<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED MAY 3, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 0-8088
FURON COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
California 95-1947155
- ---------------------------- --------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
29982 Ivy Glenn Drive
Laguna Niguel, CA 92677
- ----------------------------- ---------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (714) 831-5350
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Number of shares of common stock outstanding as of May 23, 1997: 9,029,066.
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FURON COMPANY
INDEX
PART I - FINANCIAL INFORMATION
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PAGE NO.
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Item 1. Financial Statements
Condensed Consolidated Balance Sheets
May 3, 1997 and February 1, 1997 3
Condensed Consolidated Statements of Income
Three months ended May 3, 1997 and
May 4, 1996 5
Condensed Consolidated Statements of Cash Flows
Three months ended May 3, 1997 and
May 4, 1996 6
Notes to Condensed Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 11
PART II - OTHER INFORMATION 14
- ---------------------------
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ITEM 1. FINANCIAL STATEMENTS
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FURON COMPANY
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
May 3, February 1,
In thousands 1997 1997
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 5,260 $ -
Accounts receivable, less allowance for doubtful
accounts of $1,904 at May 3, 1997 and $2,093 at
February 1, 1997 69,105 72,315
Inventories 57,971 58,611
Deferred income taxes 10,411 10,411
Prepaid expenses and other assets 6,092 5,389
------------------ ---------------------
Total current assets 148,839 146,726
Property, plant & equipment, at cost:
Land 7,013 7,096
Buildings and leasehold improvements 30,385 30,712
Machinery and equipment 155,087 152,998
------------------ ---------------------
192,485 190,806
Less accumulated depreciation and amortization (79,850) (76,214)
------------------ ---------------------
Net property, plant and equipment 112,635 114,592
Intangible assets, at cost less accumulated amortization
of $31,194 at May 3, 1997 and $29,971 at February 1, 1997
73,138 74,640
Other assets 7,876 8,385
------------------ ---------------------
TOTAL ASSETS $ 342,488 $ 344,343
================== =====================
</TABLE>
See accompanying notes.
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<TABLE>
<CAPTION>
FURON COMPANY
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
May 3, February 1,
In thousands, except share data 1997 1997
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Cash, less checks outstanding $ - $ 1,665
Accounts payable 23,860 24,319
Salaries, wages and related benefits payable 10,807 14,141
Current portion of long-term debt 2,076 1,001
Facility rationalization and severance 8,777 10,369
Other current liabilities 19,740 16,407
-------------- --------------
Total current liabilities 65,260 67,902
Long-term debt 172,910 176,983
Other long-term liabilities 23,360 21,933
Deferred income taxes 16,001 16,181
Commitments and contingencies
Stockholders' equity:
Preferred stock without par value, 2,000,000 shares authorized,
none issued or outstanding - -
Common stock without par value, 15,000,000 shares authorized, 9,003,582
shares issued and outstanding at May 3, 1997 and
9,003,140 at February 1, 1997 38,762 38,787
Foreign currency translation adjustment (1,823) (977)
Unearned ESOP shares (3,224) (3,224)
Unearned compensation (191) (238)
Additional pension liability (1,413) (1,413)
Retained earnings 32,846 28,409
-------------- --------------
Total stockholders' equity 64,957 61,344
-------------- --------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 342,488 $ 344,343
============== ==============
</TABLE>
See accompanying notes.
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FURON COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
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<CAPTION>
Three months ended
-------------------------------------------------------
May 3, May 4,
In thousands, except per share amounts 1997 1996
- ------------------------------------------------------------------------------------------------------------------------------------
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Net sales $ 119,649 $ 94,763
Cost of sales 81,330 68,266
------------------ ----------------
Gross profit 38,319 26,497
Selling, general and administrative expenses 28,139 20,005
Other (income), expense (410) (1,090)
Interest expense 3,049 676
------------------ ----------------
Income before income taxes 7,541 6,906
Provision for income taxes 2,564 2,348
------------------ ----------------
Net income $ 4,977 $ 4,558
================== ================
Net income per share of Common Stock $ 0.54 $ 0.50
================== ================
</TABLE>
See accompanying notes.
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FURON COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
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<CAPTION>
Three months ended
-----------------------------------------------------
May 3, May 4,
In thousands 1997 1996
- ------------------------------------------------------------------------------------------------------------------------------------
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OPERATING ACTIVITIES
Net income $ 4,977 $ 4,558
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation 4,231 3,202
Amortization 1,406 778
Provision for losses on accounts receivable 155 105
Deferred income taxes (29) 76
Loss on sale of assets 19 -
Working capital changes, net of acquisitions and disposals:
Accounts receivable 2,063 22
Inventories 640 (2,438)
Accounts payable and accrued liabilities (3,910) (1,567)
Income taxes payable 3,549 558
Other current assets and liabilities, net (1,741) 235
Changes in other long-term operating assets and
liabilities 769 (1,429)
----------------- -----------------
Net cash provided by operating activities 12,129 4,100
INVESTING ACTIVITIES
Acquisition of businesses - (3,294)
Purchases of property, plant and equipment (2,892) (4,505)
Proceeds from sale of businesses 249 406
Proceeds from sale of equipment 57 260
Proceeds from notes receivable - 4
----------------- -----------------
Net cash used in investing activities (2,586) (7,129)
FINANCING ACTIVITIES
Proceeds from long-term debt 4,081 7,000
Principal payments on long-term debt (7,069) (4,000)
Proceeds, net of cancellations, from issuance of
common stock (25) 697
Loan to ESOP - (323)
Dividends paid on common stock (540) (538)
----------------- -----------------
Net cash provided by (used in) financing
activities (3,553) 2,836
EFFECT OF EXCHANGE RATE CHANGES ON CASH (730) 193
----------------- -----------------
INCREASE IN CASH AND CASH EQUIVALENTS 5,260 -
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD - -
----------------- -----------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 5,260 $ -
================= =================
</TABLE>
See accompanying notes.
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FURON COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
May 3, 1997
(Unaudited)
1. GENERAL
The accompanying unaudited consolidated financial statements have been
condensed in certain respects and should, therefore, be read in
conjunction with the consolidated financial statements and related
notes thereto, contained in the Company's Annual Report to Shareholders
on Form 10-K for the fiscal year ended February 1, 1997. Certain
reclassifications have been made to prior year amounts in order to be
consistent with the current year presentation.
In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements contain all adjustments necessary
(consisting only of normal recurring adjustments) to present fairly the
financial position of the Company as of May 3, 1997, and the results of
operations and cash flows for the three months ended May 3, 1997 and
May 4, 1996. Results of the Company's operations for the three months
ended May 3, 1997 are not necessarily indicative of the results to be
expected for the full year.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is effective for financial
statements for periods ending after December 15, 1997. The Company will
be required to change the method currently used to compute earnings per
share and to restate all prior periods. Under the new requirements for
calculating basic earnings per share, the dilutive effect of stock
options will be excluded. The impact is expected to result in an
increase in basic earnings per share for the first quarter ended May 3,
1997 and May 4, 1996 of $0.02 and $0.01 per share, respectively. The
impact of Statement 128 on the calculation of fully diluted earnings
per share for these quarters is not expected to be material.
2. INVENTORIES
Inventories, stated at the lower of cost (first-in, first-out) or
market, are summarized as follows:
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<CAPTION>
May 3, February 1,
In thousands 1997 1997
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Raw materials and purchased parts $ 25,227 $ 22,841
Work-in-process 11,490 14,121
Finished goods 21,254 21,649
------------------ -------------------
$ 57,971 $ 58,611
================== ===================
</TABLE>
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FURON COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
May 3, 1997
(Unaudited)
3. INTANGIBLES
Intangible assets, primarily acquired in business combinations, net of
accumulated amortization, are summarized as follows:
<TABLE>
<CAPTION>
May 3, February 1,
In thousands 1997 1997
---------------------------------------------------------------------------------
<S> <C> <C>
Goodwill $ 41,575 $ 42,016
Other intangible assets 31,563 32,624
------------------ -------------------
$ 73,138 $ 74,640
================== ===================
</TABLE>
4. LONG-TERM DEBT
Long-term debt is summarized as follows:
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May 3, February 1,
In thousands 1997 1997
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Loans under bank credit agreements
due through fiscal year 2000 $ 166,000 $ 169,000
Industrial Revenue Bonds 6,775 6,775
Other 2,211 2,209
----------------- ------------------
Total long-term debt 174,986 177,984
Less current portion 2,076 1,001
----------------- ------------------
Due after one year $ 172,910 $ 176,983
================= ==================
</TABLE>
Effective March 27, 1997, the Company amended and restated its Credit
Agreement to increase the aggregate principal amount from $200.0
million to $250.0 million.
For the three months ended May 3, 1997, the weighted average interest
rate on the loans under bank credit agreements was 6.4%.
Interest paid for the three months ended May 3, 1997 and May 4, 1996
was $2.3 million and $0.8 million, respectively.
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FURON COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
May 3, 1997
(Unaudited)
5. INCOME TAXES
The Company's effective tax rate for the three month periods ended May
3, 1997 and May 4, 1996 was 34%.
Income taxes paid (received) for the three months ended May 3, 1997
and May 4, 1996 were $(0.5 million) and $0.5 million, respectively.
