Exhibit 10.1
REVOLVING CREDIT AND TERM
LOAN AGREEMENT
XXX-XXXX CORPORATION,
XXX-XXXX SERVICES, INC.,
AND
INTIRION CORPORATION
Dated as of June 29, 2000
------------
FLEET NATIONAL BANK
AND
OTHER LENDING INSTITUTIONS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT
AND
KEYBANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
AND
FLEETBOSTON XXXXXXXXX XXXXXXXX INC., AS ARRANGER
TABLE OF CONTENTS
Section Title Page
------- ----- ----
SECTION I - DEFINITIONS
1.1 Definitions...........................................................................
1.2 Terms of General Application..........................................................
SECTION II - DESCRIPTION OF CREDIT
2. The Credit Facilities.................................................................
2.1 The Loans.............................................................................
2.2 The Notes.............................................................................
2.3 Conversion............................................................................
2.4 Notice and Manner of Borrowing or Conversion of Loans.................................
2.5 Commitment Fee........................................................................
2.6 Fee Letter............................................................................
2.7 Reduction of Revolving Credit Commitment..............................................
2.8 Duration of Interest Periods..........................................................
2.9 Interest Rates and Payments of Interest...............................................
2.10 Changed Circumstances.................................................................
2.11 Capital Requirements..................................................................
2.12 Payments and Prepayments of the Loans.................................................
2.13 Method of Payment; Withholding Tax Exemption..........................................
2.14 Default Rate Interest, Etc............................................................
2.15 Payments Not at End of Interest Period................................................
2.16 Computation of Interest and Fees; Maximum Interest....................................
2.17 Letters of Credit.....................................................................
2.17(A) Carryover LC's........................................................................
2.18 Letter of Credit Fees.................................................................
2.19 Interdependence of Borrower Affiliated Group..........................................
SECTION III - CONDITIONS OF LOAN
3.1 Conditions Precedent to Term Loan, Initial Revolving Credit Loan and
Initial Letter of Credit..............................................................
3.2 Conditions Precedent to all Loans and Letters of Credit...............................
SECTION IV - REPRESENTATIONS AND WARRANTIES
4.1 Organization and Qualification........................................................
4.2 Corporate Authority...................................................................
4.3 Valid Obligations.....................................................................
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4.4 Consents or Approvals.................................................................
4.5 Title to Properties; Absence of Encumbrances..........................................
4.6 Location of Records and Collateral; Name Change.......................................
4.7 Financial Statements..................................................................
4.8 Changes...............................................................................
4.9 Defaults..............................................................................
4.10 Taxes.................................................................................
4.11 Litigation............................................................................
4.12 Subsidiaries..........................................................................
4.13 Investment Company Act................................................................
4.14 Compliance with ERISA.................................................................
4.15 Environmental Matters.................................................................
4.16 Disclosure............................................................................
4.17 Solvency..............................................................................
4.18 Compliance with Statutes, Etc.........................................................
4.19 Capitalization........................................................................
4.20 Labor Relations.......................................................................
4.21 Certain Transactions..................................................................
4.22 Restrictions on the Borrower Affiliated Group.........................................
4.23 Real Property Leases and Laundry Facility Agreements..................................
4.23(A) Laundry Facility Agreements...........................................................
4.24 Franchises, Patents, Copyrights, Etc..................................................
4.25 Year 2000 Compliance..................................................................
4.26 Collateral............................................................................
4.27 Material Contracts....................................................................
SECTION V - AFFIRMATIVE COVENANTS
5.1 Financial Statements and other Reporting Requirements.................................
5.2 Conduct of Business...................................................................
5.3 Maintenance and Insurance.............................................................
5.4 Taxes.................................................................................
5.5 Inspection by the Administrative Agent................................................
5.6 Maintenance of Books and Records......................................................
5.7 Interest Rate Protection..............................................................
5.8 Environmental Indemnification.........................................................
5.9 Use of Proceeds.......................................................................
5.10 Pension Plans.........................................................................
5.11 Fiscal Year...........................................................................
5.12 Leases................................................................................
5.13 Laundry Facility Agreements...........................................................
5.14 Further Assurances....................................................................
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SECTION VI - NEGATIVE COVENANTS
6.1 Indebtedness..........................................................................
6.2 Contingent Liabilities................................................................
6.3 Sale and Leaseback....................................................................
6.4 Encumbrances..........................................................................
6.5 Merger; Consolidation; Sale or Lease of Assets; Acquisitions..........................
6.6 Funded Debt Ratio.....................................................................
6.7 Operating Cash Flow Ratio.............................................................
6.8 Minimum EBITDA........................................................................
6.9 Minimum Net Worth.....................................................................
6.10 Maximum Capital Expenditures..........................................................
6.11 Restricted Payments...................................................................
6.12 Investments...........................................................................
6.13 ERISA.................................................................................
6.14 Transactions with Affiliates..........................................................
6.15 Loans.................................................................................
6.16 Revolving Credit Commitment...........................................................
6.17 No Amendments to Certain Documents....................................................
SECTION VII - DEFAULTS
7.1 Events of Default.....................................................................
7.2 Remedies..............................................................................
SECTION VIII - CONCERNING THE ADMINISTRATIVE
AGENT AND THE BANKS
8.1 Appointment and Authorization.........................................................
8.2 Administrative Agent and Affiliates...................................................
8.3 Future Advances.......................................................................
8.4 Delinquent Bank.......................................................................
8.5 Payments..............................................................................
8.6 Action by Administrative Agent........................................................
8.7 Notification of Defaults and Events of Default........................................
8.8 Consultation with Experts.............................................................
8.9 Liability of Administrative Agent.....................................................
8.10 Indemnification.......................................................................
8.11 Independent Credit Decision...........................................................
8.12 Successor Administrative Agent........................................................
8.13 Other Agents..........................................................................
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SECTION IX - MISCELLANEOUS
9.1 Notices...............................................................................
9.2 Expenses..............................................................................
9.3 Indemnification.......................................................................
9.4 Set-Off...............................................................................
9.5 Term of Agreement.....................................................................
9.6 No Waivers............................................................................
9.7 Governing Law.........................................................................
9.8 Amendments, Waivers, Etc..............................................................
9.9 Binding Effect of Agreement...........................................................
9.10 Successors and Assigns................................................................
9.11 Counterparts..........................................................................
9.12 Partial Invalidity....................................................................
9.13 Captions..............................................................................
9.14 Waiver of Jury Trial..................................................................
9.15 Waiver of Special Damages.............................................................
9.16 Entire Agreement......................................................................
9.17 Replacement of Promissory Notes, Etc..................................................
EXHIBITS
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B - Form of Notice of Borrowing or Conversion
EXHIBIT C - Indebtedness; Encumbrances
EXHIBIT D - Disclosure
EXHIBIT E - Form of Opinion of Counsel to the Borrower Affiliated Group
EXHIBIT F - Form of Report of Chief Financial Officer
EXHIBIT G - Form of Assignment and Assumption
EXHIBIT H - Forms of Laundry Facility Agreements
EXHIBIT I - Post Closing
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SCHEDULES
SCHEDULE 1 - Commitments and Commitment Percentages
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of June 29, 2000
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of June 29,
2000, by and among XXX-XXXX CORPORATION, XXX-XXXX SERVICES, INC., and INTIRION
CORPORATION, each a Delaware corporation having its principal place of business
and chief executive office at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(collectively, the "Borrower"), Fleet National Bank ("Fleet"), a national
banking association organized and existing under the laws of the United States
of America and having its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, each of the other lending institutions listed on SCHEDULE 1
hereto on the date hereof (Fleet and each such other lending institution, and
the other lending institutions which may become parties hereto pursuant to
Section 9.10 individually, a "Bank" and collectively, the "Banks"), Fleet as
administrative agent for itself and each other Bank, and KeyBank National
Association as documentation agent for itself and each other Bank.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
SECTION I
DEFINITIONS
1.1. Definitions.
All capitalized terms used in this Agreement, in the Notes or in any
other Security Document (as such terms are defined below), or in any
certificate, report or other document made or delivered pursuant to this
Agreement (unless otherwise defined therein) shall have the respective meanings
assigned to them below:
ACCOUNT AND ACCOUNTS RECEIVABLE. Individually and collectively, all
rights to payment for goods sold or leased or for services rendered, all sums of
money or other proceeds due or becoming due thereon (including, without
limitation, all accounts receivable, notes, bills, drafts, acceptances,
instruments, documents, chattel paper and all other debts, obligations and
liabilities in whatever form owing to any Person for goods sold by it or for
services rendered by it), all guaranties and security therefor, and all right,
title and interest of such Person in the goods or services giving rise thereto
and the rights pertaining to such goods, including rights of reclamation and
stoppage in transit, and all related insurance, whether any of the foregoing be
now existing or hereafter arising, now or hereafter received by or owing or
belonging to such Person.
ADJUSTED LIBOR RATE. Applicable to any Interest Period, shall mean a
rate PER ANNUM equal to the Interbank Offered Rate for such period as such
Interbank Offered Rate may be adjusted, in the Administrative Agent's sole
discretion, to take into consideration any
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change in the Reserve Percentage for such period. The Adjusted LIBOR Rate shall
be adjusted automatically as of the effective date of any such change in the
Reserve Percentage.
ADMINISTRATIVE AGENT. Fleet in the capacity as Administrative Agent for
the Banks under this Agreement and the other Loan Documents, including (where
the context so admits) any other Person or Persons succeeding to the functions
of the Administrative Agent pursuant to this Agreement and the other Loan
Documents.
AFFECTED BANK. See Section 2.11.
AFFECTED LOANS. See Section 2.10(a).
AFFILIATE. With reference to any Person, (i) any director or officer of
that Person, (ii) any other Person controlling, controlled by or under direct or
indirect common control with that Person (and if that Person is an individual,
any member of the immediate family (including parents, siblings, spouse,
children, stepchildren, nephews, nieces and grandchildren) of such individual
and any trust whose principal beneficiary is such individual or one or more
members of such immediate family and any Person who is controlled by any such
member or trust), (iii) any other Person directly or indirectly holding 10% or
more of any class of the capital stock or other equity interests (including
options, warrants, convertible securities and similar rights) of that Person,
(iv) any other Person 10% or more of any class of whose capital stock or other
equity interests (including options, warrants, convertible securities and
similar rights) is held directly or indirectly by that Person, and (v) any other
Person that possesses, directly or indirectly, 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) of that
Person.
AGREEMENT. This Agreement, as the same may be renewed, extended,
modified, supplemented or amended from time to time.
ANCILLARY DOCUMENTS. Collectively, (i) the Seller Subordinated Debt
Documents, (ii) the Material Contracts, and (iii) all other agreements,
instruments and contracts which shall from time to time be identified by the
Administrative Agent, the Banks and the Borrower as "Ancillary Documents" for
purposes of this Agreement, as the foregoing may be amended from time to time in
accordance with Section 6.17.
APPLICABLE LIBOR MARGIN. The Applicable LIBOR Margin is set forth in
Section 2.9.
APPLICABLE PRIME RATE MARGIN. The Applicable Prime Rate Margin is set
forth in Section 2.9.
ARRANGER. FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
ASSIGNEE. See Section 9.10(ii).
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ASSIGNMENT AND ASSUMPTION. See Section 9.10(ii).
ASSIGNMENT OF INTEREST RATE PROTECTION AGREEMENT. The Collateral
Assignment of Interest Rate Protection Agreement entered into within 90 days
after the Closing Date and delivered by the Borrower to the Administrative
Agent, for the ratable benefit of the Banks and the Administrative Agent,
assigning all of its rights in and to the Interest Rate Protection Agreement and
the proceeds thereof.
BAILEE NOTICES. Collectively, the separate bailee notices which have
been or are executed and delivered to the Administrative Agent, for the ratable
benefit of the Banks and the Administrative Agent, by the owner of any public
warehouse in which the Borrower or any other member of the Borrower Affiliated
Group stores its Inventory or other Collateral.
BANKS. See Preamble.
BORROWER. See Preamble. The term "Borrower" or "Borrowers" shall,
whenever used in the Loan Agreement or any of the other Loan Documents or
Security Documents, be deemed to mean and include each of Mac-Gray, Services and
Intirion. It is understood and agreed that each of Mac-Gray, Services and
Intirion, as co-borrowers hereunder, shall be jointly and severally liable for
the payment and performance in full of the Obligations in consideration of the
financial accommodations to be provided by the Banks hereunder.
BORROWER AFFILIATED GROUP. Collectively, (i) the Borrower and
(ii) each of the Subsidiaries of the Borrower.
BUSINESS DAY. (i) For all purposes other than as covered by clause (ii)
below, any day other than a Saturday, Sunday or legal holiday on which banks in
Boston, Massachusetts are open for the conduct of a substantial part of their
commercial banking business; and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
LIBOR Loans, any day that is a Business Day described in clause (i) and that is
also a day on which trading takes place between banks in United States dollar
deposits in the London interbank market.
CAMBRIDGE FEE LOCATION. That certain owned Real Estate of Mac-Gray
Services, Inc., located at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, 00000.
CAPITAL EXPENDITURES. To the extent capitalized in accordance with
GAAP, any expenditure for fixed assets (both tangible and intangible) including
assets being constructed (whether or not completed), leasehold improvements,
capital leases under GAAP, installment purchases of machinery and equipment,
acquisitions of real estate and other similar expenditures including (i) in the
case of a purchase, the entire purchase price, whether or not paid during the
fiscal period in question, (ii) in the case of a capital lease, the capitalized
amount thereof (determined in accordance with GAAP) and (iii) without
duplication, expenditures in or from any construction-in-progress account of any
member of the Borrower Affiliated Group.
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CARRYOVER LC'S. Collectively, the 8 Letters of Credit having a Stated
Amount on the Closing Date of $762,000.80 which were issued for the account of
the Borrower prior to the Closing Date by Citizens Bank of Massachusetts (as
assignee of State Street Bank and Trust Company).
CASH MANAGEMENT AGREEMENTS. Collectively, those agreements between the
Borrower and any of the Banks relating to the cash management of the Borrower
Affiliated Group, including, without limitation, any lockbox agreement entered
into from time to time by any member of the Borrower Affiliated Group at the
direction of the Administrative Agent and any agency agreements with third-party
banks in locations where the Administrative Agent has no operations and at which
any member of the Borrower Affiliated Group has a bank account.
CERCLA. The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as the same may from time to time be supplemented or
amended and remain in effect.
CHANGE IN CONTROL. The occurrence of any of the following: (i) any
Person or "group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended) of Persons acting in concert as a partnership
or other group (other than Xxxxxxx X. XxxXxxxxx, Xx., Xxxxxx XxxXxxxxx, Xxxxxx
XxxXxxxxx and/or Xxxxxx XxxXxxxxx or any of their respective spouses or
immediate family members or trusts or family limited partnerships for their
benefit) shall, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, have become, after the
date hereof, the "beneficial owner" (within the meaning of such term under Rule
13d-3 under the Exchange Act) of securities of the Borrower representing 25% or
more of the combined voting power of the then outstanding securities of the
Borrower ordinarily (and apart from rights accruing under special circumstances)
having the right to vote in the election of directors; (ii) the board of
directors of the Borrower shall cease to consist of a majority of the
individuals who constituted the board of directors as of the date hereof or who
shall have become a member thereof subsequent to the date hereof after having
been nominated, or otherwise approved in writing, by at least a majority of
individuals who constituted the board of directors of the Borrower as of the
date hereof; (iii) any change in equity ownership of any Subsidiary of the
Borrower or other member of the Borrower Affiliated Group (other than Mac-Gray),
except as may be expressly permitted by Section 6.5 hereof; or (iv) Xxxxxxx X.
XxxXxxxxx, Xx. shall cease to be the Chairman and Chief Executive Officer of
Mac-Gray or shall cease to perform substantially all of his duties and
responsibilities as such officer for a period of more than 30 days (exclusive of
vacations not in excess of such officer's normal annual vacation allowance)
unless the Administrative Agent, by the 120th day following such cessation of
service or the expiration of such 30 day period, has determined in its
reasonable discretion that the occurrence of such event will not have a material
adverse effect on the business, condition (financial or otherwise), assets,
operations or prospects of the Borrower Affiliated Group.
CLOSING DATE. June 29, 2000.
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CODE. The Internal Revenue Code of 1986 and the rules and regulations
thereunder, collectively, as the same may from time to time be supplemented or
amended and remain in effect.
COLLATERAL. Collectively, all of the agreements, instruments,
contracts, property (real and personal, tangible and intangible), assets,
accounts, Accounts Receivable, Inventory, equipment, investment property,
patents, trademarks, copyrights, other intellectual property and monies, and all
of the income, proceeds and products of any thereof, under or in respect of
which the Administrative Agent or any Bank or any of the nominees, agents or
legal representatives of the Administrative Agent or any Bank shall have at the
relevant time of reference to the term "Collateral," any rights or interest as
security for the payment or performance of all or any part of the Obligations.
COLLATERAL ASSIGNMENT OF MATERIAL CONTRACTS AND LICENSES. The
Collateral Assignment of Material Contracts and Licenses dated as of the date
hereof and executed and delivered by the Borrower to the Administrative Agent,
for the ratable benefit of the Banks and the Administrative Agent, assigning all
of the Borrower's rights and interests in and to the Material Contracts and
Licenses and the proceeds thereof.
COMMITMENT. With respect to each Bank, the amount set forth on SCHEDULE
1 as such Bank's (i) Revolving Credit Commitment and (ii) Term Loan Commitment,
as such Bank's Commitment may be modified pursuant hereto and as in effect from
time to time (as evidenced by an updated SCHEDULE 1 circulated by the
Administrative Agent from time to time to reflect assignments permitted by
Section 9.10).
COMMITMENT FEE. The commitment fee payable by the Borrower to the
Banks pursuant to Section 2.5.
COMMITMENT PERCENTAGE. With respect to each Bank, the percentage set
forth on SCHEDULE 1 hereto as such Bank's percentage of the aggregate Revolving
Credit Commitments and Term Loan Commitments. SCHEDULE 1 may be updated by the
Administrative Agent from time to time to reflect any changes to the Commitment
Percentages.
CONSOLIDATED AND CONSOLIDATING. The terms Consolidated and
Consolidating shall have the respective meanings ascribed to such terms under
GAAP.
CONSOLIDATED NET WORTH. As at any date of determination, an amount
equal to the Consolidated net worth of the Borrower Affiliated Group, as
determined in accordance with GAAP.
CONTROLLED GROUP. All trades or businesses (whether or not
incorporated) under common control that, together with Mac-Gray, are treated as
a single employer under Section 414(b) or 414(c) of the Code or Section 400l of
ERISA.
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DEFAULT. An event or condition that, but for the requirement that time
elapse or notice be given, or both, would constitute an Event of Default.
DELINQUENT BANK. See Section 8.4.
DOLLAR OR $. Dollars in lawful currency of the United States of
America.
EBITDA. In relation to the Borrower Affiliated Group for any period, an
amount equal to the Consolidated net income of the Borrower Affiliated Group
after deduction of all expenses, taxes and other proper charges, determined in
accordance with GAAP (with Inventory being determined on a "first-in, first-out"
basis) for such period, but, in determining such Consolidated net income, any
non-cash GAAP extraordinary gains or losses shall be excluded from such
calculation, plus the following to the extent deducted in computing such
Consolidated net income for such period: (i) Interest Charges for such period,
(ii) taxes on income for such period, (iii) depreciation for such period, and
(iv) amortization for such period.
EFFECTIVE DATE. See Section 5.7.
ENCUMBRANCES. See Section 6.4.
ENVIRONMENTAL LAWS. Any and all applicable foreign, federal, state and
local environmental, health or safety statutes, laws, regulations, ordinances,
policies and or common law (whether now existing or hereafter enacted or
promulgated), of all federal, state, local or other governmental authorities,
agencies, commissions, boards, bureaus or departments which may now or hereafter
have jurisdiction over the Borrower, any other member of the Borrower Affiliated
Group or any landlord under any real estate Lease under which the Borrower or
such other member of the Borrower Affiliated Group is a tenant, and all
applicable judicial and administrative and regulatory decrees, judgments and
orders, including common law rulings and determinations, relating to injury to,
or the protection of, real or personal property or human health or the
environment, including, without limitation, all requirements pertaining to
reporting, licensing, permitting, investigation, remediation and removal of
emissions, discharges, releases or threatened releases of Hazardous Materials,
chemical substances, pollutants or contaminants whether solid, liquid or gaseous
in nature, into the environment or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of such
Hazardous Materials, chemical substances, pollutants or contaminants.
ERISA. The Employee Retirement Income Security Act of 1974 and the
rules and regulations thereunder, collectively, as the same may from time to
time be supplemented or amended and remain in effect.
EQUITY SECURITIES. As to any Person, any shares of any class of capital
stock or other equity interests of such Person, voting or non-voting, or any
options, warrants or similar rights with respect to any such shares or other
equity interests.
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EVENT OF DEFAULT. Any event described in Section 7.1.
EXCESS CASH FLOW. In relation to the Borrower Affiliated Group for any
period, the amount determined by (A) subtracting from EBITDA for such period,
the following items: (i) cash taxes on income directly or indirectly paid in
such period, (ii) Capital Expenditures made during such period (such Capital
Expenditures to be subject to the provisions of Section 6.10), (iii) Total Fixed
Charges paid in such period (other than in connection with any Restricted
Payment), (iv) the aggregate amount of voluntary prepayments of principal during
such period with respect to the Term Loan; and (v) all Prepaid Commission
Expenses paid in such period; and (B) adding to EBITDA for such period, any
amounts received, to the extent not already included in EBITDA, in settlement or
payment of any judgment, or as repayment or redemption of promissory notes or
capital stock of any other Person held by the Borrower or any other member of
the Borrower Affiliated Group.
EXISTING DEBT. See Section 6.1(d).
FEDERAL FUNDS EFFECTIVE RATE. For any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from 3 federal funds brokers of recognized standing
selected by the Administrative Agent.
FEE LETTER. The letter agreement dated as of the date hereof among
Fleet, the Arranger and the Borrower.
FIVE-YEAR PROJECTIONS. See Section 4.7.
FOREIGN SUBSIDIARY. See Section 3.1.13.
FUNDED DEBT RATIO. As at the end of any fiscal quarter of the Borrower
Affiliated Group, the ratio of (i) Total Funded Debt as at the end of such
fiscal quarter, to (ii) EBITDA for the four consecutive fiscal quarters of the
Borrower Affiliated Group ending on the last day of such fiscal quarter.
GAAP. Generally accepted accounting principles in the United States of
America, consistently applied.
GUARANTEES. As applied to any Person, without duplication, all
guarantees, endorsements or other contingent or surety obligations with respect
to obligations of others whether or not reflected on such Person's Consolidated
balance sheet, including any obligation to furnish funds, directly or indirectly
(whether by virtue of partnership arrangements, by agreement to keep-well or
otherwise), through the purchase of goods, supplies or services, or by way of
stock purchase, capital contribution, advance or loan, or to
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enter into a contract for any of the foregoing, for the purpose of payment of
obligations of any other Person.
HAZARDOUS MATERIAL. Any substance (i) the presence of which requires or
may hereafter require notification, investigation or remediation under any
Environmental Law; (ii) which is or becomes defined as a "hazardous waste" or
"hazardous material" or "hazardous substance" or "controlled industrial waste"
or "pollutant" or "contaminant" under any present or future Environmental Law or
amendments thereto including, without limitation, CERCLA, and any applicable
local statutes and the regulations promulgated thereunder; (iii) which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and is or becomes regulated by any governmental
authority, agency, department, commission, board or instrumentality of any
foreign country, the United States, any state of the United States, or any
political subdivision thereof to the extent any of the foregoing has or had
jurisdiction over the Borrower or any other member of the Borrower Affiliated
Group or any landlord under any real property lease under which the Borrower or
any other member of the Borrower Affiliated Group is a tenant; or (iv) without
limitation, which contains gasoline, diesel fuel or other petroleum products,
asbestos, asbestos containing materials (ACM"), polychlorinated biphenyls
("PCB's"), flammable materials or radioactive material.
