<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1998
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _____________ to ________________
Commission file number 0-22726
SAFESKIN CORPORATION
--------------------
(Exact name of registrant as specified in its charter)
Florida 59-2617525
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(State or other jurisdiction (IRS Employer ID No.)
of incorporation or organization)
12671 High Bluff Drive, San Diego, California 92130
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(Address of principal executive offices)
(619) 794-8111
--------------
(Registrant's telephone number, including area code)
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 [ ]
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at October 31, 1998
Common Stock, par value $0.01 per share 54,558,517
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SAFESKIN CORPORATION
INDEX
<TABLE>
<CAPTION>
Page Number
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<S> <C>
PART I: Financial Information............................................ 1
ITEM 1. Financial Statements............................................. 1
Condensed Consolidated Balance Sheets at September 30, 1998 and
December 31, 1997................................................ 2
Condensed Consolidated Statements of Operations for the three
months ended September 30, 1998 and 1997......................... 3
Condensed Consolidated Statements of Operations for the nine
months ended September 30, 1998 and 1997......................... 4
Condensed Consolidated Statements of Cash Flows for the nine
months ended September 30, 1998 and 1997......................... 5
Consolidated Statements of Comprehensive Income for the three
months ended September 30, 1998 and 1997......................... 6
Consolidated Statements of Comprehensive Income for
the nine months ended September 30, 1998 and 1997 ............... 7
Notes to Condensed Consolidated Financial Statements............. 8
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations............................................ 10
PART II: Other Information................................................ 23
ITEM 6. Exhibits and Reports on Form 8-K................................. 23
SIGNATURES....................................................... 24
</TABLE>
<PAGE> 3
PART I: FINANCIAL INFORMATION
ITEM 1. Financial Statements
<TABLE>
<CAPTION>
INDEX PAGE
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<S> <C>
Condensed Consolidated Balance Sheets at September 30, 1998
and December 31, 1997................................................ 2
Condensed Consolidated Statements of Operations for
the three months ended September 30, 1998 and 1997................... 3
Condensed Consolidated Statements of Operations for
the nine months ended September 30, 1998 and 1997.................... 4
Condensed Consolidated Statements of Cash Flows for the
nine months ended September 30, 1998 and 1997........................ 5
Consolidated Statements of Comprehensive Income for the
three months ended September 30, 1998 and 1997 ...................... 6
Consolidated Statements of Comprehensive Income for the
nine months ended September 30, 1998 and 1997 ....................... 7
Notes to Condensed Consolidated Financial Statements................. 8
</TABLE>
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SAFESKIN CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1998 AND DECEMBER 31, 1997
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
(UNAUDITED)
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<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ........................ $ 39,198,332 $ 23,916,959
Accounts receivable, net ......................... 40,070,349 22,195,828
Inventory ........................................ 34,836,237 21,242,732
Other current assets ............................. 8,953,165 5,692,369
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Total current assets ...................... 123,058,083 73,047,888
Property, plant and equipment, net ..................... 101,186,324 52,904,271
Intangibles and other assets ........................... 34,648,776 12,568,245
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Total assets .............................. $ 258,893,183 $ 138,520,404
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable ................................. $ 11,098,686 $ 6,922,540
Accrued liabilities .............................. 15,150,327 22,924,623
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Total current liabilities ................. 26,249,013 29,847,163
Long-term debt ......................................... 122,350,959 --
Deferred income taxes and other liabilities ............ 7,558,832 2,094,928
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Total liabilities ......................... 156,158,804 31,942,091
Commitments and contingencies
Shareholders' equity:
Preferred stock; $.01 par value; 10,000,000 shares
authorized and no shares outstanding ........ -- --
Common stock; $.01 par value; 80,000,000 shares
authorized; 54,551,567 shares
and 52,964,224 shares outstanding .......... 545,516 529,642
Additional paid-in-capital ....................... 56,085,319 47,517,453
Treasury stock; 1,869,900 and 0 shares held ...... (70,432,858) --
Accumulated other comprehensive loss ............. (32,145,562) (45,687,717)
Retained earnings ................................ 148,681,964 104,218,935
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Total shareholders' equity ................. 102,734,379 106,578,313
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Total liabilities and shareholders'
equity ..................................... $ 258,893,183 $ 138,520,404
============= =============
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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SAFESKIN CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
1998 1997
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<S> <C> <C>
Net sales ......................................... $ 61,567,870 $ 46,897,491
Cost of goods sold ................................ 29,595,838 26,632,198
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Gross profit ............................ 31,972,032 20,265,293
------------ ------------
Operating expenses:
Selling ....................................... 6,737,474 4,313,133
Research and development ...................... 1,371,922 934,394
General and administrative .................... 7,498,105 4,077,681
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Total operating expenses ................ 15,607,501 9,325,208
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Income from operations .................. 16,364,531 10,940,085
Interest expense (income), net .................... 758,145 (211,726)
Other income, net ................................. (875,781) (1,842,999)
------------ ------------
Income before income tax provision ................ 16,482,167 12,994,810
Income tax provision .............................. 329,644 1,435,168
------------ ------------
Net income ........................................ $ 16,152,523 $ 11,559,642
============ ============
Per share amounts:
Earnings per share of common stock
and common stock equivalents outstanding:
Basic ..................................... $ .30 $ .22
Diluted ................................... .27 .20
Weighted average number of shares of common
stock and common stock equivalents outstanding:
Basic ..................................... 53,534,207 52,360,730
Diluted ................................... 60,528,350 59,077,039
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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SAFESKIN CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
1998 1997
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<S> <C> <C>
Net sales ......................................... $ 173,506,301 $ 133,013,441
Cost of goods sold ................................ 82,940,251 74,477,935
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Gross profit ............................ 90,566,050 58,535,506
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Operating expenses:
Selling ....................................... 18,509,596 13,505,623
Research and development ...................... 4,886,141 2,519,819
General and administrative .................... 19,549,313 11,350,084
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Total operating expenses ................ 42,945,050 27,375,526
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Income from operations .................. 47,621,000 31,159,980
Interest expense (income), net .................... 598,479 (544,901)
Other income, net ................................. (915,763) (1,217,468)
------------- -------------
Income before income tax provision ................ 47,938,284 32,922,349
Income tax provision .............................. 3,475,255 3,669,099
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Net income ........................................ $ 44,463,029 $ 29,253,250
============= =============
Per share amounts:
Earnings per share of common stock
and common stock equivalents outstanding:
Basic ..................................... $ .83 $ .56
Diluted ................................... .74 .50
Weighted average number of shares of common
stock and common stock equivalents outstanding:
Basic ..................................... 53,274,056 52,088,524
Diluted ................................... 60,451,759 58,050,467
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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<PAGE> 7
SAFESKIN CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
1998 1997
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<S> <C> <C>
Cash flows from operating activities:
Net income ....................................... $ 44,463,029 $ 29,253,250
Adjustments to reconcile net income to cash
provided by operating activities:
Depreciation and amortization ............... 8,795,714 5,198,523
Exchange gain ............................... (453,193) (8,517,860)
Loss on disposal of equipment ............... 14,501 39,450
Changes in operating assets and liabilities:
Accounts receivable, net ............... (15,368,251) (619,228)
Inventory .............................. (12,040,695) (608,819)
Other assets ........................... (7,572,955) 1,174,512
Accounts payable and accrued liabilities (4,314,071) 16,465,820
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Net cash provided by operating activities ... 13,524,079 42,385,648
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Cash flows from investing activities:
Payments for acquisitions ........................ (14,346,460) (14,463,092)
Proceeds from sale of subsidiary ................. 574,703 --
Purchase of property, plant and equipment ........ (44,465,409) (25,807,033)
Proceeds from sale of equipment .................. -- 24,654
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Net cash used by investing activities ....... (58,237,166) (40,245,471)
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Cash flows from financing activities:
Increase in long-term debt ....................... 122,350,959 --
Proceeds from issuance of common stock ........... 7,019,739 3,368,621
Repurchase of common stock ....................... (70,432,858) --
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Net cash provided by financing activities ... 58,937,840 3,368,621
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Effect of exchange rate changes on cash ................ 1,056,620 (1,556,215)
------------- -------------
Net increase in cash and cash equivalents .............. 15,281,373 3,952,583
Cash and cash equivalents at beginning of period ....... 23,916,959 16,265,468
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Cash and cash equivalents at end of period ............. $ 39,198,332 $ 20,218,051
============= =============
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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<PAGE> 8
SAFESKIN CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
1998 1997
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<S> <C> <C>
Net income ................................... $ 16,152,523 $ 11,559,642
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments.. 7,294,106 (27,630,996)
------------ ------------
Comprehensive income (loss) .................. $ 23,446,629 $(16,071,354)
============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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<PAGE> 9
SAFESKIN CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(UNAUDITED)
<TABLE>
<CAPTION>
1998 1997
------------ ------------
<S> <C> <C>
Net income ................................... $ 44,463,029 $ 29,253,250
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments.. 13,142,155 (25,970,478)
------------ ------------
Comprehensive income ......................... $ 57,605,184 $ 3,282,772
============ ============
</TABLE>
The accompanying notes are an integral part of these
condensed financial statements.
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<PAGE> 10
SAFESKIN CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements contain all adjustments, which consist
only of normal and recurring adjustments, necessary for a fair
presentation of results for the periods indicated. The results of any
interim period are not necessarily indicative of results for the full
year. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. These condensed
consolidated financial statements should be read in conjunction with the
consolidated financial statements and related notes thereto for the year
ended December 31, 1997. The December 31, 1997 condensed consolidated
balance sheet was derived from audited financial statements, but does
not include all disclosures required by generally accepted accounting
principles. Certain amounts have been reclassified in the prior periods
to conform with the current year presentation.
2. Inventories at September 30, 1998 consisted of $2,124,000, $1,879,000
and $30,833,000 for raw materials, work in process and finished goods,
respectively. At December 31, 1997, inventories consisted of $2,701,000,
$690,000 and $17,852,000 for raw materials, work in process and finished
goods, respectively.
3. On February 17, 1998, the Company authorized a two-for-one stock split
of its common stock to be effective in the form of a stock dividend
distributed on April 1, 1998 to shareholders of record at the close of
business on February 27, 1998. The holders of the Company's common stock
received a stock dividend at the rate of one share of common stock for
each share of common stock owned. The stated par value of each share was
not changed from $.01. A total of $264,821 was reclassified from the
Company's additional paid-in capital account to the Company's common
stock account for the period ended December 31, 1997. All share and per
share amounts have been retroactively restated to reflect the stock
split.
4. The Company is exposed to exchange rate risk when it and certain of its
subsidiaries enter into transactions denominated in currencies other
than their functional currency. Certain firmly committed transactions
are hedged with forward foreign exchange contracts. As exchange rates
change, gains and losses on the exposed transactions may be partially
offset by gains and losses related to the hedging contracts. Both the
exposed transactions and the hedging contracts are translated at current
spot rates, with gains and losses included in earnings. There were no
material forward foreign exchange contracts as of September 30, 1998.
The forward foreign exchange contracts generally require the Company to
exchange U.S. dollars for foreign currencies based on pre-established
exchange rates at the contracts' maturity dates. If the counterparties
to the exchange contracts (primarily AA rated international
institutions) do not fulfill their obligations to deliver the contacted
currencies, the Company could be at risk for currency related
fluctuations (generally limited to unrealized gains).
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<PAGE> 11
Management believes that the high credit worthiness of the
counterparties to the hedging contracts minimizes the risk of
non-performance.
5. The Company has adopted Statement of Financial Accounting Standards No.
130 "Reporting Comprehensive Income" in the first quarter of 1998. This
standard expands or modifies disclosures, and accordingly, has no impact
on the Company's financial position, results of operations or cash
flows.
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<PAGE> 12
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The following discussion and analysis should be read in conjunction with the
condensed consolidated financial statements and related notes thereto.
GENERAL
The Company's net sales have grown substantially over the past several years.
The Company attributes the growth in net sales during this period principally to
increased market penetration due to the implementation of sales and marketing
programs, the introduction of new products and growth in markets for its
products. The Company introduced lightly powdered medical gloves, powder-free
medical gloves, HypoClean(R) powder-free gloves, powder-free latex surgical
gloves and high technology and scientific nitrile gloves, and Safeskin 2000(TM)
powder-free latex surgical gloves, in 1989, 1990, 1992, 1994, 1995, and 1996,
respectively. In 1997, the Company began selling a medical examination glove
made of a non-latex material called nitrile. In addition, as a result of its
acquisition of the synthetic glove business of Tactyl Technologies, Inc.
("Tactyl"), the Company began selling Tactylon(R) synthetic examination and
surgical gloves. In February 1998, as a result of its acquisition of Absolute
Quality Leadership, Inc. ("AQL"), the Company expanded its current product line
associated with the high-technology and scientific markets to include a broad
line of proprietary latex and synthetic glove products, specifically designed
for the microelectronics, health technologies and general laboratory and safety
market segments. Although the Company has continued to develop new products and
expects to do so in the future, no assurance can be given that the new products
will be accepted in the marketplace or will have similar growth rates.
The Company's net sales are derived from the sale of finished products, net of
contractual allowable rebates and fees provided to distributors and group
purchasing organizations for the resale of the Company's products in specific
volumes to specified end user customers. The Company estimates allowable rebates
on a monthly basis through the analysis of actual sales information from
customers, contractual arrangements and historical trends related to actual
rebates issued. Cost of goods sold includes all costs to manufacture the
finished product plus related costs associated with ocean freight, customs duty,
warehousing and product delivery expenses. Selling expenses include salaries for
sales and marketing staffs and other related expenses such as sales commissions,
and costs associated with travel, trade show participation and advertising.
Research and development expenses include salaries for research and development
staffs and related expenses for consulting, product testing and travel. General
and administrative expenses include salaries for administrative and information
technology staffs and related expenses for travel, insurance, facilities,
consulting and professional fees. The income tax provision is substantially less
than statutory rates as a result of the tax-free status of the Company's foreign
manufacturing operations. The Company's existing Thailand manufacturing
facilities have been granted tax-free status through 2003 and have been granted
a reduced tax rate through 2007. As the Company begins to build new production
facilities in Thailand, it has
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<PAGE> 13
applied for and received similar tax-free status for these operations. The
Company's Malaysian manufacturing operations were granted five years of tax-free
status which expired on September 30, 1998. The expiration of this tax-free
status is not expected to have a material adverse effect upon the Company's
operations. During the third quarter of 1998, the Company and two of its
subsidiaries implemented a new organizational plan that qualified under Section
351 of the Internal Revenue Code. As a result of this organizational plan, the
Company anticipates that its provision for U.S. income taxes for the next three
to five years could be lower than it would have been had the organizational plan
not qualified under Section 351 of the Code.
The Company's medical glove distributor customers do not bill third-party
reimbursement sources separately for purchases of the Company's gloves.
Consequently, the timing and effect of third-party payments to hospitals and
clinics do not have a material effect on the Company's operations or liquidity.
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THE THREE MONTHS ENDED
SEPTEMBER 30, 1997
Net sales for the three months ended September 30, 1998 were $61,568,000 which
represents a 31.3% increase over net sales of $46,897,000 for the same period in
1997. The predominant causes for the sales growth were an increase in unit
volumes sold and the shift in product mix to higher priced powder-free gloves in
the 1998 period as compared to the 1997 period.
Cost of goods sold increased 11.1% from $26,632,000 for the three month period
ended September 30, 1997 to $29,596,000 for the three months ended September 30,
1998. As a percentage of net sales, cost of goods sold decreased from 56.8% for
the three months ended September 30, 1997 to 48.1% for the same period in 1998.
The Company's gross profit margin was favorably impacted in 1998 due to the
positive effects of the devaluation of the currencies in Malaysia and Thailand.
In the prior year, the positive effects of the devaluation of the currencies in
Malaysia and Thailand did not begin to have a significant favorable impact on
the Company's gross profit margin until the fourth quarter 1997. In addition,
the decrease in cost of goods sold as a percentage of net sales was attributable
to the continued shift of production to Thailand's lower-cost manufacturing
facility and to the shift of product mix to higher margin powder-free gloves in
1998. As a result of the above factors, gross profits increased 57.8% from
$20,265,000 for the three months ended September 30, 1997 to $31,972,000 for the
three months ended September 30, 1998.
Selling expenses increased 56.2% from $4,313,000 for the three months ended
September 30, 1997 to $6,738,000 for the three months ended September 30, 1998.
As a percentage of net sales, selling expenses increased slightly from 9.2% for
the three months ended September 30, 1997 to 10.9% for the same period in 1998.
The increase in selling expenses as a percentage of net sales pertains primarily
to increased costs and expenses related to the Company's efforts to expand its
business in high-technology and scientific markets.
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<PAGE> 14
Research and development expenses increased 46.8% from $934,000 for the three
months ended September 30, 1997 to $1,372,000 for the three months ended
September 30, 1998. As a percentage of net sales, these expenses increased
slightly from 2.0% for the three months ended September 30, 1997 to 2.2% for the
three months ended September 30, 1998.
General and administrative expenses increased 83.9% from $4,077,000 for the
three months ended September 30, 1997 to $7,498,000 for the three months ended
September 30, 1998. As a percentage of net sales, general and administrative
expenses increased from 8.7% for the 1997 period to 12.2% for the 1998 period.
The increase in general and administrative expenses as a percentage of net sales
was caused primarily by increased costs associated with the Company's efforts to
improve and streamline its information technology systems and services.
Additional factors include increased product liability costs and related legal
expenses associated with the Company's pending product liability lawsuits,
increased compensation costs and increased costs associated with the Company's
acquisition of AQL.
Income from operations increased 49.6% from $10,941,000 for the three months
ended September 30, 1997 to $16,364,000 for the three months ended September 30,
1998. Operating margins increased from 23.3% in the 1997 period to 26.7% in the
1998 period.
Interest expense (income), net, changed from $211,000 of net interest income for
the three months ended September 30, 1997 to $758,000 of net interest expense
for the three months ended September 30, 1998, primarily due to the fact that in
1998 the Company had incurred interest expense on debt outstanding during the
period. In 1997, the Company had no debt outstanding and generated investment
returns on its cash balances.
Other income, net, decreased from $1,843,000 for the three months ended
September 30, 1997 to $875,000 for the three months ended September 30, 1998.
The Company experienced significant foreign currency transaction gains, net of
hedging contracts, in the Company's Malaysian and Thailand subsidiaries for the
three months ended September 30, 1997, due primarily to the significant
devaluation of both the ringgit and baht in the prior year period. In 1998, the
Company experienced foreign currency transaction gains, net of hedging
contracts, primarily in its European and Thailand subsidiaries. The gains
experienced from foreign currency transactions, net of hedging contracts, in
1998 were not as significant as in the prior year.
Income taxes decreased from $1,435,000 for the three months ended September 30,
1997 to $329,000 for the three months ended September 30, 1998. The income tax
provisions recorded in both 1997 and 1998 remain less than statutory rates due
primarily to the tax-free status of the Company's foreign manufacturing
operations.
Net income increased 39.7% from $11,560,000 for the three months ended September
30, 1997 to $16,152,000 for the three months ended September 30, 1998 due to the
foregoing factors.
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<PAGE> 15
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED SEPTEMBER 30,
1997
Net sales for the nine months ended September 30, 1998 were $173,506,000 which
represents a 30.4% increase over net sales of $133,013,000 for the same period
in 1997. The predominant causes for the sales growth were an increase in unit
volumes sold and the shift in product mix to higher priced powder-free gloves in
the 1998 period as compared to the 1997 period.
Cost of goods sold increased 11.4% from $74,478,000 for the nine month period
ended September 30, 1997 to $82,940,000 for the nine months ended September 30,
1998. As a percentage of net sales, cost of goods sold decreased from 56.0% for
the nine months ended September 30, 1997 to 47.8% for the same period in 1998.
The Company's gross profit margin was favorably impacted in 1998 due to the
positive effects of the devaluation of the currencies in Malaysia and Thailand.
In the prior year, the positive effects of the devaluation of the currencies in
Malaysia and Thailand did not begin to have a significant favorable impact on
the Company's gross profit margin until the fourth quarter 1997. In addition,
the decrease in cost of goods sold as a percentage of net sales was attributable
to the continued shift of production to Thailand's lower-cost manufacturing
facility and to the shift of product mix to higher margin powder-free gloves in
1998. As a result of the above, gross profits increased 54.7% from $58,535,000
for the nine months ended September 30, 1997 to $90,566,000 for the nine months
ended September 30, 1998.
Selling expenses increased 37.1% from $13,505,000 for the nine months ended
September 30, 1997 to $18,510,000 for the nine months ended September 30, 1998.
As a percentage of net sales, selling expenses increased from 10.2% for the nine
months ended September 30, 1997 to 10.7% for the same period in 1998. The
increase in selling expenses as a percentage of net sales pertains primarily to
increased costs and expenses related to the Company's efforts to expand its
business in high-technology and scientific markets.
Research and development expenses increased 93.9% from $2,520,000 for the nine
months ended September 30, 1997 to $4,886,000 for the nine months ended
September 30, 1998. As a percentage of net sales, these expenses increased from
1.9% for the nine months ended September 30, 1997 to 2.8% for the nine months
ended September 30, 1998. The increase in research and development expenses as a
percentage of net sales is primarily due to an increase in the number of
research and development personnel, an increase in other compensation expenses
and costs totaling approximately $600,000 associated with research related to
the Company's outstanding product liability claims.
General and administrative expenses increased 72.2% from $11,350,000 for the
nine months ended September 30, 1997 to $19,549,000 for the nine months ended
September 30, 1998. As a percentage of net sales, general and administrative
expenses increased from 8.5% for the 1997 period to 11.3% for the 1998 period.
The increase in general and administrative expenses as a percentage of net sales
pertains primarily to increased costs associated with the Company's efforts to
improve and streamline its information technology systems and services.
Additional factors
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<PAGE> 16
include increased compensation costs, increased legal and other related costs
associated with product liability lawsuits and costs and expenses associated
with the Company's acquisition of AQL.
Income from operations increased 52.8% from $31,160,000 for the nine months
ended September 30, 1997 to $47,621,000 for the nine months ended September 30,
1998. Operating margins increased from 23.4% in the 1997 period to 27.5% in the
1998 period.
Interest expense (income), net, changed from $545,000 of net interest income for
the nine months ended September 30, 1997 to $599,000 of net interest expense for
the nine months ended September 30, 1998, and is primarily due to the fact that
in 1998 the Company had incurred interest expense on debt outstanding during the
period. In 1997, the Company had no debt outstanding and generated investment
returns on its cash balances.
Other income, net, decreased from $1,217,000 of other income for the nine months
ended September 30, 1997 to $916,000 of other income for the nine months ended
September 30, 1998. The Company experienced significant foreign currency
transaction gains, net of hedging contracts, in the Company's Malaysian and
Thailand subsidiaries for the nine months ended September 30, 1997. In 1998, the
Company experienced foreign currency transaction gains, net of hedging
contracts, primarily in its European subsidiaries. The gains experienced from
foreign currency transactions, net of hedging contracts, in 1998 were not as
significant as in the prior year.
Income taxes decreased from $3,669,000 for the nine months ended September 30,
1997 to $3,475,000 for the nine months ended September 30, 1998. The income tax
provisions recorded in both 1997 and 1998 remain less than statutory rates due
primarily to the tax-free status of the Company's foreign manufacturing
operations.
Net income increased 52.0% from $29,253,000 for the nine months ended September
30, 1997 to $44,463,000 for the nine months ended September 30, 1998 due to the
foregoing factors.
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<PAGE> 17
LIQUIDITY AND CAPITAL RESOURCES
The Company's operations generated approximately $13,524,000 and $42,386,000 of
cash during the nine months ended September 30, 1998 and 1997, respectively.
During the nine months ended September 30, 1998, the Company experienced
increased accounts receivable and inventory levels compared to the prior year.
In 1998, the Company has expanded its production capacity by approximately 57
percent which has enabled the Company to eliminate customer allocation caused by
capacity constraints during 1997 and the first half of 1998. While the Company's
products were being allocated to certain customers, the Company's sales force
was engaged in maintaining customer relationships and was not focused on
generating new business. At the end of the second quarter of 1998, the Company's
sales force resumed its focus on generating new business as well as
re-establishing its relationships with former customers who did not receive
product during this allocation period. As a result of the sales cycle time
associated with generating this new business, much of the Company's sales growth
occurred late in the third quarter of 1998 and was a primary factor associated
with the significant increase in the Company's accounts receivable levels as
compared to the prior year. During the month of October 1998, collections on
accounts receivable were strong; considerably reducing the Company's outstanding
accounts receivable.
Further, during the nine months ended September 30, 1998 and 1997, the Company
acquired or constructed capital assets of approximately $44,465,000 and
$25,807,000, respectively, primarily for the expansion of the Company's foreign
manufacturing operations.
During 1997, the Company completed construction and began operating the first of
its three new production lines located in its Thailand facility, referred to by
the Company as the "Grand Master(TM)." The two additional production lines began
operating in the first quarter of 1998. The Company's management believes that a
single "Grand Master(TM)" production line has the highest capacity of any glove
production line in the world, equivalent in capacity to approximately eight of
the existing production lines in this facility. The construction of these
production lines has been funded with internally generated cash.
In addition, the Company is currently building a latex concentrate plant in
Thailand. The Company began initial production of latex concentrate at this
plant in the third quarter of 1997 and expects the final phase of construction
to be completed in 1999. The output of the plant currently supplies
approximately 70% of the latex concentrate required by the Company's factories
in Thailand and Malaysia for the manufacture of its disposable latex gloves.
This plant allows the Company to integrate its manufacturing processes to gain
better control over the quality, cost and reliability of latex supplies. The
Company anticipates that this construction will be funded with internally
generated funds and borrowings under the credit facilities.
In April 1997, the Company announced plans for the expansion of its Southeast
Asian manufacturing operations in order to meet the continued strong demand and
anticipated future demand for its latex and synthetic medical examination,
surgical and high-technology and scientific gloves. In conjunction with these
plans, the Company completed construction of an additional building and 22 high
speed machines at the Company's existing Thai facility in September 1998.
Additionally, the Company plans to construct a second manufacturing facility to
be located in southern Thailand that is expected to produce latex and synthetic
surgical, high-technology and scientific and examination gloves. Construction of
this site began in the second half of 1997 after approval by the Thailand Board
of Investment. Four production buildings are expected to be constructed on this
site. One of these buildings will house the expansion of the Company's
Tactylon(R) synthetic examination and surgical glove and the Company's nitrile
glove production. Production of nitrile gloves in this building began in the
fourth quarter of 1998, while production of the Tactylon(R) gloves is expected
to begin in the next few months. The first machine in this building is expected
to increase by over 200
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<PAGE> 18
percent the production capacity of the Tactylon(R) product line in comparison to
the existing facility which is located in Vista, California. The second building
will be constructed to provide additional capacity for the production of the
Company's surgical and clean-room glove products. Production of the second
building is scheduled to begin in the fourth quarter of 1998. In the interim,
these products will continue to be manufactured at the Company's Malaysia and
Vista, California facilities. An additional two buildings will be constructed to
house the Company's increased capacity for latex examination, scientific,
synthetic and surgical gloves. Production of buildings three and four is
scheduled to begin in 1999. The new buildings, machines and supporting
infrastructure are expected to cost approximately $80 million in the aggregate.
The significant investment by the Company in its manufacturing operations is
expected to increase the Company's annualized production capacity from
approximately 3.5 billion gloves to approximately 5.5 billion gloves. Financing
for the total capital expenditures for the two-year period is projected to come
from internally generated funds, with any shortfalls to be financed through
borrowings from the credit facilities.
In the fourth quarter of 1998, the Company intends to begin construction of a
facility in southern Thailand designed to manufacture boxes and ceramic hand
formers. This facility will allow the Company to further integrate its
manufacturing operations to gain better control over the quality, cost and
reliability of these products. This facility is expected to commence production
in May 1999 and is expected to produce approximately eighty percent of the
Company's supplies requirements for these products. The total expected costs for
the construction of these facilities will be approximately $7 million.
In February 1998, the Company completed the acquisition of AQL, a
California-based marketer of glove products for the high-technology and
scientific markets. The Company paid for this acquisition with internally
generated cash. The Company has changed the name of AQL to Safeskin Scientific
Corporation.
The Company has an unsecured two-year credit facility for financing general
working capital needs, up to a maximum of $40,000,000 in borrowings (the "Credit
Facility"). As of September 30, 1998, there was approximately $22,000,000
outstanding under the Credit Facility. On July 30, 1998, the Company , through
its subsidiary Safeskin (B.V.I.) Limited ("Safeskin BVI"), entered into and
closed a credit agreement for a $100 million term loan facility (the "BVI
Facility") with Union Bank of California, N.A., as Agent. The BVI Facility is
secured by a first priority lien on the Common Stock of the Company purchased by
Safeskin BVI, a first priority lien on all the assets of Safeskin BVI and a
first priority pledge of the capital stock and beneficial interest in Safeskin
Corporation (Thailand) Limited. Safeskin BVI may elect for interest on the BVI
Facility to accrue at a rate per annum equal to either (i) the base rate plus
0.25% or (ii) LIBOR plus 1.75%. The BVI Facility matures six months after
closing, with all principal and interest due on such date. During the third
quarter of 1998, the Company used a majority of the funds from the BVI Facility
to repurchase approximately two million shares of its Common Stock. The total
cost of the treasury stock acquired related to this share buyback totaled
approximately $70,400,000 for the year-to-date period ending September 30, 1998.
Borrowings above the cost of the Company's share buyback are being used to
finance (i) the Company's ongoing investment in its Thailand facilities where
its production capacity is expanding by nearly 60 percent above 1997 levels,
(ii) the Company's working capital requirements and (iii) other general
corporate purposes.
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<PAGE> 19
In addition, on July 30, 1998, the Company signed an additional credit agreement
with Union Bank of California, N.A., as Agent, for a five-year, $100 million
term loan and $40 million revolving line of credit facility, the closing of
which is subject to numerous conditions. The Company currently intends to close
this credit facility prior to the maturity of the BVI Facility. If this facility
is closed, the Company will use the proceeds to repay the BVI Facility and the
Credit Facility.
The Company's foreign manufacturing subsidiaries have revolving lines of credit
for financing general working capital needs up to approximately $9,100,000. As
of September 30, 1998, there were no borrowings outstanding under these credit
facilities. These borrowings are collateralized by all assets of the
subsidiaries and are further supported by a guarantee of the Company.
In July 1997, the Thai baht and Malaysian ringgit were permitted to float
against the U.S. dollar and other currencies, and as a result, the baht and
ringgit have devalued from approximately 24.7 bahts/dollar and 2.52
ringgits/dollar, as of June 30, 1997 to approximately 48.15 bahts/dollar and
3.89 ringgits/dollar as of December 31, 1997, respectively. The significant
devaluation in both the Thailand and Malaysian currencies has resulted in an
increased amount of foreign currency transaction net gains, which are included
in other income, and an increased amount of foreign currency translation
adjustments, which are recorded as other comprehensive income. As of September
30, 1998, the Thailand baht and Malaysian ringgit were approximately 39.0
bahts/dollar and 3.8 ringgits/dollar, respectively. The Company has not
experienced significant foreign currency transaction net gains and losses in
1998. The Company has, however, experienced significant foreign currency
translation adjustments in 1998. The devaluation of the baht and ringgit may
cause the Company's competitive environment to improve. It is not possible at
this time to determine what effect the devaluation will have upon pricing or
costs, but management believes the devaluation will not have a material adverse
effect on the Company's operating results for 1998.
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<PAGE> 20
LEGAL PROCEEDINGS
Since May 1995, 184 actively pending product liability lawsuits seeking monetary
damages have been filed in federal and state courts against the Company, and
other manufacturers of latex gloves. On February 26, 1997, the Judicial Panel on
Multi-District Litigation entered an order transferring all latex allergy
lawsuits brought by healthcare workers against the Company and other latex glove
manufacturers in the Federal courts to the Federal district court in
Philadelphia, consolidating those cases, and other pending and future Federal
court latex allergy lawsuits, for discovery management and other pre-trial
proceedings.
The Company's tax returns for the years ended December 31, 1995 and 1996 are
currently being audited by the Internal Revenue Service.
CAUTIONARY STATEMENT PURSUANT TO SAFE HARBOR PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
This report and the documents incorporated by reference herein contain
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933, as amended and Section 21E of the Securities Exchange Act of 1934,
as amended. These forward-looking statements include, among others, statements
concerning the Company's outlook for 1998 and beyond, the effect of currency
fluctuations in Thailand and Malaysia on the operating results of the Company,
the Company's liquidity and working capital, the Company's ability to complete
construction of new facilities as scheduled, the production capacity and the
Company's ability to achieve additional efficiencies in its manufacturing
facilities and other statements of expectations, beliefs, future plans and
strategies, anticipated events or trends and similar expressions concerning
matters that are not historical facts. The forward-looking statements in this
report are subject to risks and uncertainties that could cause the assumptions
underlying such forward-looking statements and the actual results to differ
materially from those expressed in or implied by the statements.
The most important factors that could prevent the Company from achieving its
goals--and cause the assumptions underlying forward-looking statements and the
actual results of the Company to differ materially from those expressed in or
implied by those forward-looking statements--include, but are not limited to,
the following:
- the competitive nature of the industry and the ability of the
Company to continue to distinguish its products on the basis of
quality, reliability and value; possible obsolescence of the
Company's primary product due to the development by competitors
of new products, manufacturing processes or technologies
including latex alternatives; the ability of the Company to
maintain strong distributor relationships; and the ability of
the Company to maintain selling prices and anticipated volumes;
- the ability of the Company to meet existing or future FDA
regulations regarding the manufacture and sale of the Company's
gloves;
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<PAGE> 21
- the Company's ability to successfully develop and introduce new
products to the market;
- risks associated with investments and operations in foreign
countries, particularly Thailand and Malaysia, including
exchange rate fluctuations, local economic conditions,
governmental policies regarding foreign ownership of
manufacturing facilities, local regulatory requirements, tax
holidays and political factors;
- the consistent availability, at budgeted prices, of raw rubber
from independent growers and latex concentrate from plant
operators in Thailand and Malaysia and the available of nitrile;
- adverse outcomes regarding product liability lawsuits or the
ability to obtain sufficient product liability insurance
coverage at reasonable rates;
- delays in the completion of the construction of the Company's
new production facilities in Thailand or the failure of these
production facilities to generate anticipated productivity and
efficiencies;
- delays in the completion of the final phase of the Company's
construction of its latex concentrate plant in Thailand or the
failure of this plant to generate anticipated productivity and
efficiencies;
- economic conditions in the healthcare industry, including the
potential impact of industry consolidation and cost constraints
on the end-user;
- changes in significant government regulations affecting the
healthcare industry;
- the ability of the Company to protect its proprietary products,
know-how and manufacturing processes;
- changes in the Company's rates or basis of income taxation,
including applicable U.S. tax laws and policies governing
foreign operations and Section 351 Transactions;
- the ability of the Company to complete its Year 2000 project and
remediate its Year 2000 Issues within the specified time frames
or within currently estimated costs; and
- rapid levels of inflation which could have a significant effect
on the Company's net sales and profitability.
These and other risks and uncertainties affecting the Company are discussed in
greater detail in this report and in other filings by the Company with the
Securities and Exchange Commission.
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<PAGE> 22
RISKS ASSOCIATED WITH YEAR 2000
OVERVIEW
The Year 2000 Issue is the issue of whether information and
non-information technology systems will be able to recognize and process
date-sensitive information in the year 2000. The Company relies, directly and
indirectly, on information technology systems, such as desktop computers,
network hardware equipment and applications software, to manage its business
data and to perform a variety of administrative services including, accounting,
financial reporting, payroll and invoicing. The Company also relies on
non-information technology systems including office equipment, security systems,
telephone systems and process controllers, to control its manufacturing systems
and carry out its day-to-day operations. In addition, third parties material to
the Company's operations, such as suppliers, vendors and customers, rely on
information and non-information technology systems to manage their businesses.
All of these technology systems could potentially be affected by the Year 2000
Issue.
In order to minimize the risk of Year 2000 related losses, the Company
is conducting a comprehensive assessment of its Year 2000 Issue. Perot Systems
Corporation has been retained to help the Company (i) identify and update or
replace non-Year 2000 compliant information and non-information technology
systems that are material to the Company's operations and (ii) develop
contingency and business continuation plans in the event that the Company is
unable to timely address its Year 2000 Issue.
The Company's Year 2000 assessment is focusing primarily on four areas:
information technology equipment; applications software; non-information
technology systems; and third party suppliers and customers. The assessment
involves the testing and analyzing of all information technology equipment,
applications software and non-information technology systems used by the
Company, and the evaluation of the Year 2000 preparedness of third parties
critical to the Company's operations. As of October 30, 1998, the Company's Year
2000 assessment in each of these areas was over 90% complete. To date, the
assessment has revealed that two of the material applications software on which
the Company relies are not Year 2000 compliant. Both of these applications will
be replaced in 1999. In early 1998, the Company began to implement a Year 2000
compliant enterprise-wide business systems application. Although the Company
installed the application in order to improve the management of its business
data, the application will also have the effect of ensuring that a significant
percentage of the Company's information technology systems are Year 2000
compliant. The Company expects that this application will be online at the
Company's U.S. facilities by January 1999 and at the Southeast Asian
manufacturing facilities by the end of the second quarter of 1999.
The Company has developed preliminary remediation plans for each of the
four areas targeted by the Year 2000 assessment. Specifically, non-Year 2000
compliant information technology equipment, including obsolete hardware
components and outdated operating systems, BIOS or chip codes, will be updated
or replaced, applications software that is not Year 2000 compliant will be
converted or replaced by the end of the second quarter of 1999 and any non-
information technology systems or processors that are either non-Year 2000
compliant or suspect
-20-
<PAGE> 23
due to lack of information from the vendor will be replaced. In addition, the
Company is currently requesting confirmation that all suppliers and customers
material to its operations are, or in within a short period of time are planning
to become, Year 2000 compliant.
