EXHIBIT 10.1
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FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into as of the 17th day of June, 2009 by and between XXXXXXXX, INC., a
Delaware corporation ("Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association (the "Bank").
W I T N E S S E T H:
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WHEREAS, Bank and the Borrower are party to that certain Loan
Agreement dated as of October 5, 2007 (the "Agreement"); and
WHEREAS, the Bank and the Borrower desire to amend the Agreement in
accordance with this Amendment.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms
and conditions of this Amendment, the parties, intending to be bound,
hereby agree as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms which
are not defined hereunder shall have the same meanings as set forth in the
Agreement, and the Agreement, to the extent not inconsistent with this
Amendment, is incorporated herein by this reference as though the same were
set forth in its entirety. To the extent any terms and provisions of the
Agreement are inconsistent with the amendments set forth in PARAGRAPH 2
below, such terms and provisions shall be deemed superseded hereby. Except
as specifically set forth herein, the Agreement shall remain in full force
and effect and its provisions shall be binding on the parties hereto.
2. AMENDMENT OF THE AGREEMENT.
(a) The definitions of the terms "Borrowing Base", "Borrowing
Base Certificate", "EBITDAR", "Fixed Assets", "Fixed Charge Coverage
Ratio", "Global Dividends", "Liquidity Premium", "Maintenance Capital
Expenditures", "Minority Distributions", "Pro Forma Amortization",
"Revolving Loan Availability" and "Subsidiary Guarantor" are hereby added
to Section 1.1 of the Agreement to read as follows:
"Borrowing Base" shall mean:
(a) an amount equal to eighty percent (80%) of the amount of
Accounts due and owing to the Borrower and each Subsidiary
Guarantor from Account Debtors domiciled in the United States
or Canada, plus
(b) an amount equal to fifty percent (50%) of the lower of
cost or market value of Inventory of the Borrower and each
Subsidiary Guarantor located in the United States,
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(c) an amount equal to fifty percent (50%) of the net book
value of all domestic Fixed Assets of the Borrower and each
Subsidiary Guarantor, plus
(d) an amount equal to one hundred percent of cash on hand
located in deposit accounts within the United States.
"Borrowing Base Certificate" shall have the meaning set forth
in Section 9.7(i).
"EBITDAR" shall mean EBITDA plus domestic rent expense of the
Borrower and each Subsidiary Guarantor.
"Fixed Assets" means all domestic assets of Borrower and each
Subsidiary Guarantor which are classified as fixed assets in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means as of any date, computed
for the prior twelve month period, the ratio of (a) EBITDAR for
the prior twelve month period MINUS Maintenance Capital
Expenditures MINUS federal and state income taxes paid in cash
of the Borrower and each Subsidiary domiciled in the United
States LESS Global Dividends PLUS Minority Distributions to
(b) domestic Interest Expense of the Borrower and each
Subsidiary Guarantor PLUS Pro Forma Amortization PLUS domestic
rent expense of the Borrower and each Subsidiary Guarantor,
PLUS scheduled principal payments of the Borrower and each
Subsidiary Guarantor, all as determined in accordance with
GAAP.
"Global Dividends" shall mean 100% of all dividends issued by
Borrower to its shareholders.
"Liquidity Premium" means 1.00% with respect to all LIBOR Loans
and 0.97% with respect to all Prime Loans.
"Maintenance Capital Expenditures" shall mean an amount equal
to fifty percent (50%) of the domestic depreciation expense of
Borrower and each Subsidiary Guarantor.
"Minority Distributions" means, for any period, all
distributions and dividends made from the foreign Subsidiaries
of Borrower to Borrower in cash.
"Pro Forma Amortization" means, for purposes of calculating the
Fixed Charge Coverage Ratio, the pro forma amortization of that
portion of the Borrowing Base advanced on domestic Fixed Assets
determined in accordance with the most recently delivered
Borrowing Base Certificate, which amount is assumed to be
amortized during such period based upon a term of seven (7)
years.