INDEBTEDNESS. As applied to any Person, (i) all obligations for
borrowed money or other extensions of credit whether secured or unsecured,
absolute or contingent, including, without limitation, unmatured reimbursement
obligations with respect to letters of credit or guarantees issued for the
account of or on behalf of such Person, and all obligations representing the
deferred purchase price of property, other than accounts payable arising in the
ordinary course of business, (ii) all obligations evidenced by bonds, notes,
debentures or other similar instruments, (iii) all obligations secured by any
mortgage, pledge, security interest or other lien on property owned or acquired
by such Person, whether or not the obligations secured thereby shall have been
assumed, (iv) that portion of all obligations arising under capital leases that
is required to be capitalized on the Consolidated balance sheet of such Person,
(v) all Guarantees, and (vi) all obligations that are immediately due and
payable out of the proceeds of or production from property now or hereafter
owned or acquired by such Person.
INITIAL FINANCIAL STATEMENT. See Section 4.7.
INSOLVENT OR INSOLVENCY. The occurrence of one or more of the following
events with respect to a Person: dissolution; termination of existence;
insolvency within the meaning of the United States Bankruptcy Code or other
foreign or domestic applicable statutes; such Person's inability to pay its
debts as they come due; appointment of a receiver of any part of the property
of, execution of a trust mortgage or an assignment for the benefit of creditors
by, or the entry of an order for relief or the filing of a petition in
bankruptcy or the commencement of any proceedings under any bankruptcy or
insolvency laws, or any laws relating to the relief of debtors, readjustment of
indebtedness or reorganization of debtors, or the offering of a plan to
creditors for composition or extension, except for an involuntary
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proceeding commenced against such Person which is dismissed within 45 days after
the commencement thereof without the entry or an order for relief or the
appointment of a trustee.
INTERBANK OFFERED RATE. Applicable to any LIBOR Loan for any Interest
Period means the rate of interest determined by the Administrative Agent to be
the prevailing rate per annum at which deposits in U.S. dollars are offered to
the Administrative Agent by first-class banks in the London interbank market on
or about 11:00 a.m. (Boston, Massachusetts time) 2 Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the LIBOR Loan to which such Interest Period is to apply for
a period of time approximately equal to such Interest Period.
INTEREST CHARGES. For any period, means, without duplication, all
interest and all amortization of debt discount and expense (including commitment
fees, letter of credit fees, balance deficiency fees and similar expenses (but
excluding all fees and expenses paid (or the amortization thereof) (i) on the
Closing Date pursuant to Section 3.1.10, or (ii) to the Borrower's counsel,
advisors, accountants and agents in connection with the consummation of the
transactions contemplated by this Agreement) on any particular Indebtedness
(including outstanding Letters of Credit) for which such calculations are being
made, all as determined in accordance with GAAP. Computations of Interest
Charges on a PRO FORMA basis for Indebtedness having a variable interest rate
shall be calculated at the rate in effect on the date of any determination.
INTEREST PERIOD. With respect to each LIBOR Loan, the period commencing
on the date of the making or continuation of or conversion to such LIBOR Loan
and ending one, two, three or six months thereafter, subject to availability, as
the Borrower may elect in the applicable Notice of Borrowing or Conversion;
PROVIDED that:
(i) any Interest Period (other than an Interest Period determined
pursuant to clause (iii) below) that would otherwise end on a
day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in the
next calendar month, in which case such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (iii) below, end on
the last Business Day of a calendar month;
(iii) any Interest Period applicable to Revolving Credit Loans that
would otherwise end after the Revolving Credit Maturity Date
shall end on said Revolving Credit Maturity Date; and any
Interest Period applicable to any portion of the Term Loan
that would otherwise end after the Term Loan Maturity Date
shall end on said Term Loan Maturity Date;
(iv) no Interest Period applicable to the Term Loan shall include a
principal repayment date for such Term Loan unless an
aggregate principal amount of
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Loans at least equal to the principal amount due on such
principal repayment date shall be Prime Rate Loans or other
Loans having Interest Periods ending on or before such date;
and
(v) notwithstanding clauses (iii) and (iv) above, no Interest
Period shall have a duration of less than one month; and if
any Interest Period would be for a shorter period, such
Interest Period shall not be available hereunder.
INTEREST RATE PROTECTION AGREEMENT. The interest rate protection
agreement or similar arrangements required by Section 5.7.
INTIRION. Intirion Corporation, a Delaware corporation which is a
wholly-owned Subsidiary of Mac-Gray.
INTIRION PATENT AND TRADEMARK SECURITY AGREEMENT. The Patent and
Trademark Security Agreement dated as of the date hereof and executed and
delivered by Intirion to the Administrative Agent, for the ratable benefit of
the Banks and the Administrative Agent.
INTIRION SECURITY AGREEMENT. The Security Agreement dated as of the
date hereof and executed and delivered by Intirion to the Administrative Agent,
for the ratable benefit of the Banks and the Administrative Agent.
INVENTORY. Goods, merchandise and other personal property, now owned or
hereafter acquired by a Person, which are held for sale or lease or are
furnished or to be furnished under a contract of service or are raw materials,
work in process or materials used or consumed or to be used or consumed in such
Person's business.
INVESTMENT. As applied to any Person, (i) the purchase or acquisition
of any share of capital stock, partnership interest, limited liability company
membership interest, evidence of indebtedness or other equity security of any
other Person, (ii) any loan, advance or extension of credit to, or contribution
to the capital of, any other Person, (iii) any real estate held for sale or
investment, (iv) any commodities futures contracts held other than in connection
with bona fide hedging transactions, (v) any other investment in any other
Person, and (vi) the making of any commitment or acquisition of any option to
make an Investment.
ISSUING BANK. Fleet National Bank; PROVIDED that Citizens Bank of
Massachusetts shall be deemed to be the Issuing Bank for all purposes of the
Carryover LC's.
LANDLORD WAIVERS. Collectively, the separate Landlord Waivers which
have been executed and delivered to the Administrative Agent, for the ratable
benefit of the Banks and the Administrative Agent, by the landlord under the
Leases for office, warehouse, repair and other administrative space at the
locations listed in Section 4.23 and on EXHIBIT D and at each other office,
warehouse, repair or other administrative location from time to time required by
the Administrative Agent with respect to any Leases of real property used for
office, warehouse, repair or other administrative purposes entered into after
the Closing Date, each in form and substance satisfactory to the Administrative
Agent.
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LAUNDRY FACILITIES AGREEMENT(S). See Section 4.23.
LEASEHOLD MORTGAGES. Collectively, the separate Leasehold Mortgage,
Security Agreement, Assignment of Rents and Financing Statements executed and
delivered by the applicable member of the Borrower Affiliated Group to the
Administrative Agent, for the ratable benefit of the Banks and the
Administrative Agent, with respect to each location required by the
Administrative Agent pursuant to Section 7.2(c) with respect to any Leases of
real property entered into by any member of the Borrower Affiliated Group.
LEASES OR LEASE. Any agreement granting a Person the right to occupy
space in a structure or real estate for any period of time or any capital lease,
operating lease or other lease of or agreement to use personal property
including, but not limited to, machinery, equipment, furniture and fixtures,
whether evidenced by written or oral lease, contract, sales agreement or other
agreement no matter how characterized.
LETTERS OF CREDIT. Letters of credit in the form customarily issued by
the Issuing Bank as standby Letters of Credit issued or to be issued for the
account of the Borrower by the Issuing Bank, under the joint responsibilities of
the Banks, upon the terms and subject to the conditions contained in this
Agreement.
LIBOR LOAN. Any Revolving Credit Loan or portion of the Term Loan
bearing interest at a rate determined with reference to the Adjusted LIBOR Rate.
LOAN. A Revolver Loan or the Term Loan made to the Borrower by any Bank
pursuant to Section II of this Agreement, and "Loans" means all of such
Revolving Credit Loans and the Term Loan, collectively.
LOAN ACCOUNT. The account or accounts on the books of the
Administrative Agent in which will be recorded Loans and advances (including
issued and outstanding Letters of Credit) made by the Banks to the Borrower
pursuant to this Agreement, payments made on such Loans and other appropriate
debits and credits as provided by this Agreement.
LOAN DOCUMENTS. Collectively, this Agreement (including, without
limitation, the agreements and other instruments listed or described in Section
III), the Notes, the Security Agreements, the Services Patent and Trademark
Security Agreement, the Intirion Patent and Trademark Security Agreement, the
Mac-Gray Pledge Agreement, the Collateral Assignment of Material Contracts and
Licenses, the Cash Management Agreements, the Negative Pledge Agreement, the
Letters of Credit (and related documentation and agreements, including any
letter of credit application), the Leasehold Mortgages and the Landlord Waivers,
the Bailee Notices, the Interest Rate Protection Agreement, the Assignment of
Interest Rate Protection Agreement, the Fee Letter and the Solvency
Certificates, together with all agreements and other instruments contemplated
thereby (other than the Ancillary Documents), all certificates delivered in
connection therewith from time to time and all schedules, exhibits and annexes
thereto, as any of the foregoing may from time to time be amended and in effect.
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MAC-GRAY. Xxx-Xxxx Corporation, a publicly-held Delaware corporation.
MAC-GRAY PLEDGE AGREEMENT. The Pledge Agreement dated as of the date
hereof and executed and delivered by Mac-Gray to the Administrative Agent, for
the ratable benefit of the Banks and the Administrative Agent, pursuant to
which, without limitation, all of the issued and outstanding capital stock of
its Subsidiaries is pledged to the Administrative Agent.
MAC-GRAY SECURITY AGREEMENT. The Security Agreement dated as of the
date hereof and executed and delivered by Mac-Gray to the Administrative Agent,
for the ratable benefit of the Banks and the Administrative Agent.
MAJORITY BANKS. Any two or more Banks whose aggregate Commitments
constitute at least sixty-six and two-thirds percent (66.67%) of the Total
Commitment in effect at the relevant time of reference, or if the Commitments
have been terminated, any two or more Banks whose aggregate Loans and Letters of
Credit outstanding constitute at least sixty-six and two-thirds percent (66.67%)
of the aggregate Loans and Letters of Credit outstanding at the relevant time of
reference.
MATERIAL CONTRACTS. See Section 4.27.
NEGATIVE PLEDGE AGREEMENT. The Negative Pledge Agreement dated as of
the date hereof and executed and delivered by the Borrower to the Administrative
Agent, for the ratable benefit of the Banks and the Administrative Agent.
NET PROCEEDS. With respect to the sale, transfer or other disposition
by any member of the Borrower Affiliated Group of any asset or group of assets
(other than Inventory wholly in the ordinary course of business, but including,
without limitation, any sale of Equity Securities), means the amount of cash
(freely convertible into Dollars) received by the Borrower, any other member of
the Borrower Affiliated Group or their agents or the Administrative Agent, from
such sale or other disposition (including, without limitation, any tax refund or
tax benefit resulting from a loss on such sale or other disposition as and when
such tax benefit is realized), after (i) provision for all income or other taxes
of the Borrower Affiliated Group measured by or resulting from such sale or
other disposition, (ii) payment of all reasonable third party brokerage
commissions and other reasonable out-of-pocket fees and expenses to third
parties related to such sale or other disposition, (iii) deduction of
appropriate amounts approved by the Administrative Agent to be provided by any
member of the Borrower Affiliated Group as a reserve, in accordance with GAAP,
against any liabilities associated with such sale, transfer or other disposition
and retained by such member of the Borrower Affiliated Group after such sale or
other disposition, and (iv) payment of the outstanding principal amount of, and
premium or penalty, if any, and interest on, any Indebtedness that is secured by
a lien or other encumbrance on the assets in question and that is required to be
repaid as a result of such sale, transfer or other disposition.
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NOTES. Collectively, (i) the Revolving Credit Notes and (ii) the Term
Notes.
NOTICE OF BORROWING OR CONVERSION. See Section 2.4.
OBLIGATIONS. Any and all obligations of the Borrower Affiliated Group
to the Administrative Agent or any Bank (i) under the Loan Documents and
Security Documents of every kind and description (including obligations in
respect of Letters of Credit, the Interest Rate Protection Agreement and fees
under each thereof), direct or indirect, absolute or contingent, primary or
secondary, due or to become due, now existing or hereafter arising, regardless
of how they arise or by what agreement or instrument, if any, and including
obligations to perform acts and refrain from taking action as well as
obligations to pay money, and (ii) in connection with any cash management
arrangements or deposit accounts maintained by any member of the Borrower
Affiliated Group with the Administrative Agent or any Bank.
OPERATING CASH FLOW RATIO. For any period, the ratio of (i) EBITDA for
such period, MINUS the sum of (x) 75% of Capital Expenditures for such period,
plus (y) 100% of Prepaid Commission Expenses for such period, plus (z) any taxes
on income paid or due and payable in cash during such period to (ii) Total Fixed
Charges for such period. For purposes of this definition it is agreed that: (i)
solely for the financial covenant tests for the period ending June 30, 2000,
Capital Expenditures will be equal to $7,500,000 plus 75% of the actual Capital
Expenditures for the fiscal quarters ended March 31, 2000 and June 30, 2000, and
(ii) solely for the financial covenant tests for the period ending September 30,
2000, Capital Expenditures will be equal to $3,750,000 plus 75% of the actual
Capital Expenditures for the fiscal quarters ended March 31, 2000, June 30, 2000
and September 30, 2000.
PARTICIPANT. See Section 9.10.
PBGC. The Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
PCB. See definition of Hazardous Material.
PERMITTED ENCUMBRANCES. See Section 6.4.
PERSON or PERSON. An individual, a company, a corporation, an
association, a partnership, a joint venture, a limited liability company or
partnership, an unincorporated trade or business enterprise, a trust, an estate,
or a government (national, regional or local) or an agency, instrumentality or
official thereof.
PLAN. At any time, an employee pension or other benefit plan that is
subject to Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group or (ii) if such Plan is established or maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which the
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Borrower or any member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five Plan years
made contributions.
PREPAID COMMISSION EXPENSES. The amount of any one-time up-front
payment required to be paid by any member of the Borrower Affiliated Group, to
the landlord or lessor under any Laundry Facility Agreement, upon the
commencement of such Laundry Facility Agreement (but without duplication for any
amount included as a Capital Expenditure).
PRIME RATE. The variable per annum rate of interest so designated from
time to time by Fleet as its Prime Rate. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any
customer.
PRIME RATE LOAN. Any Revolving Credit Loan or portion of the Term Loan
bearing interest calculated by reference to the Prime Rate.
QUALIFIED INVESTMENTS. As applied to any member of the Borrower
Affiliated Group, investments in (i) notes, bonds or other obligations of the
United States of America or any agency thereof that as to principal and interest
constitute direct obligations of or are guaranteed by the United States of
America, (ii) certificates of deposit or other deposit instruments or accounts
of banks or trust companies organized under the laws of the United States or any
state thereof that have capital and surplus of at least $100,000,000, (iii)
commercial paper that is rated not less than prime-one or A-1 or their
equivalents by Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation,
respectively, or their successors, and (iv) any repurchase agreement secured by
any one or more of the foregoing.
RATE PERIOD. The period beginning on the third Business Day following
delivery to the Administrative Agent of the annual or quarterly financial
statements required to be delivered pursuant to Section 5.1(a) or Section 5.1(b)
and ending on the second Business Day after the day on which the next such
quarterly (or annual, as applicable) financial statements are delivered to the
Administrative Agent.
REAL PROPERTY OR REAL PROPERTIES. Collectively, (i) the several parcels
of land together with the improvements now or hereafter located thereon, which
are now or hereafter owned by any member of the Borrower Affiliated Group, as
more fully set forth, in the case of those now owned, on EXHIBIT D hereto, and
(ii) the several parcels of land together with the improvements now or hereafter
located thereon, which are now or hereafter leased by any member of the Borrower
Affiliated Group pursuant to a real property Lease, as more fully set forth, in
the case of those now leased, on EXHIBIT D hereto.
REPORTABLE EVENT. See Section 5.1(g).
RESERVE PERCENTAGE. Applicable to any Interest Period means the rate
(expressed as a decimal) applicable to the Administrative Agent during such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including, without limitation, any basic,
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supplemental, emergency or marginal reserve requirement) of the Administrative
Agent with respect to "LIBOR liabilities" as that term is defined under such
regulations.
RESTRICTED PAYMENT. (i) Any cash or property dividend, distribution or
payment, direct or indirect, by the Borrower or any of its Subsidiaries to any
Person who now holds, or who in the future holds, an equity interest in the
Borrower or any of its Subsidiaries, whether evidenced by a security or not,
other than regular compensation and bonuses paid to employees of the Borrower
and its Subsidiaries in the ordinary course of business and consistent with past
practices (which the parties agree shall include payments made or to be made to
Xxxxxx X. XxxXxxxxx pursuant to the agreement with her described on EXHIBIT D
hereto in an aggregate amount not to exceed $105,000 in any fiscal year), and
other than dividends payable solely in shares of any class of capital stock to
holders of that class, (ii) any payment on account of the purchase, redemption,
retirement or other acquisition for value of any capital stock of the Borrower
or its Subsidiaries, or any other payment or distribution made in respect
thereof, either directly or indirectly, and (iii) any management or similar fees
paid or payable by the Borrower or any of its Subsidiaries to any Affiliate of
the Borrower.
REVOLVING CREDIT COMMITMENT. In relation to any Bank, the maximum
amount of Revolving Credit Loans that such Bank shall be committed to make to
the Borrower upon the terms and subject to the conditions contained in this
Agreement, as set forth on SCHEDULE 1, as such SCHEDULE 1 may be updated by the
Administrative Agent from time to time to reflect any changes in the Revolving
Credit Commitments as a result of assignments permitted by Section 9.10.
REVOLVING CREDIT COMMITMENT PERCENTAGE. With respect to each Bank
having a Revolving Credit Commitment, the percentage set forth on SCHEDULE 1 as
such Bank's percentage of the aggregate Revolving Credit Commitments of all the
Banks. SCHEDULE 1 shall be updated by the Administrative Agent from time to time
to reflect any changes in the Revolving Credit Commitment Percentages.
REVOLVING CREDIT MATURITY DATE. June 30, 2003.
REVOLVING CREDIT NOTES. See Section 2.2.
REVOLVING CREDIT LOANS. Collectively, the loans in the maximum
aggregate principal amount of $65,000,000 made or to be made to the Borrower by
the Banks pursuant to this Agreement (including Section 2.1(a) hereof) and
subject to the limitations contained herein.
SECURITY AGREEMENTS. Collectively, (i) the Mac-Gray Security
Agreement, (ii) the Intirion Security Agreement, and (iii) the Services Security
Agreement.
SECURITY DOCUMENTS. Collectively, (i) the Loan Documents and (ii) all
other agreements, instruments or contracts by which any of the Obligations shall
be evidenced or under or in respect of which the Administrative Agent, any Bank
or any of their respective
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nominees, agents, or representatives shall have, at such time, any rights or
interests as security for the payment or performance of all or any part of the
Obligations.
SELLER(S). Individually and collectively, the one or more sellers of
properties and assets in connection with an acquisition of a business made by
the Borrower prior to the Closing Date.
SELLER SUBORDINATED DEBT. The Subordinated Debt of the Borrower or any
other member of the Borrower Affiliated Group to Seller(s) pursuant to the
Seller Subordinated Debt Documents.
SELLER SUBORDINATED DEBT DOCUMENTS. Collectively, (i) the Seller
Subordinated Promissory Notes, and (ii) each of any other agreements, contracts
and instruments executed and delivered in connection with the foregoing or
relating thereto, in each case as amended or modified in accordance with Section
6.17.
SELLER SUBORDINATED PROMISSORY NOTES. Collectively, the subordinated
promissory notes described on EXHIBIT D hereto and evidencing Subordinated Debt
of the Borrower or any other member of the Borrower Affiliated Group in favor of
any Seller.
SERVICES. Xxx-Xxxx Services, Inc., a Delaware corporation which is a
wholly-owned Subsidiary of Mac-Gray.
SERVICES PATENT AND TRADEMARK SECURITY AGREEMENT. The Patent and
Trademark Security Agreement dated as of the date hereof and executed and
delivered by Services to the Administrative Agent, for the ratable benefit of
the Banks and the Administrative Agent.
SERVICES SECURITY AGREEMENT. The Security Agreement dated as of the
date hereof and executed and delivered by Services to the Administrative Agent,
for the ratable benefit of the Banks and the Administrative Agent.
SOLVENCY CERTIFICATES. Collectively, the separate solvency certificates
dated as of the date hereof and executed and delivered by the chief financial
officer of each member of the Borrower Affiliated Group to the Administrative
Agent, for the ratable benefit of the Banks and the Administrative Agent.
SPECIAL PAYMENT CONDITIONS. Collectively, the following conditions:
(i) all sums which shall have become due and payable by the Borrower to the
Administrative Agent or the Banks under any of the Security Documents on or
prior to such date shall have been paid in full on or prior to such date; and
(ii) no event or condition which constitutes a Default or an Event of Default
shall be continuing on or as of such date or shall occur by reason of the making
of the payment on such date.
STATED AMOUNT. With respect to each Letter of Credit outstanding at any
time, the maximum amount then available to be drawn thereunder (without regard
to whether any conditions to drawing could then be met).
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SUBORDINATED DEBT. Indebtedness (including any Indebtedness evidenced
by any payment-in-kind promissory notes, if any) of the Borrower or any other
member of the Borrower Affiliated Group which is unsecured and is expressly
subordinated and made junior to the payment and performance in full of the
Obligations on terms and conditions as shall be satisfactory to the
Administrative Agent and the Banks, and including, without limitation, the
Seller Subordinated Debt; PROVIDED that the terms of the subordination set forth
in the Seller Subordinated Promissory Notes are deemed satisfactory to the
Administrative Agent and the Banks solely with respect to the Seller
Subordinated Debt outstanding on the Closing Date.
SUBSIDIARY. Any corporation, association, joint stock company, business
trust or other similar organization of which 50% or more of the ordinary voting
power for the election of a majority of the members of the board of directors or
other governing body of such entity is held or controlled by a Person or a
Subsidiary of such Person; or any other such organization the management of
which is directly or indirectly controlled by a Person or a Subsidiary of such
Person through the exercise of voting power or otherwise; or any joint venture,
whether incorporated or not, in which a Person has a 50% or more ownership
interest.
TAXES OR OTHER PAYMENTS. See Section 2.13(a).
TERM NOTES. See Section 2.2.
TERM LOAN. The term loan in the original principal amount of
$35,000,000 made or to be made to the Borrower on the Closing Date by the Banks
having a Term Loan Commitment pursuant to this Agreement (including Section
2.1(d) hereof), and subject to the limitations contained herein.
TERM LOAN COMMITMENT. In relation to any Bank, the maximum liability of
such Bank, as set forth on SCHEDULE 1, to participate in making the Term Loan to
the Borrower upon the terms and subject to the conditions contained in this
Agreement. SCHEDULE 1 shall be updated by the Administrative Agent from time to
time to reflect any changes in the Term Loan Commitments as a result of
assignments permitted by Section 9.10.
TERM LOAN COMMITMENT PERCENTAGE. With respect to each Bank having a
Term Loan Commitment, the percentage set forth on SCHEDULE 1 as such Bank's
percentage of the aggregate Term Loan Commitments of all the Banks. SCHEDULE 1
shall be updated by the Administrative Agent from time to time to reflect any
changes in the Term Loan Commitment Percentages.
TERM LOAN MATURITY DATE. June 30, 2005.
TOTAL COMMITMENT. As of any date, the sum of the then-current
Commitments of the Banks, PROVIDED that the Total Commitment shall not at any
time exceed $100,000,000.
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TOTAL FIXED CHARGES. For any period, (i) Interest Charges paid or
required to be paid by the Borrower Affiliated Group in such period, PLUS (ii)
the aggregate amount of scheduled principal payments required to be made by the
Borrower Affiliated Group during such period with respect to any Indebtedness
for borrowed money or capital lease obligations, PLUS (iii) any fees, including
Letter of Credit Fees and Commitment Fees, required to be paid in connection
with any of the foregoing Indebtedness, PLUS (iv) all Restricted Payments made
as permitted pursuant to Section 6.11(i) during such period, if any.
TOTAL FUNDED DEBT. As at any date of determination, on a Consolidated
basis for the Borrower Affiliated Group (and without duplication), the sum of
(i) the aggregate amount of the Loans outstanding on such date, PLUS (ii) the
Stated Amount of Letters of Credit outstanding on such date, PLUS (iii) the
aggregate amount of the Subordinated Debt outstanding on such date, PLUS (iv)
all principal obligations arising under capital leases in effect on such date
required to capitalized in accordance with GAAP, PLUS (v) all other Guarantees
and Indebtedness for borrowed money of the Borrower Affiliated Group outstanding
on such date.