6. CONTINGENCIES
At May 3, 1997, the Company had approximately $1.5 million of foreign
currency hedge contracts outstanding consisting of over-the-counter
forward contracts. The contracts reflect the selective hedging of the
Belgium Franc with varying maturities up to nine months. Net unrealized
gains from hedging activities were not material as of May 3, 1997.
At May 3, 1997, the Company is obligated under irrevocable letters of
credit totaling $9.2 million.
The Company is currently involved in various litigation in the normal
course of business. Management of the Company is of the opinion that
the ultimate resolution of such litigation should not have a material
adverse effect on the Company's consolidated financial position or
results of operations.
Compliance with environmental laws and regulations designed to regulate
the discharge of materials into the environment or otherwise protect
the environment requires continuing management effort and expenditures
by the Company. The Company does not believe that the operating costs
incurred in the ordinary course of business to satisfy air and other
permit requirements, properly dispose of hazardous wastes and otherwise
comply with these laws and regulations form or will form a material
component of its operating costs or have or will have a material
adverse effect on its competitive or consolidated financial positions.
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FURON COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
May 3, 1997
(Unaudited)
6. CONTINGENCIES (CONTINUED)
As of May 3, 1997 the Company's reserves for environmental matters
totaled approximately $1.6 million. The Company or one or more of its
subsidiaries is currently involved in environmental investigation or
remediation directly or as an EPA-named potentially responsible party
or private cost recovery/contribution action defendant at various
sites, including the following "superfund" waste disposal sites:
Solvents Recovery Service of New England in Southington, Connecticut;
Gallup's Quarry in Plainfield, Connecticut; Davis Liquid Waste and
Picillo in Coventry, Rhode Island; Malvern in Malvern, Pennsylvania;
and Granville in Granville, Ohio. While neither the timing nor the
amount of the ultimate costs associated with these matters can be
determined with certainty, based on information currently available to
the Company, including investigations to determine the nature of the
potential liability, the estimated amount of investigation and remedial
costs expected to be incurred and other factors, the Company presently
believes that its environmental reserves should be sufficient to cover
the Company's aggregate liability for these matters and, accordingly,
does not expect them to have a material adverse effect on its
consolidated financial position or results of operations. The actual
costs to be incurred by the Company at each site will depend on a
number of factors, including one or more of the following: the final
delineation of contamination; the final determination of the remedial
action required; negotiations with governmental agencies with respect
to cleanup levels; changes in regulatory requirements; innovations in
investigatory and remedial technology; effectiveness of remedial
technologies employed; and the ultimate ability to pay of any other
responsible parties.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations
Consolidated sales for the three months ended May 3, 1997 of $119.6 million
represented a 26% increase over the same period of the prior year. Comparing
sales for the three months ended May 3, 1997 reflects a 16% increase over the
previous quarter ended February 1, 1997. For the quarter ended May 3, 1997,
Medex recorded sales of $25.3 million.
Along with the net effect of the Medex acquisition, the Company has benefited
from continued strength in specific industrial markets. Domestically, sales to
the healthcare market increased eight fold, all due to Medex, over the same
period of the prior year. Sales into the transportation and industrial equipment
markets remain strong with the main contributors coming from aircraft, truck,
coating and laminating, and food and beverage sectors. Sales into the chemical
processing market have softened, while demand from the semiconductor market was
down 23%, consistent with industry conditions. Excluding Medex, sales for the
three months ended May 3, 1997 of the Company's European operations were down 6%
(before the impact of a stronger U.S. dollar, European sales increased 7%) over
the same period of the prior year.
Gross profit as a percentage of sales for the first quarter ended May 3, 1997
was up 4% from the same period the prior year to 32%. This is the result of
significantly higher margins earned by Medex, which were 45.1% for the quarter
ended May 3, 1997. After removing the effects of acquisitions and divestitures,
for the first quarter ended May 3, 1997 gross profit margin was up 0.7% from
28.3% to 29% over the same period of the prior year. Despite some adverse
product mix, the continued operating productivity improvements and controlled
fixed manufacturing costs were more than enough to offset the impact of
increased raw material prices.
Selling, general and administrative expenses as a percentage of sales for the
first quarter ended May 3, 1997 was 23.5%, up from 21.1% in the same period a
year ago. The increase in operating expense as a percentage of sales from last
year is primarily the result of the Medex addition, at 31.4%. After removing the
effect of acquisitions and divestitures, these same operating expenses were
21.2%, down from 21.4% in the first quarter of the prior year and down from the
22.3% incurred in the fourth quarter of the prior year. The decline in selling,
general and administrative expense as a percentage of sales from last year is
mainly the result of fewer costs incurred related to insurance, utilities and
reduced travel. Product development expenses were up slightly in the first
quarter over the same period prior year as a percentage of sales by 0.1% to
2.8%.
Other income and expense net, for the three months ended May 3, 1997 decreased
from the same period in the prior year due to non-reoccurrence of dividend
income received from one of the Company's investments.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations (continued)
Interest expense for the three months ended May 3, 1997 was up significantly
from the same period in the prior year. This increase is due in full to the debt
incurred for the acquisition of Medex.
Pretax results of operations improved 9% to $7.5 million from $6.9 million for
the three months ended May 3, 1997 and May 4, 1996, respectively. Net of
acquisitions and divestitures, pretax results of operations were up 10% from the
same period last year. The improvement is generally the result of higher sales
and improved margins, somewhat offset by higher operating and interest expenses.
For the three months ended May 3, 1997, Medex earnings before interest and taxes
was 12.9% of sales (Medex earnings before interest and taxes and amortization
was 15.5% of sales). For the three months ended May 3, 1997, consolidated
earnings before interest, taxes, depreciation and amortization was $16.2
million, an increase of $4.7 million, or 40% from the same period in the prior
year.
The Company's effective tax rate for the first quarter ended May 3, 1997 was
34%, unchanged from the same period last year.
Liquidity and Capital Resources
The Company's financial condition remained strong at May 3, 1997. For the three
months ended May 3, 1997, the Company's cash provided by operations was $12.1
million, or $8.0 million higher than the same period last year. The Company's
ratio of current assets to current liabilities improved to 2.3 to 1.0, up from
2.2 to 1.0 at the beginning of the period. Net working capital increased $4.8
million during the first quarter to a total of $83.6 million. Inclusive of the
Medex acquisition, accounts receivable decreased $2.1 million, inventories
decreased $0.6 million and accounts payable and accrued liabilities decreased
$3.9 million from the prior year end. Capital expenditures totaled $2.9 million
and were primarily for renovating existing facilities, leasehold improvements,
or replacement of existing equipment in addition to implementation of the
operating systems to support the Company's structure.
Cash and cash equivalents increased $6.9 million, in addition to a decrease in
long-term debt of $3.0 million which was a result of funds generated by
operations. The Company's debt-to-equity ratio is currently 2.7 to 1.0, a
decrease from 2.9 to 1.0 at the beginning of the period.
The Company continues to believe that it generates sufficient cash flow from its
operations to finance near and long-term internal growth, capital expenditures
and the principal and interests payments on its loan payable to banks. The
Company will
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Liquidity and Capital Resources (continued)
continue to evaluate its employment of capital resources including asset
management and other sources of financing.
The Company continually reviews possible acquisitions and should the Company
make a substantial acquisition, it could require the utilization of the
remaining $85.0 million available on its existing credit facility or financing
from other sources.
Contingencies
For information regarding environmental matters and other contingencies, see
note 6 to the Notes to Condensed Consolidated Financial Statements.
Statement Regarding Forward Looking Disclosure
Except for the historical information contained in this report, certain matters
discussed herein, including (without limitation) the section entitled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" (Item 2) in Part I, are forward looking statements. These statements
involve risks and uncertainties, including (without limitation) the matters
identified in that section and the following: the effect of economic and market
conditions and raw material price increases; the impact of costs, insurance
recoveries and governmental, judicial and other third party interpretations and
determinations in connection with legal and environmental proceedings; and the
impact of current or pending legislation and regulation.
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PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
Not applicable.
Item 2. Changes in Securities.
Not applicable.
Item 3. Defaults Upon Senior Securities.
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
Item 5. Other Information.
Not applicable.
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PART II - OTHER INFORMATION (continued)
Item 6. Exhibits and Reports on Form 8-K.
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<CAPTION>
(a) Exhibits: Page Number
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10.6* Form of Change in Control Agreement
between the Registrant and each of its
executive officers.
10.13 First Amended and Restated Credit Agreement,
dated as of March 27, 1997, by and among the
Registrant, the Lenders party thereto, and
co-agents, documentation agent, swing line lender
and administrative agent, and arranging agent named
therein.
11 Statement re: Computation of Net
Income Per Share
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K:
On March 18, 1997, the Registrant filed with the Commission a Form
8-K/A dated that date, which reported the pro forma financial
information for Furon on a combined basis, reflecting the
acquisition of Medex for the nine months ended November 2, 1996
and the fiscal year ended February 3, 1996.
* A management contract or compensatory plan or arrangement
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PART II (continued)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FURON COMPANY
---------------------------------------
REGISTRANT
/S/MONTY A. HOUDESHELL /S/DAVID L. MASCARIN
- --------------------------------------- --------------------
Monty A. Houdeshell David L. Mascarin
Vice President, Chief Financial Officer Controller
and Treasurer
May 30, 1997
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Exhibit 10.6
CHANGE IN CONTROL AGREEMENT
This Change In Control Agreement ("Agreement") is dated as of
_______________, 1997 and is entered into by and between ____________________
("Executive") and Furon Company, a California corporation ("Furon").