"Revolving Loan Availability" shall mean at any time, the
lesser of (a) the Revolving Loan Commitment, or (b)
the Borrowing Base.
"Subsidiary Guarantor" means each domestic Subsidiary of the
Borrower which has executed a guaranty of the Obligations in
favor of the Bank in form and substance acceptable to the Bank.
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(b) The definition of the terms "EBITDA", "Interest Rate",
"LIBOR Loans", "LIBOR Rate", "Loan Period", "Maturity Date", "Maximum
Letter of Credit Obligation" and "Revolving Loan Commitment" are hereby
amended and restated to read as follows:
"EBITDA" shall mean, for any period, (a) the sum for such
period of: (i) domestic net income of the Borrower and each
Subsidiary Guarantor, as determined in accordance with GAAP,
PLUS (ii) domestic Interest Expense of the Borrower and each
Subsidiary Guarantor, PLUS (iii) federal and state income taxes
paid in the United States, as determined in accordance with
GAAP (iv) all amounts treated as expenses for domestic
depreciation and amortization expense for the Borrower and each
Subsidiary Guarantor PLUS any non-cash items of loss which are
extraordinary items as defined by GAAP, MINUS (b) any non-cash
items of gain which are extraordinary items as defined by GAAP,
including, without limitation, (i) that portion of net income
arising out of the sale of assets outside of the ordinary
course of business, (ii) income from all foreign Subsidiaries
and any domestic Subsidiaries which are not Subsidiary
Guarantors, and (iii) any gains from minority interest income.
"Interest Rate" means Borrower's option from time to time of
(i) the Prime Rate MINUS 0.50% PLUS the Liquidity Premium in
effect for Prime Loans (the "Prime Based Interest Rate") or
(ii) the LIBOR Rate PLUS 1.90% PLUS the Liquidity Premium in
effect for LIBOR Loans (the "LIBOR Based Interest Rate");
provided, however, the Prime Based Interest Rate shall only be
available when (i) the Prime Based Interest Rate is more than
the LIBOR Based Interest Rate or (ii) in instances where the
LIBOR Rate is not available in accordance with SECTION 2.2(b)
and (c).
"LIBOR Loan" or "LIBOR Loans" shall mean that portion, and
collectively those portions, of the aggregate outstanding
principal balance of the Revolving Loans that will bear
interest at the LIBOR Rate.
"LIBOR Rate" means the one-month LIBOR Rate quoted by the Bank
from Reuters Screen LIBOR01 or any successor thereto, which
shall be that one-month LIBOR rate in effect and reset each New
York Banking Day, adjusted for any reserve requirement and any
subsequent costs arising from a change in government
regulation, such rate rounded up to the nearest one-sixteenth
percent.
"Loan Period" shall mean the period commencing on the advance
date of the applicable LIBOR Rate Loan and ending on the
numerically corresponding day one month thereafter matching the
interest rate term selected by Borrower; provided, however,
(a) if any Loan Period would otherwise end on a day which is
not a New York Banking Day, then the Loan Period shall end on
the next succeeding New York Banking Day unless the next
succeeding New York Banking Day falls in another calendar
month, in which case the Loan Period shall end on the
immediately preceding New York Banking Day; or (b) if any Loan
Period begins on the last New York Banking Day of a calendar
month (or on the day for which there is no numerically
corresponding day in the calendar month at the end of the Loan
Period), then the Loan Period shall end on the last New York
Banking Day of the calendar month at the end of such Loan
Period.
"Maturity Date" shall mean June 16, 2011, unless extended by
the Bank pursuant to any modification, extension or renewal
note executed by the Borrower and accepted by the Bank in its
sole and absolute discretion in substitution for the Revolving
Note.