TOTAL FUNDED DEBT. As at any date of determination, on a Consolidated
basis for the Borrower Affiliated Group (and without duplication), the sum of
(i) the aggregate amount of the Loans outstanding on such date, PLUS (ii) the
Stated Amount of Letters of Credit outstanding on such date, PLUS (iii) the
aggregate amount of the Subordinated Debt outstanding on such date, PLUS (iv)
all principal obligations arising under capital leases in effect on such date
required to capitalized in accordance with GAAP, PLUS (v) all other Guarantees
and Indebtedness for borrowed money of the Borrower Affiliated Group outstanding
on such date.
1.2. TERMS OF GENERAL APPLICATION. For all purposes of this Agreement
and the other Security Documents, except as otherwise expressly provided herein
or therein or unless the context otherwise requires:
(i) references to any Person defined in this Agreement refer to such
Person and its successor in title and assigns or (as the case may be) his
successors, assigns, heirs, executors, administrators and other legal
representatives;
(ii) references to any agreement, instrument or document defined in
this Agreement refer to such document as originally executed, or if subsequently
varied, extended, renewed, modified, amended, restated or supplemented from time
to time, as so varied, extended, renewed, modified, amended, restated or
supplemented and in effect at the relevant time of reference thereto;
(iii) words importing the singular only shall include the plural and
VICE VERSA, and the words importing the masculine gender shall include the
feminine gender and VICE VERSA, and all references to dollars, $, U.S. Dollars
or United States Dollars, shall be to Dollars;
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(iv) accounting terms not otherwise defined in this Agreement or any of
the other Security Documents have the meanings assigned to them in accordance
with GAAP, on a basis consistent with the financial statements referred to in
Section 4.7 of this Agreement;
(v) all financial statements and other financial information provided
by the Borrower and each other member of the Borrower Affiliated Group, to the
Administrative Agent or any Bank shall be provided with reference to Dollars;
(vi) all of the obligations of the Borrower Affiliated Group under this
Agreement and each other Security Document shall be the joint and several
obligations of each member of the Borrower Affiliated Group; and
(vii) this Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed by counsel to, among others, the
Borrower Affiliated Group and the Administrative Agent and are the product of
discussions and negotiations among all parties. Accordingly, this Agreement and
the other Loan Documents are not intended to be construed against the
Administrative Agent or any of the Banks merely on account of the Administrative
Agent's or any Bank's involvement in the preparation of such documents.
SECTION II
DESCRIPTION OF CREDIT
2. THE CREDIT FACILITIES.
2.1. THE LOANS.
(a) REVOLVING CREDIT LOANS. Subject to the terms and conditions set
forth in this Agreement, each of the Banks having a Revolving Credit Commitment
severally agrees to lend to the Borrower and the Borrower may borrow, repay and
reborrow from time to time between the Closing Date and the Revolving Credit
Maturity Date, such amounts as are requested by the Borrower up to a maximum
aggregate principal amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Bank's Revolving Credit Commitment;
provided, HOWEVER, that the maximum aggregate principal amount of all Revolving
Credit Loans outstanding (after giving effect to the amounts requested), PLUS
the aggregate Stated Amount of Letters of Credit outstanding at such time, PLUS
the aggregate amount of all unreimbursed draws under outstanding Letters of
Credit, shall not at any time exceed the aggregate amount of the Revolving
Credit Commitments of all of the Banks at such time; and PROVIDED, FURTHER, that
at the time the Borrower requests a Revolving Credit Loan and after giving
effect to the making thereof, no Default or Event of Default has occurred and is
continuing.
The Revolving Credit Loans shall be made PRO RATA in accordance with
the Revolving Credit Commitment Percentage of each Bank having a Revolving
Credit Commitment. If the aggregate principal amount of Revolving Credit Loans
outstanding at any time, PLUS the aggregate Stated Amount of Letters of Credit
outstanding at such time,
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PLUS the aggregate amount of any unreimbursed draws under outstanding Letters of
Credit shall at any time exceed the Revolving Credit Commitment of all the Banks
then in effect, the Borrower shall immediately pay to the Administrative Agent
for the respective accounts of the Banks the amount of such excess. Failure to
make such payment on demand shall be an Event of Default hereunder.
(b) TERM LOAN. Subject to the terms and conditions set forth in this
Agreement, each of the Banks having a Term Loan Commitment severally agrees to
lend to the Borrower on the Closing Date, and the Borrower agrees to borrow on
such date and repay in accordance with Section 2.12, an amount equal to such
Bank's Term Loan Commitment.
(c) LOAN ACCOUNT. The Administrative Agent shall enter Loans and
advances made by the Banks to the Borrower pursuant to this Agreement
(including, without limitation, on account of the Revolving Credit Loans, the
Term Loan and any Letters of Credit) as debits in the Loan Account. The
Administrative Agent shall also record in the Loan Account all payments made by
the Borrower on account of the Loans and may also record therein, in accordance
with customary accounting practices, other debits and credits, including
customary banking charges and all interest, fees, charges and expenses
chargeable to the Borrower under this Agreement. The debit balance of the Loan
Account shall reflect the amount of the Borrower's Obligations hereunder and
shall be considered correct absent manifest error. If there shall be a conflict,
discrepancy or inconsistency between the Loan Account and any Note Schedule, the
entries and records in the Loan Account shall control, supersede and prevail as
among the Borrower, the Administrative Agent and the Banks.
2.2. THE NOTES.
(a) THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate Revolving Credit Notes of the Borrower to each Bank having
a Revolving Credit Commitment in or substantially in the form of EXHIBIT A-1
hereto (collectively, the "Revolving Credit Notes"), with appropriate insertions
for each such Bank.
(b) THE TERM NOTES. The Term Loan shall be evidenced by separate Term
Notes of the Borrower to each Bank having a Term Loan Commitment in or
substantially in the form of EXHIBIT A-2 hereto (collectively, the "Term
Notes"), with appropriate insertions for each such Bank.
(c) NOTE SCHEDULES. The Administrative Agent and each Bank may, instead
of or in addition to maintaining a loan account, and is hereby irrevocably
authorized by the Borrower to, enter on the schedule forming a part of its Notes
or otherwise in its records, appropriate notations (collectively, the "Note
Schedules") evidencing the date and the amount of each Loan, as applicable, the
interest rate applicable thereto and the date and amount of each payment of
principal made by the Borrower with respect thereto; and in the absence of
manifest error, such notations shall constitute conclusive evidence thereof. The
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Administrative Agent and each Bank is hereby irrevocably authorized by the
Borrower to attach to and make a part of its respective Notes a continuation of
any such schedule as and when required. No failure on the part of the
Administrative Agent or any Bank to make any notation as provided in this
subsection (c) shall in any way affect any Loan or the rights of the Banks or
the Obligations of the Borrower with respect thereto. If there shall be a
conflict, discrepancy or inconsistency between the Loan Account and any Note
Schedule, the entries and records in the Loan Account shall control, supersede
and prevail as among the Borrower, the Administrative Agent and the Banks.
2.3. CONVERSION. Provided that no Default or Event of Default shall
have occurred and be continuing, and subject to and in accordance with the
provisions of Section 2.4(a), the Borrower may convert all or any part (in
integral multiples of $500,000) of any outstanding Loan into a Loan of the other
type provided for in this Agreement in the same aggregate principal amount, on
any Business Day (which, in the case of a conversion of a LIBOR Loan, shall be
the last day of the Interest Period applicable to such LIBOR Loan). The Borrower
shall give the Administrative Agent and the Banks prior notice of each such
conversion (which notice shall be effective upon receipt) in accordance with
Section 2.4. All such conversions shall be made PRO RATA in accordance with each
Bank's Commitment Percentage applicable to the type of Loan being converted.
2.4. NOTICE AND MANNER OF BORROWING OR CONVERSION OF LOANS.
(a) Whenever the Borrower desires to obtain or continue a Loan
hereunder or convert an outstanding Loan into a Loan of the other type provided
for in this Agreement, the Borrower shall notify the Administrative Agent (which
notice shall be irrevocable) by telecopy or telephone received no later than
10:00 a.m. Boston, Massachusetts time on the date that is one (1) Business Day
before the day on which the requested Loan is to be made or continued as or
converted to a Prime Rate Loan, and received no later than 10:00 a.m. Boston,
Massachusetts time on the date that is three (3) Business Days before the day on
which the requested Loan is to be made or continued as or converted to a LIBOR
Loan, PROVIDED that no more than eight (8) LIBOR Loans may be outstanding at any
one time. Such notice by the Borrower shall specify (i) the effective date and
amount of each Loan to be obtained, continued or converted (or portion thereof
to be continued or converted, as the case may be), subject to the limitations
set forth in Section 2.1, (ii) the interest rate option to be applicable
thereto, and (iii) the duration of the applicable Interest Period, if any
(subject to the provisions of the definition of Interest Period and Section
2.8). Each LIBOR Loan must be for an amount equal to at least $500,000 and in
additional increments of $500,000. Each such notification by telephone pursuant
to Section 2.3 or this Section 2.4(a) (a "Notice of Borrowing or Conversion")
shall be immediately followed by a written confirmation thereof by the Borrower
in substantially the form of EXHIBIT B hereto, PROVIDED that if such written
confirmation differs in any material respect from the action taken by the
Administrative Agent, the records of the Administrative Agent shall be
conclusive absent manifest error.
(b) Subject to the terms and conditions hereof, each Bank shall make
available to the Administrative Agent, in immediately available funds, no later
than 1:00 p.m., Boston, Massachusetts time, on the date upon which any Prime
Rate Loan or LIBOR Loan is to be
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made, such Bank's Commitment Percentage of the requested Loan. The
Administrative Agent shall, in turn, make each Loan on the effective date
specified therefor by crediting the amount of such Loan to the Borrower's demand
deposit account with the Administrative Agent. In no event shall the
Administrative Agent (in its capacity as Administrative Agent) have any
obligation to make any funding or shall any Bank be obligated to fund more than
its Commitment Percentage of the requested Prime Rate Loan or LIBOR Loan.
2.5. COMMITMENT FEE. The Borrower shall pay to the Administrative
Agent, for the accounts of the Banks having Revolving Credit Commitments, in
accordance with their respective Revolving Credit Commitment Percentages, a
commitment fee computed at a rate per annum on the average daily aggregate
amount, during each fiscal quarter or portion thereof, of the unborrowed portion
of the Revolving Credit Commitment, (A) from the Closing Date through the second
Business Day after the date on which the Compliance Certificate required to be
delivered pursuant to Section 5.1(d) for the fiscal quarter of the Borrower
Affiliated Group ending December 31, 2000 is delivered to the Administrative
Agent, equal to 0.50%, and (B) thereafter, determined in accordance with the
table below:
---------------------------------- -----------------------
Funded Debt Ratio Commitment Fee
---------------------------------- -----------------------
Greater than or equal to 0.50%
2.50 to 1.00
---------------------------------- -----------------------
Less than 2.50 to 1.00 0.375%
---------------------------------- -----------------------
Commitment fees shall be payable quarterly in arrears, on the last day of
September, December, March and June of each year beginning September 30, 2000,
and on the Revolving Credit Maturity Date.
2.6. FEE LETTER. The Borrower shall pay to the Administrative Agent
fees in the amounts and at the times outlined in the Fee Letter.
2.7. REDUCTION OF REVOLVING CREDIT COMMITMENT. The Borrower may from
time to time by written notice delivered to the Administrative Agent at least
seven (7) Business Days prior to the date of the requested reduction, reduce by
a minimum amount of $1,000,000, and in additional increments of $500,000, any
unborrowed portion of the Revolving Credit Commitment. No reduction of the
Revolving Credit Commitment shall be subject to reinstatement.
2.8. DURATION OF INTEREST PERIODS.
(a) Subject to the provisions of the definition of Interest Period, the
duration of each Interest Period applicable to a LIBOR Loan shall be as
specified in the applicable Notice of Borrowing or Conversion. The Borrower
shall have the option to elect a subsequent Interest Period to be applicable to
such Loan by giving notice of such election to the Bank received no later than
10:00 a.m. Boston, Massachusetts time on the date that is
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three (3) Business Days before the end of the then applicable Interest Period if
such Loan is to be continued as or converted to a LIBOR Loan.
(b) If the Administrative Agent does not receive a notice of election
of duration of an Interest Period for a LIBOR Loan pursuant to subsection (a)
above within the applicable time limits specified therein, or if, when such
notice must be given, a Default or an Event of Default exists, the Borrower
shall be deemed to have elected to convert such Loan in whole into a Prime Rate
Loan on the last day of the then current Interest Period with respect thereto.
(c) Notwithstanding the foregoing, the Borrower may not select an
Interest Period that would end, but for the provisions of the definition of
Interest Period, after the Revolving Credit Maturity Date or the Term Loan
Maturity Date, as the case may be.
2.9. INTEREST RATES AND PAYMENTS OF INTEREST.
(a) Each Revolving Credit Loan and portion of the Term Loan which is a
Prime Rate Loan shall bear interest on the outstanding principal amount thereof
at a rate per annum equal to the Prime Rate plus the Applicable Prime Rate
Margin, which rate shall change contemporaneously with any change in the Prime
Rate. Such interest shall be payable on the last day of any fiscal quarter in
which a Prime Rate Loan is outstanding hereunder, and when such Loan is due
(whether at maturity, by reason of acceleration or otherwise).
(b) Each Revolving Credit Loan and portion of the Term Loan which is a
LIBOR Loan shall bear interest on the outstanding principal amount thereof, for
each Interest Period applicable thereto, at a rate per annum equal to the
Adjusted LIBOR Rate plus the Applicable LIBOR Margin. Such interest (including
any adjustments made in the Administrative Agent's discretion consistent with
the definition of Adjusted LIBOR Rate to take into consideration any change in
the Reserve Percentage) shall be payable for such Interest Period (i) on the
earlier of the last day of such Interest Period and, if such Interest Period is
longer than 3 months, at intervals of 3 months after the first day of such
Interest Period and (ii) when such LIBOR Loan is due (whether at maturity, by
reason of acceleration or otherwise).
(c) For purposes of this Section 2.9, with reference to (i) the
"Applicable Prime Rate Margin" shall be equal to (A) from the Closing Date
through the second Business Day after the date on which the financial statements
and compliance certificate required to be delivered pursuant to Sections 5.1(a)
and 5.1(d), respectively, for the fiscal year of the Borrower Affiliated Group
ending December 31, 2000 is delivered to the Administrative Agent, a percentage
equal to 0.25%, and (B) thereafter, the percentage determined for each Rate
Period by reference to Table 1 below, and (ii) the "Applicable LIBOR Margin"
shall be equal to (A) from the Closing Date through the second Business Day
after the date on which the financial statements and compliance certificate
required to be delivered pursuant to Sections 5.1(a) and 5.1(d), respectively,
for the fiscal year of the Borrower Affiliated Group ending December 31, 2000 is
delivered to the Administrative Agent, a percentage equal to 2.25%, and (B)
thereafter, the percentage determined for each Rate Period by reference to TABLE
1 below:
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TABLE 1
Revolving Credit Loans
and the Term Loan
Applicable
Applicable Prime Libor
Funded Debt Ratio Rate Margin Margin
----------------- ---------------- ----------
a) greater than or equal to 0.25% 2.25%
3.00 to 1
b) less than 3.00 to 1 but 0.00% 2.00%
greater than or equal to
2.50 to 1
c) less than 2.50 to 1 0.00% 1.75%
For purposes of determining the Applicable Prime Rate Margin and the Applicable
LIBOR Margin, the Funded Debt Ratio will be tested quarterly, commencing with
the second full fiscal quarter of the Borrower Affiliated Group following the
Closing, based on the financial statements and compliance certificate required
to be delivered pursuant to Sections 5.1(a) or (b), as applicable, and 5.1(d),
respectively. For purposes of determining the interest rate for any Rate Period
hereunder, any interest rate change shall be effective two (2) Business Days
after the date on which the financial statements and compliance certificate
required to be delivered pursuant to Sections 5.1(a) or (b) and 5.1(d),
respectively, is delivered to the Administrative Agent, together with a notice
to the Administrative Agent (which shall be verified by the Administrative
Agent) specifying any change in the Applicable Prime Rate Margin and the
Applicable LIBOR Margin, and if the Borrower has failed to deliver the
compliance certificate required to be delivered pursuant to Sections 5.1(a) or
(b), as applicable, and 5.1(d), respectively, the Applicable Prime Rate Margin
and the Applicable LIBOR Margin that would otherwise be in effect shall
automatically be increased by .25% until such compliance certificate is
delivered.
2.10. CHANGED CIRCUMSTANCES.
(a) In the event that:
(i) on any date on which the Adjusted LIBOR Rate would otherwise
be set the Administrative Agent shall have determined in good
faith (which determination shall be final and conclusive) that
adequate and fair means do not exist for ascertaining the
Interbank Offered Rate, as the case may be, or
(ii) at any time the Administrative Agent shall have determined in
good faith (which determination shall be final and conclusive)
that:
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(A) the making or continuation of, or conversion of any
Loan to, a LIBOR Loan has been made impracticable or
unlawful by (1) the occurrence of a contingency that
materially and adversely affects the London interbank
market or (2) compliance by the Administrative Agent or
any Bank in good faith with any applicable law or
governmental regulation, guideline or order or
interpretation or change thereof by any governmental
authority charged with the interpretation or
administration thereof or with any request or directive
of any such governmental authority (whether or not
having the force of law); or
(B) the Adjusted LIBOR Rate shall no longer represent the
effective cost to any Bank for United States dollar
deposits in the London interbank market;
then, and in any such event, the Administrative Agent shall promptly so notify
the Borrower thereof in writing. Until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such notice no longer apply, the
obligation of each Bank to allow selection by the Borrower of the type of Loan
affected by the contingencies described in this Section 2.10(a) (herein called
"AFFECTED LOANS") shall be suspended. If at the time the Administrative Agent so
notifies the Borrower, the Borrower has previously given the Administrative
Agent a Notice of Borrowing or Conversion with respect to one or more Affected
Loans but such Loans have not yet gone into effect, such notification shall be
deemed to be void and the Borrower may borrow Loans of a non-affected type by
giving a substitute Notice of Borrowing or Conversion pursuant to Section 2.4.
Upon such date as shall be specified in such notice (which shall not be
earlier than the date such notice is given) the Borrower shall, with respect to
the outstanding Affected Loans, prepay the same, together with interest thereon
and any amounts required to be paid pursuant to Section 2.15, and may borrow a
Loan of another type in accordance with Section 2.1 hereof by giving a Notice of
Borrowing or Conversion pursuant to Section 2.4 hereof.
The provisions of this Section 2.10(a) shall be applied to the Borrower
so as not to discriminate against the Borrower vis-a-vis other customers of the
applicable Bank.
(b) In case any law, regulation, treaty or official directive or the
interpretation or application thereof by any court or by any governmental
authority charged with the administration thereof or the compliance with any
guideline or request of any central bank or other governmental authority
(whether or not having the force of law):
(i) subjects the Administrative Agent or any Bank to any tax with
respect to payments of principal or interest or any other
amounts payable hereunder by the Borrower or otherwise with
respect to the transactions contemplated hereby (except for
taxes on the overall net income of the Administrative Agent or
such Bank imposed by the United States of America or any
political subdivision thereof), or
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(ii) imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit or similar requirement against assets
held by, or deposits in or for the account of, or loans by,
the Administrative Agent or any Bank (other than such
requirements as are already included in the determination of
the Adjusted LIBOR Rate), or
(iii) imposes upon the Administrative Agent or any Bank any other
condition with respect to its performance under this Agreement
or any other Loan Document,
and the result of any of the foregoing is to increase the cost to the
Administrative Agent or such Bank, reduce the income receivable by the
Administrative Agent or such Bank or impose any expense upon the Administrative
Agent or such Bank with respect to any Loans or any payments made under or with
respect to the Letters of Credit, the Administrative Agent shall promptly notify
the Borrower thereof. The Borrower agrees to pay to the Administrative Agent or
such Bank the amount of such increase in cost, reduction in income or additional
expense as and when such cost, reduction or expense is incurred or determined,
upon presentation by the Administrative Agent or such Bank of a written
statement of such amount and setting forth in reasonable detail the
Administrative Agent's or such Bank's calculation thereof, which statement shall
be deemed true and correct absent manifest error. The provisions of this Section
2.10(b) shall be applied to the Borrower so as not to discriminate against the
Borrower vis-a-vis other customers of the applicable Bank.
2.11. CAPITAL REQUIREMENTS. If after the date hereof the Administrative
Agent or any Bank determines that (i) the adoption of or change in any law,
rule, regulation or guideline regarding capital requirements for banks or bank
holding companies, or any change in the interpretation or application thereof by
any governmental authority charged with the administration thereof, or (ii)
compliance by the Administrative Agent or any Bank or its parent bank holding
company with any guideline, request or directive of any such entity regarding
capital adequacy (whether or not having the force of law), has the effect of
reducing the return on the Administrative Agent's or such Bank's or such holding
company's capital as a consequence of the Administrative Agent's or such Bank's
commitment to make Loans hereunder to a level below that which the
Administrative Agent or such Bank or such holding company could have achieved
but for such adoption, change or compliance (taking into consideration the
Administrative Agent's or such Bank's or such holding company's then existing
policies with respect to capital adequacy and assuming the full utilization of
such entity's capital) by any amount deemed by the Administrative Agent or such
Bank to be material, then the Administrative Agent shall promptly notify the
Borrower thereof. The Borrower agrees to pay to the Administrative Agent or such
Bank the amount of such reduction of capital as and when such reduction is
determined, upon presentation by the Administrative Agent or such Bank of a
written statement in the amount and setting forth in reasonable detail the
Administrative Agent's or such Bank's calculation thereof, which statement shall
be deemed true and correct absent manifest error. In determining such amount,
the Administrative Agent or such Bank may use any reasonable averaging and
attribution methods. The provisions of this
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Section 2.11 shall be applied to the Borrower so as not to discriminate against
the Borrower vis-a-vis other customers of the applicable Bank.
Upon the receipt by the Borrower from any Bank (an "Affected Bank") of
a claim for compensation under Section 2.10 or this Section 2.11, which claim
shall be delivered to the Borrower promptly after the Affected Bank has
determined that it is entitled to compensation, the Borrower may: (i) request
one or more of the other Banks to acquire and assume all or part of such
Affected Bank's Loans and Commitments; or (ii) designate a replacement bank or
financial institution satisfactory to the Administrative Agent in its sole
discretion. If one or more of the other Banks in its sole discretion agrees to
acquire all or part of such Affected Bank's Loans and Commitments or if such a
satisfactory replacement bank or financial institution is designated, the
Affected Bank shall promptly assign all or such part of its Loans and
Commitments.
2.12. PAYMENTS AND PREPAYMENTS OF THE LOANS.
(a) The entire principal of the Revolving Credit Notes shall be
absolutely due and payable by the Borrower to the Banks on the Revolving Credit
Maturity Date. All of the other Indebtedness evidenced by the Revolving Credit
Notes shall, if not sooner paid, also be absolutely due and payable by the
Borrower to the Banks on the Revolving Credit Maturity Date.
(b) The entire principal of the Term Notes shall be payable by the
Borrower to the Banks in 20 consecutive quarterly installments of principal.
Such quarterly installments of principal shall be payable on the installment
payment dates, and shall be in the amounts, set forth below:
Installment Aggregate Amount
Payment Date of Payment
------------ ----------------
09/30/00 $ 1,250,000
12/31/00 $ 1,250,000
03/31/01 $ 1,250,000
06/30/01 $ 1,250,000
09/30/01 $ 1,500,000
12/31/01 $ 1,500,000
03/31/02 $ 1,500,000
06/30/02 $ 1,500,000
09/30/02 $ 1,750,000
12/31/02 $ 1,750,000
03/31/03 $ 1,750,000
06/30/03 $ 1,750,000
09/30/03 $ 2,000,000
12/31/03 $ 2,000,000
03/31/04 $ 2,000,000
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06/30/04 $ 2,000,000
09/30/04 $ 2,250,000
12/31/04 $ 2,250,000
03/31/05 $ 2,250,000
06/30/05 $ 2,250,000
All of the indebtedness evidenced by each Term Note shall, if not sooner paid,
be in any event absolutely and unconditionally due and payable in full by the
Borrower to the Banks on the Term Loan Maturity Date.