RECITALS
Furon considers it essential to the best interest of Furon and
its shareholders that Executive be encouraged to remain with Furon and continue
to devote full attention to Furon's business notwithstanding the possibility,
threat or occurrence of an Event (as defined below) involving Furon. Furon
believes that it is in the best interest of Furon and its shareholders to
reinforce and encourage the continued attention and dedication of Executive and
to diminish inevitable distractions arising from the possibility of an Event.
Accordingly, to assure Furon that it will have Executive's undivided attention
and services notwithstanding the possibility, threat or occurrence of an Event,
and to induce Executive to remain in the employ of Furon, and for other good and
valuable consideration, the Board of Directors of Furon has, at the
recommendation of its Compensation Committee, caused Furon to enter into this
Agreement.
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TERMS AND CONDITIONS
Executive and Furon hereby agree to the following terms and
conditions:
1. Term of Agreement/Expiration Date. This Agreement shall be
effective as of the date first indicated above and shall remain in effect until
the Expiration Date described below. The "Expiration Date" is the third
anniversary of the date either party gives written notice of the termination of
this Agreement. This Agreement supersedes the Change-in-Control Agreement dated
as of ________________ between the Executive and Furon (the "Prior Agreement").
The Prior Agreement shall have no further force or effect when this Agreement
becomes effective.
2. Event Date. The "Event Date" shall mean the first date
during the term of this Agreement on which an Event (as defined in Section 3)
occurs; provided, however, that if an Event occurs and if Executive's employment
with Furon is terminated within the six-month period prior to the date on which
the Event occurs, the "Event Date" shall mean the date immediately prior to the
date of such termination.
3. Event. "Event" shall mean any of the following:
(a) The dissolution or liquidation of Furon;
2
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(b) The merger, consolidation, or other reorganization of
Furon with or into one or more entities which are not "Subsidiaries"
(as defined below), as a result of which 50% or less of the outstanding
voting securities of the surviving or resulting entity are, or are to
be, owned by former shareholders of Furon;
(c) The sale or transfer of substantially all of Furon's
business and/or assets to a person or entity which is not a Subsidiary; or
(d) A Change in Control. A "Change in Control" shall be
deemed to have occurred if:
(i) any "person", alone or together with all
"affiliates" and "associates" of such person is or becomes (a)
an "Acquiring Person" as defined in the Rights Agreement,
originally dated as of March 21, 1989, by and between Furon
and The Bank of New York, successor Rights Agent, or (b) the
"beneficial owner" of 20% or more of the outstanding voting
securities of Furon (the terms "person", "affiliates",
"associates" and "beneficial owner" are used as such terms are
used in the Securities Exchange Act of 1934 and the General
Rules and Regulations thereunder); provided, however, that a
"Change in Control" shall not be deemed to have occurred if
such "person" is (x) Furon, any Subsidiary or any employee
benefit plan or employee stock plan of Furon or of any
Subsidiary, or any trust or other entity organized,
established or holding shares of such voting
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securities by, for or pursuant to, the terms of any such plan,
or (y) Executive or Executive and one or more other persons
acting as a partnership, limited partnership, syndicate, or
other group for the purpose of acquiring, holding or
disposing of securities of Furon; or
(ii) individuals who at the beginning of any period
of two consecutive calendar years constitute the Board cease
for any reason, during such period, to constitute at least a
majority thereof, unless the election, or the nomination for
election by Furon's shareholders, of each new Board member was
approved by a vote of at least three-quarters of the Board
members then still in office who were Board members at the
beginning of such period.
"Subsidiary" shall mean any corporation or other entity of
which more than 50% of the outstanding voting stock or voting power is
beneficially owned directly or indirectly by Furon. If the approval of
the shareholders of Furon for any of the occurrences set forth in
subsections (a) through (d) is obtained prior to such occurrence, then
such shareholder approval shall constitute the Event.
4. Effective Period. For the purpose of this
Agreement, the "Effective Period" is the period commencing on the Event Date,
and ending on the earlier of the
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Expiration Date or the [INSERT EXECUTIVE'S MULTIPLIER(1)] anniversary of the
Event Date.
5. Termination of Employment.
(a) General. Executive shall be entitled to the payments and
benefits described in Section 6(a) of this Agreement in the event
Executive's employment is terminated (i) by Furon during the Effective
Period for any reason, other than as a result of Executive's death or
for Disability or Cause in accordance with the terms of this Section 5,
or (ii) by Executive for Good Reason pursuant to a Notice of
Termination delivered during the Effective Period.
(1) Death. Executive's employment shall terminate
automatically upon Executive's death.
(2) Disability. If the Disability of Executive occurs
during the Effective Period (pursuant to the definition of
Disability set forth below), Furon may give Executive written
notice in accordance with Section 15 of this Agreement of its
intention to terminate Executive's employment. In such event,
Executive's employment with Furon shall terminate effective on
the 30th day after receipt of such notice by Executive (the
"Disability
- ----------
(1)FOOTNOTE FOR EXHIBIT PURPOSES ONLY: The Multiplier is three for the
Registrant's Chief Executive Officer And Chief Operational Officer and two for
its other executive officers.
5
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Effective Date"), provided that, within the 30 Days after such
receipt, Executive shall not have returned to full-time
performance of Executive's duties. For purposes of this
Agreement, "Disability" shall mean the absence of Executive
from Executive's duties with Furon on a full-time basis for
180 consecutive business days as a result of incapacity due
to mental or physical illness which is both (i) determined to
be total and permanent by a physician selected by Furon or
its insurers and acceptable to Executive or Executive's legal
representative, and (ii) entitles Executive to the payment of
long-term disability benefits from Furon's long-term
disability plan commencing immediately upon the Disability
Effective Date.
(3) Cause. Furon may terminate Executive's
employment during the Effective Period for Cause. For
purposes of this Agreement, "Cause" shall be limited to:
(i) The conviction of Executive for
commission of a felony, or
(ii) The willful engaging by Executive in
gross misconduct which materially and demonstrably
injures Furon. For purposes of this paragraph, no act
or failure to act on the part of Executive shall be
considered "wilful" unless done, or omitted to be
done, by Executive not in good faith and without
reasonable belief that Executive's action or omission
was in the best interest of Furon.
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(4) Good Reason. Executive's employment may be
terminated by Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) The assignment to Executive of any
duties inconsistent in any respect with Executive's
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as in effect on the Event Date, or
any other action by Furon which results in a
diminution in such position, authority, duties or
responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied by Furon
promptly after receipt of notice thereof given by
Executive;
(ii) Any failure by Furon to reappoint
Executive to a position held by Executive on the
Event Date, except as a result of the termination of
Executive's employment by Furon for Cause or
Disability, the death of Executive, or the
termination of Executive's employment by Executive
other than for Good Reason;
(iii) Reduction by Furon in Executive's
base salary as in effect on the date hereof or as the
same may be increased from time-to-time;
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(iv) The taking of any action by Furon
(including the elimination of benefit plans without
providing substitutes therefore or the reduction of
Executive's benefits thereunder) that would
substantially diminish the aggregate value of
Executive's incentive awards and other fringe
benefits including executive benefits and perquisites
from the levels in effect prior to the Event Date;
(v) Furon's requiring Executive to be based
at any office or location which increases the
distance from Executive's home to the office or
location by more than 35 miles from the distance in
effect as of the Event Date;
(vi) Any purported termination by Furon of
Executive's employment otherwise than pursuant to
a Notice of Termination; or
(vii) Any failure by Furon to comply with
and satisfy Section 10(c) of this Agreement.
For purposes of this Section, any good faith determination of "Good
Reason" made by Executive shall be conclusive.
(b) Notice of Termination. Any termination of Executive's
employment by Furon during the Effective Period for any reason, or by
Executive for Good
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Reason, shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 15 of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision
in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
thirty days after the giving of such notice). The facts and
circumstances set forth in any Notice of Termination given by Furon
pursuant to a purported termination of Executive for Cause shall
constitute the exclusive set of facts and circumstances upon which
Furon may rely to attempt to demonstrate that Cause for such
termination existed. The failure by Executive to set forth in the
Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of Executive
hereunder or preclude Executive from asserting such fact or
circumstance in enforcing Executive's rights hereunder.
(c) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated by Furon for Cause, or by
Executive for Good Reason, the date of receipt of the Notice of
Termination or a later date (within the limit set forth in subsection
(b)) specified therein, as the case may be, (ii) if Executive's
employment is terminated by Furon other than for Cause or Disability,
the Date of
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<PAGE> 10
Termination shall be the date on which Furon notifies Executive of
such termination and (iii) if Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be the
date of death of Executive or the Disability Effective Date, as the
case may be.
6. Obligations of Furon upon Termination.
(a) Good Reason, Other Than for Cause, Death or Disability. If
Furon shall terminate Executive's employment other than for Cause or
Disability during the Effective Period, or Executive shall terminate
employment for Good Reason pursuant to a Notice of Termination
delivered during the Effective Period, Furon agrees to make the
payments and provide the benefits described below. Furon shall not be
obligated to make such payments and provide such benefits if the
Executive's employment with Furon terminates as a result of Executive's
death.
