenders in accordance with Section 3.5.
2.8. Use of Proceeds
The Borrower agrees that the proceeds of the Loans shall be
used solely, directly or indirectly, to (i) repay the Existing Furon Bank Debt,
(ii) make an equity contribution to Acquisition Corp. to enable Acquisition
Corp. to consummate the Tender Offer and the Merger and repay the Existing Medex
Bank Debt, the Indebtedness of Medex under the Existing Medex Bond Documents and
the Indebtedness of Medfusion, Inc. under the Existing Medfusion Bond Documents,
(iii) make Restricted Payments permitted under Section 8.6(iii), (iv) pay all of
the Fees due hereunder, (v) pay the reasonable out-of-pocket fees and expenses
incurred by the Borrower in connection with the Transaction Documents and (vi)
for the Borrower's general corporate purposes not inconsistent with the
provisions hereof. Notwithstanding anything to the contrary contained in any
Loan Document, the Borrower agrees that no part of the proceeds of any Loan will
be used, directly or indirectly, for a purpose which violates any law,
including, without limitation, the provisions of Regulations G, U or X of the
Board of Governors of the Federal Reserve System, as amended.
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2.9. Payments
(a) Each borrowing of Revolving Credit Loans by the Borrower
from the Lenders, any conversion of Revolving Credit Loans from one Type to
another and any reduction in the Revolving Credit Commitment Amount shall be
made pro rata according to the Commitment Percentage of such Lender. Each
payment, including each prepayment, of principal and interest on (i) the
Revolving Credit Loans, of the Commitment Fee, and of all of the other fees to
be paid to the Administrative Agent and the Lenders in connection with this
Agreement (the Commitment Fee, together with all of such other fees, being
sometimes hereinafter collectively referred to as the "Fees") shall be made by
the Borrower prior to 4:00 p.m. on the date such payment is due to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's Applicable Payment Office, in each case in the Applicable Currency, in
immediately available funds and without set-off or counterclaim. As between the
Borrower and the Lenders, any payment by the Borrower to the Administrative
Agent for the account of the Lenders shall be deemed to be payment by the
Borrower to the Lenders. The failure of the Borrower to make any such payment by
such time shall not constitute a Default, provided that such payment is made on
such due date, but any such payment made after 4:00 p.m. (local time in the city
in which the Administrative Agent's Applicable Lending Office is located) on
such due date shall be deemed to have been made on the next Business Day for the
purpose of calculating interest on amounts outstanding on the Revolving Credit
Loans. Promptly upon receipt thereof, the Administrative Agent shall remit, in
like funds as received, (i) to the Lenders according to the Commitment
Percentage of each Lender, in the case of the Commitment Fee, (ii) to the
Lenders pro rata according to the aggregate outstanding principal balance of the
Revolving Credit Loans, in the case of principal and interest due on the
Revolving Credit Loans and (iii) to the Swing Line Lender in the case of
principal and interest due on the Swing Line Loan.
(b) If any payment hereunder shall be due and payable on a day
which is not a Business Day, the due date thereof (except as otherwise provided
in the definition of Interest Period) shall be extended to the next Business Day
and (except with respect to payments in respect of the Fees) interest shall be
payable at the applicable rate specified herein during such extension, provided,
however that if such next Business Day is after the Maturity Date, any such
payment shall be due on the immediately preceding Business Day.
(c) The principal of and interest on each Alternate Currency
Loan shall be paid only in the Applicable Currency for such Alternate Currency
Loan.
2.10. Records
(a) Lender's Records. Each Lender will note on its internal
records with respect to each Revolving Credit Loan made by it and the Swing Line
Lender will note on its internal records with respect to each Swing Line Loan
made by it: (i) the date and amount of such Revolving Credit Loan or Swing Line
Loan, as the case may be, (ii) in the case of a Revolving Credit Loan, the
character of such Revolving Credit Loan as an ABR Advance, a Eurodollar Advance
or an Alternate Currency Euro Advance or a combination thereof, (iii) in the
case of a Swing Line Loan, the character of such Swing Line Loan as a Swing Line
ABR Advance or a Swing Line Negotiated Rate Advance, (iv) the Interest Period
and the interest rate (without regard to the Applicable Margin) or the
Negotiated Rate applicable to Eurodollar Advances, Alternate Currency Euro
Advances or Negotiated
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Rate Advances, as the case may be, and (v) each payment and prepayment of the
principal of each Revolving Credit Loan or Swing Line Loan, as the case may be.
(b) Administrative Agent's Records. The Administrative Agent
shall keep records regarding the Revolving Credit Loans, Swing Line Loans and
the Loan Documents in accordance with its customary procedures for agented
credits.
(c) Prima Facie Evidence. The entries made in the records
maintained pursuant to subsections (a) and (b) above shall, to the extent not
prohibited by applicable law, be prima facie evidence of the existence and
amount of the obligations of the Borrower recorded therein absent manifest
error; provided that the failure of the Administrative Agent, any Lender or the
Swing Line Lender, as the case may be, to make any notation on its records shall
not affect the Borrower's obligations in respect of the Revolving Credit Loans,
Swing Line Loans or any other Loan Documents. In the event of any inconsistency
between the Administrative Agent's records and the Lender's records, the
Administrative Agent's records shall govern.
(d) Notes. Upon the request of any Lender (in connection with
a proposed assignment to a Federal Reserve Bank as contemplated by Section
11.7(f)) to the Administrative Agent and the Borrower, the Borrower agrees, at
its expense, to execute and deliver to the Administrative Agent for the account
of such Lender one or more promissory notes evidencing the Loan or Loans of such
Lender to such Borrower, substantially in the form of Exhibit H.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section
3.1(b) and 3.1(c), prior to maturity, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
ADVANCES RATE
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate for the applicable
Interest Period plus the Applicable
Margin.
Each Alternate Currency
Euro Advance Alternate Currency, Euro Rate for the
applicable Interest Period plus the
Applicable Margin.
Each Swing Line ABR Advance Alternate Base Rate.
Each Swing Line Negotiated
Rate Advance Negotiated Rate applicable to such Swing
Line Negotiated Rate Advance for the
applicable Interest Period.
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(b) Late Charges. If all or any portion of the principal
balance of or interest payable on any of the Loans or any other amount payable
under the Loan Documents shall not be paid when due (whether at the stated
maturity thereof, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum (whether before or after the entry of a judgment
thereon) equal to 2% plus the rate which would otherwise be applicable pursuant
to Section 3.1(a), from the date such amount was due to, but not including, the
date such amount is paid in full. For purposes of the preceding sentence, the
rate applicable pursuant to Section 3.1(a) to any overdue, principal, interest
or other amount payable under the Loan Documents shall be (i) in the case of an
overdue principal balance of any Eurodollar Advance, the applicable Eurodollar
Rate plus the Applicable Margin until the last day of the applicable Interest
Period (or the earlier termination thereof pursuant to this Agreement) and
thereafter at the Alternate Base Rate, (ii) in the case of an overdue principal
balance of any Alternate Currency Euro Advance, the applicable Alternate
Currency Euro Rate plus the Applicable Margin until the last day of the
applicable Interest Period (or the earlier termination thereof pursuant to this
Agreement) and thereafter at the Alternate Currency Euro Rate for additional
Interest Periods of one month each (which the Borrower shall be deemed to have
elected) plus the Applicable Margin, (iii) in the case of an overdue principal
balance of any Swing Line Negotiated Rate Advance, the applicable Negotiated
Rate until the last day of the applicable Interest Period (or the earlier
termination thereof pursuant to this Agreement) and thereafter at the Alternate
Base Rate and (iv) in all other cases, the Alternate Base Rate. All such
interest shall be payable on demand.
(c) Highest Lawful Rate. At no time shall the interest rate
payable on the Loans of any Lender, together with the Fees and all other amounts
payable under the Loan Documents to such Lender, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate applicable to
such Lender. If with respect to any Lender for any period during the term of
this Agreement, any amount paid to such Lender under the Loan Documents, to the
extent the same shall (but for the provisions of this Section) constitute or be
deemed to constitute interest, would exceed the maximum amount of interest
permitted by the Highest Lawful Rate applicable to such Lender during such
period (such amount being hereinafter referred to as an "Unqualified Amount"),
then (i) such Unqualified Amount shall be applied or shall be deemed to have
been applied as a prepayment of the Revolving Credit Loans of such Lender, and
(ii) if in any subsequent period during the term of this Agreement, all amounts
payable under the Loan Documents to such Lender in respect of such period which
constitute or shall be deemed to constitute interest shall be less than the
maximum amount of interest permitted by the Highest Lawful Rate applicable to
such Lender during such period, then the Borrower shall pay to such Lender in
respect of such period an amount (each a "Compensatory Interest Payment") equal
to the lesser of (x) a sum which, when added to all such amounts, would equal
the maximum amount of interest permitted by the Highest Lawful Rate applicable
to such Lender during such period, and (y) an amount equal to the Unqualified
Amount less all other Compensatory Interest Payments made in respect thereof.
(d) In General. Interest on (i) ABR Advances and Swing Line
ABR Advances to the extent based on the BNY Rate and on Alternate Currency Loans
in Sterling Pounds shall be calculated on the basis of a 365 or 366-day year (as
the case may be), and (ii) ABR Advances and Swing Line ABR Advances to the
extent based on the Federal Funds Rate, on Eurodollar Advances, on Alternate
Currency Loans (other than Alternate Currency Loans in Sterling Pounds) and on
Swing Line Negotiated Rate Advances shall be calculated on the basis of a
360-day year, in each case, for the actual number of days elapsed. Except as
otherwise provided in Section 3.1(b), interest shall be payable in
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arrears on each Interest Payment Date and upon each payment (including
prepayment) of the Loans. Any change in the interest rate on the Loans resulting
from a change in the Alternate Base Rate or reserve requirements shall become
effective as of the opening of business on the day on which change shall become
effective. The Administrative Agent shall, as soon as practicable, notify the
Borrower and the Lenders of the effective date and the amount of each such
change in the BNY Rate, but any failure to so notify shall not in any manner
affect the obligation of the Borrower to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Alternate Base
Rate, a Eurodollar Rate, or an Alternate Currency Euro Rate by the
Administrative Agent pursuant to this Agreement shall be conclusive and binding
on all parties hereto absent manifest error. The Borrower acknowledges that to
the extent interest payable on ABR Advances or Swing Line ABR Advances is based
on the BNY Rate, such rate is only one of the bases for computing interest on
loans made by the Lenders, and by basing interest payable on ABR Advances on the
BNY Rate, the Lenders have not committed to charge, and the Borrower has not in
any way bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
(e) If the Reference Lender shall for any reason no longer be
a Lender, it shall thereupon cease to be the Reference Lender. The
Administrative Agent and the Borrower shall, by notice to the Lenders, designate
another Lender as the Reference Lender so that there shall at all times be at
least one Reference Lender. The Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent on a timely basis as
contemplated hereby.
3.2. Fees
(a) Commitment Fees. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in accordance with each
Lender's Commitment Percentage, a fee (the "Commitment Fee"), during the
Revolving Credit Commitment Period, at a rate per annum equal to the Applicable
Fee Percentage on the average daily excess of the Aggregate Revolving Credit
Commitment Amount over the sum of the aggregate outstanding principal balance of
the Revolving Credit Loans (excluding the outstanding principal balance of the
Swing Line Loans, if any). The Commitment Fee shall be payable quarterly in
arrears on the last day of each fiscal quarter of the Borrower commencing on the
first such day following the Effective Date, and ending on the date that the
Revolving Credit Commitments shall expire or otherwise terminate. The Commitment
Fee shall be calculated on the basis of a 360 day year for the actual number of
days elapsed.
(b) Administrative Agent's Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, such other fees as have been
agreed to in writing by the Borrower and the Administrative Agent.
3.3. Conversions
(a) The Borrower shall have the option to convert on any
Business Day all or a portion of the outstanding principal amount of ABR
Advances (other than ABR Advances constituting Swing Line Loans), Eurodollar
Advances or Alternate Currency Euro Advances into (i) in the case of an ABR
Advance, one or more Eurodollar Advances, (ii) in the case of a Eurodollar
Advance, one or more ABR Advances or one or
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more new Eurodollar Advances and (iii) in the case of an Alternate Currency Euro
Advance, one or more new Alternate Currency Euro Advances of the same Alternate
Currency, provided that (A) except as otherwise provided in Section 3.6(b),
Eurodollar Advances may be converted into ABR Advances or new Eurodollar
Advances only on the last day of the Interest Period applicable to the
Eurodollar Advances being converted, (B) except as otherwise provided in Section
3.6(b), Alternate Currency Euro Advances may be converted into new Alternate
Currency Euro Advances only on the last day of the Interest Period applicable to
the Alternate Currency Euro Advances being converted, (C) the outstanding
principal amount of the new Eurodollar Advances having the same Interest Period
shall be in an amount equal to $5,000,000 or such amount plus a whole multiple
of $1,000,000 in excess thereof, (D) the outstanding principal amount of the new
Alternate Currency Euro Advances having the same Interest Period shall be in an
amount equal to $5,000,000 or such amount plus a whole multiple of $1,000,000 in
excess thereof (or an amount in the applicable Alternate Currency having a
Dollar Equivalent of approximately $5,000,000 or such amount plus a whole
multiple of approximately $1,000,000 in excess thereof), (E) the outstanding
principal amount of the new ABR Advances shall be in an amount equal to
$1,000,000 or such amount plus a whole multiple of $500,000 in excess thereof,
(F) ABR Advances or Eurodollar Advances may not be converted into Eurodollar
Advances if any Default or Event of Default is in existence on the date of the
conversion and the Administrative Agent or the Required Lenders have determined
that such a conversion is not appropriate, and (G) no conversion pursuant to
this Section shall result in a greater number of Eurodollar Advances or
Alternate Currency Euro Advances than is permitted under Section 3.4(b).
(b) Each such conversion shall be effected by the Borrower by
giving the Administrative Agent written notice at its office set forth in
Section 11.2, no later than (i) 2:00 p.m. four Business Days prior to the
requested Conversion Date in the case of a conversion to Alternate Currency Euro
Advances, (ii) 2:00 p.m. three Business Days prior to the requested Conversion
Date in the case of a conversion to Eurodollar Advances, specifying the ABR
Advances, the Eurodollar Advances or the Alternate Currency Euro Advances to be
so converted, the date of such conversion (which shall be a Business Day) and,
if to be converted into Eurodollar Advances or Alternate Currency Euro Advances,
the Interest Period to be applicable thereto. Each such notice shall be
irrevocable and shall be given by the delivery by telecopy of a Notice of
Conversion (confirmed promptly, and in any event within five Business Days, by
the delivery to the Administrative Agent of a Notice of Conversion manually
signed by the Borrower). The Administrative Agent shall give each Lender prompt
notice of any such proposed conversion affecting any of its Loans.