(c) Revolving Credit Loans that are Prime Rate Loans may be voluntarily
prepaid at any time, without premium or penalty, upon 5 Business Days' prior
written notice to the Administrative Agent and each Bank. Subject to the
provisions of Section 2.15, Revolving Credit Loans that are LIBOR Loans may be
voluntarily prepaid at any time, without premium or penalty, upon 5 Business
Days' prior written notice to the Administrative Agent and each Bank. Any
interest accrued on the amounts so prepaid to the date of such payment must be
paid at the time of any such payment. No prepayment of the Revolving Credit
Loans prior to the Revolving Credit Maturity Date shall affect the Total
Commitment or impair the Borrower's right to borrow as set forth in Section 2.l.
Partial prepayments of the Revolving Credit Loans shall be in an amount equal to
$500,000 or an integral multiple thereof. In the case of any partial payment of
the Revolving Credit Loans, the total amount of such partial payment shall be
allocable among the Revolving Credit Loans, subject to adjustment as provided in
Section 8.5, pro RATA in accordance with the Revolving Credit Commitment
Percentage of each Bank having a Revolving Credit Commitment.
(d) Subject to the provisions of Section 2.15, the Term Loan may be
voluntarily prepaid at any time, in whole or in part, without premium or
penalty, upon 5 Business Days' prior written notice to the Administrative Agent
and each Bank, PROVIDED that interest accrued on the amounts so paid to the date
of such payment must be paid at the time of any such payment. Partial
prepayments of the Term Loan shall be in an amount equal to $500,000 or an
integral multiple thereof. In the case of any partial prepayment of the Term
Loan, the total amount of such partial prepayment shall be allocable, subject to
adjustment as provided in Section 8.5, PRO RATA to each Bank having a Term Loan
Commitment in accordance with each such Bank's Term Loan Commitment Percentage.
(e) The Borrower shall be required to make mandatory prepayments of the
Loans as set forth below (each a "Mandatory Prepayment"), such payments being
due and payable on the day on which any Net Proceeds are received with respect
to clauses (i) through (iv) below, and on the date on which the financial
statements referred to below are required to be delivered, whether or not such
financial statements are actually delivered, with respect to clause (v) below:
(i) subject to Section 6.5, an amount equal to 100% of the Net
Proceeds received by the Borrower or any other member of the
Borrower Affiliated Group from the sale or other disposition
of any of its respective assets, except for (x) sales of
Inventory in the ordinary
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course of business, (y) sales of assets wholly in the
ordinary course of business having an aggregate purchase
price of not more than $500,000 (together with amounts under
subclause(z) below) in any fiscal year, PROVIDED that all
such sales are made at fair market value, and (z) sales of
obsolete equipment having an aggregate value not exceeding
$500,000 (together with amounts under subclause (y) above)
in any fiscal year, provided that the proceeds of such sales
are reinvested in equipment serving the same or similar
function within 60 days after the receipt of such Net
Proceeds;
(ii) subject to Section 6.1, an amount equal to 100% of the Net
Proceeds received from the incurrence of any Indebtedness
for borrowed money, except for the Indebtedness described in
either clause (c) or (e) of Section 6.1;
(iii) an amount equal to 100% of the proceeds of insurance
received by the Borrower, any other member of the Borrower
Affiliated Group or the Administrative Agent, except for any
of such proceeds of insurance which are expressly permitted
to be retained by the Borrower or such member of the
Borrower Affiliated Group pursuant to the Security
Agreements or any Leasehold Mortgage;
(iv) an amount equal to 100% of the Net Proceeds received from
the sale of any Equity Securities by the Borrower or any
other member of the Borrower Affiliated Group, except for
Equity Securities issued to employees, directors and
consultants in connection with an employee benefit or equity
incentive plan existing on the date hereof or hereafter
adopted by the Board of Directors of the Borrower or such
other member of the Borrower Affiliated Group; and
(v) so long as amounts remain due under the Term Loan, an amount
equal to 75% of the Excess Cash Flow of the Borrower
Affiliated Group for each fiscal year of the Borrower
Affiliated Group as evidenced by the financial statements
required to be delivered pursuant to Section 5.1(a);
notwithstanding the foregoing, if at the end of any fiscal
year of the Borrower Affiliated Group the Funded Debt Ratio
(as evidenced by the annual audited financial statements
required to be delivered pursuant to Section 5.1(a)) is less
than 1.50 to 1 for the four consecutive fiscal quarters
ending with the last fiscal quarter of such fiscal year, the
requirement to prepay from Excess Cash Flow pursuant to this
clause (v) shall be eliminated for such fiscal year.
Subject to the proviso set forth in the last sentence of this paragraph,
Mandatory Prepayments shall be applied to installments of principal due under
the Term Loan in inverse order of maturity, until the Term Loan has been paid in
full. Mandatory
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prepayments of Prime Rate Loans shall be made without any premium or penalty.
Mandatory Prepayments of LIBOR Loans shall be made subject to the provisions of
Section 2.15, PROVIDED that, if no Default or Event of Default has occurred, the
Borrower shall be permitted to make any such Mandatory Prepayment that is due
prior to the end of an Interest Period to a cash collateral account established
and controlled by the Administrative Agent. Any such amounts will be held in
such cash collateral account until the end of the applicable Interest Period and
then applied to the Term Loan as described in this clause (e), and such payment
of the Term Loan shall be deemed made at the end of such Interest Period for
purposes of Section 2.15. All such Mandatory Prepayments shall be allocable to
the Term Loan PRO RATA to each Bank having a Term Loan Commitment in accordance
with each such Bank's Term Loan Commitment Percentage. Upon payment in full of
the Term Loan, all Mandatory Prepayments under Sections 2.12(e)(i) through
2.12(e)(iv) shall be applied to the Revolving Credit Loans, until the Revolving
Credit Loans have been paid in full (with a concurrent permanent reduction of
the Revolving Credit Commitments, PRO RATA, by such Mandatory Prepayment
amounts); PROVIDED, HOWEVER, that (A) Mandatory Prepayments shall no longer be
required under Section 2.12(e)(v) upon repayment in full of the Term Loan, and
(B) any Net Proceeds received with respect to the sale of the Cambridge Fee
Location, shall be applied as follows: (X) 50% of such Net Proceeds shall be
applied to the Revolving Credit Loans on a PRO RATA basis, until the Revolving
Credit Loans have been paid in full (without a concurrent reduction of the
Revolving Credit Commitments) and (Y) 50% of such Net Proceeds shall be applied
to installments of principal due under the Term Loan in inverse order of
maturity until the Term Loan has been paid in full. Notwithstanding the
foregoing, if any amount of Net Proceeds referred to in clause (X) remains after
the Revolving Credit Loans have been paid in full as set forth therein, then
such remaining amounts shall be applied to the Term Loan in the manner provided
in clause (Y).
2.13. METHOD OF PAYMENT; WITHHOLDING TAX EXEMPTION.
(a) All payments and prepayments of principal and all payments of
interest and other amounts shall be made by the Borrower to the Administrative
Agent, for the respective accounts of the Banks or (as the case may be) the
Administrative Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, in
immediately available funds, on or before 11:00 a.m. (Boston, Massachusetts
time) on the due date thereof, free and clear of, and without any deduction or
withholding for, any taxes (excluding any taxes imposed on the net income of any
Bank or the Administrative Agent) or other payments ("Taxes or Other Payments").
The Borrower authorizes the Administrative Agent and each Bank, in the
Administrative Agent's or such Bank's sole discretion, to charge to any deposit
account which the Borrower may maintain with the Administrative Agent or such
Bank the principal, interest, fees, charges, taxes and expenses provided for in
this Agreement or any other document executed and delivered in connection
herewith, or to advance to the Borrower and to charge to it as a Revolving
Credit Loan a sum sufficient to pay such principal, interest, fees, charges,
taxes and expenses, with advice thereafter sent to Xxx-Xxxx'x chief financial
officer in accordance with the Administrative Agent's or such Bank's customary
practice.
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(b) At least five (5) Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Bank, each Bank
that is not incorporated under the laws of the United States of America or a
state thereof (herein, a "Foreign Bank") agrees that it will deliver to each of
the Borrower and the Administrative Agent (or, in the case of a Participant or
an Assignee, to the Bank from which the interest was transferred) two duly
completed and executed copies of either U.S. Internal Revenue Service Form 1001
or Form 4224 (or any subsequent versions thereof or successors thereof),
certifying in either case that such Foreign Bank is entitled to receive payments
under this Agreement and the Notes either without deduction or withholding of
any United States federal income taxes or at a reduced rate of any United States
federal income taxes, as the case may be. Each Foreign Bank which so delivers a
Form 1001 or Form 4224 further undertakes to deliver to each of the Borrower and
the Administrative Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Borrower or the Administrative Agent, in
each case certifying that such Foreign Bank is entitled to receive payments
under this Agreement and the Notes either without deduction or withholding of
any United States federal income taxes or at a reduced rate of any United States
federal income taxes as the case may be, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Foreign Bank from duly
completing and delivering any such form with respect to it and such Foreign Bank
advises the Borrower and the Administrative Agent in writing that it is no
longer capable of receiving payments without any deduction or withholding of
United States federal income taxes.
(c) If the form provided by a Bank at the time such Bank first becomes
a party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from the Taxes and Other Payments unless and until such Bank provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from such
Taxes and Other Payments for periods governed by such form; PROVIDED, HOWEVER,
that, if at the date of the Assignment and Assumption pursuant to which an
Assignee becomes a party to this Agreement, the assigning Bank was entitled to
payments under Section 2.13 in respect of United States withholding tax with
respect to interest paid at such date, then the term Taxes and Other Payments
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes and Other Payments) United
States withholding tax, if any, applicable with respect to the Assignee on such
date, but only to the extent that the assigning Bank was so entitled to such
payments under Section 2.13.
(d) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form described in Subsection 2.13(b) above
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under
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Subsection 2.13(b) above), such Bank shall not be entitled to any additional
payments under Section 2.10 or Section 2.13(a) with respect to Taxes and Other
Payments imposed by the United States by reason of such failure; PROVIDED,
HOWEVER, that should a Bank become subject to Taxes and Other Payments because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Bank reasonably shall request to assist the Bank to recover
such Taxes and Other Payments.
(e) If a Bank or the Administrative Agent receives a refund in respect
of any Taxes or Other Payments as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to Section 2.10 or this Section 2.13, it shall, within 60 days from the
date of such receipt, pay over the amount of such refund to the Borrower, net of
all reasonable out-of-pocket expenses of such Bank or the Administrative Agent
and without interest (other than interest paid by the relevant taxation
authority with respect to such refund); PROVIDED that the Borrower, upon the
written request of such Bank or the Administrative Agent, agrees to repay the
amount paid over to the Borrower (plus penalties, interest or other reasonable
charges) to such Bank or the Administrative Agent in the event such Bank or the
Administrative Agent is required to repay such refund to such taxation
authority.
2.14. DEFAULT RATE INTEREST, ETC.
(a) After and during the continuance of any Default or Event of
Default, all amounts outstanding hereunder or under any other Loan Document
(including, without limitation, all principal, interest and fees outstanding)
shall bear interest from and including the due date thereof until paid,
compounded daily and payable on demand, at a rate per annum equal to (i) if such
due date occurs prior to the end of an Interest Period, 2% above the interest
rate applicable to such Loan for such Interest Period until the expiration of
such Interest Period, and thereafter, 2% above the rate then applicable to Prime
Rate Loans; and (ii) in all other cases, 2% above the rate then applicable to
Prime Rate Loans.
(b) After and during the continuance of any Default or Event of
Default, the Letter of Credit fees payable under Section 2.18 shall be increased
to a rate per annum equal to 2% above the rate applicable thereto prior to the
occurrence thereof.
2.15. PAYMENTS NOT AT END OF INTEREST PERIOD. If the Borrower for any
reason makes any payment of principal with respect to any LIBOR Loan on any day
other than the last day of an Interest Period applicable to such LIBOR Loan, or
fails to borrow or continue or convert to a LIBOR Loan after giving a Notice of
Borrowing or Conversion pursuant to Section 2.4, the Borrower shall pay to the
Administrative Agent for the respective accounts of the Banks an amount computed
pursuant to the following formula:
L = (R - T) x P x D
---------------
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L = amount payable to the Administrative Agent for the
accounts of the Banks
R = interest rate on such Loan
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T = effective interest rate per annum at which any readily
marketable bond or other obligation of the United States,
selected at the Administrative Agent's sole discretion,
maturing on or near the last day of the then applicable
Interest Period of such Loan and in approximately the same
amount as such Loan can be purchased by the Administrative
Agent on the day of such payment of principal or failure to
borrow or continue or convert
P = the amount of principal prepaid or the amount of the
requested Loan
D = the number of days remaining in the Interest Period as of
the date of such payment or the number of days of the
requested Interest Period
The Borrower shall pay such amount upon presentation by the Administrative Agent
of a statement setting forth the amount and the Administrative Agent's
calculation thereof (in reasonable detail) pursuant hereto, which statement
shall be deemed true and correct absent manifest error.
2.16. COMPUTATION OF INTEREST AND FEES; MAXIMUM INTEREST. Interest and
all fees payable hereunder on account of Prime Rate Loans shall be computed
daily on the basis of a year of 365 days and paid for the actual number of days
for which due. Interest and all fees payable hereunder on account of LIBOR Loans
shall be computed daily on the basis of 360 days and paid for the actual number
of days for which due. If the due date for any payment of principal is extended
by operation of law, interest shall be payable for such extended time. If any
payment required by this Agreement becomes due on a day that is not a Business
Day such payment may be made on the next succeeding Business Day (subject to
clause (i) of the definition of Interest Period), and such extension shall be
included in computing interest in connection with such payment. Notwithstanding
any other term of this Agreement, the Notes or any other document referred to
herein therein, the maximum amount of interest which may be charged to or
collected from any person liable hereunder or under any Notes by any Bank shall
be absolutely limited to, and shall in no event exceed, the maximum amount of
interest which could lawfully be charged or collected under applicable law
(including, to the extent applicable, the provisions of Section 5197 of the
Revised Statutes of the United States of America, as amended, 12 U.S.C. Section
85, as amended), so that the maximum of all amounts constituting interest under
applicable law, howsoever computed, shall never exceed as to any Person liable
therefor such lawful maximum, and any term of this Agreement, the Notes, the
Letter of Credit applications, or any other document referred to herein or
therein which could be construed as providing for interest in excess of such
lawful maximum shall be and hereby is made expressly subject to and modified by
the provisions of this paragraph.
2.17. LETTERS OF CREDIT. In addition, upon the terms and subject to the
conditions of this Agreement, and in reliance upon the representations,
warranties and covenants of the Borrower made herein, the Issuing Bank agrees to
issue, under the joint responsibilities of the Banks having Revolving Credit
Commitments, to the extent permitted by law and the Uniform Custom Practices of
the International Chamber of Commerce governing Letters of Credit (Publication
No. 500 or any successor thereto), one or more Letters of Credit on the
application and for the account of the Borrower, during the period from the
Closing Date to 14 days prior to the Revolving Credit Maturity Date; PROVIDED
that the Stated
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Amount of Letters of Credit outstanding at any time, PLUS the aggregate amount
of all unreimbursed draws under such outstanding Letters of Credit, shall not at
any time (i) exceed $2,000,000 in the aggregate, or (ii) when added to the then
outstanding amount of Revolving Credit Loans at such time, exceed the aggregate
amount of the Revolving Credit Commitments of all the Banks at such time; and
provided, FURTHER that at the time the Borrower requests the issuance of a
Letter of Credit and after giving effect to the issuance thereof, there has not
occurred and is not continuing a Default or an Event of Default. It is
understood and agreed by the parties hereto that amounts drawn under such
Letters of Credit shall become immediately due and payable by the Borrower to
the Administrative Agent, for the ratable accounts of the Issuing Bank and the
Banks, and shall bear interest at the rate then applicable to Revolving Credit
Loans that are Prime Rate Loans, and, if not paid forthwith, shall be added to
the Loan Account as Revolving Credit Loans and shall be immediately due and
payable upon the Revolving Credit Maturity Date (or, if earlier, upon
acceleration of the Loans). Upon the issuance of each Letter of Credit by the
Issuing Bank, each Bank having a Revolving Credit Commitment shall be deemed to
automatically have purchased a participation in such Letter of Credit in
accordance with its Commitment Percentage of the Revolving Credit Commitment and
each Bank severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Revolving Credit Commitment
Percentage thereof, to reimburse the Issuing Bank on demand for the amount of
each draft paid by such Issuing Bank under each Letter of Credit to the extent
that such amount is not reimbursed by the Borrower pursuant hereto. In addition,
all Letters of Credit shall, unless the Administrative Agent, the Issuing Bank
and the Banks otherwise agree in writing, have a stated expiration date not to
exceed one year and shall, in any event, expire not later than 14 days prior to
the Revolving Credit Maturity Date.
In order to evidence such Letters of Credit, the Borrower shall enter
into, with the Issuing Bank and the Banks, such agreements and execute such
customary instruments and documents as the Administrative Agent, the Issuing
Bank and the Banks reasonably require, including, but not limited to, a letter
of credit application and agreement.
2.17(A). CARRYOVER LC'S. The parties hereto agree that on the Closing
Date the Carryover LC's shall remain outstanding and shall be deemed to have
been issued pursuant to this Agreement by Citizens Bank of Massachusetts, in its
capacity as Issuing Bank hereunder, and such Carryover LC's shall be treated,
for all purposes of this Agreement and the other Loan Documents, as outstanding
Letters of Credit.
2.18. LETTER OF CREDIT FEES. A per annum Letter of Credit fee shall be
payable upon the issuance thereof to the Issuing Bank, for the ratable accounts
of the Banks, on each standby Letter of Credit at a rate per annum equal to the
Applicable LIBOR Margin applicable to Revolving Credit Loans then in effect
multiplied by the face amount of such Letter of Credit, along with, solely for
the account of the Issuing Bank, such documentary issuing, processing and other
fees as are customarily charged by the Issuing Bank on standby Letters of Credit
(including, without limitation, a fronting fee equal to 0.125% multiplied by the
face amount of such Letter of Credit payable on the issuance thereof).
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The Letter of Credit fees for each Letter of Credit shall be payable quarterly
in arrears on the first day of each calendar quarter for the immediately
preceding calendar quarter.
2.19. INTERDEPENDENCE OF BORROWER AFFILIATED GROUP. In order to induce
each of the Banks to enter into this Agreement and the other Loan Documents to
which it is a party, and grant the Loans hereunder and issue the Letters of
Credit, the Borrower and each other member of the Borrower Affiliated Group
hereby jointly and severally represent and warrant that:
(i) the business of each member of the Borrower Affiliated Group shall
benefit from the successful performance of the business of each other member of
the Borrower Affiliated Group, and the Borrower Affiliated Group as a whole;
(ii) each member of the Borrower Affiliated Group has cooperated to the
extent necessary and shall continue to cooperate with each other member of the
Borrower Affiliated Group to the extent necessary in the development and conduct
of each other member of the Borrower Affiliated Group's business, and shall to
the extent necessary share and participate in the formulation of methods of
operation, distribution, leasing, inventory control, and other similar business
matters essential to each member of the Borrower Affiliated Group's business;
(iii) the failure of any member of the Borrower Affiliated Group to
cooperate with all other members of the Borrower Affiliated Group in the conduct
of their respective businesses shall have an adverse impact on the business of
each other member of the Borrower Affiliated Group, and the failure of any
member of the Borrower Affiliated Group to associate or cooperate with all other
members of the Borrower Affiliated Group is reasonably likely to impair the
goodwill of such other members of Borrower Affiliated Group and the Borrower
Affiliated Group as a whole; and
(iv) each member of the Borrower Affiliated Group is accepting joint
and several liability for the Obligations and represents and warrants that the
financial accommodations being provided hereby are for the mutual benefit,
directly and indirectly, of each member of the Borrower Affiliated Group.
SECTION III
CONDITIONS OF LOANS
3.1. CONDITIONS PRECEDENT TO THE TERM LOAN, INITIAL REVOLVING CREDIT
LOAN AND INITIAL LETTERS OF Credit. The obligation of the Banks to make the Term
Loan and the initial Revolving Credit Loan and to issue any Letter of Credit on
the Closing Date, is subject to the fulfillment on the Closing Date of each of
the following conditions precedent:
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3.1.1. LOAN DOCUMENTS, ANCILLARY DOCUMENTS, ETC.
(i) Each of (A) the Loan Documents (other than the Interest
Rate Protection Agreement and the Assignment of Interest Rate Protection
Agreement) and (B) the Ancillary Documents, shall have been duly and properly
authorized, executed and delivered by the respective parties thereto and shall
be in full force and effect on and as of the Closing Date.
(ii) Executed original counterparts of each of the Loan
Documents (other than the Interest Rate Protection Agreement and the Assignment
of Interest Rate Protection Agreement), and copies (or originals, as requested
by the Administrative Agent) of each of the Ancillary Documents, as executed and
delivered by the respective parties thereto, shall have been furnished to the
Administrative Agent.
3.1.2. LEGALITY OF TRANSACTIONS. No change in applicable law
or regulation shall have occurred as a consequence of which it shall have become
and continue to be unlawful (i) for the Administrative Agent or any of the Banks
to perform any of their agreements or obligations under any of the Loan
Documents to which they are a party on the Closing Date, or (ii) for the
Borrower, or any other member of the Borrower Affiliated Group to perform any of
its agreements or obligations under any of the Loan Documents or Ancillary
Documents to which it is a party on the Closing Date.
3.1.3. REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by or on behalf of the Borrower and each
other member of the Borrower Affiliated Group to the Administrative Agent and
the Banks in this Agreement or the other Loan Documents shall be true and
correct when made, shall, for all purposes of this Agreement, be deemed to be
repeated on and as of the Closing Date, and shall be true and correct on and as
of such date.
3.1.4. PERFORMANCE, CONSENTS, NO DEFAULTS, LITIGATION, ETC.
The Borrower and each other member of the Borrower Affiliated Group shall have
duly and properly performed, complied with and observed each of its covenants,
agreements and obligations contained in any of the Loan Documents or Ancillary
Documents to which it is a party or by which it is bound which are required to
be performed on the Closing Date. All necessary consents and/or waivers in
connection with the consummation of the transactions contemplated by the Loan
Documents shall have been obtained by the Borrower and the other members of the
Borrower Affiliated Group and copies thereof shall have been delivered to the
Administrative Agent and the Banks. No event shall have o ccurred on or prior to
the Closing Date and be continuing on such Closing Date, and no condition shall
exist on such Closing Date, which constitutes a Default or an Event of Default.
No litigation or other proceeding shall be continuing, or pending or threatened
in writing, which could have a material adverse effect on the condition
(financial or otherwise), business, assets, operations, income, or prospects of
the Borrower Affiliated Group taken as a whole.
3.1.5. CERTIFIED COPIES OF CHARTER DOCUMENTS. The
Administrative Agent shall have received from each of the Borrower and the other
members of the Borrower
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Affiliated Group a copy, certified by a duly authorized officer of each of the
Borrower and such other members of the Borrower Affiliated Group to be true and
complete on the Closing Date, of (i) its charter or other incorporation
documents, as in effect on such date of certification, certified by the
Secretary of State of its jurisdiction of incorporation, and (ii) its by-laws as
in effect on such date.
3.1.6. PROOF OF CORPORATE ACTION. The Administrative Agent
shall have received from each of the Borrower and each other member of the
Borrower Affiliated Group a copy, certified by a duly authorized officer of each
of the Borrower and such other member of the Borrower Affiliated Group to be
true and complete on the Closing Date, of records of all corporate action taken
by each of the Borrower and such member of the Borrower Affiliated Group to
authorize, as applicable (i) its execution and delivery of the Loan Documents
and the Ancillary Documents to which it is or is to become a party, (ii) its
performance of all of its agreements and obligation under each of such
documents, and (iii) any borrowings and other transactions contemplated by this
Agreement.
3.1.7. INCUMBENCY CERTIFICATE. The Administrative Agent shall
have received from each of the Borrower and each other member of the Borrower
Affiliated Group an incumbency certificate, dated the Closing Date and signed by
the duly authorized officers of each of the Borrower and such other member of
the Borrower Affiliated Group, and giving the name and bearing a specimen
signature of each individual who shall be authorized, as applicable: (i) to
sign, in the name and on behalf of each of the Borrower and such other member of
the Borrower Affiliated Group, each of the Loan Documents and each of the
Ancillary Documents to which it is or is to become a party; (ii) to make
application for the Loans or conversion thereof; and (iii) to give notices to
take other action on its behalf under the Loan Documents.