(i) Furon shall pay to Executive in a lump sum in
cash within 10 days after the Date of Termination an amount
equal to the product of (1) and (2), where (1) is [INSERT
EXECUTIVE'S MULTIPLIER] and (2) is the sum of (x) Executive's
highest rate of annual base salary in effect at any time in
the two years preceding the Date of Termination and (y) the
highest annual amount of incentive compensation (including
both short and long term compensation) paid in respect of the
most recent three fiscal years ending before the Date of
Termination under Furon's Economic Value Added
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Incentive Compensation Plan or any other incentive
compensation plan of Furon; provided, however, that if the
incentive compensation otherwise payable under Furon's
Economic Value Added Incentive Compensation Plan or any other
incentive compensation plan of Furon in respect of the fiscal
year preceding the fiscal year in which the Date of
Termination occurs has not been paid in full on or before the
Date of Termination, "three" in this clause (y) shall be
replaced by "four." (The amount in this clause (y) is referred
to hereinafter as the "Incentive Compensation Payment.")
(ii) (A) Furon shall pay Executive his or her full
base salary through the Date of Termination at the rate in
effect at the time the Notice of Termination is given plus a
pro-rata share of the Incentive Compensation Payment. Such
pro-rata share shall equal the fraction of Furon's fiscal year
which preceded the Date of Termination. (B) In addition, if
the incentive compensation otherwise payable under Furon's
Economic Value Added Incentive Compensation Plan or any other
incentive compensation plan of Furon in respect of the fiscal
year preceding the fiscal year in which the Date of
Termination occurs has not been paid in full on or before the
Date of Termination, the Company shall pay Executive an amount
equal to the difference between the Incentive Compensation
Payment and the portion (if any) which was actually paid to
the Executive of such incentive compensation in respect of the
fiscal year preceding the fiscal year in which the Date of
Termination occurs.
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(iii) For [INSERT EXECUTIVE'S MULTIPLIER] years after
Executive's Date of Termination, or such longer period as may
be provided by the terms of the appropriate plan, program,
practice or policy, Furon shall continue to provide welfare
benefits and fringe benefits and other perquisites to
Executive and Executive's family at least equal to those which
would have been provided to them if Executive's employment had
not been terminated in accordance with the most favorable
plans, practices, programs or policies of Furon and its
affiliated companies applicable generally to other peer
executives and their families immediately preceding the Date
of Termination; provided, however, that if Executive becomes
reemployed with another employer and is eligible to receive
medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility.
For purposes of determining eligibility (but not the time of
commencement of benefits) of Executive for retiree benefits
pursuant to such plans, practices, programs and policies,
Executive shall be considered to have remained employed until
[INSERT EXECUTIVE'S MULTIPLIER] years after the Date of
Termination and to have retired on the last day of such
period. Following the period of continued benefits referred to
in this subsection, Executive and Executive's family shall be
given the right provided in Section 4980B of the Internal
Revenue Code to elect to continue benefits in all group
medical plans. In the event that Executive's
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participation in any of the plans, programs, practices or
policies of Furon referred to in this subsection is barred
by the terms of such plans, programs, practices or policies,
Furon shall provide Executive with benefits substantially
similar to those which Executive would be entitled as a
participant in such plans, programs, practices or policies.
At the end of the period of coverage, Executive shall have
the option to have assigned to Executive, at no cost and
with no apportionment of prepaid premiums, any assignable
insurance policy owned by Furon and relating specifically to
Executive.
(iv) Furon shall enable Executive to purchase the
automobile, if any, that Furon was providing for Executive at
the time Notice of Termination was given at the wholesale
value of such automobile at such time, as shown in the current
addition of the National Auto Research Publication Blue Book.
At Executive's election, Executive may retain any existing
club memberships upon reimbursement to Furon of any membership
purchase costs or initiation fees and related membership
assessments paid by Furon; provided, however, that Executive
need not repay Furon any periodic dues, food or beverage
charges or other costs previously paid by Furon in connection
with such memberships. Any outstanding relocation loans to
Executive from Furon shall not be accelerated. The obligations
set forth in this Section 6(a)(iv) are hereinafter referred to
as the "Special Obligations."
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(v) Any compensation previously deferred by the
Executive (together with any accrued earnings or interest
thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid (the amount referred to in this
clause (v) and clause (ii) above being referred to as "Accrued
Obligations").
(vi) To the extent not theretofore paid or provided,
Furon shall timely pay or provide Executive any other amounts
or benefits required to be paid or provided or which Executive
is eligible to receive under any plan, program, policy,
practice, contract or agreement of Furon and its affiliated
companies, including but not limited to any benefits payable
to Executive under a plan, policy, practice, etc., referred to
in Section 7 below, (such other amounts and benefits being
hereinafter referred to as "Other Benefits") in accordance
with the terms of such plan, program, policy, practice,
contract or agreement.
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Effective
Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under
this Agreement, other than for timely performance of the
Special Obligations, payment of Accrued Obligations and
payment or provision of Other Benefits. Accrued
Obligations shall be
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paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 10 days of the
Date of Termination.
(c) Disability. If the Executives employment is terminated by
reason of the Executive's Disability during the Effective
Period, this Agreement shall terminate without further
obligations to the Executive, other than for timely
performance of the Special Obligations, payment of Accrued
Obligations and payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of
Termination.
(d) Cause. If Executive's employment shall be
terminated for Cause during the Effective Period, this
Agreement shall terminate without further obligations to
Executive (other than the obligation to pay to Executive
his base salary earned through the Date of Termination and
payment or provision of the Other Benefits).
(e) Other than for Good Reason.
(1) If Executive shall voluntarily terminate
employment, excluding a termination for Good Reason,
within the six month period following the Event Date, this
Agreement shall terminate without further obligations to
Executive, except that Furon shall (i) pay to Executive
his base salary earned through the Date of Termination and
pay or provide the Other
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<PAGE> 16
Benefits, (ii) pay to Executive an additional lump sum
payment as of the Date of Termination equal to six months'
of the Executive's base salary as in effect on the Date of
Termination, and (iii) timely perform the Special
Obligations.
(2) If Executive shall voluntarily terminate
employment, excluding a termination for Good Reason,
within the Effective Period, but after the six month
period following the Event Date, this Agreement shall
terminate without further obligations to Executive, except
that Furon shall (i) pay to Executive his base salary
earned through the Date of Termination and pay or provide
the Other Benefits, and (ii) timely perform the Special
Obligations.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any plan,
program, policy or practice provided by Furon or any of its affiliated companies
and for which Executive may qualify, nor, subject to Section 19, shall anything
herein limit or otherwise affect such rights as Executive may have under any
contract or agreement with Furon or any of its affiliated companies. Amounts
which are vested benefits or which Executive is otherwise entitled to receive
under any plan, policy, practice or program of or any contract or agreement with
Furon or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
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8. Full Settlement. Furon's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which Furon may have against Executive
or others. In no event shall Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement and, except as provided in Section
6(a)(iii), such amounts shall not be reduced whether or not Executive obtains
other employment. Furon agrees to pay, to the full extent permitted by law, all
legal fees and expenses which Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by Furon, Executive or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal Rate, provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code"). Executive shall be entitled to payment of such
legal fees and expenses on a monthly basis during the pendency of any contest.
Accordingly, Furon shall, on the tenth business day of each month following the
Executive's Date of Termination, pay Executive any legal fees and expenses
incurred by Executive as a result of a contest hereunder for which the Executive
presented invoices to Furon on or before the last business day of the preceding
month. Notwithstanding the foregoing, Furon shall be entitled to reimbursement
by the Executive (1) for any legal fees or expenses of Executive in any contest
by Executive about the amount of any payment under this Agreement if it is
determined that Furon did not breach this Agreement and
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Executive's claim was not made in good faith, and (2) to the extent it is
determined that the amount of such legal fees and expenses was not reasonable.
9. Certain Additional Payments by Furon.
(a) In the event that any payment or distribution by Furon to
or for the benefit of Executive (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise,
but determined without regard to any additional payments required under
this Section 9(a)) ("Payments") is determined to be subject to (1) the
excise tax imposed by Section 4999 of the Code or its successor, (2)
any corresponding state excise tax, or (3) any interest or penalties
are incurred by Executive with respect to such state or federal excise
tax (such state or federal excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then Furon shall pay to Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive
of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9, including
whether and when a Gross-Up Payment is
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required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by a
certified public accounting firm as may be designated by Executive and
which is reasonably satisfactory to Furon (the "Accounting Firm"),
which shall provide detailed supporting calculations both to Furon and
Executive within 15 business days of the receipt of request from
Executive or Furon. All fees and expenses of the Accounting Firm shall
be borne solely by Furon. Any Gross-Up Payment, as determined pursuant
to this Section 9(b), shall be paid by Furon to Executive within five
days of the receipt of the Accounting Firm's determination. As a
result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have
been made by Furon should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that
Furon exhausts its remedies pursuant to Section 9(c) and Executive
thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that
has occurred and any such Underpayment shall be promptly paid by Furon
to or for the benefit of Executive.