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"Maximum Letter of Credit Obligation" shall mean (a) in the
event the outstanding amount of all Revolving Loans PLUS the
stated amount of all Letter of Credit Obligations is less than
or equal to Twenty Million Dollars ($20,000,000), the lesser of
(i) the amount of the Revolving Loan Commitment less the
aggregate amount of all Loans (including, but not limited to,
Letter of Credit Obligations which shall include any requested
Letter of Credit, as applicable) outstanding at any time and
(ii) Fifteen Million Dollars ($15,000,000) and (b) in the event
the outstanding amount of all Revolving Loans PLUS the stated
amount of all Letter of Credit Obligations is greater than
Twenty Million Dollars($20,000,000), the lesser of (i) the
Borrowing Base less the aggregate amount of all Revolving Loans
(including, but not limited to, Letter of Credit Obligations
which shall include any requested Letter of Credit, as
applicable) outstanding at any time and (ii) Fifteen Million
Dollars ($15,000,000).
"Revolving Loan Commitment" shall mean Thirty Million Dollars
($30,000,000).
(c) The definition of the term "LIBOR" is hereby deleted from
Section 1.1 of the Agreement.
(d) The first sentence of Section 2.1(a) is hereby amended
and restated to read as follows:
Subject to the terms and conditions of this Agreement and the
other Loan Documents, and in reliance upon the representations
and warranties of Borrower set forth herein and in the other
Loan Documents, the Bank agrees to make such Revolving Loans at
such times as Borrower may from time to time request until, but
not including, the Maturity Date, and in such amounts as
Borrower may from time to time request; provided, however, that
the aggregate principal balance of all Revolving Loans and all
Letter of Credit Obligations (the "Outstandings") outstanding
at any time shall not exceed (i) the Revolving Loan Commitment
in the event Outstandings (including the requested advance) are
less than or equal to $20,000,000 and (ii) Revolving Loan
Availability in the event Outstandings (including the requested
advance) are greater than $20,000,000.
(e) SECTION 2.1(c)(i) is hereby amended and restated to read
as follows:
(i) MANDATORY PREPAYMENTS. All Revolving Loans hereunder
shall be repaid by Borrower on the Maturity Date, unless
payable sooner pursuant to the provisions of this Agreement.
In the event the aggregate outstanding principal balance of all
Revolving Loans and Letter of Credit Obligations hereunder
exceeds (i) the Revolving Loan Commitment (in the event the
aggregate amount of outstanding Revolving Loans and the stated
amount of all Letters of Credit are less than or equal to
$20,000,000) or (ii) Revolving Loan Availability (in the event
the aggregate amount of outstanding Revolving Loans and the
stated amount of all Letters of Credit are greater than
$20,000,000), Borrower shall, without notice or demand of any
kind, immediately make such repayments of the Revolving Loans
or take such other actions as shall be necessary to eliminate
such excess. Also, if Borrower chooses not to convert any
Revolving Loan which is a LIBOR Loan to a Prime Loan as
provided in Section 2.2(b) and Section 2.2(c), then such
Revolving Loan shall be immediately due and payable on the last
New York Banking Day of the then-existing Loan Period or on
such earlier date as required by law, all without further
demand, presentment, protest or notice of any kind, all of
which are hereby waived by Borrower (each a "Mandatory
Prepayment").
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(f) SECTION 5.1(a) is hereby amended and restated to read as
follows:
(a) Each Loan shall be made available to Borrower upon
Borrower's request from any Person whose authority to so act
has not been revoked by Borrower in writing previously received
by the Bank. Each Revolving Loan may be advanced either as a
Prime Loan (to the extent available in accordance with the
terms herein) or a LIBOR Loan. A request for a Prime Loan must
be received by no later than 11:00 a.m. Chicago, Illinois time,
on the day it is to be funded. A request for a LIBOR Loan must
be received by no later than 11:00 a.m. Chicago, Illinois time
on the day it is to be funded. In the event Borrower does not
select an interest rate option, such Loan shall bear interest
at the LIBOR Rate. The proceeds of each Prime Loan or LIBOR
Loan shall be made available at the office of the Bank by
credit to the account of Borrower or by other means requested
by Borrower and acceptable to the Bank. All Loans must be paid
in full on the Maturity Date. Bank's internal records of
applicable interest rates shall be determinative in the absence
of manifest error.