(c) If with respect to the expiration of an existing Interest
Period for a Eurodollar Advance or an Alternate Currency Euro Advance the
Borrower has failed to deliver a Notice of Conversion with respect thereto, such
Borrower shall be deemed to have elected (i) if a Eurodollar Advance, to convert
such Eurodollar Advance to an ABR Advance and (ii) if an Alternate Currency Euro
Advance, to convert such Alternate Currency Euro Advance to a new Alternate
Currency Euro Advance with a one month Interest Period, in either case effective
as of the expiration date of such existing Interest Period.
(d) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance Eurodollar Advance, or Alternate
Currency Euro Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that any such conversion shall not
constitute a borrowing for purposes of Sections 4, 5 or 6).
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3.4. Concerning Interest Periods
Notwithstanding any other provision of any Loan Document:
(a) No Interest Period selected in respect of the
conversion of any Eurodollar Advance or any Swing Line Loan shall end after the
Maturity Date.
(b) The Borrower shall not be permitted to have more
than an aggregate of ten Eurodollar Advances and Alternate Currency Euro
Advances outstanding at any one time, it being agreed that each borrowing of a
Eurodollar Advance or an Alternate Currency Euro Advance, as the case may be,
pursuant to a single Borrowing Request shall constitute the making of one
Eurodollar Advance for the purpose of calculating such limitation.
(c) Notwithstanding anything herein to the contrary,
during the Syndication Period, (i) the Borrower may only select Interest Periods
of either seven days or one month and (ii) such Interest Periods shall end, if
not sooner, on the last day of each calendar month and on the last day of the
Syndication Period.
3.5. Indemnification for Loss
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow or convert on a Borrowing Date or Conversion
Date after it shall have given notice to do so in which it shall have requested
a Eurodollar Advance or an Alternate Currency Euro Advance, or if the Borrower
shall fail to borrow a Swing Line Negotiated Rate Advance after the Swing Line
Lender shall have agreed to a Negotiated Rate with respect thereto in accordance
with Section 2.2, or if a Eurodollar Advance, an Alternate Currency Euro Advance
or a Swing Line Negotiated Rate Advance shall be terminated by the Borrower for
any reason prior to the last day of the Interest Period applicable thereto, or
if, while a Eurodollar Advance, an Alternate Currency Euro Advance or a Swing
Line Negotiated Rate Advance is outstanding, any repayment or prepayment of such
Eurodollar Advance, Alternate Currency Euro Advance or Swing Line Swing Line
Negotiated Rate Advance is made for any reason (including, without limitation,
as a result of acceleration or illegality) on a date which is prior to the last
day of the Interest Period applicable thereto, the Borrower agrees to indemnify
each Lender or the Swing Line Lender, as the case may be, against, and to pay on
demand directly to such Lender or the Swing Line Lender, as the case may be, the
amount (calculated by such Lender or the Swing Line Lender, as the case may be,
using any reasonable method which is customarily used by such Lender or the
Swing Line Lender for such purpose) equal to any loss or reasonable
out-of-pocket expense suffered by such Lender or the Swing Line Lender as a
result of such failure to borrow or convert (other than as a result of a default
by such Lender), or such termination, repayment or prepayment, including any
loss, cost or expense suffered by such Lender or the Swing Line Lender, as the
case may be, in liquidating or employing deposits acquired to fund or maintain
the funding of such Eurodollar Advance, Alternate Currency Euro Advance or Swing
Line Negotiated Rate Advance, as the case may be, or redeploying funds prepaid
or repaid, in amounts which correspond to such Eurodollar Advance, Alternate
Currency Euro Advance or Swing Line Negotiated Rate Advance, and any internal
processing charge customarily charged by such Lender or the Swing Line Lender,
as the case may be, in connection therewith.
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3.6. Increased Costs, Illegality, etc.
(a) In the event that the Administrative Agent, with respect
to clauses (i) and (iv) below or any Lender with respect to clauses (ii) and
(iii) below or shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto):
(i) that, by reason of circumstances affecting the
applicable interbank market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of the Eurodollar Rate or the Alternate Currency Euro
Rate, as the case may be, with respect to any portion of the Revolving
Credit Loans that the Borrower has requested be made as Eurodollar
Advances or Alternate Currency Euro Advances, or Eurodollar Advances or
Alternate Currency Euro Advances that will result from the requested
conversion of any portion of the Advances into or of Eurodollar
Advances or Alternate Currency Euro Advances; or
(ii) at any time that such Lender has incurred
increased costs or reductions in the amounts received or receivable
hereunder with respect to any Fixed Rate Advance, in each case by an
amount such Lender deems to be material, because of any Regulatory
Change such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Lender of the principal of or
interest on such Fixed Rate Advance or any other amounts payable
hereunder (except for changes in the rate of tax on, or determined by
reference to, the Tax on the Income of such Lender), or (B) a change in
official reserve (including any marginal, emergency, supplemental,
special or other reserve) or similar requirements (except to the extent
included in the computation of the respective Eurodollar Rate, the
Alternate Currency Euro Rate or Swing Line Negotiated Rate, as the case
may be), or any special deposit, assessment or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender (or its Applicable Lending Office); or
(iii) at any time that the making or continuance of
any Fixed Rate Advance has been made (A) unlawful by any law, rule,
regulation or order or (B) impossible by compliance by any Lender in
good faith with any governmental directive or request (whether or not
having the force of law); or
(iv) at any time that any Alternate Currency is not
available in sufficient amounts, as determined in good faith by the
Administrative Agent, to fund any borrowing of Alternate Currency Loans
in such Alternate Currency;
then, and in any such event, the Administrative Agent, in the case of clause (i)
or (iv) above or such Lender, in the case of clause (ii) or (iii) above, shall
promptly give notice (by telephone confirmed in writing) to the Borrower, and,
except for the Administrative Agent, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter (w) in the case of clause (i) above, (A)
in the event that Eurodollar Advances or Alternate Currency Euro Advances are so
affected, Eurodollar Advances or Alternate Currency Euro Advances from such
applicable Lender or all of the Lenders, as the case may be, shall no longer be
available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent
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no longer exist, and any Borrowing Request or Notice of Conversion given by the
Borrower with respect to Eurodollar Advances or Alternate Currency Euro Advances
to be made which have not yet been incurred (including by way of conversion)
shall be deemed rescinded by the Borrower and (B) in the event that any
Alternate Currency Euro Advance is so affected, the interest rate for such
Alternate Currency Euro Advance shall be determined on the basis provided in the
proviso to the definition of Alternate Currency Euro Rate, (x) in the case of
clause (ii) above, the Borrower shall pay to such Lender, within five Business
Days of written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for the
calculation thereof, submitted to the Borrower by such Lender in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto), (y) in the case of clause (iii) above, the Borrower shall take
one of the actions specified in Section 3.6(b) and (z) in the case of clause
(iv) above, Alternate Currency Euro Advances in the affected Alternate Currency
shall no longer be available until such time as the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to the
notice referred to above by the Administrative Agent no longer exists, and any
Borrowing Request given by the Borrower with respect to such Alternate Currency
Euro Advances which have not yet been incurred shall be deemed rescinded by the
Borrower. Each of the Administrative Agent and the Lenders agree that if it
gives notice to the Borrower of any of the events described in clause (ii) and
(iii) above, it shall promptly notify the Borrower and the Administrative Agent,
if such event ceases to exist. If any such event described in clause (iii) above
with respect to Eurodollar Advances or Alternate Currency Euro Advances ceases
to exist as to a Lender, the obligations of such Lender, as the case may be, to
make Eurodollar Advances or Alternate Currency Euro Advances and to convert
Eurodollar Advances to new Eurodollar Advances or convert Alternate Currency
Euro Advances to new Alternate Currency Euro Advances on the terms and
conditions contained herein shall be reinstated.
(b) At any time that any Fixed Rate Advance is affected by the
circumstances described in Section 3.6(a)(ii) or (iii), the Borrower may (and in
the case of an affected Fixed Rate Advance by the circumstances described in
Section 3.6(a)(iii) shall) either (x) if the affected Fixed Rate Advance is then
being made initially or pursuant to a conversion, cancel the respective
borrowing or conversion by giving the Administrative Agent telephonic notice
(confirmed in writing) on the same date that the Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section 3.6(a)(ii) or
(iii) or (y) if the affected Fixed Rate Advance is then outstanding, upon at
least three Business Days' written notice to the Administrative Agent and the
affected Lender, (A) in the case of a Eurodollar Advance, require the affected
Lender to convert such Eurodollar Advance into an ABR Advance as of the end of
the Interest Period then applicable to such Eurodollar Advance or, if earlier,
as soon as practicable within the time required by law and (B) in the case of an
Alternate Currency Euro Advance or Swing Line Negotiated Rate Advance, take such
action as the affected Lender may reasonably request with a view to minimizing
the obligations of the Borrower under Section 3.5.
(c) If any Lender determines that a Regulatory Change will
have the effect of reducing the rate of return on the capital required to be
maintained by such Lender or any corporation controlling such Lender based on
the existence of such Lender's Revolving Credit Commitment hereunder or its
obligations under the Loan Documents to a level below that which such Lender or
such corporation could have
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achieved but for such application or compliance (taking into account such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then the Borrower agrees to pay
such to such Lender, within five Business Days of its written demand therefor,
such additional amounts as shall be required to compensate such Lender or such
other corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such reduction. In determining such additional
amounts, each Lender will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such
Lender's reasonable good faith determination of compensation owing under this
Section 3.6(c) shall, absent manifest error, be final and conclusive and binding
on all the parties hereto. Each Lender, upon determining that any additional
amounts will be payable pursuant to this Section 3.6(c), will give prompt
written notice thereof to the Borrower, which notice shall show in reasonable
detail the basis for calculation of such additional amounts.
3.7. Taxes
(a) Payments to Be Free and Clear. Subject to subsections (d)
and (e) below, all payments by the Borrower under the Loan Documents shall be
made free and clear of, and without any deduction or withholding for, any
Indemnified Tax. If the Borrower or any other Person is required by any law,
rule, regulation, order, directive, treaty or guideline to make any deduction or
withholding (which deduction or withholding would constitute an Indemnified Tax)
from any amount required to be paid by the Borrower to or on behalf of any
Indemnified Tax Person under any Loan Document (each a "Required Payment"):
(i) the Borrower shall notify the Administrative
Agent and such Indemnified Tax Person of any such requirement or any change in
any such requirement as soon as the Borrower becomes aware of it;
(ii) the Borrower shall pay such Indemnified Tax be-
fore the date on which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on the Borrower) for its own account or (if the
liability is imposed on such Indemnified Tax Person) on behalf of and in the
name of such Indemnified Tax Person;
(iii) the Borrower shall pay to such Indemnified Tax
Person an additional amount such that such Indemnified Tax Person shall receive
on the due date therefor an amount equal to the Required Payment had no such
deduction or withholding been required; and
(iv) the Borrower shall, within 30 days after paying
such Indemnified Tax, deliver to the Administrative Agent and the applicable
Indemnified Tax Person satisfactory evidence of such payment to the relevant
Governmental Authority.
(b) Other Indemnified Taxes. If an Indemnified Tax Person or
any affiliate thereof is required by any law, rule, regulation, order,
directive, treaty or guideline to pay any Indemnified Tax (excluding an
Indemnified Tax which is subject to Section 3.7(a) or an Other Tax described in
subsection (f) below) with respect to any sum paid or payable by the Borrower to
such Indemnified Tax Person under the Loan Documents:
(i) such Indemnified Tax Person shall notify the
Borrower of any such payment of Indemnified Tax; and
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(ii) the Borrower shall pay to such Indemnified Tax
Person the amount of such Indemnified Tax within five Business Days of such
notice.
(c) Exception for Existing Taxes. No amount shall be required
to be paid to any Indemnified Tax Person under Section 3.7(a)(iii) or (b) with
respect to an Indemnified Tax to the extent that such Indemnified Tax would have
been required to have been paid under any law, rule, regulation, order,
directive, treaty or guideline in effect on the Effective Date.
(d) U.S. Tax Certificates. Each Lender that is organized under
the laws of any jurisdiction other than the United States or any political
subdivision thereof shall deliver to the Administrative Agent for transmission
to the Borrower, on or prior to the first Borrowing Date (in the case of each
Lender listed on the signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or master assignment and acceptance
agreement pursuant to which it becomes a Lender in accordance with Section 11.7
(in the case of each other Lender), and at such other times as may be necessary
in the determination of the Borrower, the Borrower or the Administrative Agent
(each in the reasonable exercise of its discretion), such certificates,
documents or other evidence, properly completed and duly executed by such Lender
(including, without limitation, Internal Revenue Service Form 1001 or Form 4224)
to establish that such Lender is not subject to deduction or withholding of
United States federal income tax under Section 1441 or 1442 of the Code or
otherwise (or under any comparable provisions of any successor statute) with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under the Loan Documents. The Borrower shall not be required to
pay any additional amount to any such Lender under Section 3.7(a)(iii) if such
Lender shall have failed to satisfy the requirements of the immediately
preceding sentence; provided that if such Lender shall have satisfied such
requirements on the first Borrowing Date (in the case of each Lender listed on
the signature pages hereof) or on the effective date of the Assignment and
Acceptance Agreement or master assignment and acceptance agreement pursuant to
which it became a Lender (in the case of each other Lender), nothing in this
subsection shall relieve the Borrower of its obligation to pay any additional
amounts pursuant to Section 3.7(a)(iii) in the event that, as a result of any
change in applicable law (including, without limitation, any change in the
interpretation thereof), such Lender is no longer properly entitled to deliver
certificates, documents or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in the
immediately preceding sentence.
(e) Other Tax Certificates. Each Indemnified Tax Person agrees
to use reasonable efforts to deliver to the Borrower, the Borrower, promptly
upon any request therefor from time to time by the Borrower, such forms,
documents and information as may be required by applicable law, regulation or
treaty from time to time and to file all appropriate forms to obtain a
certificate or other appropriate documents from the appropriate Governmental
Authorities to establish that payments made in respect of any Revolving Credit
Loan can be made without (or at a reduced rate of) withholding of Taxes,
provided, however, that if such Indemnified Tax Person is or becomes unable by
virtue of any applicable law, regulation or treaty, to establish such exemption
or reduction, the Borrower shall nonetheless remain obligated under Subsection
3.7(a) to pay the amounts described therein, and provided further, that no
Indemnified Tax Person shall be required to take any action hereunder which, in
the sole discretion of such Indemnified Tax Person, would cause such Indemnified
Tax Person or any affiliate thereof to suffer a material economic, legal or
regulatory disadvantage.
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(f) Other Taxes. The Borrower agrees to pay any current or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents (collectively, the
"Other Taxes").