(c) Executive shall notify Furon in writing of any written
claim actually received by Executive from the Internal Revenue Service
requesting the payment by Executive of an Excise Tax in respect of
Payments. Such notification shall be given as soon as practicable
(which shall be deemed to have occurred if it is given
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within 20 business days) after Executive actually receives such claim
and shall apprise Furon of the nature of such claim, and the date on
which such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the 30-day period following the date
on which it gives such notice to Furon (or such shorter period ending
on the date that any payment of taxes with respect to such claim is
due). If Furon notifies Executive in writing prior to the expiration
of such period that it desires to contest such claim, Executive shall:
(i) Give Furon any information reasonably requested
by Furon relating to such claim,
(ii) Take such action in connection with contesting
such claim as Furon shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by Furon,
(iii) Cooperate with Furon in good faith in order
to contest such claim effectively, and
(iv) Permit Furon to participate in any proceedings
relating to such claim; provided, however, that Furon shall
bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with
such contest and shall indemnify and hold Executive
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harmless, on an after-tax basis, for any Excise Tax or income
tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of
costs and expenses. Without limitation on the foregoing
provisions of this Section 9(c), Furon shall control all
proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole
option, either direct Executive to pay the tax claimed and sue
for a refund or contest the claim in any permissible manner,
and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts,
as Furon shall determine; provided, however, that if Furon
directs Executive to pay such claim and sue for a refund,
Furon shall advance the amount of such payment to Executive,
on an interest-free basis and shall indemnify and hold
Executive harmless, on an after-tax basis, from any Excise Tax
or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect
to any imputed income with respect to such advance; and
further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year
of Executive with respect to which such contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, Furon's control of the contest shall be limited
to issues with respect to which a Gross Up Payment would be
payable hereunder and
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Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced
by Furon pursuant to Section 9(c), Executive becomes entitled to
receive any refund with respect to such claim, Executive shall (subject
to Furon's complying with the requirements of Section 9(c)) promptly
pay to Furon the amount of such refund (together with any interest paid
or credited thereon after taxes applicable thereto). If, after the
receipt by Executive of an amount advanced by Furon pursuant to Section
9(c), a determination is made that Executive shall not be entitled to
any refund with respect to such claim and Furon does not notify
Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
10. Successors.
(a) This Agreement is personal to Executive and without the
prior written consent of Furon shall not be assignable by Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
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(b) This Agreement shall inure to the benefit of and be
binding upon Furon and its successors and assigns.
(c) Furon will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Furon to assume
expressly and agree to perform this Agreement in the same manner and to
the same extent that Furon would be required to perform it if no such
succession had taken place. As used in this Agreement, "Furon" shall
mean Furon as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
11. Arbitration.
(a) Because it is agreed that time will be of the essence in
determining whether any payments are due to Executive under this
Agreement, Executive may, if he desires, submit any claim for payment
under this Agreement or dispute regarding the interpretation of this
Agreement to arbitration. This right to select arbitration shall be
solely that of Executive, and Executive may decide whether or not to
arbitrate in his discretion. The "right to select arbitration" is not
mandatory on Executive, and Executive may choose in lieu thereof to
bring an action in an appropriate civil court. Once an arbitration is
commenced, however, it may not be
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discontinued without the mutual consent of both parties to the
arbitration. During the lifetime of Executive only he can use the
arbitration procedure set forth in this Section.
(b) Any claim for arbitration may be submitted as follows: If
Executive disagrees with Furon regarding the interpretation of this
Agreement and the claim is finally denied by Furon in whole or in part,
such claim may be filed in writing with an arbitrator of Executive's
choice who is selected by the method described in the next three
sentences. The first step of the selection shall consist of Executive's
submitting a list of five potential arbitrators to Furon. Each of the
five arbitrators must be either (1) a member of the National Academy of
Arbitrators located in the State of California or (2) a retired
California Superior Court or Appellate Court judge. Within two weeks
after receipt of the list, Furon shall select one of the five
arbitrators as the arbitrator for the dispute in question. If Furon
fails to select an arbitrator in a timely manner, Executive shall then
designate one of the five arbitrators as the arbitrator for the dispute
in question.
(c) The arbitration hearing shall be held in the county which
includes the address last given prior to the commencement of
arbitration by the Executive for notices under Section 15; provided
that if such is outside the United States, the arbitration hearing
shall be held in Orange County, California. The arbitration hearing
shall be held within thirty days (or as soon thereafter as possible)
after the picking of the arbitrator. No continuance of said hearing
shall be allowed without
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the mutual consent of Executive and Furon. Absence from or
nonparticipation at the hearing by either party shall not prevent the
issuance of an award. Hearing procedures which will expedite the
hearing may be ordered at the arbitrator's discretion, and the
arbitrator may close the hearing in his or her sole discretion when he
or she decides he or she has heard sufficient evidence to satisfy
issuance of an award.
(d) The arbitrator's award shall be rendered as expeditiously
as possible and in no event later than thirty days after the close of
the hearing. In the event the arbitrator finds that Furon has breached
this Agreement, he or she shall order Furon to immediately take the
necessary steps to remedy the breach. The award of the arbitrator shall
be final and binding upon the parties. The award may be enforced in any
appropriate court as soon as possible after its rendition. If an action
is brought to confirm the award, both Furon and Executive agree that no
appeal shall be taken by either party from any decision rendered in
such action.
(e) Furon will be considered the prevailing party in a dispute
if the arbitrator determines (1) that Furon has not breached this
Agreement and (2) the claim by Executive was not made in good faith.
Otherwise, Executive will be considered the prevailing party. In the
event that Executive is the prevailing party, the fee of the arbitrator
and all necessary expenses of the hearing (including all attorneys'
fees incurred by Executive in pursuing his claim and, if the
Executive's home on the Date of Termination was more than 70 miles from
the location of the
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arbitration, his reasonable travel and living expenses during the
arbitration), including the fees of a stenographic reporter if
employed, shall be paid by Furon.
12. Governing Law. The laws of California shall govern the
validity and interpretation of this Agreement, with regard to conflicts of laws.
13. Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
14. Amendment. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
15. Notices. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to Executive:
If to Furon:
Furon Company
29982 Ivy Glenn Drive
Laguna Niguel, CA 92677
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee. Neither the failure of Executive to
give any notice required by this Agreement (including but not limited to the
notice specified in Section 9(c) hereof), nor defects or errors in any notice
given by Executive, shall relieve Furon of any corresponding obligation under
this Agreement unless, and only to the extent that, Furon is actually and
materially prejudiced thereby.
16. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
17. Withholding Taxes. Furon may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
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18. No Waiver. Executive's or Furon's failure to insist upon
strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right Executive or Furon may have
hereunder, including, without limitation, the right of Executive to terminate
employment for Good Reason shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement.
19. At-Will Employment. Executive and Furon acknowledge that,
except as may otherwise be provided under any other written agreement between
Executive and Furon, the employment of Executive by Furon prior to the Event
Date is "at will" and, prior to the Event Date, Executive's employment may be
terminated by either Executive or Furon at any time, in which case Executive
shall have no further rights under this Agreement. This Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
20. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first written
above.