The Company expects to approve and begin implementing a final
remediation plan for addressing all known Year 2000 Issues by the end of the
fourth quarter of 1998. The Company's remediation plan will give priority to
those non-Year 2000 compliant technology systems which are material to the
Company's operations. Perot Systems Corporation will be handling all remediation
efforts, including, if necessary, the replacement of any information technology
hardware or software, the upgrading of manufacturing systems and the changing of
BIOS or chip codes. Perot Systems will coordinate its remediation efforts with
the Company in order to avoid, to the extent possible, disruption of the
Company's manufacturing capacity. Contingency plans for all of the Company's
known Year 2000 Issues will be finalized by mid-1999.
The Company will also examine the Year 2000 readiness of any information
or non-information technology systems acquired in the future and develop
remediation and contingency plans as necessary.
COSTS
Although the total costs associated with becoming Year 2000 compliant
have not been fully identified, the Company does not currently expect the costs
of remediating its Year 2000 Issues to be material to its operations, results of
operations or financial condition. As of October 30, 1998, the Company has spent
approximately $300,000 on Year 2000 Issues, primarily attributable to the cost
of conducting the Year 2000 assessment and developing a remediation plan.
The future cost of identifying and remediating Year 2000 Issues is
expected to be at least $800,000. Costs for replacements or modifications that
would have been necessary independent of Year 2000 Issues, including the $1.2
million that will be spent to install the new enterprise-wide business
applications software at the Company's Asian operation sites, have not included
in the Company's Year 2000 cost estimates.
RISKS
The failure to correct a material Year 2000 problem could result in an
interruption in, or a failure of, certain normal business activities or
operations of the Company. Such failures could materially and adversely affect
the Company's results of operations and financial condition. In addition, the
costs associated with the remediation of the Year 2000 Issues may be
significantly higher than Company estimates, depending upon the availability and
cost of personnel trained in the remediation of Year 2000 Issues, the ability to
locate and correct all relevant computer codes, the ability to obtain timely
responses to and corrections by third-parties and suppliers, the ability to
implement interfaces between the new systems and the systems not being replaced
and similar uncertainties. Due to the general uncertainty inherent in the Year
2000 problem, resulting in part from the uncertainty of the Year 2000 readiness
of third party suppliers and customers and of the infrastructure in those
countries in which the Company operates, there can be no assurance that Year
2000 Issues will not have a material impact
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<PAGE> 24
on the Company's results of operations or financial condition. However, the
Company's Year 2000 remediation efforts are expected to significantly reduce the
Company's level of uncertainty about the Year 2000 Issue and, in particular,
about the Year 2000 compliance and readiness of its material third party
suppliers, customers and vendors. Furthermore, the Company believes that, with
the implementation of new business systems and the completion of its Year 2000
remediation plan as scheduled, the possibility of significant interruptions of
normal operations will be minimal.
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<PAGE> 25
PART II: OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
10.44 Loan Agreement dated as of July 30, 1998 among Safeskin
(B.V.I.) Limited and Union Bank of California, N.A.
10.45 Revolving/Term Loan Agreement dated as of July 30, 1998
among Safeskin Corporation and Union Bank of California, N.A.
11 Statement re: Computation of per share earnings
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K
None.
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<PAGE> 26
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.
SAFESKIN CORPORATION
Date: November 16, 1998 By: /s/ David L. Morash
------------------------------------
David L. Morash, Executive Vice-
President, Chief Financial Officer
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<PAGE> 1
EXHIBIT 10.44
LOAN AGREEMENT
Dated as of July 30, 1998
among
SAFESKIN (B.V.I.), LIMITED
THE LENDERS HEREIN NAMED
and
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Article 1 DEFINITIONS AND ACCOUNTING TERMS...........................................1
1.1 Defined Terms..............................................................1
1.2 Use of Defined Terms......................................................24
1.3 Joinder of Additional Borrowers...........................................24
1.4 Accounting Terms..........................................................24
1.5 Rounding..................................................................24
1.6 Exhibits and Schedules....................................................25
1.7 References to "Borrowers and their Subsidiaries"..........................25
1.8 Miscellaneous Terms.......................................................25
Article 2 LOANS.....................................................................26
2.1 Loans-General.............................................................26
2.2 Alternate Base Rate Loans.................................................27
2.3 Eurodollar Rate Loans.....................................................28
2.4 Overseas Offered Rate Loans...............................................28
2.5 Optional Termination of Commitments.......................................29
2.6 Administrative Agent's Right to Assume Funds Available for Advances.......29
2.7 Collateral................................................................29
Article 3 PAYMENTS AND FEES.........................................................30
3.1 Principal and Interest....................................................30
3.2 Arranger and Agency Fees..................................................32
3.3 Increased Commitment Costs................................................32
3.4 Eurodollar Costs and Related Matters......................................32
3.5 Late Payments.............................................................36
3.6 Computation of Interest and Fees..........................................36
3.7 Non-Banking Days..........................................................37
3.8 Manner and Treatment of Payments..........................................37
3.9 Funding Sources...........................................................38
3.10 Failure to Charge Not Subsequent Waiver...................................38
3.11 Administrative Agent's Right to Assume Payments Will be Made..............39
3.12 Fee Determination Detail..................................................39
3.13 Survivability.............................................................39
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
Article 4 REPRESENTATIONS AND WARRANTIES............................................40
4.1 Existence and Qualification; Power; Compliance With Laws..................40
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations....................................................40
4.3 No Governmental Approvals Required........................................41
4.4 Subsidiaries..............................................................41
4.5 Financial Statements......................................................41
4.6 No Other Liabilities; No Material Adverse Changes.........................41
4.7 Title to and Location of Property.........................................42
4.8 Intangible Assets.........................................................42
4.9 Public Utility Holding Company Act........................................42
4.10 Litigation................................................................42
4.11 Binding Obligations.......................................................42
4.12 No Default................................................................43
4.13 ERISA.....................................................................43
4.14 Regulation U; Investment Company Act......................................43
4.15 Disclosure................................................................43
4.16 Tax Liability.............................................................44
4.17 Projections...............................................................44
4.18 Hazardous Materials.......................................................44
4.19 Security Interests........................................................44
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)...............................................46
5.1 Payment of Taxes and Other Potential Liens................................46
5.2 Preservation of Existence.................................................46
5.3 Maintenance of Properties.................................................46
5.4 Maintenance of Insurance..................................................46
5.5 Compliance With Laws......................................................47
5.6 Inspection Rights.........................................................47
5.7 Keeping of Records and Books of Account...................................47
5.8 Compliance With Agreements................................................47
5.9 Use of Proceeds...........................................................47
5.10 Hazardous Materials Laws..................................................47
5.11 Future Subsidiaries.......................................................48
5.12 Future Real Property......................................................48
5.13 Year 2000 Compliance......................................................48
5.14 Syndication Process.......................................................48
Article 6 NEGATIVE COVENANTS........................................................49
6.1 Payment of Subordinated Obligations.......................................49
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C> <C>
6.2 Disposition of Property...................................................49
6.3 Mergers...................................................................49
6.4 Hostile Acquisitions......................................................49
6.5 Acquisitions..............................................................49
6.6 Distributions.............................................................50
6.7 ERISA.....................................................................50
6.8 Change in Nature of Business..............................................50
6.9 Liens and Negative Pledges................................................50
6.10 Indebtedness and Guaranty Obligations.....................................51
6.11 Transactions with Affiliates..............................................51
6.12 Leverage Ratio............................................................51
6.13 Investments...............................................................51
6.14 Capital Expenditures......................................................52
6.15 Operating Leases..........................................................52
6.16 Subsidiary Indebtedness...................................................52
6.17 Amendments to Subordinated Obligations....................................53
Article 7 INFORMATION AND REPORTING REQUIREMENTS....................................54
7.1 Financial and Business Information........................................54
7.2 Compliance Certificates...................................................55
Article 8 CONDITIONS................................................................56
8.1 Initial Advances..........................................................56
8.2 Any Advance...............................................................58
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT ..................................................................60
9.1 Events of Default.........................................................60
9.2 Remedies Upon Event of Default............................................62
Article 10 THE ADMINISTRATIVE AGENT..................................................65
10.1 Appointment and Authorization.............................................65
10.2 Administrative Agent and Affiliates.......................................65
10.3 Proportionate Interest in any Collateral..................................65
10.4 Lenders' Credit Decisions.................................................66
10.5 Action by Administrative Agent............................................66
10.6 Liability of Administrative Agent.........................................67
10.7 Indemnification...........................................................68
10.8 Successor Administrative Agent............................................69
10.9 No Obligations of Borrowers...............................................69
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C> <C>
Article 11 MISCELLANEOUS.............................................................71
11.1 Cumulative Remedies; No Waiver............................................71
11.2 Amendments; Consents......................................................71
11.3 Costs, Expenses and Taxes.................................................72
11.4 Nature of Lenders' Obligations............................................73
11.5 Survival of Representations and Warranties................................73
11.6 Notices...................................................................73
11.7 Execution of Loan Documents...............................................74
11.8 Binding Effect; Assignment................................................74
11.9 Right of Setoff...........................................................77
11.10 Sharing of Setoffs........................................................77
11.11 Indemnity by Borrowers....................................................78
11.12 Nonliability of the Lenders...............................................79
11.13 No Third Parties Benefited................................................80
11.14 Confidentiality...........................................................80
11.15 Further Assurances........................................................81
11.16 Integration...............................................................81
11.17 Governing Law; JURISDICTION AND VENUE.....................................81
11.18 Severability of Provisions................................................82
11.19 Headings..................................................................82
11.20 Time of the Essence.......................................................82
11.21 Foreign Lenders and Participants..........................................82
11.22 Hazardous Material Indemnity..............................................83
11.23 Joint and Several.........................................................83
11.24 Waiver of Right to Trial by Jury..........................................84
11.25 Purported Oral Amendments.................................................84
</TABLE>
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<PAGE> 6
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Joinder Agreement
D-1 and
D-2 - Opinions of Counsel
E - Pledge Agreement
F - Request for Loan
G - Security Agreement
H - Sibling Guaranty
I - Tranche A Note
J - Tranche B Note
K - Joint Borrower Provisions
Schedules
1.1 Lender Commitments
4.7A Existing Liens, Negative Pledges and Rights of Others
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.10 Existing Indebtedness and Guaranty Obligations
6.13 Existing Investments
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<PAGE> 7
LOAN AGREEMENT
Dated as of July 30, 1998
This LOAN AGREEMENT ("Agreement") is entered into by and among
Safeskin (B.V.I.), Limited, a British Virgin Islands corporation, and each of
its Affiliates which may hereafter become a party to this Agreement pursuant to
Section 1.3 (collectively, on a joint and several basis, "Borrowers"), each
lender whose name is set forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement pursuant to Section
11.8 (collectively, the "Lenders" and individually, a "Lender"), and Union Bank
of California, N.A., as Administrative Agent.
The parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Closing Date, by which Borrowers
and/or any of their Subsidiaries directly or indirectly (a) acquires any
ongoing business or all or substantially all of the assets of any Person
engaged in any ongoing business, whether through purchase of assets,
merger or otherwise, (b) acquires control of securities of a Person
engaged in an ongoing business representing more than 50% of the
ordinary voting power for the election of directors or other governing
position if the business affairs of such Person are managed by a board
of directors or other governing body or (c) acquires control of more
than 50% of the ownership interest in any partnership, joint venture,
limited liability company, business trust or other Person engaged in an
ongoing business that is not managed by a board of directors or other
governing body.
"Administrative Agent" means Union Bank of California, N.A. when
acting in its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrowers and the Lenders.
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<PAGE> 8
"Advance" means any advance made or to be made by any Lender to
Borrowers as provided in Article 2, and includes each Alternate Base
Rate Advance, Eurodollar Rate Advance and Overseas Offered Rate Advance.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or
10% or more of the partnership or other ownership interests of any other
Person that has more than 100 record holders of such interests, will be
deemed to be an Affiliate of such corporation, partnership or other
Person.
"Agreement" means this Loan Agreement, either as originally
executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"Alternate Base Rate" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%)
equal to the higher of (a) the Prime Rate in effect on such date and (b)
the Federal Funds Rate in effect on such date plus 1/2 of 1% (50 basis
points).
"Alternate Base Rate Advance" means an Advance made hereunder and
specified to be an Alternate Base Rate Advance in accordance with
Article 2.
"Alternate Base Rate Loan" means a Loan made hereunder and
specified to be an Alternate Base Rate Loan in accordance with Article
2.
"Applicable Base Rate Margin" means 0.35% per annum.
"Applicable Eurodollar Rate Margin" means 1.85% per annum.
"Applicable Overseas Offered Rate Margin" means 0.125% per annum.
"Arranger" means Union Bank of California, N.A.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California or New York.
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<PAGE> 9
"BVI" means Safeskin (B.V.I.), Limited, a British Virgin Islands
corporation, and its successors and assigns.
"Borrowers" means, collectively, on a joint and several basis,
BVI and each Affiliate of BVI which hereafter becomes a party to this
Agreement pursuant to Section 1.3.
"Capital Expenditure" means any expenditure by Borrowers or any
of their Subsidiaries for or related to fixed assets or purchased
intangibles that is treated as a capital expenditure under GAAP,
including any amount which is required to be treated as an asset subject
to a Capital Lease Obligation. The amount of Capital Expenditures in
respect of fixed assets purchased or constructed by Borrowers or any of
their Subsidiaries in any fiscal period shall be net of (a) any net
sales proceeds received during such fiscal period by Borrowers or such
Subsidiary for fixed assets sold by Borrowers or such Subsidiary and (b)
any casualty insurance proceeds received during such fiscal period by
Borrowers or such Subsidiary for casualties to fixed assets and applied
to the repair or replacement thereof.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with GAAP, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated as
cash in accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after the
date of the making of the Investment;
(b) readily marketable direct obligations of any State of
the United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on the date
of such Investment a credit rating of at least Aa by Moody's Investors
Service, Inc. or AA by Standard & Poor's Rating Group (a division of
McGraw-Hill, Inc.), in each case due within one year from the making of
the Investment;
(c) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any
State
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thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case
due within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within one
year after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after the
date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of record
ownership of the Government Securities on the books of a "primary
dealer" in such Government Securities or on the books of such registered
broker or dealer, as soon as practicable after the making of the
Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof or
of any corporation that is the holding company for a bank described in
clause (c) or (d) above given on the date of such Investment a credit
rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by
Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in
each case due within one year after the date of the making of the
Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United States of America
or any State thereof (i) given on the date of such Investment a credit
rating of at least Aa by Moody's Investors Service, Inc. and AA by
Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.), in
each case having an investment period not exceeding 50 days or (ii) to
the extent that investors therein have the benefit of a standby letter
of credit issued by a Lender or a bank described in clauses (c) or (d)
above; provided that (y) the amount of all such Investments issued by
the same issuer does not exceed $5,000,000 and (z) the aggregate amount
of all such Investments does not exceed $15,000,000;
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<PAGE> 11
(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (c) or (d) hereof, or a
registered broker or dealer described in clause (e) hereof, that has and
maintains an investment policy limiting its investments primarily to
instruments of the types described in clauses (a) through (g) hereof and
given on the date of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. and AA by Standard & Poor's Rating Group
(a division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America, or a participation
interest therein; provided that (i) commercial paper issued by such
corporation is given on the date of such Investment a credit rating of
at least Aa by Moody's Investors Service, Inc. and AA by Standard &
Poor's Rating Group (a division of McGraw-Hill, Inc.), (ii) the amount
of all such Investments issued by the same issuer does not exceed
$5,000,000 and (iii) the aggregate amount of all such Investments does
not exceed $15,000,000.
"Cash Income Taxes" means, with respect to any fiscal period,
taxes on or measured by the income of Borrowers that are paid or
currently payable in Cash by Borrowers during that fiscal period.
"Cash Interest Expense" means Interest Expense that is paid or
currently payable in Cash.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
"Change in Control" means (a) the sale or transfer by Parent of
any shares of capital stock of either of Borrowers or the issuance by
either of Borrowers of any shares of capital stock of such Borrower to
any Person other than Parent, (b) any transaction or series of related
transactions in which any Unrelated Person or two or more Unrelated
Persons acting in concert acquire beneficial ownership (within the
meaning of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934,
as amended), directly or indirectly, of 20% or more of the outstanding
Common Stock, (c) Parent consolidates with or merges into another Person
or conveys, transfers or leases its properties and assets substantially
as an entirety to any Person or any Person consolidates with or merges
into Parent, in either event pursuant to a transaction in which the
outstanding Common Stock is changed into or exchanged for cash,
securities or other property, with the effect that any Unrelated Person
becomes the beneficial owner, directly or indirectly, of 20% or more of
Common Stock or that the Persons who were the holders of Common Stock
immediately prior to the transaction hold less than 80% of the common
stock of the surviving
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<PAGE> 12
corporation after the transaction, (d) during any period of 24
consecutive months, individuals who at the beginning of such period
constituted the board of directors of Parent (together with any new or
replacement directors whose election by the board of directors, or whose
nomination for election, was approved by a vote of at least a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for reelection
was previously so approved) cease for any reason to constitute a
majority of the directors then in office or (e) a "change in control" as
defined in any document governing Indebtedness of Parent in excess of
$5,000,000 which gives the holders of such Indebtedness the right to
accelerate or otherwise require payment of such Indebtedness prior to
the maturity date thereof. For purposes of the foregoing, the term
"Unrelated Person" means any Person other than (i) Richard Jaffe, Irving
Jaffe, Neil Braverman, any Affiliate of any thereof and members of the
immediate family of any thereof, (ii) a Subsidiary of Parent or (iii) an
employee stock ownership plan or other employee benefit plan covering
the employees of Parent and its Subsidiaries.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrowers and the Lenders of the date
that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by the
Collateral Documents.
"Collateral Accounts" means, collectively, the Tranche A
Collateral Account and the Tranche B Collateral Account.
"Collateral Documents" means, collectively, the Security
Agreement, the Pledge Agreement and any other security agreement, pledge
agreement, deed of trust, mortgage, notice to or acknowledgment of a
registrar or depositary institution, control agreement or other
collateral security agreement executed and delivered by Borrowers, any
of the Subsidiaries of Parent, or Parent, in its capacity as agent for
BVI in connection with certain of the Pledged Collateral (and executed
by any third party whose signature is necessary), to secure the
Obligations.
"Commitment Assignment and Acceptance" means a commitment
assignment and acceptance substantially in the form of Exhibit A.
"Commitments" means, collectively, the Tranche A Commitment and
the Tranche B Commitment.
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"Common Stock" means the common stock of Parent or its successor.
"Common Stock Repurchase" means the purchase by BVI in the public
market of outstanding shares of Common Stock for an aggregate purchase
price of not more than $60,000,000.
"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by a Senior Officer of
Borrowers.
"Contractual Obligation" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or
by which it or any of its Property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"Default" means any event that, with the giving of any applicable
notice or passage of time specified in Section 9.1, or both, would be an
Event of Default.
"Default Rate" means the sum of (a) any incremental interest rate
then in effect pursuant to Section 3.1(d) plus (b) the interest rate
prescribed in Section 3.5.
"Designated Eurodollar Market" means, with respect to any
Eurodollar Rate Loan, the London Eurodollar Market.
"Disposition" means the sale, transfer or other disposition in
any single transaction or series of related transactions of any asset,
or group of related assets, of Borrowers or any of their Subsidiaries
(a) which asset or assets constitute a line of business or substantially
all the assets of Borrowers or the Subsidiary or (b) the aggregate
amount of the Net Cash Sales Proceeds of such assets is more than
$500,000, other than (i) inventory or other assets sold or otherwise
disposed of in the ordinary course of business of Borrowers or their
Subsidiary, (ii) equipment sold or otherwise disposed of where
substantially similar equipment in replacement thereof has theretofore
been acquired, or thereafter within 90 days is acquired, by Borrowers or
their Subsidiary, and (iii) obsolete assets no longer useful in the
business of Borrowers and their Subsidiaries whose carrying value on the
books of Borrowers or such Subsidiary is zero or de minimus.
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"Distribution" means, with respect to any shares of capital stock
or any warrant or option to purchase an equity security or other equity
security issued by a Person, (a) the retirement, redemption, purchase or
other acquisition for Cash or for Property by such Person of any such
security, (b) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property on or with respect to any
such security, (c) any Investment by such Person in the holder of 5% or
more of any such security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any other
payment in Cash or Property by such Person constituting a distribution
under applicable Laws with respect to such security.
"Dollars" or "$" means United States of America dollars.
"Domestic Subsidiary" means a Subsidiary of Borrowers that is not
a Foreign Subsidiary.
"EBITDA" means, with respect to any fiscal period, the sum of (a)
Net Income for that period, plus (b) any non-operating non-recurring
loss reflected in such Net Income, minus (c) any non-operating
non-recurring gain reflected in such Net Income, plus (d) Interest
Expense of Borrowers and their Subsidiaries for that period, plus (e)
the aggregate amount of federal and state taxes on or measured by income
of Borrowers and their Subsidiaries for that period (whether or not
payable during that period), minus (f) the aggregate amount of federal
and state credits against taxes on or measured by income of Borrowers
and their Subsidiaries for that period (whether or not usable during
that period), plus (g) depreciation, amortization and all other non-cash
expenses of Borrowers and their Subsidiaries for that period, in each
case as determined in accordance with GAAP, consistently applied.
"Eligible Assignee" means (a) another Lender, (b) with respect to
any Lender, any Affiliate of that Lender, (c) any commercial bank having
total assets of $1,000,000,000 or more, (d) any (i) savings bank,
savings and loan association or similar financial institution or (ii)
insurance company engaged in the business of writing insurance which, in
either case (A) has total assets of $1,000,000,000 or more, (B) is
engaged in the business of lending money and extending credit under
credit facilities substantially similar to those extended under this
Agreement and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a commercial
bank and (e) any other financial institution (including a mutual fund or
other fund) having total assets of $1,000,000,000 or more which meets
the requirements set forth in subclauses (B) and (C) of clause (d)
above; provided that each Eligible Assignee must either (aa) be
organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (bb) be organized under the Laws
of the Cayman Islands or any country which is a member of the
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Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA Affiliate" means each Person (whether or not incorporated)
which is required to be aggregated with Borrowers pursuant to Section
414 of the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings
in Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Lender, its office
or branch so designated by written notice to Borrowers and the
Administrative Agent as its Eurodollar Lending Office. If no Eurodollar
Lending Office is designated by a Lender, its Eurodollar Lending Office
shall be its office at its address for purposes of notices hereunder.
"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any Governmental
Agency having jurisdiction over any Lender.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the
period commencing on the date specified by Borrowers pursuant to Section
2.1(b) and ending 7, 14, or 21 days or 1, 2 or 3 months (or, with the
written consent of all of the Lenders, any other period) thereafter, as
specified by Borrowers in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a
day that is not a Eurodollar Banking Day shall be extended to the
immediately succeeding Eurodollar Banking Day unless such
Eurodollar
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Banking Day falls in another calendar month, in which case such
Eurodollar Period shall end on the immediately preceding
Eurodollar Banking Day; and
(c) No Eurodollar Period shall extend beyond the Maturity
Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are
offered to the Administrative Agent in the Designated Eurodollar Market
at or about 11:00 a.m. local time in the Designated Eurodollar Market,
two (2) Eurodollar Banking Days before the first day of the applicable
Eurodollar Period in an aggregate amount approximately equal to the
amount of the Advance to be made by the Administrative Agent with
respect to such Eurodollar Rate Loan and for a period of time comparable
to the number of days in the applicable Eurodollar Period.
"Eurodollar Rate Advance" means an Advance made hereunder and
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified
to be a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section
9.1.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Lender of
New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective
Rate". If on any relevant date the appropriate rate for such date is not
yet published in either H.15(519) or the Composite 3:30 p.m. Quotations,
the rate for such date will be the arithmetic mean of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that date by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Federal Funds Rate
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shall be effective as of the opening of business on the effective date
of such change.
"Fiscal Quarter" means the fiscal quarter of Borrowers ending on
each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrowers ending on each
December 31.
"Foreign Subsidiary" means a Subsidiary of Borrowers that (a) is
organized under the Laws of a country (or political subdivision thereof)
other than the United States of America and (b) holds all or
substantially all of its assets outside the United States of America.
"GAAP" means, as of any date of determination, accounting
principles (a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) set forth as generally
accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term "consistently
applied," as used in connection therewith, means that the accounting
principles applied are consistent in all material respects with those
applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body or
(c) any court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by,
any other Person or (b) assurance given by that Person to an obligee of
any other Person with respect to the performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect
or contingent, including any purchase or repurchase agreement covering
such obligation or any collateral
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<PAGE> 18
security therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person, any agreement
to support the solvency or level of any balance sheet item of such other
Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against
loss with respect to any obligation of such other Person; provided,
however, that the term Guaranty Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guaranty Obligation in respect of
Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith. The amount of any other Guaranty
Obligation shall be deemed to be zero unless and until the amount
thereof has been (or in accordance with Financial Accounting Standards
Board Statement No. 5 should be) quantified and reflected or disclosed
in the consolidated financial statements (or notes thereto) of
Borrowers.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. or any
other applicable Hazardous Materials Law, in each case as such Laws are
amended from time to time.
"Hazardous Materials Laws" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials applicable
to any of the Real Property.
"Inactive Subsidiary" means a Subsidiary of Borrowers that (a) is
not engaged in any active or passive business and (b) holds total assets
of $10,000 or less.
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that
is non-recourse to the credit of such Person but is secured by assets of
such Person, to the extent of the fair
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<PAGE> 19
market value of such assets as determined in good faith by such Person,
(c) Capital Lease Obligations of such Person, (d) indebtedness of such
Person arising under bankers' acceptance facilities or under facilities
for the discount of accounts receivable of such Person, (e) any direct
or contingent obligations of such Person under letters of credit issued
for the account of such Person and (f) any net obligations of such
Person under Interest Rate Protection Agreements.
"Intangible Assets" means assets that are considered intangible
assets under GAAP, including customer lists, goodwill, covenants not to
compete, copyrights, trade names, trademarks and patents.
"Interest Expense" means, with respect to any Person and as of
the last day of any fiscal period, the sum of (a) all interest, fees,
charges and related expenses (in each case as such expenses are
calculated according to GAAP) paid or payable (without duplication) for
that fiscal period by that Person to a lender in connection with
borrowed money (including any obligations for fees, charges and related
expenses payable to the issuer of any letter of credit) or the deferred
purchase price of assets that are considered "interest expense" under
GAAP plus (b) the portion of rent paid or payable (without duplication)
for that fiscal period by that Person under Capital Lease Obligations
that should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"Interest Rate Protection Agreement" means a written agreement
between Borrowers and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with respect
to any Indebtedness.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person.
The amount of any Investment shall be the amount actually invested
(minus any return of capital with respect to such Investment which has
actually been received in Cash or has been converted into Cash), without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Joinder Agreement" means a joinder agreement, substantially in
the form of Exhibit C, to be executed by each Person which hereafter
becomes a Borrower pursuant to Section 1.3.
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"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which may hereafter
become a party to this Agreement pursuant to Section 11.8.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of (a) all Indebtedness of Borrowers and their Subsidiaries on
that date to (b) the product of (i) EBITDA for the fiscal period
consisting of the three (3) Fiscal Quarters ended on that date and (ii)
four-thirds.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge
of any kind, whether voluntarily incurred or arising by operation of Law
or otherwise, affecting any Property, including any conditional sale or
other title retention agreement, any lease in the nature of a security
interest, and/or the filing of any financing statement (other than a
precautionary financing statement with respect to a lease that is not in
the nature of a security interest) under the Uniform Commercial Code or
comparable Law of any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time
by the Lenders pursuant to Section 2.1.
"Loan Documents" means, collectively, this Agreement, the Notes,
the Sibling Guaranty, the Collateral Documents and any other agreements
of any type or nature hereafter executed and delivered by Borrowers,
their Subsidiaries or any of the Sibling Guarantors to the
Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, in each case either as originally
executed or as the same may from time to time be supplemented, modified,
amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse effect whatsoever upon the validity or enforceability
of any Loan Document, (b) has been or could reasonably be expected to be
material and adverse to the business or condition (financial or
otherwise) of Borrowers, their Subsidiaries and the Sibling Guarantors,
taken as a whole or (c) has materially impaired or
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could reasonably be expected to materially impair the ability of
Borrowers to perform the Obligations.
"Maturity Date" means January 15, 1999.
"Monthly Payment Date" means the last day of each calendar month.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrowers or any of
its ERISA Affiliates contributes or is obligated to contribute.
"Negative Pledge" means a Contractual Obligation which contains a
covenant binding on Borrowers or any of their Subsidiaries that
prohibits Liens on any of their Property, other than (a) any such
covenant contained in a Contractual Obligation granting or relating to a
particular Lien which affects only the Property that is the subject of
such Lien and (b) any such covenant that does not apply to Liens
securing the Obligations.
"Net Cash Issuance Proceeds" means, with respect to the issuance
of any debt security or equity security by Borrowers or any of their
Subsidiaries, the Cash proceeds received by or for the account of
Borrowers or such Subsidiary in consideration of such issuance net of
(a) underwriting discounts and commissions actually paid to any Person
not an Affiliate of Borrowers and (b) professional fees and
disbursements actually paid in connection therewith.
"Net Cash Sales Proceeds" means, with respect to any Disposition,
the sum of (a) the Cash proceeds received by or for the account of
Borrowers and their Subsidiaries from such Disposition plus (b) the
amount of Cash received by or for the account of Borrowers and their
Subsidiaries upon the sale, collection or other liquidation of any
proceeds that are not Cash from such Disposition, in each case net of
(i) any amount required to be paid to any Person owning an interest in
the assets disposed of, (ii) any amount applied to the repayment of
Indebtedness secured by a Lien permitted under Section 6.9 on the asset
disposed of, (iii) any transfer, income or other taxes payable as a
result of such Disposition, (iv) professional fees and expenses, fees
due to any Governmental Agency, broker's commissions and other
out-of-pocket costs of sale actually paid to any Person that is not an
Affiliate of Borrowers attributable to such Disposition and (v) any
reserves established in accordance with GAAP in connection with such
Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrowers and their Subsidiaries for that
period, determined in accordance with GAAP, consistently applied.
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"Note" means any of the Tranche A Notes or the Tranche B Notes,
and "Notes" means the Tranche A Notes and the Tranche B Notes.
"Obligations" means all present and future obligations of every
kind or nature of Borrowers, their Subsidiaries or any of the Sibling
Guarantors at any time and from time to time owed to the Administrative
Agent or the Lenders or any one or more of them, under any one or more
of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment,
and including interest that accrues after the commencement of any
proceeding under any Debtor Relief Law by or against Borrowers or any of
the Sibling Guarantors.
"Opinions of Counsel" means the favorable written legal opinions
of Morgan, Lewis & Bockius LLP, special counsel to Borrowers, and of
Smith-Hughes, Raworth & McKenzie, special British Virgin Islands counsel
to BVI, substantially in the form of Exhibits D-1 and D-2, respectively,
together with copies of all factual certificates and legal opinions
delivered to such counsel in connection with such opinions upon which
such counsel have relied.
"Overseas Offered Rate" means, with respect to any Overseas
Offered Rate Loan, the interest rate per annum at which the
Administrative Agent, in its sole discretion, determines that it would
offer deposits in Dollars to other Persons from its Grand Canyon Islands
Branch at or about 11:00 a.m. local time two (2) Banking Days prior to
the date on which such Overseas Offered Rate Loan is funded in an amount
comparable to the amount of the Advance to be made by the Administrative
Agent with respect to such Overseas Offered Rate Loan and for a term of
thirty (30) days.
"Overseas Offered Rate Advance" means a Tranche B Advance
specified to be an Overseas Offered Rate Advance in accordance with
Article 2.
"Overseas Offered Rate Loan" means a Tranche B Loan specified to
be an Overseas Offered Rate Loan in accordance with Article 2.
"Parent" means Safeskin Corporation, a Florida corporation.
"Party" means any Person other than the Administrative Agent and
the Lenders, which now or hereafter is a party to any of the Loan
Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
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"Pension Plan" means any "employee pension benefit plan" (as such
term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, which is subject to Title IV of ERISA and is maintained by
Borrowers or to which Borrowers contributes or has an obligation to
contribute.
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or
maintenance of Property; or Liens incident to construction on or
maintenance of Property now or hereafter filed of record for which
adequate reserves have been set aside (or deposits made pursuant to
applicable Law) and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided
that, by reason of nonpayment of the obligations secured by such Liens,
no such Property is subject to a material impending risk of loss or
forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due; or Liens for taxes and assessments on Property for
which adequate reserves have been set aside and are being contested in
good faith by appropriate proceedings and have not proceeded to
judgment, provided that, by reason of nonpayment of the obligations
secured by such Liens, no such Property is subject to a material
impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value or
use of the Property for the purposes for which it is or may reasonably
be expected to be held;
(d) easements, exceptions, reservations, or other
agreements for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other minerals, and
other like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be expected
to be held;
(e) easements, exceptions, reservations, or other
agreements for the purpose of facilitating the joint or common use of
Property in or adjacent to a shopping center or similar project
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes
for which it is or may reasonably be expected to be held;
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<PAGE> 24
(f) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, any right, power, franchise, grant,
license, or permit;
(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(a) or (b) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, provided that, if delinquent, adequate reserves have been
set aside with respect thereto and, by reason of nonpayment, no Property
is subject to a material impending risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the
use of Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of the
Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, provided the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure
bids made with respect to, or performance of, contracts (other than
contracts creating or evidencing an extension of credit to the
depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so
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long as such bank deposit accounts are not established or maintained for
the purpose of providing such right of offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrowers;
(q) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is currently
being contested in good faith by appropriate proceedings, provided that,
adequate reserves have been set aside and no material Property is
subject to a material impending risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be expected
to be held.
"Permitted Right of Others" means a Right of Others consisting of
(a) an interest (other than a legal or equitable co-ownership interest,
an option or right to acquire a legal or equitable co-ownership interest
and any interest of a ground lessor under a ground lease), that does not
materially impair the fair market value or use of Property for the
purposes for which it is or may reasonably be expected to be held, (b)
an option or right to acquire a Lien that would be a Permitted
Encumbrance, (c) the subordination of a lease or sublease in favor of a
financing entity and (d) a license, or similar right, of or to
Intangible Assets granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pledge Agreements" means, collectively, the pledge agreements to
be executed and delivered pursuant to Article 8 by Borrowers and by
Parent, in the form of Exhibit E, either as originally executed or as
they may from time to time be supplemented, modified, amended, extended
or supplanted.
"Pledged Collateral" means (a) the Repurchased Shares and (b)
subsequent to the Closing Date, the shares of capital stock of
Subsidiaries of Borrowers required to be pledged pursuant to Section
5.11.
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"Prime Rate" means the rate of interest publicly announced from
time to time by the Administrative Agent in San Francisco, California
(or other headquarters city of the Administrative Agent), as its
"reference rate." The "reference rate" is one of several base rates used
by the Administrative Agent and serves as the basis upon which effective
rates of interest are calculated for loans and other credits making
reference thereto. The "reference rate" is not necessarily the lowest
base interest rate used by the Administrative Agent. The "reference
rate" is evidenced by the recording thereof after its announcement in
such internal publication or publications as the Administrative Agent
may designate. Any change in the Prime Rate announced by the
Administrative Agent shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Projections" means the projected financial information to be
prepared by Borrowers and to be contained in the Confidential Offering
Memorandum furnished to the Lenders as part of the syndication process
referred to in Section 5.15.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the
percentage of the Tranche A Commitment and the Tranche B Commitment set
forth opposite the name of that Lender on Schedule 1.1, as such
percentage may be increased or decreased pursuant to a Commitment
Assignment and Acceptance executed in accordance with Section 11.8.
"Real Property" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by any of
Borrowers.
"Regulation D" means Regulation D, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the
Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Repurchased Shares" means the shares of Common Stock purchased
pursuant to the Common Stock Repurchase.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit F, signed by a Responsible Official
of Borrowers, on behalf
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of Borrowers, and properly completed to provide all information required
to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if
the Commitments are then in effect, Lenders having in the aggregate
66-2/3% or more of the Commitments then in effect and (b) as of any date
of determination if the Commitments have then been suspended or
terminated and there is then any Indebtedness evidenced by the Notes,
Lenders holding Notes evidencing in the aggregate 66-2/3% or more of the
aggregate Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) any Senior Officer of Borrowers
and (b) any other responsible official of Borrowers so designated in a
written notice thereof from a Senior Officer to the Administrative
Agent. The Lenders shall be entitled to conclusively rely upon any
document or certificate that is signed or executed by a Responsible
Official of Borrowers or any of its Subsidiaries as having been
authorized by all necessary corporate, partnership and/or other action
on the part of Borrowers or such Subsidiary.
"Right of Others" means, as to any Property in which a Person has
an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, including any option or right
to acquire a Lien; provided, however, that (a) no covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person and (b) no provision contained in
a contract creating a right of payment or performance in favor of a
Person that conditions, limits, restricts, diminishes, transfers or
terminates such right shall be deemed to constitute a Right of Others.
"Security Agreement" means the security agreement to be executed
and delivered pursuant to Article 8 by Borrowers, in the form of Exhibit
G, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Senior Officer" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) the chief financial
officer or (e) the treasurer, in each case of Borrowers.
