Exhibit 10
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
LASALLE BANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
XXXXX FARGO BANK, N.A.
AS SYNDICATION AGENT
AND
UMB BANK, NATIONAL ASSOCIATION
AS DOCUMENTATION AGENT
AND
LASALLE BANK NATIONAL ASSOCIATION
AND
THE OTHER LENDERS LISTED ON EXHIBIT 3
AS LENDERS
AND
XXXXXXXX CORPORATION
AS BORROWER
JANUARY __, 2005
TABLE OF CONTENTS
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1. Effective Date..............................................................................................1
2. Definitions and Rules of Construction.......................................................................1
2.1. Listed Definitions.....................................................................................1
2.2. Other Definitions......................................................................................1
2.3. References to Covered Person...........................................................................1
2.4. References to Required Lenders.........................................................................1
2.5. Accounting Terms.......................................................................................1
2.6. Meaning of Satisfactory................................................................................2
2.7. Xxxxx Fargo Bank, N.A. Appointment as Syndication Agent................................................2
2.8. UMB Bank, National Association Appointment as Documentation Agent......................................2
2.9. Computation of Time Periods............................................................................2
2.10. General.............................................................................................2
2.11. Patriot Act Notice..................................................................................2
2.12. Reaffirmation.......................................................................................3
2.13. National Linen Acquisition..........................................................................3
2.14. Royal Acquisition...................................................................................3
2.15. Consent of December 14, 2004........................................................................4
3. Lenders' Commitments........................................................................................4
3.1. Revolving Loan Commitments.............................................................................4
3.1.1. Aggregate Amount; Reductions.....................................................................4
3.1.2. Increases in Revolving Loan Commitment...........................................................4
3.1.3. Limitation on Revolving Loan Advances............................................................5
3.1.4. Revolving Notes..................................................................................5
3.2. Swingline Commitment...................................................................................5
3.2.1. Swingline Advances...............................................................................5
3.2.2. Limitations on Swingline Advances................................................................6
3.2.3. Swingline Note...................................................................................6
3.3. Letter of Credit Commitment............................................................................6
3.4. Term Loan Commitments..................................................................................7
3.4.1. Aggregate Term Loan..............................................................................7
3.4.2. Term Loan Notes..................................................................................7
3.5. Order of Advance Requests..............................................................................7
4. Interest....................................................................................................7
4.1. Interest on Draws on Letters of Credit.................................................................7
4.2. Interest on the Swingline Loan.........................................................................7
4.3. Interest on Aggregate Loans............................................................................7
4.4. Adjusted Base Rate.....................................................................................8
4.5. Adjusted Eurodollar Rate...............................................................................8
4.6. Base Rate Revolving Margins and Eurodollar Revolving Margins...........................................8
4.7. Interest Periods for Eurodollar Loans..................................................................9
4.8. Time of Accrual.......................................................................................10
4.9. Computation...........................................................................................10
4.10. Rate After Maturity................................................................................10
5. Fees.......................................................................................................10
5.1. Upfront Fee...........................................................................................10
5.2. Revolving Loan Unused Fee.............................................................................11
5.3. Letter of Credit Fee..................................................................................11
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5.4. Letter of Credit Fronting Fee.........................................................................11
5.5. Other Letter of Credit Fees...........................................................................11
5.6. Calculation of Fees...................................................................................11
6. Payments...................................................................................................11
6.1. Scheduled Payments on Aggregate Revolving Loan and Swingline Loan.....................................11
6.1.1. Interest........................................................................................12
6.1.2. Principal.......................................................................................12
6.2. Scheduled Payments on Term Loan.......................................................................12
6.2.1. Interest........................................................................................12
6.2.2. Principal.......................................................................................12
6.3. Application...........................................................................................12
6.4. Prepayments...........................................................................................12
6.4.1. Voluntary Prepayment............................................................................12
6.4.2. Mandatory Prepayments When Over-Advances Exist..................................................13
6.4.3. Other Mandatory Prepayments.....................................................................13
6.5. Reimbursement Obligations of Borrower.................................................................15
6.6. Manner of Payments and Timing of Application of Payments..............................................15
6.6.1. Payment Requirement.............................................................................15
6.6.2. Application of Payments and Proceeds............................................................15
6.6.3. Interest Calculation............................................................................15
6.7. Returned Instruments..................................................................................15
6.8. Compelled Return of Payments or Proceeds..............................................................16
6.9. Due Dates Not on Business Days........................................................................16
7. Procedure for Obtaining Advances and Letters of Credit.....................................................16
7.1. Initial Advances......................................................................................16
7.2. Subsequent Revolving Loan Advances....................................................................16
7.2.1. Borrower Requests...............................................................................16
7.2.2. Revolving Loan Advances to Repay the Swingline Loan.............................................17
7.2.3. Term Loan Advances..............................................................................17
7.2.4. Administrative Agent's Right to Make Other Revolving Loan Advances..............................18
7.3. Letters of Credit.....................................................................................18
7.4. Fundings..............................................................................................18
7.4.1. Advances........................................................................................18
7.4.2. Draws on Letters of Credit......................................................................18
7.4.3. All Fundings Ratable............................................................................19
7.5. Administrative Agent's Availability Assumption........................................................19
7.5.1. Unless Administrative Agent has been given written notice by a Lender prior to an Advance Date
that such Lender does not intend to make immediately available to Administrative Agent such Lender's pro-rata
share of the Advance which Administrative Agent will be obligated to make on the Advance Date, Administrative
Agent may assume that such Lender has made the required amount available to Administrative Agent on the
Advance Date and Administrative Agent may, in reliance upon such assumption, make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made immediately available to
Administrative Agent by such Lender on the Advance Date, Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount
(or an amount demanded by Administrative Agent pursuant to Section 7.2.2.1) immediately upon Administrative
Agent's demand therefor, then Administrative Agent shall promptly notify Borrower and the other Lenders and
Borrower shall immediately pay such corresponding amount to Administrative Agent. Administrative Agent shall
also be entitled to recover, either from such defaulting Lender (a Defaulting Lender) or Borrower, interest
on such corresponding amount for each day from the date such corresponding amount was made available by
Administrative Agent to
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Borrower to the date such corresponding amount is recovered by Administrative Agent, at a rate per annum
equal to (i) if paid by such Lender, the cost to Administrative Agent of funding such amount at the Federal
Funds Rate, or (ii) if paid by Borrower, the applicable rate for the Advance in question determined from the
request therefor. Each Lender shall be obligated only to fund its pro-rata share of an Advance subject to the
terms and conditions hereof, regardless of the failure of another Lender to fund its pro-rata share thereof.
In addition, the failure of any Lender to pay its pro-rata share of any such Advance shall cause such Lender
to be a Defaulting Lender and such Defaulting Lender shall, until such amount is paid to Administrative Agent
(with interest at the Federal Funds Rate), (a) permit Administrative Agent the unconditional and irrevocable
right of setoff against any amounts (including, without limitation, payments of principal, interest, and
fees, as well as indemnity payments) received by Administrative Agent hereunder for the benefit of any such
Defaulting Lender, and (b) if such failure to pay shall continue for a period of two Business Days, result in
any such Defaulting Lender forfeiting any right to vote on any matter that the Required Lenders or all
Lenders are permitted to vote for hereunder (and the calculation of Required Lenders shall exclude such
Defaulting Lender's interest in the Lenders' Exposure); provided, however, once such a failure is cured, then
such Lender shall, subsequent thereto, have all rights hereunder; provided, further, however, if any Lender
shall fail to make such a payment within the two Business Day period specified in clause (b) above (other
than by reason of events beyond the reasonable control of such Lender) four (4) or more times during the term
hereof, such Lender shall permanently forfeit its right to vote hereunder (and the calculation of Required
Lenders shall exclude such Defaulting Lender's interest in the Lenders' Exposure). If there is a Defaulting
Lender, the Administrative Agent shall with reasonable promptness request that the other Lenders fund such
Defaulting Lender's portion of the requested Advances, although the other Lenders shall have no obligation to
do so and may refuse to do so in their sole discretion.....................................................19
7.6. Disbursement..........................................................................................20
7.7. Restrictions on Advances..............................................................................20
7.8. Restriction on Number of Eurodollar Loans.............................................................20
7.9. Each Advance Request and Letter of Credit Request a Certification.....................................20
7.10. Requirements for Every Advance Request.............................................................20
7.11. Requirements for Every Letter of Credit Request....................................................21
7.12. Exoneration of Administrative Agent and Lenders....................................................21
8. Conditions of Lending......................................................................................21
8.1. Conditions to Initial Advance.........................................................................21
8.1.1. Listed Documents and Other Items................................................................21
8.1.2. Financial Condition; Projections................................................................21
8.1.3. No Default......................................................................................22
8.1.4. Representations and Warranties..................................................................22
8.1.5. No Material Adverse Change......................................................................22
8.1.6. Pending Material Proceedings....................................................................22
8.1.7. Administrative Agent Fee Letter.................................................................22
8.1.8. Payment of Fees and Expenses....................................................................22
8.1.9. Insurance.......................................................................................22
8.1.10. Closing Certificate.............................................................................22
8.1.11. Other Items.....................................................................................22
8.2. Conditions to Subsequent Advances.....................................................................22
8.2.1. General Conditions..............................................................................22
8.2.2. Representations and Warranties..................................................................23
8.2.3. No Prohibitions.................................................................................23
8.2.4. No Default......................................................................................23
9. Conditions to Issuance of Letters of Credit................................................................23
9.1. Letter of Credit Application/Reimbursement Agreement..................................................23
9.2. No Prohibitions.......................................................................................23
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9.3. Representations and Warranties........................................................................23
9.4. No Default............................................................................................24
9.5. Other Conditions......................................................................................24
10. Representations and Warranties..........................................................................24
10.1. Organization and Existence.........................................................................24
10.2. Authorization......................................................................................24
10.3. Due Execution......................................................................................24
10.4. Enforceability of Obligations......................................................................24
10.5. Burdensome Obligations.............................................................................24
10.6. Legal Restraints...................................................................................24
10.7. Labor Contracts and Disputes.......................................................................25
10.8. No Material Proceedings............................................................................25
10.9. Material Licenses..................................................................................25
10.10. Compliance with Material Laws......................................................................25
10.11. Prior Transactions.................................................................................25
10.12. Solvency...........................................................................................25
10.13. Projections; Pro Forma Balance Sheet...............................................................25
10.14. Financial Statements...............................................................................25
10.15. No Change in Condition.............................................................................26
10.16. No Defaults........................................................................................26
10.17. Investments........................................................................................26
10.18. Indebtedness.......................................................................................26
10.19. Indirect Obligations...............................................................................26
10.20. Tax Liabilities; Governmental Charges..............................................................26
10.21. Pension Benefit Plans..............................................................................26
10.21.1. Prohibited Transactions.......................................................................26
10.21.2. Claims........................................................................................26
10.21.3. Reporting and Disclosure Requirements.........................................................26
10.21.4. Accumulated Funding Deficiency................................................................27
10.21.5. Multi-employer Plan...........................................................................27