FURON COMPANY
By
_______________________________________
Title
_____________________________________
EXECUTIVE
__________________________________________
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Exhibit 10.13
================================================================================
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
by and among
FURON COMPANY,
THE LENDERS PARTY HERETO,
THE FIRST NATIONAL BANK OF CHICAGO AND
NATIONSBANK OF TEXAS, N.A., AS CO-AGENTS,
ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL BRANCH,
AS DOCUMENTATION AGENT
AND
THE BANK OF NEW YORK,
AS SWING LINE LENDER AND AS ADMINISTRATIVE AGENT
with
BNY CAPITAL MARKETS, INC., AS ARRANGING AGENT
----------------
$250,000,000
----------------
Dated as of March 27, 1997
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION ............................................................ 2
1.1. Definitions .................................................................................... 2
1.2. Principles of Construction .................................................................... 26
2. AMOUNT AND TERMS OF LOANS ............................................................................ 27
2.1. Revolving Credit Loans ........................................................................ 27
2.2. Swing Line Loans .............................................................................. 27
2.3. Procedure for Borrowing ....................................................................... 29
2.4. Disbursement of Funds ......................................................................... 30
2.5. Intentionally Omitted ......................................................................... 31
2.6. Termination or Reduction of Revolving Credit Commitments and Swing Line Commitment ............ 31
2.7. Prepayments ................................................................................... 32
2.8. Use of Proceeds ............................................................................... 34
2.9. Payments ...................................................................................... 34
2.10. Records ...................................................................................... 35
3. INTEREST, FEES, YIELD PROTECTIONS, ETC. .............................................................. 36
3.1. Interest Rate and Payment Dates ............................................................... 36
3.2. Fees .......................................................................................... 38
3.3. Conversions ................................................................................... 38
3.4. Concerning Interest Periods ................................................................... 39
3.5. Indemnification for Loss ...................................................................... 40
3.6. Increased Costs, Illegality, etc. ............................................................. 40
3.7. Taxes ......................................................................................... 42
3.8. Option to Fund ................................................................................ 44
3.9. Substitution of a Lender ...................................................................... 45
4. REPRESENTATIONS AND WARRANTIES ....................................................................... 45
4.1. Subsidiaries; Capitalization .................................................................. 46
4.2. Existence and Power ........................................................................... 46
4.3. Authority and Execution ....................................................................... 46
4.4. Binding Agreement ............................................................................. 46
4.5. Litigation .................................................................................... 46
4.6. Required Consents ............................................................................. 47
4.7. Absence of Defaults; No Conflicting Agreements ................................................ 47
4.8. Compliance with Applicable Laws ............................................................... 48
4.9. Taxes ......................................................................................... 48
4.10. Governmental Regulations ..................................................................... 48
4.11. Federal Reserve Regulations; Use of Loan Proceeds ............................................ 48
4.12. Plans ........................................................................................ 49
4.13. Financial Statements ......................................................................... 49
4.14. Property ..................................................................................... 50
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
4.15. Authorizations ............................................................................... 50
4.16. Environmental Matters ........................................................................ 50
4.17. Solvency ..................................................................................... 51
4.18. Medex Acquisition Documents .................................................................. 51
4.19. No Misrepresentation ......................................................................... 51
4.20. Outstanding Options .......................................................................... 51
5. CONDITIONS TO EFFECTIVENESS .......................................................................... 51
5.1. Evidence of Action ............................................................................ 52
5.2. This Agreement ................................................................................ 52
5.3. Medex Guaranty ................................................................................ 52
5.4. Required Consents ............................................................................. 52
5.5. Opinions of Counsel ........................................................................... 52
5.6. Fees and Expenses of Special Counsel .......................................................... 53
6. CONDITIONS TO ALL LOANS .............................................................................. 53
6.1. Compliance .................................................................................... 53
6.2. Borrowing Request ............................................................................. 53
7. AFFIRMATIVE COVENANTS ................................................................................ 53
7.1. Financial Statements and Information .......................................................... 53
7.2. Certificates; Other Information ............................................................... 54
7.3. Legal Existence ............................................................................... 56
7.4. Taxes ......................................................................................... 57
7.5. Insurance ..................................................................................... 57
7.6. Performance of Obligations .................................................................... 57
7.7. Condition of Property ......................................................................... 57
7.8. Observance of Legal Requirements .............................................................. 57
7.9. Inspection of Property; Books and Records; Discussions ........................................ 58
7.10. Authorizations ............................................................................... 58
7.11. Financial Covenants .......................................................................... 58
8. NEGATIVE COVENANTS ................................................................................... 59
8.1. Indebtedness .................................................................................. 59
8.2. Liens ......................................................................................... 60
8.3. Merger, Consolidations and Acquisitions ....................................................... 61
8.4. Dispositions .................................................................................. 62
8.5. Investments, Loans, Etc. ...................................................................... 63
8.6. Restricted Payments ........................................................................... 64
8.7. Business and Name Changes ..................................................................... 64
8.8. ERISA ......................................................................................... 64
8.9. Amendments, Etc. of Certain Agreements ........................................................ 65
8.10. Transactions with Affiliates ................................................................. 65
8.11. Issuance of Capital Stock .................................................................... 65
9. DEFAULT .............................................................................................. 65
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
9.1. Events of Default ............................................................................. 65
9.2. Contract Remedies ............................................................................. 67
10. THE ADMINISTRATIVE AGENT ............................................................................ 68
10.1. Appointment .................................................................................. 68
10.2. Delegation of Duties ......................................................................... 68
10.3. Exculpatory Provisions ....................................................................... 68
10.4. Reliance by Administrative Agent ............................................................. 69
10.5. Notice of Default ............................................................................ 69
10.6. Non-Reliance on Administrative Agent and Other Lenders ....................................... 70
10.7. Indemnification .............................................................................. 70
10.8. Administrative Agent in Its Individual Capacity .............................................. 71
10.9. Successor Administrative Agent ............................................................... 71
10.10. The Documentation Agent; Co-Agents .......................................................... 72
11. OTHER PROVISIONS .................................................................................... 72
11.1. Amendments and Waivers ....................................................................... 72
11.2. Notices ...................................................................................... 73
11.3. No Waiver; Cumulative Remedies ............................................................... 74
11.4. Survival of Representations and Warranties and Certain Obligations ........................... 74
11.5. Expenses ..................................................................................... 74
11.6. Applicable Lending Offices ................................................................... 75
11.7. Assignments and Participations ............................................................... 75
11.8. Indemnity .................................................................................... 77
11.9. Determination of Dollar Equivalent ........................................................... 78
11.10. Limitation of Liability ..................................................................... 78
11.11. Counterparts ................................................................................ 78
11.12. Adjustments; Set-off ........................................................................ 78
11.13. Construction ................................................................................ 79
11.14. Governing Law ............................................................................... 79
11.15. Headings Descriptive ........................................................................ 79
11.16. Severability ................................................................................ 80
11.17. Judgment Currency ........................................................................... 80
11.18. Integration ................................................................................. 80
11.19. Consent to Jurisdiction ..................................................................... 80
11.20. Service of Process .......................................................................... 81
11.21. No Limitation on Service or Suit ............................................................ 81
11.22. WAIVER OF TRIAL BY JURY ..................................................................... 81
11.23. Treatment of Certain Information ............................................................ 81
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C>
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-1 Form of Opinion of O'Melveney & Myers, LLP Counsel to the Borrower and Medex
Exhibit E-2 Form of Opinion of Donald D. Bradley, General Counsel of the Borrower
Exhibit E-3 Form of Opinion of Vorys, Sater, Seymour and Pease, Special Ohio Counsel to Medex
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Note
Exhibit H Form of Medex Guaranty
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
</TABLE>
<PAGE> 6
FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 27,
1997, 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"), THE FIRST NATIONAL BANK OF CHICAGO and
NATIONSBANK OF TEXAS, N.A., as Co-Agents, and THE BANK OF NEW YORK, as swing
line lender (in such capacity, the "Swing Line Lender"), ABN AMRO BANK N.V., LOS
ANGELES INTERNATIONAL BRANCH, as Documentation Agent, and THE BANK OF NEW YORK,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
RECITALS
A. The Borrower, the lenders party thereto and the Administrative
Agent entered into a Credit Agreement, dated as of November 12, 1996, which
agreement was amended by Amendment No. 1, dated as of December 16, 1996, (as so
amended, the "Existing Credit Agreement"). The Aggregate Revolving Credit
Commitment Amount under the Existing Credit Agreement was $200,000,000.
B. The initial Loans were made under the Existing Credit
Agreement on January 3, 1997 and the Merger was consummated on January 17, 1997
(the "Merger Effective Date").
C. The Borrower, the lenders party thereto and the Administrative
Agent have agreed that Medex will guaranty the Indebtedness of the Borrower
under the Loan Documents and that, in connection therewith and in connection
with the making of certain other amendments, the Existing Credit Agreement will
be amended by restating it in its entirety as set forth herein.
D. Contemporaneously herewith, The Bank of New York ("BNY") with
the consents of the Administrative Agent and the Borrower, entered into a Master
Assignment and Acceptance Agreement, dated as of March 18, 1997, with ABN Amro
Bank N.V., Los Angeles International Branch, The First National Bank of Chicago,
NationsBank of Texas, N.A., The Bank of Nova Scotia, Mellon Bank, N.A., Comerica
Bank, Union Bank of California, N.A., Bank One, Columbus, NA, Banque Nationale
de Paris, Los Angeles Branch, The Industrial Bank of Japan, Limited, Los Angeles
Agency and Wachovia Bank of Georgia, N.A. (the "Assignees"), pursuant to which
BNY assigned a portion of its Commitment to each of the Assignees as set forth
therein.
E. In connection with the execution and delivery of this
Agreement, the Aggregate Revolving Credit Commitment Amount is being increased
to $250,000,000.
F. For convenience, this Agreement is dated as of March 27, 1997
(the "Restatement Effective Date"), and references to certain matters related to
the period prior thereto have been deleted.
<PAGE> 7
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.
"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.
2
<PAGE> 8
"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 First Amended and Restated 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
Jones 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 Jones Telerate Screen (or any
successor page) or (ii) if such a rate does not appear on page 3750 of the Dow
Jones Telerate Screen (or any successor page), 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, 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,
3
<PAGE> 9
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 Jones 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 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.
4
<PAGE> 10
"Applicable Fee Percentage": with respect to the Commitment
Fee, 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 and under
the applicable column:
<TABLE>
<CAPTION>
Pricing Level Applicable Fee Percentage
------------- -------------------------
<S> <C>
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%
</TABLE>
For the period from and including the Original Effective Date
to the Merger Effective Date, the Pricing Level shall be based on the Leverage
Ratio as of the first Borrowing Date (after giving effect to the making of the
first Loans and the consummation of the Medex Stock Purchase) as set forth in a
certificate of a Financial Officer of the Borrower substantially in the form of
the Compliance Certificate and showing the calculation of the Leverage Ratio in
the manner set forth on Schedule 2 thereto (a "Pricing Certificate") delivered
to the Administrative Agent pursuant to Section 5.2(i) of the Existing Credit
Agreement. For the Period from and including the Merger Effective Date to the
first date thereafter on which the Borrower is obligated to deliver a Compliance
Certificate to the Administrative Agent pursuant to Section 7.1(c), the Pricing
Level shall be based on the Leverage Ratio as of the Merger Effective Date
(after giving effect to the making of the Loans to be made thereon and the
consummation of the Merger) as set forth in a Pricing Certificate delivered to
the Administrative Agent pursuant to Section 5.3(h) of the Existing Credit
Agreement. 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.