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"Sibling Guarantors" means (a) Safeskin Corporation (Thailand)
Limited, a Thailand corporation, and (b) any other Subsidiary of Parent
from time to time designated by the Requisite Lenders.
"Sibling Guaranty" means the continuing guaranty of the
Obligations to be executed and delivered pursuant to Article 8 by the
Sibling Guarantors, in the form of Exhibit H, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Special Eurodollar Circumstance" means the application or
adoption after the Closing Date of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration
thereof, or compliance by any Lender or its Eurodollar Lending Office
with any request or directive (whether or not having the force of Law)
of any such Governmental Agency, central bank or comparable authority.
"Subordinated Obligations" means any Indebtedness of Borrowers
that (a) does not have any scheduled principal payment, mandatory
principal prepayment or sinking fund payment due prior to the date that
is one year after the Maturity Date, (b) is not secured by any Lien on
any Property of Borrowers or any of their Subsidiaries, (c) is not
guarantied by any Subsidiary of Borrowers, (d) is subordinated by its
terms in right of payment to the Obligations pursuant to provisions
acceptable to the Requisite Lenders, (e) is subject to such financial
and other covenants and events of defaults as may be acceptable to the
Requisite Lenders and (f) is subject to customary interest blockage and
delayed acceleration provisions as may be acceptable to the Requisite
Lenders.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in any case, characterized as such or as a
"joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability company,
of which a majority of the securities having ordinary voting power for
the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are
at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership, of
which a majority of the partnership or other ownership interests are at
the time beneficially owned by such Person and/or one or more of its
Subsidiaries.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the fact
or situation described
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therein is known by the Person (or, in the case of a Person other than a
natural Person, known by a Responsible Official of that Person) making
the representation, warranty or other statement, or with the exercise of
reasonable due diligence under the circumstances (in accordance with the
standard of what a reasonable Person in similar circumstances would have
done) would have been known by the Person (or, in the case of a Person
other than a natural Person, would have been known by a Responsible
Official of that Person).
"Tranche A Collateral Account" means a securities account
maintained by Borrowers with the Administrative Agent's Global Custody
Department, into which the proceeds of all Tranche A Loans shall be
deposited.
"Tranche A Commitment" means $60,000,000. The respective Pro Rata
Shares of the Lenders with respect to the Tranche A Commitment are set
forth in Schedule 1.1.
"Tranche A Loan" means a Loan under the Tranche A Commitment.
"Tranche A Note" means any of the promissory notes made by
Borrowers to a Lender evidencing Advances under that Lender's Pro Rata
Share of the Tranche A Commitment, substantially in the form of Exhibit
I, either as originally executed or as the same may from time to time be
supplemented, modified, amended, extended or supplanted.
"Tranche B Collateral Account" means a securities account
maintained by Borrowers with the Administrative Agent's Global Custody
Department, into which the proceeds of all Tranche B Loans shall be
deposited and which will accrue interest at the Overseas Offered Rate.
"Tranche B Commitment" means $40,000,000. The respective Pro Rata
shares of the Lenders with respect to the Tranche B Commitment are set
forth in Schedule 1.1.
"Tranche B Loan" means a Loan under the Tranche B Commitment.
"Tranche B Note" means any of the promissory notes made by
Borrowers to a Lender evidencing Advances under that Lender's Pro Rata
share of the Tranche B Commitment, substantially in the form of Exhibit
J, either as originally executed or as the same may from time to time be
supplemented, modified, amended or supplemented.
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Alternate Base Rate
Loan or
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Advance, a Eurodollar Rate Loan or Advance, or, only if such Loan or
Advance is a Tranche B Loan, an Overseas Offered Rate Loan or Advance.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrowers, 100%
of the capital stock or other equity interest of which is owned,
directly or indirectly, by Borrowers, except for director's qualifying
shares required by applicable Laws.
1.2 Use of Defined Terms. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 Joinder of Additional Borrowers. BVI may add additional
Borrowers at any time with the consent of the Administrative Agent. Each such
additional Borrower shall be required to become a party to this Agreement by
entering into a Joinder Agreement. Upon BVI's addition of other Borrowers,
Borrowers and the Administrative Agent will negotiate in good faith for a
decrease in the Applicable Base Rate Margin and the Applicable Eurodollar Rate
Margin based upon the creditworthiness of such additional Borrowers.
1.4 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, except as otherwise
specifically prescribed herein. In the event that GAAP changes during the term
of this Agreement such that the covenant contained in Section 6.12 would then be
calculated in a different manner or with different components, (a) Borrowers and
the Lenders agree to amend this Agreement in such respects as are necessary to
conform that covenant as a criterion for evaluating Borrowers' financial
condition to substantially the same criterion as was effective prior to such
change in GAAP and (b) Borrowers shall be deemed to be in compliance with the
covenant contained in the aforesaid Section if and to the extent that Borrowers
would have been in compliance therewith under GAAP as in effect immediately
prior to such change, but shall have the obligation to deliver each of the
materials described in Article 7 to the Administrative Agent and the Lenders, on
the dates therein specified, with financial data presented in a manner which
conforms with GAAP as in effect immediately prior to such change.
1.5 Rounding. Any financial ratios required to be maintained by
Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
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<PAGE> 31
1.6 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.7 References to "Borrowers and their Subsidiaries". Any
reference herein to "Borrowers and their Subsidiaries" or the like shall refer
solely to Borrowers during such times, if any, as Borrowers shall have no
Subsidiaries. Any reference herein to "Borrowers" shall refer to either or both
of Borrowers as the context may require.
1.8 Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, each Lender shall, pro rata according to
that Lender's Pro Rata Share of the Tranche A Commitment, make an
Advance to Borrowers under the Tranche A Commitment such that the
aggregate of all such Advances equals the Tranche A Commitment. Amounts
repaid under the Tranche A Commitment may not be reborrowed.
(b) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, each Lender shall, pro rata according to
that Lender's Pro Rata Share of the Tranche B Commitment, make an
Advance to Borrowers under the Tranche B Commitment such that the
aggregate of all such Advances equals the Tranche B Commitment. Amounts
repaid under the Tranche B Commitment may not be reborrowed.
(c) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i)
date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) in the case of a Eurodollar Rate Loan, the Eurodollar Period for
such Loan. Unless the Administrative Agent has notified, in its sole and
absolute discretion, Borrowers to the contrary, a Loan may be requested
by telephone by a Responsible Official of Borrowers, in which case
Borrowers shall confirm such request by promptly delivering a Request
for Loan (conforming to the preceding sentence) in person or by
telecopier to the Administrative Agent. The Administrative Agent shall
incur no liability whatsoever hereunder in acting upon any telephonic
request for Loan purportedly made by a Responsible Official of
Borrowers, and Borrowers hereby agree to indemnify the Administrative
Agent from any loss, cost, expense or liability as a result of so
acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date and
type of the Loan, the applicable Eurodollar Period (if a Eurodollar Rate
Loan), and that Lender's Pro Rata Share of the Loan. Not later than
10:00 a.m., California time, on the date specified for any Loan (which
must be a Banking Day), each Lender shall make its Pro Rata Share of the
Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon satisfaction or waiver
of the applicable conditions set forth in Article 8, all Advances shall
be credited on that date in immediately available funds to the
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applicable Collateral Account. Prior to the occurrence of an Event of
Default, Borrowers may withdraw funds on deposit in the Collateral
Accounts and utilize such funds for the purposes permitted under Section
5.9. Following the occurrence of an Event of Default, Borrowers may
withdraw funds on deposit in the Collateral Accounts only with the prior
written approval of the Administrative Agent.
(e) Unless the Requisite Lenders otherwise consent, each
Alternate Base Rate Loan shall be not less than $1,000,000 and in an
integral multiple of $100,000, each Eurodollar Rate Loan shall be not
less than $3,000,000 and in an integral multiple of $1,000,000, and each
Overseas Offered Rate Loan shall be not less than $10,000,000 and in an
integral multiple of $10,000,000.
(f) Notwithstanding Section 2.1(c), during the period
commencing on the Closing Date and ending on the earlier of (i) sixty
(60) days after the Closing Date or (ii) the completion of the
syndication process referred to in Section 5.14, Borrowers may not
request a Eurodollar Rate Loan with a Eurodollar Period longer than one
(1) month.
(g) The Advances made by each Lender under the Tranche A
Commitment shall be evidenced by that Lender's Tranche A Note, and the
Advances made by each Lender under the Tranche B Commitment shall be
evidenced by that Lender's Tranche B Note.
(h) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(i) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(b), if applicable) has
been made within the requisite notice periods set forth in Section 2.2
or 2.3 prior to the end of the Eurodollar Period for any outstanding
Eurodollar Rate Loan, then on the last day of such Eurodollar Period,
such Eurodollar Rate Loan shall be automatically converted into an
Alternate Base Rate Loan in the same amount.
2.2 Alternate Base Rate Loans. Each request by Borrowers for an
Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 11:00 a.m. California time, on the
date (which must be a Banking Day) immediately prior to the date of the
requested Alternate Base Rate Loan. All Loans shall constitute Alternate Base
Rate Loans unless properly designated as a Eurodollar Rate Loan pursuant to
Section 2.3 or an Overseas Offered Rate Loan pursuant to Section 2.4.
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2.3 Eurodollar Rate Loans.
(a) Each request by Borrowers for a Eurodollar Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other
request for Loan referred to in the second sentence of Section 2.1(b),
if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m., California
time, at least three (3) Eurodollar Banking Days before the first day of
the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period, the
Administrative Agent shall confirm its determination of the applicable
Eurodollar Rate (which determination shall be conclusive in the absence
of manifest error) and promptly shall give notice of the same to
Borrowers and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than ten (10) Eurodollar Rate Loans
shall be outstanding at any one time, not more than three (3) of which
shall have a Eurodollar Period of shorter than one (1) month.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to
fund any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Overseas Offered Rate Loans. Each request by Borrowers for
an Overseas Offered Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m., California time, at
least three (3) Banking Days prior to the date of the requested Overseas Offered
Rate Loan. Overseas Offered Rate Loans may remain such only for so long as their
proceeds are on deposit with the Administrative Agent's Grand Cayman Islands
Branch in an account held in the Tranche B Collateral Account. Immediately upon
Borrower's withdrawal of the proceeds of an Overseas Offered Rate Loan from such
account held in the Tranche B Collateral Account for a use permitted under
Section 5.9, such Overseas Offered Rate Loan shall be converted into an
Alternate Base Rate Loan or, if properly designated as such by Borrower pursuant
to Section 2.3, a Eurodollar Rate Loan.
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2.5 Optional Termination of Commitments. Following the
occurrence of a Change in Control, the Requisite Lenders may in their sole and
absolute discretion elect, during the thirty (30) day period immediately
subsequent to the later of (a) such occurrence or (b) the earlier of (i) receipt
of Borrowers' written notice to the Administrative Agent of such occurrence or
(ii) if no such notice has been received by the Administrative Agent, the date
upon which the Administrative Agent has actual knowledge thereof, to terminate
the Commitments, in which case the Commitments shall be terminated, and all
outstanding Loans shall be repaid, effective on the date which is thirty (30)
days subsequent to written notice from the Administrative Agent to Borrowers
thereof.
2.6 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount avail able to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrowers a corresponding amount. If the Administrative Agent has made funds
available to Borrowers based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrowers and Borrowers shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such correspond ing amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrowers to the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitments, or to prejudice any
rights which the Administrative Agent or Borrowers may have against any Lender
as a result of any default by such Lender hereunder.
2.7 Collateral. The Obligations shall be secured by a first
priority (subject to Liens permitted by Section 6.9) perfected Lien on the
Collateral pursuant to the Collateral Documents.
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Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date thereof until
payment in full is made and shall accrue and be payable at the rates set
forth or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan shall
be due and payable on each Monthly Payment Date. Except as otherwise
provided in Sections 3.1(e) and 3.6, the unpaid principal amount of any
Alternate Base Rate Loan shall bear interest at a fluctuating rate per
annum equal to the Alternate Base Rate plus the Applicable Base Rate
Margin. Each change in the interest rate under this Section 3.1(b) due
to a change in the Alternate Base Rate shall take effect simultaneously
with the corresponding change in the Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is
for a term of three months or less shall be due and payable on the last
day of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is three
months after the date such Eurodollar Rate Loan was made and on the last
day of the related Eurodollar Period. Except as otherwise provided in
Sections 3.1(e) and 3.6, the unpaid principal amount of any Eurodollar
Rate Loan shall bear interest at a rate per annum equal to the
Eurodollar Rate for that Eurodollar Rate Loan plus the Applicable
Eurodollar Rate Margin.
(d) Interest accrued on each Overseas Offered Rate Loan
shall be due and payable on each Monthly Payment Date. Except as
otherwise provided in Sections 3.1(e) and 3.6, the unpaid principal
amount of any Overseas Offered Rate Loan shall bear interest at a rate
per annum equal to the Overseas Offered Rate plus the Applicable
Overseas Offered Rate Margin.
(e) During the existence of an Event of Default, the Loans
shall bear interest at a rate equal to the sum of (i) the interest rate
specified in Sections 3.1(b), 3.1(c) or 3.1(d), whichever is applicable
plus (ii) such incremental rate not in excess of 2% per annum as may be
specified by the Requisite Lenders.
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(f) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable on the Maturity Date:
(g) The principal Indebtedness evidenced by the Notes shall
be prepaid on or before the third Banking Day following the receipt by
Borrowers or any of their Subsidiaries of (i) Net Cash Sales Proceeds
from the Disposition of the physical plant in Malaysia owned by Safeskin
Corporation (Malaysia) SDN BHD by an amount equal to fifty percent (50%)
of such Net Cash Sales Proceeds, (ii) Net Cash Sales Proceeds from
Dispositions (other than the Disposition of the physical plant in
Malaysia referred to in clause (i) above) in excess of $3,000,000 in any
Fiscal Year, by an amount equal to the amount of such Net Cash Sales
Proceeds in excess of $3,000,000, (iii) Net Cash Issuance Proceeds from
the issuance of debt securities of Borrowers or any of their
Subsidiaries (except an issuance of debt securities to Borrowers or to a
Wholly-Owned Subsidiary), by an amount equal to 100% of such Net Cash
Issuance Proceeds and (iv) Net Cash Issuance Proceeds from the issuance
of equity securities of Borrowers or any of their Subsidiaries (except
an issuance of equity securities to Borrowers or to a Wholly-Owned
Subsidiary or to employees or former employees of Borrowers pursuant to
an employee stock option plan maintained by Borrowers), by an amount
equal to 100% of such Net Cash Issuance Proceeds. All prepayments made
by Borrowers pursuant to this Section 3.1(g) shall be applied first to
reduce the unpaid principal balance of the Tranche B Loans and
thereafter to reduce the unpaid principal balance of the Tranche A
Loans.
(h) The principal Indebtedness evidenced by the Notes may,
at any time and from time to time, voluntarily be paid or prepaid in
whole or in part without premium or penalty, except that with respect to
any voluntary prepayment under this Subsection, (i) any partial
prepayment shall be not less than $1,000,000 and shall be an integral
multiple of $500,000, (ii) the Administrative Agent shall have received
written notice of any prepayment by 9:00 a.m. California time on the
date that is one (1) Banking Day before the date of prepayment (which
must be a Banking Day) in the case of an Alternate Base Rate Loan, and,
in the case of a Eurodollar Rate Loan or an Overseas Offered Rate Loan,
three (3) Banking Days before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s) being
prepaid, (iii) each prepayment of principal on any Eurodollar Rate Loan
or Overseas Offered Rate Loan shall be accompanied by payment of
interest accrued to the date of payment on the amount of principal paid,
and (iv) any payment or prepayment of all or any part of any Eurodollar
Rate Loan on a day other than the last day of the applicable Eurodollar
Period shall be subject to Section 3.4(e).
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3.2 Arranger and Agency Fees. On the Closing Date and on each
other date upon which a fee is payable, Borrowers shall pay to the Arranger and
the Administrative Agent such fees as heretofore agreed upon by letter agreement
between Borrowers and the Arranger. The fees paid to the Arranger and the
Administrative Agent are solely for their own account and are nonrefundable.
3.3 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling such Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority not imposed as a result of such
Lender's or such corporation's failure to comply with any other Laws, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this Agreement, then, within
five (5) Banking Days after demand of such Lender, Borrowers shall pay to such
Lender, from time to time as specified in good faith by such Lender, additional
amounts sufficient to compensate such Lender in light of such circumstances, to
the extent reasonably allocable to such obligations under this Agreement,
provided that Borrowers shall not be obligated to pay any such amount which
arose prior to the date which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which is ninety (90) days
preceding the date of such demand. Each Lender's determination of such amounts
shall be conclusive in the absence of manifest error.
3.4 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to the Eurodollar
Obligations of that Lender, Borrowers shall pay that Lender within five
(5) Banking Days after demand all amounts necessary to compensate such
Lender (determined as though such Lender's Eurodollar Lending Office had
funded 100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market) in respect of the imposition of such reserve requirements
(provided, that Borrowers shall not be obligated to pay any such amount
which arose prior to the date which is ninety (90) days preceding the
date of such demand or is attributable to periods prior to the date
which is ninety (90) days preceding the date of such demand).
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The Lender's determination of such amount shall be conclusive in the
absence of manifest error.
(b) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of payments to
any Lender attributable to the principal of or interest on any
Eurodollar Rate Advance or any other amounts due under this
Agreement in respect of any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Advances, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income by (A) any
jurisdiction (or political subdivision thereof) in which it is
organized or maintains its principal office or Eurodollar
Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business" and (ii) any withholding
taxes or other taxes based on gross income imposed by the United
States of America for any period with respect to which it has
failed to provide Borrowers with the appropriate form or forms
required by Section 11.21, to the extent such forms are then
required by applicable Laws;
(2) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof (including
any reserve imposed by the Board of Governors of the Federal
Reserve System, special deposit, capital or similar requirements
against assets of, deposits with or for the account of, or credit
extended by, any Lender or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any other
condition affecting any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans, its obligation to make
Eurodollar Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar Lending
Office of making or maintaining any Eurodollar Rate Advance or in
respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate Advances
or reduces the amount of any sum received or receivable by such Lender
or its Eurodollar Lending Office
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with respect to any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate Advances
(assuming such Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market), then,
within five (5) Banking Days after demand by such Lender (with a copy to
the Administrative Agent), Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance
in the Designated Eurodollar Market); provided, that Borrowers shall not
be obligated to pay any such amount which arose prior to the date which
is ninety (90) days preceding the date of such demand or is attributable
to periods prior to the date which is ninety (90) days preceding the
date of such demand. A statement of any Lender claiming compensation
under this subsection shall be conclusive in the absence of manifest
error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good faith opinion
of any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrowers. Upon receipt of such notice,
the outstanding principal amount of such Lender's Eurodollar Rate
Advances, together with accrued interest thereon, automatically shall be
converted to Alternate Base Rate Advances on either (1) the last day of
the Eurodollar Period(s) applicable to such Eurodollar Rate Advances if
such Lender may lawfully continue to maintain and fund such Eurodollar
Rate Advances to such day(s) or (2) immediately if such Lender may not
lawfully continue to fund and maintain such Eurodollar Rate Advances to
such day(s), provided that in such event the conversion shall not be
subject to payment of a prepayment fee under Section 3.4(e). Each Lender
agrees to endeavor promptly to notify Borrowers of any event of which it
has actual knowledge, occurring after the Closing Date, which will cause
that Lender to notify the Administrative Agent under this Section, and
agrees to designate a different Eurodollar Lending Office if such
designation will avoid the need for such notice and will not, in the
good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. In the event that any Lender is unable,
for the reasons set forth above, to make, maintain or fund its portion
of any Eurodollar Rate Loan, such Lender shall fund such amount as an
Alternate Base Rate Advance for the same period of time, and such amount
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shall be treated in all respects as an Alternate Base Rate Advance. Any
Lender whose obligation to make Eurodollar Rate Advances has been
suspended under this Section shall promptly notify the Administrative
Agent and Borrowers of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable
control of the Lenders, deposits in Dollars (in the applicable
amounts) are not being offered to any Lender in the Designated
Eurodollar Market for the applicable Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent (i) does not represent the effective pricing
to such Lenders for deposits in Dollars in the Designated
Eurodollar Market in the relevant amount for the applicable
Eurodollar Period, or (ii) will not adequately and fairly reflect
the cost to such Lenders of making the applicable Euro dollar
Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrowers and the Lenders, whereupon until the Administrative Agent
notifies Borrowers that the circumstances giving rise to such suspension
no longer exist, the obligation of the Lenders to make any future
Eurodollar Rate Advances shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate
Advance (other than as the result of a conversion required under Section
3.4(c)) on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration,
or otherwise), or upon the failure of Borrowers (for a reason other than
the breach by a Lender of its obligation pursuant to Section 2.1(a) to
make an Advance) to borrow on the date or in the amount specified for a
Eurodollar Rate Loan in any Request for Loan, Borrowers shall pay to the
appropriate Lender within five (5) Banking Days after demand a
prepayment fee or failure to borrow fee, as the case may be (determined
as though 100% of the Eurodollar Rate Advance had been funded in the
Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
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(2) the amount, if any, by which (i) the additional
interest would have accrued on the amount prepaid or not borrowed
at the Eurodollar Rate plus the Applicable Eurodollar Rate Margin
if that amount had remained or been outstanding through the last
day of the applicable Eurodollar Period exceeds (ii) the interest
that the Lender could recover by placing such amount on deposit
in the Designated Eurodollar Market for a period beginning on the
date of the prepayment or failure to borrow and ending on the
last day of the applicable Eurodollar Period (or, if no deposit
rate quotation is available for such period, for the most
comparable period for which a deposit rate quotation may be
obtained); plus
(3) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify
Borrowers of any event of which it has actual knowledge, occurring after
the Closing Date, which will entitle such Lender to compensation
pursuant to clause (a) or clause (b) of this Section, and agrees to
designate a different Eurodollar Lending Office if such designation will
avoid the need for or reduce the amount of such compensation and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender
under this Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrowers, a calculation of
the amount due, and a certification that the corresponding costs have
been incurred by the Lender.
3.5 Late Payments. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus 2%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including,
without limitation, interest on past due interest) shall be compounded monthly,
on the last day of each calendar month, to the fullest extent permitted by
applicable Laws.
3.6 Computation of Interest and Fees. Computation of interest
and fees under this Agreement shall be calculated on the basis of a year of 360
days and the actual number of days elapsed. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for
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the day on which the Loan or such portion is paid. Any Loan that is repaid on
the same day on which it is made shall bear interest for one day.
Notwithstanding anything in this Agreement to the contrary, interest in excess
of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.7 Non-Banking Days. If any payment to be made by Borrowers or
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.8 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to
Sections 3.3, 3.4, 11.3, 11.11 and 11.22) or on the Notes or under any
other Loan Document shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of each of the Lenders or
the Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a Banking Day). All payments received after such time, on
any Banking Day, shall be deemed received on the next succeeding Banking
Day. The amount of all payments received by the Administrative Agent for
the account of each Lender shall be immediately paid by the
Administrative Agent to the applicable Lender in immediately available
funds and, if such payment was received by the Administrative Agent by
11:00 a.m., California time, on a Banking Day and not so made available
to the account of a Lender on that Banking Day, the Administrative Agent
shall reimburse that Lender for the cost to such Lender of funding the
amount of such payment at the Federal Funds Rate. All payments shall be
made in lawful money of the United States of America.
(b) Borrowers hereby authorizes the Administrative Agent to
debit the general operating bank account of Borrowers to effect any
payment due to the Lenders or the Administrative Agent pursuant to this
Agreement. Any resulting overdraft in such account shall be payable by
Borrowers to the Administrative Agent on the next following Banking Day.
(c) Each payment or prepayment on account of any Loan shall
be applied pro rata according to the outstanding Advances made by each
Lender comprising such Loan.
(d) Each Lender shall use its best efforts to keep a record
(in writing or by an electronic data entry system) of Advances made by
it and
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payments received by it with respect to each of its Notes and, subject
to Section 10.6(g), such record shall, as against Borrowers, be
presumptive evidence of the amounts owing. Notwithstanding the foregoing
sentence, the failure by any Lender to keep such a record shall not
affect Borrowers' obligation to pay the Obligations.
(e) Each payment of any amount payable by Borrowers or any
other Party under this Agreement or any other Loan Document shall be
made free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency, central
bank or comparable authority, excluding (i) taxes imposed on or measured
in whole or in part by its overall net income by (A) any jurisdiction
(or political subdivision thereof) in which it is organized or maintains
its principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is "doing
business" and (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with
respect to which it has failed to provide Borrowers with the appropriate
form or forms required by Section 11.21, to the extent such forms are
then required by applicable Laws (all such non-excluded taxes,
assessments or other charges being hereinafter referred to as "Taxes").
To the extent that Borrowers are obligated by applicable Laws to make
any deduction or withholding on account of Taxes from any amount payable
to any Lender under this Agreement, Borrowers shall (i) make such
deduction or withholding and pay the same to the relevant Governmental
Agency and (ii) pay such additional amount to that Lender as is
necessary to result in that Lender's receiving a net after-Tax amount
equal to the amount to which that Lender would have been entitled under
this Agreement absent such deduction or withholding. If and when receipt
of such payment results in an excess payment or credit to that Lender on
account of such Taxes, that Lender shall promptly refund such excess to
Borrowers.
3.9 Funding Sources. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.10 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.5), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.5), fee, cost or other
amount payable under any Loan Document, or to
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calculate an amount payable by another method that is not inconsistent with this
Agreement, on any other or subsequent occasion.
3.11 Administrative Agent's Right to Assume Payments Will be
Made. Unless the Administrative Agent shall have been notified by Borrowers
prior to the date on which any payment to be made by Borrowers hereunder is due
that Borrowers do not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that Borrowers have remitted such payment when so
due and the Administrative Agent may, in its discretion and in reliance upon
such assumption, make available to each Lender on such payment date an amount
equal to such Lender's share of such assumed payment. If Borrowers have not in
fact remitted such payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such assumed
payment made available to such Lender, together with interest thereon in respect
of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.12 Fee Determination Detail. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrowers regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under Article 3 has been determined, concurrently with demand for
such payment.
3.13 Survivability. All of Borrowers' obligations under Sections
3.3 and 3.4 shall survive for the ninety (90) day period following the date on
which the Commitment is terminated and all Loans hereunder are fully paid, and
Borrowers shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrowers prior to the expiration of such period.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
Each of Borrowers is a corporation or other legal entity duly formed, validly
existing and in good standing under the Laws of its jurisdiction of
incorporation or organization. Each of Borrowers is duly qualified or registered
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so to qualify
or register and to be in good standing would not constitute a Material Adverse
Effect. Each of Borrowers has all requisite power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. The chief
executive offices of BVI are located in the British Virgin Islands. All
outstanding shares of capital stock of Borrowers are duly authorized, validly
issued, fully paid and non-assessable, and no holder thereof has any enforceable
right of rescission under any applicable state or federal securities Laws.
Borrowers are in compliance with all Laws and other legal requirements
applicable to their business, have obtained all authorizations, consents,
approvals, orders, licenses and permits from, and have accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, obtain authorizations,
etc., file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by each
Borrower and the Sibling Guarantors of the Loan Documents to which it is a Party
have been duly authorized by all necessary corporate action, and do not and will
not:
(a) Require any consent or approval not heretofore obtained
of any partner, director, stockholder, security holder or creditor of
such Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any
Lien (other than pursuant to the Loan Documents) or Right of Others upon
or with respect to any Property now owned or leased or hereafter
acquired by such Party;
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(d) Violate any Requirement of Law applicable to such Party;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual
Obligation to which such Party is a party or by which such Party or any
of its Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 4.2(e), in any respect that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as previously
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be required to authorize or permit under applicable Laws the execution,
delivery and performance by each Borrower or any Sibling Guarantor of the Loan
Documents to which it is a Party.
4.4 Subsidiaries. Except to the extent of (a) BVI's beneficial
and equitable interest in certain shares of the capital stock of Safeskin
Corporation (Thailand) Limited, a Thailand corporation, and (b) BVI's beneficial
and equitable interest in certain shares of the capital stock of Safeskin
Corporation (Malaysia) SDN BHD, Borrowers do not have any Subsidiaries.
4.5 Financial Statements. Borrowers have furnished to the
Lenders (a) the audited financial statements of Parent for the Fiscal Year ended
December 31, 1997 and (b) the unaudited balance sheet and statement of
operations of Borrowers for the Fiscal Quarter ended March 31, 1998. The
financial statements described in clause (a) fairly present in all material
respects the financial condition, results of operations and changes in financial
position, and the balance sheet and statement of operations described in clause
(b) fairly present in all material respects the financial condition and results
of operations of Borrowers as of such dates and for such periods in conformity
with GAAP consistently applied, subject only to normal year-end accruals and
audit adjustments and except for the lack of footnotes.
4.6 No Other Liabilities; No Material Adverse Changes. Borrowers
and their Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed, and not reflected or
disclosed, in the balance sheet described in Section 4.5(b), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since March 31, 1998.
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4.7 Title to and Location of Property. Borrowers and their
Subsidiaries have valid title to the Property (other than assets which are the
subject of a Capital Lease Obligation) reflected in the balance sheet described
in Section 4.5(b), other than items of Property or exceptions to title which are
in each case immaterial and Property subsequently sold or disposed of in the
ordinary course of business. Such Property is free and clear of all Liens and
Rights of Others, other than Liens or Rights of Others described in Schedule
4.7A and Permitted Encumbrances and Permitted Rights of Others.
4.8 Intangible Assets. Borrowers and their Subsidiaries own, or
possess the right to use to the extent necessary in their respective businesses,
all material trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that are used in the
conduct of their businesses as now operated, and no such Intangible Asset, to
the best knowledge of Borrowers, conflicts with the valid trademark, trade
name, copyright, patent, patent right or Intangible Asset of any other Person to
the extent that such conflict constitutes a Material Adverse Effect. Except as
set forth in Schedule 4.8, Borrowers have not used any trade name, trade style
or "dba" during the five year period ending on the Closing Date.
4.9 Public Utility Holding Company Act. None of Borrowers nor
any of their Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrowers or any of their
Subsidiaries of less than $1,000,000, (c) matters of an administrative nature
not involving a claim or charge against Borrowers or any of their Subsidiaries
and (d) matters set forth in Schedule 4.10, there are no actions, suits,
proceedings or investigations pending as to which Borrowers or any of their
Subsidiaries have been served or have received notice or, to the best knowledge
of Borrowers, threatened against or affecting Borrowers or any of their
Subsidiaries or any Property of any of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to which
Borrowers and any Sibling Guarantor is a Party will, when executed and delivered
by such Party, constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
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4.12 No Default. No event has occurred and is continuing that is
a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the extent
that noncompliance could reasonably be expected to have a
Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that could reasonably be expected to have a Material
Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043
of ERISA, but excluding such events as to which the PBGC has by
regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) has
occurred that could reasonably be expected to have a Material
Adverse Effect; and
(iv) neither of Borrowers nor any of their
Subsidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that could
reasonably be expected to have a Material Adverse Effect.
(b) Neither of Borrowers nor any of their Subsidiaries has
incurred or expects to incur any withdrawal liability to any
Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
4.14 Regulation U; Investment Company Act. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U. Neither of Borrowers nor any of their Subsidiaries
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior Officer to
the Administrative Agent or any Lender in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
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4.16 Tax Liability. Borrowers and their Subsidiaries have filed
all tax returns which are required to be filed, and have paid, or made provision
for the payment of, all taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment received by
Borrowers or any of their Subsidiaries, except (a) such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained and (b) immaterial taxes
so long as no material Property of Borrowers or any of their Subsidiaries is at
impending risk of being seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowledge
of Borrowers, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrowers, and the
Projections are reasonably based on such assumptions. Nothing in this Section
4.17 shall be construed as a representation or covenant that the Projections in
fact will be achieved.
4.18 Hazardous Materials. Except as described in Schedule 4.18,
as of the Closing Date (a) neither Borrowers nor any of their Subsidiaries at
any time has disposed of, discharged, released or threatened the release of any
Hazardous Materials on, from or under the Real Property in violation of any
Hazardous Materials Law that would individually or in the aggregate constitute a
Material Adverse Effect, (b) to the best knowledge of Borrowers, no condition
exists that violates any Hazardous Material Law affecting any Real Property
except for such violations that would not individually or in the aggregate
constitute a Material Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by Borrowers or any of their Subsidiaries as a
site for the manufacture of any Hazardous Materials and (d) to the extent that
any Hazardous Materials are used, generated or stored by Borrowers or any of
their Subsidiaries on any Real Property, or transported to or from such Real
Property by Borrowers or any of their Subsidiaries, such use, generation,
storage and transportation are in compliance with all Hazardous Materials Laws
except for such non-compliance that would not constitute a Material Adverse
Effect or be materially adverse to the interests of the Lenders.
4.19 Security Interests. Upon the execution and delivery of the
Security Agreement, the Security Agreement will create a valid first priority
security interest in the Collateral described therein securing the Obligations
(subject only to Permitted Encumbrances, Permitted Rights of Others and other
matters permitted by Section 6.9 and to such qualifications and exceptions as
are contained in the Uniform Commercial Code with respect to the priority of
security interests perfected by means other than the filing of a financing
statement or with respect to the creation of security interests in Property to
which Division 9 of the Uniform Commercial Code does not apply) and all actions
necessary to perfect the security interests so created, other than filing of the
UCC-1 financing statements delivered to the Administrative Agent pursuant to
Section 8.1 with the appropriate Governmental Agency, have been taken and
completed. Upon the execution and delivery of the Pledge Agreement, the Pledge
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Agreement will create a valid first priority security interest in the Pledged
Collateral and upon delivery of the Pledged Collateral to the Administrative
Agent all action necessary to perfect the security interest so created will have
been taken and completed.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall, and shall cause their Subsidiaries to, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, except that
Borrowers and their Subsidiaries shall not be required to pay or cause to be
paid (a) any tax, assessment, charge or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax so long as no material Property of Borrowers or
its Subsidiaries is at impending risk of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) a merger permitted by
Section 6.3 or as otherwise permitted by this Agreement and (b) where the
failure to so qualify or remain qualified would not constitute a Material
Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
a particular item of Property that is at the end of its useful life or that is
not of significant value, either intrinsically or to the operations of
Borrowers, shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrowers and their Subsidiaries
operate.
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5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except that
Borrowers and their Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not so
as to materially interfere with the business of Borrowers or any of their
Subsidiaries) permit the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies and
abstracts from the records and books of account of, and to visit and inspect the
Properties of, Borrowers and their Subsidiaries and to discuss the affairs,
finances and accounts of Borrowers and their Subsidiaries with any of their
officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all financial transactions in conformity
with GAAP, consistently applied, and in material conformity with all applicable
require ments of any Governmental Agency having regulatory jurisdiction over
Borrowers and their Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with
all Contractual Obligations to which any one or more of them is a party, except
for any such Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by appropriate
proceedings or (c) if the failure to comply does not constitute a Material
Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of the Tranche A Loan to
fund the Common Stock Repurchase and use the proceeds of the Tranche B Loan to
finance Capital Expenditures and for general corporate purposes.
5.10 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable Hazardous Materials Laws, (b) any
and all material claims made or threatened in writing by any Person against
Borrowers relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from any Hazardous Materials and (c) discovery by any Senior
Officer of any of Borrowers of any material occurrence or condition on any real
Property adjoining or in the vicinity of such Real Property that could
reasonably be expected to cause such Real Property or any part thereof to be
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subject to any restrictions on the ownership, occupancy, transferability or use
of such Real Property under any applicable Hazardous Materials Laws.
5.11 Future Subsidiaries. Pledge all of the capital stock of any
Domestic Subsidiary (other than an Inactive Subsidiary), and 65% of the capital
stock of any Foreign Subsidiary, formed or acquired after the Closing Date
pursuant to the Pledge Agreement, and cause each such Domestic Subsidiary and
Foreign Subsidiary (other than an Inactive Subsidiary) to execute and deliver an
appropriate joinder to the Sibling Guaranty and the Security Agreement.
5.12 Future Real Property. Promptly following acquisition by
Borrowers of any fee simple real property, execute and deliver to the
Administrative Agent a deed of trust or mortgage in form and substance
acceptable to the Administrative Agent creating a first priority Lien on such
real property securing the Obligations, and provide to the Administrative Agent
such customary lender's title insurance policies, appraisals, environmental
reports and other related documents as the Administrative Agent may reasonably
request.
5.13 Year 2000 Compliance. Take such steps as are reasonably
necessary to assure that, prior to November 1, 1999, (a) Borrowers and their
Subsidiaries are Year 2000 Compliant and (b) all customers and vendors of
Borrowers and their Subsidiaries that are material to the business of Borrowers
and whose ability to perform their business obligations to Borrowers may be
materially affected by their not being Year 2000 Compliant are Year 2000
Compliant. Such steps shall include the performance of a comprehensive review
and assessment of all data storage and operating systems and the adoption of a
detailed plan and budget for the remediation, monitoring and testing of such
systems. The term "Year 2000 Compliant" means, for purposes of the foregoing,
that all hardware, software, firmware, equipment, goods and systems used by a
Person, or which are material to the business operations or financial condition
of a Person, will properly perform date-sensitive functions on and after January
1, 2000.
5.14 Syndication Process. Cooperate in such respects as may be
requested by the Arranger in connection with the syndication of the credit
facilities under this Agreement, including the provision of information (in form
and substance acceptable to the Arranger) for inclusion in written materials
furnished to prospective syndicate members and the participation by Senior
Officers in meetings with prospective syndicate members. Nothing in this Section
5.14 shall obligate Borrowers to amend any Loan Document.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrowers
shall not, and shall not permit any of their Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Payment of Subordinated Obligations. Pay any (a) principal
(including sinking fund payments) or any other amount (other than scheduled
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
any monies, securities or other Property with any trustee or other Person to
provide assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation or (b) scheduled interest on any Subordinated
Obligation unless the payment thereof is then permitted pursuant to the terms of
the indenture or other agreement governing such Subordinated Obligation.