10.22. Welfare Benefit Plans..............................................................................27
10.23. Retiree Benefits...................................................................................27
10.24. State of Property..................................................................................27
10.25. Negative Pledges...................................................................................27
10.26. Affiliates; Subsidiaries...........................................................................27
10.27. Margin Stock.......................................................................................27
10.28. Securities Matters.................................................................................28
10.29. Investment Company Act, Etc........................................................................28
10.30. No Material Misstatements or Omissions.............................................................28
10.31. Filings............................................................................................28
10.32. No Improper Payment or Influence...................................................................28
10.33. Foreign Enemies and Regulations....................................................................28
11. Modification and Survival of Representations............................................................29
12. Affirmative Covenants...................................................................................29
12.1. Use of Proceeds....................................................................................29
12.2. Corporate Existence................................................................................29
12.3. Maintenance of Property and Leases.................................................................29
12.4. Insurance..........................................................................................30
12.5. Payment of Taxes and Other Obligations.............................................................30
12.6. Compliance With Laws...............................................................................30
12.7. Termination of Pension Benefit Plan................................................................31
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12.8. Notice to Administrative Agent of Material Events..................................................31
12.9. Borrowing Officer..................................................................................32
12.10. Accounting System; Tracing of Proceeds.............................................................32
12.11. Financial Statements...............................................................................32
12.11.1. Annual Financial Statements...................................................................32
12.11.2. Quarterly Financial Statements................................................................32
12.12. Other Financial Information........................................................................33
12.12.1. Stockholder Reports...........................................................................33
12.12.2. Pension Benefit Plan Reports..................................................................33
12.12.3. Tax Returns...................................................................................33
12.13. Annual Projections.................................................................................33
12.14. Other Information..................................................................................33
12.15. Access to Officers and Auditors....................................................................33
12.16. Acquisition Documents..............................................................................33
12.17. Further Assurances.................................................................................34
12.18. Covered Persons....................................................................................34
12.19. Guarantees.........................................................................................34
12.20. Life Insurance.....................................................................................34
13. Negative Covenants......................................................................................34
13.1. Investments........................................................................................34
13.2. Indebtedness.......................................................................................35
13.3. Indirect Obligations...............................................................................36
13.4. Security Interests.................................................................................36
13.5. Acquisitions.......................................................................................37
13.6. Disposal of Property...............................................................................38
13.7. Stock Dividends; Distributions/Redemptions.........................................................38
13.8. Change of Control..................................................................................38
13.9. Amendment to Charter Documents.....................................................................39
13.10. Capital Structure; Equity Securities...............................................................39
13.11. Change of Business.................................................................................39
13.12. Conflicting Agreements.............................................................................39
13.13. Sale and Leaseback Transactions....................................................................39
13.14. Fiscal Year........................................................................................39
13.15. Transactions Having a Material Adverse Effect on Covered Person....................................39
13.16. Transactions with Affiliates.......................................................................39
14. Financial Covenants.....................................................................................40
14.1. Special Definitions................................................................................40
14.2. Minimum Fixed Charge Coverage......................................................................40
14.3. Maximum Ratio of Funded Indebtedness to EBITDA.....................................................41
14.4. Minimum Net Worth..................................................................................41
15. Default.................................................................................................41
15.1. Events of Default..................................................................................41
15.1.1. Failure to Pay Principal or Interest............................................................41
15.1.2. Failure to Pay Amounts Owed to Other Persons....................................................41
15.1.3. Representations or Warranties...................................................................42
15.1.4. Certain Covenants...............................................................................42
15.1.5. Other Covenants.................................................................................42
15.1.6. Acceleration of Other Indebtedness..............................................................42
15.1.7. Default Under Other Agreements..................................................................42
15.1.8. Bankruptcy; Insolvency; Etc.....................................................................42
15.1.9. Judgments; Attachment; Settlement; Etc..........................................................42
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15.1.10. Pension Benefit Plan Termination, Etc.........................................................43
15.1.11. Liquidation or Dissolution....................................................................43
15.1.12. Seizure of Assets.............................................................................43
15.1.13. Racketeering Proceeding.......................................................................43
15.1.14. Loss to Assets................................................................................43
15.1.15. Guaranty; Guarantor...........................................................................43
15.2. Cross Default......................................................................................44
15.3. Rights and Remedies................................................................................44
15.3.1. Termination of Commitments......................................................................44
15.3.2. Acceleration....................................................................................44
15.3.3. Right of Setoff.................................................................................44
15.3.4. Rights Generally................................................................................44
15.3.5. Joint and Several...............................................................................44
15.4. Application of Funds...............................................................................44
16. Administrative Agent and Lenders........................................................................45
16.1. Appointment, Powers, and Immunities................................................................45
16.2. Reliance by Administrative Agent...................................................................45
16.3. Employment of Agents and Counsel...................................................................46
16.4. Defaults...........................................................................................46
16.5. Rights as Lender...................................................................................46
16.6. Indemnification....................................................................................47
16.7. Notification of Lenders............................................................................47
16.8. Non-Reliance on Agent and Other Lenders............................................................47
16.9. Resignation........................................................................................47
16.10. Collections and Distributions to Lenders by Administrative Agent...................................48
17. Change in Circumstances.................................................................................48
17.1. Compensation for Increased Costs and Reduced Returns...............................................48
17.1.1. Law Changes or Tax Impositions..................................................................48
17.1.2. Capital Adequacy................................................................................49
17.1.3. Notice to Borrower..............................................................................49
17.2. Market Failure.....................................................................................50
17.3. Illegality.........................................................................................50
17.4. Compensation.......................................................................................50
17.5. Treatment of Affected Loans........................................................................51
17.6. Taxes..............................................................................................51
17.6.1. Gross-Up........................................................................................51
17.6.2. Lenders' Undertakings...........................................................................52
17.6.3. Survival of Borrower's Obligations..............................................................53
17.7. Usury..............................................................................................53
18. General.................................................................................................53
18.1. Lenders' Right to Cure.............................................................................53
18.2. Rights Not Exclusive...............................................................................54
18.3. Survival of Agreements.............................................................................54
18.4. Assignments........................................................................................54
18.4.1. Permitted Assignments...........................................................................54
18.4.2. Consequences and Effect of Assignments..........................................................54
18.4.3. Agreements Upon Assignment......................................................................55
18.4.4. Register........................................................................................55
18.4.5. Notice to Borrower of Assignment................................................................55
18.4.6. Assignment to Federal Reserve Bank..............................................................56
18.5. Sale of Participations.............................................................................56
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18.6. Information; Confidentiality.......................................................................56
18.7. Payment of Expenses................................................................................57
18.8. General Indemnity..................................................................................57
18.9. Letters of Credit..................................................................................58
18.10. Changes in Accounting Principles...................................................................58
18.11. Loan Records.......................................................................................59
18.12. Other Security and Guaranties......................................................................59
18.13. Loan Obligations Payable in Dollars................................................................59
18.14. Disclosures........................................................................................60
19. Miscellaneous...........................................................................................60
19.1. Notices............................................................................................60
19.2. Amendments and Modifications; Waivers and Consents.................................................60
19.3. Rights Cumulative..................................................................................61
19.4. Recitals...........................................................................................61
19.5. Successors and Assigns.............................................................................61
19.6. Severability.......................................................................................61
19.7. Counterparts.......................................................................................61
19.8. Governing Law; No Third Party Rights...............................................................61
19.9. Counterpart Facsimile Execution....................................................................62
19.10. Effect of Merger of Bank...........................................................................62
19.11. Negotiated Transaction.............................................................................62
19.12. CHOICE OF FORUM....................................................................................62
19.13. SERVICE OF PROCESS.................................................................................62
19.14. WAIVER OF JURY TRIAL...............................................................................63
19.15. Incorporation By Reference.........................................................................63
19.16. Statutory Notice - Insurance.......................................................................63
19.17. Statutory Notice - Oral Commitments................................................................64
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AMENDED AND RESTATED LOAN AGREEMENT
In consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged,
Xxxxxxxx Corporation, a Missouri corporation (Borrower) and LaSalle Bank
National Association (LaSalle), as Administrative Agent, and LaSalle and the
other lenders listed on Exhibit 3 to this Agreement, as Lenders, agree as
follows:
RECITALS
A. The Borrower, Administrative Agent, LaSalle and the lenders named therein
or party thereto from time to time (the "Existing Lenders"), entered into a
Loan Agreement dated as of May 30, 2002 (as amended from time to time, the
"Existing Loan Agreement").
B. The Borrower, Administrative Agent and the Lenders desire to, and have
agreed to, amend and restate the Existing Loan Agreement into this
Agreement, and this Agreement is not a novation of the Existing Loan
Agreement.
C. As a condition to the execution and delivery of this Agreement, the
Administrative Agent, the Existing Lenders and the Lenders have executed a
Master Assignment and Acceptance Agreement, as acknowledged by the Borrower,
of even date herewith, which such Master Assignment and Acceptance Agreement
is effective simultaneously with the effectiveness of this Agreement.
1. EFFECTIVE DATE. This Agreement is effective January 27, 2005.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.1. LISTED DEFINITIONS. Capitalized words defined in the
Glossary attached hereto as Exhibit 2.1 shall have such defined
meanings wherever used in this Agreement and the other Loan
Documents. The inclusion of a defined term in the Glossary that is
not used elsewhere in this Agreement or in the other Loan Documents
shall not affect the interpretation or construction of this
Agreement or the other Loan Documents.
2.2. OTHER DEFINITIONS. If a capitalized word in this Agreement
is not defined in the Glossary, it shall have such meaning as
defined elsewhere herein, or if not defined elsewhere herein, the
meaning defined in the UCC. Terms are italicized in this Agreement
where they are defined.
2.3. REFERENCES TO COVERED PERSON. The words Covered Person, a
Covered Person, any Covered Person, each Covered Person and every
Covered Person refer to Borrower and each of its now existing or
later acquired, created or organized Subsidiaries (including,
without limitation, all direct and indirect Subsidiaries of
Borrower and all Guarantors) separately. The words Covered Persons
refers to Borrower and its now existing or later acquired, created
or organized Subsidiaries collectively.
2.4. REFERENCES TO REQUIRED LENDERS. The words Required Lenders
means any one or more Lenders whose shares of Lenders' Exposure at
the relevant time aggregate at least 55.00000000%.
2.5. ACCOUNTING TERMS. Unless the context otherwise requires,
accounting terms herein that are not defined herein shall be
determined under GAAP. All financial measurements contemplated
hereunder respecting Borrower shall be made and calculated for
Borrower and all
of its now existing or later acquired, created or organized
Subsidiaries, if any, on a consolidated and consolidating basis in
accordance with GAAP unless expressly provided otherwise herein.