3.8. Option to Fund
Each Lender (including the Swing Line Lender) has indicated
that, if the Borrower requests a Eurodollar Advance, Alternate Currency Euro
Advance or a Swing Line Negotiated Rate Advance, as the case may be, such Lender
may wish to purchase one or more deposits in order to fund or maintain its
funding of its Commitment Percentage of such Eurodollar Advance, Alternate
Currency Euro Advance or such Swing Line Negotiated Rate Advance, as the case
may be, during the Interest Period with respect thereto; it being understood
that the provisions of this Agreement relating to such funding are included only
for the purpose of determining the rate of interest to be paid in respect of
such Eurodollar Advance, Alternate Currency Euro Advance or Swing Line
Negotiated Rate Advance, as the case may be, and any amounts owing under
Sections 3.5 and 3.7. Each Lender (including the Swing Line Lender) shall be
entitled to fund and maintain its funding of all or any part of each Eurodollar
Advance, Alternate Currency Euro Advance or Swing Line Negotiated Rate Advance,
as the case may be, in any manner it sees fit, but all such determinations
hereunder shall be made as if each Lender had actually funded and maintained its
Commitment Percentage of each Eurodollar Advance, Alternate Currency Euro
Advance and the Swing Line Lender had actually funded and maintained each Swing
Line Negotiated Rate Advance, as the case may be, during the applicable Interest
Period through the purchase of deposits in an amount equal to its Commitment
Percentage of such Eurodollar Advance, or Alternate Currency Euro Advance or its
Swing Line Negotiated Rate Advance, as the case may be, having a maturity
corresponding to such Interest Period. Any Lender may fund its Commitment
Percentage of each Eurodollar Advance or Alternate Currency Euro Advance and the
Swing Line Lender may fund a Swing Line Loan, from or for the account of any
branch or office of such Lender or the Swing Line Lender, as the case may be, as
such Lender or the Swing Line Lender, as the case may be, may choose from time
to time.
3.9. Substitution of a Lender
Notwithstanding anything to the contrary contained herein, if
any Lender shall request compensation pursuant to Sections 3.6 or 3.7 in an
aggregate amount in excess of $25,000, then, in each such case, the Borrower may
require that such Lender transfer all of its right, title and interest under the
Loan Documents to one or more of the other Lenders or any other lender
identified by the Borrower and acceptable to the Administrative Agent and the
Swing Line Lender (a "Proposed Lender"), if such Proposed Lender agrees to
assume all of the obligations of such Lender for consideration equal to the
outstanding principal amount of such Lender's Revolving Credit Loans, together
with interest thereon to the date of such transfer and all other amounts payable
under the Loan Documents to such Lender on or prior to the date of such transfer
(including, without limitation, any fees accrued hereunder and any amounts which
would be payable under Section 3.5 as if all of such Lender's Loans were being
prepaid in full on such date). Subject to the execution and delivery of an
instrument of assignment and assumption, and such other documents as such Lender
may reasonably require, such Proposed Lender shall be a "Lender" for all
purposes hereunder. Without prejudice to the survival of any other
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agreement of the Borrower hereunder, the agreements of the Borrower contained in
Sections 3.5, 3.6, 11.5 and 11.8 (without duplication of any payments made to
such Lender by the Borrower or the Proposed Lender) shall survive for the
benefit of any Lender replaced under this Section with respect to the time prior
to such replacement. The Borrower shall not have the right to so replace a
Lender unless it gives notice of its intention to do so within 90 days after its
right to replace such Lender arises under this Section .
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Revolving Credit Loans and the Swing Line
Lender to make the Swing Line Loans and the Lenders to participate therein, the
Borrower makes the following representations and warranties to the
Administrative Agent, each Lender and the Swing Line Lender:
4.1. Subsidiaries; Capitalization
As of the Effective Date, the Borrower has only the
Subsidiaries set forth on Schedule 4.1. Each of the Subsidiaries set forth on
Schedule 4.1 is a direct or indirect wholly-owned Subsidiary of the Borrower. As
of the Effective Date, except as set forth on Schedule 4.1, the shares of, or
partnership or other interests in, each Subsidiary of the Borrower are owned
beneficially and of record by the Borrower or another Subsidiary of the
Borrower, are free and clear of all Liens (other than Permitted Liens) and are
duly authorized, validly issued, fully paid and nonassessable.
4.2. Existence and Power
The Borrower is duly organized and validly existing in good
standing under the laws of the State of California. Each of the Borrower's
Subsidiaries is duly organized or formed and validly existing in good standing
under the laws of the jurisdiction of its incorporation or formation, except to
the extent that the failure to be duly organized or formed and validly existing
in good standing would not reasonably be expected to have a Material Adverse
Effect. Each of the Borrower and each of its Subsidiaries has all requisite
power and authority to own its Property and to carry on its business as now
conducted, and is in good standing and authorized to do business in each other
jurisdiction in which the nature of the business conducted therein or the
Property owned by it therein makes such qualification necessary, except where
such failure to qualify or be in good standing would not reasonably be expected
to have Material Adverse Effect.
4.3. Authority and Execution
Each of the Borrower and Acquisition Corp. have all requisite
corporate power and authority to enter into, execute, deliver and perform the
terms of the Transaction Documents to which it is a party and, in the case of
Acquisition Corp., to consummate the Medex Stock Purchase, all of which have
been duly authorized by all proper and necessary corporate action and do not
conflict with any provision of its Organizational Documents. Each of the
Borrower and Acquisition Corp. has duly executed and delivered the Transaction
Documents to which it is a party.
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4.4. Binding Agreement
The Transaction Documents constitute the valid and legally
binding obligations of the Borrower and Acquisition Corp., in each case to the
extent it is a party thereto, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
4.5. Litigation
Except as set forth on Schedule 4.5, there are no actions,
suits or proceedings at law or in equity or by or before any Governmental
Authority (whether purportedly on behalf of the Borrower or any of its
Subsidiaries) pending or, to the knowledge of the Borrower, threatened against
the Borrower or any of its Subsidiaries or maintained by the Borrower or any of
its Subsidiaries or which may affect any of their respective Properties or
rights, which (i) would reasonably be expected to have a Material Adverse Effect
or (ii) call into question the validity or enforceability of, or otherwise seek
to invalidate, any Loan Document.
4.6. Required Consents
(a) No consent, authorization or approval of, filing with,
notice to, or exemption by, stockholders or holders of any other equity interest
or any Governmental Authority is required to authorize, or is required in
connection with the execution and delivery by the Borrower of the Loan Documents
and the payment by the Borrower of all amounts due thereunder.
(b) Except for consents, authorizations, approvals, filings,
notices or exemptions, the failure to obtain or make would not reasonably be
expected to have a Material Adverse Effect and except as set forth on Schedule
4.7, no consent, authorization or approval of, filing with, notice to, or
exemption by, any Person (other than stockholders or holders of any other equity
interest or any Governmental Authority) is required to authorize, or is required
in connection with the execution, delivery and performance by the Borrower of
the Loan Documents.
(c) Except for consents, authorizations, approvals, filings,
notices or exemptions which are not required by the Offer Documents or the
Merger Documents to be obtained or made as a condition to the consummation of
the Medex Stock Purchase and the Merger, respectively, or which are set forth in
the Merger Documents as being so required, no consent, authorization or approval
of, filing with, notice to, or exemption by, stockholders or holders of any
other equity interest or any Governmental Authority is required (i) to
authorize, or is required in connection with the execution, delivery and
performance of the Merger Documents by the Borrower or Acquisition Corp. or (ii)
as a condition to the consummation of the Medex Stock Purchase by the Borrower
and Acquisition Corp.
(d) Except for consents, authorizations, approvals, filings,
notices or exemptions which are not required by the Offer Documents or the
Merger Documents to be obtained or made as a condition to the consummation of
the Medex Stock Purchase and the Merger, respectively, as set forth on Schedule
4.7 and except for consents, authorizations, approvals, filings, notices or
exemptions, the failure to obtain or make would not reasonably be expected to
have a Material Adverse Effect, no consent, authorization or
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approval of, filing with, notice to, or exemption by, any Person (other than
stockholders or holders of any other equity interest, the boards of directors of
the Borrower and Acquisition Corp. or any Governmental Authority) is required
(i) to authorize, or is required in connection with the execution, delivery and
performance of the Merger Documents by the Borrower or Acquisition Corp. or (ii)
as a condition to the consummation of the Medex Stock Purchase by the Borrower
and Acquisition Corp.
4.7. Absence of Defaults; No Conflicting Agreements
(a) Neither the Borrower nor any of its Subsidiaries is in
default under any mortgage, indenture, contract or agreement to which it is a
party or by which it or any of its Property is bound, the effect of which
default would reasonably be expected to have a Material Adverse Effect. Except
as set forth on Schedule 4.7, the execution, delivery or performance of the
terms of the Transaction Documents and the consummation of Medex Stock Purchase
will not constitute a default under, or result in the creation or imposition of,
or obligation to create, any Lien upon any Property of the Borrower or any of
its Subsidiaries or result in a breach of or require the mandatory repayment of
or other acceleration of payment under or pursuant to the terms of any such
mortgage, indenture, contract or agreement, except to the extent such default,
creation, imposition, breach or acceleration would not reasonably be expected to
have a Material Adverse Effect.
(b) Neither of the Borrower nor any of its Subsidiaries is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Authority which default would reasonably be
expected to have a Material Adverse Effect.
4.8. Compliance with Applicable Laws
The Borrower and each of its Subsidiaries is complying in all
material respects with all statutes, regulations, rules and orders of all
Governmental Authorities which are applicable to the Borrower or such
Subsidiary, a violation of which would reasonably be expected to have a Material
Adverse Effect.
4.9. Taxes
The Borrower and each of its Subsidiaries has filed or caused
to be filed all tax returns required to be filed and has paid, or has made
adequate provision for the payment of, all taxes shown to be due and payable on
said returns or in any assessments made against it (other than those being
contested as provided under Section 7.4), the failure of which to file or pay
would reasonably be expected to have a Material Adverse Effect, and no tax Liens
(other than Permitted Liens) have been filed with respect thereto. The charges,
accruals and reserves on the books of the Borrower and each of its Subsidiaries
with respect to all taxes are, to the best knowledge of the Borrower, adequate
for the payment of such taxes, and the Borrower knows of no unpaid assessment
which is due and payable against the Borrower or any of its Subsidiaries or any
claims being asserted which would reasonably be expected to have a Material
Adverse Effect, except such thereof as are being contested as provided under
Section 7.4, and for which adequate reserves have been set aside in accordance
with GAAP.
4.10. Governmental Regulations
Neither the Borrower, any of its Subsidiaries nor any Person
controlled by, controlling, or under common control with, the Borrower or
any of its Subsidiaries, is
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subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, or is subject to any statute or regulation which prohibits or
restricts the incurrence of Indebtedness, including, without limitation,
statutes or regulations relative to common or contract carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds
(a) Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
(b) Margin Stock will constitute less than 25% of the assets
(as determined by any reasonable method) of the Borrower and its Subsidiaries
after giving effect to the making of each Loan (i) prior to the consummation of
purchase of Medex Stock contemplated by the Tender Offer and (ii) after the
consummation of the Merger.
4.12. Plans
The only Pension Plans in effect as of the Effective Date (the
"Existing Pension Plans") are listed on Schedule 4.12. Each Employee Benefit
Plan of the Borrower, its Subsidiaries and the ERISA Affiliates is in compliance
with ERISA and the Code, where applicable, in all material respects. As of the
Effective Date, (i) the amount of all Unfunded Pension Liabilities under the
Pension Plans, excluding any plan which is a Multiemployer Plan, does not exceed
an amount which would reasonably be expected to have a Material Adverse Effect,
and (ii) the amount of the aggregate Unrecognized Retiree Welfare Liability
under all applicable Employee Benefit Plans does not exceed an amount which
would reasonably be expected to have a Material Adverse Effect. The Borrower and
each of its Subsidiaries and ERISA Affiliates has complied in all material
respects with the requirements of Section 515 of ERISA with respect to each
Pension Plan which is a Multiemployer Plan. As of the Effective Date, the
aggregate potential annual withdrawal liability payments, as determined in
accordance with Title IV of ERISA, of the Borrower and its Subsidiaries and
ERISA Affiliates with respect to all Pension Plans which are Multiemployer Plans
does not exceed an amount which would reasonably be expected to have a Material
Adverse Effect. The Borrower and its Subsidiaries and ERISA Affiliates have, as
of the Effective Date, made all contributions or payments to or under each such
Pension Plan required by law or the terms of such Pension Plan or any contract
or agreement with respect thereto. No material liability to the PBGC has been,
or is expected by the Borrower, any of its Subsidiaries or any ERISA Affiliate
to be, incurred by the Borrower, any such Subsidiary or any ERISA Affiliate.
Liability, as referred to in this Section includes any joint and several
liability. Each Employee Benefit Plan which is a group health plan within the
meaning of Section 5000(b)(1) of the Code is in material compliance with the
continuation of health care coverage requirements of Section 4980B of the Code.
4.13. Financial Statements
The Borrower has heretofore delivered to the Administrative
Agent and the Lenders copies of its Form 10-K for the fiscal year ending
February 3, 1996, containing the audited Consolidated Balance Sheets of the
Borrower and its Subsidiaries as of February 3, 1996 and January 28, 1995, and
the related Consolidated Statements of Income,
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Stockholders' Equity and Cash Flows for the periods then ended, and its Form
10-Q for the fiscal quarter ended August 3, 1996, containing the unaudited
Consolidated Balance Sheet of the Borrower and its Subsidiaries for such fiscal
quarter, together with the related Consolidated Statements of Income and Cash
Flows for the fiscal quarter then ended (with the applicable related notes and
schedules, the "Financial Statements"). The Financial Statements fairly present
the Consolidated financial condition and results of operations of the Borrower
and its Subsidiaries as of the dates and for the periods indicated therein and
have been prepared in conformity with GAAP. Except as reflected in the Financial
Statements or in the footnotes thereto, neither the Borrower nor any of its
Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, contingent, unmatured or otherwise) which, in accordance with GAAP,
should have been shown in the Financial Statements and was not. Since February
3, 1996, there has been no Material Adverse Change.
4.14. Property
The Borrower and each of its Subsidiaries has (i) good and
marketable title to all of its owned Property, title to which is material to the
Borrower or such Subsidiary and (ii) a valid leasehold interest in all leased
Property, a leasehold interest in which is material to the Borrower or such
Subsidiary, in each case subject to no Liens, except Permitted Liens.
4.15. Authorizations
The Borrower and each of its Subsidiaries possesses or has the
right to use all franchises, licenses and other rights as are material and
necessary for the conduct of its business, and with respect to which it is in
material compliance, with no known conflict with the valid rights of others
which would reasonably be expected to have a Material Adverse Effect. No event
has occurred which permits or, to the best knowledge of the Borrower, after
notice or the lapse of time or both, or any other condition, would reasonably be
expected to permit, the revocation or termination of any such franchise, license
or other right which revocation or termination would reasonably be expected to
have a Material Adverse Effect.