6.2 Disposition of Property. Make any Disposition of their
Property, whether now owned or hereafter acquired, except (a) a Disposition by
Borrowers to a Wholly-Owned Subsidiary, or by a Subsidiary to Borrowers or a
Wholly-Owned Subsidiary, (b) a Disposition by Safeskin Corporation (Malaysia)
SDN BHD of all or substantially all of its physical plant in Malaysia, and (c) a
Disposition (other than the Disposition referred to in clause (b) above) for
which the Net Cash Sales Proceeds, when added to the aggregate Net Cash Sales
Proceeds of all Dispositions made during that Fiscal Year, does not exceed
$5,000,000.
6.3 Mergers. Merge or consolidate with or into any Person,
except mergers and consolidations of a Subsidiary of Borrowers into Borrowers or
a Wholly-Owned Subsidiary or of Subsidiaries with each other.
6.4 Hostile Acquisitions. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent (5%) or more in any corporation or other
business entity if such acquisition is opposed by the board of directors of such
corporation or business entity.
6.5 Acquisitions. Make any Acquisition, except Acquisitions of
Persons engaged in the same line of business as Borrowers if the aggregate
consideration paid and payable by Borrowers during the term of this Agreement in
respect of all such Acquisitions and in respect of all transactions related to
all such Acquisitions does not exceed $7,500,000; provided that, prior to any
such Acquisition,
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Borrowers furnish to the Administrative Agent a Certificate which demonstrates
that, giving effect to such Acquisition on a pro-forma basis, Borrowers would
have been in compliance with Section 6.12 for each of the four (4) Fiscal
Quarters most recently-ended and is projected to be in compliance with such
Section throughout the term of this Agreement.
6.6 Distributions. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, except distributions
by any Subsidiary of Borrowers to Borrowers or any Wholly-Owned Subsidiary.
6.7 ERISA. At any time, permit any Pension Plan to: (i) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
6.8 Change in Nature of Business. Make any material change in
the nature of the business of Borrowers and its Subsidiaries, taken as a whole.
6.9 Liens and Negative Pledges. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, except:
(a) Liens and Negative Pledges existing on the Closing Date
and disclosed in Schedule 4.7 and any renewals/extensions or amendments
thereof, provided that the obligations secured or benefited thereby are
not increased;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Permitted Encumbrances;
(d) Liens on Property acquired by Borrowers or any of their
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such acquisition;
and
(e) Non-consensual Liens securing Indebtedness of not more
than $500,000, provided that such Liens are discharged within thirty
(30) days after their incurrence by Borrowers.
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6.10 Indebtedness and Guaranty Obligations. Create, incur or
assume any Indebtedness or Guaranty Obligation except:
(a) Indebtedness and Guaranty Obligations existing on the
Closing Date and disclosed in Schedule 6.10, and refinancings, renewals,
extensions or amendments that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
(c) Indebtedness and Guaranty Obligations owed to Borrowers
or any of their Subsidiaries;
(d) Indebtedness consisting of debt securities for which the
Net Cash Issuance Proceeds will be applied as a mandatory prepayment
pursuant to Section 3.1(f);
(e) Indebtedness consisting of Interest Rate Protection
Agreements; and
(f) Guaranty Obligations in support of the obligations of a
Wholly-Owned Subsidiary, provided that such obligations are not
prohibited by this Agreement.
6.11 Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of Borrowers other than (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors (or executive committee thereof) of Borrowers and
expressly authorized by a resolution of the board of directors (or executive
committee) of Borrowers which is approved by a majority of the directors (or
executive committee) not having an interest in the transaction, (c) transactions
between or among Borrowers and their Subsidiaries and (d) transactions on
overall terms at least as favorable to Borrowers or their Subsidiaries as would
be the case in an arm's-length transaction between unrelated parties of equal
bargaining power.
6.12 Leverage Ratio. Permit the Leverage Ratio as of September
30, 1998, to be greater than 3.00 to 1.00.
6.13 Investments. Make or suffer to exist any Investment, other
than:
(a) Investments in existence on the Closing Date and
disclosed on Schedule 6.13;
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(b) Investments consisting of Cash Equivalents;
(c) Investments consisting of advances to officers,
directors and employees of Borrowers and its Subsidiaries for travel,
entertainment, relocation, anticipated bonus and analogous ordinary
business purposes;
(d) Investments in a Domestic Subsidiary that is a
Wholly-Owned Subsidiary;
(e) Investments consisting of the extension of credit to
customers or suppliers of Borrowers and their Subsidiaries in the
ordinary course of business and any Investments received in satisfaction
or partial satisfaction thereof;
(f) Investments received in connection with the settlement
of a bona fide dispute with another Person;
(g) Investments representing all or a portion of the sales
price of Property sold or services provided to another Person;
(h) Investments in any Subsidiary of Parent to finance
Capital Expenditures by such Subsidiary in an aggregate amount in any
Fiscal Year, when combined with all other Capital Expenditures of
Borrower made in such Fiscal Year, not in excess of $40,000,000; and
(i) Investments not described above not in excess of $50,000
in any Fiscal Year.
6.14 Capital Expenditures. Make any Capital Expenditure in any
Fiscal Year, if to do so would result in the aggregate of all Capital
Expenditures and all Investments pursuant to Section 6.13(h) made in such Fiscal
Year to exceed (a) $40,000,000.
6.15 Operating Leases. Incur any obligation to pay rent under an
operating lease in any Fiscal Year if to do so would result in the aggregate
obligation of Borrowers and their Subsidiaries to pay rent under all operating
leases in that Fiscal Year to exceed $1,000,000.
6.16 Subsidiary Indebtedness. Permit (whether or not otherwise
permitted under Section 6.10) any Subsidiary to create, incur, assume or suffer
to exist any Indebtedness or Guaranty Obligation, except (a) Indebtedness and
Guaranty Obligations in existence on the Closing Date, (b) a Guaranty Obligation
required by Section 5.11, (c) Indebtedness owed to Borrowers or another
Subsidiary of Borrowers
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and (d) Capital Lease Obligations and purchase money obligations of a Subsidiary
in respect of Property used by that Subsidiary.
6.17 Amendments to Subordinated Obligations. Amend or modify any
term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation in any respect that will or may adversely
affect the interests of the Lenders.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrowers shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrowers' sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, the consolidated and consolidating
balance sheet of Parent and its Subsidiaries as at the end of such
Fiscal Quarter and the consolidated and consolidating statements of
operations and cash flows for such Fiscal Quarter, and the portion of
the Fiscal Year ended with such Fiscal Quarter, all in reasonable
detail. Such financial statements shall be certified by the chief
financial officer of Borrowers as fairly presenting the financial
condition, results of operations and cash flows of Parent and its
Subsidiaries in accordance with GAAP (other than footnote disclosures),
consistently applied, as at such date and for such periods, subject only
to normal year-end accruals and audit adjustments;
(b) Promptly after request by the Administrative Agent or
any Lender, copies of any detailed audit reports, by independent
accountants in connection with the accounts or books of Borrowers or any
of its Subsidiaries, or any audit of any of them;
(c) Promptly after the same are available, and in any event
within five (5) Banking Days after filing with the Securities and
Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of
Borrowers, and copies of all annual, regular, periodic and special
reports and registration statements which Borrowers may file or be
required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and not otherwise required to be delivered to the Lenders pursuant to
other provisions of this Section 7.1;
(d) Promptly after request by the Administrative Agent or
any Lender, copies of any other report or other document that was filed
by Borrowers with any Governmental Agency;
(e) Promptly upon a Senior Officer becoming aware, and in
any event within five (5) Banking Days after becoming aware, of the
occurrence
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of any (i) "reportable event" (as such term is defined in Section 4043
of ERISA, but excluding such events as to which the PBGC has by
regulation waived the requirement therein contained that it be notified
within thirty days of the occurrence of such event) or (ii) non-exempt
"prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Pension Plan or any
trust created thereunder, telephonic notice specifying the nature
thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and
specifying what action Borrowers are taking or proposes to take with
respect thereto, and, when known, any action taken by the Internal
Revenue Service with respect thereto;
(f) As soon as practicable, and in any event within two (2)
Banking Days after a Senior Officer becomes aware of the existence of
any condition or event which constitutes a Default or Event of Default,
telephonic notice specifying the nature and period of existence thereof,
and, no more than two (2) Banking Days after such telephonic notice,
written notice again specifying the nature and period of existence
thereof and specifying what action Borrowers are taking or proposes to
take with respect thereto;
(g) Promptly upon a Senior Officer becoming aware that (i)
any Person has commenced a legal proceeding with respect to a claim
against Borrowers that is $1,000,000 or more in excess of the amount
thereof that is fully covered by insurance, (ii) any creditor under a
credit agreement involving Indebtedness of $1,000,000 or more or any
lessor under a lease involving aggregate rent of $1,000,000 or more has
asserted a default thereunder on the part of Borrowers or, (iii) any
Person has commenced a legal proceeding with respect to a claim against
Borrowers under a contract that is not a credit agreement or material
lease with respect to a claim of in excess of $1,000,000 or which
otherwise may reasonably be expected to result in a Material Adverse
Effect, a written notice describing the pertinent facts relating thereto
and what action Borrowers are taking or proposes to take with respect
thereto; and
(h) Such other data and information as from time to time may
be reasonably requested by the Administrative Agent, any Lender (through
the Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitment remains outstanding, Borrowers shall, at Borrowers' sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Section 7.1(a),
a Compliance Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 Initial Advances. The obligation of each Lender to make the
initial Advance to be made by it is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal counsel (unless
otherwise specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and
Borrowers;
(2) the Tranche A Notes executed by Borrowers in favor
of each Lender, each in a principal amount equal to that Lender's
Pro Rata Share of the Tranche A Commitment;
(3) the Tranche B Notes executed by Borrowers in favor
of each Lender, each in a principal amount equal to that Lender's
Pro Rata Share of the Tranche B Commitment;
(4) the Sibling Guaranty executed by the Sibling
Guarantors;
(5) the Pledge Agreements executed by Borrowers and by
Parent;
(6) the Pledged Collateral, together with executed
undated stock powers relating thereto;
(7) the Security Agreement executed by Borrowers;
(8) such financing statements on Form UCC-1 executed by
Borrowers with respect to the Security Agreement as the
Administrative Agent may request;
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(9) with respect to Borrowers and the Sibling
Guarantors, such documentation as the Administrative Agent may
reasonably require to establish the due organization, valid
existence and good standing of Borrowers and the Sibling
Guarantors, their qualification to engage in business in each
material jurisdiction in which they are engaged in business or
required to be so qualified, their authority to execute, deliver
and perform the Loan Documents to which it is a Party, the
identity, authority and capacity of each Responsible Official
thereof authorized to act on its behalf, including certified
copies of articles of incorporation and amendments thereto,
bylaws and amendments thereto, certificates of good standing
and/or qualification to engage in business, tax clearance
certificates, certificates of corporate resolutions, incumbency
certificates, Certificates of Responsible Officials, and the
like;
(10) a Form U-1 executed by Borrowers;
(11) the Opinions of Counsel;
(12) a Certificate of the chief financial officer of
Borrowers certifying that the representation contained in Section
4.17 is, to the best of his or her knowledge, true and correct;
(13) a Certificate of the chief financial officer of
Borrowers certifying that the conditions specified in Sections
8.1(e) and 8.1(f) have been satisfied; and
(14) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the Requisite
Lenders reasonably may require.
(b) The fees payable on the Closing Date pursuant to
Section 3.2 shall have been paid.
(c) The Administrative Agent shall be reasonably satisfied
that, upon the filing of the financing statements described in Section
8.1(a)(7) with the appropriate Governmental Agencies, the Lenders will
hold a first priority perfected Lien in the Collateral subject only to
Permitted Encumbrances.
(d) The reasonable costs and expenses of the Administrative
Agent in connection with the preparation of the Loan Documents payable
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pursuant to Section 11.3, and invoiced to Borrowers prior to the Closing
Date, shall have been paid.
(e) The representations and warranties of Borrowers
contained in Article 4 shall be true and correct in all material
respects.
(f) Borrowers and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and giving
effect to the initial Advance, no Default or Event of Default shall have
occurred and be continuing.
(g) All legal matters relating to the Loan Documents shall
be satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special
counsel to the Administrative Agent.
(h) The Closing Date shall have occurred on or before July
30, 1998.
8.2 Any Advance. The obligation of each Lender to make any
Advance is subject to the following conditions precedent (unless the Requisite
Lenders or, in any case where the approval of all of the Lenders is required
pursuant to Section 11.2, all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by this Agreement or
(ii) as disclosed by Borrowers and approved in writing by the Requisite
Lenders, the representa tions and warranties contained in Article 4
(other than Sections 4.4, 4.6 (first sentence), 4.10 and 4.17) shall be
true and correct in all material respects on and as of the date of the
Advance as though made on that date;
(b) no circumstance or event shall have occurred that
constitutes a Material Adverse Effect since the Closing Date;
(c) other than matters described in Schedule 4.10 or not
required as of the Closing Date to be therein described, there shall not
be then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrowers or any of their
Subsidiaries or any Property of any of them before any Governmental
Agency that constitutes a Material Adverse Effect;
(d) the Administrative Agent shall have timely received a
Request for Loan (or telephonic or other request for Loan referred to in
the
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second sentence of Section 2.1(b), if applicable) in compliance with
Article 2; and
(e) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrowers fail to pay any principal on any of the Notes,
or any portion thereof, on the date when due; or
(b) Borrowers fail to pay any interest on any of the Notes,
or any fees under Sections 3.3 or 3.4, or any portion thereof, within
two (2) Banking Days after the date when due; or fail to pay any other
fee or amount payable to the Lenders under any Loan Document, or any
portion thereof, within two (2) Banking Days after demand therefor; or
(c) Borrowers fail to comply with the covenant contained in
Section 5.16 or any of the covenants contained in Article 6; or
(d) Borrowers fail to comply with Section 7.1(i) in any
respect that is materially adverse to the interests of the Lenders; or
(e) Borrowers or any other Party fails to perform or observe
any other covenant or agreement (not specified in clause (a), (b), (c)
or (d) above) contained in any Loan Document on its part to be performed
or observed within twenty (20) Banking Days after the giving of notice
by the Administrative Agent on behalf of the Requisite Lenders of such
Default or, if such Default is not reasonably susceptible of cure within
such period, within such longer period as is reasonably necessary to
effect a cure so long as such Borrowers or such Party continues to
diligently pursue cure of such Default but not in any event in excess of
forty (40) Banking Days; or
(f) Any representation or warranty of Borrowers or any other
Party made in any Loan Document, or in any certificate or other writing
delivered by Borrowers or such Party pursuant to any Loan Document,
proves to have been incorrect when made or reaffirmed in any respect
that is materially adverse to the interests of the Lenders; or
(g) Any of Borrowers or any Affiliate of Borrowers (i) fails
to pay the principal, or any principal installment, of any present or
future Indebtedness of $5,000,000 or more, or any guaranty of present or
future Indebtedness of $5,000,000 or more, on its part to be paid, when
due (or within any stated grace period), whether at the stated maturity,
upon acceleration, by
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reason of required prepayment or otherwise or (ii) fails to perform or
observe any other term, covenant or agreement on its part to be
performed or observed, or suffers any event of default to occur, in
connection with any present or future Indebtedness of $5,000,000 or
more, or of any guaranty of present or future Indebtedness of $5,000,000
or more, if as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their behalf) has the
right to declare such Indebtedness due before the date on which it
otherwise would become due or the right to require any of Borrowers or
any Affiliate of Borrowers to redeem or purchase, or offer to redeem or
purchase, all or any portion of such Indebtedness; or
(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or
omission to act) of the Administrative Agent or the Lenders or
satisfaction in full of all the Obligations, ceases to be in full force
and effect or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect which is
materially adverse to the interests of the Lenders; or any Collateral
Document ceases (other than by action or inaction of the Administrative
Agent or any Lender) to create a valid and effective Lien in any
material portion of the Collateral; or any Party thereto denies in
writing that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind same; or
(i) A final judgment against any of Borrowers is entered for
the payment of money in excess of $1,000,000 (not covered by insurance
or for which an insurer has reserved its rights) and, absent procurement
of a stay of execution, such judgment remains unsatisfied for thirty
(30) calendar days after the date of entry of judgment, or in any event
later than five (5) days prior to the date of any proposed sale
thereunder; or any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the
Property of Borrowers and is not released, vacated or fully bonded
within thirty (30) calendar days after its issue or levy; or
(j) Any of Borrowers institutes or consents to the
institution of any proceeding under a Debtor Relief Law relating to it
or to all or any material part of its Property, or is unable or admits
in writing its inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any
material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent
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of that Person and continues undismissed or unstayed for sixty (60)
calendar days; or
(k) The occurrence of an Event of Default (as such term is
or may hereafter be specifically defined in any other Loan Document)
under any other Loan Document; or
(l) Any holder of a Subordinated Obligation of more than
$5,000,000 asserts in writing that such Subordinated Obligation is not
subordinated to the Obligations in accordance with its terms and
Borrowers does not promptly deny in writing such assertion and contest
any attempt by such holder to take action based on such assertion; or
(m) Any Pension Plan maintained by Borrowers is finally
determined by the PBGC to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess of
an amount equal to 5% of the consolidated total assets of Borrowers as
of the most-recently ended Fiscal Quarter; or
(n) The Requisite Lenders determine in good faith that a
circumstance or event has occurred that constitutes a Material Adverse
Effect.
9.2 Remedies Upon Event of Default. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section
9.1(j):
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall be suspended without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, except that
all of the Lenders or the Requisite Lenders (as the case may be,
in accordance with Section 11.2) may waive an Event of Default
or, without waiving, determine, upon terms and conditions
satisfactory to the Lenders or Requisite Lenders, as the case may
be, to reinstate the Commitment and such other obligations and
rights and make further Advances, which waiver or determination
shall apply equally to, and shall be binding upon, all the
Lenders; and
(2) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall,
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terminate the Commitment and/or declare all or any part of the
unpaid principal of all Notes, all interest accrued and unpaid
thereon and all other amounts payable under the Loan Documents to
be forthwith due and payable, whereupon the same shall become and
be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrowers.
(b) Upon the occurrence of any Event of Default described
in Section 9.1(j):
(1) the Commitment to make Advances and all other
obligations of the Administrative Agent or the Lenders and all
rights of Borrowers and any other Parties under the Loan
Documents shall termi nate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, except that
all of the Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to all
the Lenders, to reinstate the Commitment and such other
obligations and rights and make further Advances, which
determination shall apply equally to, and shall be binding upon,
all the Lenders; and
(2) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents shall be forthwith due and payable, without
protest, present ment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by
Borrowers.
(c) Upon the occurrence of any Event of Default, the
Lenders and the Administrative Agent, or any of them, without notice to
(except as expressly provided for in any Loan Document) or demand upon
Borrowers, which are expressly waived by Borrowers (except as to notices
expressly provided for in any Loan Document), may proceed (but only with
the consent of the Requisite Lenders) to protect, exercise and enforce
their rights and remedies under the Loan Documents against Borrowers and
any other Party and such other rights and remedies as are provided by
Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied
first to the costs and expenses (including reasonable attorneys' fees
and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro
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rata to the Lenders in the same proportions that the aggregate
Obligations owed to each Lender under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to all the Lenders,
without priority or preference among the Lenders. Regardless of how each
Lender may treat payments for the purpose of its own accounting, for the
purpose of computing Borrowers' Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the
Administrative Agent and the Lenders, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to
and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each
of the Loan Documents), and third, to the payment of all other amounts
(including principal and fees) then owing to the Administrative Agent or
the Lenders under the Loan Documents. No application of payments will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, except as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Union Bank of
California, N.A. (and each successor Administrative Agent) has the same rights
and powers under the Loan Documents as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" includes Union Bank of California, N.A. in its individual capacity.
Union Bank of California, N.A. (and each successor Administrative Agent) and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with Borrowers, any Subsidiary thereof,
or any Affiliate of Borrowers or any Subsidiary thereof, as if it were not the
Administrative Agent and without any duty to account therefor to the Lenders.
Union Bank of California, N.A. (and each successor Administrative Agent) need
not account to any other Lender for any monies received by it for reimbursement
of its costs and expenses as Administrative Agent hereunder, or (subject to
Section 11.10) for any monies received by it in its capacity as a Lender
hereunder. The Administrative Agent shall not be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Lenders'
rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Lender) and subject to the application of payments in accordance with
Section 9.2(d), each Lender shall have an interest in the Lenders' interest in
such collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the Loan
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Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrowers and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of
the existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent
(or the Lender that is then the Administrative Agent) has received
notice from Borrowers stating the nature of the Default or has received
notice from a Lender stating the nature of the Default and that such
Lender considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that
no Event of Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act
or not act, except that the Administrative Agent shall be required to
act or not act upon the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 11.2) and those
instructions shall be binding upon the Administrative Agent and all the
Lenders, provided that the Administrative Agent shall not be required to
act or not act if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite
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Lenders (or of all the Lenders, to the extent required by Section 11.2),
provided that the Administrative Agent shall not be required to act or
not act if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Requisite Lenders (or all
the Lenders, if required under Section 11.2) fail, for five (5) Banking
Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its
sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting, or not acting, as instructed by the Requisite Lenders
(or all the Lenders, if required under Section 11.2), notwithstanding
any other provision hereof.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender;
(b) May consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrowers and/or
their Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts;
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents;
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(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrowers or its Subsidiaries of any of the terms,
conditions or covenants of any of the Loan Documents or to inspect any
collateral or any Property, books or records of Borrowers or their
Subsidiaries;
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral;
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate,
statement, request or other instrument or writing believed in good faith
by it to be genuine and signed or sent by the proper party or parties;
and
(g) Will not incur any liability for any arithmetical error
in computing any amount paid or payable by Borrowers or any Subsidiary
or Affiliate thereof or paid or payable to or received or receivable
from any Lender under any Loan Document, including, without limitation,
principal, interest, commitment fees, Advances and other amounts;
provided that, promptly upon discovery of such an error in computation,
the Administrative Agent, the Lenders and (to the extent applicable)
Borrowers and/or its Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance
with its Pro Rata Share of the Commitment (if the Commitment are then in effect)
or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitment have then been terminated), indemnify
and hold the Administrative Agent and its directors, officers, agents, employees
and attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including reasonable attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent) that may be imposed on, incurred by or asserted against it or them in any
way relating to or arising out of the Loan Documents (other than losses incurred
by reason of the failure of Borrowers to pay the Indebtedness represented by the
Notes) or any action taken or not taken by it as Administrative Agent
thereunder, except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for that Lender's Pro Rata Share of any
out-of-pocket cost or expense incurred by the Administrative Agent in connection
with the negotiation, preparation, execution, delivery, amendment, waiver,
restruc-
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turing, reorganization (including a bankruptcy reorganization), enforcement or
attempted enforcement of the Loan Documents, to the extent that Borrowers or any
other Party is required by Section 11.3 to pay that cost or expense but fails to
do so upon demand. Nothing in this Section 10.7 shall entitle the Administrative
Agent or any indemnitee referred to above to recover any amount from the Lenders
if and to the extent that such amount has theretofore been recovered from
Borrowers or any of its Subsidiaries. To the extent that the Administrative
Agent or any indemnitee referred to above is later reimbursed such amount by
Borrowers or any of its Subsidiaries, it shall return the amounts paid to it by
the Lenders in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrowers effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrowers (and such approval shall not be unreasonably withheld
or delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrowers, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if (a) the Administrative Agent has not been paid
its agency fees under Section 3.4 or has not been reimbursed for any expense
reimbursable to it under Section 11.3, in either case for a period of at least
one (1) year and (b) no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty (30) days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Administrative Agent as provided for above.
10.9 No Obligations of Borrowers. Nothing contained in this
Article 10 shall be deemed to impose upon Borrowers any obligation in respect of
the due and punctual performance by the Administrative Agent of its obligations
to the Lenders under any provision of this Agreement, and Borrowers shall have
no liability
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to the Administrative Agent or any of the Lenders in respect of any failure by
the Administrative Agent or any Lender to perform any of its obligations to the
Administrative Agent or the Lenders under this Agreement. Without limiting the
generality of the foregoing, where any provision of this Agreement relating to
the payment of any amounts due and owing under the Loan Documents provides that
such payments shall be made by Borrowers to the Administrative Agent for the
account of the Lenders, Borrowers' obligations to the Lenders in respect of such
payments shall be deemed to be satisfied upon the making of such payments to the
Administrative Agent in the manner provided by this Agreement. In addition,
Borrowers may rely on a written statement by the Administrative Agent to the
effect that it has obtained the written consent of the Requisite Lenders or all
of the Lenders, as applicable under Section 11.2, in connection with a waiver,
amendment, consent, approval or other action by the Lenders hereunder, and shall
have no obligation to verify or confirm the same.
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Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of Article 8 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrowers are a
Party, signed by Borrowers, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only in
the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any
Note, or the amount of the Commitment or the Pro Rata Share of any
Lender or the amount of any commitment fee payable to any Lender, or any
other fee or amount payable to any Lender under the Loan Documents or to
waive an Event of Default consisting of the failure of Borrowers to pay
when due principal, interest or any fee;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any
Note or any installment of any fee, or to extend the term of the
Commitment;
(c) To amend the provisions of the definition of "Requisite
Lenders" or "Maturity Date"; or
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(d) To release any Sibling Guarantor from the Sibling
Guaranty or to release any material Collateral from the Lien of the
Collateral Documents, except if such release of material Collateral
occurs in connection with a Disposition permitted under Section 6.2, in
which case such release shall not require the consent of any of the
Lenders; or
(e) To amend or waive Article 8 or this Section 11.2; or
(f) To amend any provision of this Agreement that expressly
requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrowers shall pay within five
(5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrowers shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructur ing, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (including reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrowers or any Subsidiary
thereof. Borrowers shall pay any and all documentary and other taxes, excluding
(i) taxes imposed on or measured in whole or in part by a Lender's overall net
income imposed on it by (A) any jurisdiction (or political subdivision thereof)
in which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business" or (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with respect to
which it has failed to provide Borrowers with the appropriate form or forms
required by Section 11.21, to the extent such forms are then required by
applicable Laws, and all costs, expenses, fees and charges payable or determined
to be payable in connection with the filing or recording of this Agreement, any
other Loan Document or any other instrument or writing to be
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delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in 11.11 the Administrative Agent and the Lenders from and
against any and all loss, liability or legal or other expense with respect to or
resulting from any delay in paying or failure to pay any such tax, cost,
expense, fee or charge or that any of them may suffer or incur by reason of the
failure of any Party to perform any of its Obligations. Any amount payable to
the Administrative Agent or any Lender under this Section 11.3 shall bear
interest from the fifth Banking Day following the date of demand for payment at
the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrowers or any Affiliate of any of Borrowers. A default by any Lender will
not increase the Pro Rata Share of the Commitment attributable to any other
Lender. Any Lender not in default may, if it desires, assume in such proportion
as the nondefaulting Lenders agree the obligations of any Lender in default, but
is not obligated to do so. The Administrative Agent agrees that it will use its
best efforts either to induce promptly the other Lenders to assume the
obligations of a Lender in default or to obtain promptly another Lender,
reasonably satisfactory to Borrowers, to replace such a Lender in default.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or
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cable, when delivered to the telegraph company with charges prepaid; if given by
telecopier, when sent; if dispatched by commercial courier, on the scheduled
delivery date; or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrowers are a Party will be binding upon and inure to the benefit of
Borrowers, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that Borrowers may not assign
its rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Each Lender
represents that it is not acquiring its Note with a view to the
distribution thereof within the meaning of the Securities Act of 1933,
as amended (subject to any requirement that disposition of such Note
must be within the control of such Lender). Any Lender may at any time
pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such
pledge shall release that Lender from its obligations hereunder or grant
to such Federal Reserve Bank the rights of a Lender hereunder absent
foreclosure of such pledge.
(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all or any portion
of its Pro Rata Share of the Commitment; provided that (i) such Eligible
Assignee, if not then a Lender or an Affiliate of the assigning Lender,
shall be approved by the Administrative Agent and (if no Event of
Default then exists) Borrowers (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment shall be
evidenced by a Commitment Assignment and Acceptance, a copy of which
shall be furnished to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining
Commitment of the assigning Lender, the assignment shall not assign a
Pro Rata Share of the
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Commitment that is equivalent to less than $5,000,000 and (iv) the
effective date of any such assignment shall be as specified in the
Commitment Assignment and Acceptance, but not earlier than the date
which is five (5) Banking Days after the date the Administrative Agent
has received the Commitment Assignment and Acceptance. Upon the
effective date of such Commitment Assignment and Acceptance, the
Eligible Assignee named therein shall be a Lender for all purposes of
this Agreement, with the Pro Rata Share of the Commitment therein set
forth and, to the extent of such Pro Rata Share, the assigning Lender
shall be released from its further obligations under this Agreement.
Borrowers agrees that it shall execute and deliver (against delivery by
the assigning Lender to Borrowers of its Notes) to such assignee Lender,
Notes evidencing that assignee Lender's Pro Rata Share of the
Commitment, and to the assigning Lender, Notes evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment and
Acceptance, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share of the Commitment being
assigned thereby free and clear of any adverse claim, the assigning
Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or
the performance by Borrowers of the Obligations; (iii) it has received a
copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment Assignment
and Acceptance; (iv) 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 decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by this Agreement; and (vi) it
will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitment Assignment and
Acceptance delivered to it and a register (the "Register") of the names
and address of each of the Lenders and the Pro Rata Share of the
Commitment held
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by each Lender, giving effect to each Commitment Assignment and
Acceptance. The Register shall be available during normal business hours
for inspection by Borrowers or any Lender upon reasonable prior notice
to the Administrative Agent. After receipt of a completed Commitment
Assignment and Acceptance executed by any Lender and an Eligible
Assignee, and receipt of an assignment fee of $3,000 from such Lender or
Eligible Assignee, the Administrative Agent shall, promptly following
the effective date thereof, provide to Borrowers and the Lenders a
revised Schedule 1.1 giving effect thereto. Borrowers, the
Administrative Agent and the Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the Pro
Rata Share of the Commitment listed therein for all purposes hereof, and
no assignment or transfer of any such Pro Rata Share of the Commitment
shall be effective, in each case unless and until a Commitment
Assignment and Acceptance effecting the assignment or transfer thereof
shall have been accepted by the Administrative Agent and recorded in the
Register as provided above. Prior to such recordation, all amounts owed
with respect to the applicable Pro Rata Share of the Commitment shall be
owed to the Lender listed in the Register as the owner thereof, and any
request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Pro Rata Share of
the Commitment.
(e) Each Lender may from time to time grant participations
to one or more banks or other financial institutions in a portion of its
Pro Rata Share of the Commitment; provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participating banks
or other financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the
purposes of Sections 3.3, 3.4, 11.11 and 11.22 but only to the extent
that the cost of such benefits to Borrowers does not exceed the cost
which Borrowers would have incurred in respect of such Lender absent the
participation, (iv) Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Lender's Pro Rata Share of the Commitment as
it then exists and shall not restrict an increase in the Commitment, or
in the granting Lender's Pro Rata Share of the Commitment, so long as
the amount of the participation interest is not affected thereby and
(vi) the consent of the holder of such participation interest shall not
be required for amendments or waivers of provisions of the Loan
Documents other than those which (A) extend any Amortization Date, the
Maturity Date or any other date upon which any payment of money is due
to the Lenders,
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(B) reduce the rate of interest on the Notes, any fee or any other
monetary amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes, (D) release any Sibling
Guarantor from the Sibling Guaranty, or (E) release any material
Collateral from the Lien of the Collateral Documents, except if such
release of material Collateral occurs in connection with a Disposition
permitted under Section 6.2.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrowers and/or any Property of Borrowers in its possession against
the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against Borrowers, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion that existed
prior to the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment; and (b) such other adjustments and purchases of
participations shall be made from time to time as shall be equitable to ensure
that all of the Lenders share any payment obtained in respect of the Obligations
ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; provided that, if all or
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Borrowers or any Person claiming through
or succeeding to the rights of Borrowers, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the
extent of the recovery, but without interest. Each Lender that purchases a
participation in the Obligations pursuant to this Section 11.10 shall from and
after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Borrowers expressly
consents to the foregoing arrangements and agree that any Lender holding a
participation in an Obligation so purchased pursuant to this Section 11.10 may
exercise any and all rights of setoff, banker's lien or
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counterclaim with respect to the participation as fully as if the Lender were
the original owner of the Obligation purchased.
11.11 Indemnity by Borrowers. Borrowers agree to indemnify, save
and hold harmless the Administrative Agent and each Lender and their respective
directors, officers, agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrowers, their Affiliates or any of
their officers, directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, or the relationship of Borrowers and
the Lenders under this Agreement; (b) any administrative or investigative
proceed ing by any Governmental Agency arising out of or related to a claim,
demand, action or cause of action described in clause (a) above; and (c) any and
all liabilities, losses, reasonable costs or expenses (including reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct or for any loss asserted against it by another
Indemnitee. If any claim, demand, action or cause of action is asserted against
any Indemnitee, such Indemnitee shall promptly notify Borrowers, but the failure
to so promptly notify Borrowers shall not affect Borrowers' obligations under
this Section unless such failure materially prejudices Borrowers' right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrowers
in writing) contest the validity, applicability and amount of such claim,
demand, action or cause of action and shall permit Borrowers to participate in
such contest. Any Indemnitee that proposes to settle or compromise any claim or
proceeding for which Borrowers may be liable for pay ment of indemnity hereunder
shall give Borrowers written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrowers' prior consent (which shall not be
unreasonably withheld or delayed). In connection with any claim, demand, action
or cause of action covered by this Section 11.11 against more than one
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attorneys employed by an
Indemnitee or a combination of the foregoing) selected by the Indemnitees and
reasonably acceptable to Borrowers; provided, that if such legal counsel
determines in good faith that representing all such Indemnitees would or could
result in a conflict of interest under Laws or ethical principles applicable to
such legal counsel or that a defense or counter claim is available to an
Indemnitee that is not available to all such Indemnitees, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall
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be entitled to separate representation by legal counsel selected by that
Indemnitee and reasonably acceptable to Borrowers, with all such legal counsel
using reasonable efforts to avoid unnecessary duplication of effort by counsel
for all Indemnitees; and further provided that the Administrative Agent (as an
Indemnitee) shall at all times be entitled to representation by separate legal
counsel (which may be a law firm or attorneys employed by the Administrative
Agent or a combination of the foregoing). Any obligation or liability of
Borrowers to any Indemnitee under this Section 11.11 shall survive the
expiration or termination of this Agreement and the repayment of all Loans and
the payment and performance of all other Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrowers acknowledge and
agree that:
(a) Any inspections of any Property of Borrowers made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrowers are not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrowers);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or
the Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same, or
of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrowers and the
Administrative Agent and the Lenders is, and shall at all times remain,
solely that of borrowers and lenders; neither the Administrative Agent
nor the Lenders shall under any circumstance be construed to be partners
or joint venturers of Borrowers or their Affiliates; neither the
Administrative Agent nor the Lenders shall under any circumstance be
deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrowers or their Affiliates, or to owe any fiduciary
duty to Borrowers or their Affiliates; neither the Administrative Agent
nor the Lenders undertake or assume any responsibility or duty to
Borrowers or their Affiliates to select, review, inspect, supervise,
pass judgment upon or inform Borrowers or their Affiliates of any matter
in connection with their Property or the operations of Borrowers or
their Affiliates; Borrowers and their Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Administrative Agent or the Lenders in
connection with such matters is solely for the protection of the
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Administrative Agent and the Lenders and neither Borrowers nor any other
Person is entitled to rely thereon; and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrowers
and/or its Affiliates and Borrowers hereby indemnify and hold the
Administrative Agent and the Lenders harmless on the terms set forth in
Section 11.11 from any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrowers, the Administrative Agent and the Lenders in connection with the
Loans, and is made for the sole benefit of Borrowers, the Administrative Agent
and the Lenders, and the Administrative Agent's and the Lenders' successors and
assigns. Except as provided in Sections 11.8 and 11.11, no other Person shall
have any rights of any nature hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from Borrowers pursuant to this
Agreement in confidence, except for disclosure: (a) to other Lenders or
Affiliates of a Lender; (b) to legal counsel and accountants for Borrowers or
any Lender; (c) to other professional advisors to Borrowers or any Lender,
provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section 11.14; (d) to
regulatory officials having jurisdiction over that Lender; (e) as required by
Law or legal process, provided that each Lender agrees to notify Borrowers of
any such disclosures unless prohibited by applicable Laws, or in connection with
any legal proceeding to which that Lender and Borrowers are adverse parties; and
(f) to another financial institution in connection with a disposition or
proposed disposition to that financial institution of all or part of that
Lender's interests hereunder or a participation interest in its Notes, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 11.14. For purposes of the
foregoing, "confidential information" shall mean any information respecting
Borrowers or their Subsidiaries reasonably considered by Borrowers to be
confidential, other than (i) information previously filed with any Governmental
Agency and available to the public, (ii) information previously published in any
public medium from a source other than, directly or indirectly, that Lender, and
(iii) information previously disclosed by Borrowers to any Person not associated
with Borrowers which does not owe a professional duty of confidentiality to
Borrowers or which has not executed an appropriate confidentiality agreement
with Borrowers. Nothing in this Section shall be construed to create or give
rise to any fiduciary duty on the part of the Administrative Agent or the
Lenders to Borrowers.