2.6. MEANING OF SATISFACTORY. Whenever herein a document or
matter is required to be satisfactory to Administrative Agent or
satisfactory to Lenders or satisfactory to Required Lenders, unless
expressly stated otherwise such document must be satisfactory to
Administrative Agent, Lenders or Required Lenders (as applicable)
in both form and substance, and unless expressly stated otherwise
Administrative Agent, Lenders or Required Lenders (as applicable)
shall have the commercially reasonable discretion to determine
whether the document or matter is satisfactory.
2.7. XXXXX FARGO BANK, N.A. APPOINTMENT AS SYNDICATION AGENT.
Xxxxx Fargo Bank, N.A. is given the title "Syndication Agent" under
the Loan Agreement and Loan Documents. Nothing contained in the
foregoing sentence, shall give Xxxxx Fargo Bank, N.A. any
additional rights or obligations under the Loan Agreement or the
Loan Documents.
2.8. UMB BANK, NATIONAL ASSOCIATION APPOINTMENT AS DOCUMENTATION
AGENT. UMB Bank, National Association is given the title
"Documentation Agent" under the Loan Agreement and Loan Documents.
Nothing contained in the foregoing sentence, shall give UMB Bank,
National Association any additional rights or obligations under the
Loan Agreement or the Loan Documents.
2.9. COMPUTATION OF TIME PERIODS. In computing or defining
periods of time from a specified date to a later specified date,
and in computing the accrual of interest or fees, the word from
shall mean from and including and the words to and until shall each
mean to but excluding. Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days
are expressly prescribed, and references in this Agreement to
months and years are to calendar months and calendar years unless
otherwise specified.
2.10. GENERAL. Unless the context of this Agreement clearly
requires otherwise: (i) references to the plural include the
singular and vice versa; (ii) references to any Person include such
Person's successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Agreement; (iii)
references to one gender include all genders; (iv) including is not
limiting; (v) or has the inclusive meaning represented by the
phrase and/or; (vi) the words hereof, herein, hereby, hereunder and
similar terms in this Agreement refer to this Agreement as a whole,
including its Exhibits, and not to any particular provision of this
Agreement; (vii) the word Section or section and Page or page refer
to a section or page, respectively, of, and the word Exhibit refers
to an Exhibit to, this Agreement unless it expressly refers to
something else; (viii) reference to any agreement, document, or
instrument (including this Agreement and any other Loan Document or
other agreement, document or instrument defined herein), means such
agreement, document, or instrument as amended, modified, restated
or replaced and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof, and includes
all attachments thereto and documents incorporated therein, if any;
and (ix) general and specific references to any Law means such Law
as amended, modified, codified or reenacted, in whole or in part,
and in effect from time to time. Section captions and the Table of
Contents are for convenience only and shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
2.11. PATRIOT ACT NOTICE. Administrative Agent, each Lender and
LaSalle (for itself and not on behalf of any other party) hereby
notifies the Borrower and each other Covered Person that, pursuant
to the requirements of the USA Patriot Act, Title III of Pub. L.
107-56, signed into law
2
October 26, 2001 (the "Act"), it is required to obtain, verify and
record information that identifies the Borrower and each other
Covered Person, which information includes the name and address of
the Borrower and each other Covered Person and other information
that will allow Administrative Agent, such Lender or LaSalle, as
applicable, to identify the Borrower and each other Covered Person
in accordance with the Act.
2.12. REAFFIRMATION. Borrower hereby unconditionally reaffirms,
acknowledges and confirms that (i) Borrower has no defenses to its
obligations under the Existing Loan Agreement, this Agreement and
the other Loan Documents, (ii) Borrower has no claim against
Administrative Agent, any Existing Lender or any Lender arising
from or in connection with the Existing Loan Agreement, this
Agreement or the other Loan Documents and any and all such claims
are waived, released and discharged (the foregoing is not intended
to waive any manifest errors in the Administrative Agent's or any
Lender's records with respect to the Loan Obligations), and (iii)
each of the Documents are hereby reaffirmed without qualification
and are and remain in full force and effect constitute the legal,
valid and binding obligations of Borrower enforceable against
Borrower in accordance with their terms, except to the extent that
the enforceability thereof against such Borrower may be limited by
bankruptcy, insolvency or other laws affecting the enforceability
of creditors rights generally or by equity principles of general
application.
2.13. NATIONAL LINEN ACQUISITION. In connection with the Consent
to Loan Agreement dated December 14, 2004 given in connection with
the Existing Loan Agreement, the Administrative Agent and the
Required Lenders consented to the Borrower's purchase of
substantially all of the assets and certain liabilities of
facilities owned by National Linen Services, Inc. located in
Dallas, Texas, St. Louis, Missouri and Wichita Falls, Texas (the
"National Linen Acquisition"). Borrower has advised Administrative
Agent and the Lenders that the St. Louis, Missouri facility may not
be included in the National Linen Acquisition. Borrower agrees
that, prior to the closing, if any, of the St. Louis, Missouri
facility of the National Linen Acquisition, Borrower shall provide
Administrative Agent with a pro-forma Compliance Certificate
showing compliance with Section 14 of this Agreement, after giving
effect to such acquisition and compliance with the other terms and
provisions of Section 13.5. Lenders agree that no further consent
from them is required in connection with the acquisition of the St.
Louis, Missouri facility of the National Linen Acquisition.
2.14. ROYAL ACQUISITION. Borrower has advised Administrative
Agent and the Lenders that it intends to purchase the capital stock
of Royal Institutional Services, Inc. and Surgi-Pack Corporation
for an aggregate purchase price not to exceed $50,000,000 (the
"Royal Acquisition"). Section 13.5(vii) of the Loan Agreement
prohibits any acquisition if the purchase price (including without
limitation any deferred purchase price, seller notes, assumed
Indebtedness, or similar items) together with all expenses incurred
in connection with such acquisition plus the purchase price for all
other Permitted Acquisitions (including, without limitation,
acquisitions with negative EBITDA and Small Permitted Acquisitions)
since the Effective Date exceeds $25,000,000.
The Administrative Agent and the Lenders waive the application of
Section 13.5(vii) of the Loan Agreement to the Royal Acquisition
and the Royal Acquisition shall not count towards the limits set
forth in Section 13.5(vii).
The Administrative Agent and the Lenders hereby waive the time
delivery requirement in Section 13.5(xi), which requires that the
items required by such Section 13.5(xi) be delivered to
Administrative Agent at least 15 days prior to closing the Royal
Acquisition, although such items
3
must be delivered prior to the closing of the Royal Acquisition and
such delivery requirement is not waived by the Lenders.
The consents and waivers contained in this Section 3 are specific
in intent and are valid only for the specific purpose for which
given. Nothing contained herein obligates Administrative Agent or
any Lender to agree to any additional waivers or consents of any
provisions of any of the Loan Documents.
2.15. CONSENT OF DECEMBER 14, 2004. The last sentence of Section
7 of the Consent Agreement dated December 14, 2004 is deleted.
3. LENDERS' COMMITMENTS. Subject to the terms and conditions hereof, and in
reliance upon the Representations and Warranties, Lenders make the following
commitments to Borrower:
3.1. REVOLVING LOAN COMMITMENTS.
3.1.1. Aggregate Amount; Reductions. Subject to the
limitations in Section 3.1.3 and elsewhere herein, each
Lender commits to make available to Borrower, from the
Effective Date to the Revolving Loan Maturity Date, such
Lender's pro-rata share (as listed on Exhibit 3 hereto) of
an Aggregate Revolving Loan Commitment of One Hundred
Million Dollars ($100,000,000), by funding such Lender's
pro-rata share of Revolving Loan Advances made from time
to time by Administrative Agent as provided herein.
Subject to the limitations in Section 3.1.3 and elsewhere
herein, payments and prepayments that are applied to
reduce the Aggregate Revolving Loan may be re-borrowed
through Revolving Loan Advances. Borrower may reduce the
amount of the Aggregate Revolving Loan Commitment in whole
multiples of $1,000,000 at any time and from time to time,
but only if (i) Borrower gives Administrative Agent
written notice of Borrower's intention to make such
reduction at least three (3) Business Days prior to the
effective date of the reduction, and (ii) Borrower makes
on the effective date of the reduction any payment on the
Aggregate Revolving Loan required hereunder as a
consequence of the reduction, including, principal,
interest and Eurodollar breakage fees (if any). Any such
reduction of the amount of the Aggregate Revolving Loan
Commitment, whether scheduled or voluntary, shall be
permanent. Each Lender's initial Revolving Loan Commitment
is its pro-rata share of the Aggregate Revolving Loan
Commitment. Upon any reduction of the Aggregate Revolving
Loan Commitment, each Lender's Revolving Loan Commitment
will automatically reduce by such Lender's pro-rata share
of the reduction of the Aggregate Revolving Loan
Commitment.
3.1.2. Increases in Revolving Loan Commitment. The Company
may, at its option at any time and from time to time on or
before the third annual anniversary of the Effective Date,
seek to increase the Aggregate Revolving Loan Commitment
by up to an aggregate amount not exceeding $25,000,000
(resulting in maximum Revolving Commitment of
$125,000,000) upon written notice to the Administrative
Agent, which notice shall specify the amount of any such
incremental increase (which shall not be less than
$10,000,000) and shall be delivered at a time when no
Default or Event of Default has occurred and is
continuing. The Administrative Agent, subject to the
consent of the Borrower, which shall not be unreasonably
withheld or delayed, may allocate, as it determines in
Administrative Agent's sole discretion, the incremental
increase in the Revolving Loan Commitment on either a
ratable basis to the Lenders (which may be declined by any
Lender in its sole discretion) or on a non pro-rata basis
to one or more Lenders (which may be declined by any
Lender in its sole discretion) and/or to other
4
banks or entities reasonably acceptable to the
Administrative Agent and the Borrower which have expressed
a desire to accept the increase in its Revolving Loan
Commitment. The Administrative Agent will then notify each
existing and potentially new Lender of such revised
allocations of the Aggregate Revolving Loan Commitment,
including the desired increase. No increase in the
Aggregate Revolving Loan Commitment shall become effective
until each of the existing or new Lenders extending such
incremental increase in its Revolving Loan Commitment and
the Borrower shall have delivered to the Administrative
Agent one or more documents, notes, opinions, and other
agreements in form reasonably satisfactory to the
Administrative Agent pursuant to which any such existing
Lender states, inter alia, the amount of its Revolving
Loan Commitment increase, any such new Lender states its
Revolving Loan Commitment amount and agrees to assume and
accept the obligations and rights of a Lender hereunder,
the Borrower accepts such new Revolving Loan Commitments,
and Borrower certifies that no Default or Event of Default
has occurred and is continuing. After giving effect to
such increase in the Aggregate Revolving Loan Commitment,
all Loans and all such other credit exposure shall be held
ratably by the Lenders in proportion to their respective
Revolving Loan Commitments, as revised to accommodate the
increase in the Revolving Loan Commitment. Upon any
increase in the Aggregate Revolving Loan Commitment
pursuant to this Section, the Borrower shall pay
Administrative Agent for the ratable benefit of only the
Lenders (including any new Lender) whose Revolving Loan
Commitments are increased an upfront fee in an amount
equal to what is mutually agreed to among the Borrower,
the Lenders whose Revolving Loan Commitments are increased
and the Administrative Agent. Upon any such increase,
Exhibit 3 shall be deemed to be amended to reflect such
increase and the Administrative Agent shall promptly
deliver a copy of the revised Exhibit 3 to each Lender and
the Borrower.