(g) SECTION 5.2 of the Agreement is hereby amended by
removing the words "one percent (1.00%)" appearing in the middle of such
Section and replacing them with the words "one and nine-tenths percent
(1.90%)" in their place.
(h) SECTION 8.4(v) is hereby amended and restated to read as
follows:
(v) any Acquisition where (each a "Permitted Acquisition"):
(A) the business or division acquired are for use, or the
Person acquired is engaged, in the business of healthcare or
the monitoring and detection industry;
(B) immediately before and after giving effect to such
Acquisition, no Event of Default shall exist;
(C) the aggregate consideration to be paid by Borrower
(including any Indebtedness assumed or issued in connection
therewith, the amount thereof to be calculated in accordance
with GAAP) in connection with all Acquisitions (or any series
of related Acquisitions) is no more than $100,000,000 in the
aggregate following the Closing Date;
(D) in the event the Borrower is requesting a Revolving Loan
in excess of $10,000,000 and the aggregate amount of all
Outstandings is greater than or equal to $20,000,000 after
giving effect to all requests for Revolving Loans, the Borrower
shall provide the Bank with a Borrowing Base Certificate
immediately prior to such Acquisition evidencing that the
Outstandings (including the requested advance) do not exceed
Revolving Loan Availability on a pro forma basis after giving
effect to such Acquisition;
(E) immediately after giving effect to such Acquisition,
Borrower is in pro forma compliance with all the financial
ratios and restrictions set forth in SECTION 10 and delivers a
Compliance Certificate in the form of EXHIBIT B to the Bank
evidencing the calculation of such financial ratios on a pro
forma basis prior to the consummation of such Acquisition;
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(F) in the case of the Acquisition of any Person, the board
of directors or similar governing body of such Person has
approved such Acquisition and such Acquisition is not
considered to be hostile;
(G) reasonably prior to such Acquisition, the Bank shall have
received complete executed or conformed copies of each material
document, instrument and agreement to be executed in connection
with such Acquisition together with all lien search reports and
lien release letters and other documents as the Bank may
require to evidence the termination of Liens on the assets or
business to be acquired;
(H) not less than ten New York Banking Days prior to such
Acquisition, the Bank shall have received an acquisition
summary with respect to the Person and/or business or division
to be acquired, such summary to include a reasonably detailed
description thereof (including financial information) and
operating results (including financial statements for the most
recent 12 month period for which they are available and as
otherwise available), the terms and conditions, including
economic terms, of the proposed Acquisition, and Borrower's
calculation of pro forma EBITDA relating thereto; and
(I) if the Acquisition is structured as a merger, the
surviving entity is either Borrower or, following the merger, a
domestic wholly-owned Subsidiary which is a Borrower hereto.
Notwithstanding the foregoing, for all acquisitions involving
consideration which is less than or equal to $10,000,000,
Borrower shall only be required to deliver to Bank an officer's
certificate in form and substance reasonably acceptable to Bank
at least 10 days prior to such Acquisition certifying to items
(A) through (F) above, together with a Borrowing Base
Certificate required under item (D) above (only to the extent
Outstandings are greater than $20,000,000 after giving effect
to such acquisition) and a Compliance Certificate under item
(E) above.