3.1.8. PROCEEDINGS AND DOCUMENTS. All corporate, governmental
and other proceedings in connection with the transactions contemplated by the
Loan Documents, the Ancillary Documents and all instruments and documents
incidental thereto, shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Administrative Agent shall have received all
such counterpart originals or certified or other copies of all such instruments
and documents as the Administrative Agent shall have reasonably requested.
3.1.9. GOOD STANDING, ETC. The Administrative Agent shall have
received a long-form certificate of the Secretary of State of the respective
jurisdictions of incorporation of each of the Borrower and each other member of
the Borrower Affiliated Group as to each of the Borrower's and such other member
of the Borrower Affiliated Group's legal existence and good standing in such
state and listing all documents on file in the office of said Secretary of
State. The Administrative Agent shall also have received certificates of
qualification to do business from any jurisdictions in which each of the
Borrower and each other member of the Borrower Affiliated Group is required to
be qualified.
3.1.10. FEES. The Borrower shall have complied with its
obligations under Section 2.6 to pay the fees described in the Fee Letter, and
the Letter of Credit fees described in Section 2.18, and all legal fees and
expenses and collateral examination fees and other fees
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and expenses incurred by the Administrative Agent in connection with the
consummation of the transactions contemplated by this Agreement.
3.1.11. LEGAL OPINIONS. The Administrative Agent shall have
received a written legal opinion, addressed to the Administrative Agent and the
Banks, dated the Closing Date, from Xxxxxxx, Procter & Xxxx LLP, counsel to the
Borrower Affiliated Group, in or substantially in the form of EXHIBIT E hereto.
3.1.12. COLLATERAL EXAMINATION; FINANCIAL CONDITION. The
Administrative Agent and each of the Banks shall have completed their due
diligence, including a review of the assets of the Borrower Affiliated Group.
The Administrative Agent and the Banks shall have received, reviewed and
approved, in their reasonable discretion, the Initial Financial Statement and
the Five-Year Projections. The Administrative Agent and the Banks shall be
satisfied that there has been no material adverse change in the condition
(financial or otherwise), business, assets, operations, income or prospects of
the Borrower Affiliated Group taken as a whole since the most recent financial
statements referred to in Section 4.7.
3.1.13. SECURITY DOCUMENTS; U.C.C. SEARCH REPORTS; INSURANCE;
PATENTS, TRADEMARKS AND COPYRIGHTS. The Security Documents and the appropriate
financing statements (in the name of the Borrower and each other member of the
Borrower Affiliated Group) and other documents in respect thereto and necessary
to enable the Administrative Agent to perfect a legal, valid and enforceable
first-priority security interest thereunder for the benefit of the Banks, shall
have been duly executed by each of the Borrower and such other members of the
Borrower Affiliated Group, and filed or recorded, as applicable, in all
appropriate filing offices or other locations necessary for the perfection of
such first-priority interests, and all other actions necessary for the
perfection of such interests (other than with respect to motor vehicles) shall
have been completed. The Administrative Agent shall have received reports
concerning the results of searches of the Patent and Trademark Office, the
Copyright Office and Uniform Commercial Code filing offices for the Borrower and
each other member of the Borrower Affiliated Group in each jurisdiction where
Collateral or other assets are located made no more than 30 days prior to the
Closing Date. In addition, the Administrative Agent shall have received
satisfactory evidence that all Cash Management Agreements have been delivered,
and that necessary arrangements thereunder have become effective. The
Administrative Agent shall have received the original stock certificates,
together with stock powers endorsed in blank, for (i) all of the issued and
outstanding capital stock of each member of the Borrower Affiliated Group except
Xxx-Xxxx and any Foreign Subsidiary (as defined in the Xxx-Xxxx Pledge
Agreement), and (ii) 65% of the issued and outstanding capital stock of any
Foreign Subsidiary. The Administrative Agent shall have received satisfactory
evidence that liability insurance and casualty insurance, including any
insurance as is required by the Security Documents to be in effect in respect of
all real and personal property and fixtures, of each of the Borrower and each
other member of the Borrower Affiliated Group is in effect and the interest of
the Administrative Agent as mortgagee, loss payee and additional insured has
been duly endorsed upon all instruments of insurance issued in respect of such
property and in respect of liability. All such insurance shall provide for 30
days' advance written notice to the Administrative Agent of any cancellation
thereof. The Administrative Agent shall also have received signed Landlord
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Waivers and/or Bailee Notices, as applicable, for each location leased by the
Borrower or any other member of the Borrower Affiliated Group, each in form and
substance satisfactory to the Administrative Agent. Arrangements satisfactory to
the Administrative Agent shall have been made for the due filing of each of the
Services Patent and Trademark Security Agreement and the Intirion Patent and
Trademark Security Agreement in the United States Patent and Trademark Office.
3.1.14. SOLVENCY. The Administrative Agent and the Banks shall
have received reasonably satisfactory evidence that the Borrower and each other
member of the Borrower Affiliated Group is solvent, and will be solvent after
giving effect to the Loans to be made hereunder on the Closing Date.
3.1.15. PAYOFF AND RELEASE LETTER. The Administrative Agent
shall have received a payoff and release letter (and related UCC-3 financing
statements or other discharges) in form and substance satisfactory to the
Administrative Agent and the Banks from Citizens Bank of Massachusetts (as
assignee of State Street Bank and Trust Company), as Agent, and arrangements
completely satisfactory to the Banks shall have been made by the Borrower with
respect thereto; and neither the Borrower nor any other member of the Borrower
Affiliated Group shall have any outstanding Indebtedness, other than as
permitted by Section 6.1.
3.2. CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT. The
obligation of each Bank to make each Loan and issue each Letter of Credit,
including the initial Loans, or continue or convert Loans to Loans of the other
type, is further subject to the following conditions:
(a) timely receipt by the Administrative Agent and the Banks of the
Notice of Borrowing or Conversion as provided in Section 2.4;
(b) the representations and warranties contained in Section IV shall be
true and accurate in all material respects on and as of the date of such Notice
of Borrowing or Conversion and on the effective date of the making, continuation
or conversion of each Loan as though made at and as of each such date (except to
the extent that such representations and warranties expressly relate to an
earlier date), and no Default or Event of Default shall have occurred and be
continuing, or would result from such Loan;
(c) the resolutions referred to in Section 3.1.6 shall remain in full
force and effect; and
(d) no change shall have occurred in any law or regulation or
interpretation thereof that, in the opinion of counsel for the Administrative
Agent or any Bank, would make it illegal or against the policy of any
governmental agency or authority for such Bank to make Loans hereunder.
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The making of each Loan shall be deemed to be a representation and
warranty by the Borrower on the date of the making, continuation or conversion
of such Loan as to the accuracy of the facts referred to in subsection (b) of
this Section 3.2.
SECTION IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Banks to enter into
this Agreement and to make Loans and issue Letters of Credit hereunder, the
Borrower and each other member of the Borrower Affiliated Group jointly and
severally represent and warrant to the Administrative Agent and each Bank that:
4.1. ORGANIZATION AND QUALIFICATION. The Borrower and each other member
of the Borrower Affiliated Group (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation as indicated on EXHIBIT D hereto, (b) has all requisite corporate
power to own its property and conduct its business as now conducted and as
presently contemplated, and (c) is duly qualified and in good standing as a
foreign corporation and is duly authorized to do business in each jurisdiction
where the nature of its properties or business requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, condition (financial or otherwise), assets, operations
or prospects of the Borrower Affiliated Group taken as a whole.
4.2. CORPORATE AUTHORITY. The execution, delivery and performance of
each of the Loan Documents and Ancillary Documents to which the Borrower or any
other member of the Borrower Affiliated Group is or is to become a party and the
transactions contemplated hereby and thereby are within the corporate power and
authority of the Borrower or such member of the Borrower Affiliated Group and
have been authorized by all necessary corporate proceedings, and do not and will
not (a) require any consent or approval of any creditors, trustees for creditors
or shareholders of the Borrower or such member of the Borrower Affiliated Group
(other than any such consent that has been obtained prior to the Closing Date
and delivered to the Administrative Agent), (b) contravene any provision of the
charter documents or by-laws of the Borrower or such member of the Borrower
Affiliated Group or any law, rule or regulation applicable to the Borrower or
such member of the Borrower Affiliated Group, (c) contravene any provision of,
or constitute an event of default or event that, but for the requirement that
time elapse or notice be given, or both, would constitute an event of default
under, any other agreement, instrument, order or undertaking binding on the
Borrower or such member of the Borrower Affiliated Group, or (d) result in or
require the imposition of any Encumbrance (other than as required by the Loan
Documents) on any of the properties, assets or rights of the Borrower or such
member of the Borrower Affiliated Group.
4.3. VALID OBLIGATIONS. Each of the Loan Documents and Ancillary
Documents to which the Borrower or any other member of the Borrower Affiliated
Group is or is to
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become a party and all of their respective terms and provisions are the legal,
valid and binding obligations of the Borrower or such member of the Borrower
Affiliated Group enforceable in accordance with their respective terms, except
as limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as the
remedy of specific performance or of injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
4.4. CONSENTS OR APPROVALS. The execution, delivery and performance of
each of the Loan Documents and Ancillary Documents to which the Borrower or any
other member of the Borrower Affiliated Group is or is to become a party and the
transactions contemplated herein and therein do not require any approval or
consent of, or filing or registration with, any governmental or other agency or
authority, or any other party, except filings under the Uniform Commercial Code
and with the Patent and Trademark Office in connection with the Collateral, and
except for consents required in connection with the Collateral Assignment of
Material Contracts and Licenses.
4.5. TITLE TO PROPERTIES; ABSENCE OF ENCUMBRANCES. Each of the Borrower
and each other member of the Borrower Affiliated Group has good and marketable
title to all of the properties, assets and rights of every name and nature now
purported to be owned by it, including, without limitation, such properties,
assets and rights as are reflected in the Initial Financial Statement (except
such properties, assets or rights as have been disposed of in the ordinary
course of business since the date thereof), free from all Encumbrances except
Permitted Encumbrances, and, except as so disclosed, free from all defects of
title that might materially adversely affect any of such properties, assets or
rights. All such properties and assets and all properties which are leaseholds
are free and clear of all title defects or objections, liens, claims, charges,
security interests and other Encumbrances of any nature whatsoever (except for
Permitted Encumbrances), and are not, in the case of real property, subject to
any rights of way, building, use or other restrictions, easements, exceptions,
variances, reservations or limitations of any nature whatsoever except, with
respect to all such properties and assets, (i) provisions of existing building
and zoning laws, PROVIDED that such provisions would not materially interfere
with the Borrower's or any other member of the Borrower Affiliated Group's use
of such properties, (ii) liens for current taxes not yet due, and (iii) as
otherwise disclosed on EXHIBIT D hereto. The rights, properties and other assets
presently owned, leased or licensed by each of the Borrower and each other
member of the Borrower Affiliated Group and described elsewhere in this
Agreement include all rights, properties and other assets necessary to permit
the Borrower and such member of the Borrower Affiliated Group to conduct its
businesses in all material respects in the same manner as its businesses have
been conducted prior to the date hereof. At the time the Borrower or any other
member of the Borrower Affiliated Group pledges, sells, assigns or transfers to
the Administrative Agent any instrument, document of title, security, chattel
paper or other property (including Inventory, contract rights and Accounts) or
any proceeds or products thereof, or any interest therein, the Borrower or such
member of the Borrower Affiliated Group shall be the lawful owner thereof and
shall have good right to pledge, sell, assign or transfer the same; none of such
properties shall have been pledged, sold, assigned or transferred to any Person
other than the
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Administrative Agent or in any way encumbered; and the Borrower or such member
of the Borrower Affiliated Group shall defend the same against the claims and
demands of all Persons.
4.6. LOCATION OF RECORDS AND COLLATERAL; NAME CHANGE. The Borrower
shall give the Administrative Agent written notice of each location (including
the street address (other than for Laundry Facility Agreements), the city or
town, and the State) at which Collateral in excess of an aggregate amount of
$100,000 is or will be kept and each office of the Borrower and each other
member of the Borrower Affiliated Group at which the records of the Borrower and
such member of the Borrower Affiliated Group are kept. Except as provided above
or as such notice is given, all Collateral owned by the Borrower and each other
member of the Borrower Affiliated Group is and shall be kept, and all records of
the Borrower and each other member of the Borrower Affiliated Group pertaining
to Accounts and contract rights are and shall be kept, at such location as
appears on EXHIBIT D hereto. The Borrower shall give the Administrative Agent 30
days' prior written notice of any change in its name or corporate form or any
change in the name or names under which the Borrower's or any other member of
the Borrower Affiliated Group's business is transacted.
4.7. FINANCIAL STATEMENTS. The Borrower has furnished to the
Administrative Agent and the Banks the Consolidated balance sheet of the
Borrower Affiliate Group as of December 31, 1999 and the related Consolidated
statements of income, changes in stockholders' equity and cash flow of the
Borrower Affiliated Group for the fiscal year then ended, and related footnotes,
audited and certified by PriceWaterhouseCoopers, LLP and prepared in accordance
with GAAP. The Borrower has also furnished to the Administrative Agent and the
Banks the Consolidated balance sheet of the Borrower Affiliated Group as of
March 31, 2000 and the related Consolidated statements of income, changes in
stockholders' equity and cash flow of the Borrower Affiliated Group for the
fiscal quarter then ended, prepared in accordance with GAAP and certified by
management of the Borrower (such quarterly financial statements, along with the
annual audited financial statements referred to above, being collectively
referred to herein as the "Initial Financial Statement"). The Borrower has also
furnished to the Administrative Agent and the Banks the unaudited PRO FORMA
Consolidated projected balance sheets of the Borrower Affiliated Group for the
next 5 fiscal years, and its related unaudited Consolidated projected statements
of income, changes in stockholders' equity and cash flow for the next 5 fiscal
years, in each case prepared as if the Loans had been made as of the Closing
Date (the "Five-Year Projections"). The Borrower has also furnished to the
Administrative Agent and the Banks management reports for the Borrower
Affiliated Group prepared for the fiscal years ended December 31, 1998 and
December 31, 1999. The Initial Financial Statements were prepared in accordance
with GAAP and present fairly the financial position of the Borrower Affiliated
Group as of such dates and the results of the operations of the Borrower
Affiliated Group for such periods. There are no liabilities, contingent or
otherwise, not disclosed in the Initial Financial Statements that involve a
material amount. The Five-Year Projections were prepared in good faith by the
Borrower based upon reasonable assumptions and on a basis consistent with the
Initial Financial Statements.
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4.8. CHANGES. Since the date of the Initial Financial Statement, there
have been no changes in the assets, liabilities, financial condition, business
or prospects of the Borrower Affiliated Group taken as a whole, the effect of
which has, individually or in the aggregate, been materially adverse.
4.9. DEFAULTS. As of the date of this Agreement, no Default or Event
of Default exists.
4.10. TAXES. Each of the Borrower and each other member of the Borrower
Affiliated Group has filed all federal, state and other tax returns required to
be filed, and all taxes, assessments and other governmental charges due from the
Borrower or such other member of the Borrower Affiliated Group have been fully
paid or adequate reserves have been established therefor. Except as set forth on
EXHIBIT D hereto, neither the Borrower nor any other member of the Borrower
Affiliated Group has executed any waiver of limitations in respect of tax
liabilities. Each member of the Borrower Affiliated Group has established on its
books reserves adequate for the payment of all federal, state and other tax
liabilities.
4.11. LITIGATION. Except as set forth on EXHIBIT D hereto, there is no
litigation, arbitration, claim, proceeding or investigation pending or
threatened against the Borrower or any other member of the Borrower Affiliated
Group that, if adversely determined, could result in a material judgment not
fully covered by insurance, could result in a forfeiture of all or any
substantial part of the property of the Borrower or such other member of the
Borrower Affiliated Group, or could otherwise have a material adverse effect on
the business, condition (financial or otherwise), assets, operations or
prospects of the Borrower Affiliated Group taken as a whole, or could reasonably
be expected to adversely affect the ability of the Borrower or such other member
of the Borrower Affiliated Group to pay and perform the Obligations.
4.12. SUBSIDIARIES AND DIVISIONS. As of the date of this Agreement, no
member of the Borrower Affiliated Group has any Subsidiaries or business
divisions except as set forth on EXHIBIT D hereto with respect to each such
member of the Borrower Affiliated Group.
4.13. INVESTMENT COMPANY ACT. Neither the Borrower nor any other member
of the Borrower Affiliated Group is subject to regulation under the Investment
Company Act of l940, as amended.
4.14. COMPLIANCE WITH ERISA. Each of the Borrower and each other member
of the Borrower Affiliated Group and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all material respects
with the applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA; and no "prohibited
transaction" or "reportable event" (as such terms are defined in ERISA) has
occurred with respect to any Plan.
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4.15. ENVIRONMENTAL MATTERS.
(a) Each of the Borrower and each other member of the Borrower
Affiliated Group has obtained all permits, licenses and other authorizations
which are required under all Environmental Laws, except to the extent failure to
have any such permit, license or authorization would not have a material adverse
effect on the business, condition (financial or otherwise), assets, operations
or prospects of the Borrower Affiliated Group taken as a whole. Each of the
Borrower and each other member of the Borrower Affiliated Group is in compliance
with the terms and conditions of all such permits, licenses and authorizations,
and is also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable Environmental Law or in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply would
not have a material adverse effect on the business, condition (financial or
otherwise), assets, operations or prospects of the Borrower Affiliated Group
taken as a whole.
(b) No notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed and no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the Borrower
or any other member of the Borrower Affiliated Group to have any permit, license
or authorization required in connection with the conduct of its business or with
respect to any Environmental Laws, including, without limitation, Environmental
Laws relating to the generation, treatment, storage, recycling, transportation,
disposal or release of any Hazardous Materials. Neither the Borrower nor any
other member of the Borrower Affiliated Group has been identified as a
potentially responsible party (as that term has been construed pursuant to
CERCLA, or any similar foreign, state or local laws) at any site other than the
sites listed and described in EXHIBIT D.
(c) No material oral or written notification of a release of a
Hazardous Material has been given or filed by or on behalf of the Borrower or
any other member of the Borrower Affiliated Group and no property now or
previously owned, leased or used by the Borrower or any other member of the
Borrower Affiliated Group is listed or proposed for listing on the National
Priorities List under CERCLA, or on any similar foreign, state or local list of
sites requiring investigation or clean-up.
(d) There are no Encumbrances arising under or pursuant to any
Environmental Laws on any of the real property or properties owned, leased or
used by the Borrower or any other member of the Borrower Affiliated Group and no
governmental actions have been taken or are in process which could subject any
of such properties to such Encumbrances, or as a result of which the Borrower or
any other member of the Borrower Affiliated Group would be required to place any
notice or restriction relating to the presence of Hazardous Materials at any
property owned by it in any deed to such property.
(e) Neither the Borrower nor any other member of the Borrower
Affiliated Group, nor, to the knowledge of the Borrower Affiliated Group, after
due inquiry, any previous
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owner, tenant, occupant or user of any property owned, leased or used by the
Borrower or any other member of the Borrower Affiliated Group has (i) engaged in
or permitted any operations or activities upon or any use or occupancy of such
property, or any portion thereof, for the purpose of or in any way involving the
handling, manufacture, treatment, storage, use, generation, release, discharge,
refining, dumping or disposal (whether legal or illegal, accidental or
intentional) of any Hazardous Materials on, under, in or about such property,
except to the extent commonly used in day to day operations of such property and
in such case only in compliance with all Environmental Laws, or (ii) transported
any Hazardous Materials to, from or across such property except to the extent
commonly used in day to day operations of such property and, in such case, in
compliance with all Environmental Laws; nor to the knowledge of any member of
the Borrower Affiliated Group have any Hazardous Materials migrated from other
properties upon, about or beneath such property; nor, to the knowledge of the
Borrower Affiliated Group, are any Hazardous Materials presently constructed,
deposited, stored or otherwise located on, under, in or about such property
except to the extent commonly used in day to day operations of such property
and, in such case, in compliance with all Environmental Laws.
4.16. DISCLOSURE. No representations and warranties made by each member
of the Borrower Affiliated Group in this Agreement, any other Loan Document or
in any other agreement, instrument, document, certificate, statement or letter
furnished to the Administrative Agent, the Arranger, or the Banks by or on
behalf of any member of the Borrower Affiliated Group, and no other factual
information heretofore or contemporaneously furnished by or on behalf of any
member of the Borrower Affiliated Group to the Administrative Agent, the
Arranger or the Banks, in connection with any of the transactions contemplated
by any of the Loan Documents or Ancillary Documents contains any untrue
statement of material fact or omits to state a material fact necessary in order
to make the statements contained therein not materially misleading in light of
the circumstances in which they are made. Except as disclosed herein, there is
no fact known to any member of the Borrower Affiliated Group which materially
adversely affects, or which would in the future materially adversely affect, the
business, condition (financial or otherwise), assets, operations or prospects of
the Borrower Affiliated Group taken as a whole.
4.17. SOLVENCY. Both before and after giving effect to all Indebtedness
incurred by the Borrower on the Closing Date, neither the Borrower nor any such
member of the Borrower Affiliated Group (i) is Insolvent, or will be rendered
Insolvent by the Indebtedness incurred in connection therewith, (ii) will be
left with unreasonably small capital with which to engage in its business, even
allowing for a reasonable margin of error in the projections of the future
performance of the Borrower and such other members of the Borrower Affiliated
Group, (iii) will have incurred Indebtedness beyond its ability to pay such
Indebtedness as it matures, or (iv) will fail to have assets (both tangible and
intangible) having a present fair salable value in excess of the amount required
to pay the probable liability on its then existing debts (whether matured or
unmatured, liquidated or unliquidated, absolute fixed or contingent).
4.18. COMPLIANCE WITH STATUTES, ETC. Each of the Borrower and each
other member of the Borrower Affiliated Group is in compliance with all
applicable statutes, regulations and
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orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except for such non-compliances as will not, in the aggregate,
have a material adverse effect on the business, condition (financial or
otherwise), assets, operations or prospects of the Borrower Affiliated Group
taken as a whole.
4.19. CAPITALIZATION. On and as of the Closing Date, the authorized
capital stock, and the number of issued and outstanding shares of capital stock
of each member of the Borrower Affiliated Group is as set forth on EXHIBIT D
hereto. All such outstanding shares of capital stock of each member of the
Borrower Affiliated Group (other than Xxx-Xxxx) have been duly and validly
issued, in compliance with all legal requirements relating to the authorization
and issuance of shares of capital stock, and are fully paid and non-assessable.
No member of the Borrower Affiliated Group (other than Xxx-Xxxx) has outstanding
any other securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock, in each case except as set forth in EXHIBIT D with respect to
such member of the Borrower Affiliated Group.
4.20. LABOR RELATIONS. Neither the Borrower nor any other member of the
Borrower Affiliated Group is engaged in any unfair labor practice. There is (i)
no unfair labor practice complaint pending or threatened against the Borrower or
any other member of the Borrower Affiliated Group before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the Borrower or
any other member of the Borrower Affiliated Group or, to the knowledge of the
Borrower Affiliated Group, threatened against it, (ii) no labor dispute,
slowdown or stoppage pending against the Borrower or any other member of the
Borrower Affiliated Group or, to the knowledge of the Borrower Affiliated Group,
threatened against the Borrower or any other member of the Borrower Affiliated
Group, and (iii) to the knowledge of the Borrower Affiliated Group, no union
representation question exists with respect to the employees of the Borrower or
any other member of the Borrower Affiliated Group and no union organizing
activities are taking place.
4.21. CERTAIN TRANSACTIONS. Except as set forth on EXHIBIT D, none of
the officers, partners, directors, or employees of any member of the Borrower
Affiliated Group is presently a party to any transaction with any other member
of the Borrower Affiliated Group (other than for services as employees, officers
and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
officer, partner, director or such employee or, to the knowledge of the Borrower
Affiliated Group, any corporation, partnership, trust or other entity in which
any officer, partner, director, or any such employee or natural person related
to such officer, partner, director or employee or other Person in which such
officer, partner, director or employee has a direct or indirect beneficial
interest, has a substantial direct or indirect beneficial interest or is an
officer, director, trustee or partner.