3.1.3. Limitation on Revolving Loan Advances. No
Revolving Loan Advance will be made which would result
in the Aggregate Revolving Loan exceeding the Maximum
Available Amount and no Revolving Loan Advance will be
made on or after the Revolving Loan Maturity Date.
Lenders may, however, in their absolute discretion make
such Revolving Loan Advances, but shall not be deemed by
doing so to have increased the Maximum Available Amount
and shall not be obligated to make any such Revolving
Loan Advances thereafter. At any time that there is an
Existing Default, the Aggregate Revolving Loan
Commitment may be canceled as provided in Section 15.3.
The Maximum Available Amount on any date shall be a
Dollar amount equal to (i) the Aggregate Revolving Loan
Commitment, minus (ii) the sum of (a) the Letter of
Credit Exposure on such date (except to the extent that
a Revolving Loan Advance will be used immediately to
reimburse Letter of Credit Issuer for unreimbursed draws
on a Letter of Credit), and (b) the Swingline Loan.
3.1.4. Revolving Notes. The obligation of Borrower to
repay each Lender's Revolving Loan shall be evidenced by
a promissory note payable to the order of such Lender in
a maximum principal amount equal to the amount of its
Revolving Loan Commitment and otherwise in form and
substance satisfactory to Administrative Agent.
3.2. SWINGLINE COMMITMENT.
3.2.1. Swingline Advances. In order to reduce the
frequency of fundings of Revolving Loan Advances by
Lenders, but subject to the limitations in Section 3.2.2
and elsewhere herein, Administrative Agent may in its
absolute discretion make Swingline Advances to Borrower
from time to time from the Effective Date to the
Revolving Loan Maturity
5
Date. Subject to the limitations in Section 3.2.2 and
elsewhere herein, payments and prepayments that are
applied to reduce the Swingline Loan may be re-borrowed
through Swingline Advances. Administrative Agent may
terminate the foregoing Swingline Commitment at any time
in its absolute discretion.
3.2.2. Limitations on Swingline Advances. Administrative
Agent shall not be obligated to make any particular
Swingline Advance, the making of any particular
Swingline Advance at any particular time being
absolutely discretionary. At anytime Administrative
Agent may choose to suspend Swingline Advances and treat
all subsequent requests for an Advance as Revolving Loan
Advances. In any event, no Swingline Advance will be
made on or after the Revolving Loan Maturity Date, and
no Swingline Advance will be made which would result in
the Swingline Loan exceeding the Maximum Swingline
Amount. No Swingline Advance will be made which would
result in the Swingline Loan plus the Lender acting as
Administrative Agent's Revolving Loans and such Lender's
pro-rata share of the Letter of Credit Exposure to
exceed such Lender's Revolving Loan Commitment.
Administrative Agent may, however, in its absolute
discretion make such Swingline Advances, but shall not
be deemed by doing so to have increased the Maximum
Swingline Amount and shall not be obligated to make any
such Swingline Advance thereafter. The Maximum Swingline
Amount on any date shall be a Dollar amount equal to the
lesser of (i) $5,000,000 or (ii) an amount equal to (a)
the Aggregate Revolving Loan Commitment, minus (b) the
sum of (i) the Letter of Credit Exposure and (ii) the
Aggregate Revolving Loan immediately prior to the making
of such Swingline Advance.
3.2.3. Swingline Note. The obligation of Borrower to
repay the Swingline Loan shall be evidenced by a
promissory note payable to the order of Administrative
Agent in a maximum principal amount of $5,000,000 and
otherwise in form and substance satisfactory to
Administrative Agent.
3.3. LETTER OF CREDIT COMMITMENT.
3.3.1. Letter of Credit Issuer commits to issue standby
letters of credit and commercial (documentary) letters
of credit for the account of Borrower from time to time
from the Effective Date to the Revolving Loan Maturity
Date, but only if the Letter of Credit Exposure will not
as a result of such issuance exceed the lesser of (i)
Thirty-Five Million Dollars and Zero Cents ($35,000,000)
and (ii) an amount equal to the difference between (a)
the Aggregate Revolving Loan Commitment, and (b) the
Aggregate Revolving Loan plus the Swingline Loan. The
expiration date of any Letter of Credit will be a
Business Day that will be no more than one (1) year from
the date of issuance but in no event shall such date be
later than the date which is twenty-five days prior to
the Revolving Loan Maturity Date; provided, however,
that the expiration date for a Letter of Credit may be
later than the date that is twenty-five (25) days prior
to the Revolving Loan Maturity Date if Letter of Credit
Issuer consents to such issuance and Borrower provides
to Letter of Credit Issuer cash collateral satisfactory
to Letter of Credit Issuer as security for Borrower's
obligation to reimburse Letter of Credit Issuer for all
draws thereunder.
3.3.2. Immediately upon the issuance by Letter of Credit
Issuer of a Letter of Credit in accordance with the
terms and conditions of this Agreement, Letter of Credit
Issuer shall be deemed to have sold and transferred to
each other Lender, and such other Lender shall be deemed
to have purchased and received from Letter of Credit
Issuer, a pro-rata undivided interest and participation
in such Letter of Credit, the reimbursement obligation
of Borrower with respect
6
thereto, and any guaranty thereof or collateral
therefor. Such other Lender's pro-rata undivided
interest shall be the same as its pro-rata share of the
Aggregate Revolving Loan Commitment.
3.4. TERM LOAN COMMITMENTS.
3.4.1. Aggregate Term Loan.
(A) Each Lender commits to make available to Borrower
such Lender's pro-rata share (as listed on Exhibit 3
hereto) of an Aggregate Term Loan Commitment of Fifty
Million Dollars and Zero Cents ($50,000,000.00) but
which will decrease from time to time as provided herein
by funding such Lender's pro-rata share of multiple Term
Loan Advances. Subject to terms and conditions hereof,
Borrower may request Term Loan Advances equal to the (i)
the Aggregate Term Loan Commitment minus (ii) the
-----
then-outstanding principal amount of the Aggregate Term
Loan, if any.
(B) The Aggregate Term Loan Commitment shall terminate
on July 27, 2005 and no further Term Loan Advances may
be requested or made on or after such date. No more than
four (4) initial term Loan Advances (including requests
therefore) may be made from the Effective Date to but
not including July 27, 2005.
(C) No Term Loan Advance will be made which would result
in the Aggregate Term Loan exceeding the Aggregate Term
Loan Commitment. Each Lender's Term Loan Commitment is
its pro-rata share of the Aggregate Term Loan
Commitment.
3.4.2. Term Loan Notes. The obligation of Borrower to
repay each Lender's Term Loan shall be evidenced by a
promissory note payable to the order of such Lender in a
principal amount equal to its pro-rata share of the
Aggregate Term Loan Commitment and otherwise in form and
substance satisfactory to Administrative Agent.
3.5. ORDER OF ADVANCE REQUESTS. Borrower shall request Advances on
the Aggregate Term Loan Commitment until fully drawn (unless not
otherwise available as set forth herein) only for the purposes
permitted in Section 12.1, and thereafter Advances to fund
Permitted Acquisitions shall be requested by Borrower on the
Aggregate Revolving Loan Commitment.
4. INTEREST.
4.1. INTEREST ON DRAWS ON LETTERS OF CREDIT. The unreimbursed amount
of each draw on a Letter of Credit shall bear interest at a rate per
annum equal to the Adjusted Base Rate applicable to Revolving
Loans.
4.2. INTEREST ON THE SWINGLINE LOAN. The entire Swingline Loan shall
be a Base Rate Loan and shall bear interest at the Adjusted Base Rate.
4.3. INTEREST ON AGGREGATE LOANS. Borrower may, as provided
in Section 7, designate the whole of an Advance or any part of an
Advance (other than, in either case, a Swingline Advance) to be
either a Base Rate Advance or a Eurodollar Advance; provided,
however, during the existence of an Existing Default, Borrower may
not designate an Advance or part of an Advance as a Eurodollar
Advance. Each Base Rate Advance when made will become a Base Rate
Loan, which shall bear interest at the Adjusted Base Rate. Each
Eurodollar Advance when made will
7
become a Eurodollar Loan, which shall bear interest at the Adjusted
Eurodollar Rate. Borrower may also, as provided herein, convert
some or all of a Base Rate Loan into a Eurodollar Loan and some or
all of a Eurodollar Loan into a Base Rate Loan. For each
Eurodollar Loan, Borrower shall select an Interest Period as
provided in Section 4.7. A Eurodollar Loan shall bear interest at
the Adjusted Eurodollar Rate throughout the applicable Interest
Period designated by Borrower.
4.4. ADJUSTED BASE RATE. The Adjusted Base Rate for any Base
Rate Loan which is a Revolving Loan or a Swingline Loan shall be
the Base Rate plus the applicable Base Rate Revolving Margin
determined from the table in Section 4.6, and the Adjusted Base
Rate for any Base Rate Loan which is a Term Loan shall be the Base
Rate plus the applicable Base Rate Term Margin determined from the
table in Section 4.6.
4.5. ADJUSTED EURODOLLAR RATE. The Adjusted Eurodollar Rate
for any Eurodollar Loan which is a Revolving Loan shall be the
Eurodollar Rate plus the applicable Eurodollar Revolving Margin
determined from the table in Section 4.6, and the Adjusted
Eurodollar Rate for any Eurodollar Loan which is a Term Loan shall
be the Eurodollar Rate plus the applicable Eurodollar Term Margin
determined from the table in Section 4.6.
4.6. BASE RATE REVOLVING MARGINS AND EURODOLLAR REVOLVING
MARGINS.
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8
---------------------------------------------------------------------------------------------------------------------
IF THE RATIO OF
BORROWER'S FUNDED
INDEBTEDNESS TO EBITDA
(FOR THE FOUR FISCAL
QUARTER PERIOD OF EURODOLLAR BASE RATE BASE RATE
BORROWER MOST RECENTLY REVOLVING EURODOLLAR REVOLVING TERM UNUSED REFERENCE
ENDED) IS MARGIN TERM MARGIN MARGIN MARGIN FEE RATE LEVEL
---------------------------------------------------------------------------------------------------------------------
greater than or equal
to 2.50 to 1.00 2.000% 2.000% 0.000% 0.000% 0.450% V
---------------------------------------------------------------------------------------------------------------------
greater than or equal
to 2.00 to 1.00 but
less than 2.50 to 1.00 1.750% 1.750% 0.000% 0.000% 0.400% IV
---------------------------------------------------------------------------------------------------------------------
greater than or equal
to 1.50 to 1.00 but
less than 2.00 to 1.00 1.500% 1.500% 0.000% 0.000% 0.350% III
---------------------------------------------------------------------------------------------------------------------
greater than or equal 1.250% 1.250% 0.000% 0.000% 0.300% II
to 1.00 to 1.00 but
less than 1.50 to 1.00
---------------------------------------------------------------------------------------------------------------------
less than 1.00 to 1.00 1.000% 1.000% 0.000% 0.000% 0.250% I
---------------------------------------------------------------------------------------------------------------------
The Increments applicable on the Effective Date shall be those of
Level III.