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11.15 Further Assurances. Borrowers shall, at its expense and
without expense to the Lenders or the Administrative Agent, do, execute and
deliver such further acts and documents as the Requisite Lenders or the
Administrative Agent from time to time reasonably require for the assuring and
confirming unto the Lenders or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
Documents and the letter agreement referred to in Sections 3.2, 3.4, and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Administrative Agent or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
11.17 Governing Law; JURISDICTION AND VENUE. Except to the extent
otherwise provided therein, each Loan Document shall be governed by, and
construed and enforced in accordance with, the Laws of California applicable to
contracts made and performed in California. THE PARTIES AGREE THAT ALL ACTIONS
OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA,
OR, AT THE SOLE OPTION OF THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ANY OTHER
COURT IN WHICH THE ADMINISTRATIVE AGENT AND/OR ANY LENDER SHALL INITIATE LEGAL
OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. THE PARTIES EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH COURT, AND
THE PARTIES HEREBY WAIVE ANY OBJECTION THEY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY ANY SUCH COURT. FURTHERMORE, THE PARTIES
HEREBY WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT THEY MAY
HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO
THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.17.
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11.18 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrowers (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrowers pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by the Borrowers pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if reasonably necessary, Form
W-9) satisfactory to Borrowers and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Lender.
Thereafter and from time to time, each such Lender shall (a) promptly submit to
Borrowers (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrowers and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Lender by Borrowers pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Eurodollar Lending
Office, if any) to avoid any requirement of applicable Laws that Borrowers make
any deduction or withholding for taxes from amounts payable to such Lender. In
the event that Borrowers or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrowers or the Administrative
Agent to the Lender which granted
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<PAGE> 89
such participation, such Lender shall cause such participant financial
institution to deliver the same documents and information to Borrowers and the
Administrative Agent as would be required under this Section if such financial
institution were a Lender.
11.22 Hazardous Material Indemnity. Borrowers hereby agree to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action require ments, enforcement actions of any kind, and all reasonable costs
and expenses incurred in connection therewith (including but not limited to
reasonable attorneys' fees and the reasonably allocated costs of attorneys
employed by the Administrative Agent or any Lender, and expenses to the extent
that the defense of any such action has not been assumed by Borrowers), arising
directly or indirectly out of (i) the presence on, in, under or about any Real
Property of any Hazardous Materials, or any releases or discharges of any
Hazardous Materials on, under or from any Real Property and (ii) any activity
carried on or undertaken on or off any Real Property by Borrowers or any of its
predecessors in title, whether prior to or during the term of this Agreement,
and whether by Borrowers or any predecessor in title or any employees, agents,
contractors or subcontractors of Borrowers or any predecessor in title, or any
third persons at any time occupying or present on any Real Property, in
connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Materials at any time located
or present on, in, under or about any Real Property. The foregoing indemnity
shall further apply to any residual contamination on, in, under or about any
Real Property, or affecting any natural resources, and to any contamination of
any Property or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials,
and irrespective of whether any of such activities were or will be undertaken in
accordance with applicable Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Real Property, the presence of which is caused by the
Administrative Agent or the Lenders. Borrowers hereby acknowledge and agrees
that, notwithstanding any other provision of this Agreement or any of the other
Loan Documents to the contrary, the obligations of Borrowers under this Section
shall be unlimited corporate obligations of Borrowers and shall not be secured
by any Lien on any Real Property. Any obligation or liability of Borrowers to
any Indemnitee under this Section 11.22 shall survive the expiration or
termination of this Agreement and the repayment of all Loans and the payment and
performance of all other Obligations owed to the Lenders.
11.23 Joint and Several. Each of Borrowers shall be obligated for
all of the Obligations on a joint and several basis, notwithstanding which of
Borrowers may have directly received the proceeds of any particular Loan. Each
of Borrowers waive
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<PAGE> 90
all defenses arising under the Laws of suretyship, to the extent such Laws are
applicable, in connection with its joint and several obligations under this
Agreement. Without limiting the foregoing, each of Borrowers agrees to the Joint
Borrower Provisions set forth in Exhibit K, incorporated by this reference.
11.24 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.25 Purported Oral Amendments. BORROWERS EXPRESSLY ACKNOWLEDGE
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWERS AGREE THAT THEY
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE MANAGING AGENT OR ANY BANK THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN
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AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
SAFESKIN (B.V.I.), LIMITED
By:
----------------------------------------
William LaRue
Director, Treasurer and Assistant Secretary
Address:
Safeskin (B.V.I.), Limited
P.O. Box 173
Road Town
Tortola, British Virgin Islands
Attn: William LaRue
Director, Treasurer and Assistant
Secretary
Telecopier: ______________
Telephone: ______________
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UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
By:
----------------------------------------
Douglas S. Lambell
Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
----------------------------------------
Bruce Breslau
Vice President
Address for notices to Administrative Agent
for borrowings and payments:
Union Bank of California, N.A.
Commercial Portfolio Administration
500 South Main Street, 2nd Floor
Orange, California 92868
Attn: Douglas S. Lambell
Telecopier: (714) 565-7770
Telephone: (714) 565-5716
Address for notices as a Lender:
Union Bank of California, N.A.
Commercial Lending
530 B Street, 4th Floor
San Diego, California 92101
Attn: Bruce Breslau
Telecopier: (619) 230-3766
Telephone: (619) 230-3758
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<PAGE> 1
EXHIBIT 10.45
REVOLVING/TERM LOAN AGREEMENT
Dated as of July 30, 1998
among
SAFESKIN CORPORATION
THE LENDERS HEREIN NAMED
and
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
<PAGE> 2
TABLE OF CONTENTS
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Article 1 DEFINITIONS AND ACCOUNTING TERMS.............................. 1
1.1 Defined Terms................................................. 1
1.2 Use of Defined Terms.......................................... 29
1.3 Accounting Terms.............................................. 29
1.4 Rounding...................................................... 29
1.5 Exhibits and Schedules........................................ 29
1.6 References to "Borrower and its Subsidiaries"................. 29
1.7 Miscellaneous Terms........................................... 29
Article 2 LOANS AND LETTERS OF CREDIT................................... 30
2.1 Loans-General................................................. 30
2.2 Alternate Base Rate Loans..................................... 31
2.3 Eurodollar Rate Loans......................................... 32
2.4 Letters of Credit............................................. 32
2.5 Voluntary Reduction of Revolving Commitment................... 36
2.6 Optional Termination of Commitments........................... 37
2.7 Administrative Agent's Right to Assume
Funds Available for Advances ................................ 37
2.8 Collateral................................................... 38
Article 3 PAYMENTS AND FEES............................................. 39
3.1 Principal and Interest........................................ 39
3.2 Arranger and Agency Fees...................................... 41
3.3 Commitment Fee................................................ 41
3.4 Letter of Credit Fees......................................... 41
3.5 Increased Commitment Costs.................................... 42
3.6 Eurodollar Costs and Related Matters.......................... 42
3.7 Late Payments................................................. 47
3.8 Computation of Interest and Fees.............................. 47
3.9 Non-Banking Days.............................................. 47
3.10 Manner and Treatment of Payments.............................. 47
3.11 Funding Sources............................................... 49
3.12 Failure to Charge Not Subsequent Waiver....................... 49
3.13 Administrative Agent's Right to Assume Payments Will be Made.. 49
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3.14 Fee Determination Detail...................................... 50
3.15 Survivability................................................. 50
Article 4 REPRESENTATIONS AND WARRANTIES................................ 51
4.1 Existence and Qualification; Power; Compliance With Laws...... 51
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations.................................... 51
4.3 No Governmental Approvals Required............................ 52
4.4 Subsidiaries.................................................. 52
4.5 Financial Statements.......................................... 53
4.6 No Other Liabilities; No Material Adverse Changes............. 53
4.7 Title to and Location of Property............................. 54
4.8 Intangible Assets............................................. 54
4.9 Public Utility Holding Company Act............................ 54
4.10 Litigation.................................................... 54
4.11 Binding Obligations........................................... 54
4.12 No Default.................................................... 55
4.13 ERISA......................................................... 55
4.14 Regulation U; Investment Company Act.......................... 55
4.15 Disclosure.................................................... 56
4.16 Tax Liability................................................. 56
4.17 Projections................................................... 56
4.18 Hazardous Materials........................................... 56
4.19 Security Interests............................................ 56
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS)................................... 58
5.1 Payment of Taxes and Other Potential Liens.................... 58
5.2 Preservation of Existence..................................... 58
5.3 Maintenance of Properties..................................... 58
5.4 Maintenance of Insurance...................................... 58
5.5 Compliance With Laws.......................................... 59
5.6 Inspection Rights............................................. 59
5.7 Keeping of Records and Books of Account....................... 59
5.8 Compliance With Agreements.................................... 59
5.9 Use of Proceeds............................................... 59
5.10 Hazardous Materials Laws...................................... 59
5.11 Future Subsidiaries........................................... 60
5.12 Future Real Property.......................................... 60
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5.13 Year 2000 Compliance.......................................... 60
5.14 Syndication Process........................................... 60
Article 6 NEGATIVE COVENANTS............................................ 62
6.1 Payment of Subordinated Obligations........................... 62
6.2 Disposition of Property....................................... 62
6.3 Mergers....................................................... 62
6.4 Hostile Acquisitions.......................................... 63
6.5 Acquisitions.................................................. 63
6.6 Distributions................................................. 63
6.7 ERISA......................................................... 63
6.8 Change in Nature of Business.................................. 64
6.9 Liens and Negative Pledges.................................... 64
6.10 Indebtedness and Guaranty Obligations......................... 64
6.11 Transactions with Affiliates.................................. 65
6.12 Leverage Ratio................................................ 65
6.13 Interest Coverage Ratio....................................... 66
6.14 Fixed Charge Coverage Ratio................................... 66
6.15 Tangible Net Worth............................................ 66
6.16 Adjusted Current Ratio........................................ 67
6.17 Net Income.................................................... 67
6.18 Investments................................................... 67
6.19 Capital Expenditures.......................................... 68
6.20 Operating Leases.............................................. 68
6.21 Subsidiary Indebtedness....................................... 69
6.22 Amendments to Subordinated Obligations........................ 69
Article 7 INFORMATION AND REPORTING REQUIREMENTS........................ 70
7.1 Financial and Business Information............................ 70
7.2 Compliance Certificates....................................... 73
Article 8 CONDITIONS.................................................... 74
8.1 Initial Advances.............................................. 74
8.2 Any Advance................................................... 76
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Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT ...................................................... 78
9.1 Events of Default............................................. 78
9.2 Remedies Upon Event of Default................................ 80
Article 10 THE ADMINISTRATIVE AGENT...................................... 83
10.1 Appointment and Authorization................................. 83
10.2 Administrative Agent and Affiliates........................... 83
10.3 Proportionate Interest in any Collateral...................... 83
10.4 Lenders' Credit Decisions..................................... 84
10.5 Action by Administrative Agent................................ 84
10.6 Liability of Administrative Agent............................. 85
10.7 Indemnification............................................... 86
10.8 Successor Administrative Agent................................ 87
10.9 No Obligations of Borrower.................................... 88
Article 11 MISCELLANEOUS................................................. 89
11.1 Cumulative Remedies; No Waiver................................ 89
11.2 Amendments; Consents.......................................... 89
11.3 Costs, Expenses and Taxes..................................... 90
11.4 Nature of Lenders' Obligations................................ 91
11.5 Survival of Representations and Warranties.................... 91
11.6 Notices....................................................... 91
11.7 Execution of Loan Documents................................... 92
11.8 Binding Effect; Assignment.................................... 92
11.9 Right of Setoff............................................... 95
11.10 Sharing of Setoffs............................................ 95
11.11 Indemnity by Borrower......................................... 96
11.12 Nonliability of the Lenders................................... 97
11.13 No Third Parties Benefited.................................... 98
11.14 Confidentiality............................................... 99
11.15 Further Assurances............................................ 99
11.16 Integration................................................... 99
11.17 Governing Law; JURISDICTION AND VENUE........................ 100
11.18 Severability of Provisions................................... 100
11.19 Headings..................................................... 100
11.20 Time of the Essence.......................................... 101
11.21 Foreign Lenders and Participants............................. 101
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11.22 Hazardous Material Indemnity................................. 101
11.23 Waiver of Right to Trial by Jury............................. 102
11.24 Purported Oral Amendments.................................... 103
</TABLE>
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Opinion of Counsel
D - Pledge Agreement
E - Pricing Certificate
F - Request for Letter of Credit
G - Request for Loan
H - Revolving Note
I - Security Agreement
J - Subsidiary Guaranty
K - Term Note
Schedules
1.1 Lender Commitments
2.4 Existing Letters of Credit
4.4 Subsidiaries
4.7A Existing Liens, Negative Pledges and Rights of Others
4.7B Location of Property
4.10 Material Litigation
4.18 Hazardous Materials Matters
6.10 Existing Indebtedness and Guaranty Obligations
6.18 Existing Investments
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<PAGE> 7
REVOLVING/TERM LOAN AGREEMENT
Dated as of July 30, 1998
This REVOLVING/TERM LOAN AGREEMENT ("Agreement") is entered into
by and among Safeskin Corporation, a Florida corporation ("Borrower"), each
lender whose name is set forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this Agreement pursuant to Section
11.8 (collectively, the "Lenders" and individually, a "Lender"), and Union Bank
of California, N.A., as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Closing Date, by which Borrower
and/or any of its Subsidiaries directly or indirectly (a) acquires any
ongoing business or all or substantially all of the assets of any Person
engaged in any ongoing business, whether through purchase of assets,
merger or otherwise, (b) acquires control of securities of a Person
engaged in an ongoing business representing more than 50% of the
ordinary voting power for the election of directors or other governing
position if the business affairs of such Person are managed by a board
of directors or other governing body or (c) acquires control of more
than 50% of the ownership interest in any partnership, joint venture,
limited liability company, business trust or other Person engaged in an
ongoing business that is not managed by a board of directors or other
governing body.
"Adjusted Current Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) the current assets of Borrower and its
Subsidiaries on such date, determined in accordance with GAAP to (b) the
sum of (i) the current liabilities of Borrower and its Subsidiaries of
Borrower and its Subsidiaries on such date, determined in accordance
with GAAP plus (ii) the average daily balance of the Indebtedness
evidenced by the Revolving Notes for such Fiscal Quarter (or, if
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<PAGE> 8
such Fiscal Quarter commenced prior to the Closing Date, for the period
commencing on the Closing Date ended on the last day of such Fiscal
Quarter), to the extent not included under clause (i) above).
"Administrative Agent" means Union Bank of California, N.A. when
acting in its capacity as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to
Borrower as provided in Article 2, and includes each Alternate Base Rate
Advance and Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or
10% or more of the partnership or other ownership interests of any other
Person that has more than 100 record holders of such interests, will be
deemed to be an Affiliate of such corporation, partnership or other
Person.
"Agreement" means this Revolving/Term Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the sum of (a) the aggregate effective face amounts of all
such Letters of Credit not then paid by the Issuing Lender plus (b) the
aggregate amounts paid by the Issuing Lender under such Letters of
Credit not then reimbursed to the Issuing Lender by
-2-
<PAGE> 9
Borrower pursuant to Section 2.4(d) and not the subject of Advances made
pursuant to Section 2.4(e).
"Alternate Base Rate" means, as of any date of determination,
the rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the higher of (a) the Prime Rate in effect on such date and
(b) the Federal Funds Rate in effect on such date plus 1/2 of 1% (50
basis points).
"Alternate Base Rate Advance" means an Advance made hereunder
and specified to be an Alternate Base Rate Advance in accordance with
Article 2.
"Alternate Base Rate Loan" means a Loan made hereunder and
specified to be an Alternate Base Rate Loan in accordance with Article
2.
"Amortization Amount" means, with respect to each Amortization
Date described below, the amount set forth below opposite that
Amortization Date:
<TABLE>
<CAPTION>
Amortization Date Amount
- ----------------- ------
<S> <C>
First four (4)
Amortization Dates after
Closing Date $2,500,000
Next four (4)
Amortization Dates $3,750,000
Next four (4)
Amortization Dates $5,000,000
Next four (4)
Amortization Dates $6,250,000
Next five (5)
Amortization Dates $6,000,000
(including the
Maturity Date)
</TABLE>
"Amortization Date" means the first Quarterly Payment Date after
the Closing Date, and each Quarterly Payment Date thereafter through the
Maturity Date.
-3-
<PAGE> 10
"Applicable Commitment Fee Rate" means, for each Pricing Period,
the rate set forth below (expressed in basis points per annum) opposite
the Applicable Pricing Level for that Pricing Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Commitment Fee
------------- --------------
<S> <C>
I 20
II 25
III 25
IV 37.5
V 37.5
</TABLE>
"Applicable Eurodollar Rate Margin" means, for each Pricing
Period, the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that Pricing
Period:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
------------- ------
<S> <C>
I 87.5
II 112.5
III 125
IV 137.5
V 150
</TABLE>
"Applicable Pricing Level" means, for each Pricing Period, the
pricing level set forth below opposite the Leverage Ratio as of the last
day of the Fiscal Quarter most recently ended prior to the commencement
of that Pricing Period:
<TABLE>
<CAPTION>
Pricing Level Leverage Ratio
------------- --------------
<S> <C>
I Less than or equal to 1.00 to 1.00
II Greater than 1.00 to 1.00, but less
than or equal to 1.50 to 1.00
III Greater than 1.50 to 1.00, but less
than or equal to 2.00 to 1.00
IV Greater than 2.00 to 1.00, but less
than or equal to 2.50 to 1.00
V Greater than 2.50 to 1.00
</TABLE>
provided that (i) in the event that Borrower does not deliver a Pricing
Certificate with respect to any Pricing Period prior to the commencement
of such Pricing Period, then until (but only until) such Pricing
Certificate is delivered the
-4-
<PAGE> 11
Applicable Pricing Level for that Pricing Period shall be Pricing Level
V and (ii) if any Pricing Certificate is subsequently determined to be
in error, then any resulting change in the Applicable Pricing Level
shall be made retroactively to the beginning of the relevant Pricing
Period.
"Applicable Standby Letter of Credit Fee Rate" means, as of any
date of determination, the then effective Applicable Eurodollar Rate
Margin.
"Arranger" means Union Bank of California, N.A.
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California or New York.
"Capital Expenditure" means any expenditure by Borrower or any
of its Subsidiaries for or related to fixed assets or purchased
intangibles that is treated as a capital expenditure under GAAP,
including any amount which is required to be treated as an asset subject
to a Capital Lease Obligation. The amount of Capital Expenditures in
respect of fixed assets purchased or constructed by Borrower or any of
its Subsidiaries in any fiscal period shall be net of (a) any net sales
proceeds received during such fiscal period by Borrower or such
Subsidiary for fixed assets sold by Borrower or such Subsidiary and (b)
any casualty insurance proceeds received during such fiscal period by
Borrower or such Subsidiary for casualties to fixed assets and applied
to the repair or replacement thereof.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with GAAP, is classified as a capital lease.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated as
cash in accordance with GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after the
date of the making of the Investment;
-5-
<PAGE> 12
(b) readily marketable direct obligations of any State of
the United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on the date
of such Investment a credit rating of at least Aa by Moody's Investors
Service, Inc. or AA by Standard & Poor's Rating Group (a division of
McGraw-Hill, Inc.), in each case due within one year from the making of
the Investment;
(c) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
bank incorporated under the Laws of the United States of America, any
State thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case
due within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
Eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within one
year after the date of the making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after the
date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of record
ownership of the Government Securities on the books of a "primary
dealer" in such Government Securities or on the books of such registered
broker or dealer, as soon as practicable after the making of the
Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof or
of any corporation that is the holding company for a bank described in
clause (c) or (d) above given on the date of such Investment a credit
rating of at least P-1 by Moody's Investors Service, Inc. or A-1 by
Standard & Poor's Rating Group (a division of
-6-
<PAGE> 13
McGraw-Hill, Inc.), in each case due within one year after the date of
the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any State
thereof (i) given on the date of such Investment a credit rating of at
least Aa by Moody's Investors Service, Inc. and AA by Standard & Poor's
Rating Group (a division of McGraw-Hill, Inc.), in each case having an
investment period not exceeding 50 days or (ii) to the extent that
investors therein have the benefit of a standby letter of credit issued
by a Lender or a bank described in clauses (c) or (d) above; provided
that (y) the amount of all such Investments issued by the same issuer
does not exceed $5,000,000 and (z) the aggregate amount of all such
Investments does not exceed $15,000,000;
(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (c) or (d) hereof, or a
registered broker or dealer described in clause (e) hereof, that has and
maintains an investment policy limiting its investments primarily to
instruments of the types described in clauses (a) through (g) hereof and
given on the date of such Investment a credit rating of at least Aa by
Moody's Investors Service, Inc. and AA by Standard & Poor's Rating Group
(a division of McGraw-Hill, Inc.); and
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America, or a participation
interest therein; provided that (i) commercial paper issued by such
corporation is given on the date of such Investment a credit rating of
at least Aa by Moody's Investors Service, Inc. and AA by Standard &
Poor's Rating Group (a division of McGraw-Hill, Inc.), (ii) the amount
of all such Investments issued by the same issuer does not exceed
$5,000,000 and (iii) the aggregate amount of all such Investments does
not exceed $15,000,000.
"Cash Income Taxes" means, with respect to any fiscal period,
taxes on or measured by the income of Borrower that are paid or
currently payable in Cash by Borrower during that fiscal period.
"Cash Interest Expense" means Interest Expense that is paid or
currently payable in Cash.
"Certificate" means a certificate signed by a Senior Officer or
Responsible Official (as applicable) of the Person providing the
certificate.
-7-
<PAGE> 14
"Change in Control" means (a) any transaction or series of
related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership (within
the meaning of Rule 13d-3(a)(1) under the Securities Exchange Act of
1934, as amended), directly or indirectly, of 20% or more of the
outstanding Common Stock, (b) Borrower consolidates with or merges into
another Person or conveys, transfers or leases its properties and assets
substantially as an entirety to any Person or any Person consolidates
with or merges into Borrower, in either event pursuant to a transaction
in which the outstanding Common Stock is changed into or exchanged for
cash, securities or other property, with the effect that any Unrelated
Person becomes the beneficial owner, directly or indirectly, of 20% or
more of Common Stock or that the Persons who were the holders of Common
Stock immediately prior to the transaction hold less than 80% of the
common stock of the surviving corporation after the transaction, (c)
during any period of 24 consecutive months, individuals who at the
beginning of such period constituted the board of directors of Borrower
(together with any new or replacement directors whose election by the
board of directors, or whose nomination for election, was approved by a
vote of at least a majority of the directors then still in office who
were either directors at the beginning of such period or whose election
or nomination for reelection was previously so approved) cease for any
reason to constitute a majority of the directors then in office or (d) a
"change in control" as defined in any document governing Indebtedness of
Borrower in excess of $5,000,000 which gives the holders of such
Indebtedness the right to accelerate or otherwise require payment of
such Indebtedness prior to the maturity date thereof. For purposes of
the foregoing, the term "Unrelated Person" means any Person other than
(i) Richard Jaffe, Irving Jaffe, Neil Braverman, any Affiliate of any
thereof and members of the immediate family of any thereof, (ii) a
Subsidiary of Borrower or (iii) an employee stock ownership plan or
other employee benefit plan covering the employees of Borrower and its
Subsidiaries.
"Closing Date" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived. The
Administrative Agent shall notify Borrower and the Lenders of the date
that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by the
Collateral Documents.
-8-
<PAGE> 15
"Collateral Documents" means, collectively, the Security
Agreement, the Pledge Agreement and any other security agreement, pledge
agreement, deed of trust, mortgage, notice to or acknowledgment of a
registrar or depositary institution, control agreement or other
collateral security agreement executed and delivered by Borrower or any
of its Subsidiaries (and executed by any third party whose signature is
necessary) to secure the Obligations.
"Commercial Letter of Credit" means each Letter of Credit issued
to support the purchase of goods by Borrower which is determined to be a
commercial letter of credit by the Issuing Lender.
"Commitments" means, collectively, the Revolving Commitment and
the Term Commitment.
"Commitment Assignment and Acceptance" means a commitment
assignment and acceptance substantially in the form of Exhibit A.
"Common Stock" means the common stock of Borrower or its
successor.
"Compliance Certificate" means a certificate in the form of
Exhibit B, properly completed and signed by a Senior Officer of
Borrower.
"Contractual Obligation" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or
by which it or any of its Property is bound.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1, or both,
would be an Event of Default.
"Default Rate" means the sum of (a) any incremental interest
rate then in effect pursuant to Section 3.1(d) plus (b) the interest
rate prescribed in Section 3.7.
-9-
<PAGE> 16
"Designated Deposit Account" means a deposit account to be
maintained by Borrower with Union Bank of California, N.A. or one of its
Affiliates, as from time to time designated by Borrower by written
notification to the Administrative Agent.
"Designated Eurodollar Market" means, with respect to any
Eurodollar Rate Loan, the London Eurodollar Market.
"Disqualified Stock" means any capital stock, warrants, options
or other rights to acquire capital stock (but excluding any debt
security which is convertible, or exchangeable, for capital stock),
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the Maturity Date.
"Disposition" means the sale, transfer or other disposition in
any single transaction or series of related transactions of any asset,
or group of related assets, of Borrower or any of its Subsidiaries (a)
which asset or assets constitute a line of business or substantially all
the assets of Borrower or the Subsidiary or (b) the aggregate amount of
the Net Cash Sales Proceeds of such assets is more than $500,000, other
than (i) inventory or other assets sold or otherwise disposed of in the
ordinary course of business of Borrower or its Subsidiary, (ii)
equipment sold or otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrower or its Subsidiary and
(iii) obsolete assets no longer useful in the business of Borrower and
its Subsidiaries whose carrying value on the books of Borrower or such
Subsidiary is zero or de minimus.
"Distribution" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity security or other
equity security issued by a Person, (a) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such Person of
any such security, (b) the declaration or (without duplication) payment
by such Person of any dividend in Cash or in Property on or with respect
to any such security, (c) any Investment by such Person in the holder of
5% or more of any such security if a purpose of such Investment is to
avoid characterization of the transaction as a Distribution and (d) any
other payment in Cash or Property by such Person constituting a
distribution under applicable Laws with respect to such security.
-10-
<PAGE> 17
"Dollars" or "$" means United States of America dollars.
"Domestic Subsidiary" means a Subsidiary of Borrower that is not
a Foreign Subsidiary.
"EBITDA" means, with respect to any fiscal period, the sum of
(a) Net Income for that period, plus (b) any non-operating non-recurring
loss reflected in such Net Income, minus (c) any non-operating
non-recurring gain reflected in such Net Income, plus (d) Interest
Expense of Borrower and its Subsidiaries for that period, plus (e) the
aggregate amount of federal and state taxes on or measured by income of
Borrower and its Subsidiaries for that period (whether or not payable
during that period), minus (f) the aggregate amount of federal and state
credits against taxes on or measured by income of Borrower and its
Subsidiaries for that period (whether or not usable during that period),
plus (g) depreciation, amortization and all other non-cash expenses of
Borrower and its Subsidiaries for that period, in each case as
determined in accordance with GAAP, consistently applied.
"Eligible Assignee" means (a) another Lender, (b) with respect
to any Lender, any Affiliate of that Lender, (c) any commercial bank
having total assets of $1,000,000,000 or more, (d) any (i) savings bank,
savings and loan association or similar financial institution or (ii)
insurance company engaged in the business of writing insurance which, in
either case (A) has total assets of $1,000,000,000 or more, (B) is
engaged in the business of lending money and extending credit under
credit facilities substantially similar to those extended under this
Agreement and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a commercial
bank and (e) any other financial institution (including a mutual fund or
other fund) having total assets of $1,000,000,000 or more which meets
the requirements set forth in subclauses (B) and (C) of clause (d)
above; provided that each Eligible Assignee must either (aa) be
organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (bb) be organized under the Laws
of the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21.
-11-
<PAGE> 18
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA Affiliate" means each Person (whether or not
incorporated) which is required to be aggregated with Borrower pursuant
to Section 414 of the Code.
"Eurodollar Banking Day" means any Banking Day on which dealings
in Dollar deposits are conducted by and among banks in the Designated
Eurodollar Market.
"Eurodollar Lending Office" means, as to each Lender, its office
or branch so designated by written notice to Borrower and the
Administrative Agent as its Eurodollar Lending Office. If no Eurodollar
Lending Office is designated by a Lender, its Eurodollar Lending Office
shall be its office at its address for purposes of notices hereunder.
"Eurodollar Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any Governmental
Agency having jurisdiction over any Lender.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the
period commencing on the date specified by Borrower pursuant to Section
2.1(c) and ending 7, 14, or 21 days or 1, 2, 3 or 6 months (or, with the
written consent of all of the Lenders, any other period) thereafter, as
specified by Borrower in the applicable Request for Loan; provided that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day
that is not a Eurodollar Banking Day shall be extended to the
immediately succeeding Eurodollar Banking Day unless such
Eurodollar Banking Day falls in another calendar month, in which
case such Eurodollar Period shall end on the immediately
preceding Eurodollar Banking Day;
-12-
<PAGE> 19
(c) Borrower may not specify a Eurodollar Period with
respect to a Term Loan that extends beyond the next Amortization
Date unless the aggregate principal amount of the Eurodollar
Loans that are Term Loans having a Eurodollar Period ending
after such Amortization Date does not exceed the outstanding
amount of Term Loans (after giving effect to the Amortization
Amount to be paid on such Amortization Date); and
(d) No Eurodollar Period shall extend beyond the Maturity
Date.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are
offered to the Administrative Agent in the Designated Eurodollar Market
at or about 11:00 a.m. local time in the Designated Eurodollar Market,
two (2) Eurodollar Banking Days before the first day of the applicable
Eurodollar Period in an aggregate amount approximately equal to the
amount of the Advance to be made by the Administrative Agent with
respect to such Eurodollar Rate Loan and for a period of time comparable
to the number of days in the applicable Eurodollar Period.
"Eurodollar Rate Advance" means an Advance made hereunder and
specified to be a Eurodollar Rate Advance in accordance with Article 2.
"Eurodollar Rate Loan" means a Loan made hereunder and specified
to be a Eurodollar Rate Loan in accordance with Article 2.
"Event of Default" shall have the meaning provided in Section
9.1.
"Existing Letters of Credit" means the letters of credit, if
any, outstanding on the Closing Date listed on Schedule 2.4.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve
-13-
<PAGE> 20
Lender of New York (including any such successor, the "Composite 3:30
p.m. Quotation") for such date under the caption "Federal Funds
Effective Rate". If on any relevant date the appropriate rate for such
date is not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged prior
to 9:00 a.m. (New York City time) on that date by each of three leading
brokers of Federal funds transactions in New York City selected by the
Administrative Agent. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Federal Funds Rate shall be
effective as of the opening of business on the effective date of such
change.
"Fiscal Quarter" means the fiscal quarter of Borrower ending on
each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower ending on each
December 31.
"Fixed Charge Coverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (a) EBITDA for the fiscal period consisting
of the four (4) Fiscal Quarters ended on that date minus Capital
Expenditures made by Borrower and its Subsidiaries during such fiscal
period to (b) the sum of (i) Interest Expense of Borrower and its
Subsidiaries for such fiscal period plus (ii) Cash Income Taxes of
Borrower with respect to such fiscal period plus (iii) Cash dividends on
Common Stock paid during such period plus (iv) the current portion of
long-term debt of Borrower and its Subsidiaries on such date plus (iv)
the current portion of long-term lease obligations of Borrower and its
Subsidiaries on such date.
"Foreign Subsidiary" means a Subsidiary of Borrower that (a) is
organized under the Laws of a country (or political subdivision thereof)
other than the United States of America and (b) holds all or
substantially all of its assets outside the United States of America.
"GAAP" means, as of any date of determination, accounting
principles (a) set forth as generally accepted in then currently
effective Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) set forth as generally
accepted in then currently effective Statements of the Financial
Accounting Standards Board or (c) that are then approved by such other
entity as may be approved by a significant segment of the accounting
profession in the United States of America. The term
-14-
<PAGE> 21
"consistently applied," as used in connection therewith, means that the
accounting principles applied are consistent in all material respects
with those applied at prior dates or for prior periods.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body or
(c) any court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee
by that Person of Indebtedness of, or other obligation performable by,
any other Person or (b) assurance given by that Person to an obligee of
any other Person with respect to the performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect
or contingent, including any purchase or repurchase agreement covering
such obligation or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions or otherwise) to
such other Person, any agreement to support the solvency or level of any
balance sheet item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any
obligation of such other Person; provided, however, that the term
Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any Guaranty Obligation in respect of Indebtedness shall be deemed to be
an amount equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by its terms to
a lesser amount, in which case to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the Person in good faith. The amount of
any other Guaranty Obligation shall be deemed to be zero unless and
until the amount thereof has been (or in accordance with Financial
Accounting Standards Board Statement No. 5 should be) quantified and
reflected or disclosed in the consolidated financial statements (or
notes thereto) of Borrower.
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<PAGE> 22
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. or any
other applicable Hazardous Materials Law, in each case as such Laws are
amended from time to time.
"Hazardous Materials Laws" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials applicable
to any of the Real Property.
"Inactive Subsidiary" means a Subsidiary of Borrower that (a) is
not engaged in any active or passive business and (b) holds total assets
of $10,000 or less.
"Indebtedness" means, as to any Person (without duplication),
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), including any Guaranty Obligation for any such indebtedness, (b)
indebtedness of such Person of the nature described in clause (a) that
is non-recourse to the credit of such Person but is secured by assets of
such Person, to the extent of the fair market value of such assets as
determined in good faith by such Person, (c) Capital Lease Obligations
of such Person, (d) indebtedness of such Person arising under bankers'
acceptance facilities or under facilities for the discount of accounts
receivable of such Person, (e) any direct or contingent obligations of
such Person under letters of credit issued for the account of such
Person and (f) any net obligations of such Person under Interest Rate
Protection Agreements.
"Intangible Assets" means assets that are considered intangible
assets under GAAP, including customer lists, goodwill, covenants not to
compete, copyrights, trade names, trademarks and patents.
"Interest Coverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (a) EBITDA for the fiscal period consisting
of the four (4) Fiscal Quarters ended on such date to (b) Interest
Expense of Borrower and its Subsidiaries for such fiscal period.
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"Interest Expense" means, with respect to any Person and as of
the last day of any fiscal period, the sum of (a) all interest, fees,
charges and related expenses (in each case as such expenses are
calculated according to GAAP) paid or payable (without duplication) for
that fiscal period by that Person to a lender in connection with
borrowed money (including any obligations for fees, charges and related
expenses payable to the issuer of any letter of credit) or the deferred
purchase price of assets that are considered "interest expense" under
GAAP plus (b) the portion of rent paid or payable (without duplication)
for that fiscal period by that Person under Capital Lease Obligations
that should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"Interest Rate Protection Agreement" means a written agreement
between Borrower and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with respect
to any Indebtedness.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person.
The amount of any Investment shall be the amount actually invested
(minus any return of capital with respect to such Investment which has
actually been received in Cash or has been converted into Cash), without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Issuing Lender" means Union Bank of California, N.A.
"Joint Venture" means any Investment by Borrower in any Person
that is not a Wholly-Owned Subsidiary of Borrower, which Person is
engaged in the same or a similar line of business as Borrower.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which may hereafter
become a party to this Agreement pursuant to Section 11.8.
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"Letters of Credit" means (a) the Existing Letters of Credit and
(b) any of the Commercial Letters of Credit or Standby Letters of Credit
issued by the Issuing Lender under the Revolving Commitment pursuant to
Section 2.4, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or supplanted.
"Leverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) the sum of (i) all Indebtedness of Borrower
and its Subsidiaries on that date other than Indebtedness evidenced by
the Revolving Notes plus (ii) the average daily balance of Indebtedness
evidenced by the Revolving Notes for such Fiscal Quarter (or, if such
Fiscal Quarter commenced prior to the Closing Date, for the period
commencing on the Closing Date and ended on the last day of such Fiscal
Quarter) to (b) EBITDA for the fiscal period consisting of the four (4)
Fiscal Quarters ended on that date.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge
of any kind, whether voluntarily incurred or arising by operation of Law
or otherwise, affecting any Property, including any conditional sale or
other title retention agreement, any lease in the nature of a security
interest, and/or the filing of any financing statement (other than a
precautionary financing statement with respect to a lease that is not in
the nature of a security interest) under the Uniform Commercial Code or
comparable Law of any jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time
by the Lenders pursuant to Section 2.1.
"Loan Documents" means, collectively, this Agreement, the Notes,
the Subsidiary Guaranty, the Collateral Documents and any other
agreements of any type or nature hereafter executed and delivered by
Borrower or any of the Subsidiary Guarantors to the Administrative Agent
or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended
or supplanted.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means any set of circumstances or
events which (a) has had or could reasonably be expected to have any
material adverse
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effect whatsoever upon the validity or enforceability of any Loan
Document, (b) has been or could reasonably be expected to be material
and adverse to the business or condition (financial or otherwise) of
Borrower and its Subsidiaries, taken as a whole or (c) has materially
impaired or could reasonably be expected to materially impair the
ability of Borrower to perform the Obligations.
"Maturity Date" means the fifth anniversary of the first
Quarterly Payment Date after the Closing Date.
"Monthly Payment Date" means the last day of each calendar
month.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which Borrower or any of its
ERISA Affiliates contributes or is obligated to contribute.
"Negative Pledge" means a Contractual Obligation which contains
a covenant binding on Borrower or any of its Subsidiaries that prohibits
Liens on any of its Property, other than (a) any such covenant contained
in a Contractual Obligation granting or relating to a particular Lien
which affects only the Property that is the subject of such Lien and (b)
any such covenant that does not apply to Liens securing the Obligations.