4.16. Environmental Matters
(a) No Hazardous Substances have been generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; no Hazardous
Substances have been discharged into subsurface waters under any Real Property
in violation of any Environmental Laws; no Hazardous Substances have been
discharged from any Real Property on or into Property or waters (including
subsurface waters) adjacent to any Real Property in violation of any
Environmental Laws, except in each case to the extent it would not reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
received notice (written or oral) of any claim, demand, suit, action,
proceeding, event, condition, report, directive, Lien, violation, non-compliance
or investigation indicating or concerning any potential or actual liability
(including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
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remedial costs, natural resources damages, Property damages, personal injuries
or penalties) arising in connection with: (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any of its Subsidiaries) or the release or
threatened release of any Hazardous Substance into the environment which in each
case or cumulatively would reasonably be expected to have a Material Adverse
Effect, (ii) has any threatened or actual liability in connection with the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any of its Subsidiaries) or the release or
threatened release of any Hazardous Substance into the environment which would
reasonably be expected to have a Material Adverse Effect, (iii) has received
notice of any federal or state investigation evaluating whether any remedial
action is needed to respond to the presence of any Hazardous Substance on any
Real Property (or any Real Property previously owned by the Borrower or any of
its Subsidiaries) or a release or threatened release of any Hazardous Substance
into the environment for which the Borrower or any of its Subsidiaries is or may
be liable which would reasonably be expected to have a Material Adverse Effect,
or (iv) has received notice that the Borrower or any of its Subsidiaries is or
may be liable to any Person under any Environmental Law which liability would
reasonably be expected to have a Material Adverse Effect.
4.17. Solvency
Immediately after giving effect to the transactions
contemplated by the Transaction Documents, the Borrower and its Subsidiaries on
a Consolidated basis are and will be Solvent.
4.18. Medex Acquisition Documents
The Borrower has delivered to the Administrative Agent a
complete and correct copy of the Merger Documents and the Offer Documents. The
Merger Agreement has been duly executed and delivered by the parties thereto and
is in full force and effect. The representations and warranties of the Borrower
and Acquisition Corp. and, to the best of the Borrower's knowledge, Medex,
contained in the Merger Agreement (including all exhibits, schedules, and
disclosure letters referred to therein or delivered pursuant thereto) will be
true and correct in all material respects on the first Borrowing Date as if made
on and as of such Borrowing Date, except that any such representation or
warranty stated to relate to a specific earlier date will be true and correct in
all material respects as of such earlier date.
4.19. No Misrepresentation
No representation or warranty contained in any Loan Document
and no certificate or report from time to time furnished by the Borrower or any
of its Subsidiaries in connection with the Loan Documents, contains or will
contain a misstatement of material fact, or, to the best knowledge of the
Borrower, omits or will omit to state a material fact required to be stated in
order to make the statements therein contained not misleading in the light of
the circumstances under which made, provided that any projections or proforma
financial information contained therein are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made, it being
recognized by the Administrative Agent and the Lenders that such projections as
to future events are not to be viewed as facts, and that actual results during
the period or periods covered thereby may differ from the projected results.
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5. CONDITIONS TO EFFECTIVENESS, FIRST LOANS AND LOANS MADE ON THE
MERGER EFFECTIVE DATE
5.1. Conditions to Effectiveness
The effectiveness of this Agreement is subject to the prior or
simultaneous fulfillment of the following conditions precedent, it being
understood that in addition to the conditions set forth in this Section, (i) as
a condition to the making of the Loans on the first Borrowing Date, the
conditions in Section 5.2 shall be satisfied, (ii) as a condition to the making
of the Loans on the Merger Effective Date, the conditions in Section 5.3 shall
be satisfied, and (iii) as a condition to the making of all Loans (including the
Loans made on the first Borrowing Date and the Merger Effective Date), the
conditions in Section 6 shall be satisfied:
(a) Evidence of Action. The Administrative Agent
shall have received a certificate, dated the Effective Date, of the Secretary or
Assistant Secretary of each of the Borrower and Acquisition Corp. (i) attaching
a true and complete copy of the resolutions of its Managing Person (in form and
substance satisfactory to the Administrative Agent) authorizing the Transaction
Documents and the Transactions, in each case to which it is a party, (ii)
attaching a true and complete copy of its Organizational Documents, (iii)
setting forth the incumbency of its officer or officers who may sign the
Transaction Documents, including therein a signature specimen of such officer or
officers and (iv) attaching a certificate of good standing of the Secretary of
State of the jurisdiction of its incorporation and of each other jurisdiction in
which it is qualified to do business, except, in the case of such other
jurisdiction, when the failure to be in good standing in such jurisdiction would
not have a Material Adverse Effect.
(b) This Agreement. The Administrative Agent shall
have received counterparts of this Agreement signed by each of the parties
hereto (or receipt by the Administrative Agent from a party hereto of a telecopy
signature page signed by such party which shall have agreed to promptly provide
the Administrative Agent with originally executed counterparts hereof).
(c) Officer's Certificate. The Administrative Agent
shall have received a certificate of an officer of the Borrower, dated the
Effective Date, in all respects satisfactory to the Administrative Agent, to the
effect that (i) there exists no Default or Event of Default and (ii) the
representations and warranties contained in this Agreement are true and correct
on the Effective Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties were true and correct on and as of such earlier date.
(d) Opinions of Counsel to the Borrower. The
Administrative Agent shall have received (i) an opinion of O'Melveny & Xxxxx,
counsel to the Borrower, (ii) an opinion of Xxxxxx X. Xxxxxxx, Esq., General
Counsel of the Borrower and as counsel to Acquisition Corp., and (iii) an
opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx, special Ohio counsel to the Borrower
and Acquisition Corp., each addressed to the Administrative Agent, the Swing
Line Lender and the Lenders, and dated the Effective Date, substantially in the
forms of Exhibit E, E-1 and E-2, respectively. It is understood that such
opinion is being delivered to the Administrative Agent and the Lenders upon the
direction of the Borrower and that the Administrative Agent and the Lenders may
and will rely on such opinion.
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(e) Opinion of Special Counsel. The Administrative
Agent shall have received an opinion of Special Counsel, addressed to the
Administrative Agent, the Swing Line Lender and the Lenders and dated the
Effective Date substantially in the form of Exhibit F.
(f) Merger Documents. The Administrative Agent shall
have received a certificate of the Secretary or Assistant Secretary of the
Borrower (i) attaching a true and complete copy of each of the fully executed
Merger Documents, each of which shall be satisfactory to the Administrative
Agent, and (ii) certifying that each thereof is in full force and effect.
(g) Absence of Material Adverse Change. Since (i)
February 3, 1996, there shall have occurred no Material Adverse Change and (ii)
June 30, 1996, there shall have occurred no material adverse change in the
financial condition, operations or business of Medex and its Subsidiaries taken
as a whole, and the Administrative Agent shall have received a certificate of a
Financial Officer (or other officer acceptable to the Administrative Agent) of
the Borrower to the foregoing effect; provided, however, that to the extent that
such certificate relates to Medex and its Subsidiaries, such certificate may be
to the best of the Borrower's knowledge.
(h) Fees. All fees payable to the Administrative
Agent and the Lenders on the Effective Date shall have been paid.
(i) Fees and Expenses of Special Counsel. The fees
and expenses of Special Counsel in connection with the preparation, negotiation
and execution of this Agreement and the Transactions, incurred through the
Effective Date shall have been paid.
(i) Other Documents. The Administrative Agent shall
have received such other documents, each in form and substance reasonably
satisfactory to the Administrative Agent, as the Administrative Agent shall
reasonably require on or prior to the Effective Date.
5.2. Conditions to First Loans
The obligation of each Lender to make any Loan on the first
Borrowing Date is subject to the satisfaction on the Effective Date of the
conditions set forth in Section 5.1, the satisfaction of the conditions
precedent set forth in Section 6 and the satisfaction of the following
conditions precedent as of the first Borrowing Date:
(a) Resolutions; Organizational Documents. The
Administrative Agent shall have received a certificate, dated the first
Borrowing Date, of the Secretary or Assistant Secretary of each of the Borrower
and Acquisition Corp. certifying that neither its Organizational Documents nor
the resolutions delivered by it pursuant to Section 5.1(a) have been amended,
modified or changed in any manner since the Effective Date, or, if so, setting
forth the same, and that such resolutions remain in full force and effect,
provided that any such amendment, modification or change shall be reasonably
satisfactory to the Administrative Agent.
(b) Officer's Certificate. The Administrative Agent
shall have received a certificate of an officer of the Borrower, dated the first
Borrowing Date, in all respects satisfactory to the Administrative Agent, to the
effect that (i) there exists no
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Default or Event of Default and (ii) the representations and warranties
contained in the Loan Documents are true and correct on the first Borrowing
Date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
were true and correct on and as of such earlier date.
(c) Offer Documents. The Administrative Agent shall
have received a certificate of the Secretary or Assistant Secretary of the
Borrower (i) attaching a true and complete copy of each of the Offer Documents,
each of which shall be satisfactory to the Administrative Agent, and (ii)
certifying that (A) each thereof is in full force and effect, and (B) all action
required to be taken by the Borrower or Acquisition Corp. as a condition to the
Medex Stock Purchase has been taken other than the deposit of payment therefor.
(d) Existing Furon Bank Debt. Prior to or simultane-
ously with the making of the Loans on the first Borrowing Date, the Borrower
shall have fully repaid all Existing Furon Bank Debt, all commitments to lend
under the Existing Furon Loan Documents shall have been terminated, and the
Administrative Agent shall have received a reasonably satisfactory letter from
the agent thereunder with respect to such payment and evidencing the termination
of such commitment.
(e) Absence of Material Adverse Change. Since (i)
February 3, 1996, there shall have occurred no Material Adverse Change and (ii)
November 12, 1996, there shall have occurred no change (or any development
involving a prospective change) in the business, financial condition or results
of operations of Medex or any of its Subsidiaries that has had or is reasonably
expected to have a material adverse effect in the business, financial condition,
results of operations, properties, assets or liabilities of Medex and its
Subsidiaries (measured by reference to Medex and its Subsidiaries taken as a
whole, and the size of the transactions contemplated by the Offer to Purchase
and the Merger, taken together, and shall not be determined solely by reference
to accounting concepts of materiality unless the matter involves accounting
matters) and the Administrative Agent shall have received a certificate of a
Financial Officer (or other officer acceptable to the Administrative Agent) of
the Borrower to the foregoing effect; provided, however, that to the extent that
such certificate relates to Medex and its Subsidiaries, such certificate may be
to the best of the Borrower's knowledge.
(f) Satisfaction of Conditions in the Merger
Agreement. All of the conditions to the Borrower's and Acquisition Corp.'s
obligations to accept for payment or to pay for any Medex Stock tendered
pursuant to the Offer to Purchase shall have been satisfied in accordance with
the Merger Agreement (including, without limitation, Schedule 1.1(b) thereto)
with no amendment to, or waiver of, any of the provisions of the Merger
Agreement without the written consent of the Administrative Agent, and the
Administrative Agent shall have received a certificate of an officer of the
Borrower to the foregoing effect.
(g) Fees. All fees payable to the Administrative
Agent and the Lenders on the first Borrowing Date shall have been paid.
(h) Fees and Expenses of Special Counsel. The fees
and expenses of Special Counsel in connection with the Transactions to the
extent not theretofore paid shall have been paid.
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5.3. Conditions to Loans on the Merger Effective Date
The obligation of each Lender to make any Loan on the Merger
Effective Date is subject to the satisfaction on the Effective Date of the
conditions precedent to effectiveness set forth in Section 5.1, the satisfaction
on the first Borrowing Date of the conditions precedent set forth in Section
5.2, the satisfaction of the conditions precedent set forth in Section 6 and the
satisfaction of the following conditions precedent as of the Merger Effective
Date:
(a) Resolutions; Organizational Documents. The
Administrative Agent shall have received a certificate, dated the Merger
Effective Date, of the Secretary or Assistant Secretary of each of the Borrower
and Acquisition Corp. certifying that neither its Organizational Documents nor
the resolutions delivered by it pursuant to Section 5.1(a) have been amended,
modified or changed in any manner since the Effective Date, or, if so, setting
forth the same, and that such resolutions remain in full force and effect,
provided that any such amendment, modification or change shall be reasonably
satisfactory to the Administrative Agent.
(b) Disclosure. In the event that Medex is required
to conduct a proxy solicitation in respect of the Merger, the Administrative
Agent shall have received a copy of such proxy solicitation and related
disclosure filed by Medex with the SEC in connection therewith, certified by an
Authorized Signatory of the Borrower to be a true and complete copy thereof,
provided that any provision thereof which mentions BNY or BNY Capital Markets or
describes the Loan Documents or the credit facility established hereunder shall
be satisfactory to the Administrative Agent.
(c) Absence of Material Adverse Change. Since (i)
February 3, 1996, there shall have occurred no Material Adverse Change and (ii)
November 12, 1996, there shall have occurred no change (or any development
involving a prospective change) in the business, financial condition or results
of operations of Medex or any of its Subsidiaries that has had or is reasonably
expected to have a material adverse effect in the business, financial condition,
results of operations, properties, assets or liabilities of Medex and its
Subsidiaries (measured by reference to Medex and its Subsidiaries taken as a
whole, and the size of the transactions contemplated by the Offer to Purchase
and the Merger, taken together, and shall not be determined solely by reference
to accounting concepts of materiality unless the matter involves accounting
matters) and the Administrative Agent shall have received a certificate of a
Financial Officer (or other officer acceptable to the Administrative Agent) of
the Borrower to the foregoing effect; provided, however, that to the extent that
such certificate relates to Medex and its Subsidiaries, such certificate may be
to the best of the Borrower's knowledge.
(d) Satisfaction of Conditions in the Merger
Agreement. All of the conditions to the Borrower's and Acquisition Corp.'s
obligations to effect the Merger shall have been satisfied in accordance with
the Merger Agreement with no amendment to, or waiver of, any of the provisions
of the Merger Agreement without the written consent of the Administrative Agent,
and the Administrative Agent shall have received a certificate of an officer of
the Borrower to the foregoing effect.
(e) Certificate of Merger. Acquisition Corp. or Medex
shall have filed a Certificate of Ownership and Merger, duly executed by
Acquisition Corp. with respect to the Merger with the Secretary of State of the
State of Ohio (the "Certificate
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of Merger"), which shall comply as to form and substance with the laws of the
State of Ohio, and the Merger shall have become fully effective under applicable
law.
(f) Supplemental Opinions of Counsel. The
Administrative Agent shall have received (i) a supplemental opinion of Xxxxxx X.
Xxxxxxx, General Counsel of the Borrower and counsel to Acquisition Corp., and
(ii) a supplemental opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx, special Ohio
counsel to the Borrower and Acquisition Corp., each addressed to the
Administrative Agent, the Swing Line Lender and the Lenders, and dated the
Merger Effective Date, substantially in the forms of Exhibit E-3 and E-4,
respectively.