(i) SECTION 9.7(a) is hereby amended and restated to read as
follows:
(a) within forty-five (45) days after the end of each
calendar quarter, (i) a certificate showing compliance by
Borrower with the financial covenants set forth in SECTION 10
below in the form of EXHIBIT B attached hereto and (ii) a
certified spread sheet showing all line items comprising the
following figures for the Borrower and each Subsidiary
Guarantor, prepared on a consolidating basis which ties into
the most recent quarterly consolidated financial statement
delivered pursuant to SECTION 9.7(c): domestic EBITDA,
domestic rent expense, domestic Interest Expense, domestic
depreciation expense, domestic taxes paid in cash, Global
Dividends, Minority Distributions, scheduled principal
payments, domestic Accounts, domestic Inventory, domestic Fixed
Assets, and cash maintained in bank accounts located in the
United States, in form and substance reasonably acceptable to
the Bank;
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(j) SECTION 9.7 is hereby amended by removing the word "and" at
the end of subsection (g), replacing the period at the end of subsection
(h) with the word "and" and adding a new subsection (i) to read as follows:
(i) within forty-five (45) days after the last day of each
calendar quarter from and after the date hereof when (i) the
aggregate amount of Revolving Loans and Letter of Credit
Obligations exceeds $20,000,000 and (ii) cash on deposit at the
Bank is at least $10,000,000, in each case determined as of the
last Business Day of each fiscal quarter, a duly executed
Borrowing Base Certificate in the form of EXHIBIT C to this
Agreement (each a "Borrowing Base Certificate"); provided,
however, that such Borrowing Base Certificate shall be required
to be delivered within thirty (30) days of the last day of each
calendar month in all instances when (x) the aggregate amount
of Revolving Loans and Letter of Credit Obligations exceeds
$20,000,000 and (y) Cash on deposit at the Bank is less than
$10,000,000 in each case determined as of the last Business Day
of the prior month.
(k) SECTION 10.1 of the Agreement is hereby amended and
restated to read as follows (it being understood and agreed that the
Tangible Net Worth Covenant is hereby deleted):
10.1 FIXED CHARGE COVERAGE RATIO. Borrower shall maintain a
Fixed Charge Coverage Ratio determined at the end of each
calendar quarter of not less than 1.35 to 1.00.
(l) SECTION 10.2 of the Agreement is hereby amended and
restated to read as follows:
10.2 FUNDED DEBT TO EBITDA. Borrower shall maintain a ratio
of Funded Debt to EBITDA (calculated on a rolling four quarter
basis) determined at the end of each calendar quarter of less
than or equal to 1.5 to 1.00.
(m) EXHIBIT A to the Agreement is hereby amended and restated
with EXHIBIT A attached hereto.
(n) EXHIBIT B to the Agreement is hereby amended and restated
with EXHIBIT B attached hereto.
(o) EXHIBIT C is hereby added to the Agreement in the form
attached hereto.
3. DELIVERY OF DOCUMENTS. The following documents and other items
shall be delivered concurrently with this Amendment:
a. Amended and Restated Revolving Note; and
b. Such other documents, certificates, opinions and
financing statements as Bank shall request.
4. REPRESENTATIONS, COVENANTS AND WARRANTIES; NO DEFAULT. The
representations, covenants and warranties set forth in SECTIONS 7, 8 and 9
of the Agreement shall be deemed remade as of the date hereof by Borrower,
except that any representations and warranties that specifically relate to
a particular date shall be true and correct as of such date and all
references to the Agreement in such representations and warranties shall be
deemed to include this Amendment. No Event of Default has occurred and is
continuing and no event has occurred and is continuing which, with the
lapse of time, the giving of notice, or both, would constitute such an
Event of Default under the Agreement.
5. FEES AND EXPENSES. The Borrower agrees to pay on demand all
costs and expenses of or incurred by Bank, including, but not limited to,
reasonable legal fees and expenses, in connection with the evaluation,
negotiation, preparation, execution and delivery of this Amendment.
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6. EFFECTUATION. The amendments to the Agreement contemplated by
this Amendment shall be deemed effective immediately upon the full
execution of this Amendment and without any further action required by the
parties hereto. There are no conditions precedent or subsequent to the
effectiveness of this Amendment.