"Net Cash Issuance Proceeds" means, with respect to the issuance
of any debt security or equity security by Borrower or any of its
Subsidiaries, the Cash proceeds received by or for the account of
Borrower or such Subsidiary in consideration of such issuance net of (a)
underwriting discounts and commissions actually paid to any Person not
an Affiliate of Borrower and (b) professional fees and disbursements
actually paid in connection therewith.
"Net Cash Sales Proceeds" means, with respect to any
Disposition, the sum of (a) the Cash proceeds received by or for the
account of Borrower and its Subsidiaries from such Disposition plus (b)
the amount of Cash received by or for the account of Borrower and its
Subsidiaries upon the sale, collection or other liquidation of any
proceeds that are not Cash from such Disposition, in each case net of
(i) any amount required to be paid to any Person owning an interest in
the assets disposed of, (ii) any amount applied to the repayment of
Indebtedness secured by a Lien permitted under Section 6.9 on the asset
disposed of, (iii) any transfer, income or other taxes payable as a
result of such Disposition, (iv) professional fees and expenses, fees
due to any Governmental Agency, broker's commissions and other
out-of-pocket costs of sale actually paid to any Person that is not an
Affiliate of Borrower attributable to such
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Disposition and (v) any reserves established in accordance with GAAP in
connection with such Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for that
period, determined in accordance with GAAP, consistently applied.
"Note" means any of the Revolving Notes or the Term Notes and
"Notes" means the Revolving Notes and the Term Notes.
"Obligations" means all present and future obligations of every
kind or nature of Borrower or any of the Subsidiary Guarantors at any
time and from time to time owed to the Administrative Agent or the
Lenders or any one or more of them, under any one or more of the Loan
Documents, whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent, including
obligations of performance as well as obligations of payment, and
including interest that accrues after the commencement of any proceeding
under any Debtor Relief Law by or against Borrower or any of the
Subsidiary Guarantors.
"Opinion of Counsel" means the favorable written legal opinion
of Morgan, Lewis & Bockius LLP, special counsel to Borrower,
substantially in the form of Exhibit C, together with copies of all
factual certificates and legal opinions delivered to such counsel in
connection with such opinion upon which such counsel has relied.
"Party" means any Person other than the Administrative Agent and
the Lenders, which now or hereafter is a party to any of the Loan
Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by Borrower or to which Borrower contributes or has an
obligation to contribute.
"Permitted Encumbrances" means:
(a) Inchoate Liens incident to construction on or
maintenance of Property; or Liens incident to construction on or
maintenance of Property
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now or hereafter filed of record for which adequate reserves have been
set aside (or deposits made pursuant to applicable Law) and which are
being contested in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of nonpayment of the
obligations secured by such Liens, no such Property is subject to a
material impending risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due; or Liens for taxes and assessments on Property for
which adequate reserves have been set aside and are being contested in
good faith by appropriate proceedings and have not proceeded to
judgment, provided that, by reason of nonpayment of the obligations
secured by such Liens, no such Property is subject to a material
impending risk of loss or forfeiture;
(c) defects and irregularities in title to any Property
which in the aggregate do not materially impair the fair market value or
use of the Property for the purposes for which it is or may reasonably
be expected to be held;
(d) easements, exceptions, reservations, or other
agreements for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other minerals, and
other like purposes affecting Property which in the aggregate do not
materially burden or impair the fair market value or use of such
Property for the purposes for which it is or may reasonably be expected
to be held;
(e) easements, exceptions, reservations, or other
agreements for the purpose of facilitating the joint or common use of
Property in or adjacent to a shopping center or similar project
affecting Property which in the aggregate do not materially burden or
impair the fair market value or use of such Property for the purposes
for which it is or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, the use of any Property;
(g) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, any right, power, franchise, grant,
license, or permit;
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(h) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use, or enjoyment of
Property;
(i) statutory Liens, other than those described in clauses
(a) or (b) above, arising in the ordinary course of business with
respect to obligations which are not delinquent or are being contested
in good faith, provided that, if delinquent, adequate reserves have been
set aside with respect thereto and, by reason of nonpayment, no Property
is subject to a material impending risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the
use of Property which in the aggregate do not materially impair the fair
market value or use of the Property for the purposes for which it is or
may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements
covering Property entered into in the ordinary course of business of the
Person owning such Property;
(l) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws or similar legislation,
including Liens of judgments thereunder which are not currently
dischargeable;
(m) Liens consisting of pledges or deposits of Property to
secure performance in connection with operating leases made in the
ordinary course of business, provided the aggregate value of all such
pledges and deposits in connection with any such lease does not at any
time exceed 20% of the annual fixed rentals payable under such lease;
(n) Liens consisting of deposits of Property to secure
bids made with respect to, or performance of, contracts (other than
contracts creating or evidencing an extension of credit to the
depositor);
(o) Liens consisting of any right of offset, or statutory
bankers' lien, on bank deposit accounts maintained in the ordinary
course of business so long as such bank deposit accounts are not
established or maintained for the purpose of providing such right of
offset or bankers' lien;
(p) Liens consisting of deposits of Property to secure
statutory obligations of Borrower;
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(q) Liens consisting of deposits of Property to secure (or
in lieu of) surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or
legal proceeding in the ordinary course of business which is currently
being contested in good faith by appropriate proceedings, provided that,
adequate reserves have been set aside and no material Property is
subject to a material impending risk of loss or forfeiture; and
(s) other non-consensual Liens incurred in the ordinary
course of business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be expected
to be held.
"Permitted Right of Others" means a Right of Others consisting
of (a) an interest (other than a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a ground
lease), that does not materially impair the fair market value or use of
Property for the purposes for which it is or may reasonably be expected
to be held, (b) an option or right to acquire a Lien that would be a
Permitted Encumbrance, (c) the subordination of a lease or sublease in
favor of a financing entity and (d) a license, or similar right, of or
to Intangible Assets granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Pledge Agreement" means the pledge agreement to be executed and
delivered pursuant to Article 8 by Borrower and the Subsidiary
Guarantors, in the form of Exhibit D, either as originally executed or
as it may from time to time be supplemented, modified, amended, extended
or supplanted.
"Pledged Collateral" means (a) the certificates evidencing 100%
of the shares of capital stock held by Borrower in all Domestic
Subsidiaries and (b) certificates evidencing 65% of the shares of
capital stock held by Borrower in all Foreign Subsidiaries.
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"Pricing Certificate" means a certificate in the form of Exhibit
E, properly completed and signed by a Senior Officer of Borrower.
"Pricing Period" means (a) the period commencing on the Closing
Date and ending on August 15, November 15, February 15 or May 15,
whichever first occurs, (b) the period commencing on each August 16 and
ending on the next following November 15, (c) the period commencing on
each November 16 and ending on the next following February 15, (d) the
period commencing on each February 16 and ending on the next following
May 15 and (e) the period commencing on each May 16 and ending on the
next following August 15.
"Prime Rate" means the rate of interest publicly announced from
time to time by the Administrative Agent in San Francisco, California
(or other headquarters city of the Administrative Agent), as its
"reference rate." The "reference rate" is one of several base rates used
by the Administrative Agent and serves as the basis upon which effective
rates of interest are calculated for loans and other credits making
reference thereto. The "reference rate" is not necessarily the lowest
base interest rate used by the Administrative Agent. The "reference
rate" is evidenced by the recording thereof after its announcement in
such internal publication or publications as the Administrative Agent
may designate. Any change in the Prime Rate announced by the
Administrative Agent shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Prior Credit Agreement" means that certain Amended and Restated
Loan Agreement dated as of May 4, 1998, as amended, between Borrower and
Union Bank of California, N.A.
"Projections" means the projected financial information to be
prepared by Borrower and to be contained in the Confidential Offering
Memorandum furnished to the Lenders as part of the syndication process
referred to in Section 5.14.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Lender, the
percentage of the Revolving Commitment and Term Commitment set forth
opposite the name of that Lender on Schedule 1.1, as such percentage may
be increased or decreased pursuant to a Commitment Assignment and
Acceptance executed in accordance with Section 11.8.
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"Quarterly Payment Date" means each June 30, September 30,
December 31 and March 31.
"Real Property" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by any of
Borrower.
"Regulation D" means Regulation D, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of
the Board of Governors of the Federal Reserve System, or any other
regulation in substance substituted therefor.
"Request for Letter of Credit" means a written request for a
Letter of Credit substantially in the form of Exhibit F, signed by a
Responsible Official of Borrower and properly completed to provide all
information required to be included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit G, signed by a Responsible Official
of Borrower, on behalf of Borrower, and properly completed to provide
all information required to be included therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Requisite Lenders" means (a) as of any date of determination if
the Commitments are then in effect, Lenders having in the aggregate
66-2/3% or more of the Commitments then in effect and (b) as of any date
of determination if the Commitments have then been suspended or
terminated and there is then any Indebtedness evidenced by the Notes,
Lenders holding Notes evidencing in the aggregate 66-2/3% or more of the
aggregate Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) any Senior Officer of Borrower
and (b) any other responsible official of Borrower so designated in a
written notice thereof from a Senior Officer to the Administrative
Agent. The Lenders shall
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be entitled to conclusively rely upon any document or certificate that
is signed or executed by a Responsible Official of Borrower or any of
its Subsidiaries as having been authorized by all necessary corporate,
partnership and/or other action on the part of Borrower or such
Subsidiary.
"Revolving Commitment" means, subject to Section 2.5,
$40,000,000. The respective Pro Rata Shares of the Lenders with respect
to the Revolving Commitment are set forth in Schedule 1.1.
"Revolving Loan" means a Loan made under the Revolving
Commitment.
"Revolving Note" means any of the promissory notes made by
Borrower to a Lender evidencing Advances under that Lender's Pro Rata
Share of the Revolving Commitment, substantially in the form of Exhibit
H, either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Right of Others" means, as to any Property in which a Person
has an interest, any legal or equitable right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right,
title or other interest in that Property, including any option or right
to acquire a Lien; provided, however, that (a) no covenant restricting
the use or disposition of Property of such Person contained in any
Contractual Obligation of such Person and (b) no provision contained in
a contract creating a right of payment or performance in favor of a
Person that conditions, limits, restricts, diminishes, transfers or
terminates such right shall be deemed to constitute a Right of Others.
"Security Agreement" means the security agreement to be executed
and delivered pursuant to Article 8 by Borrower and the Subsidiary
Guarantors, in the form of Exhibit I, either as originally executed or
as it may from time to time be supplemented, modified, amended, extended
or supplanted.
"Senior Officer" means (a) the chief executive officer, (b) the
president, (c) any executive vice president, (d) the chief financial
officer or (e) the treasurer, in each case of Borrower.
"Special Eurodollar Circumstance" means the application or
adoption after the Closing Date of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any
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<PAGE> 33
Governmental Agency, central bank or comparable authority charged with
the interpretation or administration thereof, or compliance by any
Lender or its Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental
Agency, central bank or comparable authority.
"Standby Letter of Credit" means each Letter of Credit that is
not a Commercial Letter of Credit.
"Stockholders' Equity" means, as of any date of determination
and with respect to any Person, the consolidated stockholders' equity of
the Person as of that date determined in accordance with GAAP; provided
that there shall be excluded from Stockholders' Equity any amount
attributable to Disqualified Stock.
"Subordinated Obligations" means any Indebtedness of Borrower
that (a) does not have any scheduled principal payment, mandatory
principal prepayment or sinking fund payment due prior to the date that
is one year after the Maturity Date, (b) is not secured by any Lien on
any Property of Borrower or any of its Subsidiaries, (c) is not
guarantied by any Subsidiary of Borrower, (d) is subordinated by its
terms in right of payment to the Obligations pursuant to provisions
acceptable to the Requisite Lenders, (e) is subject to such financial
and other covenants and events of defaults as may be acceptable to the
Requisite Lenders and (f) is subject to customary interest blockage and
delayed acceleration provisions as may be acceptable to the Requisite
Lenders.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any corporation, limited liability company or
partnership (whether or not, in any case, characterized as such or as a
"joint venture"), whether now existing or hereafter organized or
acquired: (a) in the case of a corporation or limited liability company,
of which a majority of the securities having ordinary voting power for
the election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are
at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership, of
which a majority of the partnership or other ownership interests are at
the time beneficially owned by such Person and/or one or more of its
Subsidiaries.
"Subsidiary Guarantors" means all Domestic Subsidiaries that are
not an Inactive Subsidiary.
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<PAGE> 34
"Subsidiary Guaranty" means the continuing guaranty of the
Obligations to be executed and delivered pursuant to Article 8 by the
Subsidiary Guarantors, in the form of Exhibit J, either as originally
executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Tangible Net Worth" means, as of the last day of any Fiscal
Quarter, (a) Stockholders' Equity of Borrower and its Subsidiaries on
such date minus (b) all Intangible Assets of Borrower and its
Subsidiaries on such date.
"Term Commitment" means $100,000,000. The respective Pro Rata
Shares of the Lenders with respect to the Term Commitment are set forth
in Schedule 1.1.
"Term Loan" means a Loan made under the Term Commitment.
"Term Note" means any of the promissory notes made by Borrower
to a Lender evidencing Advances under that Lender's Pro Rata Share of
the Term Commitment, substantially in the form of Exhibit K, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the fact
or situation described therein is known by the Person (or, in the case
of a Person other than a natural Person, known by a Responsible Official
of that Person) making the representation, warranty or other statement,
or with the exercise of reasonable due diligence under the circumstances
(in accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been
known by a Responsible Official of that Person).
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Alternate Base Rate
Loan or Advance, or a Eurodollar Rate Loan or Advance.
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower, 100%
of the capital stock or other equity interest of which is owned,
directly or indirectly, by Borrower, except for director's qualifying
shares required by applicable Laws.
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1.2 Use of Defined Terms. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 Accounting Terms. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, except as otherwise
specifically prescribed herein. In the event that GAAP changes during the term
of this Agreement such that the covenants contained in Sections 6.12 through
6.17, inclusive, would then be calculated in a different manner or with
different components, (a) Borrower and the Lenders agree to amend this Agreement
in such respects as are necessary to conform those covenants as criteria for
evaluating Borrower's financial condition to substantially the same criteria as
were effective prior to such change in GAAP and (b) Borrower shall be deemed to
be in compliance with the covenants contained in the aforesaid Sections if and
to the extent that Borrower would have been in compliance therewith under GAAP
as in effect immediately prior to such change, but shall have the obligation to
deliver each of the materials described in Article 7 to the Administrative Agent
and the Lenders, on the dates therein specified, with financial data presented
in a manner which conforms with GAAP as in effect immediately prior to such
change.
1.4 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference
herein to "Borrower and its Subsidiaries" or the like shall refer solely to
Borrower during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date
through the Maturity Date, each Lender shall, pro rata according to that
Lender's Pro Rata Share of the then applicable Revolving Commitment,
make Advances to Borrower under the Revolving Commitment in such amounts
as Borrower may request that do not result in the sum of (i) the
aggregate principal amount outstanding under the Revolving Notes and
(ii) the Aggregate Effective Amount of all outstanding Letters of Credit
to exceed the Revolving Commitment. Subject to the limitations set forth
herein, Borrower may borrow, repay and reborrow under the Revolving
Commitment without premium or penalty.
(b) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, each Lender shall, pro rata according to
that Lender's Pro Rata Share of the Term Commitment, make an Advance to
Borrower under the Term Commitment such that the aggregate of all such
Advances equals the Term Commitment. Amounts repaid under the Term
Commitment may not be reborrowed.
(c) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i)
date of such Loan, (ii) type of Loan, (iii) amount of such Loan, and
(iv) in the case of a Eurodollar Rate Loan, the Eurodollar Period for
such Loan. Unless the Administrative Agent has notified, in its sole and
absolute discretion, Borrower to the contrary, a Loan may be requested
by telephone by a Responsible Official of Borrower, in which case
Borrower shall confirm such request by promptly delivering a Request for
Loan (conforming to the preceding sentence) in person or by telecopier
to the Administrative Agent. The Administrative Agent shall incur no
liability whatsoever hereunder in acting upon any telephonic request for
Loan purportedly made by a Responsible Official of Borrower, and
Borrower hereby agrees to indemnify the Administrative Agent from any
loss, cost, expense or liability as a result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date and
type of the
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Loan, the applicable Eurodollar Period, and that Lender's Pro Rata Share
of the Loan. Not later than 10:00 a.m., California time, on the date
specified for any Loan (which must be a Banking Day), each Lender shall
make its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative Agent's
Office. Upon satisfaction or waiver of the applicable conditions set
forth in Article 8, all Advances shall be credited on that date in
immediately available funds to the Designated Deposit Account.
(e) Unless the Requisite Lenders otherwise consent, each
Alternate Base Rate Loan shall be not less than $1,000,000 and in an
integral multiple of $100,000 and each Eurodollar Rate Loan shall be not
less than $3,000,000 and in an integral multiple of $1,000,000.
(f) Notwithstanding Section 2.1(c), during the period
commencing on the Closing Date and ending on the earlier of (i) six (6)
months after the Closing Date or (ii) the completion of the syndication
process referred to in Section 5.14, Borrower may not request a
Eurodollar Rate Loan with a Eurodollar Period longer than one (1) month.
(g) The Advances made by each Lender under the Revolving
Commitment shall be evidenced by that Lender's Revolving Note. The
Advances made by each Lender under the Term Commitment shall be
evidenced by that Lender's Term Note.
(h) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(i) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(c), if applicable) has
been made within the requisite notice periods set forth in Section 2.2
or 2.3 prior to the end of the Eurodollar Period for any outstanding
Eurodollar Rate Loan, then on the last day of such Eurodollar Period,
such Eurodollar Rate Loan shall be automatically converted into an
Alternate Base Rate Loan in the same amount.
2.2 Alternate Base Rate Loans. Each request by Borrower for an
Alternate Base Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the second sentence of
Section 2.1(c), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 11:00 a.m. California time, on the
date (which must be a Banking Day) immediately prior to the date of the
requested Alternate Base Rate Loan. All Loans
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shall constitute Alternate Base Rate Loans unless properly designated as a
Eurodollar Rate Loan pursuant to Section 2.3.
2.3 Eurodollar Rate Loans.
(a) Each request by Borrower for a Eurodollar Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other
request for Loan referred to in the second sentence of Section 2.1(c),
if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m., California
time, at least three (3) Eurodollar Banking Days before the first day of
the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period, the
Administrative Agent shall confirm its determination of the applicable
Eurodollar Rate (which determination shall be conclusive in the absence
of manifest error) and promptly shall give notice of the same to
Borrower and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than ten (10) Eurodollar Rate Loans
shall be outstanding at any one time, not more than three (3) of which
shall have a Eurodollar Period of shorter than one (1) month.
(d) No Eurodollar Rate Loan may be requested during the
continuation of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to
fund any Eurodollar Rate Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
(a) The Existing Letters of Credit described in Schedule
2.4 shall be Letters of Credit for all purposes under this Agreement.
Subject to the terms and conditions hereof, at any time and from time to
time from the Closing Date through the Maturity Date, the Issuing Lender
shall issue such Letters of Credit under the Revolving Commitment as
Borrower may request by a Request for Letter of Credit; provided that
(i) giving effect to all such Letters of Credit, the sum of (A) the
aggregate principal amount outstanding under the Revolving Notes plus
(B) the Aggregate Effective Amount of all outstanding Letters of Credit,
does not exceed the then applicable Revolving Commitment and (ii) the
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Aggregate Effective Amount under all outstanding Letters of Credit does
not exceed $5,000,000. Each Letter of Credit shall be in a form
acceptable to the Issuing Lender. Unless all the Lenders otherwise
consent in a writing delivered to the Administrative Agent, the term of
any Letter of Credit shall not exceed one (1) year or extend beyond the
Maturity Date.
(b) Each Request for Letter of Credit shall be submitted
to the Issuing Lender, with a copy to the Administrative Agent, at least
two (2) Banking Days prior to the date upon which the related Letter of
Credit is proposed to be issued. The Administrative Agent shall promptly
notify the Issuing Lender whether such Request for Letter of Credit, and
the issuance of a Letter of Credit pursuant thereto, conforms to the
requirements of this Agreement. Upon issuance of a Letter of Credit, the
Issuing Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Lenders, of the amount
and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender
shall be deemed to have purchased a pro rata participation in such
Letter of Credit from the Issuing Lender in an amount equal to that
Lender's Pro Rata Share. Without limiting the scope and nature of each
Lender's participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed by Borrower for any payment
required to be made by the Issuing Lender under any Letter of Credit,
each Lender shall, pro rata according to its Pro Rata Share, reimburse
the Issuing Lender through the Administrative Agent promptly upon demand
for the amount of such payment. The obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of Borrower to reimburse the Issuing
Lender for the amount of any payment made by the Issuing Lender under
any Letter of Credit together with interest as hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender through
the Administrative Agent an amount equal to any payment made by the
Issuing Lender with respect to each Letter of Credit within one (1)
Banking Day after demand made by the Issuing Lender therefor, together
with interest on such amount from the date of any payment made by the
Issuing Lender at the rate applicable to Alternate Base Rate Loans for
two (2) Banking Days and thereafter at the Default Rate. The principal
amount of any such payment shall be used to reimburse the Issuing Lender
for the payment made by it under the Letter of Credit and, to the extent
that the Lenders have not reimbursed the
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Issuing Lender pursuant to Section 2.4(c), the interest amount of any
such payment shall be for the account of the Issuing Lender. Each Lender
that has reimbursed the Issuing Lender pursuant to Section 2.4(c) for
its Pro Rata Share of any payment made by the Issuing Lender under a
Letter of Credit shall thereupon acquire a pro rata participation, to
the extent of such reimbursement, in the claim of the Issuing Lender
against Borrower for reimbursement of principal and interest under this
Section 2.4(d) and shall share, in accordance with that pro rata
participation, in any principal payment made by Borrower with respect to
such claim and in any interest payment made by Borrower (but only with
respect to periods subsequent to the date such Lender reimbursed the
Issuing Lender) with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan, request
that Advances be made pursuant to Section 2.1(a) to provide funds for
the payment required by Section 2.4(d) and, for this purpose, the
conditions precedent set forth in Article 8 shall not apply. The
proceeds of such Advances shall be paid directly to the Issuing Lender
to reimburse it for the payment made by it under the Letter of Credit.
(f) If Borrower fails to make the payment required by
Section 2.4(d) within the time period therein set forth, in lieu of the
reimbursement to the Issuing Lender under Section 2.4(c) the Issuing
Lender may (but is not required to), without notice to or the consent of
Borrower, instruct the Administrative Agent to cause Advances to be made
by the Lenders under the Revolving Commitment in an aggregate amount
equal to the amount paid by the Issuing Lender with respect to that
Letter of Credit and, for this purpose, the conditions precedent set
forth in Article 8 shall not apply. The proceeds of such Advances shall
be paid directly to the Issuing Lender to reimburse it for the payment
made by it under the Letter of Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit shall be
treated in all respects the same as the issuance of a new Letter of
Credit.
(h) The obligation of Borrower to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender under any
Letter of Credit shall be absolute, unconditional, and irrevocable,
subject only to performance by the Issuing Lender of its obligations to
Borrower under Uniform Commercial Code Section 5109. Without limiting
the foregoing, Borrower's obligations shall not be affected by any of
the following circumstances:
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(i) any lack of validity or enforceability prior to its
stated expiration date of the Letter of Credit, this
Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto, with the
consent of Borrower;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against the
Issuing Lender, the Administrative Agent or any Lender, any
beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of
Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared
substantially to comply with the terms of the Letter of
Credit;
(v) payment by the Issuing Lender in good faith under
the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with
the terms of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or any difference
between any such Property and the character, quality,
quantity, condition, or value of such Property as described
in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in
documents presented in connection with any Letter of Credit
or the existence, nature and extent of any insurance
relative thereto;
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(viii) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of
Credit;
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing
Lender, or any delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of the Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of
the Issuing Lender;
(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears
substantially to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of
any contract or document referred to in any document
submitted to the Issuing Lender in connection with a Letter
of Credit; and
(xiv) where the Issuing Lender has acted in good faith
and observed general banking usage, any other circumstances
whatsoever.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Section 10.6, mutatis
mutandis.
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International
Chamber of Commerce, shall be deemed a part of this Section and shall
apply to all Letters of Credit to the extent not inconsistent with
applicable Law.
2.5 Voluntary Reduction of Revolving Commitment. Borrower shall
have the right, at any time and from time to time, without penalty or charge,
upon at least five (5) Banking Days' prior written notice by a Responsible
Official of Borrower to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in
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aggregate principal amounts in an integral multiple of $500,000 but not less
than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of the Revolving Commitment. The Administrative Agent shall promptly
notify the Lenders of any reduction or termination of the Revolving Commitment
under this Section.
2.6 Optional Termination of Commitments. Following the occurrence
of a Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the thirty (30) day period immediately subsequent to
the later of (a) such occurrence or (b) the earlier of (i) receipt of Borrower's
written notice to the Administrative Agent of such occurrence or (ii) if no such
notice has been received by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof, to terminate the Commitments,
in which case the Commitments shall be terminated, and all outstanding Loans
shall be repaid, effective on the date which is thirty (30) days subsequent to
written notice from the Administrative Agent to Borrower thereof.
2.7 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Banking Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount is
not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent promptly shall notify Borrower and Borrower shall pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its share of the Commitments or to prejudice any
rights which the Administrative Agent or Borrower may have against any Lender as
a result of any default by such Lender hereunder.
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2.8 Collateral. The Obligations shall be secured by a first
priority (subject to Liens permitted by Section 6.9) perfected Lien on the
Collateral pursuant to the Collateral Documents.
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Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date thereof until
payment in full is made and shall accrue and be payable at the rates set
forth or provided for herein before and after Default, before and after
maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law, with
interest on overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Alternate Base Rate Loan
shall be due and payable on each Monthly Payment Date. Except as
otherwise provided in Sections 3.1(d) and 3.8, the unpaid principal
amount of any Alternate Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Alternate Base Rate. Each change
in the interest rate under this Section 3.1(b) due to a change in the
Alternate Base Rate shall take effect simultaneously with the
corresponding change in the Alternate Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan which is
for a term of three months or less shall be due and payable on the last
day of the related Eurodollar Period. Interest accrued on each other
Eurodollar Rate Loan shall be due and payable on the date which is three
months after the date such Eurodollar Rate Loan was made (and, in the
event that all of the Lenders have approved a Eurodollar Period of
longer than six months, every three months thereafter through the last
day of the Eurodollar Period) and on the last day of the related
Eurodollar Period. Except as otherwise provided in Sections 3.1(d) and
3.8, the unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan plus the Applicable Eurodollar Rate Margin.
(d) During the existence of an Event of Default, the Loans
shall bear interest at a rate equal to the sum of (i) the interest rate
specified in Sections 3.1(b) or 3.1(c), whichever is applicable plus
(ii) such incremental rate not in excess of 2% per annum as may be
specified by the Requisite Lenders.
(e) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
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(i) the amount, if any, by which the sum of (A) the
principal Indebtedness evidenced by the Revolving Notes plus (B)
the Aggregate Effective Amount of all outstanding Letters of
Credit at any time exceeds the then applicable Revolving
Commitment shall be pay able immediately;
(ii) the Amortization Amount with respect to each
Amortization Date under the Term Notes shall be payable on such
Amortization Date; and
(iii) the principal Indebtedness evidenced by the
Notes shall in any event be payable on the Maturity Date.
(f) The principal Indebtedness evidenced by the Term Notes
shall be prepaid on or before the third Banking Day following the
receipt by Borrower or any of its Subsidiaries of (i) Net Cash Sales
Proceeds from the Disposition of the physical plant in Malaysia owned by
Safeskin Corporation (Malaysia) SDN BHD by an amount equal to fifty
percent (50%) of such Net Cash Sales Proceeds, (ii) Net Cash Sales
Proceeds from Dispositions (other than the Disposition of the physical
plant in Malaysia referred to in clause (i) above) in excess of
$3,000,000 in any Fiscal Year, by an amount equal to the amount of such
Net Cash Sales Proceeds in excess of $3,000,000, (iii) Net Cash Issuance
Proceeds from the issuance of debt securities of Borrower or any of its
Subsidiaries (except an issuance of debt securities to Borrower or to a
Wholly-Owned Subsidiary), by an amount equal to 100% of such Net Cash
Issuance Proceeds and (iv) Net Cash Issuance Proceeds from the issuance
of equity securities of Borrower or any of its Subsidiaries (except an
issuance of equity securities to Borrower or to a Wholly-Owned
Subsidiary or to employees or former employees of Borrower pursuant to
an employee stock option plan maintained by Borrower), by an amount
equal to 100% of such Net Cash Issuance Proceeds. Any prepayment of the
Term Notes under this Subsection shall be applied to principal coming
due in reverse order of maturity.
(g) The principal Indebtedness evidenced by the Notes may,
at any time and from time to time, voluntarily be paid or prepaid in
whole or in part without premium or penalty, except that with respect to
any voluntary prepayment under this Subsection, (i) any partial
prepayment shall be not less than $1,000,000 and shall be an integral
multiple of $500,000, (ii) the Administrative Agent shall have received
written notice of any prepayment by 9:00 a.m. California time on the
date that is one (1) Banking Day before the
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date of prepayment (which must be a Banking Day) in the case of an
Alternate Base Rate Loan, and, in the case of a Eurodollar Rate Loan,
three (3) Banking Days before the date of prepayment, which notice shall
identify the date and amount of the prepayment and the Loan(s) being
prepaid, (iii) each prepayment of principal on any Eurodollar Rate Loan
shall be accompanied by payment of interest accrued to the date of
payment on the amount of principal paid, (iv) any payment or prepayment
of all or any part of any Eurodollar Rate Loan on a day other than the
last day of the applicable Eurodollar Period shall be subject to Section
3.7(e), and (v) prepayment of the Term Notes under this Subsection shall
be applied 50% to principal coming due in order of maturity and 50% to
principal coming due in reverse order of maturity.
3.2 Arranger and Agency Fees. On the Closing Date and on each
other date upon which a fee is payable, Borrower shall pay to the Arranger and
the Administrative Agent such fees as heretofore agreed upon by letter agreement
between Borrower and the Arranger. The fees paid to the Arranger and the
Administrative Agent, are solely for their own account and are nonrefundable.
3.3 Commitment Fee. From the Closing Date through the Maturity
Date, Borrower shall pay to the Administrative Agent, for the ratable accounts
of the Lenders pro rata according to their Pro Rata Share of the Revolving
Commitment, a commitment fee equal to the Applicable Commitment Fee Rate per
annum times the average daily amount by which the Revolving Commitment exceeds
the sum of (a) the aggregate daily principal Indebtedness evidenced by the
Revolving Notes plus (b) the Aggregate Effective Amount of all outstanding
Letters of Credit. The commitment fee shall be payable quarterly in arrears as
of each Quarterly Payment Date within ten (10) days after receipt by Borrower of
an invoice therefor from the Administrative Agent.
3.4 Letter of Credit Fees. With respect to each Letter of Credit,
Borrower shall pay the following fees:
(a) concurrently with the issuance of each Standby Letter
of Credit, a letter of credit issuance fee to the Issuing Lender for the
sole account of the Issuing Lender, in an amount set forth in the letter
agreement between Borrower and the Issuing Lender;
(b) concurrently with the issuance of each Standby Letter
of Credit, to the Administrative Agent for the ratable account of the
Lenders in accordance with their Pro Rata Share of the Revolving
Commitment, a standby letter of credit fee in an amount equal to the
Applicable Standby Letter of Credit Fee Rate as of the date of such
issuance times the face amount of such Standby
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Letter of Credit through the termination or expiration of such Standby
Letter of Credit, which the Administrative Agent shall promptly pay to
the Lenders; and
(c) concurrently with each issuance, negotiation, drawing
or amendment of each Commercial Letter of Credit, to the Issuing Lender
for the sole account of the Issuing Lender, issuance, negotiation,
drawing and amendment fees in the amounts set forth from time to time as
the Issuing Lender's published scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this
Section is earned when due and is nonrefundable.
3.5 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the Closing Date of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling such Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority not imposed as a result of such
Lender's or such corporation's failure to comply with any other Laws, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this Agreement, then, within
five (5) Banking Days after demand of such Lender, Borrower shall pay to such
Lender, from time to time as specified in good faith by such Lender, additional
amounts sufficient to compensate such Lender in light of such circumstances, to
the extent reasonably allocable to such obligations under this Agreement,
provided that Borrower shall not be obligated to pay any such amount which arose
prior to the date which is ninety (90) days preceding the date of such demand or
is attributable to periods prior to the date which is ninety (90) days preceding
the date of such demand. Each Lender's determination of such amounts shall be
conclusive in the absence of manifest error.
3.6 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on
any Lender any reserve or comparable requirement (including any
emergency, supplemental or other reserve) with respect to the Eurodollar
Obligations of that
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Lender, Borrower shall pay that Lender within five (5) Banking Days
after demand all amounts necessary to compensate such Lender (determined
as though such Lender's Eurodollar Lending Office had funded 100% of its
Eurodollar Rate Advance in the Designated Eurodollar Market) in respect
of the imposition of such reserve requirements (provided, that Borrower
shall not be obligated to pay any such amount which arose prior to the
date which is ninety (90) days preceding the date of such demand or is
attributable to periods prior to the date which is ninety (90) days
preceding the date of such demand). The Lender's determination of such
amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect
to any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances, or shall change the basis of taxation of
payments to any Lender attributable to the principal of or
interest on any Eurodollar Rate Advance or any other amounts
due under this Agreement in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans
or its obligation to make Eurodollar Rate Advances,
excluding (i) taxes imposed on or measured in whole or in
part by its overall net income by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or
maintains its principal office or Eurodollar Lending Office
or (B) any jurisdiction (or political subdivision thereof)
in which it is "doing business" and (ii) any withholding
taxes or other taxes based on gross income imposed by the
United States of America for any period with respect to
which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.21, to the extent such
forms are then required by applicable Laws;
(2) shall impose, modify or deem applicable any reserve
not applicable or deemed applicable on the date hereof
(including any reserve imposed by the Board of Governors of
the Federal Reserve System, special deposit, capital or
similar requirements against assets of, deposits with or for
the account of, or credit extended by, any Lender or its
Eurodollar Lending Office); or
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(3) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any other
condition affecting any Eurodollar Rate Advance, any of its
Notes evidencing Eurodollar Rate Loans, its obligation to
make Eurodollar Rate Advances or this Agreement, or shall
otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar Lending
Office of making or maintaining any Eurodollar Rate Advance or in
respect of any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar Rate Advances
or reduces the amount of any sum received or receivable by such Lender
or its Eurodollar Lending Office with respect to any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances (assuming such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance
in the Designated Eurodollar Market), then, within five (5) Banking Days
after demand by such Lender (with a copy to the Administrative Agent),
Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction
(determined as though such Lender's Eurodollar Lending Office had funded
100% of its Eurodollar Rate Advance in the Designated Eurodollar
Market); provided, that Borrower shall not be obligated to pay any such
amount which arose prior to the date which is ninety (90) days preceding
the date of such demand or is attributable to periods prior to the date
which is ninety (90) days preceding the date of such demand. A statement
of any Lender claiming compensation under this subsection shall be
conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good faith opinion
of any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the
Designated Eurodollar Market, or to determine or charge interest rates
based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrower. Upon receipt of such notice,
the outstanding principal amount of such Lender's Eurodollar Rate
Advances, together with accrued interest thereon, automatically shall be
converted to Alternate Base Rate
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Advances on either (1) the last day of the Eurodollar Period(s)
applicable to such Eurodollar Rate Advances if such Lender may lawfully
continue to maintain and fund such Eurodollar Rate Advances to such
day(s) or (2) immediately if such Lender may not lawfully continue to
fund and maintain such Eurodollar Rate Advances to such day(s), provided
that in such event the conversion shall not be subject to payment of a
prepayment fee under Section 3.6(e). Each Lender agrees to endeavor
promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will cause that
Lender to notify the Administrative Agent under this Section, and agrees
to designate a different Eurodollar Lending Office if such designation
will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender. In the event that any Lender is unable, for the reasons set
forth above, to make, maintain or fund its portion of any Eurodollar
Rate Loan, such Lender shall fund such amount as an Alternate Base Rate
Advance for the same period of time, and such amount shall be treated in
all respects as an Alternate Base Rate Advance. Any Lender whose
obligation to make Eurodollar Rate Advances has been suspended under
this Section shall promptly notify the Administrative Agent and Borrower
of the cessation of the Special Eurodollar Circumstance which gave rise
to such suspension.
(d) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated
Eurodollar Market generally that are beyond the reasonable
control of the Lenders, deposits in Dollars (in the
applicable amounts) are not being offered to any Lender in
the Designated Eurodollar Market for the applicable
Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Eurodollar Market in the relevant amount for the
applicable Eurodollar Period, or (ii) will not adequately
and fairly reflect the cost to such Lenders of making the
applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the
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obligation of the Lenders to make any future Eurodollar Rate Advances
shall be suspended.