Thereafter, the applicable Increments shall be re-determined by
Administrative Agent: (A) based on the ratio of Borrower's Funded
Indebtedness to EBITDA for the four fiscal quarter period of Borrower most
recently ended, promptly after each delivery by Borrower to Administrative
Agent of Borrower's Financial Statements (and accompanying Compliance
Certificate) as required in Section 12.11 and will become applicable on the
third Business Day following the day when Borrower delivers such Financial
Statements (and accompanying Compliance Certificate) to Administrative
Agent, and (B) in connection with each Permitted Acquisition described in
13.5(xi), based on the ratio of Borrower's pro forma Funded Indebtedness to
pro forma EBITDA for the four fiscal quarter period of Borrower most
recently ended, after giving effect to each such Permitted Acquisition,
based upon the Compliance Certificate as required in Section 13.5(xi)
delivered by Borrower to Administrative Agent, and will become applicable on
the closing of such Permitted Acquisition.
4.7. INTEREST PERIODS FOR EURODOLLAR LOANS. For each
Eurodollar Loan Borrower shall select an Interest Period that is
either one (1) month, two (2) months, three (3) months or six (6)
months; provided that:
(i) every such Interest Period for a Eurodollar Advance
shall commence on the date of the Advance or on the date
of the conversion or continuation of any Loan as a
Eurodollar Loan;
9
(ii) if any Interest Period would otherwise expire on a
day of a calendar month which is not a Business Day, then
such Interest Period shall expire on the next succeeding
Business Day in that calendar month; provided, however,
that if the next succeeding Business Day would be in the
following calendar month, it shall expire on the first
preceding Business Day;
(iii) 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 end on the last
Business Day of the calendar month at the end of such
Interest Period;
(iv) no Interest Period for a Eurodollar Loan that is part
of the Aggregate Revolving Loan shall extend beyond the
Revolving Loan Maturity Date, and no Interest Period for a
Eurodollar Loan that is part of the Aggregate Term Loan
shall extend beyond the Term Loan Maturity Date; and
(v) no Interest Period for a Eurodollar Loan that is part
of the Aggregate Term Loan may extend beyond a date on
which Borrower is required to make a scheduled principal
payment on the Aggregate Term Loan unless the Aggregate
Term Loan includes Eurodollar Loans that have Interest
Periods expiring on or before such date and Base Rate
Loans that together equal or exceed the amount of the
scheduled principal payment.
4.8. TIME OF ACCRUAL. Interest shall accrue on all principal
amounts outstanding from the date when first outstanding to the
date when no longer outstanding. Amounts shall be deemed
outstanding until payments are applied thereto as provided herein.
4.9. COMPUTATION. Interest shall be computed for the actual
days elapsed over a year deemed to consist of 360 days. Interest
rates that are based on the Base Rate shall change simultaneously
with any change in the Base Rate and shall be effective for the
entire day on which such change becomes effective. The Base Rate
will be determined by Administrative Agent before the initial
Advances on the Effective Date and on each Business Day thereafter
when the Base Rate changes.
4.10. RATE AFTER MATURITY. Borrower shall pay interest on
the Aggregate Loans, the Swingline Loan and any Obligations with
respect to Letters of Credit after their Maturity, and, at the
option of Administrative Agent or at the direction of the Required
Lenders, on the Aggregate Loans, the Swingline Loan and on the
other Loan Obligations after the occurrence of an Event of Default,
at a rate per annum of two percent (2%) plus the then-applicable
rates. Past due fees and other amounts past due and owing hereunder
shall bear interest at two percent (2%) above the then-current
Adjusted Base Rate.
5. FEES.
5.1. UPFRONT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender on the
Effective Date a non-refundable, one-time upfront fee (the "Upfront
Fee") in the amount previously agreed to between the Borrower and
the Administrative Agent pursuant to a separate fee letter (and the
Administrative Agent agrees to promptly forward to each Lender a
portion of such Upfront Fee in the amount previously agreed to
between Administrative Agent and each Lender).
10
5.2. REVOLVING LOAN UNUSED FEE. Borrower shall pay to
Administrative Agent for the account of Lenders a non-refundable,
recurring Revolving Loan Unused Fee calculated by applying the
daily equivalent of an annual Unused Fee Rate determined pursuant
to the table set forth in Section 4.6 to the Unused Revolving Loan
Commitment on each day during the period from the Effective Date to
the Revolving Loan Maturity Date. The Unused Revolving Loan
Commitment on any day shall be the difference between (i) the
amount of the Aggregate Revolving Loan Commitment and (ii) the sum
of (a) the Aggregate Revolving Loan, and (b) the face amount of all
outstanding Letters of Credit and (c) without duplication of clause
(b), the total of all amounts drawn on the outstanding Letters of
Credit but not reimbursed to the Letter of Credit Issuer by
Borrower as of the close of business on such day, but excluding in
all cases the Swingline Loan. The Revolving Loan Unused Fee shall
be payable quarterly in arrears commencing on the last day of the
first calendar quarter ending after the Effective Date and
continuing on the last day of each calendar quarter thereafter and
on the Revolving Loan Maturity Date. The Unused Fee Rate shall be
determined from the chart in Section 4.6 of this Agreement under
the heading "Unused Fee Rate." The Unused Fee Rate applicable on
the Effective Date shall be Level III. Thereafter, the Borrower's
ratio of Funded Indebtedness to EBITDA for the four fiscal quarter
period of Borrower most recently ended will be calculated and
applied to determine the applicable Unused Fee Rate in the same
manner used for determination of the applicable Base Rate Revolving
Margin, and Eurodollar Revolving Margin as described in Section 4.6.
5.3. LETTER OF CREDIT FEE. Borrower shall pay to Administrative
Agent for the account of Letter of Credit Issuer and each other
Lender with a Revolving Loan Commitment, a non-refundable recurring
Letter of Credit Fee for each Letter of Credit issued by Letter of
Credit Issuer. All Letter of Credit Fees are to be paid to the
Lenders pro-rata in accordance with their respective pro-rata
shares as set forth on Exhibit 3. The Letter of Credit Fee for any
Letter of Credit shall be an amount equal to the aggregate undrawn
amount of such Letter of Credit multiplied by the Eurodollar
Revolving Margin in effect on the date such Letter of Credit is
issued and any annual renewal date of each such Letter of Credit.
The Letter of Credit Fee for each Letter of Credit shall be payable
in advance for the remaining portion of the quarter when issued and
quarterly thereafter on the last day of each full calendar quarter
thereafter (or portion thereof for the last calendar quarter) while
such Letter of Credit is outstanding.
5.4. LETTER OF CREDIT FRONTING FEE. Borrower shall pay to
Letter of Credit Issuer (for its own account) a non-refundable,
one-time Fronting Fee equal to .125% of the face amount of each
Letter of Credit issued by Letter of Credit Issuer. The Fronting
Fee due for any Letter of Credit shall be payable in advance on the
issuance date of such Letter of Credit.
5.5. OTHER LETTER OF CREDIT FEES. Borrower shall pay to
Letter of Credit Issuer for its own account such Letter of Credit
Issuer's other customary fees for issuance, amendment, or renewal
of a Letter of Credit and, as Letter of Credit Issuer and Borrower
may agree with respect to each Letter of Credit, and for each
negotiation of a draft drawn under such Letter of Credit.
5.6. CALCULATION OF FEES. All of the foregoing fees and
all other fees payable to Administrative Agent or any Lender that
are based on an annual percentage shall be calculated on the basis
of a year deemed to consist of 360 days and for the actual number
of days elapsed.
6. PAYMENTS.
6.1. SCHEDULED PAYMENTS ON AGGREGATE REVOLVING LOAN AND
SWINGLINE LOAN.
11
6.1.1. Interest. Borrower shall pay interest accrued on
each Base Rate Loan included in the Aggregate Revolving
Loan and on the Swingline Loan quarterly in arrears
beginning on the last day of the first calendar quarter
ending after the Effective Date and continuing on the last
day of each calendar quarter thereafter, and on the
Revolving Loan Maturity Date. Borrower shall pay interest
accrued on each Eurodollar Loan included in the Aggregate
Revolving Loan at the end of its Interest Period and, in
addition, for each such Eurodollar Loan with an Interest
Period longer than three (3) months, Borrower shall pay
interest accrued thereon quarterly on the same date of
each quarter as the date such Eurodollar Loan was made.
Borrower shall pay interest accrued thereon on each day
that would have been the end of an Interest Period with
respect to such Eurodollar Loan had successive Interest
Periods of three (3) months' duration been applicable to
such Eurodollar Loan. Borrower shall pay interest accrued
on each Revolving Loan and the Swingline Loan after the
Revolving Loan Maturity Date on demand.
6.1.2. Principal. Borrower shall repay the entire amount
of the Aggregate Revolving Loan as then outstanding on
January 27, 2010 (the Revolving Loan Maturity Date), and
Borrower shall repay the entire amount of the Swingline
Loan on demand, or if no demand is made, on the Revolving
Loan Maturity Date.
6.2. SCHEDULED PAYMENTS ON TERM LOAN.
6.2.1. Interest. Borrower shall pay interest accrued on
each Base Rate Loan included in the Aggregate Term Loan
quarterly in arrears beginning on the last day of the
first calendar quarter ending after the Effective Date and
continuing on the last day of each calendar quarter
thereafter, and on the Term Loan Maturity Date. Borrower
shall pay interest accrued on each Eurodollar Loan
included in the Aggregate Term Loan at the end of its
Interest Period and, in addition, for each such Eurodollar
Loan with an Interest Period longer than three (3) months,
Borrower shall pay interest accrued thereon quarterly on
the same date of each quarter as the date such Eurodollar
Loan was made. Borrower shall pay interest accrued thereon
on each day that would have been the end of an Interest
Period with respect to such Eurodollar Loan had successive
Interest Periods of three (3) months' duration been
applicable to such Eurodollar Loan. Borrower shall pay
interest accrued on each Term Loan after the Term Loan
Maturity Date on demand.
6.2.2. Principal.
Borrower shall repay the Aggregate Term Loan in calendar
quarterly installments, beginning September 30, 2005 (and
on each December 31, March 31, June 30 and September 30
thereafter), based on the amount, if any, of the Aggregate
Term Loan outstanding on July 27, 2005, such quarterly
amount to be calculated using a full five (5) year
amortization schedule (such amortization being calculated
based upon the first payment date set forth above), and
with a final installment being due and payable on January
27, 2010, in the amount of the Aggregate Term Loan as then
outstanding.