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4.22. RESTRICTIONS ON THE BORROWER AFFILIATED GROUP. No member of the
Borrower Affiliated Group is a party to or bound by any contract, agreement or
instrument, or subject to any charter or other corporate restriction, materially
and adversely affecting the business, property, assets, operations or condition
(financial or otherwise) of the Borrower Affiliated Group taken as a whole.
4.23. REAL PROPERTY LEASES AND LAUNDRY FACILITY AGREEMENTS. EXHIBIT D
hereto contains a complete list of all leases, occupancy agreements and all
amendments thereto and all other documents affecting rights and obligations
thereunder, including without limitation, assignments and subleases, pursuant to
which the Borrower or any other member of the Borrower Affiliated Group leases
real property, and license agreements pursuant to which a third party would have
the right to enter upon the leased premises (herein individually referred to as
a "Real Property Lease" and collectively referred to as the "Real Property
Leases") other than agreements and other documents pursuant to which the
Borrower or any other member of the Borrower Affiliated Group installs, operates
and maintains certain pay per use laundry equipment and/or rents the same to an
owner, manager or any other Person affiliated with the premises at which such
equipment is located (herein individually referred to as a "Laundry Facility
Agreement" and collectively referred to as the "Laundry Facility Agreements").
The Borrower has made available to the Banks and/or their counsel, at the
Borrower's headquarters, all written Laundry Facility Agreements for their
review at such headquarters. There are no leases, occupancy agreements or other
documents, other than the Real Property Leases and the Laundry Facility
Agreements, affecting the properties or the interests of the Borrower or any
other member of the Borrower Affiliated Group. The copies of the Real Property
Leases and Laundry Facility Agreements heretofore delivered by the Borrower to
each Bank and the Laundry Facility Agreements requested by and made available to
the Banks and/or their counsel are true, correct and complete copies thereof and
each of such Real Property Leases and each of such Laundry Facility Agreements
is in full force and effect in accordance with the terms thereof. Neither the
Borrower nor any other member of the Borrower Affiliated Group nor, to the
knowledge of the Borrower Affiliated Group, any other party thereto is in
default under the applicable Real Property Lease or Laundry Facility Agreement
or has given or received any notice of cancellation or termination of such Real
Property Lease or Laundry Facility Agreement (other than expirations occurring
in the ordinary course of business consistent with past practices) or
condemnation of the premises which is the subject of any Real Property Lease or
Laundry Facility Agreement. To the knowledge of the Borrower Affiliated Group,
all work to be performed by any other party to each Real Property Lease and
Laundry Facility Agreement has been completed and there are no claims pending or
threatened against any such third party for failure to have performed or
completed any such work.
4.23(A). LAUNDRY FACILITY AGREEMENTS. Xxx-Xxxx is not party to any of
the Laundry Facility Agreements. Services (or a predecessor by merger or
otherwise in interest to Services) is the member of the Borrower Affiliated
Group who is a party to each Laundry Facility Agreement. The rights granted to
and exercised by the Borrower and other members of the Borrower Affiliated Group
under the Laundry Facility Agreements include Borrower's and other members of
the Borrower Affiliated Group's right to install
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and operate certain pay per use laundry equipment on the premises which are the
subject of the Laundry Facility Agreements and maintain and service such
equipment; and the Borrower and other members of the Borrower Affiliated Group
do not exercise control over, have exclusive possession of or maintain such
premises. The occupants of the buildings located on the subject premises have
open access to the common areas where the laundry equipment is located,
restricted only upon terms and conditions as may be imposed in the sole
discretion of the other party to the applicable Laundry Facility Agreement.
Neither Services nor any other member of the Borrower Affiliated Group has
received a notice under any of the Laundry Facility Agreements informing such
member of the Borrower Affiliated Group of a substantial decrease in the
occupancy rate, or of newly granted permission for occupants to install
individual laundry equipment, in any building to which such Laundry Facility
Agreement relates (other than in connection with expirations occurring in the
ordinary course of business consistent with past practices).
4.24. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Except as otherwise set
forth on EXHIBIT D hereto, each of the Borrower and each other member of the
Borrower Affiliated Group possesses all franchises, patents, copyrights,
trademarks, tradenames, service marks, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of its business as
substantially now conducted without known conflict with any rights of others
and, in each case, free of any Encumbrance that is not a Permitted Encumbrance.
4.25. YEAR 2000 COMPLIANCE. All reprogramming required to permit the
proper functioning, in and following the year 2000, of the Borrower Affiliated
Group's computer and management information systems, and the equipment used in
the operation of its laundry, reprographic and "microfridge" businesses, and the
testing of all such systems and equipment, as so reprogrammed, has been
completed. The computer and management information systems of the Borrower
Affiliated Group, as well as the equipment used in connection with its laundry,
reprographic and "microfridge" businesses, are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be
sufficient to permit the Borrower Affiliated Group to conduct their respective
businesses as conducted prior to January 1, 2000 without any material adverse
effect on the Borrower Affiliated Group taken as a whole.
4.26. COLLATERAL. All of the Obligations of the Borrower Affiliated
Group to the Administrative Agent and the Banks under or in respect of the Loan
Documents will, at all times from and after the execution and delivery of each
of the Security Documents, be entitled to the benefits of and be secured by each
of such Security Documents to the extent provided therein.
4.27. MATERIAL CONTRACTS. EXHIBIT D sets forth each of the contracts
(other than the Leases and Laundry Facility Agreements), agreements and licenses
which is material to the operations or business of the Borrower or any other
member of the Borrower Affiliated Group (the "Material Contracts").
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SECTION V
AFFIRMATIVE COVENANTS
So long as any Bank has any commitment to make Loans or issue Letters
of Credit hereunder or any Loan or other Obligation hereunder remains
outstanding, the Borrower, and to the extent referred to therein (including to
the extent the Borrower has agreed to cause the members of the Borrower
Affiliated Group to comply), each other member of the Borrower Affiliated Group,
jointly and severally covenant as follows:
5.1. FINANCIAL STATEMENTS AND OTHER REPORTING REQUIREMENTS. The
Borrower shall furnish to the Administrative Agent:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower Affiliated Group, a Consolidated balance
sheet as of the end of, and a related Consolidated statement of income, changes
in stockholders' equity and cash flow for, such year, prepared in accordance
with GAAP and audited and certified by a "Big Five" accounting firm; and,
concurrently with such financial statements, a copy of said certified public
accountants' management letter and a written statement by such accountants that,
in the making of the audit necessary for their report and opinion upon such
financial statements they have obtained no knowledge of any Default or Event of
Default under any of Sections 6.6, 6.7, 6.8, 6.9 or 6.10, or, if in the opinion
of such accountants any such Default or Event of Default exists under any of
Sections 6.6, 6.7, 6.8, 6.9 or 6.10, they shall disclose in such written
statement the nature and status thereof;
(b) as soon as available, but in any event within 45 days after the end
of each fiscal quarter of the Borrower Affiliated Group, a Consolidated balance
sheet as of the end of, and a related Consolidated statement of income, changes
in stockholders' equity and cash flow for, the portion of the fiscal year then
ended and for the fiscal quarter then ended, prepared in accordance with GAAP
(without footnotes) and certified by the chief financial officer of each member
of the Borrower Affiliated Group, but subject, however, to normal, recurring
year-end adjustments that shall not in the aggregate be materially adverse;
(c) at least 30 days before the first day of each fiscal year of the
Borrower Affiliated Group, (i) an annual operating budget presented on a
quarterly basis for such succeeding fiscal year, and (ii) Consolidated PRO FORMA
projections of the Borrower Affiliated Group for such succeeding fiscal year in
form acceptable to the Administrative Agent and the Banks (it being recognized
by the Administrative Agent and the Banks that projections as to future results
are not to be viewed as facts and that the actual results for the period or
periods covered by the projections may differ from the projected results);
(d) concurrently with the delivery of each financial statement pursuant
to subsections (a) and (b) of this Section 5.l, a report in substantially the
form of EXHIBIT F hereto signed on behalf of the Borrower Affiliated Group by
the chief financial officer of Xxx-Xxxx, and including, without limitation,
computations in reasonable detail evidencing compliance with the covenants
contained in Sections 6.6 through 6.10 hereof, inclusive;
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(e) promptly after the receipt thereof by the Borrower or any other
member of the Borrower Affiliated Group, copies of any reports submitted to any
member of the Borrower Affiliated Group by independent public accountants in
connection with any interim review of the accounts of the Borrower or such
member of the Borrower Affiliated Group made by such accountants;
(f) promptly after the same are available, copies of all financial
statements, proxy material, and reports as the Borrower or any other member of
the Borrower Affiliated Group shall send to its stockholders or that the
Borrower or any other member of the Borrower Affiliated Group may file with any
governmental authority at any time having jurisdiction over the Borrower or such
member of the Borrower Affiliated Group;
(g) if and when the Borrower or any other member of the Borrower
Affiliated Group gives or is required to give notice to the PBGC of any
"Reportable Event" (as defined in Section 4043 of ERISA) with respect to any
Plan that might constitute grounds for a termination of such Plan under Title IV
of ERISA, or knows that any member of the Controlled Group or the plan
administrator of any Plan has given or is required to give notice of any such
Reportable Event, a copy of the notice of such Reportable Event given or
required to be given to the PBGC or, if such notice is not given to the PBGC, a
description of the content of the notice that would be required to be given;
(h) immediately upon becoming aware of the existence of any condition
or event (i) that constitutes a Default or Event of Default, written notice
thereof specifying the nature and duration thereof and the action being or
proposed to be taken with respect thereto or (ii) affecting the Borrower or any
other member of the Borrower Affiliated Group which could reasonably be expected
to have a material adverse effect on the business, condition (financial or
otherwise), assets, operations or prospects of the Borrower Affiliated Group
taken as a whole, written notice thereof specifying the nature thereof and the
action being or proposed to be taken with respect thereto; and immediately upon
receipt thereof, copies of any notice (whether formal or informal) of any
cancellation, termination or material change in any insurance maintained by any
member of the Borrower Affiliated Group;
(i) promptly upon becoming aware of any litigation or of any
investigative proceedings by any Person, including, without limitation, any
governmental agency or authority commenced or threatened against the Borrower or
any other member of the Borrower Affiliated Group of which it has notice, or of
a material change in any such existing litigation or proceedings, the outcome of
which would or might have a materially adverse effect on the assets, business,
condition (financial or otherwise), operations or prospects of the Borrower
Affiliated Group taken as a whole, written notice thereof and the action being
or proposed to be taken with respect thereto;
(j) promptly upon becoming aware of any investigative proceedings by a
governmental agency or authority commenced or threatened against the Borrower or
any other member of the Borrower Affiliated Group regarding any potential
violation of Environmental Laws or any spill, release, discharge or disposal of
any Hazardous Material,
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written notice thereof, copies of all correspondence, reports and other
materials furnished to or prepared by any member of the Borrower Affiliated
Group (or its representatives) in connection therewith and the action being or
proposed to be taken with respect thereto;
(k) prior to the occurrence of an Event of Default, the Borrower shall
make available for review at its headquarters on a quarterly basis all Laundry
Facility Agreements then in effect, and, subject to the last paragraph of this
Section 5.1, during the continuance of an Event of Default shall furnish to the
Administrative Agent upon its request a list or lists of all Laundry Facility
Agreements then in effect, including location of the premises, date of
expiration of the Laundry Facility Agreement and number of machines at the
premises for each such Laundry Facility Agreement; and
(l) from time to time, with reasonable promptness, such other financial
data and other information or documents (financial or non-financial) about the
Borrower and each other member of the Borrower Affiliated Group (including
accountants' management letters and annual budgets) as the Administrative Agent
or any Bank may reasonably request.
The Administrative Agent and the Banks agree that they will
handle the list or lists provided to them pursuant to Section 5.1(k) in the same
manner as set forth in Section 5.5 with respect to the information referred to
therein, PROVIDED that any such list or lists may be disclosed in connection
with any enforcement action being taken by the Administrative Agent hereunder.
5.2. CONDUCT OF BUSINESS. The Borrower shall, and shall cause each
other member of the Borrower Affiliated Group to:
(a) duly observe and comply in all material respects with all
applicable laws and requirements of any governmental authorities relative to its
corporate existence, rights and franchises, to the conduct of its business and
to its property and assets (including without limitation all Environmental Laws
and ERISA), and shall maintain and keep in full force and effect all licenses
and permits necessary in any material respect to the proper conduct of its
business;
(b) maintain its corporate existence (except that immaterial
Subsidiaries of Services may be dissolved (with any assets being transferred to
Services) or merged with and into Services);
(c) remain engaged in substantially the same fields of business as
those in which it is now engaged, except that the Borrower or any other member
of the Borrower Affiliated Group may withdraw from any business activity which
its Board of Directors reasonably deems unprofitable or unsound, PROVIDED that
promptly after such withdrawal, the Borrower shall provide the Administrative
Agent with written notice thereof; and
(d) at least 10 Business Days prior to forming any Subsidiary, deliver
to the Administrative Agent the Borrower's agreement, and immediately upon
formation, such Subsidiary's agreement, in each case reasonably satisfactory to
counsel for the Administrative
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Agent, that the Subsidiary shall be a member of the Borrower Affiliated Group,
and shall be bound by the terms of this Agreement, the other Security Documents
and the related documents and instruments as a "Borrower" hereunder and
thereunder, as a guarantor or otherwise as the Administrative Agent may
determine in its sole discretion, and, without in any way limiting the
foregoing, simultaneously with the formation of any such Subsidiary, the
Borrower or other applicable member of the Borrower Affiliated Group shall
pledge 100% of the issued and outstanding stock of such newly-formed Subsidiary
(or 65% with respect to any Foreign Subsidiary) to the Administrative Agent for
the ratable benefit of the Administrative Agent and the Banks.
5.3. MAINTENANCE AND INSURANCE. The Borrower shall, and shall cause
each other member of the Borrower Affiliated Group to, maintain its properties
in good repair, working order and condition (normal wear and tear excepted) as
required for the normal conduct of its business and from time to time the
Borrower will make or cause to be made, and cause each other member of the
Borrower Affiliated Group to make or cause to be made, all necessary and proper
repairs, renewals, replacements, additions and improvements thereto so that the
business of the Borrower and such other members of the Borrower Affiliated Group
may be properly and advantageously conducted at all times and shall maintain or
cause to be maintained all Leases as may be required for the conduct of the
Borrower's and each other member of the Borrower Affiliated Group's business.
The Borrower shall and shall cause each other member of the Borrower Affiliated
Group to at all times maintain liability and casualty insurance with financially
sound and reputable insurers in such amounts as the officers of the Borrower and
such other member of the Borrower Affiliated Group in the exercise of their
reasonable judgment deem to be adequate. The Administrative Agent shall be named
as mortgagee, loss payee and additional insured and shall be given 30 days'
prior written notice of any cancellation or modification of insurance. If the
Borrower or any other member of the Borrower Affiliated Group fails to provide
such insurance, the Administrative Agent, in its sole discretion, may provide
such insurance and charge the cost thereof to the Loan Account or to the
Borrower's or any such other member of the Borrower Affiliated Group's deposit
account with the Administrative Agent. Any payment not recovered from the
Borrower or any other member of the Borrower Affiliated Group shall bear
interest at the Prime Rate plus the Applicable Prime Rate Margin then in effect
applicable to Revolving Credit Loans. The Administrative Agent shall not, by the
fact of approving, disapproving, accepting, obtaining or failing to obtain any
such insurance, incur liability for the form or legal sufficiency of insurance
contracts, solvency of insurance companies or payment of lawsuits, and the
Borrower and each other member of the Borrower Affiliated Group hereby expressly
assumes full responsibility therefor and liability, if any, thereunder. The
Borrower shall, and shall cause each other member of the Borrower Affiliated
Group to, furnish to the Administrative Agent certificates or other evidence
satisfactory to the Administrative Agent of compliance with the foregoing
insurance provisions. The provisions of this Section 5.3 shall be deemed to be
supplemental to, but not duplicative of, the provisions of any of the Security
Documents that require the maintenance of insurance.
5.4. TAXES. The Borrower shall, and shall cause each other member of
the Borrower Affiliated Group to, pay or cause to be paid all taxes, assessments
or governmental charges on or against it or its properties on or prior to the
time when they become due; PROVIDED that this
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covenant shall not apply to any tax, assessment or charge that is being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been established and are being maintained in accordance
with GAAP if no lien shall have been filed to secure such tax, assessment or
charge.
5.5. INSPECTION BY THE ADMINISTRATIVE AGENT. The Borrower shall, and
shall cause each other member of the Borrower Affiliated Group to, permit the
Banks, through the Administrative Agent or the Administrative Agent's designee,
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to such Person, to (i) visit
and inspect the properties (including the Real Properties) of the Borrower and
such other members of the Borrower Affiliated Group, (ii) conduct field
examinations from time to time, (ii) examine and make copies of and take
abstracts from the books and records of the Borrower and such other members of
the Borrower Affiliated Group, and (iii) discuss the affairs, finances and
accounts of the Borrower and such other members of the Borrower Affiliated Group
with its appropriate officers, employees and accountants, PROVIDED that when an
Event of Default has occurred and is continuing the Administrative Agent or any
Bank may do any of the foregoing at any time during normal business hours and
without advance notice. In handling such information the Administrative Agent
and the Banks shall exercise the same degree of care that each exercises with
respect to its own proprietary information of the same types to maintain the
confidentiality of any non-public information thereby received, except that
disclosure of such information may be made (w) to the subsidiaries or affiliates
of the Arranger, the Administrative Agent and each Bank in connection with their
present or prospective business relations with the Borrower Affiliated Group,
(x) to prospective transferees or purchasers of an interest in the Loans, (y) as
required by law, regulation, rule or order, subpoena, judicial order or similar
order and (z) as may be required in connection with the examination, audit or
similar investigation of the Arranger, the Administrative Agent or any Bank.
5.6. MAINTENANCE OF BOOKS AND RECORDS. The Borrower shall, and shall
cause each other member of the Borrower Affiliated Group to, keep adequate books
and records of account, in which true and complete entries will be made
reflecting all of its business and financial transactions, and such entries will
be made in accordance with GAAP and applicable law.
5.7. INTEREST RATE PROTECTION. On or prior to the Closing Date, the
Borrower shall enter into, and thereafter the Borrower shall maintain in effect,
interest rate protection arrangements in form and substance reasonably
satisfactory to the Administrative Agent, providing for the rate of interest
applicable to the Loans to be capped at a level above the Adjusted LIBOR Rate
plus the Applicable LIBOR Margin prevailing on the effective date of such
interest rate protection arrangements (the "Effective Date") acceptable to the
Administrative Agent in its reasonable discretion with respect to not less than
$40,000,000 of principal of the Loans, from the Effective Date through the third
anniversary of the Effective Date (any such agreement or arrangements, an
"Interest Rate Protection Agreement").
5.8. ENVIRONMENTAL INDEMNIFICATION. The Borrower covenants and agrees
that it will, and will cause each other member of the Borrower Affiliated Group
to, indemnify and hold
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the Administrative Agent and each Bank harmless from and against any and all
claims, expense, damage, loss or liability incurred by the Administrative Agent
or any Bank in connection with environmental matters with respect to the Real
Properties. It is expressly acknowledged by the Borrower that the foregoing
indemnification shall survive any foreclosure or any modification, release or
discharge of any or all of the Security Documents or the payment of the Loans
and shall inure to the benefit of the Administrative Agent and the Banks and
their respective successors and assigns. The obligations under this Section 5.8
shall constitute "Obligations" for all purposes of the Security Documents.
5.9. USE OF PROCEEDS. The proceeds of the Revolving Credit Loans and
the Term Loan will be used by the Borrower solely to repay in full the
Borrower's obligations for borrowed money to Citizens Bank of Massachusetts (as
assignee of State Street Bank and Trust Company), as Agent for a group of
lenders, and to provide working capital for the Borrower Affiliated Group and
for general corporate purposes (including purposes permitted by this Agreement)
for the Borrower Affiliated Group. No portion of any Loans shall be used for the
purpose of purchasing or carrying any "margin security" or "margin stock" as
such terms are used in Regulations U or X of the Board of Governors of the
Federal Reserve System.
5.10. PENSION PLANS. With respect to any Plan, the benefits under which
are guaranteed, in whole or in part, by the PBGC or any governmental authority
succeeding to any or all of the functions of the PBGC, the Borrower will, and
will cause each other member of the Borrower Affiliated Group to, (i) fund each
Plan as required by the provisions of Section 412 of the Code; (ii) cause each
Plan to pay all benefits when due; and (iii) furnish the Administrative Agent
(a) promptly with a copy of any notice of each Plan's termination sent to the
PBGC and (b) no later than the date of submission to the Department of Labor or
to the Internal Revenue Service, as the case may be, a copy of any request for
waiver from the funding standards or extension of the amortization periods
required by Section 412 of the Code.
5.11. FISCAL YEAR. Each of the Borrower and each other member of the
Borrower Affiliated Group shall have a fiscal year ending on December 31 of each
year and shall notify the Administrative Agent of any change in such fiscal year
(whereupon, notwithstanding the provisions of Section 9.8, the Administrative
Agent and the Banks shall have the right to modify the timing of the financial
covenants hereunder accordingly in order to correspond to any such change in
fiscal year).
5.12. LEASES. The Borrower shall use its best efforts to, and shall
cause each other member of the Borrower Affiliated Group to use its best efforts
to, cause the landlord (other than under a Laundry Facility Agreement) of any
premises leased by the Borrower or such other member of the Borrower Affiliated
Group which contains books and records or Collateral in an aggregate amount in
excess of $100,000 to deliver to the Administrative Agent, at the option of the
Administrative Agent and the Banks, a Landlord Waiver simultaneously with the
execution of any Lease of such real property.
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5.13. LAUNDRY FACILITY AGREEMENTS. With respect to the Laundry Facility
Agreements: (i) any member of the Borrower Affiliated Group other than Xxx-Xxxx
may be party to the Laundry Facility Agreements entered into after the Closing
Date, PROVIDED that at the time such member of the Borrower Affiliated Group
enters into such Laundry Facility Agreements, and at all times thereafter, the
appropriate member of the Borrower Affiliated Group shall have pledged 100% of
the issued and outstanding stock of such member of the Borrower Affiliated Group
party to the Laundry Facility Agreements to the Administrative Agent for the
ratable benefit of the Administrative Agent and the Banks; and (ii) each member
of the Borrower Affiliated Group will use commercially reasonable efforts to
have at least 90% of all Laundry Facility Agreements entered into or renewed by
any member of the Borrower Affiliated Group after the Closing Date be
substantially in the forms attached hereto as EXHIBIT H applicable to the type
of Laundry Facility Agreements so entered into. In addition to, and without in
any way limiting, the foregoing the Borrower will use its best efforts to ensure
that no Laundry Facility Agreements entered into or renewed after the Closing
Date shall prohibit, require consent for, or in any other way limit a change in
ownership or control of such member of the Borrower Affiliated Group.
5.14. FURTHER ASSURANCES. (i) At any time and from time to time the
Borrower shall, and shall cause each of its Subsidiaries to, execute and deliver
such further instruments and take such further action as may reasonably be
requested by the Administrative Agent or any Bank to effect the purposes of the
Loan Documents and the Security Documents. Without limitation of the foregoing,
upon receipt of an affidavit of an officer of any Bank as to the loss, theft,
destruction or mutilation of any Note or any other Security Document which is
not of public record, and, in the case of any such loss, theft, destruction or
mutilation, upon cancellation of such Note or other Security Document, the
Borrower and each other member of the Borrower Affiliated Group, as applicable,
will issue, in lieu thereof, a replacement note or other Security Document in
the same principal amount thereof and otherwise of like tenor. (ii) The
Borrowers will duly obtain and deliver to the Administrative Agent, not later
than 30 days after the Closing Date, the agreements, instruments, contracts and
documents listed and described on EXHIBIT I hereto, each of which shall be in
form and substance satisfactory to the Administrative Agent.