(g) Fees and Expenses of Special Counsel. The fees
and expenses of Special Counsel in connection with the Transactions to the
extent not theretofore paid shall have been paid.
6. ADDITIONAL CONDITIONS OF LENDING
The obligation of each Lender to make any Loan on any
Borrowing Date is subject to the satisfaction of the following conditions
precedent as of the date of such Loan:
6.1. Compliance
On each Borrowing Date and after giving effect to the Loans to
be made thereon (i) there shall exist no Default or Event of Default and (ii)
the representations and warranties contained in the Loan Documents shall be true
and correct with the same effect as though such representations and warranties
had been made on such Borrowing Date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date. Each borrowing by the Borrower shall constitute a
certification by the Borrower as of such Borrowing Date that each of the
foregoing matters is true and correct in all respects.
6.2. Borrowing Request
The Administrative Agent shall have received, a Borrowing
Request, duly executed by an Authorized Signatory of the Borrower.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall:
7.1. Financial Statements and Information
Maintain, and cause each of its Subsidiaries to maintain, a
standard system of accounting in accordance with GAAP, and furnish or cause to
be furnished to the Administrative Agent and each Lender:
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(a) As soon as available, but in any event within 90
days after the end of each fiscal year, a copy of its Consolidated Balance Sheet
as at the end of such fiscal year, together with the related Consolidated
Statements of Income, Stockholders' Equity and Cash Flows as of and through the
end of such fiscal year, setting forth in each case in comparative form the
figures for the preceding fiscal year. The Consolidated Balance Sheets and
Consolidated Statements of Income, Stockholders' Equity and Cash Flows shall be
audited and certified without qualification by the Accountants, which
certification shall (i) state that the examination by such Accountants in
connection with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly, included
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances, and (ii) include the opinion of such
Accountants that such Consolidated financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion. Notwithstanding any of the foregoing, the
Borrower may satisfy its obligation to furnish Consolidated Balance Sheets and
Consolidated Statements of Income, Stockholders' Equity and Cash Flows by
furnishing copies of the Borrower's annual report on Form 10-K in respect of
such fiscal year, together with the financial statements required to be attached
thereto, provided the Borrower is required to file such annual report on Form
10-K with the SEC and such filing is actually made.
(b) As soon as available, but in any event within 45
days after the end of each of the first three fiscal quarters of each fiscal
year, a copy of the Consolidated Balance Sheet of the Borrower as at the end of
each such quarterly period, together with the related Consolidated Statements of
Income and Cash Flows for such period and for the elapsed portion of the fiscal
year through such date, setting forth in each case in comparative form the
figures for the corresponding periods of the preceding fiscal year, certified by
a Financial Officer of the Borrower, as being complete and correct in all
material respects and as presenting fairly the Consolidated financial condition
and the Consolidated results of operations of the Borrower and its Subsidiaries.
Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to
furnish quarterly Consolidated Balance Sheets and Consolidated Statements of
Operations and Cash Flows by furnishing copies of the Borrower's quarterly
report on Form 10-Q in respect of such fiscal quarter, together with the
financial statements required to be attached thereto, provided the Borrower is
required to file such quarterly report on Form 10-Q with the SEC and such filing
is actually made.
(c) Within 45 days after the end of each of the first
three fiscal quarters (120 days after the end of the last fiscal quarter), a
Compliance Certificate of the Borrower, executed by a Financial Officer.
(d) Within 90 days after the end of each fiscal year
of the Borrower, an annual financial forecast, with appropriate schedules, for
the then fiscal year, including, without limitation, a balance sheet, income
statement and statement of cash flow, as prepared for internal distribution to
management of Borrower.
(e) Such other information as the Administrative
Agent or any Lender may reasonably request from time to time.
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7.2. Certificates; Other Information
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of
the Borrower or any of its Subsidiaries in an aggregate amount in excess of
$2,500,000 is declared or shall become due and payable prior to its stated
maturity, or is called and not paid when due, (ii) a default shall have occurred
under, or the holder or obligee of, any note, certificate, security or other
evidence of Indebtedness, with respect to any other Indebtedness of the Borrower
or any of its Subsidiaries has the right to declare Indebtedness in an aggregate
amount in excess of $2,500,000 due and payable prior to its stated maturity
(other than any default or right to accelerate the Indebtedness under the
Existing Medex Bond Documents and the Existing Medfusion Bond Documents to the
extent that such default or such right to accelerate results solely from the
consummation of the Medex Stock Purchase or the Merger), (iii) there shall occur
and be continuing a Default or an Event of Default or (iv) a Change of Control
should occur;
(b) Prompt written notice of: (i) any citation,
summons, subpoena, order to show cause or other document naming the Borrower or
any of its Subsidiaries a party to any proceeding before any Governmental
Authority which would reasonably be expected to have a Material Adverse Effect
or which calls into question the validity or enforceability of any of the Loan
Documents, and include with such notice a copy of such citation, summons,
subpoena, order to show cause or other document, (ii) any lapse or other
termination of any material license, permit, franchise or other authorization
issued to the Borrower or any of its Subsidiaries by any Person or Governmental
Authority, or any refusal by any Person or Governmental Authority to renew or
extend any such material license, permit, franchise or other authorization,
which lapse, termination, refusal or dispute would reasonably be expected to
have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all
(i) material regular, periodic or special reports, schedules and other material
which the Borrower or any of its Subsidiaries may now or hereafter be required
to file with or deliver to any securities exchange or the SEC, or any other
Governmental Authority succeeding to the functions thereof and (ii) material
news releases and annual reports relating to the Borrower or any of its
Subsidiaries;
(d) Prompt written notice in the event that the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows that (i) any
Termination Event with respect to a Pension Plan has occurred or will occur,
(ii) any condition exists with respect to a Pension Plan which presents a
material risk of termination of the Pension Plan, imposition of an excise tax in
a material amount, requirement to provide security to the Pension Plan or other
liability in a material amount on the Borrower, any of its Subsidiaries or any
ERISA Affiliate, (iii) the Borrower, any of its Subsidiaries or any ERISA
Affiliate has applied for a waiver of the minimum funding standard
under Section 412 of the Code with respect to a Pension Plan, (iv) the
aggregate amount of the Unfunded Pension Liabilities under all Pension Plans
would reasonably be expected to have a Material Adverse Effect, (v) the
aggregate amount of Unrecognized Retiree Welfare Liability under all applicable
Employee Benefit Plans would reasonably be expected to have a Material Adverse
Effect, (vi) the Borrower, any of its Subsidiaries or any ERISA Affiliate has
engaged in a Prohibited Transaction with respect to an Employee Benefit Plan,
(vii) the imposition of any tax under Section 4980B(a) of the Code in a
material amount or (viii) the assessment of a civil penalty under Section
502(c) of ERISA in a material amount, together with a certificate of
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a Financial Officer of the Borrower setting forth the details of such event and
the action which the Borrower, such Subsidiary or such ERISA Affiliate proposes
to take with respect thereto.
(e) Prompt written notice in the event that Bor-
rower, any of its Subsidiaries or any ERISA Affiliate shall receive a demand
letter from the PBGC notifying the Borrower, such Subsidiary or such ERISA
Affiliate of any final decision finding liability (other than liability for
premium payments) and the date by which such liability must be paid, together
with a copy of such letter and a certificate of a Financial Officer of the
Borrower setting forth the action which the Borrower, such Subsidiary or such
ERISA Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in
any event by the date such amendment is adopted, a copy of any Pension Plan
amendment that the Borrower, any of its Subsidiaries or any ERISA Affiliate
proposes to adopt which would require the posting of security under Section
401(a)(29) of the Code, together with a certificate of a Financial Officer of
the Borrower setting forth the reasons for the adoption of such amendment.
(g) As soon as possible and in any event by the tenth
day after any required installment or other payment under Section 412 of the
Code owed to a Pension Plan shall have become due and owing and remain unpaid a
copy of the notice of failure to make required contributions provided to the
PBGC by the Borrower, any of its Subsidiaries or any ERISA Affiliate under
Section 412(n) of the Code, together with a certificate of a Financial Officer
setting forth the action which the Borrower, such Subsidiary or such ERISA
Affiliate proposes to take with respect thereto.
(h) If the termination of any Pension Plan would
result in the imposition of any tax under Section 4980 of the Code, then as soon
as possible, but in no event less than 60 days before the due date of the tax, a
certificate of a Financial Officer of the Borrower setting forth the estimated
amount of such tax, any reversion, and the proposed use of such reversion. This
subsection shall apply to a transaction notwithstanding a reduction or complete
elimination of a tax because of the operation of either Sections 4980(d) or
420(a)(3)(A) of the Code.
(i) Prompt written notice of any order, notice, claim
or proceeding received by, or brought against, the Borrower or any of its
Subsidiaries, or with respect to any of the Real Property, under any
Environmental Law which would reasonably be expected to have a Material Adverse
Effect.
(j) Subject to any confidentiality requirements, as
soon as reasonably practicable but in any event at least five Business Days in
advance of any Equity Offering or the issuance of Refinancing Debt, written
notice of such Equity Offering or issuance of Refinancing Debt, as the case may
be, together with copies of all registration statements, if any, filed in
connection therewith.
(k) Prompt written notice of any contest under
Section 7.4, 7.6 or 7.8.
(l) As soon as reasonably practicable but in any
event at least ten days in advance of any merger or consolidation described in
Section 8.3(a), written notice of such merger or consolidation.
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(m) Prompt written notice if the Borrower or any of
its Subsidiaries changes its name, structure or status.
(n) Such other information as the Administrative
Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence
Except as may otherwise be permitted by Sections 8.3 and 8.4,
maintain, and cause each of its Subsidiaries to maintain, its corporate,
partnership or analogous existence, as the case may be, in good standing in the
jurisdiction of its incorporation or formation and in each other jurisdiction in
which the failure so to do would reasonably be expected to have a Material
Adverse Effect provided, however, that any Subsidiary of the Borrower may be
dissolved if such dissolution would not reasonably be expected to have a
Material Adverse Effect.
7.4. Taxes
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all Taxes, upon or with respect to the Borrower or such Subsidiary and
all Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, would reasonably be expected to have a Material
Adverse Effect or become a Lien on Property of the Borrower or such Subsidiary
(other than a Lien described in Section 8.2(a)(i)), unless and to the extent
only that such Taxes, shall be contested in good faith and by appropriate
proceedings diligently conducted by the Borrower or such Subsidiary, provided
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.5. Insurance
Maintain, and cause each of its Subsidiaries to maintain, with
financially sound and reputable insurers insurance with respect to its Property
and businesses against such casualties and contingencies of such types and in
such amounts as is customary in the case of Persons of established reputations
engaged in the same or similar businesses and similarly situated and furnish to
the Administrative Agent, upon written request, full information as to the
insurance carried; provided, however that the Borrower may maintain a
self-insurance program solely for worker's compensation.
7.6. Performance of Obligations
Pay and discharge when due, and cause each of its Subsidiaries
so to do, all lawful Indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, would reasonably be expected to (i)
have a Material Adverse Effect, or (ii) become a Lien upon Property of the
Borrower or any of its Subsidiaries other than a Permitted Lien, unless and to
the extent only that the validity of such Indebtedness, obligation or claim
shall be contested in good faith and by appropriate proceedings diligently
conducted and provided that such reserve or other appropriate provision as shall
be required by the Accountants in accordance with GAAP shall have been made
therefor.
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7.7. Condition of Property
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each of
its Subsidiaries so to do, all Property necessary to the operation of the
Borrower's or such Subsidiary's business, except to the extent that the failure
to do so would not reasonably be expected to have a Material Adverse Effect.
7.8. Observance of Legal Requirements
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, a violation of which would reasonably be expected to
have a Material Adverse Effect, except such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it, provided
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.9. Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice (which
notice shall specify the purpose and nature of the inspection), permit
representatives of the Administrative Agent and each Lender at their expense to
visit the offices of the Borrower and each of its Subsidiaries, to examine the
books and records thereof and Accountants' reports relating thereto, and to make
copies or extracts therefrom, to discuss the affairs of the Borrower and each
such Subsidiary with the respective officers thereof, and to examine and inspect
the Property of the Borrower and each such Subsidiary and to meet and discuss
the affairs of the Borrower and each such Subsidiary with the Accountants,
provided that (i) the Borrower shall have the right to be present during any
such discussions with the Accountants, (ii) unless otherwise agreed to by the
Borrower, no more than an aggregate of four inspections, visits or examinations
shall be conducted in any fiscal year of the Borrower (other than those
conducted after the occurrence and during the continuance of an Event of
Default) and (iii) after the occurrence and during the continuance of an Event
of Default (whether or not the Commitments have been terminated and whether or
not the Loans have been accelerated) all expenses of any visit, inspection or
examination pursuant to this Section shall be paid by the Borrower.
7.10. Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in
full force and effect, all material licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business, except to the extent that the failure to maintain would not reasonably
be expected to have a Material Adverse Effect.
7.11. Financial Covenants
(a) Fixed Charge Coverage Ratio. Maintain at all times a Fixed
Charge Coverage Ratio of not less than 1:75:1.00 for the period from the
Effective Date through January 31, 1998 and 2.00:1.00 thereafter.
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(b) Leverage Ratio. Maintain at all times during the periods
set forth below, a Leverage Ratio of not more than the ratios set forth below:
Period Ratio
Effective Date through
January 31, 1998 4.25:1.00
February 1, 1998 through
July 31, 1999 4.00:1.00
August 1, 1999 through
January 29, 2000 3.75:1.00
January 30, 2000 through
July 29, 2000 3.50:1.00
July 30, 2000 through
August 4, 2001 3.25:1.00
August 5, 2001 and
thereafter 3.00:1.00.
(c) Revenues. Derive at all times not less than 90% of
Consolidated revenues from the lines of business in which (i) the Borrower or
its Subsidiaries engage on the Effective Date and (ii) Medex and its
Subsidiaries engage on the first Borrowing Date and, in each case, any related
business.