(e) Upon payment or prepayment of any Eurodollar Rate
Advance (other than as the result of a conversion required under Section
3.6(c) on a day other than the last day in the applicable Eurodollar
Period (whether voluntarily, involuntarily, by reason of acceleration,
or otherwise), or upon the failure of Borrower (for a reason other than
the breach by a Lender of its obligation pursuant to Section 2.1(a) to
make an Advance) to borrow on the date or in the amount specified for a
Eurodollar Rate Loan in any Request for Loan, Borrower shall pay to the
appropriate Lender within five (5) Banking Days after demand a
prepayment fee or failure to borrow fee, as the case may be (determined
as though 100% of the Eurodollar Rate Advance had been funded in the
Designated Eurodollar Market) equal to the sum of:
(1) $250; plus
(2) the amount, if any, by which (i) the additional
interest would have accrued on the amount prepaid or not
borrowed at the Eurodollar Rate plus the Applicable
Eurodollar Rate Margin if that amount had remained or been
outstanding through the last day of the applicable
Eurodollar Period exceeds (ii) the interest that the Lender
could recover by placing such amount on deposit in the
Designated Eurodollar Market for a period beginning on the
date of the prepayment or failure to borrow and ending on
the last day of the applicable Eurodollar Period (or, if no
deposit rate quotation is available for such period, for the
most comparable period for which a deposit rate quotation
may be obtained); plus
(3) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or
failure to borrow. Each Lender's determination of the amount
of any prepayment fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify
Borrower of any event of which it has actual knowledge, occurring after
the Closing Date, which will entitle such Lender to compensation
pursuant to clause (a) or clause (b) of this Section, and agrees to
designate a different Eurodollar Lending Office if such designation will
avoid the need for or reduce the amount
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of such compensation and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender. Any
request for compensation by a Lender under this Section shall set forth
the basis upon which it has been determined that such an amount is due
from Borrower, a calculation of the amount due, and a certification that
the corresponding costs have been incurred by the Lender.
3.7 Late Payments. If any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to the
sum of the Alternate Base Rate plus 2%, to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including,
without limitation, interest on past due interest) shall be compounded monthly,
on the last day of each calendar month, to the fullest extent permitted by
applicable Laws.
3.8 Computation of Interest and Fees. Computation of interest and
fees under this Agreement shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed. Interest shall accrue on each Loan for
the day on which the Loan is made; interest shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Any Loan
that is repaid on the same day on which it is made shall bear interest for one
day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.9 Non-Banking Days. If any payment to be made by Borrower or
any other Party under any Loan Document shall come due on a day other than a
Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing interest
and fees.
3.10 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to
Sections 3.5, 3.6, 11.3, 11.11 and 11.22) or on the Notes or under any
other Loan Document shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of each of the Lenders or
the Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. California time, on the day of payment
(which must be a
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Banking Day). All payments received after such time, on any Banking Day,
shall be deemed received on the next succeeding Banking Day. The amount
of all payments received by the Administrative Agent for the account of
each Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment
was received by the Administrative Agent by 11:00 a.m., California time,
on a Banking Day and not so made available to the account of a Lender on
that Banking Day, the Administrative Agent shall reimburse that Lender
for the cost to such Lender of funding the amount of such payment at the
Federal Funds Rate. All payments shall be made in lawful money of the
United States of America.
(b) Borrower hereby authorizes the Administrative Agent to
debit the general operating bank account of Borrower to effect any
payment due to the Lenders or the Administrative Agent pursuant to this
Agreement. Any resulting overdraft in such account shall be payable by
Borrower to the Administrative Agent on the next following Banking Day.
(c) Each payment or prepayment on account of any Loan
shall be applied pro rata according to the outstanding Advances made by
each Lender comprising such Loan.
(d) Each Lender shall use its best efforts to keep a
record (in writing or by an electronic data entry system) of Advances
made by it and payments received by it with respect to each of its Notes
and, subject to Section 10.6(g), such record shall, as against Borrower,
be presumptive evidence of the amounts owing. Notwithstanding the
foregoing sentence, the failure by any Lender to keep such a record
shall not affect Borrower's obligation to pay the Obligations.
(e) Each payment of any amount payable by Borrower or any
other Party under this Agreement or any other Loan Document shall be
made free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency, central
bank or comparable authority, excluding (i) taxes imposed on or measured
in whole or in part by its overall net income by (A) any jurisdiction
(or political subdivision thereof) in which it is organized or maintains
its principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is "doing
business" and (ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America for any period with
respect to which it has failed to provide Borrower with the appropriate
form or forms required by Section 11.21, to the extent such forms are
then required by
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applicable Laws (all such non-excluded taxes, assessments or other
charges being hereinafter referred to as "Taxes"). To the extent that
Borrower is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender
under this Agreement, Borrower shall (i) make such deduction or
withholding and pay the same to the relevant Governmental Agency and
(ii) pay such additional amount to that Lender as is necessary to result
in that Lender's receiving a net after-Tax amount equal to the amount to
which that Lender would have been entitled under this Agreement absent
such deduction or withholding. If and when receipt of such payment
results in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrower.
3.11 Funding Sources. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.12 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.7), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.7), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.13 Administrative Agent's Right to Assume Payments Will be
Made. Unless the Administrative Agent shall have been notified by Borrower prior
to the date on which any payment to be made by Borrower hereunder is due that
Borrower does not intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower has remitted such payment when so due and
the Administrative Agent may, in its discretion and in reliance upon such
assumption, make available to each Lender on such payment date an amount equal
to such Lender's share of such assumed payment. If Borrower has not in fact
remitted such payment to the Administrative Agent, each Lender shall forthwith
on demand repay to the Administrative Agent the amount of such assumed payment
made available to such Lender, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
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3.14 Fee Determination Detail. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders, or
that Lender, under Article 3 has been determined, concurrently with demand for
such payment.
3.15 Survivability. All of Borrower's obligations under Sections
3.5 and 3.6 shall survive for the ninety (90) day period following the date on
which the Commitment is terminated and all Loans hereunder are fully paid, and
Borrower shall remain obligated thereunder for all claims under such Sections
made by any Lender to Borrower prior to the expiration of such period.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of Florida. Borrower is duly qualified or registered to transact
business and is in good standing in California and each other jurisdiction in
which the conduct of its business or the ownership or leasing of its Properties
makes such qualification or registration necessary, except where the failure so
to qualify or register and to be in good standing would not constitute a
Material Adverse Effect. Borrower has all requisite power and authority to
conduct its business, to own and lease its Properties and to execute and deliver
each Loan Document to which it is a Party and to perform its Obligations. The
chief executive offices of Borrower are located in California. All outstanding
shares of capital stock of Borrower are duly authorized, validly issued, fully
paid and non-assessable, and no holder thereof has any enforceable right of
rescission under any applicable state or federal securities Laws. Borrower is in
compliance with all Laws and other legal requirements applicable to its
business, has obtained all authorizations, consents, approvals, orders, licenses
and permits from, and has accomplished all filings, registrations and
qualifications with, or obtained exemptions from any of the foregoing from, any
Governmental Agency that are necessary for the transaction of its business,
except where the failure so to comply, obtain authorizations, etc., file,
register, qualify or obtain exemptions does not constitute a Material Adverse
Effect.
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by Borrower
and the Subsidiary Guarantors of the Loan Documents to which it is a Party have
been duly authorized by all necessary corporate action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security holder or
creditor of such Party;
(b) Violate or conflict with any provision of such Party's
charter, articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any
Lien (other than pursuant to the Loan Documents) or Right of Others upon
or with
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respect to any Property now owned or leased or hereafter acquired by
such Party;
(d) Violate any Requirement of Law applicable to such
Party;
(e) Result in a breach of or constitute a default under,
or cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual
Obligation to which such Party is a party or by which such Party or any
of its Property is bound or affected;
and such Party is not in violation of, or default under, any Requirement of Law
or Contractual Obligation, or any indenture, loan or credit agreement described
in Section 4.2(e), in any respect that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as previously
obtained or made, no authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any Governmental Agency is
or will be required to authorize or permit under applicable Laws the execution,
delivery and performance by Borrower or any Subsidiary Guarantor of the Loan
Documents to which it is a Party.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock issued and
outstanding, number of shares owned by Borrower or a Subsidiary of
Borrower (specifying such owner) and jurisdictions of organization of
all Subsidiaries of Borrower and specifies which thereof, as of the
Closing Date, are Inactive Subsidiaries. Except as described in Schedule
4.4, Borrower does not own any capital stock, equity interest or debt
security which is convertible, or exchangeable, for capital stock or
equity interest in any Person. Unless otherwise indicated in Schedule
4.4, all of the outstanding shares of capital stock, or all of the units
of equity interest, as the case may be, of each Subsidiary are owned of
record and beneficially by Borrower, there are no outstanding options,
warrants or other rights to purchase capital stock of any such
Subsidiary, and all such shares or equity interests so owned are duly
authorized, validly issued, fully paid and non-assessable, and were
issued in compliance with all applicable state and federal securities
and other Laws, and are free and clear of all Liens, except for
Permitted Encumbrances.
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(b) Each Subsidiary is a legal entity of the type
described in Schedule 4.4 duly formed, validly existing and in good
standing under the Laws of its jurisdiction of organization, is duly
qualified to do business as a foreign organization and is in good
standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such
qualification necessary (except where the failure to be so duly
qualified and in good standing does not constitute a Material Adverse
Effect), and has all requisite power and authority to conduct its
business and to own and lease its Properties.
(c) Each Subsidiary is in compliance with all Laws and
other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from,
and each such Subsidiary has accomplished all filings, registrations,
and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the
transaction of its business, except where the failure to be in such
compliance, obtain such authorizations, consents, approvals, orders,
licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not constitute a
Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the Lenders
(a) the audited financial statements of Borrower for the Fiscal Year ended
December 31, 1997 and (b) the unaudited balance sheet and statement of
operations of Borrower for the Fiscal Quarter ended March 31, 1998. The
financial statements described in clause (a) fairly present in all material
respects the financial condition, results of operations and changes in financial
position, and the balance sheet and statement of operations described in clause
(b) fairly present the financial condition and results of operations of Borrower
as of such dates and for such periods in conformity with GAAP consistently
applied, subject only to normal year-end accruals and audit adjustments.
4.6 No Other Liabilities; No Material Adverse Changes. Borrower
and its Subsidiaries do not have any material liability or material contingent
liability required under GAAP to be reflected or disclosed, and not reflected or
disclosed, in the balance sheet described in Section 4.5(b), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since March 31, 1998.
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4.7 Title to and Location of Property. Borrower and its
Subsidiaries have valid title to the Property (other than assets which are the
subject of a Capital Lease Obligation) reflected in the balance sheet described
in Section 4.5(b), other than items of Property or exceptions to title which are
in each case immaterial and Property subsequently sold or disposed of in the
ordinary course of business. Such Property is free and clear of all Liens and
Rights of Others, other than Liens or Rights of Others described in Schedule
4.7A and Permitted Encumbrances and Permitted Rights of Others. All Property of
Borrower and its Subsidiaries is located at one of the locations described in
Schedule 4.7B.
4.8 Intangible Assets. Borrower and its Subsidiaries own, or
possess the right to use to the extent necessary in their respective businesses,
all material trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that are used in the
conduct of their businesses as now operated, and no such Intangible Asset, to
the best knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict constitutes a Material Adverse Effect. Except as set
forth in Schedule 4.8, Borrower has not used any trade name, trade style or
"dba" during the five year period ending on the Closing Date.
4.9 Public Utility Holding Company Act. Neither Borrower nor any
of its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrower or any of its Subsidiaries
of less than $1,000,000, (c) matters of an administrative nature not involving
a claim or charge against Borrower or any of its Subsidiaries and (d) matters
set forth in Schedule 4.10, there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any Property of any
of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to which
Borrower and any Subsidiary Guarantor is a Party will, when executed and
delivered by such Party, constitute the legal, valid and binding obligation of
such Party,
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enforceable against such Party in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws or equitable principles
relating to the granting of specific performance and other equitable remedies as
a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that is
a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects
with ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a
Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302
of ERISA) that could reasonably be expected to have a
Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043
of ERISA, but excluding such events as to which the PBGC has
by regulation waived the requirement therein contained that
it be notified within thirty days of the occurrence of such
event) has occurred that could reasonably be expected to
have a Material Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code) that could reasonably
be expected to have a Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has
incurred or expects to incur any withdrawal liability to any
Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
4.14 Regulation U; Investment Company Act. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulation U. Neither Borrower nor any of its Subsidiaries is or
is required to be registered as an "investment company" under the Investment
Company Act of 1940.
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4.15 Disclosure. No written statement made by a Senior Officer to
the Administrative Agent or any Lender in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all
tax returns which are required to be filed, and have paid, or made provision for
the payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of its Subsidiaries, except (a) such taxes, if any, as are being contested
in good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes so long as no material
Property of Borrower or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best knowledge
of Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrower, and the
Projections are reasonably based on such assumptions. Nothing in this Section
4.17 shall be construed as a representation or covenant that the Projections in
fact will be achieved.
4.18 Hazardous Materials. Except as described in Schedule 4.18,
as of the Closing Date (a) neither Borrower nor any of its Subsidiaries at any
time has disposed of, discharged, released or threatened the release of any
Hazardous Materials on, from or under the Real Property in violation of any
Hazardous Materials Law that would individually or in the aggregate constitute a
Material Adverse Effect, (b) to the best knowledge of Borrower, no condition
exists that violates any Hazardous Material Law affecting any Real Property
except for such violations that would not individually or in the aggregate
constitute a Material Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by Borrower or any of its Subsidiaries as a site
for the manufacture of any Hazardous Materials and (d) to the extent that any
Hazardous Materials are used, generated or stored by Borrower or any of its
Subsidiaries on any Real Property, or transported to or from such Real Property
by Borrower or any of its Subsidiaries, such use, generation, storage and
transportation are in compliance with all Hazardous Materials Laws except for
such non-compliance that would not constitute a Material Adverse Effect or be
materially adverse to the interests of the Lenders.
4.19 Security Interests. Upon the execution and delivery of the
Security Agreement, the Security Agreement will create a valid first priority
security interest in the Collateral described therein securing the Obligations
(subject only to
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Permitted Encumbrances, Permitted Rights of Others and other matters permitted
by Section 6.9 and to such qualifications and exceptions as are contained in the
Uniform Commercial Code with respect to the priority of security interests
perfected by means other than the filing of a financing statement or with
respect to the creation of security interests in Property to which Division 9 of
the Uniform Commercial Code does not apply) and all actions necessary to perfect
the security interests so created, other than filing of the UCC-1 financing
statements delivered to the Administrative Agent pursuant to Section 8.1 with
the appropriate Governmental Agency, have been taken and completed. Upon the
execution and delivery of the Pledge Agreement, the Pledge Agreement will create
a valid first priority security interest in the Pledged Collateral and upon
delivery of the Pledged Collateral to the Administrative Agent all action
necessary to perfect the security interest so created will have been taken and
completed.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrower
shall, and shall cause its Subsidiaries to, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
any of them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower and its
Subsidiaries shall not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the same or (b)
any immaterial tax so long as no material Property of Borrower or its
Subsidiaries is at impending risk of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except (a) a merger permitted by
Section 6.3 or as otherwise permitted by this Agreement and (b) where the
failure to so qualify or remain qualified would not constitute a Material
Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect all
of their respective Properties in good order and condition, subject to wear and
tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that the failure to maintain, preserve and protect
a particular item of Property that is at the end of its useful life or that is
not of significant value, either intrinsically or to the operations of Borrower,
shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance
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companies in such amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar assets in the general
areas in which Borrower and its Subsidiaries operate.
5.5 Compliance With Laws. Comply with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, except that
Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during
regular business hours and as often as reasonably requested (but not so as to
materially interfere with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender, or any authorized employee, agent
or representative thereof, to examine, audit and make copies and abstracts from
the records and books of account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs, finances and accounts
of Borrower and its Subsidiaries with any of their officers, key employees or
accountants.
5.7 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all financial transactions in conformity
with GAAP, consistently applied, and in material conformity with all applicable
require ments of any Governmental Agency having regulatory jurisdiction over
Borrower and its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with
all Contractual Obligations to which any one or more of them is a party, except
for any such Contractual Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good faith by appropriate
proceedings or (c) if the failure to comply does not constitute a Material
Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of all Revolving Loans for
working capital and general corporate purposes of Borrower, including repayment
of the Prior Credit Agreement and use the proceeds of the Term Loan solely to
retire Indebtedness of Borrower and its Subsidiaries.
5.10 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any
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applicable Hazardous Materials Laws, (b) any and all material claims made or
threatened in writing by any Person against Borrower relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials and (c) discovery by any Senior Officer of any of Borrower
of any material occurrence or condition on any real Property adjoining or in the
vicinity of such Real Property that could reasonably be expected to cause such
Real Property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such Real Property under any
applicable Hazardous Materials Laws.
5.11 Future Subsidiaries. Pledge all of the capital stock of any
Domestic Subsidiary (other than an Inactive Subsidiary), and 65% of the capital
stock of any Foreign Subsidiary, formed or acquired after the Closing Date
pursuant to the Pledge Agreement, and cause each such Domestic Subsidiary (other
than an Inactive Subsidiary) to execute and deliver an appropriate joinder to
the Subsidiary Guaranty and the Security Agreement.
5.12 Future Real Property. Promptly following its acquisition of
any fee simple real property, execute and deliver to the Administrative Agent a
deed of trust or mortgage in form and substance acceptable to the Administrative
Agent creating a first priority Lien on such real property securing the
Obligations, and provide to the Administrative Agent such customary lender's
title insurance policies, appraisals, environmental reports and other related
documents as the Administrative Agent may reasonably request.
5.13 Year 2000 Compliance. Take such steps as are reasonably
necessary to assure that, prior to November 1, 1999, (a) Borrower and its
Subsidiaries are Year 2000 Compliant and (b) all customers and vendors of
Borrower and its Subsidiaries that are material to the business of Borrower and
whose ability to perform their business obligations to Borrower may be
materially affected by their not being Year 2000 Compliant are Year 2000
Compliant. Such steps shall include the performance of a comprehensive review
and assessment of all data storage and operating systems and the adoption of a
detailed plan and budget for the remediation, monitoring and testing of such
systems. The term "Year 2000 Compliant" means, for purposes of the foregoing,
that all hardware, software, firmware, equipment, goods and systems used by a
Person, or which are material to the business operations or financial condition
of a Person, will properly perform date-sensitive functions on and after January
1, 2000.
5.14 Syndication Process. Cooperate in such respects as may be
requested by the Arranger in connection with the syndication of the credit
facilities under this Agreement, including the provision of information (in form
and substance
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acceptable to the Arranger) for inclusion in written materials furnished to
prospective syndicate members and the participation by Senior Officers in
meetings with prospective syndicate members. Nothing in this Section 5.14 shall
obligate Borrower to amend any Loan Document.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid, or any portion of the Commitment remains in force, Borrower
shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 11.2, of all of the Lenders) otherwise consents:
6.1 Payment of Subordinated Obligations. Pay any (a) principal
(including sinking fund payments) or any other amount (other than scheduled
interest payments) with respect to any Subordinated Obligation, or purchase or
redeem (or offer to purchase or redeem) any Subordinated Obligation, or deposit
any monies, securities or other Property with any trustee or other Person to
provide assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation or (b) scheduled interest on any Subordinated
Obligation unless the payment thereof is then permitted pursuant to the terms of
the indenture or other agreement governing such Subordinated Obligation.
6.2 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, except (a) a Disposition by
Borrower to a Wholly-Owned Subsidiary, or by a Subsidiary to Borrower or a
Wholly-Owned Subsidiary, (b) a Disposition by Safeskin Corporation (Malaysia)
SDN BHD of all or substantially all of its physical plant in Malaysia, and (c) a
Disposition (other than the Disposition referred to in clause (b) above) for
which the Net Cash Sales Proceeds, when added to the aggregate Net Cash Sales
Proceeds of all Dispositions made during that Fiscal Year, does not exceed
$5,000,000.
6.3 Mergers. Merge or consolidate with or into any Person, except
(a) mergers and consolidations of a Subsidiary of Borrower into Borrower or a
Wholly- Owned Subsidiary or of Subsidiaries with each other and (b) a merger or
consolidation of a Person into Borrower or with or into a Wholly-Owned
Subsidiary of Borrower which constitutes an Acquisition permitted by Section
6.5; provided that (i) Borrower or a Wholly-Owned Subsidiary is the surviving
entity, (ii) no Change in Control results therefrom, (iii) no Default or Event
of Default then exists or would result therefrom and (iv) Borrower and each of
the Subsidiary Guarantors execute such amendments to the Loan Documents as the
Administrative Agent may reasonably determine are appropriate as a result of
such merger.
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6.4 Hostile Acquisitions. Directly or indirectly use the proceeds
of any Loan in connection with the acquisition of part or all of a voting
interest of five percent (5%) or more in any corporation or other business
entity if such acquisition is opposed by the board of directors of such
corporation or business entity.
6.5 Acquisitions. Make any Acquisition, except any Acquisition of
a Person engaged in the same line of business as Borrower if the aggregate
consideration paid and payable by Borrower in respect of such Acquisition and in
respect of all transactions related to such Acquisition does not (a) exceed
$5,000,000 or (b) when aggregated with all other Acquisitions during that Fiscal
Year, exceed an amount equal to 50% of Tangible Net Worth as of the last day of
the immediately preceding Fiscal year; provided that, prior to any such
Acquisition, Borrower furnishes to the Administrative Agent a Certificate which
demonstrates that, giving effect thereto on a pro-forma basis, Borrower would
have been in compliance with Sections 6.12 through 6.17 for each of the four (4)
Fiscal Quarters most recently-ended and is projected to be in compliance with
such Sections for each of the next succeeding four (4) Fiscal Quarters.
6.6 Distributions. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, except:
(a) Distributions by any Subsidiary of Borrower to
Borrower or any Wholly-Owned Subsidiary;
(b) dividends payable on Common Stock; provided that no
Default or Event of Default then exists or would result therefrom; and
(c) repurchases of Common Stock for an aggregate
repurchase price not in excess of $10,000,000 in any Fiscal Year;
provided that no Default or Event of Default then exists or would result
therefrom.
6.7 ERISA. At any time, permit any Pension Plan to: (i) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA); or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect or (b) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
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6.8 Change in Nature of Business. Make any material change in the
nature of the business of Borrower and its Subsidiaries, taken as a whole.
6.9 Liens and Negative Pledges. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of their respective Properties, or engage in any sale and leaseback transaction
with respect to any of their respective Properties, whether now owned or
hereafter acquired, except:
(a) Liens and Negative Pledges existing on the Closing
Date and disclosed in Schedule 4.7 and any renewals/extensions or
amendments thereof, provided that the obligations secured or benefited
thereby are not increased;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Permitted Encumbrances;
(d) Liens on Property acquired by Borrower or any of its
Subsidiaries that were in existence at the time of the acquisition of
such Property and were not created in contemplation of such acquisition;
(e) Liens securing Indebtedness permitted by Section
6.10(d) on and limited to the capital assets acquired, constructed or
financed with the proceeds of such Indebtedness or with the proceeds of
any Indebtedness directly or indirectly refinanced by such Indebtedness;
and
(f) Non-consensual Liens securing Indebtedness of not more
than $500,000, provided that such Liens are discharged within thirty
(30) days after their incurrence by Borrower.
6.10 Indebtedness and Guaranty Obligations. Create, incur or
assume any Indebtedness or Guaranty Obligation except:
(a) Indebtedness and Guaranty Obligations existing on the
Closing Date and disclosed in Schedule 6.10, and refinancings, renewals,
extensions or amendments that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan
Documents;
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(c) Indebtedness and Guaranty Obligations owed to Borrower
or any of its Subsidiaries;
(d) Indebtedness consisting of Capital Lease Obligations,
or otherwise incurred to finance the purchase or construction of capital
assets (which shall be deemed to exist if the Indebtedness is incurred
at or within 90 days before or after the purchase or construction of the
capital asset), or to refinance any such Indebtedness, provided that the
aggregate principal amount of such Indebtedness incurred in any Fiscal
Year does not exceed $10,000,000;
(e) Subordinated Obligations in such amount as may be
approved in writing by the Requisite Lenders;
(f) Indebtedness consisting of debt securities for which
the Net Cash Issuance Proceeds will be applied as a mandatory prepayment
pursuant to Section 3.1(f);
(g) Indebtedness consisting of Interest Rate Protection
Agreements; and
(h) Guaranty Obligations in support of the obligations of
a Wholly-Owned Subsidiary, provided that such obligations are not
prohibited by this Agreement.
6.11 Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of Borrower other than (a) salary, bonus, employee
stock option and other compensation arrangements with directors or officers in
the ordinary course of business, (b) transactions that are fully disclosed to
the board of directors (or executive committee thereof) of Borrower and
expressly authorized by a resolution of the board of directors (or executive
committee) of Borrower which is approved by a majority of the directors (or
executive committee) not having an interest in the transaction, (c) transactions
between or among Borrower and its Subsidiaries and (d) transactions on overall
terms at least as favorable to Borrower or its Subsidiaries as would be the case
in an arm's-length transaction between unrelated parties of equal bargaining
power.
6.12 Leverage Ratio. Permit the Leverage Ratio, as of the last
day of any Fiscal Quarter occurring during a period set forth below, to be
greater than the ratio set forth opposite such period:
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<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 30, 1999 2.75 to 1.00
December 31, 1999 through December 30, 2000 2.00 to 1.00
December 31, 2000 through December 30, 2001 1.75 to 1.00
December 31, 2001 through the Maturity Date 1.50 to 1.00
</TABLE>
6.13 Interest Coverage Ratio. Permit the Interest Coverage Ratio,
as of the last day of any Fiscal Quarter occurring during a period set forth
below, to be less than the ratio set forth opposite such period:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 30, 2000 3.00 to 1.00
December 31, 2000 through December 30, 2001 3.25 to 1.00
December 31, 2001 through December 30, 2002 3.50 to 1.00
December 31, 2002 through the Maturity Date 3.75 to 1.00
</TABLE>
6.14 Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio, as of the last day of any Fiscal Quarter occurring during a
period set forth below, to be less than the ratio set forth opposite such
period:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 30, 1999 1.15 to 1.00
December 31, 1999 through December 30, 2000 1.25 to 1.00
December 31, 2000 through December 30, 2001 1.50 to 1.00
December 31, 2001 through December 30, 2002 1.75 to 1.00
December 31, 2002 through the Maturity Date 2.00 to 1.00
</TABLE>
6.15 Tangible Net Worth. Permit Tangible Net Worth as of the last
day of each Fiscal Quarter in 1998, to be less than the sum of (a) $57,500,000,
plus (b) 75% of Net Income in such Fiscal Quarter (with no deduction for a net
loss in such Fiscal Quarter, but excluding any extraordinary loss or gain due to
foreign currency translation adjustments) plus (c) 50% of the proceeds of any
issuance by Borrower of equity securities (except to employees or former
employees of Borrower pursuant to an employee stock option plan maintained by
Borrower) subsequent to the Closing Date. Thereafter, permit Tangible Net Worth
as of the last day of any Fiscal Quarter to be less than the sum of (a) Tangible
Net Worth as of the most recent Fiscal Year end plus (b) 75 % of Net Income in
such Fiscal Quarter (with no deduction for a net loss in
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such Fiscal Quarter, but excluding any extraordinary loss or gain due to foreign
currency translation adjustments) plus (c) 50% of the proceeds of any issuance
by Borrower of equity securities (except to employees or former employees of
Borrower pursuant to an employee stock option plan maintained by Borrower)
subsequent to the Amendment Date.
6.16 Adjusted Current Ratio. Permit the Adjusted Current Ratio,
as of the last day of any Fiscal Quarter, occurring during a period set forth
below, to be less than the ratio set forth opposite such period:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Closing Date through December 30, 2000 1.25 to 1.00
December 31, 2000 through December 30, 2001 1.50 to 1.00
December 31, 2001 through December 30, 2002 1.75 to 1.00
December 31, 2002 through the Maturity Date 2.25 to 1.00
</TABLE>
6.17 Net Income. Permit (a) Net Income for any Fiscal Quarter to
be less than zero or (b) Net Income for any Fiscal Year to be less than an
amount equal to 10% of consolidated gross revenues of Borrower and its
Subsidiaries for such Fiscal Year.
6.18 Investments. Make or suffer to exist any Investment, other
than:
(a) Investments in existence on the Closing Date and
disclosed on Schedule 6.18;
(b) Investments consisting of Cash Equivalents;
(c) Investments in a Person that is the subject of an
Acquisition permitted by Section 6.5;
(d) Investments consisting of advances to officers,
directors and employees of Borrower and its Subsidiaries for travel,
entertainment, relocation, anticipated bonus and analogous ordinary
business purposes;
(e) Investments in a Domestic Subsidiary that is a Wholly-
Owned Subsidiary;
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(f) Investments in a Foreign Subsidiary that is a Wholly-
Owned Subsidiary and Investments in Joint Ventures; provided that the
aggregate of all such Investments in all Foreign Subsidiaries and Joint
Ventures in any Fiscal Year does not exceed $50,000,000;
(g) Investments consisting of the extension of credit to
customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or
partial satisfaction thereof;
(h) Investments received in connection with the settlement
of a bona fide dispute with another Person;
(i) Investments representing all or a portion of the sales
price of Property sold or services provided to another Person;
(j) Investments by Foreign Subsidiaries in any other
Subsidiary of Borrower (whether a Domestic Subsidiary or a Foreign
Subsidiary); and
(k) Investments not described above not in excess of
$50,000 in any Fiscal Year.
6.19 Capital Expenditures. Make any Capital Expenditure in any
Fiscal Year, if to do so would result in the aggregate of all Capital
Expenditures made in such Fiscal Year to exceed the sum of (a) $65,000,000 for
the 1998 Fiscal Year, $60,000,000 for the 1999 Fiscal Year, or $50,000,000 for
each subsequent Fiscal Year, plus (b) the amount, if any, by which Capital
Expenditures of Borrower and its Subsidiaries for the immediately preceding
Fiscal Year was less than the applicable foregoing limit for such Fiscal Year.
6.20 Operating Leases. Incur any obligation to pay rent under an
operating lease in any Fiscal Year if to do so would result in the aggregate
obligation of Borrower and its Subsidiaries to pay rent under all operating
leases in that Fiscal Year to exceed the applicable amount set forth below for
such Fiscal Year:
<TABLE>
<CAPTION>
Maximum Aggregate Annual
Fiscal Year Operating Lease Obligation
----------- --------------------------
<S> <C>
1998 $2,500,000
1999 $3,250,000
</TABLE>
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<TABLE>
<CAPTION>
Maximum Aggregate Annual
Fiscal Year Operating Lease Obligation
----------- --------------------------
<S> <C>
2000 $4,000,000
2001 $4,750,000
2002 $5,250,000
2003 $6,000,000
</TABLE>
6.21 Subsidiary Indebtedness. Permit (whether or not otherwise
permitted under Section 6.10) any Subsidiary to create, incur, assume or suffer
to exist any Indebtedness or Guaranty Obligation, except (a) Indebtedness and
Guaranty Obligations in existence on the Closing Date, (b) a Guaranty Obligation
required by Section 5.11, (c) Indebtedness owed to Borrower or another
Subsidiary of Borrower and (d) Capital Lease Obligations and purchase money
obligations of a Subsidiary in respect of Property used by that Subsidiary.
6.22 Amendments to Subordinated Obligations. Amend or modify any
term or provision of any indenture, agreement or instrument evidencing or
governing any Subordinated Obligation in any respect that will or may adversely
affect the interests of the Lenders.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any other Obligation remains unpaid, or any portion of the
Commitment remains in force, Borrower shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrower's sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 45
days after the end of each Fiscal Quarter (other than the fourth Fiscal
Quarter in any Fiscal Year), the consolidated and consolidating balance
sheet of Borrower and its Subsidiaries as at the end of such Fiscal
Quarter and the consolidated and consolidating statements of operations
and cash flows for such Fiscal Quarter, and the portion of the Fiscal
Year ended with such Fiscal Quarter, all in reasonable detail. Such
financial statements shall be certified by the chief financial officer
of Borrower as fairly presenting the financial condition, results of
operations and cash flows of Borrower and its Subsidiaries in accordance
with GAAP (other than footnote disclosures), consistently applied, as at
such date and for such periods, subject only to normal year-end accruals
and audit adjustments;
(b) As soon as practicable, and in any event within 45
days after the end of each Fiscal Quarter, a Pricing Certificate setting
forth a calculation of the Leverage Ratio as of the last day of such
Fiscal Quarter, and providing reasonable detail as to the calculation
thereof, which calculations in the case of the fourth Fiscal Quarter in
any Fiscal Year shall be based on the preliminary unaudited financial
statements of Borrower and its Subsidiaries for such Fiscal Quarter, and
as soon as practicable thereafter, in the event of any material variance
in the actual calculation of the Leverage Ratio from such preliminary
calculation, a revised Pricing Certificate setting forth the actual
calculation thereof;
(c) As soon as practicable, and in any event within 90
days after the end of each Fiscal Year, the consolidated and
consolidating balance sheet of Borrower and its Subsidiaries as at the
end of such Fiscal Year and the consolidated and consolidating
statements of operations, stockholders' equity and cash flows, in each
case of Borrower and its Subsidiaries for such Fiscal Year, all in
reasonable detail. Such financial statements shall be prepared in
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accordance with GAAP, consistently applied, and such consolidated
financial statements shall be accompanied by a report of Deloitte &
Touche LLP or other independent public accountants of recognized
standing selected by Borrower and reasonably satisfactory to the
Requisite Lenders, which report shall be prepared in accordance with
generally accepted auditing standards as at such date, and shall not be
subject to any qualifications or exceptions as to the scope of the audit
nor to any other qualification or exception determined by the Requisite
Lenders in their good faith business judgment to be adverse to the
interests of the Lenders. Such accountants' report shall be accompanied
by a certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification of
such financial statements and such report, such accountants have
obtained no knowledge of any Default then existing or, if, in the
opinion of such accountants, any such Default shall exist, stating the
nature and status of such Default, and stating that such accountants
have reviewed Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections 6.12
through 6.17, have read such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the attention
of such accountants in the course of such examination that would cause
them to believe that the same were not calculated by Borrower in the
manner prescribed by this Agreement;
(d) As soon as practicable, and in any event not later
than sixty (60) days after the commencement of each Fiscal Year, a
budget and projection by Fiscal Quarter for that Fiscal Year and by
Fiscal Year for the next two succeeding Fiscal Years, including for the
first such Fiscal Year, projected balance sheets, statements of
operations and statements of cash flow and, for the second and third
such Fiscal Years, projected consolidated condensed balance sheets and
statements of operations and cash flows of Borrower and its
Subsidiaries, all in reasonable detail;
(e) Promptly after request by the Administrative Agent or
any Lender, copies of any detailed audit reports by independent
accountants in connection with the accounts or books of Borrower or any
of its Subsidiaries, or any audit of any of them;
(f) Promptly after the same are available, and in any
event within five (5) Banking Days after filing with the Securities and
Exchange Commission, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of
Borrower, and copies of all annual, regular, periodic and special
reports and registration statements which
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Borrower may file or be required to file with the Securities and
Exchange Commission under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, and not otherwise required to be delivered to
the Lenders pursuant to other provisions of this Section 7.1;
(g) Promptly after request by the Administrative Agent or
any Lender, copies of any other report or other document that was filed
by Borrower with any Governmental Agency;
(h) Promptly upon a Senior Officer becoming aware, and in
any event within five (5) Banking Days after becoming aware, of the
occurrence of any (i) "reportable event" (as such term is defined in
Section 4043 of ERISA, but excluding such events as to which the PBGC
has by regulation waived the requirement therein contained that it be
notified within thirty days of the occurrence of such event) or (ii)
non-exempt "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) involving any Pension Plan or
any trust created thereunder, telephonic notice specifying the nature
thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature thereof and
specifying what action Borrower is taking or proposes to take with
respect thereto, and, when known, any action taken by the Internal
Revenue Service with respect thereto;
(i) As soon as practicable, and in any event within two
(2) Banking Days after a Senior Officer becomes aware of the existence
of any condition or event which constitutes a Default or Event of
Default, telephonic notice specifying the nature and period of existence
thereof, and, no more than two (2) Banking Days after such telephonic
notice, written notice again specifying the nature and period of
existence thereof and specifying what action Borrower is taking or
proposes to take with respect thereto;
(j) Promptly upon a Senior Officer becoming aware that (i)
any Person has commenced a legal proceeding with respect to a claim
against Borrower that is $1,000,000 or more in excess of the amount
thereof that is fully covered by insurance, (ii) any creditor under a
credit agreement involving Indebtedness of $1,000,000 or more or any
lessor under a lease involving aggregate rent of $1,000,000 or more has
asserted a default thereunder on the part of Borrower or, (iii) any
Person has commenced a legal proceeding with respect to a claim against
Borrower under a contract that is not a credit agreement or material
lease with respect to a claim of in excess of $1,000,000 or which
otherwise may reasonably be expected to result in a Material Adverse
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Effect, a written notice describing the pertinent facts relating thereto
and what action Borrower is taking or proposes to take with respect
thereto; and
(k) Such other data and information as from time to time
may be reasonably requested by the Administrative Agent, any Lender
(through the Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitment remains outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 7.1(a)
and 7.1(c), a Compliance Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 Initial Advances. The obligation of each Lender to make the
initial Advance to be made by it, and the obligation of the Issuing Lender to
issue the initial Letter of Credit, is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of
the following, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
party thereto, each dated as of the Closing Date and each in form and
substance satisfactory to the Administrative Agent and its legal counsel
(unless otherwise specified or, in the case of the date of any of the
following, unless the Administrative Agent otherwise agrees or directs):
(1) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and
Borrower;
(2) Revolving Notes executed by Borrower in favor of
each Lender, each in a principal amount equal to that
Lender's Pro Rata Share of the Revolving Commitment;
(3) Term Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's
Pro Rata Share of the Term Commitment;
(4) the Subsidiary Guaranty executed by the Subsidiary
Guarantors;
(5) the Pledge Agreement executed by Borrower;
(6) the Pledged Collateral, together with executed
undated stock powers relating thereto;
(7) the Security Agreement executed by Borrower and the
Subsidiary Guarantors;
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(8) such financing statements on Form UCC-1 executed by
Borrower and the Subsidiary Guarantors with respect to the
Security Agreement as the Administrative Agent may request;
(9) with respect to Borrower and the Subsidiary
Guarantors, such documentation as the Administrative Agent
may reasonably require to establish the due organization,
valid existence and good standing of Borrower and the
Subsidiary Guarantors, their qualification to engage in
business in each material jurisdiction in which they are
engaged in business or required to be so qualified, their
authority to execute, deliver and perform the Loan Documents
to which it is a Party, the identity, authority and capacity
of each Responsible Official thereof authorized to act on
its behalf, including certified copies of articles of
incorporation and amendments thereto, bylaws and amendments
thereto, certificates of good standing and/or qualification
to engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency
certificates, Certificates of Responsible Officials, and the
like;
(10) the Opinion of Counsel;
(11) a Certificate of the chief financial officer of
Borrower certifying that the representation contained in
Section 4.17 is, to the best of his or her knowledge, true
and correct;
(12) a Certificate of the chief financial officer of
Borrower certifying that the conditions specified in
Sections 8.1(g) and 8.1(h) have been satisfied; and
(13) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent or the
Requisite Lenders reasonably may require.