SECTION VI
NEGATIVE COVENANTS
So long as any Bank has any commitment to make Loans and issue Letters
of Credit hereunder or any Loan or other Obligation hereunder remains
outstanding, the Borrower (including to the extent the Borrower has agreed to
cause the members of the Borrower Affiliated Group to comply) and each other
member of the Borrower Affiliated Group, jointly and severally covenant as
follows:
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6.1. INDEBTEDNESS. The Borrower shall not, nor shall permit any other
member of the Borrower Affiliated Group to, create, incur, assume, guarantee or
be or remain liable with respect to any Indebtedness other than the following:
(a) Indebtedness of the Borrower to the Administrative Agent or the
Banks under any Security Document;
(b) Indebtedness in respect of current liabilities, other than for
borrowed money, of the Borrower Affiliated Group incurred in the ordinary course
of business and of a type and magnitude consistent with past practices;
(c) Indebtedness in respect of capital leases and purchase money
security interests of the Borrower Affiliated Group representing obligations
permitted to be incurred by the terms of this Agreement and incurred in the
ordinary course of business and consistent with past practices; PROVIDED, that
the aggregate principal amount of Indebtedness permitted by this clause (c)
shall not exceed (i) $2,000,000 in the case of vehicle capital leases or
purchase money security interests, and (ii) $500,000 for all other purposes, at
any one time outstanding;
(d) Indebtedness existing on the date of this Agreement and disclosed
as Item No. 12 on EXHIBIT C hereto;
(e) Indebtedness existing on the date of this Agreement and disclosed
on EXHIBIT C hereto (other than Item No. 12 thereon) ( (the "Existing Debt") and
the Seller Subordinated Debt, PROVIDED that (A) all such Existing Debt and
Seller Subordinated Debt (including any related payment-in-kind promissory
notes) shall at all times be and remain unsecured and subordinated on terms
satisfactory to the Administrative Agent and the Banks, to the Obligations
(including, without limitation, that no payments of principal or interest shall
be made with respect to such Existing Debt or Seller Subordinated Debt during
the occurrence and continuance of a Default or Event of Default under this
Agreement or if such payment would cause such a Default or Event of Default, and
the Borrower shall be required to deliver to the Administrative Agent a
certificate certifying that no such Default or Event of Default exists within a
reasonable period of time prior to making such payment), and (B) the Existing
Debt and Seller Subordinated Debt shall not at any one time exceed an aggregate
principal amount of $3,291,181.17 (as reduced by any principal payments made
thereon from time to time after the Closing Date); and
(f) Indebtedness secured by Encumbrances permitted by Sections 6.4(c)
and (g), respectively.
6.2. CONTINGENT LIABILITIES. The Borrower shall not, nor shall permit
any other member of the Borrower Affiliated Group to, create, incur, assume or
remain liable with respect to any Guarantees other than the following:
(a) Guarantees in favor of the Administrative Agent or the Banks under
any Security Document;
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(b) Guarantees existing on the date of this Agreement and disclosed on
EXHIBIT C hereto;
(c) Guarantees resulting from the endorsement of negotiable instruments
for collection in the ordinary course of business;
(d) Guarantees with respect to surety, performance and return-of-money
and other similar obligations incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money) not exceeding in
the aggregate at any time $100,000;
(e) Guarantees in respect of interest rate protection arrangements
required hereby; and
(f) Guarantees of any Indebtedness of any member of the Borrower
Affiliated Group which is permitted by Section 6.1 by any other member of the
Borrower Affiliated Group.
6.3. SALE AND LEASEBACK. The Borrower shall not, nor shall permit any
other member of the Borrower Affiliated Group to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property owned by
it in order to lease such property or lease other property that the Borrower or
such other member of the Borrower Affiliated Group intends to use for
substantially the same purpose as the property being sold or transferred.
6.4. ENCUMBRANCES. The Borrower shall not, nor shall permit any other
member of the Borrower Affiliated Group to, create, incur, assume or suffer to
exist any mortgage, pledge, security interest, lien or other charge or
encumbrance, including the lien or retained security title of a conditional
vendor upon or with respect to any of its property or assets ("ENCUMBRANCES"),
or assign or otherwise convey any right to receive income, including the sale or
discount of Accounts Receivable with or without recourse, except the following
("PERMITTED ENCUMBRANCES"):
(a) Encumbrances in favor of the Administrative Agent or the Banks
under any Security Document;
(b) Encumbrances existing on the date of this Agreement and disclosed
in EXHIBIT C hereto;
(c) Liens for taxes, fees, assessments and other governmental charges
to the extent that payment of the same may be postponed or is not required in
accordance with the provisions of Section 5.4;
(d) Landlords' and lessors' liens in respect of rent not in default, to
the extent Landlord Waivers shall have been delivered to the Administrative
Agent, or liens in respect of pledges or deposits under worker's compensation,
unemployment insurance, social security laws, or similar legislation (other than
ERISA) or in connection with appeal and similar bonds
-57-
incidental to litigation; mechanics', laborers', carriers', warehousemans',
materialmen's and similar liens, if the obligations secured by such liens are
not then delinquent; liens securing the performance of bids, tenders, contracts
(other than for the payment of money); and statutory obligations incidental to
the conduct of its business and that do not in the aggregate materially detract
from the value of its property or materially impair the use thereof in the
operation of its business;
(e) Judgment liens that shall not have been in existence for a period
longer than 30 days after the creation thereof or, if a stay of execution shall
have been obtained, for a period longer than 30 days after the expiration of
such stay;
(f) Easements, rights of way, restrictions and other similar charges or
Encumbrances relating to real property and not interfering in a material way
with the ordinary conduct of its business; and
(g) Encumbrances securing the purchase price of capital assets
(including rights of lessors under capital leases) to the extent such purchase
is permitted hereunder, PROVIDED, HOWEVER, that (A) each such Encumbrance is
given solely to secure the purchase price of, or the lease obligations relating
to, such property, does not extend to any other property and is given at the
time of the acquisition of the property, and (B) the Indebtedness secured
thereby does not exceed the lesser of the cost of such property or its fair
market value at the time such security interest attaches, and in any event, such
Indebtedness does not exceed (i) $2,000,000 in the case of vehicle capital
leases or purchase money security interests which exist on the Closing Date (and
refinancings thereof in the ordinary course of business, PROVIDED that the
aggregate $2,000,000 limit is not exceeded), and (ii) $500,000 for all other
purposes, in the aggregate outstanding at any time.
In addition, the Borrower shall not, nor shall the Borrower permit any
other member of the Borrower Affiliated Group or any of its other Subsidiaries
to, enter into or permit to exist any arrangement or agreement which directly or
indirectly prohibits the Borrower or any such other member of the Borrower
Affiliated Group or Subsidiary from creating or incurring any Encumbrance in
favor of the Administrative Agent for the benefit of the Banks and the
Administrative Agent under the Loan Documents.
6.5. MERGER; CONSOLIDATION; SALE OR LEASE OF ASSETS; ACQUISITIONS. The
Borrower shall not, nor shall permit any other member of the Borrower Affiliated
Group to, (a) sell, lease or otherwise dispose of assets or properties (valued
at the lower of cost or fair market value), other than (i) sales of Inventory in
the ordinary course of business, and (ii) sales of assets not in the ordinary
course of business in an aggregate amount not to exceed $500,000 in any fiscal
year of the Borrower Affiliated Group; or (b) liquidate, merge or consolidate
into or with any other Person or enter into or undertake any plan or agreement
of liquidation, merger or consolidation with any other Person, PROVIDED that any
wholly-owned Subsidiary of the Borrower may merge or consolidate into or with
(i) the Borrower if no Default or Event of Default has occurred and is
continuing or would result from such merger and if the Borrower is the surviving
company, or (ii) any other wholly-owned Subsidiary of the Borrower; or (c)
without the prior written consent of the Banks, acquire all or substantially all
of the assets (or
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a division) or capital stock (or other equity) of any Person, PROVIDED that with
the prior written consent of the Majority Banks, the Borrower may acquire
additional laundry routes so long as the aggregate consideration for each such
acquisition shall not exceed $1,000,000.
6.6. FUNDED DEBT RATIO. The Borrower shall not at any time permit the
Funded Debt Ratio of the Borrower Affiliated Group as at the last day of any
fiscal quarter in any fiscal period identified below to be greater than the
ratio specified below opposite such fiscal period:
------------------------------------------------------ --------------------
PERIOD MAXIMUM
RATIO
------------------------------------------------------ --------------------
From the Closing Date through the fiscal quarter 3.25 to 1.00
ending December 31, 2000
------------------------------------------------------ --------------------
January 1, 2001 through December 31, 2001 3.00 to 1.00
------------------------------------------------------ --------------------
Through any fiscal quarter ending thereafter 2.75 to 1.00
------------------------------------------------------ --------------------
6.7. OPERATING CASH FLOW RATIO. The Borrower shall not permit the
Operating Cash Flow Ratio of the Borrower Affiliated Group for any fiscal period
identified below to be less than the ratio specified below opposite such fiscal
period:
------------------------------------------------------ --------------------
PERIOD MINIMUM
RATIO
------------------------------------------------------ --------------------
For the fiscal quarters ending June 30, 2000 and 1.15 to 1.00
September 30, 2000, in each case for the four
consecutive fiscal quarters then ending
------------------------------------------------------ --------------------
For any fiscal quarter ending on or after 1.25 to 1.00
December 31, 2000, in each case for the four
consecutive fiscal quarters then ending
------------------------------------------------------ --------------------
6.8. MINIMUM EBITDA. The Borrower shall not permit the EBITDA of the
Borrower Affiliated Group for any fiscal period specified below to be less than
the amount specified opposite such period:
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Period Minimum Amount
------ --------------
For the fiscal quarters ending June 30, 2000 and $26,000,000
September 30, 2000, in each case for the four
consecutive fiscal quarters then ending
For any fiscal quarter ending on or after December 31, $31,000,000
2000 through September 30, 2001, in each case for the four
consecutive fiscal quarters then ending
For any fiscal quarter ending on or after December 31, $34,000,000
2001 through September 30, 2002, in each case for the four
consecutive fiscal quarters then ending
For any fiscal quarter ending on or after December 31, $37,000,000
2002 through September 30, 2003, in each case for the four
consecutive fiscal quarters then ending
For any fiscal quarter ending on or after December 31, $39,000,000
2003 through September 30, 2004, in each case for the four
consecutive fiscal quarters then ending
For any fiscal quarter ending on or after December 31, $41,000,000
2004, in each case for the four consecutive
fiscal quarters then ending
6.9. MINIMUM NET WORTH. The Borrower shall not at any time permit the
Consolidated Net Worth of the Borrower Affiliated Group to be less than
$48,254,000, PLUS, on a cumulative basis, an amount equal to 50% of the net
after tax profit of the Borrower Affiliated Group earned in each fiscal quarter
(commencing with the fiscal quarter ending June 30, 2000).
6.10. MAXIMUM CAPITAL EXPENDITURES AND PREPAID COMMISSION EXPENSES. The
sum of Capital Expenditures made, and Prepaid Commission Expenses paid, by the
Borrower Affiliated Group, in the aggregate, shall not exceed $20,000,000 in any
fiscal year.
6.11. RESTRICTED PAYMENTS. The Borrower shall not, nor shall permit any
other member of the Borrower Affiliated Group to, pay, make or declare any
Restricted Payment. Notwithstanding the foregoing, (i) the Borrower may make
regularly scheduled payments on the Existing Debt and the Seller Subordinated
Debt (each as in effect on the Closing Date) to
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the extent no Default or Event of Default then exists or would result from the
making of any such payment, and (ii) the Borrower's Subsidiaries may from time
to time make distributions to the Borrower. Neither the Borrower nor any other
member of the Borrower Affiliated Group will enter into any agreement, contract
or arrangement (other than the Loan Documents) restricting the ability of any
Subsidiary of the Borrower or any other member of the Borrower Affiliated Group
to pay or make dividends or distributions in cash or kind, to make loans,
advances or other payments of any nature or to make transfers or distributions
of all or any part of its assets to the Borrower or any other member of the
Borrower Affiliated Group.
6.12. INVESTMENTS. The Borrower shall not, nor shall permit any other
member of the Borrower Affiliated Group to, make or maintain any Investments
other than Qualified Investments.
6.13. ERISA. Neither the Borrower nor any member of the Controlled
Group shall permit any Plan maintained by it to (i) engage in any "prohibited
transaction" (as defined in Section 4975 of the Code, (ii) incur any
"accumulated funding deficiency" (as defined in Section 302 of ERISA) whether or
not waived, or (iii) terminate any Plan in a manner that could result in the
imposition of a lien or encumbrance on the assets of the Borrower or any other
member of the Borrower Affiliated Group pursuant to Section 4068 of ERISA.
6.14. TRANSACTIONS WITH AFFILIATES. The Borrower shall not, nor shall
permit any other member of the Borrower Affiliated Group to, enter into or
participate in any agreements or transactions of any kind with any Affiliate,
except (i) agreements or transactions contemplated, required or allowed by any
Loan Document or any Ancillary Document as in effect on the date of this
Agreement or described on EXHIBIT D hereto, PROVIDED that such agreements or
transactions are not otherwise prohibited by this Agreement or any of the
Security Documents; (ii) agreements or transactions (in each case) in the
ordinary course of business and on an arms-length basis which (A) include only
terms which are fair and equitable to the Borrower or such other member of the
Borrower Affiliated Group, (B) do not violate or otherwise conflict with any of
the terms of any of the Loan Documents, (C) require the payment of no fees,
charges or commissions by the Borrower or such member of the Borrower Affiliated
Group to any Affiliate except those which are reasonable and disclosed to the
Administrative Agent, (D) are disclosed on the books, accounts and records of
the Borrower or such other member of the Borrower Affiliated Group, and (E)
involve terms no less favorable to the Borrower or such other member of the
Borrower Affiliated Group than would be the terms of a similar agreement or
transaction with any Person other than an Affiliate; and (iii) the loans
permitted by Section 6.15. Neither the Borrower nor any other member of the
Borrower Affiliated Group will enter into any agreement containing any provision
which would be violated or breached by the performance by the Borrower or such
other member of the Borrower Affiliated Group of its obligations hereunder or
under any of the other Loan Documents.
6.15. LOANS. The Borrower shall not, nor shall permit any other member
of the Borrower Affiliated Group to, make to any Person any loan, advance or
other transfer with the anticipation of repayment, except for loans and advances
to employees of the Borrower or
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such other member of the Borrower Affiliated Group, made in the ordinary course
of business and consistent with past practices, not exceeding $250,000 in the
aggregate at any time outstanding; PROVIDED, that no such advances to any single
employee shall exceed $50,000 in the aggregate.
6.16. REVOLVING CREDIT COMMITMENT. The Borrower shall not cause or
permit the aggregate principal amount of all Revolving Credit Loans outstanding
at any time, PLUS the aggregate Stated Amount of Letters of Credit outstanding
at such time, PLUS the aggregate amount of any unreimbursed draws under
outstanding Letters of Credit, to exceed the aggregate amount of the Revolving
Credit Commitments of all the Banks at such time.
6.17. NO AMENDMENTS TO CERTAIN DOCUMENTS. The Borrower shall not, nor
shall permit any other member of the Borrower Affiliated Group to, at any time
cause or permit (i) any of the Ancillary Documents to be modified, amended or
supplemented in any respect whatever, except for such modification or amendment
as would not, in the Administrative Agent's sole discretion, effect any change
adverse to the Administrative Agent or the Banks, or have a material adverse
effect on the business, condition (financial or otherwise), assets, operations
or prospects of the Borrower Affiliated Group taken as a whole, or (ii) any of
the charter or other incorporation documents or by-laws of the Borrower or such
other member of the Borrower Affiliated Group to be modified, amended or
supplemented in any material respect whatever, without (in each case) the
express prior written agreement, consent or approval of the Administrative
Agent.
SECTION VII
DEFAULTS
7.1. EVENTS OF DEFAULT. There shall be an Event of Default hereunder if
any of the following events occurs:
(a) the Borrower shall fail to pay (i) any amount of principal of any
Loans when due or (ii) any amount of interest thereon or any fees or expenses
payable hereunder or under any Note or any other Security Document within 3 days
after the due date therefor; or
(b) the Borrower or any other member of the Borrower Affiliated Group
shall fail to perform, comply with or observe or shall otherwise breach any one
or more of the terms, obligations, covenants or agreements contained in
Sections 5.1, 5.2(b), 5.2(d), 5.3 (with respect to maintenance of insurance),
5.5, 5.8, 5.9, 5.13, 5.14(ii), 6.1 through 6.12, inclusive, and 6.14 through
6.17, inclusive; or
(c) the Borrower or any other member of the Borrower Affiliated Group
shall fail to perform, comply with or observe or shall otherwise breach any one
or more of the terms, covenants, obligations or agreements (other than in
respect of subsections 7.1(a) and (b) hereof) contained in this Agreement or in
any other Security Document and such failure shall continue for 20 days; or
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(d) any representation or warranty of the Borrower or any other member
of the Borrower Affiliated Group made in any Security Document or any other
documents or agreements executed in connection with the transactions
contemplated by this Agreement or in any certificate delivered hereunder shall
prove to have been false in any material respect upon the date when made or
deemed to have been made; or
(e) [Intentionally Omitted.]
(f) the Borrower or any other member of the Borrower Affiliated Group
shall fail to pay at maturity, or within any applicable period of grace (not to
exceed 30 days), any obligations for borrowed monies or advances in excess of
$100,000, or any obligations for the lease or other use of real or personal
property in excess of $100,000, or fail to observe or perform any term, covenant
or agreement evidencing or securing such obligations for borrowed monies or
advances in excess of $100,000, or relating to such lease or use of real or
personal property in excess of $100,000, the result of which failure is to
permit the holder or holders of such Indebtedness to cause such Indebtedness to
become due prior to its stated maturity upon delivery of required notice, if
any, or to permit any party to any agreement evidencing such obligations to
terminate or cancel such agreement; or
(g) the Borrower or any other member of the Borrower Affiliated Group
shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator or similar official of
itself or of all or a substantial part of its property, (ii) be generally not
paying its debts as such debts become due, (iii) make a general assignment for
the benefit of its creditors, (iv) commence a voluntary case under the Federal
Bankruptcy Code (as now or hereafter in effect), (v) take any action or commence
any case or proceeding under any law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts, or any other
law providing for the relief of debtors, (vi) fail to contest in a timely or
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Federal Bankruptcy Code (as now or hereafter in
effect) or other law, (vii) take any action under the laws of its jurisdiction
of incorporation or organization similar to any of the foregoing, (viii) be
Insolvent, or (ix) pass any board resolution or take any corporate action for
the purpose of effecting any of the foregoing; or
(h) a proceeding or case shall be commenced, without the application or
consent of the Borrower or other applicable member of the Borrower Affiliated
Group in any court of competent jurisdiction, seeking (i) the liquidation,
reorganization, dissolution, winding up, or composition or readjustment of its
debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of it or of all or any substantial part of its assets, or (iii) similar
relief in respect of it, under any law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts or any other
law providing for the relief of debtors, and such proceeding or case shall
continue undismissed, or unstayed and in effect, for a period of 45 days; or an
order for relief shall be entered in an involuntary case under the Federal
Bankruptcy Code (as now or hereafter in effect), against the Borrower or any
other member of the Borrower Affiliated Group; or action under the laws of the
jurisdiction of incorporation or organization of the Borrower or any other
member of the Borrower Affiliated Group
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similar to any of the foregoing shall be taken with respect to the Borrower or
any such member of the Borrower Affiliated Group and shall continue unstayed and
in effect for any period of 45 days; or
(i) judgments or orders for the payment of money shall be entered
against the Borrower or any other member of the Borrower Affiliated Group by any
court, or a warrant of attachment or execution or similar process shall be
issued or levied against property of the Borrower or any other member of the
Borrower Affiliated Group, that in the aggregate exceed $100,000 in value and
such judgments, orders, warrants or process shall continue undischarged or
unstayed for 30 days; or
(j) the Borrower, any other member of the Borrower Affiliated Group or
any member of the Controlled Group shall fail to pay when due an aggregate
amount in excess of $100,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any other
member of the Borrower Affiliated Group or any member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a trustee
to be appointed to administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans against the Borrower or any
other member of the Borrower Affiliated Group and such proceedings shall not
have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or
(k) a Change of Control shall have occurred; or
(l) the Borrower or any other member of the Borrower Affiliated Group
shall be enjoined, restrained or in any way prevented by the order of any court
or any administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than 30 days, or
the Borrower or any other member of the Borrower Affiliated Group shall be
indicted for a state or federal crime, or any criminal action shall otherwise
have been brought against the Borrower or any other member of the Borrower
Affiliated Group, a punishment for which in any such case could reasonably be
expected to include forfeiture of any assets of the Borrower Affiliated Group
having a fair market value in excess of $100,000; or
(m) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether insured or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy, or
other casualty, which in any such case causes, for more than 30 consecutive
days, the cessation or substantial curtailment of revenue producing activities
at any facility of the Borrower or any other member of the Borrower Affiliated
Group if such event or circumstance is not covered by business interruption
insurance and which cessation or curtailment could reasonably be expected to
have a material adverse effect on the business, condition (financial or
otherwise), assets, operations or prospects of the Borrower Affiliated Group
taken as a whole; or
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(n) there shall occur the loss, suspension or revocation of, or failure
to renew, any license or permit now held or hereafter acquired if such loss,
suspension, revocation or failure to renew could reasonably be expected to have
a material adverse effect on the business, financial condition, assets,
operations or prospects of the Borrower Affiliated Group taken as a whole; or
(o) any covenant, agreement or obligation of the Borrower or any other
member of the Borrower Affiliated Group contained in or evidenced by any
Security Document or any Ancillary Document to which the Borrower or such member
of the Borrower Affiliated Group is a party shall, prior to the date on which
such document shall terminate with the express prior written agreement, consent
or approval of the Administrative Agent and the Banks, cease in any material
respect to be legal, valid, binding or enforceable in accordance with the terms
thereof; or
(p) any Security Document or any Ancillary Document shall be canceled,
terminated, revoked or rescinded (or any notice of such cancellation,
termination, revocation or rescission given) otherwise than with the express
prior written agreement, consent or approval of the Administrative Agent and the
Banks; or any action at law, suit in equity or other legal proceeding to cancel,
revoke, or rescind any Security Document or any Ancillary Document shall be
commenced by or on behalf of the Borrower or any other member of the Borrower
Affiliated Group, or by any court or any other governmental or regulatory
authority or agency of competent jurisdiction; or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall
make a determination that, or shall issue a judgment, order, decree or ruling to
the effect that, any one or more of the Security Documents or Ancillary
Documents or any one or more of the obligations of the Borrower or any other
member of the Borrower Affiliated Group under any one or more of the Security
Documents and Ancillary Documents are illegal, invalid or unenforceable in
accordance with the terms thereof; or
(q) any default or event of default shall occur and be continuing under
any Ancillary Document (after giving effect to any cure or grace period, such
period not to exceed 30 days in any event).
7.2. REMEDIES. Upon the occurrence of an Event of Default described in
subsections 7.1(g) and (h), immediately and automatically, and upon the
occurrence of any other Event of Default, at any time thereafter while such
Event of Default is continuing, at the option of the Majority Banks and upon the
Administrative Agent's declaration:
(a) each Bank's commitment to make any further Loans hereunder shall
terminate;
(b) the unpaid principal amount of the Loans together with accrued
interest, all other Obligations, and all other obligations of the Borrower to
the Administrative Agent and each Bank of any kind shall become immediately due
and payable without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived; and
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(c) the Administrative Agent may require the Borrower and each other
applicable member of the Borrower Affiliated Group to execute and deliver to the
Administrative Agent, for the ratable benefit of the Banks, a Leasehold Mortgage
with respect to all locations for which there is a Lease or Laundry License in
effect at such time, and may exercise (on behalf of itself and the Banks) any
and all other rights the Administrative Agent and the Banks have under this
Agreement, the Notes, the Security Documents, or any other documents or
agreements executed in connection herewith, or at law or in equity, and proceed
to protect and enforce the Administrative Agent's and the Banks' rights by any
action at law, in equity or other appropriate proceeding.