7.12. Merger.
Consummate the Merger in accordance with the provisions of
Section 5.3 no later than the earlier of 180 days after the first Borrowing Date
or the date on which the Merger Agreement shall be terminated pursuant to the
provisions thereof.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, the Borrower shall not,
directly or indirectly:
8.1. Indebtedness
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness of the Borrower or
any of its Subsidiaries existing on the Effective Date and Indebtedness of Medex
or any of its Subsidiaries existing on the first Borrowing Date, in each case as
set forth on Schedule 8.1 (other than the Existing Furon Bank Debt which is to
be repaid on the first Borrowing Date), excluding increases or refinancings
thereof, (iii) Indebtedness of Medex existing on the first Borrowing Date under
the Existing Medex Bond Documents in a principal amount not in excess of
$4,000,000, and Indebtedness of Medfusion, Inc. existing on the first Borrowing
Date under the Existing Medfusion Bond Documents in a principal amount not in
excess of $2,750,000, in each
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case including any related letter of credit reimbursement obligations, excluding
increases or refinancings thereof, (iv) Intercompany Indebtedness, (v)
Refinancing Debt in an aggregate amount not in excess of $150,000,000, provided
that (A) the terms and conditions thereof are no less favorable taken as a whole
to the Borrower that the terms and conditions of this Agreement, (B) the
maturity date thereof is not sooner than six months after the Maturity Date, (C)
interest thereon is payable in cash, (D) the Net Issuance Proceeds thereof are
applied to the repayment of the Loans and the reduction of the Aggregate
Revolving Credit Commitment Amount in accordance with Section 2.6 hereof and (E)
the Administrative Agent receives a copy of the agreement, indenture or other
documents governing such Indebtedness, (vi) Capitalized Lease Obligations not to
exceed $5,000,000 in the aggregate, (vii) Contingent Obligations not to exceed
$5,000,000 in the aggregate, (viii) reimbursement obligations in respect of
letters of credit (other than the letters of credit referred to in clause (iii)
above) not to exceed $10,000,000 in the aggregate, (ix) after the receipt by the
Administrative Agent of a satisfactory letter from the lender of the Existing
Medex Bank Debt confirming that all amounts due in respect of the Existing Medex
Bank Debt have been paid and the related line of credit cancelled, other
unsecured Indebtedness not to exceed $5,000,000 in the aggregate, (x) purchase
money Indebtedness and mortgage Indebtedness (other than any such Indebtedness
described in clause (ii) above) incurred in connection with the purchase, after
the date hereof, of any Property, in an aggregate principal amount not to exceed
$10,000,000, (xi) Indebtedness of the Borrower arising out of Interest Rate
Protection Arrangements covering a notional principal amount not in excess of
the aggregate outstanding principal balance of the Loans and the Refinancing
Debt, and (xii) Indebtedness assumed in connection with a Permitted Acquisition
in an aggregate amount not in excess of $2,500,000, provided, however, that such
Indebtedness was not incurred in contemplation of such Permitted Acquisition.
8.2. Liens
(a) Create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for Taxes in the ordinary course of
business which are not delinquent or which are being contested in accordance
with Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (ii) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA), (iii) deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of indebtedness for borrowed money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the
ordinary course of business, (iv) zoning ordinances, easements, rights of way,
minor defects, irregularities, and other similar restrictions affecting real
Property which do not materially adversely affect the value of such real
Property or the financial condition of the Borrower or such Subsidiary or
materially impair its use for the operation of the business of the Borrower or
such Subsidiary, (v) Liens arising by operation of law such as mechanics',
materialmen's, carriers', warehousemen's liens incurred in the ordinary course
of business which are not delinquent or which are being contested in good faith
and by appropriate proceedings diligently conducted, provided that enforcement
of such Liens is stayed pending such contest, (vi) Liens arising out of
judgments or decrees which are being contested in good faith and by appropriate
proceedings diligently conducted, provided that enforcement of such Liens is
stayed pending such contest, (vii) Liens in favor of the Administrative Agent
and the Lenders under the Loan Documents, (viii) Liens on Medex Stock so long as
such Medex Stock constitutes Margin Stock and more than 25% of the assets of the
Borrower and its
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Subsidiaries constitute Margin Stock, (ix) Liens on Property of the Borrower and
its Subsidiaries existing on the Effective Date as set forth on Schedule 8.2 as
renewed or refinanced from time to time, as long as the amounts secured thereby
are not increased, (x) Liens on Property securing Indebtedness permitted under
Section 8.1(xii), provided that (A) such Liens are limited to the Property
acquired in the Permitted Acquisitions and (B) were not created or assumed in
contemplation of such acquisition, (xi) purchase money Liens on Property of the
Borrower or any of its Subsidiaries acquired after the date hereof to secure
Indebtedness of the Borrower permitted by Section 8.1(x), incurred in connection
with the acquisition of such Property, provided that each such Lien is limited
to such Property so acquired, (xii) Liens on Property acquired in a Permitted
Acquisition to the extent that the Indebtedness secured thereby is permitted
pursuant to Section 8.1, (xiii) Liens consisting of leases and subleases granted
to third parties and not interfering in any material respect with the ordinary
conduct of the business of the Borrower and its Subsidiaries, (xiv) Liens
consisting of the interest or title of the lessor or sublessor under any lease
and any Liens arising from UCC financing statements relating solely to leases in
respect of which the Borrower or any of its Subsidiaries is the lessee; (xv)
Liens in favor of Governmental Authorities arising by operation of law to secure
the payment of custom duties in connection with the importation of goods in the
ordinary course of business; and (xvi) Liens consisting of licenses of patents,
trademarks and other intellectual property granted by the Borrower or any of its
Subsidiaries which does not interfere in any material respect with the conduct
of the Borrower's or such Subsidiary's business in the ordinary course.
(b) Subject to clause (viii) of subsection (a) above, enter
into or permit any of its Subsidiaries to enter into, any agreement which
prohibits or limits the ability of the Borrower or such Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except (i) purchase money Liens or capital leases
otherwise permitted by this Agreement (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby) and (ii)
this Agreement.
8.3. Merger, Consolidations and Acquisitions
Consolidate with, be acquired by, merge into or with any
Person, make any Acquisition or enter into any binding agreement to do any of
the foregoing which is not contingent on obtaining the consent of the Required
Lenders, or permit any of its Subsidiaries so to do, except:
(a) provided that immediately before and after giving effect
thereto no Default or Event of Default shall exist, any direct or indirect
wholly-owned Subsidiary of the Borrower may merge or consolidate with the
Borrower or any other direct or indirect wholly-owned Subsidiary of the
Borrower, provided that in the event of a merger of the Borrower and such
wholly-owned Subsidiary, the Borrower shall be the survivor thereof;
(b) subject to the satisfaction of the conditions set forth in
Section 5.2, the Medex Stock Purchase, and Section 5.3, the Merger;
(c) mergers involving Subsidiaries as part of an Acquisition
permitted by subsections (e) or (f) below;
(d) Investments permitted by Section 8.5;
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(e) Acquisitions (other than the Medex Acquisition)
in respect of which the Acquisition Cost exceeds $25,000,000, provided that with
respect to any such Acquisition, (i) no Default or Event of Default shall exist
immediately before or after giving effect to such Acquisition, (ii) the Person
acquired is in the same or a related business as that of the Borrower or any of
its Subsidiaries, or the business or assets being acquired is or is used in the
same or related business to that of the Borrower or any of its Subsidiaries,
(iii) the Borrower will be in compliance with each of the financial covenants
contained in Section 7.11 on a pro-forma basis after giving effect to such
Acquisition and any Indebtedness incurred or assumed in connection therewith
which is permitted by Section 8.1, (iv) immediately after giving effect to each
such Acquisition, all of the representations and warranties contained
in Section 4 shall be true and correct as if then made, except to the extent
such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct
on and as of such earlier date and (v) the Administrative Agent shall have
received a certificate of a Financial Officer of the Borrower to such effect;
and
(f) Acquisitions (other than the Medex Acquisition
and Acquisitions described in subsection (e) above), provided that (i) no
Default or Event of Default shall exist immediately before or after giving
effect to such Acquisition, (ii) the Person acquired is in the same or a related
business as that of the Borrower or any of its Subsidiaries, or the business or
assets being acquired is or is used in the same or related business to that of
the Borrower or any of its Subsidiaries, (iii) the Borrower will be in
compliance with each of the financial covenants contained in Section 7.11 on a
pro-forma basis after giving effect to such Acquisition and any Indebtedness
incurred or assumed in connection therewith which is permitted by Section 8.1,
and (iv) immediately after giving effect to each such Acquisition, all of the
representations and warranties contained in Section 4 shall be true and correct
as if then made, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date.
8.4. Dispositions
Make any Disposition, or permit any of its Subsidiaries so to
do, except:
(a) Dispositions of any Investments permitted under
Section 8.5(a);
(b) Dispositions of Property which, in the rea-
sonable opinion of the Borrower or such Subsidiary, is obsolete or no longer
useful in the conduct of its business;
(c) other Dispositions as to which the following
conditions have been satisfied:
(i) no Default or Event of Default shall
exist immediately before or after giving effect thereto,
(ii) at least 75% of the total consideration
received or to be received therefor by the Borrower or any of its Subsidiaries
shall be payable in cash on or before the closing thereof and the total
consideration shall not be less than the fair market value thereof as reasonably
determined by the Managing Person of the Borrower or such Subsidiary, provided,
however, that with respect to any single Disposition in
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respect of which the total consideration to be paid is less than $2,500,000, all
or any portion of such consideration may be paid by a note or notes of the
buyer,
(iii) in the event that the Net Cash
Proceeds of such Disposition together with the Net Cash Proceeds of all
Dispositions made during the same fiscal year exceed $3,750,000 in the
aggregate, the Aggregate Revolving Credit Commitment Amount and Swing Line
Commitment Amount shall be permanently reduced and the Borrower shall prepay the
Loans at the times and in the amounts specified in Sections 2.6 and 2.7, if
applicable, and
(iv) in the event that the Net Cash Proceeds
of such Disposition together with the Net Cash Proceeds of all Dispositions made
after the Effective Date exceed $35,000,000 in the aggregate, the Administrative
Agent and the Required Lenders shall have consented thereto in writing and the
Administrative Agent and the Lenders shall have received a certificate in
respect thereto signed by an Authorized Signatory of the Borrower identifying
the Property to be sold or otherwise disposed of and stating (x) that
immediately before or after giving effect thereto, no Default or Event of
Default shall exist, (y) that the consideration received or to be received by
the Borrower or such Subsidiary for such Property has been determined by the
Managing Person thereof to be not less than the fair market value of such
Property and (z) the total consideration to be paid in respect of such
Disposition, together with estimates of items to be deducted therefrom in
arriving at the Net Cash Proceeds thereof;
(d) Disposition of the Borrower's structural bearings
division located in Texas;
(e) Dispositions consisting of transfers of assets
(i) by a wholly-owned Subsidiary of the Borrower to another wholly-owned
Subsidiary of the Borrower or to the Borrower and (ii) to joint ventures to the
extent permitted by Section 8.5(i); and
(f) Dispositions of Medex Stock so long as Medex
Stock constitutes Margin Stock and more than 25% of the assets of the Borrower
and its Subsidiaries constitute Margin Stock.
8.5. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Capital Stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds or
credit to, or make any other investment, whether by way of capital contribution,
time deposit or otherwise, in or with any Person, or permit any of its
Subsidiaries so to do, (all of which are sometimes referred to herein as
"Investments") except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the date hereof as set
forth on Schedule 8.5;
(c) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
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(d) Permitted Acquisitions;
(e) advances to employees for moving, entertainment
and travel expenses, drawing accounts and similar expenditures in the ordinary
course of business including under the Borrower's relocation program;
(f) notes received from buyers in connection with
Dispositions permitted by Section 8.4;
(g) Investments by the Borrower or any Subsidiary in
Intercompany Indebtedness;
(h) Investments by Acquisition Corp. in Medex Stock;
(i) other Investments (including contributions of
Property to joint ventures) not in excess of $7,500,000 in the aggregate;
(j) Investments consisting of loans by the Borrower
to the ESOP in connection with the operation of the ESOP in the ordinary course
not in excess of $10,000,000 in the aggregate; and
(k) Investments consisting of the Capital Stock of
Subsidiaries now existing or hereafter created, provided, however, that no
capital contribution or other Investment in any thereof shall be made unless
otherwise permitted by this Section 8.5.
(l) Investments consisting of Interest Rate
Protection Arrangements to the extent permitted by Section 8.1(xi).
8.6. Restricted Payments
Declare or pay any Restricted Payments payable in cash or oth-
erwise or apply any of its Property thereto or set apart any sum
therefor, or permit any of its Subsidiaries so to do, except (i) a wholly-owned
Subsidiary may declare and pay Restricted Payments to the Borrower or to any
other wholly-owned Subsidiary, (ii) provided that immediately before or after
giving effect to such declaration and payment no Default or Event of Default
shall exist, (A) the Borrower may declare and pay Restricted Payments in an
aggregate amount not exceeding 50% of Excess Cash Flow for the immediately
preceding fiscal year, provided that any such Restricted Payment shall be
determined on a noncumulative basis so that such Restricted Payments permitted
to be declared and paid in a fiscal year may not be carried over and paid in a
following year and (B) the Borrower may repay Intercompany Indebtedness in
respect of which it is the obligor and (iii) on or after the first Borrowing
Date but on or prior to the Merger Effective Date and subject to the
satisfaction of the conditions set forth in Section 5.2, (A) Medex may purchase
not more than 526,104 shares of Medex Stock (to the extent not purchased by
Acquisition Corp. pursuant to the Offer to Purchase) from officers and directors
of Medex who are parties to Shareholder Option Agreements and (B) without
duplication and so long as the same are cancelled, Medex or Acquisition Corp.
may purchase not more than an aggregate of 1,157,091 options to purchase Medex
Stock of which (x) 971,501 options are held by officers and directors of Medex
who are parties to Shareholder Option Agreements and (y) the balance thereof are
held by other employees of Medex or its Subsidiaries, provided that the price
paid for such shares and such options shall be equal to the Merger Consideration
under and as defined in the Merger Agreement.
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8.7. Business and Name Changes
Change its fiscal year or materially change the nature of the
business of the Borrower and its Subsidiaries as conducted on the Effective Date
or of Medex and its Subsidiaries as conducted on the first Borrowing Date or
permit any of its Subsidiaries so to do.
8.8. ERISA
Establish or contribute, or permit any of its Subsidiaries so
to do, to any Pension Plan (other than an Existing Pension Plan), cause any
Pension Plan to have a Funded Current Liability Percentage of less than 60%, or
increase benefits, or permit any of its Subsidiaries so to do, under any
Employee Benefit Plan or establish or contribute to any new Employee Benefit
Plan, except in each case to the extent required by law and except to the extent
it would not reasonably be expected to have a Material Adverse Effect.
8.9. Amendments, Etc. of Certain Agreements
Enter into or agree to any amendment, modification or waiver
of any term or condition of (i) its Organizational Documents, the Existing Medex
Bond Documents, the Existing Medfusion Bond Documents and, subject to the
provisions of clause (ii) below, the Offer Documents, in each case in any way
which would adversely affect the interests of the Administrative Agent and the
Lenders under any of the Loan Documents, (ii) the Offer Documents to the extent
that such amendment, modification or waiver mentions BNY, BNY Capital Markets or
describes the Loan Documents or the credit facility established hereunder; or
(iii) any term or condition of any Merger Document, or permit any of its
Subsidiaries so to do.