6.3. APPLICATION. Payments shall be paid or applied by the
Administrative Agent (in each case up to the outstanding principal
amount of the applicable Loan) (i) first, to reduce the Swingline
Loan to zero, and then (ii) second, as set forth in Section 16.10.
6.4. PREPAYMENTS.
6.4.1. Voluntary Prepayment. Subject to the limitations in
the following sentences, Borrower may wholly prepay any
Base Rate Loan, or Eurodollar Loan that is included in
12
the Aggregate Revolving Loan or the Aggregate Term Loan at
any time and may make a partial prepayment thereon from time
to time, without penalty or premium, but only if (i)
Borrower gives Administrative Agent written notice (which
may be mailed, personally delivered or telecopied as
provided in Section 19.1) or telephonic notice (promptly
confirmed in writing in the manner provided in Section
19.1) of Borrower's intention to make such prepayment at
least one Business Day prior to tendering such prepayment,
(ii) the total amount of such prepayment is a whole
multiple of $500,000, and (iii) Borrower pays any amount
that is due under Section 17.4 as a consequence of the
prepayment. Unless there is an Existing Default, all
payments on the Revolving Loan shall be made first to the
outstanding balance of the Swingline Loan, if any, and
then to the remaining amount of the Aggregate Revolving
Loan.
All such voluntary prepayments, unless otherwise expressly
stated in writing by Borrower to Administrative Agent
prior to the making of such prepayment, and subject to the
terms and provisions of this Agreement, will be deemed
made on the Swingline Loan, if any, until it is reduced to
zero, and thereafter to Base Rate Loans included in the
Aggregate Revolving Loan until they are reduced to zero
and then to Eurodollar Loans included in the Aggregate
Revolving Loan (and all penalties and premiums due
hereunder in connection therewith) until they are reduced
to zero, and will be applied by Lenders to reduce the
Revolving Loans in accordance with their respective
pro-rata shares of the Aggregate Revolving Loan
Commitment. Thereafter, unless otherwise expressly stated
in writing by Borrower to Administrative Agent, prior to
the making such pre-payment, and subject to the other
terms and provisions of the Agreement, all such
prepayments shall be deemed made on Base Rate Loans
included in the Aggregate Term Loan until they are reduced
to zero, and then to Eurodollar Loans included in the
Aggregate Term Loan (and all penalties and premiums due
hereunder in connection therewith) until they are reduced
to zero, and will be applied by Lenders to reduce their
pro-rata shares, and consequently the aggregate amounts,
of the calendar quarterly repayment installments required
under Section 6.2 in the inverse order of their due dates.
6.4.2. Mandatory Prepayments When Over-Advances Exist. If
at any time the Aggregate Revolving Loan exceeds the
Maximum Available Amount, whether as a result of optional
Revolving Loan Advances by Lenders as contemplated by
Section 3.1.3 or otherwise, Borrower shall on demand make
a payment in the amount of the excess to Administrative
Agent for the account of Administrative Agent on the
Swingline Loan and Lenders on the Aggregate Revolving
Loan. Each such prepayment will be applied by
Administrative Agent and Lenders first to reduce the
Swingline Loan (and consequently each Lenders' risk
participation in such Swingline Loan) until it is reduced
to zero, then to reduce the Base Rate Loans that are
included in the Aggregate Revolving Loan (and consequently
a ratable portion of each Lender's Revolving Loan) until
they are reduced to zero and then to reduce the Eurodollar
Loans that are included in the Aggregate Revolving Loan
(and consequently a ratable portion of each Lender's
Revolving Loan). In the case of such a prepayment,
Borrower will pay any accrued interest on the amount
prepaid at the time of such prepayment, and Borrower pays
any amount that is due under Section 17.4 as a consequence
of the prepayment.
6.4.3. Other Mandatory Prepayments.
6.4.3.1. PROCEEDS FROM SALES OF ASSETS NOT IN ORDINARY
COURSE. If Borrower or any Covered Person sells
any of its assets in a single transaction or
related series of transactions that are not in
the ordinary course of business, Borrower
13
shall make a payment to Administrative Agent for the
ratable benefit of the Lenders, to be applied to
reduce the Loan Obligations, in the aggregate
amount of the gross proceeds therefrom less
reasonable selling expenses and the increment in
federal, state and local income taxes, if any,
payable as a consequence of any taxable gain from
such sale. Borrower need not make such
prepayment, however, (i) unless the net proceeds
from such sale or sales exceed $2,000,000 in any
one fiscal year, or (ii) from the net proceeds of
any such sale of a capital asset to the extent
such net proceeds are expended or committed in
writing to be expended by Borrower within 180
days of completion of the sale for replacement of
such asset by another asset of comparable type
and utility. Borrower and Lenders agree that it
is Borrower's normal practice to sell from time
to time certain of its textile service plants
and/or related customer contracts, and such sales
are deemed to be in the ordinary course of
business; provided, however, that any sales of
textile service plants in excess of an aggregate
of five over the term of this (beginning with the
Effective Date) Agreement shall not be deemed to
be in the ordinary course of business. All sales
of Borrower's hospitality business shall be
deemed to be in the ordinary course of business.
Transactions permitted by Section 13.13 are not
subject to this Section.
6.4.3.2. PROCEEDS FROM ISSUANCE OF INDEBTEDNESS. If
after the Execution Date Borrower or any Covered Person
issues any debt or debt securities, Borrower
shall promptly after such sale make a payment to
Administrative Agent for the ratable benefit of
the Lenders, to be applied to reduce the Loan
Obligations, in an aggregate amount equal to one
hundred percent (100%) of the gross proceeds
therefrom less reasonable brokers' and
underwriters' fees and commissions and other
reasonable issuing expenses.
6.4.3.3. PROCEEDS FROM SALE OR ISSUANCE OF SECURITIES.
If after the Execution Date Borrower or any Covered
Person issues or sells any equity (except equity
issued in connection with a Permitted
Acquisition) or equity securities, or warrants or
options therefor (other than the exercise of
warrants or options issued to management of
Borrower pursuant to a management incentive stock
option program or the issuance and exercise of
restricted stock grants to management and
directors (collectively the Approved Options)),
Borrower shall promptly after such sale make a
payment to Administrative Agent for the ratable
benefit of the Lenders, to be applied to reduce
the Loan Obligations, in an aggregate amount
equal to seventy-five percent (75%) of the gross
proceeds therefrom less reasonable brokers' and
underwriters' fees and commissions and other
reasonable issuing expenses.
Every prepayment under this Section 6.4.3 shall be applied
to reduce the Aggregate Term Loan (first to Base Rate
Loans included in the Aggregate Term Loan until they are
reduced to zero and then to Eurodollar Loans included in
the Aggregate Term Loan (and all penalties and premiums
due hereunder in connection therewith) until they are
reduced to zero) and shall be distributed by
Administrative Agent to Lenders in accordance with their
pro-rata shares of the Aggregate Term Loan Commitment and
applied by Lenders to reduce their pro-rata shares, and
consequently the aggregate amounts, of the repayment
installments required under Section 6.2.2 in the inverse
order of their due dates. If application to the Term Loans
of any prepayment required under this Section 6.4.3
reduces the Term Loans (and consequently the Aggregate
Term Loan) to zero, the remaining amount of such
prepayment shall be applied to the outstanding Swingline
14
Loans, if any, and then by Lenders to reduce the Revolving
Loans (and consequently the Aggregate Revolving Loan)
first to Base Rate Loans included in the Aggregate
Revolving Loan until they are reduced to zero and then to
Eurodollar Loans included in the Aggregate Revolving Loan
(and all penalties and premiums due hereunder in
connection therewith) until they are reduced to zero.
Borrower will not be obligated to make a pre-payment if
the making of any such pre-payment would cause Borrower to
break any existing Interest Hedge Obligation.
6.5. REIMBURSEMENT OBLIGATIONS OF BORROWER. Borrower hereby
unconditionally agrees to immediately pay to Letter of Credit
Issuer on demand at the Letter of Credit Issuer's Applicable
Lending Office all amounts required to pay all drafts drawn under
Letters of Credit issued for the account of such Borrower, all fees
associated with the Letters of Credit, and all reasonable expenses
incurred by Letter of Credit Issuer in connection with such Letters
of Credit and in any event and without demand to remit to Letter of
Credit Issuer (which may be through obtaining Advances if permitted
under Section 3.1.3) sufficient funds to pay all debts and
liabilities arising under any Letter of Credit issued for the
account of such Borrower.
6.6. MANNER OF PAYMENTS AND TIMING OF APPLICATION OF PAYMENTS.
6.6.1. Payment Requirement. Unless expressly provided to
the contrary elsewhere herein, Borrower shall make each
payment on the Loan Obligations to Administrative Agent
for the account of Lenders as required under the Loan
Documents at the Applicable Lending Office of the
Administrative Agent on the date when due, without
deduction, setoff or counterclaim. All such payments will
be distributed by Administrative Agent to Lenders as
provided in Section 16.10 for application to the Loan
Obligations as provided herein.
6.6.2. Application of Payments and Proceeds. All payments
received by Administrative Agent in immediately available
funds at or before 12:00 noon (Local Time) on a Business
Day will be distributed by Administrative Agent to Lenders
as provided in Section 16.10 on the same Business Day.
Such payments received on a day that is not a Business Day
or after 12:00 noon (Local Time) on a Business Day will be
distributed by Administrative Agent to Lenders as provided
in Section 16.10 on the next Business Day. The amount so
distributed to a Lender will be applied by such Lender to
the relevant Loan Obligation on the Business Day when
received.
6.6.3. Interest Calculation. Section 6.6.2
notwithstanding, for purposes of interest calculation
only, (i) a payment in cash or by wire transfer or direct
debit to an account of Borrower received at or before
12:00 noon (Local Time) on a Business Day shall be deemed
to have been applied to the relevant Loan Obligation on
the Business Day when it is received, and (ii) a payment
in cash or by wire transfer or direct debit to an account
of Borrower received on a day that is not a Business Day
or after 12:00 noon (Local Time) on a Business Day shall
be deemed to have been applied to the relevant Loan
Obligation on the next Business Day. A payment made by
check, draft or other instrument will be applied for
interest purposes in Administrative Agent's commercially
reasonable discretion in a manner consistent with its
customary collection policies.
6.7. RETURNED INSTRUMENTS. If a payment is made by check,
draft or other instrument and the check, draft or other instrument
is returned unpaid, any application of the payment to the Loan
Obligations will be reversed and will be treated as never having
been made.