7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by telefacsimile or electronic mail
shall be equally effective as delivery of a manually executed counterpart
of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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(Signature Page to First Amendment to Loan Agreement)
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment to Loan Agreement as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION XXXXXXXX, INC.,
a Delaware corporation
By: /s/ U.S. Bank National By: /s/ Xxxxxxxx X. Xxxxxx
Association Its: Senior Vice President,
Its: Finance, Secretary,
-------------------------- Treasurer, and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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EXHIBIT A
to Loan Agreement
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AMENDED AND RESTATED REVOLVING NOTE
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$30,000,000 Chicago, Illinois
June 17, 2009
FOR VALUE RECEIVED, on or before June 16, 2011 (or, if such day is
not a New York Banking Day, on the next following New York Banking Day),
the undersigned, XXXXXXXX, INC., a Delaware corporation (referred to herein
as "Borrower") promises to pay to the order of U.S. BANK NATIONAL
ASSOCIATION, a national banking association (herein, together with its
successors and assigns, called the "Bank"), the maximum principal sum of
THIRTY MILLION AND 00/100 DOLLARS ($30,000,000) or, if less, the aggregate
unpaid principal amount of all Loans made by the Bank to the undersigned
pursuant to that certain Loan Agreement dated as of October 5, 2007 between
Borrower and the Bank, as amended by that certain First Amendment to Loan
Agreement of even date herewith (herein, as the same may be further
amended, modified or supplemented from time to time, called the "Loan
Agreement") as shown either on the schedule attached hereto (and any
continuation thereof) or in the Bank's records.
Borrower further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding
from the date hereof until paid in full at such rates and at such times as
shall be determined in accordance with the provisions of the Loan
Agreement. Accrued interest shall be payable on the dates specified in the
Loan Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America in immediately available funds at the
Bank's principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as may be designated by the Bank to Borrower
in writing.
This Note is the Revolving Note referred to in, evidences
indebtedness incurred under, and is subject to the terms and provisions of,
the Loan Agreement. The Loan Agreement, to which reference is hereby made,
sets forth said terms and provisions, including those under which this Note
may or must be paid prior to its due date or may have its due date
accelerated. Terms used but not otherwise defined herein are used herein
as defined in the Loan Agreement.
In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement hereinabove referred to, Borrower further
agrees, subject only to any limitation imposed by applicable law, to pay
all expenses, including attorneys' fees and expenses, incurred by the
holder of this Note in seeking to collect any amounts payable hereunder
which are not paid when due, whether by acceleration or otherwise.
This Note is an amendment and restatement of, but not a repayment of,
that certain Revolving Note dated as of October 5, 2007 in the maximum
principal amount available of $15,000,000 (the "Prior Note") of Borrower
payable to the order of Bank and does not and shall not be deemed to
constitute a novation therefor. Such Prior Note shall be of no further
force and effect upon the execution of this Note; provided, however, that
the outstanding amount of principal and interest under the Prior Note as of
the date of this Note is hereby deemed indebtedness evidenced by this Note
and incorporated herein by this reference.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is binding upon the undersigned and its successors and
assigns, and shall inure to the benefit of the Bank and its successors and
assigns. This Note is made under and governed by the laws of the State of
Illinois without regard to conflict of laws principles.
(Signature Page Follows)
(Signature Page to Amended and Restated Revolving Note)
IN WITNESS WHEREOF, Borrower has executed this Note as of the day and
year first above written.
XXXXXXXX, INC., a Delaware corporation
By:
------------------------------
Its:
------------------------------
EXHIBIT B
to
Loan Agreement
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FORM OF COMPLIANCE CERTIFICATE
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To: U.S. Bank National Association
Please refer to the Loan Agreement dated as of October 5, 2007 (as
amended or otherwise modified from time to time, the "Loan Agreement")
between each of XXXXXXXX, INC., a Delaware corporation (the "Borrower"),
and U.S. Bank National Association. Terms used but not otherwise defined
herein are used herein as defined in the Loan Agreement.