8.10. Transactions with Affiliates
Subject to Section 8.4(e) become a party to any transaction
with an Affiliate unless the Borrower's Managing Person shall have determined
that the terms and conditions relating thereto are as favorable to the Borrower
as those which would be obtainable at the time in a comparable arms-length
transaction with a Person other than an Affiliate, or permit any of its
Subsidiaries so to do.
8.11. Issuance of Capital Stock
Issue any Capital Stock, or permit any of its Subsidiaries so
to do, provided that if no Default or Event of Default would exist immediately
before or after giving effect thereto, the Borrower or any of its Subsidiaries
may issue additional Capital Stock (other than Disqualified Stock).
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of Default"
hereunder:
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(a) The failure of the Borrower to make any payment
of principal on any Loan when due and payable; or
(b) The failure of the Borrower to make any payment
of interest, Fees, expenses or other amounts payable under any Loan Document or
otherwise to the Administrative Agent with respect to the loan facilities
established hereunder within five days of the date when due and payable; or
(c) The failure of the Borrower to observe or per-
form any covenant or agreement contained in Sections 2.8, 7.3, 7.11 or Section
8; or
(d) The failure of the Borrower to observe or per-
form any other term, covenant, or agreement contained in any Loan Document and
such failure shall have continued unremedied for a period of 30 days after the
Borrower shall have obtained knowledge thereof; or
(e) Any representation or warranty made by the
Borrower (or by an officer thereof on its behalf) in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have been
incorrect or misleading (whether because of misstatement or omission) in any
material respect when made; or
(f) Liabilities and/or other obligations of the
Borrower (other than its obligations under the Loan Documents) or any of its
Subsidiaries, whether as principal, guarantor, surety or other obligor, for
the payment of any Indebtedness in an aggregate amount in excess of $10,000,000
(i) shall become or shall be declared to be due and payable prior to the
expressed maturity thereof, or (ii) shall not be paid when due or within any
grace period for the payment thereof or, (iii) any holder of any such obligation
shall have the right to declare such obligation due and payable or require the
Borrower or such subsidiary to redeem such obligation in each case prior to the
expressed maturity thereof;
(g) The Borrower shall suspend or discontinue its
business or the Borrower or any of its Subsidiaries shall (i) make an assignment
for the benefit of creditors, (ii) generally not be paying its debts as such
debts become due, (iii) admit in writing its inability to pay its debts as they
become due, (iv) file a voluntary petition in bankruptcy, (v) become insolvent
(however such insolvency shall be evidenced), (vi) file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment of
debt, liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (vii) petition or apply to any
tribunal for any receiver, custodian or any trustee for any substantial part of
its Property, (viii) be the subject of any such proceeding filed against it
which remains undismissed for a period of 60 days, (ix) file any answer
admitting or not contesting the material allegations of any such petition filed
against it or any order, judgment or decree approving such petition in any such
proceeding, (x) seek, approve, consent to, or acquiesce in any such proceeding,
or in the appointment of any trustee, receiver, sequestrator, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian, liquidator
or fiscal agent and such order remains in effect for 60 days, or (xi) take any
formal action for the purpose of effecting any of the foregoing or looking to
the liquidation or dissolution of the Borrower or such Subsidiary; or
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(h) An order for relief is entered under the United
States bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any of its Subsidiaries bankrupt or
insolvent, (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any of its Subsidiaries under the United States bankruptcy laws or
any other applicable Federal or state law, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any of its Subsidiaries or of any substantial part
of the Property of any thereof, or (iv) ordering the winding up or liquidation
of the affairs of the Borrower or any of its Subsidiaries, and any such decree
or order continues unstayed and in effect for a period of 60 days; or
(i) Judgments or decrees against the Borrower or any
of its Subsidiaries aggregating in excess of $10,000,000 (unless adequately
insured by a solvent unaffiliated insurance company which has acknowledged
coverage) shall remain unpaid, unstayed on appeal, undischarged, unbonded or
undismissed for a period of 60 days; or
(j) Any Loan Document shall cease, for any reason, to
be in full force and effect (other than in accordance with its terms), or the
Borrower shall so assert in writing or shall disavow any of its obligations
thereunder; or
(k) (i) any Termination Event shall occur; (ii) any
Accumulated Funding Deficiency, whether waived, shall exist with respect to any
Pension Plan; (iii) any Person shall engage in any Prohibited Transaction
involving any Employee Benefit Plan; (iv) the Borrower, any of its Subsidiaries
or any ERISA Affiliate shall fail to pay when due an amount which is payable by
it to the PBGC or to a Pension Plan under Title IV of ERISA; (v) the imposition
of any tax under Section 4980B(a) of the Code; (vi) the assessment of a civil
penalty with respect to any Employee Benefit Plan under Section 502(c) of ERISA;
or (vii) any other event or condition shall occur or exist with respect to an
Employee Benefit Plan, which in the case of each of clauses (i) through (vii),
either individually or in the aggregate would have a Material Adverse Effect.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (g) or (h) above, the Revolving Credit Commitments
of all of the Lenders and the Swing Line Commitment of the Swing Line Lender
shall immediately and automatically terminate and the Loans, all accrued and
unpaid interest thereon and all other amounts owing under the Loan Documents
shall immediately become due and payable, and the Administrative Agent may, and,
upon the direction of the Required Lenders shall, exercise any and all remedies
and other rights provided in the Loan Documents, and (b) if such event is any
other Event of Default, any or all of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, and upon
the direction of the Required Lenders shall, by notice to the Borrower, declare
the Revolving Credit Commitments of all of the Lenders and the Swing Line
Commitment of the Swing Line Lender terminated forthwith, whereupon such
Revolving Credit Commitments and the Swing Line Commitment shall immediately
terminate, and (ii) with the consent of the Required Lenders, the Administrative
Agent may, and upon the direction of the Required Lenders shall, by notice of
default to the Borrower, declare the Loans, all accrued and unpaid interest
thereon and all other amounts owing under the Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable,
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and the Administrative Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided in the Loan
Documents. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. The
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that the Revolving Credit Commitments of all
the Lenders and the Swing Line Commitment of the Swing Line Lender shall have
been terminated or the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section, any funds received by the
Administrative Agent and the Lenders from or on behalf of the Borrower shall be
applied by the Administrative Agent and the Lenders in liquidation of the Loans
and the other obligations of the Borrower under the Loan Documents in the
following manner and order: (i) first, to the payment of interest on, and then
the principal portion of, any Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower; (ii) second, to the payment of
any fees or expenses due the Administrative Agent from the Borrower, (iii)
third, to reimburse the Administrative Agent and the Lenders for any expenses
(to the extent not paid pursuant to clause (ii) above) due from the Borrower
pursuant to the provisions of Section 11.5; (iv) fourth, to the payment of
accrued Fees and all other fees, expenses and amounts due under the Loan
Documents (other than principal and interest on the Loans), (v) fifth, to the
payment pro rata according to the outstanding principal balance of the Loans, of
interest due on the Loans of each Lender; (vi) sixth, to the payment of
principal outstanding on the Loans; and (vii) seventh, to the payment of any
other amounts owing to the Administrative Agent and the Lenders under any Loan
Document.
10. THE ADMINISTRATIVE AGENT
10.1. Appointment
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under the Loan Documents and each Lender
hereby irrevocably authorizes the Administrative Agent to take such action on
its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. The duties of the Administrative Agent shall be
mechanical and administrative in nature, and, notwithstanding any provision to
the contrary elsewhere in any Loan Document, the Administrative Agent shall not
have any duties or responsibilities other than those expressly set forth
therein, or any fiduciary relationship with, or fiduciary duty to, any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into the Loan Documents or otherwise exist against the
Administrative Agent.
10.2. Delegation of Duties
The Administrative Agent may execute any of its duties under
the Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to rely upon, and
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shall be fully protected in, and shall not be under any liability for, relying
upon, the advice of counsel concerning all matters pertaining to such duties.
10.3. Exculpatory Provisions
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except the Administrative Agent
for its own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower or any officer thereof contained in the Loan
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, the Loan Documents or for the value, validity, effectiveness,
genuineness, perfection, enforceability or sufficiency of any of the Loan
Documents or for any failure of the Borrower or any other Person to perform its
obligations thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, the Loan
Documents, or to inspect the Property, books or records of the Borrower or any
of its Subsidiaries. The Lenders acknowledge that the Administrative Agent shall
not be under any duty to take any discretionary action permitted under the Loan
Documents unless the Administrative Agent shall be instructed in writing to do
so by Required Lenders and such instructions shall be binding on all Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or is
contrary to law or any provision of the Loan Documents. The Administrative Agent
shall not be under any liability or responsibility whatsoever, as Administrative
Agent, to the Borrower, any of its Subsidiaries or any other Person as a
consequence of any failure or delay in performance, or any breach, by any Lender
of any of its obligations under any of the Loan Documents.
10.4. Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by a proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may treat
each Lender or the Person designated in the last notice filed with it under this
Section, as the holder of all of the interests of such Lender in its
Loans until written notice of transfer, signed by such Lender (or the Person
designated in the last notice filed with the Administrative Agent) and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent. The Administrative Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability or genuineness
of the Loan Documents or any instrument, document or communication furnished
pursuant thereto or in connection therewith, and the Administrative Agent shall
be entitled to assume that the same are valid, effective and genuine, have been
signed or sent by the proper parties and are what they purport to be. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under the Loan Documents unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate.
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The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request or
direction of the Required Lenders, and such request or direction and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
10.5. Notice of Default
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders and the
Borrower. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
10.6. Non-Reliance on Administrative Agent and Other Lenders
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter,
including any review of the affairs of the Borrower or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any Lender, and based on such documents and information as it has
deemed appropriate made its own evaluation of and investigation into the
business, operations, Property, financial and other condition and
creditworthiness of the Borrower and the value and Lien status of any collateral
security and made its own decision to enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, evaluations and decisions in taking or not taking action under any
Loan Document, and to make such investigation as it deems necessary to inform
itself as to the business, operations, Property, financial and other condition
and creditworthiness of the Borrower and the value and Lien status of any
collateral security. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, Property, financial and other condition or creditworthiness of the
Borrower which at any time may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and hold harmless the
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to the aggregate of the outstanding principal
balance of the Loans (or at any time when no Loans are outstanding, according to
its Commitment Percentage), from and against any and all
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Administrative Agent)
by the Borrower pursuant to the terms of the Loan Documents, that are
subsequently rescinded or avoided, or must otherwise be restored or returned)
which may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the finally adjudicated gross negligence or willful misconduct of
the Administrative Agent. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly upon demand for its pro
rata share of any unpaid fees owing to the Administrative Agent, and any costs
and expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 11.5, to the extent that the
Administrative Agent has not been paid such fees or has not be reimbursed for
such costs and expenses, by the Borrower. The failure of any Lender to reimburse
the Administrative Agent promptly upon demand for its pro rata share of any
amount required to be by the Lenders to the Administrative Agent as provided in
this Section shall not relieve any other Lender of its obligation hereunder to
reimburse the Administrative Agent for its pro rata share of such amount, but no
Lender shall be responsible for the failure of other Lender to reimburse the
Administrative Agent for such other Lender's pro rata share of such amount. The
agreements in this Section shall survive the termination of the Revolving Credit
Commitments of all of the Lenders and the Swing Line Commitment and the payment
of all amounts payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity
BNY and its affiliates may make secured or unsecured loans to,
accept deposits from, issue letters of credit for the account of, act as trustee
under indentures of, and generally engage in any kind of business with, the
Borrower as though BNY were not Administrative Agent hereunder and BNY Capital
Markets did not arrange the transactions contemplated hereby. With respect to
the Revolving Credit Commitment and Swing Line Commitment made or renewed by
BNY, BNY shall have the same rights and powers under the Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall in each case include BNY.
10.9. Successor Administrative Agent
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders and the Borrower a
written notice of its resignation as Administrative Agent under the Loan
Documents, such resignation to be effective upon the earlier of (i) the written
acceptance of the duties of the Administrative Agent under the Loan Documents by
a successor Administrative Agent and (ii) on the 30th day after the date of such
notice. Upon any such resignation, the Required Lenders shall have the right to
appoint from among the Lenders a successor Administrative Agent reasonably
acceptable to the Borrower. If no successor Administrative Agent shall have been
so appointed by the Required Lenders and accepted such appointment in writing
within 30
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days after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which successor Administrative Agent shall be a
commercial bank organized under the laws of the United States or any State
thereof and having a combined capital, surplus, and undivided profits of at
least $100,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent's rights, powers, privileges and duties as
Administrative Agent under the Loan Documents shall be terminated. The Borrower
and the Lenders shall execute such documents as shall be necessary to effect
such appointment. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of the Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it, and any amounts
owing to it, while it was Administrative Agent under the Loan Documents. If at
any time there shall not be a duly appointed and acting Administrative Agent,
the Borrower agrees to make each payment due under the Loan Documents directly
and the Lenders entitled thereto during such time.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
With the written consent of the Required Lenders, the
Administrative Agent and the Borrower may, from time to time, enter into written
amendments, supplements or modifications of the Loan Documents and, with the
consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default or Event of Default and its consequences;
provided, however, that:
(a) no such amendment, supplement, modification, waiver or
consent shall, without the consent of all of the Lenders, (i) increase the
Revolving Credit Commitment Amount of any Lender or the Aggregate Revolving
Credit Commitment Amount (except as permitted by Section 2.5), (ii) extend the
Maturity Date; (iii) decrease the rate, or extend the time of payment, of
interest of, or change or forgive the principal amount or extend the time of
payment of, or change the pro rata allocation of payments in respect of any
Loan, (iv) change the definition of Alternate Currency so as to add any
additional currency as an Alternate Currency, (v) change the provisions of
Sections 3.6, 3.7, 9.1(a), 9.1(b), 11.1 or 11.7(a), or (vi) change the
definition of "Required Lenders";
(b) without the written consent of the Administrative Agent,
no such amendment, supplement, modification or waiver shall amend, modify or
waive any provision of Section 10 or otherwise change any of the rights or
obligations of the Administrative Agent hereunder or under the Loan Documents;
and
(c) without the written consent of the Swing Line Lender, no
such amendment, supplement, modification or waiver shall change the Swing Line
Commitment or change any other term or provision that relates to the Swing Line
Commitment or the Swing Line Loans.
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Any such amendment, supplement, modification or waiver shall
apply equally to each of the Lenders and shall be binding upon the parties to
the applicable Loan Document, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the parties to the
applicable Loan Document, the Lenders and the Administrative Agent shall be
restored to their former position and rights under the Loan Documents to the
extent provided for in such waiver, and any Default or Event of Default waived
shall not extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. The Loan Documents may not be amended
orally or by any course of conduct.