"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:
5
<PAGE> 11
<TABLE>
<CAPTION>
Pricing Level Applicable Margin
------------- -----------------
<S> <C>
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%
</TABLE>
For the period from and including the Original Effective Date
to the Merger Effective Date, the Pricing Level shall be based on the Leverage
Ratio as of the first Borrowing Date (after giving effect to the making of the
first Loans and the consummation of the Medex Stock Purchase) as set forth in a
Pricing Certificate of a Financial Officer of the Borrower substantially in the
form of the Compliance Certificate and showing the calculation of the Leverage
Ratio in the manner set forth on Schedule 2 thereto delivered to the
Administrative Agent pursuant to Section 5.2(i) of the Existing Credit
Agreement. For the Period from and including the Merger Effective Date to the
first date thereafter on which the Borrower is obligated to deliver a Compliance
Certificate to the Administrative Agent pursuant to Section 7.1(c), the Pricing
Level shall be based on the Leverage Ratio as of the Merger Effective Date
(after giving effect to the making of the Loans to be made thereon and the
consummation of the Merger) as set forth in a Pricing Certificate delivered to
the Administrative Agent pursuant to Section 5.3(h) of the Existing Credit
Agreement. 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) Moody's 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 F.
"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 (ac-
6
<PAGE> 12
ceptable to the Administrative Agent) of such Person and (ii) any Person which
is not a corporation, the general partner or other managing Person thereof.
"Bank One Reimbursement Agreement": the Reimbursement
Agreement, dated as of July 1, 1996, between Medex and Bank One, Columbus, NA,
as same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 8.9.
"Base Consolidated Net Worth": the actual Consolidated Net
Worth of the Borrower as of February 2, 1997.
"Benefited Lender": as defined in Section 11.12.
"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 options 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 maturi-
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<PAGE> 13
ties 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 Moody's, 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 Moody's, 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 Moody's and (v) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) above.
"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 Original 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 Original
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.
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<PAGE> 14
"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 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 Stock Purchase 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.
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<PAGE> 15
"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 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 Net Worth": at any date of determination,
shareholders' equity in the Borrower and its Subsidiaries as of such date
determined on a Consolidated basis in accordance with GAAP; provided that there
shall be excluded from Consolidated Net Worth any amount attributable to Capital
Stock that is, directly or indirectly, required to be redeemed or repurchased by
the issuer thereof at a specified date or upon the occurrence of specified
events or at the election of the holder thereof.
"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
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<PAGE> 16
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.
"Credit Party": the Borrower, Medex and any other Subsidiary
of the Borrower which becomes a party to a Loan Document.
"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, 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 Jones 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
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<PAGE> 17
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 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.
"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
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<PAGE> 18
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 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 Jones
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 Jones Telerate Screen (or
any successor page), 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
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(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 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 Medex Bond Documents": collectively, (i) the Loan
Agreement, dated as of July 1, 1996, between the City of Hilliard, Ohio and
Medex, (ii) the Bank One Reimbursement Agreement, (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.
"Existing Medfusion Bond Documents": collectively, (i) the
Loan Agreement dated as of June 1, 1992, between the Development Authority of
Fulton County and Medfusion, Inc., (ii) the Wachovia Reimbursement Agreement,
(iii) the Trust Indenture dated as of June 1, 1992, between Development
Authority of Fulton County, as issuer, and AmSouth Bank N.A., as trustee, in
each case in connection with the Development Authority of Fulton County
Industrial
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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. For purposes of the calculation of the Fixed Charge Coverage Ratio,
Consolidated Capital Expenditures for any period shall be deemed to be the
greater of $10,000,000 or the actual amount of Consolidated Capital Expenditures
made during such 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.
"Governmental Authority": any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
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<PAGE> 21
"HSR Act": the Hart-Scott-Rodino 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 Subsidiaries or any Affiliates of the Borrower to the
Borrower or to other direct or indirect Subsidiaries or Affiliates of the
Borrower.
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"Interest Payment Date": (i) as to any ABR Advance, the last
day of each calendar quarter 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.
"Japanese Yen": freely transferable lawful money of Japan.
"Judgment Currency": as defined in Section 11.17.
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"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, any promissory
notes issued pursuant to Section 2.10 and the Medex Guaranty.
"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.
"Medex": Medex, Inc., an Ohio corporation.
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"Medex Acquisition": the acquisition of Medex pursuant to the
Medex Acquisition Documents.
"Medex Acquisition Documents": collectively, the Merger
Documents and the Offer Documents.
"Medex Guaranty": the Guaranty and Subordination Agreement, by
and between Medex and the Administrative Agent, substantially in the form of
Exhibit H, as amended, supplemented or otherwise modified from time to time.
"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": as defined in the Recitals.
"Moody's": Moody's 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.
"Original Effective Date": November 12, 1996.
"Outstanding Options": collectively, options to acquire Medex
Stock held by Persons other than those party to Shareholder Agreements, which
options were not terminated on or before the Merger and which survived the
Merger.
"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).
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"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.
"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 Original Effective Date, (ii) the issuance or
promulgation after the Original 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
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Original 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.
"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).
"Restatement Effective Date": as defined in the Recitals.
"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
reduced from time to time pursuant to Section 2.6.
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"Revolving Credit Commitment Period": the period from the
Original 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.
"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": Emmet, Marvin & Martin, LLP, special
counsel to the Administrative Agent.
"Standard & Poor's": Standard & Poor's Rating Services, a
division of The McGraw-Hill 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
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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 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 Original
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 Original
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.
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"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.
"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.
"Wachovia Reimbursement Agreement": the Direct Pay Letter of
Credit Reimbursement Agreement, dated as of July 1, 1996, between Medex (as
successor in interest to Medfusion, Inc.) and Wachovia Bank of Georgia, National
Association, as same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 8.9.
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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 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.
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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.
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
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<PAGE> 33
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.
(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
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<PAGE> 34
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) 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
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<PAGE> 35
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 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
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<PAGE> 36
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. Intentionally Omitted
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 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
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<PAGE> 37
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 has
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).
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
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<PAGE> 38
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) 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.
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(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 made after
the Restatement Effective Date shall be used solely, directly or indirectly, to
(i) repay the Indebtedness of Medex under the Existing Medex Bond Documents and
the Indebtedness of Medfusion, Inc. under the Existing Medfusion Bond Documents,
(ii) make Restricted Payments permitted under Section 8.6(ii)(C), (iii) pay all
of the Fees due hereunder, (iv) pay the reasonable out-of-pocket fees and
expenses incurred by the Borrower in connection with the Transaction Documents
and (v) 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.
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
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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 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 or any other Credit Party'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 the Borrower, substantially in the form of Exhibit G.
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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:
<TABLE>
<CAPTION>
ADVANCES RATE
-------- ----
<S> <C>
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.
</TABLE>
(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
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<PAGE> 42
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 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.
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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 calendar quarter 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 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
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<PAGE> 44
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, the
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).
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.
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<PAGE> 45
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
(or is deemed to 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.
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
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<PAGE> 46
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 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
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<PAGE> 47
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 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"):
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<PAGE> 48
(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
before 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
(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
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<PAGE> 49
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.
(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
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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 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:
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4.1. Subsidiaries; Capitalization
As of the Original 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 Original 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.
4.4. Binding Agreement
The Merger Documents constitute the valid and legally binding
obligations of the Borrower and Acquisition Corp., and the Loan Documents
constitute the valid and legally binding obligations of the Borrower and Medex,
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 rea-
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sonably 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 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
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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 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
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Offer and (ii) after the consummation of the Merger.
4.12. Plans
The only Pension Plans in effect as of the Original 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 Original 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
Original 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 Original 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, 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.
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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,
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
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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.
4.20. Outstanding Options
On the Merger Effective Date, the Outstanding Options entitled
the holders thereof to acquire not more than 3,000 shares of Medex Stock.
5. 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 as a condition to the making of any Loan, the conditions in
Section 6 shall be satisfied:
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5.1. Evidence of Action
(a) The Borrower. The Administrative Agent shall have received
a certificate, dated the Restatement Effective Date, of the Secretary or
Assistant Secretary of the Borrower (i) certifying that the resolutions of its
Managing Person delivered to the Administrative Agent on the Original Effective
Date and its Organizational Documents have not been amended since the Original
Effective Date or, if so, setting forth the same, and (ii) setting forth the
incumbency of its officer or officers who may sign this Agreement, including
therein a signature specimen of such officer or officers.
(b) Medex. The Administrative Agent shall have received a
certificate, dated the Restatement Effective Date, of the Secretary or Assistant
Secretary of Medex (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 Medex Guaranty and the transactions contemplated thereby,
(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 Medex
Guaranty, 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.
5.2. 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).
5.3. Medex Guaranty
The Administrative Agent shall have received the Medex
Guaranty, duly executed by an Authorized Signatory of Medex.
5.4. Required Consents
The Administrative Agent shall have received executed copies
of the consents of Bank One, Columbus, NA and Wachovia Bank of Georgia, National
Association to the execution and delivery by Medex of the Medex Guaranty.
5.5. Opinions of Counsel
The Administrative Agent shall have received (i) an opinion of
O'Melveny & Myers, LLP, counsel to the Borrower, (ii) an opinion of Donald D.
Bradley, Esq., General Counsel of the Borrower, and (iii) an opinion of Vorys,
Sater, Seymour and Pease, special Ohio counsel to Medex, each addressed to the
Administrative Agent, the Swing Line Lender and the Lenders, and dated the
Restatement 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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5.6. 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. CONDITIONS TO ALL LOANS
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 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:
(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
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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 (90 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.
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
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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 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
Borrower, 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.
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<PAGE> 61
(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.
(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
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<PAGE> 62
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.
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
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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
Original Effective Date through January 31, 1998 and 2.00:1.00 thereafter.