(b) The fees payable on the Closing Date pursuant to
Section 3.2 shall have been paid.
(c) All Indebtedness outstanding under the Prior Credit
Agreement shall have been (or shall concurrently be) paid and the same
shall, together with all Liens securing such Indebtedness, have been (or
shall concurrently be) terminated.
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(d) The Administrative Agent shall be reasonably satisfied
that, upon the filing of the financing statements described in Section
8.1(a)(8) with the appropriate Governmental Agencies, the Lenders will
hold a first priority perfected Lien in the Collateral subject only to
Permitted Encumbrances.
(e) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to Borrower
prior to the Closing Date, shall have been paid.
(f) The representations and warranties of Borrower
contained in Article 4 shall be true and correct in all material
respects.
(g) Borrower and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and giving
effect to the initial Advance, no Default or Event of Default shall have
occurred and be continuing.
(h) All legal matters relating to the Loan Documents shall
be satisfactory to Sheppard, Mullin, Richter & Hampton LLP, special
counsel to the Administrative Agent.
(i) The Closing Date shall have occurred on or before
January 15, 1999.
8.2 Any Advance. The obligation of each Lender to make any
Advance, and the obligation of the Issuing Lender to issue any Letter of Credit,
is subject to the following conditions precedent (unless the Requisite Lenders
or, in any case where the approval of all of the Lenders is required pursuant to
Section 11.2, all of the Lenders, in their sole and absolute discretion, shall
agree otherwise):
(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by this Agreement or
(ii) as disclosed by Borrower and approved in writing by the Requisite
Lenders, the representations and warranties contained in Article 4
(other than Sections 4.4, 4.6 (first sentence), 4.10 and 4.17) shall be
true and correct in all material respects on and as of the date of the
Advance as though made on that date;
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(b) no circumstance or event shall have occurred that
constitutes a Material Adverse Effect since the Closing Date;
(c) other than matters described in Schedule 4.10 or not
required as of the Closing Date to be therein described, there shall not
be then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrower or any of its Subsidiaries
or any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(d) the Administrative Agent shall have timely received a
Request for Loan (or telephonic or other request for Loan referred to in
the second sentence of Section 2.1(b), if applicable), or a Request for
Letter of Credit (as applicable), in compliance with Article 2; and
(e) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the
Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.3, 3.4 or 3.5, or any portion
thereof, within two (2) Banking Days after the date when due; or fails
to pay any other fee or amount payable to the Lenders under any Loan
Document, or any portion thereof, within two (2) Banking Days after
demand therefor; or
(c) Borrower fails to comply with any of the covenants
contained in Article 6; or
(d) Borrower fails to comply with Section 7.1(i) in any
respect that is materially adverse to the interests of the Lenders; or
(e) Borrower or any other Party fails to perform or
observe any other covenant or agreement (not specified in clause (a),
(b), (c) or (d) above) contained in any Loan Document on its part to be
performed or observed within twenty (20) Banking Days after the giving
of notice by the Administrative Agent on behalf of the Requisite Lenders
of such Default or, if such Default is not reasonably susceptible of
cure within such period, within such longer period as is reasonably
necessary to effect a cure so long as such Borrower or such Party
continues to diligently pursue cure of such Default but not in any event
in excess of forty (40) Banking Days; or
(f) Any representation or warranty of Borrower or any
other Party made in any Loan Document, or in any certificate or other
writing delivered by Borrower or such Party pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed in any
respect that is materially adverse to the interests of the Lenders; or
(g) Borrower (i) fails to pay the principal, or any
principal installment, of any present or future Indebtedness of
$5,000,000 or more, or any
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guaranty of present or future Indebtedness of $5,000,000 or more, on its
part to be paid, when due (or within any stated grace period), whether
at the stated maturity, upon acceleration, by reason of required
prepayment or otherwise or (ii) fails to perform or observe any other
term, covenant or agreement on its part to be performed or observed, or
suffers any event of default to occur, in connection with any present or
future Indebtedness of $5,000,000 or more, or of any guaranty of present
or future Indebtedness of $5,000,000 or more, if as a result of such
failure or sufferance any holder or holders thereof (or an agent or
trustee on its or their behalf) has the right to declare such
Indebtedness due before the date on which it otherwise would become due
or the right to require Borrower to redeem or purchase, or offer to
redeem or purchase, all or any portion of such Indebtedness; or
(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement or action (or
omission to act) of the Administrative Agent or the Lenders or
satisfaction in full of all the Obligations, ceases to be in full force
and effect or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect which is
materially adverse to the interests of the Lenders; or any Collateral
Document ceases (other than by action or inaction of the Administrative
Agent or any Lender) to create a valid and effective Lien in any
material portion of the Collateral; or any Party thereto denies in
writing that it has any or further liability or obligation under any
Loan Document, or purports to revoke, terminate or rescind same; or
(i) A final judgment against Borrower is entered for the
payment of money in excess of $1,000,000 (not covered by insurance or
for which an insurer has reserved its rights) and, absent procurement of
a stay of execution, such judgment remains unsatisfied for thirty (30)
calendar days after the date of entry of judgment, or in any event later
than five (5) days prior to the date of any proposed sale thereunder; or
any writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the Property of
Borrower and is not released, vacated or fully bonded within thirty (30)
calendar days after its issue or levy; or
(j) Borrower institutes or consents to the institution of
any proceeding under a Debtor Relief Law relating to it or to all or any
material part of its Property, or is unable or admits in writing its
inability to pay its debts as they mature, or makes an assignment for
the benefit of creditors; or applies for or consents to the appointment
of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part
of
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its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any proceeding
under a Debtor Relief Law relating to any such Person or to all or any
part of its Property is instituted without the consent of that Person
and continues undismissed or unstayed for sixty (60) calendar days; or
(k) The occurrence of an Event of Default (as such term is
or may hereafter be specifically defined in any other Loan Document)
under any other Loan Document; or
(l) Any holder of a Subordinated Obligation of more than
$5,000,000 asserts in writing that such Subordinated Obligation is not
subordinated to the Obligations in accordance with its terms and
Borrower does not promptly deny in writing such assertion and contest
any attempt by such holder to take action based on such assertion; or
(m) Any Pension Plan maintained by Borrower is finally
determined by the PBGC to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess of
an amount equal to 5% of the consolidated total assets of Borrower as of
the most-recently ended Fiscal Quarter; or
(n) The Requisite Lenders determine in good faith that a
circumstance or event has occurred that constitutes a Material Adverse
Effect.
9.2 Remedies Upon Event of Default. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of
any Event of Default other than an Event of Default described in Section
9.1(j):
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and
all rights of Borrower and any other Parties under the Loan
Documents shall be suspended without notice to or demand
upon Borrower, which are expressly waived by Borrower,
except that all of the Lenders or the Requisite Lenders (as
the case may be, in accordance with Section 11.2)
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may waive an Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to the
Lenders or Requisite Lenders, as the case may be, to
reinstate the Commitments and such other obligations and
rights and make further Advances, which waiver or
determination shall apply equally to, and shall be binding
upon, all the Lenders;
(2) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders,
demand immediate payment by Borrower of an amount equal to
the aggregate amount of all outstanding Letters of Credit to
be held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
(3) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitments and/or declare
all or any part of the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith
due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default described
in Section 9.1(j):
(1) the Commitments to make Advances and all other
obligations of the Administrative Agent or the Lenders and
all rights of Borrower and any other Parties under the Loan
Documents shall terminate without notice to or demand upon
Borrower, which are expressly waived by Borrower, except
that all of the Lenders may waive the Event of Default or,
without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitment
and such other obligations and rights and make further
Advances, which determination shall apply equally to, and
shall be binding upon, all the Lenders;
(2) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand
upon Borrower, which are expressly waived by Borrower, to be
held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
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(3) the unpaid principal of all Notes, all interest
accrued and unpaid thereon and all other amounts payable
under the Loan Documents shall be forthwith due and payable,
without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly
waived by Borrower.
(c) Upon the occurrence of any Event of Default, the
Lenders and the Administrative Agent, or any of them, without notice to
(except as expressly provided for in any Loan Document) or demand upon
Borrower, which are expressly waived by Borrower (except as to notices
expressly provided for in any Loan Document), may proceed (but only with
the consent of the Requisite Lenders) to protect, exercise and enforce
their rights and remedies under the Loan Documents against Borrower and
any other Party and such other rights and remedies as are provided by
Law or equity.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Administrative Agent and the Lenders, or any of them, shall be applied
first to the costs and expenses (including reasonable attorneys' fees
and disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid pro rata to
the Lenders in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each Lender
may treat payments for the purpose of its own accounting, for the
purpose of computing Borrower' Obligations hereunder and under the
Notes, payments shall be applied first, to the costs and expenses of the
Administrative Agent and the Lenders, as set forth above, second, to the
payment of accrued and unpaid interest due under any Loan Documents to
and including the date of such application (ratably, and without
duplication, according to the accrued and unpaid interest due under each
of the Loan Documents), and third, to the payment of all other amounts
(including principal and fees) then owing to the Administrative Agent or
the Lenders under the Loan Documents. No application of payments will
cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8, each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended solely for the purpose
of facilitating the servicing of the Loans and does not constitute appointment
of the Administrative Agent as trustee for any Lender or as representative of
any Lender for any other purpose and, except as specifically set forth in the
Loan Documents to the contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Union Bank of
California, N.A. (and each successor Administrative Agent) has the same rights
and powers under the Loan Documents as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" includes Union Bank of California, N.A. in its individual capacity.
Union Bank of California, N.A. (and each successor Administrative Agent) and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with Borrower, any Subsidiary thereof,
or any Affiliate of Borrower or any Subsidiary thereof, as if it were not the
Administrative Agent and without any duty to account therefor to the Lenders.
Union Bank of California, N.A. (and each successor Administrative Agent) need
not account to any other Lender for any monies received by it for reimbursement
of its costs and expenses as Administrative Agent hereunder, or (subject to
Section 11.10) for any monies received by it in its capacity as a Lender
hereunder. The Administrative Agent shall not be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Lenders'
rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Lender) and subject to the
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application of payments in accordance with Section 9.2(d), each Lender shall
have an interest in the Lenders' interest in such collateral or interests
therein in the same proportions that the aggregate Obligations owed such Lender
under the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Lenders, without priority or preference among the Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of Borrower and upon such other
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also agrees that
it shall, independently and without reliance upon the Administrative Agent, any
other Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent of
the existence of a Default, the Administrative Agent may assume that no
Default has occurred and is continuing, unless the Administrative Agent
(or the Lender that is then the Administrative Agent) has received
notice from Borrower stating the nature of the Default or has received
notice from a Lender stating the nature of the Default and that such
Lender considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that
no Event of Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act
or not act, except that the Administrative Agent shall be required to
act or not act upon the instructions of the Requisite Lenders (or of all
the Lenders, to the extent required by Section 11.2) and those
instructions shall be binding upon the Administrative Agent and all the
Lenders, provided that the Administrative Agent shall not be required to
act or not act if to do so would be contrary to any Loan Document or to
applicable Law or would result, in the reasonable judgment of the
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Administrative Agent, in substantial risk of liability to the
Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the
extent required by Section 11.2), provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in substantial risk of
liability to the Administrative Agent, and except that if the Requisite
Lenders (or all the Lenders, if required under Section 11.2) fail, for
five (5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to
any Lender for acting, or not acting, as instructed by the Requisite
Lenders (or all the Lenders, if required under Section 11.2),
notwithstanding any other provision hereof.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender;
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrower and/or their
Subsidiaries or the Lenders, and
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shall not be liable for any action taken or not taken by it in good
faith in accordance with any advice of such legal counsel, accountants
or other professionals or experts;
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents;
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by Borrower or its Subsidiaries of any of the terms,
conditions or covenants of any of the Loan Documents or to inspect any
collateral or any Property, books or records of Borrower or their
Subsidiaries;
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral;
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent, certificate,
statement, request or other instrument or writing believed in good faith
by it to be genuine and signed or sent by the proper party or parties;
and
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by Borrower or any
Subsidiary or Affiliate thereof or paid or payable to or received or
receivable from any Lender under any Loan Document, including, without
limitation, principal, interest, commitment fees, Advances and other
amounts; provided that, promptly upon discovery of such an error in
computation, the Administrative Agent, the Lenders and (to the extent
applicable) Borrower and/or its Subsidiaries or Affiliates shall make
such adjustments as are necessary to correct such error and to restore
the parties to the position that they would have occupied had the error
not occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance
with its Pro Rata Share of the Commitments (if the Commitments are then in
effect) or in accordance with its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitments have then been terminated), indemnify
and hold the Administrative Agent and its directors, officers, agents, employees
and attorneys
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harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including reasonable attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent) that may be imposed on, incurred by or asserted against it or them in any
way relating to or arising out of the Loan Documents (other than losses incurred
by reason of the failure of Borrower to pay the Indebtedness represented by the
Notes) or any action taken or not taken by it as Administrative Agent
thereunder, except such as result from its own gross negligence or willful
misconduct. Without limitation on the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for that Lender's Pro Rata Share of any
out-of-pocket cost or expense incurred by the Administrative Agent in connection
with the negotiation, preparation, execution, delivery, amendment, waiver,
restructuring, reorganization (including a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Borrower or any other Party is required by Section 11.3 to pay that cost or
expense but fails to do so upon demand. Nothing in this Section 10.7 shall
entitle the Administrative Agent or any indemnitee referred to above to recover
any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any of its Subsidiaries. To the
extent that the Administrative Agent or any indemnitee referred to above is
later reimbursed such amount by Borrower or any of its Subsidiaries, it shall
return the amounts paid to it by the Lenders in respect of such amount.
10.8 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon reasonable notice to the Lenders and Borrower effective upon
acceptance of appointment by a successor Administrative Agent. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by Borrower (and such approval shall not be unreasonably withheld or
delayed). If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrower, a successor Administrative Agent from among the Lenders. Upon the
acceptance of its appointment as successor Administrative Agent hereunder, such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor Administrative Agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.22, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative
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Agent under this Agreement. Notwithstanding the foregoing, if (a) the
Administrative Agent has not been paid its agency fees under Section 3.4 or has
not been reimbursed for any expense reimbursable to it under Section 11.3, in
either case for a period of at least one (1) year and (b) no successor
Administrative Agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor Administrative Agent as provided for
above.
10.9 No Obligations of Borrower. Nothing contained in this
Article 10 shall be deemed to impose upon Borrower any obligation in respect of
the due and punctual performance by the Administrative Agent of its obligations
to the Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement. In addition, Borrower may rely on a written statement by the
Administrative Agent to the effect that it has obtained the written consent of
the Requisite Lenders or all of the Lenders, as applicable under Section 11.2,
in connection with a waiver, amendment, consent, approval or other action by the
Lenders hereunder, and shall have no obligation to verify or confirm the same.
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Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Administrative Agent and the Lenders provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be deemed to be, a waiver
thereof; nor may any single or partial exercise of any right, power, privilege
or remedy preclude any other or further exercise of the same or any other right,
power, privilege or remedy. The terms and conditions of Article 8 hereof are
inserted for the sole benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Administrative Agent's or the
Lenders' rights to assert them in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the written
approval of the Requisite Lenders (and, in the case of any amendment,
modification or supplement of or to any Loan Document to which Borrower is a
Party, signed by Borrower, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only in
the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on, any
Note, or the amount of the Commitments or the Pro Rata Share of any
Lender or the amount of any commitment fee payable to any Lender, or any
other fee or amount payable to any Lender under the Loan Documents or to
waive an Event of Default consisting of the failure of Borrower to pay
when due principal, interest or any fee;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment of interest
on, any Note or any installment of any fee, or to extend the term of the
Commitments;
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(c) To amend the provisions of the definition of
"Requisite Lenders", "Amortization Date", "Amortization Amount", or
"Maturity Date"; or
(d) To release any material Subsidiary Guarantor from the
Subsidiary Guaranty or to release any material Collateral from the Lien
of the Collateral Documents, except if such release of material
Collateral occurs in connection with a Disposition permitted under
Section 6.2, in which case such release shall not require the consent of
any of the Lenders; or
(e) To amend or waive Article 8 or this Section 11.2; or
(f) To amend any provision of this Agreement that
expressly requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section 11.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower shall pay within five
(5) Banking Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and delivery of the Loan
Documents and any amendment thereto or waiver thereof. Borrower shall also pay
on demand, accompanied by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (including reasonably allocated costs of legal counsel employed by
the Administrative Agent or any Lender), independent public accountants and
other outside experts retained by the Administrative Agent or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent or any Lender in connection with or during the course of
any bankruptcy or insolvency proceedings of any of Borrower or any Subsidiary
thereof. Borrower shall pay any and all documentary and other taxes, excluding
(i) taxes imposed on or measured in whole or in part by a Lender's overall net
income imposed on it by (A) any jurisdiction (or political subdivision thereof)
in which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business" or
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(ii) any withholding taxes or other taxes based on gross income imposed by the
United States of America for any period with respect to which it has failed to
provide Borrower with the appropriate form or forms required by Section 11.21,
to the extent such forms are then required by applicable Laws, and all costs,
expenses, fees and charges payable or determined to be payable in connection
with the filing or recording of this Agreement, any other Loan Document or any
other instrument or writing to be delivered hereunder or thereunder, or in
connection with any transaction pursuant hereto or thereto, and shall reimburse,
hold harmless and indemnify on the terms set forth in 11.11 the Administrative
Agent and the Lenders from and against any and all loss, liability or legal or
other expense with respect to or resulting from any delay in paying or failure
to pay any such tax, cost, expense, fee or charge or that any of them may suffer
or incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any Lender under
this Section 11.3 shall bear interest from the fifth Banking Day following the
date of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrower or any Affiliate of any of Borrower. A default by any Lender will
not increase the Pro Rata Share of the Commitments attributable to any other
Lender. Any Lender not in default may, if it desires, assume in such proportion
as the nondefaulting Lenders agree the obligations of any Lender in default, but
is not obligated to do so. The Administrative Agent agrees that it will use its
best efforts either to induce promptly the other Lenders to assume the
obligations of a Lender in default or to obtain promptly another Lender,
reasonably satisfactory to Borrower, to replace such a Lender in default.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must
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be mailed, telegraphed, telecopied, dispatched by commercial courier or
delivered to the appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan Document or, as to any party to
any Loan Document, at any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in accordance with this
Section. Except as otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication required or permitted
by any Loan Document is given by mail it will be effective on the earlier of
receipt or the fourth Banking Day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by telecopier,
when sent; if dispatched by commercial courier, on the scheduled delivery date;
or if given by personal delivery, when delivered.
11.7 Execution of Loan Documents. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a Party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Lenders, and their
respective successors and assigns, except that Borrower may not assign
its rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Each Lender
represents that it is not acquiring its Note with a view to the
distribution thereof within the meaning of the Securities Act of 1933,
as amended (subject to any requirement that disposition of such Note
must be within the control of such Lender). Any Lender may at any time
pledge its Note or any other instrument evidencing its rights as a
Lender under this Agreement to a Federal Reserve Bank, but no such
pledge shall release that Lender from its obligations hereunder or grant
to such Federal Reserve Bank the rights of a Lender hereunder absent
foreclosure of such pledge.
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(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all or any portion
of its Pro Rata Share of the Commitments; provided that (i) such
Eligible Assignee, if not then a Lender or an Affiliate of the assigning
Lender, shall be approved by the Administrative Agent and (if no Event
of Default then exists) Borrower (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment shall be
evidenced by a Commitment Assignment and Acceptance, a copy of which
shall be furnished to the Administrative Agent as hereinbelow provided,
(iii) except in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining
Commitments of the assigning Lender, the assignment shall not assign a
Pro Rata Share of the Commitments that is equivalent to less than
$5,000,000 and (iv) the effective date of any such assignment shall be
as specified in the Commitment Assignment and Acceptance, but not
earlier than the date which is five (5) Banking Days after the date the
Administrative Agent has received the Commitment Assignment and
Acceptance. Upon the effective date of such Commitment Assignment and
Acceptance, the Eligible Assignee named therein shall be a Lender for
all purposes of this Agreement, with the Pro Rata Share of the
Commitments therein set forth and, to the extent of such Pro Rata Share,
the assigning Lender shall be released from its further obligations
under this Agreement. Borrower agrees that it shall execute and deliver
(against delivery by the assigning Lender to Borrower of its Notes) to
such assignee Lender, Notes evidencing that assignee Lender's Pro Rata
Share of the Commitments, and to the assigning Lender, Notes evidencing
the remaining balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment Assignment
and Acceptance, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Pro Rata Share of the Commitments
being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrower or
the performance by Borrower of the Obligations; (iii) it has received a
copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such
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Commitment Assignment and Acceptance; (iv) 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 decisions in taking or not taking
action under this Agreement; (v) it appoints and authorizes the
Administrative Agent to take such action and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by
this Agreement; and (vi) it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitment Assignment and
Acceptance delivered to it and a register (the "Register") of the names
and address of each of the Lenders and the Pro Rata Share of the
Commitments held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during normal
business hours for inspection by Borrower or any Lender upon reasonable
prior notice to the Administrative Agent. After receipt of a completed
Commitment Assignment and Acceptance executed by any Lender and an
Eligible Assignee, and receipt of an assignment fee of $3,000 from such
Lender or Eligible Assignee, the Administrative Agent shall, promptly
following the effective date thereof, provide to Borrower and the
Lenders a revised Schedule 1.1 giving effect thereto. Borrower, the
Administrative Agent and the Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the Pro
Rata Share of the Commitments listed therein for all purposes hereof,
and no assignment or transfer of any such Pro Rata Share of the
Commitments shall be effective, in each case unless and until a
Commitment Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent
and recorded in the Register as provided above. Prior to such
recordation, all amounts owed with respect to the applicable Pro Rata
Share of the Commitments shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Pro Rata Share of the Commitments.
(e) Each Lender may from time to time grant participations
to one or more banks or other financial institutions in a portion of its
Pro Rata Share of the Commitments; provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall
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remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes of
Sections 3.6, 3.7, 11.11 and 11.22 but only to the extent that the cost
of such benefits to Borrower does not exceed the cost which Borrower
would have incurred in respect of such Lender absent the participation,
(iv) Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the
granting Lender's Pro Rata Share of the Commitments as it then exists
and shall not restrict an increase in the Commitments, or in the
granting Lender's Pro Rata Share of the Commitments, so long as the
amount of the participation interest is not affected thereby and (vi)
the consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan Documents
other than those which (A) extend any Amortization Date, the Maturity
Date or any other date upon which any payment of money is due to the
Lenders, (B) reduce the rate of interest on the Notes, any fee or any
other monetary amount payable to the Lenders, (C) reduce the amount of
any installment of principal due under the Notes, (D) release any
Subsidiary Guarantor from the Subsidiary Guaranty, or (E) release any
material Collateral from the Lien of the Collateral Documents, except if
such release of material Collateral occurs in connection with a
Disposition permitted under Section 6.2.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrower and/or any Property of Borrower in its possession against
the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and shall pay to the
other Lenders a purchase price in an amount so that the share of the Obligations
held by each Lender after the exercise of the right of setoff, banker's
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lien or counterclaim or receipt of payment shall be in the same proportion that
existed prior to the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment; and (b) such other adjustments and purchases
of participations shall be made from time to time as shall be equitable to
ensure that all of the Lenders share any payment obtained in respect of the
Obligations ratably in accordance with each Lender's share of the Obligations
immediately prior to, and without taking into account, the payment; provided
that, if all or any portion of a disproportionate payment obtained as a result
of the exercise of the right of setoff, banker's lien, counterclaim or otherwise
is thereafter recovered from the purchasing Lender by Borrower or any Person
claiming through or succeeding to the rights of Borrower, the purchase of a
participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section 11.10
shall from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased. Borrower
expressly consents to the foregoing arrangements and agree that any Lender
holding a participation in an Obligation so purchased pursuant to this Section
11.10 may exercise any and all rights of setoff, banker's lien or counterclaim
with respect to the participation as fully as if the Lender were the original
owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to indemnify, save
and hold harmless the Administrative Agent and each Lender and their respective
directors, officers, agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action (except a claim, demand, action, or cause of action for any
amount excluded from the definition of "Taxes" in Section 3.12(d)) if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, its Affiliates or any of its
officers, directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, or the relationship of Borrower and
the Lenders under this Agreement; (b) any administrative or investigative
proceeding by any Governmental Agency arising out of or related to a claim,
demand, action or cause of action described in clause (a) above; and (c) any and
all liabilities, losses, reasonable costs or expenses (including reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by any
Indemnitee and disbursements of such attorneys and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
shall be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct or for any loss asserted against it by another
Indemnitee. If any claim, demand, action or cause of action is asserted against
any
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Indemnitee, such Indemnitee shall promptly notify Borrower, but the failure to
so promptly notify Borrower shall not affect Borrower's obligations under this
Section unless such failure materially prejudices Borrower's right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter provided. Such Indemnitee may (and shall, if requested by Borrower
in writing) contest the validity, applicability and amount of such claim,
demand, action or cause of action and shall permit Borrower to participate in
such contest. Any Indemnitee that proposes to settle or compromise any claim or
proceeding for which Borrower may be liable for payment of indemnity hereunder
shall give Borrower written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Borrower's prior consent (which shall not be
unreasonably withheld or delayed). In connection with any claim, demand, action
or cause of action covered by this Section 11.11 against more than one
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attorneys employed by an
Indemnitee or a combination of the foregoing) selected by the Indemnitees and
reasonably acceptable to Borrower; provided, that if such legal counsel
determines in good faith that representing all such Indemnitees would or could
result in a conflict of interest under Laws or ethical principles applicable to
such legal counsel or that a defense or counterclaim is available to an
Indemnitee that is not available to all such Indemnitees, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim, each affected
Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to Borrower, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of Borrower to any Indemnitee under this Section 11.11
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.
11.12 Nonliability of the Lenders. Borrower acknowledges and
agrees that:
(a) Any inspections of any Property of Borrower made by or
through the Administrative Agent or the Lenders are for purposes of
administration of the Loan only and Borrower is not entitled to rely
upon the same (whether or not such inspections are at the expense of
Borrower);
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(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Administrative Agent or
the Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same, or
of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the Lenders;
(c) The relationship between Borrower and the
Administrative Agent and the Lenders is, and shall at all times remain,
solely that of borrowers and lenders; neither the Administrative Agent
nor the Lenders shall under any circumstance be construed to be partners
or joint venturers of Borrower or its Affiliates; neither the
Administrative Agent nor the Lenders shall under any circumstance be
deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any fiduciary
duty to Borrower or its Affiliates; neither the Administrative Agent nor
the Lenders undertake or assume any responsibility or duty to Borrower
or its Affiliates to select, review, inspect, supervise, pass judgment
upon or inform Borrower or its Affiliates of any matter in connection
with their Property or the operations of Borrower or its Affiliates;
Borrower and its Affiliates shall rely entirely upon their own judgment
with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
the Administrative Agent or the Lenders in connection with such matters
is solely for the protection of the Administrative Agent and the Lenders
and neither Borrower nor any other Person is entitled to rely thereon;
and
(d) The Administrative Agent and the Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of Borrower
and/or its Affiliates and Borrower hereby indemnify and hold the
Administrative Agent and the Lenders harmless on the terms set forth in
Section 11.11 from any such loss, damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, the Administrative Agent and the Lenders in connection with the Loans,
and is made for the sole benefit of Borrower, the Administrative Agent and the
Lenders, and the Administrative Agent's and the Lenders' successors and assigns.
Except as provided in
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Sections 11.8 and 11.11, no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from Borrower pursuant to this
Agreement in confidence, except for disclosure: (a) to other Lenders or
Affiliates of a Lender; (b) to legal counsel and accountants for Borrower or any
Lender; (c) to other professional advisors to Borrower or any Lender, provided
that the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 11.14; (d) to regulatory
officials having jurisdiction over that Lender; (e) as required by Law or legal
process, provided that each Lender agrees to notify Borrower of any such
disclosures unless prohibited by applicable Laws, or in connection with any
legal proceeding to which that Lender and Borrower are adverse parties; and (f)
to another financial institution in connection with a disposition or proposed
disposition to that financial institution of all or part of that Lender's
interests hereunder or a participation interest in its Notes, provided that the
recipient has accepted such information subject to a confidentiality agreement
substantially similar to this Section 11.14. For purposes of the foregoing,
"confidential information" shall mean any information respecting Borrower or its
Subsidiaries reasonably considered by Borrower to be confidential, other than
(i) information previously filed with any Governmental Agency and available to
the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Lender, and (iii) information
previously disclosed by Borrower to any Person not associated with Borrower
which does not owe a professional duty of confidentiality to Borrower or which
has not executed an appropriate confidentiality agreement with Borrower. Nothing
in this Section shall be construed to create or give rise to any fiduciary duty
on the part of the Administrative Agent or the Lenders to Borrower.
11.15 Further Assurances. Borrower shall, at its expense and
without expense to the Lenders or the Administrative Agent, do, execute and
deliver such further acts and documents as the Requisite Lenders or the
Administrative Agent from time to time reasonably require for the assuring and
confirming unto the Lenders or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
Documents and the letter agreement referred to in Sections 3.2, 3.4, and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other
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<PAGE> 106
Loan Document, the provisions of this Agreement shall control and govern;
provided that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
11.17 Governing Law; JURISDICTION AND VENUE. Except to the extent
otherwise provided therein, each Loan Document shall be governed by, and
construed and enforced in accordance with, the Laws of California applicable to
contracts made and performed in California. THE PARTIES AGREE THAT ALL ACTIONS
OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND
LITIGATED ONLY IN A STATE OR FEDERAL COURT LOCATED IN THE STATE OF CALIFORNIA,
OR, AT THE SOLE OPTION OF THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ANY OTHER
COURT IN WHICH THE ADMINISTRATIVE AGENT AND/OR ANY LENDER SHALL INITIATE LEGAL
OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. THE PARTIES EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH COURT, AND
THE PARTIES HEREBY WAIVE ANY OBJECTION THEY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY ANY SUCH COURT. FURTHERMORE, THE PARTIES
HEREBY WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT THEY MAY
HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO
THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 11.17.
11.18 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
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<PAGE> 107
11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to Borrower (with a copy to the Administrative Agent), on or
before the Closing Date (or on or before accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two duly
completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all payments to be made to such Lender by Borrower pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such Lender
by the Borrower pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if reasonably necessary, Form
W-9) satisfactory to Borrower and the Administrative Agent that no withholding
under the federal income tax laws is required with respect to such Lender.
Thereafter and from time to time, each such Lender shall (a) promptly submit to
Borrower (with a copy to the Administrative Agent), such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Lender by Borrower pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Eurodollar Lending
Office, if any) to avoid any requirement of applicable Laws that Borrower make
any deduction or withholding for taxes from amounts payable to such Lender. In
the event that Borrower or the Administrative Agent become aware that a
participation has been granted pursuant to Section 11.8(e) to a financial
institution that is incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia, then, upon request made by Borrower or the Administrative
Agent to the Lender which granted such participation, such Lender shall cause
such participant financial institution to deliver the same documents and
information to Borrower and the Administrative Agent as would be required under
this Section if such financial institution were a Lender.
11.22 Hazardous Material Indemnity. Borrower hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents, successors and assigns from
and
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<PAGE> 108
against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all reasonable costs
and expenses incurred in connection therewith (including but not limited to
reasonable attorneys' fees and the reasonably allocated costs of attorneys
employed by the Administrative Agent or any Lender, and expenses to the extent
that the defense of any such action has not been assumed by Borrower), arising
directly or indirectly out of (i) the presence on, in, under or about any Real
Property of any Hazardous Materials, or any releases or discharges of any
Hazardous Materials on, under or from any Real Property and (ii) any activity
carried on or undertaken on or off any Real Property by Borrower or any of its
predecessors in title, whether prior to or during the term of this Agreement,
and whether by Borrower or any predecessor in title or any employees, agents,
contractors or subcontractors of Borrower or any predecessor in title, or any
third persons at any time occupying or present on any Real Property, in
connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Materials at any time located
or present on, in, under or about any Real Property. The foregoing indemnity
shall further apply to any residual contamination on, in, under or about any
Real Property, or affecting any natural resources, and to any contamination of
any Property or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal of any such Hazardous Materials,
and irrespective of whether any of such activities were or will be undertaken in
accordance with applicable Laws, but the foregoing indemnity shall not apply to
Hazardous Materials on any Real Property, the presence of which is caused by the
Administrative Agent or the Lenders. Borrower hereby acknowledges and agrees
that, notwithstanding any other provision of this Agreement or any of the other
Loan Documents to the contrary, the obligations of Borrower under this Section
shall be unlimited corporate obligations of Borrower and shall not be secured by
any Lien on any Real Property. Any obligation or liability of Borrower to any
Indemnitee under this Section 11.22 shall survive the expiration or termination
of this Agreement and the repayment of all Loans and the payment and performance
of all other Obligations owed to the Lenders.
11.23 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
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<PAGE> 109
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
11.24 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES
THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES THAT IT
WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE MANAGING AGENT OR ANY BANK THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
SAFESKIN CORPORATION
By:
-------------------------------------
David Morash
Chief Financial Officer
Address:
Safeskin Corporation
12671 High Bluff Drive
San Diego, California 92130
Attn: William LaRue
Vice President-Treasurer
Telecopier: (619) 350-2380
Telephone: (619) 350-2128
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<PAGE> 110
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
By:
-------------------------------------
Douglas S. Lambell
Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
-------------------------------------
Bruce Breslau
Vice President
Address for notices to Administrative Agent
for borrowings and payments:
Union Bank of California, N.A.
Commercial Portfolio Administration
500 South Main Street, 2nd Floor
Orange, California 92868
Attn: Douglas S. Lambell
Telecopier: (714) 565-7770
Telephone: (714) 565-5716
Address for notices as a Lender:
Union Bank of California, N.A.
Commercial Lending
530 B Street, 4th Floor
San Diego, California 92101
Attn: Bruce Breslau
Telecopier: (619) 230-3766
Telephone: (619) 230-3758
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<PAGE> 1
EXHIBIT 11
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
<TABLE>
<CAPTION>
FOR THREE MONTHS ENDED SEPTEMBER 30, FOR NINE MONTHS ENDED SEPTEMBER 30,
1998 1997 1998 1997
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Basic:
Net Income ................. $16,152,523 $11,559,642 $44,463,029 $29,253,250
=========== =========== =========== ===========
Weighted average number of
shares of common stock
outstanding ................ 53,534,207 52,360,730 53,274,056 52,088,524
Net income per common
share ..................... $ 0.30 $ 0.22 $ 0.83 $ 0.56
=========== =========== =========== ===========
Diluted:
Net Income ................. $16,152,523 $11,559,642 $44,463,028 $29,253,250
=========== =========== =========== ===========
Weighted average number of
shares of common stock
outstanding ................ 53,534,207 52,360,730 53,274,056 52,088,524
Net effect of dilutive
stock options--based on the
treasury stock method
using average market price.. 6,994,143 6,716,309 7,177,693 5,951,943
----------- ----------- ----------- -----------
Total weighted average
number of shares of common
stock and common stock
equivalents outstanding .... 60,528,350 59,077,039 60,451,749 58,050,467
=========== =========== =========== ===========
Net income per common
share ..................... $ 0.27 $ 0.20 $ 0.74 $ 0.50
=========== =========== =========== ===========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 39,198,332
<SECURITIES> 0
<RECEIVABLES> 40,070,349
<ALLOWANCES> 0
<INVENTORY> 34,836,237
<CURRENT-ASSETS> 123,058,083
<PP&E> 101,186,324
<DEPRECIATION> 0
<TOTAL-ASSETS> 258,893,183
<CURRENT-LIABILITIES> 26,249,013
<BONDS> 0
0
0
<COMMON> 545,516
<OTHER-SE> 102,188,863
<TOTAL-LIABILITY-AND-EQUITY> 258,893,183
<SALES> 173,506,301
<TOTAL-REVENUES> 173,506,301
<CGS> 82,940,251
<TOTAL-COSTS> 82,940,251
<OTHER-EXPENSES> 4,886,141
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 598,479
<INCOME-PRETAX> 47,938,284
<INCOME-TAX> 3,475,255
<INCOME-CONTINUING> 44,463,029
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 44,463,029
<EPS-PRIMARY> .74
<EPS-DILUTED> .74
</TABLE>