11.2. Notices
All notices, requests and demands to or upon the respective
parties to the Loan Documents to be effective shall be in writing and, unless
otherwise expressly provided therein, shall be deemed to have been duly given or
made when delivered by hand, one Business Day after having been sent by
overnight courier service, or three Business Days after having been deposited in
the mail, certified with return receipt requested (postage prepaid), or, in the
case of notice by telecopy, when sent (provided that the sender shall have
received a confirmation of transmission), addressed as follows in the case of
the Borrower or the Administrative Agent, addressed to the Domestic Lending
Office, in the case of each Lender, or addressed to such other addresses as to
which the Administrative Agent may be hereafter notified by the respective
parties thereto or any future holders of the Loans:
The Borrower:
Furon Company
00000 Xxx Xxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx,
Vice President and
Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Administrative Agent:
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 6366 or 6367
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with a copy to:
The Bank of New York
00000 Xxxxxxxx Xxxxxxxxx - Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Sections 2.3 or 3.3 shall not be
effective until received. Any party to a Loan Document may rely on signatures of
the parties thereto which are transmitted by telecopy or other electronic means
as fully as if originally signed.
11.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties and Certain
Obligations
(a) All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
(b) The obligations of the Borrower under Sections 3.5, 3.6,
3.7, 11.5 and 11.8 shall survive the termination of the Revolving Credit
Commitments of all of the Lenders and the Swing Line Commitment and the payment
of the Loans and all other amounts payable under the Loan Documents.
11.5. Expenses
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Administrative Agent and BNY Capital Markets for all their respective
out-of-pocket costs and expenses reasonably incurred in connection with the
development, preparation, execution and syndication of, the Loan Documents and
any amendment, supplement or modification thereto (whether or not executed or
effective), any documents prepared in connection therewith and the consummation
of the transactions contemplated thereby, including, without limitation, the
reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse
the Administrative Agent and the Lenders for all of their respective costs and
expenses, including, without limitation, reasonable fees and disbursements of
counsel, incurred in connection with (A) any Default or Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
of the obligations of the Borrower under any of the Loan Documents and (B) the
enforcement of this Section and (iii) to pay, indemnify
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and hold each Lender and the Administrative Agent and each of their respective
officers, directors and employees harmless from and against any and all other
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement involving the
Administrative Agent and the Lenders (all the foregoing, collectively, the
"Indemnified Liabilities") and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation to pay Indemnified Liabilities to the
Administrative Agent or any Lender arising from the finally adjudicated gross
negligence or willful misconduct of the Administrative Agent or such Lender or
claims between one indemnified party and another indemnified party. The
agreements in this Section shall survive the termination of the Revolving Credit
Commitments of all of the Lenders and the Swing Line Commitment and the payment
of all amounts payable under the Loan Documents.
11.6. Applicable Lending Offices
(a) Each Lender shall have the right at any time and from time
to time to transfer its Revolving Credit Loans to a different office, provided
that such Lender shall promptly notify the Administrative Agent and the Borrower
of any such change of office. Such office shall thereupon become such Lender's
Domestic Lending Office, Eurodollar Lending Office or Alternate Currency Lending
Office for the applicable Alternate Currency, as the case may be, provided,
however, that no Lender shall be entitled to receive any greater amount under
Section 3.6(a)(ii) or (iii), or Section 3.7, as a result of a transfer of any
such Revolving Credit Loans to a different office of such Lender than it would
be entitled to immediately prior thereto unless such claim would have arisen
even if such transfer had not occurred.
(b) Each Lender agrees that on the occurrence of any event
giving rise to the operation of Section 3.6(a)(ii) or (iii) or Section 3.7, with
respect to any Revolving Credit Loan, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another Applicable Lending Office for such Revolving Credit Loan
affected by such event, provided that such designation is made on such terms
that such Lender and its Applicable Lending Office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the right of
any Lender provided in Sections 3.5, 3.6, 3.7, 11.5 and 11.8.
11.7. Assignments and Participations
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the Loans, and their respective successors and assigns, except that
the Borrower may not assign, delegate or transfer any of its rights or
obligations under the Loan Documents without the prior written consent of the
Administrative Agent and each Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative Agent of its intent to do so, to sell, assign,
transfer or negotiate all or
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any part of its rights and obligations under the Loan Documents to one or more
of its affiliates, to one or more of the other Lenders (or to affiliates of such
other Lenders) or, with the prior written consent of the Borrower, the Swing
Line Lender and the Administrative Agent (which consents shall not be
unreasonably withheld and, in the case of the Borrower, shall not be required if
an Event of Default shall have occurred and be continuing for a period of 90
days with no cure or waiver thereof), to sell, assign, transfer or negotiate all
or any part of its rights and obligations under the Loan Documents to any
Eligible Assignee, provided that (i) each such sale, assignment, transfer or
negotiation (other than sales, assignments, transfers or negotiations (x) to its
affiliates or (y) its entire interest) shall be in a minimum amount of
$5,000,000 and (ii) there shall be paid to the Administrative Agent by it a fee
(an "Assignment Fee") of $3,000. For each assignment, the parties to such
assignment shall execute and deliver to the Administrative Agent for its
acceptance and recording an Assignment and Acceptance Agreement. Upon such
execution, delivery, acceptance and recording by the Administrative Agent, from
and after the effective date specified in such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under the Loan Documents. Upon
any such sale, assignment or other transfer, the Revolving Credit Commitment
Amounts set forth in Exhibit A shall be adjusted accordingly by the
Administrative Agent and a new Exhibit A shall be distributed by the
Administrative Agent.
(c) Each Lender may, with the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld), grant
participations in all or any part of its rights under the Loan Documents to one
or Eligible Assignees, provided that (i) its obligations under the Loan
Documents shall remain unchanged, (ii) it shall remain solely responsible to the
other parties to the Loan Documents for the performance of such obligations,
(iii) the Borrower, the Administrative Agent and the Lenders, as applicable,
shall continue to deal solely and directly with it in connection with its rights
and obligations under the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall be
limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Loans or any fees or other amounts payable under the Loan
Documents, (C) postpone any date fixed for the payment of principal of, or
interest on the Loans or any fees or other amounts payable under the Loan
Documents, (D) release any security interest or Collateral, except to the extent
that such release is specifically provided for in any Loan Document or (E)
release any guarantor under any guarantee. The Borrower acknowledges and agrees
that any such participant shall for purposes of Sections 3.5, 3.6 and 3.7, be
deemed to be a "Lender"; provided, however, the Borrower shall not, at any time,
be obligated to pay any participant in any interest of any Lender hereunder any
sum in excess of the sum which the Borrower would have been obligated to pay to
such Lender in respect of such interest had such Lender not sold such
participation.
(d) If any (i) assignment is made pursuant to subsection (b)
above or (ii) any participation is granted pursuant to subsection (c) above, to
any Person that is not a U.S. Person, such Person shall furnish such
certificates, documents or other evidence to the Borrower and the Administrative
Agent in the case of clause (i), and to the Borrower or the Lender which sold
such participation, as the case may be, in the case of clause (ii), as shall be
required by Sections 3.7(d) and 3.7(e).
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(e) No Lender shall, as between and among the Borrower, the
Administrative Agent, the Swing Line Lender and such Lender, as the case may be,
be relieved of any of its obligations under the Loan Documents as a result of
any sale, assignment, transfer or negotiation of, or granting of participations
in, all or any part of its Loans or its Revolving Credit Commitment of Swing
Line Commitment, except that it shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any part
of its Loans, its Revolving Credit Commitment, the Swing Line Commitment, as the
case may be, pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section , any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Indemnity
The Borrower agrees to defend, protect, indemnify, and hold
harmless the Administrative Agent, BNY Capital Markets and each and all of the
Lenders, each of their respective Affiliates and each of the respective
officers, directors, employees and agents of each of the foregoing (each an
"Indemnified Person" and, collectively, the "Indemnified Persons") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel to such Indemnified Persons in connection with any
investigative, administrative or judicial proceeding, whether direct, indirect
or consequential and whether based on any federal or state laws or other
statutory regulations, including, without limitation, securities and commercial
laws and regulations, under common law or at equitable cause, or on contract or
otherwise, including any liabilities and costs under Environmental Laws,
regulations, or common law principles, arising from or in connection with the
past, present or future operations of the Borrower, its predecessors in
interest, or the past, present or future environmental condition of the Property
of the Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any such Property, or the release or threatened release of any
Hazardous Substance into the environment from any such Property) in any manner
relating to or arising out of the Loan Documents, any commitment letter or fee
letter executed and delivered by the Borrower or any of its Subsidiaries and/or
the Administrative Agent, the capitalization of the Borrower or any of its
Subsidiaries, the Commitments, the making of, management of and participation in
the Loans, or the use or intended use of the proceeds of the Loans hereunder,
provided that the Borrower shall have no obligation under this Section to an
Indemnified Person with respect to any of the foregoing to the extent found in a
final judgment of a court having jurisdiction to have resulted from the gross
negligence or wilful misconduct of such Indemnified Person or arising from
claims between one such Indemnified Person and another such Indemnified Person.
The indemnity set forth herein shall be in addition to any other obligations or
liabilities of the Borrower to each Indemnified Person under the Loan Documents
or at common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments and the payment of all Indebtedness
of the Borrower under the Loan Documents.
11.9. Determination of Dollar Equivalent
For purposes of the Loan Documents, the Dollar Equivalent of
each Alternate Currency Loan designated in an Alternate Currency shall be
recalculated (i) on each
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Borrowing Date, (ii) on each date that the Aggregate Revolving Credit Commitment
Amount or the Swing Line Commitment Amount is reduced and (iii) on the last
Business Day of each month. The Dollar Equivalent for each Alternate Currency
Loan shall remain in effect until the same is recalculated by the Administrative
Agent as provided above and notice of such recalculation is sent to the
Borrower. The Administrative Agent shall promptly notify the Borrower, the Swing
Line Lender and the Lenders of each such determination of the Dollar Equivalent
for each Alternate Currency Loan.
11.10. Limitation of Liability
No claim may be made by the Borrower, any of its Subsidiaries,
any Lender or other Person against the Administrative Agent, any Lender, or any
directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of the Borrower, its Subsidiaries,
any Lender or other Person hereby waives, releases and agrees not to xxx upon
any claim for any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
11.11. Counterparts
This Agreement may be executed by one or more of the parties
thereto on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same document. It shall
not be necessary in making proof of any Loan Document to produce or account for
more than one counterpart signed by the party to be charged. A counterpart of
any Loan Document or to any document evidencing, and of any an amendment,
modification, consent or waiver to or of any Loan Document transmitted by
telecopy shall be deemed to be an originally executed counterpart. A set of the
copies of the Loan Documents signed by all the parties thereto shall be
deposited with each of the Borrower and the Administrative Agent. Any party to a
Loan Document may rely upon the signatures of any other party thereto which are
transmitted by telecopy or other electronic means to the same extent as if
originally signed.
11.12. Adjustments; Set-off
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of the principal of its Loans owing to
such Lender, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9.1(g) or (h), or otherwise), in a greater proportion
than any such payment to and collateral received by any other Lender in respect
of the principal of such other Lender's Loans owing to such other Lender, or
interest thereon, such Benefited Lender shall purchase for cash from each of the
other Lenders such portion of each such other Lender's Loans, and shall provide
each of such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders, provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights
of payment (including, without limitation, rights of set-off, to the extent not
prohibited by
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law) with respect to such portion as fully as if such Lender were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender any
amount owing from such Lender to the Borrower at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Borrower or against anyone else claiming
through or against the Borrower or such trustee in bankruptcy, custodian, debtor
in possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.13. Construction
Each party to a Loan Document represents that it has been
represented by counsel in connection with the Loan Documents and the
transactions contemplated thereby and that the principle that agreements are to
be construed against the party drafting the same shall be inapplicable.
11.14. Governing Law
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws, but including Section 5-1401 of the General
Obligations Law.
11.15. Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.16. Severability
Every provision of the Loan Documents is intended to be sever-
able, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the
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validity, legality and enforceability of the remaining provisions thereof shall
not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or
enforceability of any such term or provision in any other jurisdiction.
11.17. Judgment Currency
(a) The Borrower's obligations under the Loan Documents to
make payments in the Applicable Currency (the "Obligation Currency") shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that, on the Business Day immediately following the date of
such tender or recovery, the Administrative Agent, the Swing Line Lender or the
applicable Lender, as the case may be, may, in accordance with normal banking
procedures, purchase the Obligation Currency with such other currency. If for
the purpose of obtaining or enforcing judgment against the Borrower in any court
or in any jurisdiction, it becomes necessary to convert into any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made at the rate of exchange at which, in accordance with
normal banking procedures in the relevant jurisdiction, the Obligation Currency
could be purchased with the Judgment Currency as of the day immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If the amount of Obligation Currency purchased pursuant to
the last sentence of subsection (a) above is less than the sum originally due in
the Obligation Currency, the Borrower covenants and agrees to indemnify the
applicable recipient against such loss, and if the Obligation Currency so
purchased exceeds the sum originally due to such recipient, such recipient
agrees to remit to the Borrower such excess.
11.18. Integration
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between the Administrative Agent and the Borrower
with respect to certain fees, the Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter thereof and supersede all prior agreements and
understandings among the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter thereof.
11.19. Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably submits to
the jurisdiction of any New York State or Federal court sitting in the City of
New York over any suit, action or proceeding arising out of or relating to the
Loan Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
The Borrower hereby agrees that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
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11.20. Service of Process
Each party to a Loan Document hereby irrevocably consents to
the service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 11.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.21. No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the right
of the Administrative Agent or any Lender to bring proceedings against the
Borrower in the courts of any jurisdiction or jurisdictions in which the
Borrower may be served.
11.22. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR ADMINISTRATIVE
AGENT OF THE ADMINISTRATIVE AGENT OR THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE ADMINISTRATIVE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE
BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS
SECTION.
11.23. Treatment of Certain Information
Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature, all non-public information supplied by either Borrower or
any Subsidiary pursuant to this Agreement which (a) is identified by such Person
as being confidential at the time the same is delivered to such Lender or the
Administrative Agent, or (b) constitutes any financial statement, financial
projections or forecasts, budget, compliance certificate, audit report,
management letter or accountants' certification delivered hereunder, provided,
however, that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) on a confidential basis, to counsel for any of the Lenders or the
Administrative Agent, (iii) to the extent required or requested to bank
examiners, auditors or accountants, and any analogous counterpart thereof acting
in any such capacity, (iv) to the Administrative Agent or the Lenders, (v) in
connection with any suit, action or proceeding
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relating to the Transaction Documents or the Transactions, (vi) to any assignee
or participant (or prospective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant) agrees to keep such
information confidential on substantially the same basis as set forth in this
Section and the Borrower shall have received prior notice of such disclosure, or
(vii) subject to the confidentiality provisions of this Section, to affiliates
of the Administrative Agent and each Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
FURON COMPANY
By: /s/ J. XXXXXXX XXXXX
-----------------------------------
Name: J. Xxxxxxx Xxxxx
---------------------------------
Title: Chairman
---------------------------------
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
THE BANK OF NEW YORK, Individually,
as Swing Line Lender and as
Administrative Agent
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
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