15
6.8. COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If Administrative
Agent or any Lender is for any reason compelled to surrender any
payment because such payment is for any reason invalidated, declared
fraudulent, set aside, or determined to be void or voidable as a
preference, an impermissible setoff, or a diversion of trust funds,
then this Agreement and the Loan Obligations to which such payment
or proceeds was applied or intended to be applied shall be revived
as if such application was never made; and Borrower shall be liable
to pay to Administrative Agent or such Lender, and shall indemnify
Administrative Agent or such Lender for and hold Administrative
Agent or such Lender harmless from any loss with respect to, the
amount of such payment or proceeds surrendered. This Section shall
be effective notwithstanding any contrary action that
Administrative Agent or such Lender may take in reliance upon its
receipt of any such payment or proceeds. Any such contrary action
so taken by Administrative Agent or such Lender shall be without
prejudice to Administrative Agent's or such Lender's rights under
this Agreement and shall be deemed to have been conditioned upon
the application of such payment or proceeds having become final and
indefeasible. The provisions of this Section shall survive
termination of the Commitments, the expiration of the Letters of
Credit and the indefeasible full payment and satisfaction of all of
the Loan Obligations.
6.9. DUE DATES NOT ON BUSINESS DAYS. Subject to Section 4.7(ii), if
any payment required hereunder becomes due on a date that is not a
Business Day, then such due date shall be deemed automatically
extended to the next Business Day (including any interest accruing
during any such extension period).
7. PROCEDURE FOR OBTAINING ADVANCES AND LETTERS OF CREDIT.
7.1. INITIAL ADVANCES. Provided that all conditions thereto hereunder
are satisfied and subject to the limitations contained herein,
Lenders will fund and Administrative Agent will make the initial
Revolving Loan Advance on the Effective Date as directed by
Borrower in a written direction delivered to Administrative Agent.
The manner of disbursement shall be subject to Administrative
Agent's approval.
7.2. SUBSEQUENT REVOLVING LOAN ADVANCES.
7.2.1. Borrower Requests. Borrower may request subsequent
Revolving Loan Advances at any time, but not more often
than once each Business Day, by submitting a request
therefor to Administrative Agent as provided in Section
7.10. Administrative Agent may treat every request for a
Revolving Loan Advance that is a Base Rate Advance as a
request for a Swingline Advance to the extent the
requested amount does not exceed the Maximum Swingline
Amount and as a request for a Revolving Loan Advance in
the amount of the excess. Administrative Agent may treat
every request for a Revolving Loan Advance as a request
for a Base Rate Advance if Borrower does not specify that
such Revolving Loan Advance is to be a Eurodollar Advance
in Borrower's request for a Revolving Loan Advance. Every
request for a Revolving Loan Advance shall be irrevocable.
A request for a Revolving Loan Advance received by
Administrative Agent on a day that is not a Business Day
or that is received by Administrative Agent after 12:00
noon (Local Time) (or 2:00 p.m. (Local Time) in the case
of a request for a Revolving Loan Advance which will,
subject to the terms of this Agreement, be treated by
Administrative Agent as a request for a Swingline Advance)
on a Business Day shall be treated as having been received
by Administrative Agent prior to 12:00 noon (Local Time)
(or 2:00 p.m. (Local Time) in the case of a request for a
Revolving Loan Advance which will, subject to the terms of
this Agreement, be treated by Administrative Agent as a
request for a Swingline Advance) on the next Business Day.
16
7.2.2. Revolving Loan Advances to Repay the Swingline
Loan.
7.2.2.1. Administrative Agent may in its sole and
absolute discretion on any Business Day give
notice to Lenders of the amount of the Swingline
Loan after application of all payments to be
applied thereto as provided elsewhere herein.
Such notice shall be given no later than 1:00
p.m. (Local Time) and may include a demand that
the Swingline Loan be fully paid. If
Administrative Agent demands that the Swingline
Loan be fully paid, then prior to 3:00 p.m.
(Local Time) on such date, Lenders shall remit
funds to Administrative Agent sufficient to
reduce the Swingline Loan to zero. The aggregate
of such remittances shall be treated as a
Revolving Loan Advance and the Aggregate
Revolving Loan increased accordingly. Each such
remittance by a Lender shall be made in
accordance with its pro-rata share of the
Aggregate Revolving Loan Commitment and shall be
made notwithstanding that (i) the amount of the
aggregate of such remittances by Lenders may not
be in the minimum amount for Revolving Loan
Advances otherwise required hereunder, (ii) any
conditions to Advances in Section 8 may not be
then satisfied, (iii) there is an Existing
Default, (iv) the aggregate amount of such
remittances by Lenders would result in the
Aggregate Revolving Loan exceeding the Maximum
Available Amount, or (v) such remittances by
Lenders may be made after the Revolving Loan
Maturity Date; provided, however, that in no
event shall any Lender be required to make any
such remittance that would result in the sum of
(a) the Revolving Loan of such Lender, plus (b)
such Lender's pro-rata share of the Letter of
Credit Exposure exceeding such Lender's Revolving
Loan Commitment.
7.2.2.2. If for any reason, including the
commencement of a proceeding in bankruptcy with
respect to Borrower, remittances by Lenders as
provided above cannot be made on the date
otherwise required above, then each Lender shall
be deemed automatically to have purchased from
Administrative Agent as of such date a pro-rata
undivided interest and participation in the
Swingline Loan so as to cause such Lender to
share in the Swingline Loan in accordance with
its pro-rata share of the Aggregate Revolving
Loan Commitment. Each Lender shall remit its
pro-rata share of the Swingline Loan to
Administrative Agent promptly on demand. All
interest payable with respect to such Lender's
pro-rata share of the Swingline Loan shall be for
the account of Administrative Agent to the date
such remittance is made, and shall be for the
account of and remitted by Administrative Agent
to such Lender as a participant from such date.
Further, until such remittance is made, such
Lender shall pay to Administrative Agent, on
demand, interest on such Lender's pro-rata share
of the Swingline Loan at the Federal Funds Rate.
7.2.3. Term Loan Advances. Subject to the terms hereof,
Borrower may request a Term Loan Advance by submitting a
request therefor to Administrative Agent as provided in
Section 7.10. Every request for a Term Loan Advance shall
be irrevocable. A request for a Term Loan Advance received
by Administrative Agent on a day that is not a Business
Day or that is received by Administrative Agent after
12:00 noon (Local Time) on a Business Day shall be treated
as having been received by Administrative Agent prior to
12:00 noon (Local Time) on the next Business Day.
Administrative Agent may treat every request for a Term
Loan Advance as a request for a Base Rate Advance if
Borrower does not specify that such Term Loan Advance is
to be a Eurodollar Advance
17
in Borrower's request for a Term Loan Advance. A Term Loan
Advance may not be requested if the sum of the requested
Term Loan Advance and the then-outstanding Aggregate Term
Loan would exceed the Aggregate Term Loan Commitment.
7.2.4. Administrative Agent's Right to Make Other
Revolving Loan Advances. At any time if there is an
Existing Default, or if there is no Existing Default if
agreed to by Borrower and Administrative Agent,
Administrative Agent shall have the right to make
Revolving Loan Advances or Term Loan Advances at any time
and from time to time to cause timely payment of any of
the Loan Obligations, and Administrative Agent shall have
the right to make withdrawals from or debits against any
accounts of any Covered Person at Administrative Agent at
any time and from time to time to cause timely payment of
any of the Loan Obligations. Administrative Agent may
select the Advance Date for any such Revolving Loan
Advance, but such Advance Date may only be a Business Day.
Administrative Agent will give notice to Borrower after
any such Revolving Loan Advance or Term Loan Advance is
made. Any such Revolving Loan Advance or Term Loan Advance
will be a Base Rate Advance.
7.3. LETTERS OF CREDIT. Borrower may request the issuance
of a Letter of Credit by submitting an issuance request to Letter
of Credit Issuer and executing the reimbursement agreement required
under Section 9.1 no less than five (5) Business Days prior to the
requested issue date for such Letter of Credit, although Letter of
Credit Issuer agrees to use its commercially reasonable efforts to
issue a requested Letter of Credit within three (3) Business Days
of a request from Borrower.
7.4. FUNDINGS.
7.4.1. Advances. Not later than 1:00 p.m. (Local Time) on
each Advance Date for an Advance other than a Swingline
Advance, Administrative Agent shall promptly notify each
Lender of the amount of the Advance to be made on that
Advance Date. Each Lender shall make immediately available
to Administrative Agent by 3:00 p.m. (Local Time) on the
Advance Date funds consisting solely of Dollars in the
amount of its pro-rata share of such Advance, rounded to
the nearest xxxxx, in accordance with such remittance
instructions as may be given by Administrative Agent to
Lenders from time to time.
7.4.2. Draws on Letters of Credit. In the event that a
draw is made on a Letter of Credit and Borrower does not
reimburse the amount of such draw in full to Letter of
Credit Issuer immediately on demand, Letter of Credit
Issuer shall promptly notify Administrative Agent of such
failure. Upon Administrative Agent's receipt of such
notice from Letter of Credit Issuer, Administrative Agent
may notify each Lender thereof and shall have the right to
cause a Revolving Loan Advance to be made, regardless
whether such Revolving Loan Advance would result in the
Aggregate Revolving Loan exceeding the Maximum Available
Amount, by notifying each Lender of the draw, the amount
of the Revolving Loan Advance required to fund
reimbursement of such draw, and the amount of such
Lender's ratable share of such Revolving Loan Advance. The
Advance Date and time for such Revolving Loan Advance
shall not be later than 3:00 p.m. (Local Time) on the
first Business Day following Administrative Agent's
delivery of such notice to Lenders. By no later than such
Advance Date and time, each Lender shall make immediately
available to Administrative Agent funds consisting solely
of Dollars in the amount of its pro-rata share of such
Revolving Loan Advance, rounded to the nearest xxxxx, in
accordance with such remittance instructions as may be
given by
18
Administrative Agent to each Lender from time to time.
Each Revolving Loan Advance made by Administrative Agent
pursuant to this Section 7.4.2 shall be deemed to be a
Base Rate Advance.
7.4.3. All Fundings Ratable. All fundings of Advances
(other than Swingline Advances) shall be made by Lenders
as provided herein in accordance with their pro-rata
shares of the respective Aggregate Commitments, as
applicable. Except as otherwise expressly provided herein,
a Lender shall not be obligated to fund Revolving Loan
Advances that would result in the sum of (a) such Lender's
Revolving Loan, plus (b) such Lender's pro-rata share of
the Letter of Credit Exposure exceeding its Revolving Loan
Commitment, or make available any more than its pro-rata
share of any Advance, or fund Term Loan Advances that
would result in its Term Loan exceeding its Term Loan
Commitment.
7.5. ADMINISTRATIVE AGENT'S AVAILABILITY ASSUMPTION.
7.5.1. Unless Administrative Agent has been given written
notice by a Lender prior to an Advance Date that such
Lender does not intend to make immediately available to
Administrative Agent such Lender's pro-rata share of the
Advance which Administrative Agent will be obligated to
make on the Advance Date, Administrative Agent may assume
that such Lender has made the required amount available to
Administrative Agent on the Advance Date and
Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding
amount. If such corresponding amount is not in fact made
immediately available to Administrative Agent by such
Lender on the Advance Date, Administrative Agent shall be
entitled to recover such corresponding amount on demand
from such Lender. If such Lender does not pay such
corresponding amount (or an amount demanded by
Administrative Agent pursuant to Section 7.2.2.1)
immediately upon Administrative Agent's demand therefor,
then Administrative Agent shall promptly notify Borrower
and the other Lenders and Borrower shall immediately pay
such corresponding amount to Administrative Agent.