(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:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Original 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
</TABLE>
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<PAGE> 64
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
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
</TABLE>
(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 Original Effective Date and (ii) Medex and its
Subsidiaries engage on the first Borrowing Date and, in each case, any related
business.
(d) Consolidated Net Worth. Maintain as of the last day of
each fiscal quarter, Consolidated Net Worth of at least (i) 80% of Base
Consolidated Net Worth, plus (ii) 50% of all positive Consolidated net income of
Borrower and its Subsidiaries earned since February 2, 1997, plus (iii) 50% of
the net proceeds from the issuance of equity securities (other than equity
securities issued pursuant to any of the Borrower's employee benefit plans)
minus the amount of any restructuring charges taken by the Borrower in
connection with the Medex Acquisition to the extent not already taken into
account in determining Base Consolidated Net Worth as of February 2, 1997.
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 Original 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, 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 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)
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<PAGE> 65
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) 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 Original Effective Date, 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, (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 and (xiii)
Contingent Obligations of the Borrower in respect of its guaranty of the
obligations of Medex under each of the Bank One Reimbursement Agreement and the
Wachovia Reimbursement Agreement.
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 Subsidiaries constitute Margin Stock, (ix) Liens on Property of
the Borrower and its Subsidiaries existing on the Original 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
Original Effective Date 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
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<PAGE> 66
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) one or more short-form mergers involving Medex solely for
the purpose of eliminating minority shareholders thereof who held Outstanding
Options, provided that (i) immediately before and after giving effect thereto no
Default or Event of Default shall exist and (ii) Medex is the surviving
corporation;
(c) mergers involving Subsidiaries as part of an
Acquisition permitted by subsections (e) or (f) below;
(d) Investments permitted by Section 8.5;
(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
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<PAGE> 67
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 reasonable
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 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 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
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<PAGE> 68
(iv) in the event that the Net Cash
Proceeds of such Disposition together with the Net Cash Proceeds of all
Dispositions made after the Original 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 Original
Effective Date 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;
(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;
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(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
otherwise 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 and (ii) provided that immediately before and 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, (B) the Borrower may repay Intercompany Indebtedness in respect
of which it is the obligor, (C) the Borrower or Medex may purchase any shares of
Medex Stock with respect to which the holder thereof has exercised dissenter
rights in connection with the Merger (of which there are approximately 300 such
shares) and (D) the Borrower or Medex may acquire, without duplication, the
Outstanding Options and shares of Medex Stock acquired by the exercise of the
Outstanding Options (including, without limitation, through short-form mergers
to the extent permitted by Section 8.3(b)), provided that the price paid
therefor does not exceed the consideration paid for shares of Medex Stock
acquired in the Medex Stock Purchase or in the Merger.
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 Original
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
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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:
(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 perform
any covenant or agreement contained in Sections 2.8, 7.3, 7.11 or Section 8; or
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(d) The failure of any Credit Party to observe or
perform 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
such Credit Party shall have obtained knowledge thereof; or
(e) Any representation or warranty made by any Credit
Party (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
(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
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(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 any
Credit Party shall so assert in writing or shall disavow any of its obligations
thereunder; or
(k) The Medex Guaranty, for any reason other than the
satisfaction in full of all obligations of the Borrower under this Agreement,
ceases to be in full force and effect or is declared to be null and void, or
Medex denies that it has any further liability, including, without limitation,
with respect to future advances by Lenders, under the Medex Guaranty or gives
notice to such effect; or
(l) (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,
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,
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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 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
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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 other Credit Party 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. 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
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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 or any other Credit Party 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 or any other Credit
Party 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 or any other Credit Party
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 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
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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 or any other Credit Party 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 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
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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.
10.10. The Documentation Agent; Co-Agents
Neither the Documentation Agent nor either Co-Agent shall have
any duties or obligations under the Loan Documents in its capacity as
Documentation Agent or a Co-Agent, as the case may be.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
With the written consent of the Required Lenders, the
Administrative Agent, the Borrower and any other Credit Party thereto 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, (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), (vi) change the definition of "Required Lenders" or (vii) release
Medex from its obligations under the Medex Guaranty;
(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
29982 Ivy Glenn Drive
Laguna Niguel, California 92677
Attention: Monty A. Houdeshell,
Vice President and
Chief Financial Officer
Telephone: (714) 831-5350
Telecopy: (714) 643-1548
The Administrative Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Kalyani Bose
Telephone: (212) 635-4693
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
10990 Wilshire Boulevard - Suite 1125
Los Angeles, California 90024
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Attention: Rebecca K. Levine,
Assistant Vice President
Telephone: (310) 996-8659
Facsimile: (310) 996-8667
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 or any other Credit Party under any of the
Loan Documents and (B) the enforcement of this Section and (iii) to pay,
indemnify 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,
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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 the 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
neither the Borrower nor any other Credit Party may 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 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
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<PAGE> 81
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 and, in
the case a participation granted by a Lender to one of its affiliates, shall not
be required), grant participations in all or any part of its rights under the
Loan Documents to one or more 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).
(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
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<PAGE> 82
or 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, any other Credit Party, or
their respective 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 Credit
Parties under the Loan Documents.
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<PAGE> 83
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 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 sue 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,
78
<PAGE> 84
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 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 or any other Credit Party, any such notice being expressly waived
by the Borrower and each such other Credit Party to the extent not prohibited by
applicable law, to set-off and apply against any indebtedness, whether matured
or unmatured, of the Borrower or such other Credit Party, as the case may be, to
such Lender any amount owing from such Lender to the Borrower or such other
Credit Party, as the case may be, 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 such other Credit Party, as the case may be, 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 such other Credit Party, as the case may be, or against anyone else
claiming through or against the Borrower or such other Credit Party, as the case
may be, 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.
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<PAGE> 85
11.16. Severability
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the 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.
Each Credit Party hereby agrees that a final
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<PAGE> 86
judgment in any such suit, action or proceeding brought in such a court, after
all appropriate appeals, shall be conclusive and binding upon it.
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 any
Credit Party in the courts of any jurisdiction or jurisdictions in which such
Credit Party may be served.
11.22. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND CREDIT PARTIES 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, EACH
CREDIT PARTY 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. EACH CREDIT PARTY 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
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<PAGE> 87
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 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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<PAGE> 88
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:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
THE BANK OF NEW YORK, Individually, as
Swing Line Lender and as Administrative
Agent
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH, Individually, and as
Documentation Agent
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
<PAGE> 89
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, and as Co-Agent
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
NATIONSBANK OF TEXAS, N.A., Individually,
and as Co-Agent
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
THE BANK OF NOVA SCOTIA
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
MELLON BANK, N.A.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
COMERICA BANK
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
<PAGE> 90
UNION BANK OF CALIFORNIA, N.A.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
BANK ONE, COLUMBUS, NA
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
BANQUE NATIONALE DE PARIS
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
<PAGE> 91
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
WACHOVIA BANK OF GEORGIA, N.A.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
<PAGE> 1
EXHIBIT 11
FURON COMPANY
Computation of Net Income Per Share
<TABLE>
<CAPTION>
Three months ended
---------------------------------------------------------
May 3, May 4,
1997 1996
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
PRIMARY NET INCOME PER SHARE
Earnings:
Net income $ 4,977,000 $ 4,558,000
=================== =================
Shares:
Weighted average number of common
shares outstanding 8,923,429 8,861,410
Shares issuable from assumed exercise
of stock options 232,078 218,236
------------------- -----------------
Average shares as adjusted 9,155,507 9,079,646
=================== =================
Primary net income per share $ 0.54 $ 0.50
=================== =================
FULLY DILUTED NET INCOME PER SHARE
Earnings:
Net income $ 4,977,000 $ 4,558,000
=================== =================
Shares:
Weighted average number of common
shares outstanding 8,923,429 8,861,410
Shares issuable from assumed exercise
of stock options 259,023 252,221
------------------- -----------------
Average shares as adjusted for
full dilution 9,182,452 9,113,631
=================== =================
Fully diluted net income per share $ 0.54 $ 0.50
=================== =================
</TABLE>
17
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's unaudited condensed statements of income, condensed balance sheets and
condensed statements of cash flows and is qualified in its entirety by reference
to such financial statements contained within the Company's Form 10-Q for the
three months ended May 3, 1997.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S.DOLLAR
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-END> MAY-3-1997
<EXCHANGE-RATE> 1
<CASH> 5,260
<SECURITIES> 0
<RECEIVABLES> 71,009
<ALLOWANCES> 1,904
<INVENTORY> 57,971
<CURRENT-ASSETS> 148,839
<PP&E> 192,485
<DEPRECIATION> 79,850
<TOTAL-ASSETS> 342,488
<CURRENT-LIABILITIES> 65,260
<BONDS> 6,775
0
0
<COMMON> 38,762
<OTHER-SE> 26,195
<TOTAL-LIABILITY-AND-EQUITY> 342,488
<SALES> 119,649
<TOTAL-REVENUES> 119,649
<CGS> 81,330
<TOTAL-COSTS> 109,469
<OTHER-EXPENSES> (410)
<LOSS-PROVISION> 155
<INTEREST-EXPENSE> 3,049
<INCOME-PRETAX> 7,541
<INCOME-TAX> 2,564
<INCOME-CONTINUING> 4,977
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,977
<EPS-PRIMARY> 0.54
<EPS-DILUTED> 0.54
</TABLE>