SECTION VIII
CONCERNING THE ADMINISTRATIVE AGENT AND THE BANKS
8.1. APPOINTMENT AND AUTHORIZATION. Each of the Banks hereby appoints
Fleet to serve as Administrative Agent under this Agreement and irrevocably
authorizes the Administrative Agent to take such action on such Bank's behalf
under this Agreement and to exercise such powers and to perform such duties
under this Agreement and the other documents and instruments executed and
delivered in connection with the consummation of the transactions contemplated
hereby (including, without limitation, all Security Documents) as are delegated
to the Administrative Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
8.2. ADMINISTRATIVE AGENT AND AFFILIATES. Fleet shall also have the
same rights and powers under this Agreement of a Bank and may exercise or
refrain from exercising the same as though it were not the Administrative Agent,
and Fleet and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any other member
of the Borrower Affiliated Group or any Affiliate of any member of the Borrower
Affiliated Group as if it were not the Administrative Agent hereunder. Except as
otherwise provided by the terms of this Agreement, nothing herein shall prohibit
any Bank from accepting deposits from, lending money to or generally engaging in
any kind of business with the Borrower or any other member of the Borrower
Affiliated Group or any Affiliate of any member of the Borrower Affiliated
Group.
8.3. FUTURE ADVANCES.
(a) In order to more conveniently administer the Loans, the
Administrative Agent may, unless notified to the contrary by any Bank prior to
the date upon which any Revolving Credit Loan is to be made, assume that such
Bank has made available to the Administrative Agent on such date the amount of
such Bank's share of such Revolving Credit Loan to be made on such date as
provided in this Agreement, and the Administrative Agent may (but it shall not
be required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the
Administrative Agent such amount on a date after the date upon which the
Revolving Credit Loan is made, such Bank shall pay to the Administrative Agent
on demand an amount equal to the product of (i) the average computed for the
period referred
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to in clause (iii) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, MULTIPLIED BY (ii) the amount of such
Bank's share of such Revolving Credit Loan, MULTIPLIED BY (iii) a fraction, the
numerator of which is the number of days that elapsed from and including such
date to the date on which the amount of such Bank's share of such Revolving
Credit Loan shall become immediately available to the Administrative Agent, and
the denominator of which is 360 or 365, as applicable. A statement of the
Administrative Agent submitted to such Bank with respect to any amounts owing
under this subsection shall be PRIMA FACIE evidence of the amount due and owing
to the Administrative Agent by such Bank.
(b) The Administrative Agent may at any time, in its sole discretion,
upon notice to any Bank, refuse to make any Revolving Credit Loan to the
Borrower on behalf of such Bank unless such Bank shall have provided to the
Administrative Agent immediately available federal funds equal to such Bank's
share of such Revolving Credit Loan in accordance with this Agreement.
(c) Anything in this Agreement to the contrary notwithstanding, the
obligations to make Loans under the terms of this Agreement shall be the several
and not joint obligation of each of the Banks and any advances made by the
Administrative Agent on behalf of any Bank are strictly for the administrative
convenience of the parties and shall in no way diminish any Bank's liability to
repay the Administrative Agent for such Loans and advances. If the amount of any
Bank's share of any Revolving Credit Loan which the Administrative Agent has
advanced to the Borrower is not made available to the Administrative Agent by
such Bank within 1 Business Day following the date upon which such Revolving
Credit Loan is made, the Administrative Agent shall be entitled to recover such
amount from the Borrower on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such date.
8.4. DELINQUENT BANK. Notwithstanding anything to the contrary
contained in this Agreement, any Bank that fails to make available to the
Administrative Agent its share of any Revolving Credit Loan when and to the full
extent required by the provisions of this Agreement shall be deemed delinquent
(a "Delinquent Bank") and shall be deemed a Delinquent Bank until such time as
such delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account of
outstanding Loans, interest, fees or otherwise, to the remaining non-delinquent
Banks for application to, and reduction of, their respective PRO RATA shares of
all outstanding Revolving Credit Loans. The Delinquent Bank hereby authorizes
the Administrative Agent to distribute such payments to the non-delinquent Banks
in proportion to their respective PRO RATA shares of all outstanding Revolving
Credit Loans. A Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to
all outstanding Revolving Credit Loans of the non-delinquent Banks, the Banks'
respective PRO RATA shares of all outstanding Loans have returned to those in
effect immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency. No Delinquent Bank shall have a
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right to participate in any vote taken by the Banks hereunder, which shall be
calculated as if the Commitments of the Delinquent Bank did not exist.
8.5. PAYMENTS.
(a) All payments and prepayments of principal of and interest
on Revolving Credit Loans and the Term Loan received by the Administrative Agent
shall be paid to each of the Banks PRO RATA in accordance with their respective
interests in such Loans; and any other payments received by the Administrative
Agent hereunder shall be paid to the Banks or the Administrative Agent or both
PRO RATA as their respective interests appear.
(b) Each of the Banks and the Administrative Agent hereby
agrees that if it should receive any amount (whether by voluntary payment, by
the exercise of the right of set-off or banker's lien, by counterclaim or cross
action, by the enforcement of any right hereunder or otherwise) in respect of
principal of, or interest on, the Loans or any fees which are to be shared among
the Banks, which, as compared to the amounts theretofore received by the other
Banks with respect to such principal, interest or fees, is in excess of such
Bank's PRO rata share of such principal, interest or fees as provided in this
Agreement, such Bank shall share such excess, less the costs and expenses
(including, reasonable attorneys' fees and disbursements) incurred by such Bank
in connection with such realization, exercise, claim or action, PRO RATA with
all other Banks in proportion to their respective interests therein, and such
sharing shall be deemed a purchase (without recourse) by such sharing party of
participation interests in the Loans or such fees, as the case may be, owed to
the recipients of such shared payments to the extent of such shared payments;
PROVIDED, HOWEVER, that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
8.6. ACTION BY ADMINISTRATIVE AGENT.
(a) The obligations of the Administrative Agent hereunder are
only those expressly set forth herein. The Administrative Agent shall have no
duty to exercise any right or power or remedy hereunder or under any other
document or instrument executed and delivered in connection with or as
contemplated by this Agreement or to take any affirmative action hereunder or
thereunder.
(b) The Administrative Agent shall keep all records of the
Loans and payments hereunder, and shall give and receive notices and other
communications to be given or received by the Administrative Agent hereunder on
behalf of the Banks.
(c) Upon the occurrence and during the continuance of an Event
of Default the Administrative Agent may, and upon the direction of the Majority
Banks pursuant to Section 7.2 the Administrative Agent shall, exercise the
option of the Banks pursuant to Section 7.2 to declare all Loans and other
Obligations immediately due and payable and may take such action as may appear
necessary or desirable to collect the Obligations and enforce the rights and
remedies of the Administrative Agent or the Banks.
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8.7. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
pursuant to Section 5.1(h) or otherwise, it shall notify the Administrative
Agent thereof. The Administrative Agent hereby agrees that upon actual receipt
of any notice under this Section 8.7, it shall notify the other Banks of the
existence of such Default or Event of Default.
8.8. CONSULTATION WITH EXPERTS. The Administrative Agent shall be
entitled to retain and consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable to the
Banks for any action taken, omitted to be taken or suffered in good faith by it
in accordance with the advice of such counsel, accountants or experts. The
Administrative Agent may employ administrative agents and attorneys-in-fact and
shall not be liable to the Banks for the default or misconduct of any such
administrative agents or attorneys.
8.9. LIABILITY OF ADMINISTRATIVE AGENT. The Administrative Agent shall
exercise the same care to protect the interests of each Bank as it does to
protect its own interests, so that so long as the Administrative Agent exercises
such care it shall not be under any liability to any of the Banks, except for
the Administrative Agent's gross negligence or willful misconduct with respect
to anything it may do or refrain from doing. Subject to the immediately
preceding sentence, neither the Administrative Agent nor any of its directors,
officers, administrative agents or employees shall be liable for any action
taken or not taken by it in connection herewith in its capacity as
Administrative Agent. Without limiting the generality of the foregoing, neither
the Administrative Agent nor any of its directors, officers, administrative
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify: (i) any statement, warranty or representation made in
connection with this Agreement, any Security Document, or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Sections 3.1 or 3.2, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness, enforceability or
genuineness of this Agreement, the Notes, any other Loan Document or Security
Document or any other document or instrument executed and delivered in
connection with or as contemplated by this Agreement; (v) the existence, value,
collectibility or adequacy of the Collateral or any part thereof or the
validity, effectiveness, perfection or relative priority of the liens and
security interests of the Banks (through the Administrative Agent) therein; or
(vi) the filing, recording, refiling, continuing or re-recording of any
financing statement or other document or instrument evidencing or relating to
the security interests or liens of the Banks (through the Administrative Agent)
in the Collateral. The Administrative Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement or other
writing (which may be a bank wire, telecopy or similar writing) believed by it
to be genuine or to be signed or sent by the proper party or parties.
8.10. INDEMNIFICATION. Each Bank agrees to indemnify the Administrative
Agent (to the extent the Administrative Agent is not reimbursed by the
Borrower), ratably in accordance with its Commitment Percentage, from and
against any cost, expense
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(including attorneys' fees and disbursements), claim, demand, action, loss or
liability which the Administrative Agent may suffer or incur in connection with
this Agreement, or any action taken or omitted by the Administrative Agent
hereunder, or the Administrative Agent's relationship with the Borrower
hereunder, including, without limitation, the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers and duties hereunder and of taking or
refraining from taking any action hereunder, but excluding any costs, expenses
or losses directly arising from the Administrative Agent's gross negligence or
willful misconduct. No payment by any Bank under this Section shall in any way
relieve the Borrower of its obligations under this Agreement with respect to the
amounts so paid by any Bank, and the Banks shall be subrogated to the rights of
the Administrative Agent, if any, in respect thereto.
8.11. INDEPENDENT CREDIT DECISION. Each of the Banks represents and
warrants to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Bank and based on the
financial statements referred to in Section 4.7 and such other documents and
information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each of the Banks
acknowledges that it has not relied upon any representation by the
Administrative Agent and that the Administrative Agent shall not be responsible
for any statements in or omissions from any documents or information concerning
the Borrower, this Agreement, the Notes, any other Loan Document or Security
Document or any other document or instrument executed and delivered in
connection with or as contemplated by this Agreement. Each of the Banks
acknowledges that it will, independently and without reliance upon the
Administrative Agent or other Bank 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.
8.12. SUCCESSOR ADMINISTRATIVE AGENT. Fleet, or any successor
Administrative Agent, may resign as Administrative Agent at any time by giving
30 days prior written notice thereof to the Banks and to the Borrower. Upon any
such resignation, the Banks shall have the right to appoint a successor
Administrative Agent, which successor Administrative Agent shall be reasonably
acceptable to the Borrower. If no successor Administrative Agent shall have been
so appointed by the Banks, and shall have accepted such appointment, within 30
days after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a commercial bank (or Affiliate
thereof) or savings and loan association organized under the laws of the United
States of America or any State thereof or under the laws of another country
which is doing business in the United States of America or any State thereof and
having a combined capital, surplus and undivided profits of at least
$100,000,000 and shall be reasonably acceptable to the Borrower. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from all further duties and obligations under this
Agreement. After any retiring
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Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section VIII 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.
8.13. OTHER AGENTS. The documentation agent shall have no rights or
obligations in its capacity as such.
SECTION IX
MISCELLANEOUS
9.1. NOTICES. Unless otherwise specified herein, all notices hereunder
to any party hereto shall be in writing and shall be deemed to have been given
when delivered by hand, when properly deposited in the mails postage prepaid,
when sent by electronic facsimile transmission, or when delivered to an
overnight courier, addressed to such party at its address indicated below:
If to the Borrower, at
c/o Xxx-Xxxx Corporation
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx XxxXxxxxx, Xx., Chairman and Chief
Executive Officer
Telecopy: (000) 000-0000
with a copy to
Xxxxxxx, Procter & Xxxx, LLP
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Xxxxxx X. Cable, Esq.
Telecopy: (000) 000-0000
If to the Administrative Agent or Fleet, at
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Director
Telecopy: (000) 000-0000
with a copy to
-00-
Xxxxxxxx & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to any Bank, at the address for such Bank set forth on SCHEDULE 1,
or at any other address specified by such party in writing. Notwithstanding the
foregoing, the Administrative Agent and the Banks shall have been deemed for all
purposes to have delivered any notice required to be delivered to the Borrower
by this Agreement or otherwise, by sending such notification to the address set
forth above for the "Borrower."
9.2. EXPENSES. The Borrower will pay on demand all reasonable expenses
of the Arranger, the Administrative Agent or any Bank in connection with the
preparation, waiver or amendment of this Agreement, the Notes, the Security
Documents or other documents executed in connection therewith, or the
administration, default or collection of the Loans or other Obligations or
administration, default, collection in connection with the Arranger's, the
Administrative Agent's or any Bank's exercise, preservation or enforcement of
any of its rights, remedies or options hereunder or thereunder, including,
without limitation, reasonable fees of outside legal counsel, any local counsel
or the allocated costs of in-house legal counsel, accounting, consulting,
brokerage or other similar professional fees or expenses, all reasonable
out-of-pocket costs and expenses (including reasonable fees of outside counsel)
of the Arranger and the Administrative Agent incurred in connection with the
syndication and/or participation of the Loans, and any fees or expenses
associated with any travel or other costs relating to any appraisals, field
examinations, or other examinations conducted in connection with the Obligations
or any Collateral therefor, and the amount of all such expenses shall, until
paid, bear interest at the rate applicable to principal hereunder (including any
default rate).
9.3. INDEMNIFICATION. The Borrower shall absolutely and unconditionally
indemnify and hold harmless the Administrative Agent, the Arranger and each of
the Banks against any and all claims, demands, suits, actions, causes of action,
damages, losses, settlement payments, obligations, costs, expenses (including,
without limitation, reasonable fees and disbursements of counsel) and all other
liabilities whatsoever which shall at any time or times be incurred or sustained
by the Administrative Agent, the Arranger or any of the Banks or by any of their
shareholders, directors, officers, employees, subsidiaries, affiliates or
administrative agents (other than as a result of the gross negligence or willful
misconduct of the Administrative Agent, the Arranger or any of the Banks) on
account of, or in relation to, or in any way in connection with, any of the
arrangements or transactions contemplated by, associated with or ancillary to
either this Agreement, any of the other Loan Documents or other Security
Documents or any of the Ancillary Documents, whether or not all or any of the
transactions contemplated by, associated with or ancillary to this Agreement,
any of such Loan Documents, Security Documents or any of such Ancillary
Documents, are ultimately
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consummated. Without prejudice to the survival of any other covenant of the
Borrower hereunder, the covenants of this Section 9.3 shall survive the
termination of this Agreement and the payment or satisfaction of payment of
amounts owing with respect to the Notes or any other Loan Document.
9.4. SET-OFF. Regardless of the adequacy of any collateral or other
means of obtaining repayment of the Obligations, any deposits, balances or other
sums credited by or due from any Bank or any of its branch or affiliate offices
to the Borrower or any other member of the Borrower Affiliated Group may, at any
time and from time to time, without notice to the Borrower or such member of the
Borrower Affiliated Group or compliance with any other condition precedent now
or hereafter imposed by statute, rule of law, or otherwise (all of which are
hereby expressly waived) be set off, appropriated, and applied by any Bank
against any and all obligations of the Borrower or such member of the Borrower
Affiliated Group to such Bank or any of its affiliates in such manner as the
head office of the Bank or any of its branch offices in their sole discretion
may determine (with notice to be given to the Borrower promptly thereafter), and
the Borrower and each other member of the Borrower Affiliated Group hereby
grants such Bank a continuing security interest in such deposits, balances or
other sums for the payment and performance of all such obligations.
9.5. TERM OF AGREEMENT. This Agreement shall continue in force and
effect so long as any Bank has any commitment to make Loans hereunder or any
Loan or any Obligation shall be outstanding.
9.6. NO WAIVERS. No failure or delay by the Administrative Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note or
under any other documents or agreements executed in connection herewith shall
operate as a waiver thereof; nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein and in the Notes
provided are cumulative and not exclusive of any rights or remedies otherwise
provided by agreement or law.
9.7. GOVERNING LAW. This Agreement, the Notes and the other Loan
Documents and Security Documents shall be deemed to be contracts made under seal
and shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts (without giving effect to any conflicts of laws
provisions contained therein). Any legal action or proceeding arising out of or
relating to this Agreement, any other Loan Document or Security Document or any
Obligation may be instituted, in the Administrative Agent's sole discretion, in
the courts of the Commonwealth of Massachusetts or the United States of America
for the District of Massachusetts, and the Borrower and each other member of the
Borrower Affiliated Group hereby irrevocably submits to the jurisdiction of each
such court in any such action or proceeding; PROVIDED, HOWEVER, that the
foregoing shall not limit the Administrative Agent's rights to bring any legal
action or proceeding in any other appropriate jurisdiction.
9.8. AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided
in this Agreement or any of the other Security Documents: (i) each of the
Security Documents may
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be modified, amended or supplemented in any respect whatever only with the prior
written consent or approval of the Majority Banks and the Borrower; and (ii) the
performance or observance by the Borrower of any of its covenants, agreements or
obligations under any of the Security Documents may be waived only with the
written consent of the Majority Banks; PROVIDED, HOWEVER, that the following
changes shall require the written consent, agreement or approval of all of the
Banks directly affected thereby (with respect to clauses (A), (B), (C), (D) and
(E)) and of all the Banks (with respect to clause (F)): (A) any decrease in the
amount of or postponement of the regularly scheduled or otherwise required
payment date for any of the Obligations (including, without limitation,
principal, interest and fees); (B) any decrease in the interest rates or fees
prescribed in any of the Notes; (C) any increase in the Commitment or Commitment
Percentage of any of the Banks, except as permitted by Section 9.10; (D) any
release of all or any substantial part of the Collateral (except for any such
releases of Collateral permitted or provided for in the Loan Documents); (E) any
change in the definition of Majority Banks; and (F) any change in the terms of
this Section 9.8. Any change to Section IX or any other provision of this
Agreement affecting the rights or obligations of the Administrative Agent shall
not be amended or modified without the prior written consent of the
Administrative Agent.
9.9. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; PROVIDED that (i) the Borrower may not assign or transfer its
rights or obligations hereunder, and (ii) no Bank may assign or transfer its
rights or obligations hereunder to any Person except in accordance with the
provisions of Section 9.10.
9.10. SUCCESSORS AND ASSIGNS.
(i) Any Bank may at any time grant to one or more banks or other
financial institutions (each, a "Participant") participating interests in any of
its Commitments or any or all of its Loans in an amount and on such terms as
such Bank may deem appropriate. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; PROVIDED, HOWEVER, that such participation agreement may provide
that such Bank will not agree, without the consent of the Participant, to any
modification, amendment or waiver of this Agreement requiring the consent,
agreement or approval of all of the Banks, as described in Section 9.8. The
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 2.15 with respect to its participating interest. An
assignment or other transfer which is not permitted by subsection (ii) below
shall be given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (i).
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(ii) Any Bank may at any time assign to one or more banks or other
financial institutions (each, an "Assignee") all, or a part of all, of its
rights, interests and obligations under this Agreement and the Notes (or any one
of its Notes) on such terms, as between such Bank and each of its Assignees, as
such Bank may deem appropriate and such Assignee shall assume such rights,
interests and obligations, pursuant to an instrument executed by such Assignee
and such transferor Bank substantially in the form of EXHIBIT G hereto (an
"Assignment and Assumption"); PROVIDED, HOWEVER, that (A) prior to assigning any
interest to any Assignee hereunder, such Bank will (x) notify the Borrower and
the Administrative Agent in writing identifying the proposed Assignee and
stating the aggregate principal amount of the proposed interest to be assigned,
and (y) receive the prior written consent of the Administrative Agent and, prior
to the occurrence (which is continuing) of an Event of Default, the Borrower,
which consent may not be unreasonably withheld by either the Borrower or the
Administrative Agent, and (B) no Bank will assign to any Assignee less than an
aggregate amount equal to the lesser of (x) $1,000,000 of such Bank's
Commitments and interest in the Notes (as such interest may be reduced pursuant
to the terms hereof) or (y) the remaining amount of such Bank's Commitments. It
is understood and agreed that the proviso contained in the immediately preceding
sentence shall not be applicable in the case of, and this subsection (ii) shall
not restrict, an assignment or other transfer by any Bank to an Affiliate of
such Bank or to any other Bank or a collateral assignment or other similar
transfer to a Federal Reserve Bank. Upon execution and delivery of such an
Assignment and Assumption and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights, interests and obligations of a Bank with the Commitments as
set forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (ii), the transferor Bank, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the Assignee.
(iii) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Sections 2.10, 2.11 and
2.15 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or at a time when the circumstances giving rise to such greater
payment did not exist.
(iv) Assignments require a fee payable to the Administrative Agent by
the transferor Bank, solely for the account of the Administrative Agent, in the
amount of $3,500.
9.11. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures hereto and thereto were
upon the same instrument.
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9.12. PARTIAL INVALIDITY. The invalidity or unenforceability of any one
or more phrases, clauses or sections of this Agreement shall not affect the
validity or enforceability of the remaining portions of it.
9.13. CAPTIONS. The captions and headings of the various sections and
subsections of this Agreement are provided for convenience only and shall not be
construed to modify the meaning of such sections or subsections.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE BANKS AND THE
ADMINISTRATIVE AGENT MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE BANKS TO ENTER INTO THIS AGREEMENT AND TO MAKE LOANS AND EXTEND
CREDIT TO THE BORROWER. THE BORROWER (I) CERTIFIES THAT NEITHER THE
ADMINISTRATIVE AGENT, NOR ANY BANK NOR ANY REPRESENTATIVE, ADMINISTRATIVE AGENT
OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY BANK HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY BANK WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT,
IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THE
BORROWER IS A PARTY, THE ADMINISTRATIVE AGENT AND THE BANKS ARE RELYING UPON,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
9.14.
9.15. WAIVER OF SPECIAL DAMAGES. EXCEPT AS PROHIBITED BY LAW, THE
BORROWER HEREBY WAIVES ANY RIGHTS WHICH IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THE LOAN DOCUMENTS OR OTHER SECURITY DOCUMENTS, INCLUDING
WITHOUT LIMITATION THIS AGREEMENT AND THE NOTES AND ANY AMENDMENTS THEREOF, ANY
SPECIAL EXEMPLARY OR PUNITIVE DAMAGES. THE BORROWER (A) CERTIFIES THAT NO BANK,
ADMINISTRATIVE AGENT OR REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY THEREOF
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH ENTITY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT, IN ENTERING INTO THIS AGREEMENT, THE BANKS AND THE ADMINISTRATIVE AGENTS
ARE RELYING UPON, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION 9.15.
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9.16. ENTIRE AGREEMENT. This Agreement, the Notes, the other Security
Documents and the other documents and agreements executed in connection herewith
constitute the final agreement of the parties hereto and supersede any prior
agreement or understanding, written or oral, with respect to the matters
contained herein and therein.
9.17. REPLACEMENT OF PROMISSORY NOTES, ETC. Upon receipt of an
affidavit of an officer of any Bank as to the loss, theft, destruction or
mutilation of one or more of the Notes payable to such Bank, or upon receipt of
an affidavit of an officer of the Administrative Agent as to the loss, theft,
destruction or mutilation of any other Loan Document which is not of public
record, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of such Note or Loan Document, the Borrower will issue, in
lien thereof, a replacement Note or other Loan Document containing the same
terms and conditions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
THE BORROWER:
XXX-XXXX CORPORATION
By: /s/ Xxxxxxx Xxxx XxxXxxxxx, Xx.
------------------------------------
Name: Xxxxxxx Xxxx XxxXxxxxx, Xx.
Title: Chairman and Chief Executive
Officer
MAC-GRAY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
INTIRION CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
(signatures continued on next page)
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THE ADMINISTRATIVE AGENT:
FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Director
THE DOCUMENTATION AGENT:
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE BANKS:
FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Director
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxxx St. Xxxx
------------------------------------
Name: Xxxxxxx St. Xxxx
Title: Vice President
FIRST MASSACHUSETTS BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
(signatures continued on next page)
-00-
XXXXXXX XXXXXXXX ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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SCHEDULE 1
COMMITMENT AND COMMITMENT PERCENTAGES
Revolving
Credit
1. Bank Commitment Percentage
---- ---------- ----------
Fleet $21,125,000 32.50%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Citizens $14,625,000 22.50%
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
First Mass. $13,000,000 20.00%
0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Key $16,250,000 25.00%
Xxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000-0000
TOTAL $65,000,000 100%
Term Loan
2. Bank Commitment Percentage
---- ----------- ----------
Fleet $11,375,000 32.50%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Citizens $ 7,875,000 22.50%
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
First Mass. $ 7,000,000 20.00%
0 Xxx Xxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Key $ 8,750,000 25.00%
Xxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000-0000
TOTAL $35,000,000 100%
I-1