I. REPORTS. Enclosed herewith is a copy of the [annual
audited/quarterly/monthly] report of Borrower as of
_____________, ____ (the "Computation Date"), which report
fairly presents in all material respects the financial
condition and results of operations (subject to the absence of
footnotes and to normal year-end adjustments) of Borrower and
pro forma impact of any Permitted Acquisition, as applicable,
as of the Computation Date and has been prepared in accordance
with GAAP consistently applied.
II. FINANCIAL TESTS. Borrower hereby certifies and warrants to you
that the following is a true and correct computation as at the
Computation Date of the following ratios and/or financial
restrictions contained in the Loan Agreement determined for
domestic operations only:
A. Section 10.1 -- Fixed Charge Coverage Ratio
1. Required 1.35 to 1
B. Section 10.2 -- Funded Debt/EBITDA Ratio
1. Required 1.5 to 1
Borrower further certifies to you that no Event of Default has
occurred and is continuing.
(Signature Page Follows)
IN WITNESS WHEREOF, Borrower has caused this Certificate to be
executed and delivered by its duly authorized officer on _________, ____.
XXXXXXXX, INC., a Delaware corporation
By:
------------------------------
Its:
------------------------------
EXHIBIT C
to Loan Agreement
-----------------
FORM OF BORROWING BASE CERTIFICATE
----------------------------------
To: U.S. Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Please refer to the Loan Agreement dated as of October 5, 2007 (as
amended or otherwise modified from time to time, the "Loan Agreement")
between Xxxxxxxx, Inc. and U.S. Bank National Association. This
certificate (this "Certificate"), together with supporting calculations
attached hereto, is delivered to you pursuant to the terms of the Loan
Agreement. Capitalized terms used but not otherwise defined herein shall
have the same meanings herein as in the Loan Agreement.
The Borrower hereby certifies and warrants to the Bank that at the
close of business on ______________, 200__ (the "Calculation Date"), the
Borrowing Base was $_____________, computed as set forth on the schedule
attached hereto.
IN WITNESS WHEREOF, Borrower has caused this Certificate to be
executed and delivered by its officer thereunto duly authorized on
___________, ______.
XXXXXXXX, INC., a Delaware corporation
By:
------------------------------
Its:
------------------------------
SCHEDULE TO BORROWING BASE CERTIFICATE
Dated as of [_________________]
COLLATERAL REPORT
Loan # _____________________
DATE _______________________REPORT #________________________
PERIOD COVERED ________________________ TO ________________________
1. DOMESTIC ACCOUNTS RECEIVABLE
as of ________________ $__________
2. BORROWING BASE VALUE (80%) $__________
3. DOMESTIC INVENTORY as of ________ $__________
4. BORROWING BASE VALUE (50%) $__________
5. NET BOOK VALUE OF DOMESTIC
FIXED ASSETS as of ____________ $__________
6. BORROWING BASE VALUE (50% of Line 5) $__________
7. DOMESTIC CASH ON HAND $__________
8. BORROWING BASE (Lesser of Sum of Lines
2 +4 + 6 + 7 or $30,000,000) $__________
9. TOTAL REVOLVING LOANS $__________
10. TOTAL LETTER OF CREDIT OBLIGATIONS $__________
11. REQUESTED ADVANCE $__________
12. TOTAL OUTSTANDINGS (9+10+11) $__________
13. EXCESS/(DEFICIT) (8-12) $__________
For the purpose of inducing U.S. BANK NATIONAL ASSOCIATION to grant loans
to us pursuant to the Loan Agreement, and any and all amendments thereto,
and any and all other agreements executed by the undersigned and given to
U.S. BANK NATIONAL ASSOCIATION (collectively the "Agreements"), we hereby
certify that the foregoing is true and correct in all particulars and that
the above-described assets meet the requirements set forth in the
Agreements.