Administrative Agent shall also be entitled to recover,
either from such defaulting Lender (a Defaulting Lender)
or Borrower, interest on such corresponding amount for
each day from the date such corresponding amount was made
available by Administrative Agent to Borrower to the date
such corresponding amount is recovered by Administrative
Agent, at a rate per annum equal to (i) if paid by such
Lender, the cost to Administrative Agent of funding such
amount at the Federal Funds Rate, or (ii) if paid by
Borrower, the applicable rate for the Advance in question
determined from the request therefor. Each Lender shall be
obligated only to fund its pro-rata share of an Advance
subject to the terms and conditions hereof, regardless of
the failure of another Lender to fund its pro-rata share
thereof. In addition, the failure of any Lender to pay its
pro-rata share of any such Advance shall cause such Lender
to be a Defaulting Lender and such Defaulting Lender
shall, until such amount is paid to Administrative Agent
(with interest at the Federal Funds Rate), (a) permit
Administrative Agent the unconditional and irrevocable
right of setoff against any amounts (including, without
limitation, payments of principal, interest, and fees, as
well as indemnity payments) received by Administrative
Agent hereunder for the benefit of any such Defaulting
Lender, and (b) if such failure to pay shall continue for
a period of two Business Days, result in any such
Defaulting Lender forfeiting any right to vote on any
matter that the Required Lenders or all Lenders are
permitted to vote for hereunder (and the calculation of
Required Lenders shall exclude such Defaulting Lender's
interest in the Lenders' Exposure); provided, however,
once such a failure is cured, then such Lender shall,
subsequent thereto, have all rights hereunder; provided,
further, however, if any
19
Lender shall fail to make such a payment within the two
Business Day period specified in clause (b) above (other
than by reason of events beyond the reasonable control of
such Lender) four (4) or more times during the term
hereof, such Lender shall permanently forfeit its right to
vote hereunder (and the calculation of Required Lenders
shall exclude such Defaulting Lender's interest in the
Lenders' Exposure). If there is a Defaulting Lender, the
Administrative Agent shall with reasonable promptness
request that the other Lenders fund such Defaulting
Lender's portion of the requested Advances, although the
other Lenders shall have no obligation to do so and may
refuse to do so in their sole discretion.
7.5.2. Unless Administrative Agent has been given written
notice by Borrower prior to the date any payment to be
made by it is due, that it does not intend to remit such
payment, Administrative Agent may assume that the Borrower
has timely remitted such payment and Administrative Agent
may, in reliance upon such assumption, make available a
corresponding amount or pro-rata portion thereof to the
Persons entitled thereto. If such payment was not in fact
remitted to the Administrative Agent in immediately
available funds, then, each Lender shall immediately on
demand repay to Administrative Agent the corresponding
amount or pro-rata portion thereof made available to such
Lender, together with interest thereon in respect of each
day from the date such amount was made available by
Administrative Agent to such Lender to the date such
amount is repaid to Administrative Agent, at the Federal
Funds Rate.
7.6. DISBURSEMENT. Provided that all conditions precedent
herein to a requested Advance or, if applicable, a Swingline
Advance, have been satisfied, Administrative Agent will make the
amount of such requested Advance available to Borrower on the
applicable Advance Date in immediately available funds in Dollars
at Administrative Agent's Applicable Lending Office.
7.7. RESTRICTIONS ON ADVANCES. No Advance will be made
unless it is a whole multiple of $500,000 and not less than
$1,000,000, in the case of a Eurodollar Advance, or a whole
multiple of $100,000 and not less than $500,000, in the case of a
Base Rate Advance, provided, however, with respect to Term Loan
Advances, no such Advances shall be made unless it is in a whole
multiple of $1,000,000 and not less than $10,000,000. No more than
one Revolving Loan Advance and no more than one Swingline Advance
will be made on any one day pursuant to a request for a Revolving
Loan Advance. No more than one Term Loan Advance will be made on
any one day pursuant to a request for a Term Loan Advance. Advances
will only be made for the purposes permitted in Section 12.1. No
Eurodollar Advance will be made so long as there is any Existing
Default. No more than four Term Loan Advances may be requested and
made.
7.8. RESTRICTION ON NUMBER OF EURODOLLAR LOANS. No more
than seven (7) Eurodollar Loans with different Interest Periods may
be outstanding at any one time.
7.9. EACH ADVANCE REQUEST AND LETTER OF CREDIT REQUEST A
CERTIFICATION. Each submittal of a request for an Advance and each
submittal of a request for the issuance of a Letter of Credit by a
Borrowing Officer shall constitute a certification by Borrower that
(i) there is no Existing Default, (ii) all conditions precedent
hereunder to the making of the requested Advance or issuance of the
requested Letter of Credit have been satisfied, and (iii) the
Representations and Warranties are then true, with such exceptions
as have been disclosed to Lenders in writing by Borrower or a
Guarantor from time to time and are satisfactory to Lenders, and
will be true on the Advance Date or issuance date, as applicable,
as if then made with such exceptions.
7.10. REQUIREMENTS FOR EVERY ADVANCE REQUEST. Only a
request (which shall be in writing, or oral and confirmed in
writing within one Business Day, in the form attached hereto as
Exhibit
20
7.10 and mailed, personally delivered or telecopied as provided in
Section 19.1) from a Borrowing Officer to Administrative Agent that
specifies the amount of the Advance to be made, the Advance Date
for the requested Advance, the portion of the Advance which is
requested to be a Eurodollar Advance and the portion of the Advance
which is requested to be a Base Rate Advance, and the Interest
Period to be applicable to the Eurodollar Loan that will result
from a requested Eurodollar Advance, shall be treated as a request
for an Advance. No Advance Date for any requested Advance may be
other than a Business Day. A request for a Eurodollar Advance must
be given prior to 12:00 noon, Local Time, at least three (3)
Business Days prior to the Advance Date for such Eurodollar
Advance. A request for a Base Rate Advance must be given prior to
12:00 noon, Local Time, on the Advance Date for such Base Rate
Advance.
7.11. REQUIREMENTS FOR EVERY LETTER OF CREDIT REQUEST. Only a
written request (which may be mailed, personally delivered or
telecopied as provided in Section 19.1) from a Borrowing Officer to
Administrative Agent or an electronic initiation over an online
service provided by Letter of Credit Issuer that specifies the
amount, requested expiry date (which shall be a Business Day and in
no event later than twenty-five (25) days before the Revolving Loan
Maturity Date) and beneficiary of the requested Letter of Credit
and other information necessary for its issuance shall be treated
as a request for issuance of a Letter of Credit.
7.12. EXONERATION OF ADMINISTRATIVE AGENT AND LENDERS. Neither
Administrative Agent nor any Lender shall incur any liability to
Borrower for treating a request that meets the express requirements
of Section 7.10 or Section 7.11 as a request for an Advance or
issuance of a Letter of Credit, as applicable, if Administrative
Agent believes in good faith that the Person making the request is
a Borrowing Officer or if, in the case of a request for a Letter of
Credit, it is electronically initiated. Neither Administrative
Agent nor any Lender shall incur any liability to Borrower for
failing to treat any such request as a request for an Advance or
issuance of a Letter of Credit, as applicable, if Administrative
Agent believes in good faith that the Person making the request is
not a Borrowing Officer.
8. CONDITIONS OF LENDING.
8.1. CONDITIONS TO INITIAL ADVANCE. Lenders will have no obligation
to fund the initial Revolving Loan Advance or any subsequent
Revolving Loan Advance or any Term Loan Advance unless:
8.1.1. Listed Documents and Other Items. Administrative
Agent shall have received on or before the Effective Date
all of the documents and other items listed or described
in Exhibit 8.1.1 hereto as being conditions to the initial
Revolving Loan Advances as being delivered or executed on
or before the Execution Date, with each being satisfactory
to Lenders and (as applicable) duly executed and (also as
applicable) sealed, attested, acknowledged, certified, or
authenticated.
8.1.2. Financial Condition; Projections. Lenders shall (A)
have received (i) audited consolidated financial
statements for the Borrower for the fiscal years ended in
January 2002, January 2003 and January 2004, and (ii)
unaudited interim consolidated financial statements for
the Borrower for each quarterly period ended after the
latest fiscal year referred to in clause (i) above, and
such financial statements shall not, in the judgment of
the Lenders, disclose any material adverse change in the
consolidated financial position of the Borrower from what
was reflected in the financial statements previously
furnished to the Lenders, and (B) have determined to their
satisfaction that the proforma balance sheet previously
provided to Administrative Agent and proforma financial
statements for
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the remainder of fiscal year 2004 and each of fiscal years
2005, 2006, and 2007, as furnished to Administrative Agent
and Lenders, and other information furnished to
Administrative Agent and Lenders by Borrower (i) for the
periods ended on or before the Effective Date, fairly and
accurately reflect the business and financial condition of
Borrower, its cash flows and the results of its operations
for such periods, and (ii) for the periods that will end
after the Effective Date, fairly and accurately forecast
the business and financial condition of Borrower, its cash
flows, and the results of its operations for such periods.
8.1.3. No Default. There shall be no Existing Default and
no Default or Event of Default will occur as a result of
such Advance being requested or made or the application of
the proceeds thereof.
8.1.4. Representations and Warranties. The Representations
and Warranties shall be true and correct.
8.1.5. No Material Adverse Change. Since January 31, 2004,
there shall not have been any change which has or is
reasonably likely to have a Material Adverse Effect on any
Covered Person.
8.1.6. Pending Material Proceedings. There shall be no
pending Material Proceedings.
8.1.7. Administrative Agent Fee Letter. The fee letter
between Borrower and Administrative Agent shall have been
fully executed and delivered to Administrative Agent.
8.1.8. Payment of Fees and Expenses. Borrower shall have
paid and reimbursed to Lenders all fees, costs and
expenses that are payable or reimbursable to Lenders
hereunder on or before the Effective Date.
8.1.9. Insurance. Administrative Agent shall be satisfied
with the insurance maintained by Borrower (including the
insurance carrier, the types of insurance maintained, and
the levels of insurance maintained).
8.1.10. Closing Certificate. A closing certificate (on the
Effective Date) certifying as to the completion of the
conditions to closing, including without limitation, the
matters in Sections 8.1.3 and 8.1.4.
8.1.11. Other Items. Administrative Agent shall have
received such other consents, approvals, opinions,
certificates, documents or information as it reasonably
deems necessary. The Lenders shall be satisfied with the
capitalization and corporate structure of Borrower and its
Subsidiaries.
8.2. CONDITIONS TO SUBSEQUENT ADVANCES. Lenders will have no
obligation to fund any Advance after the initial Revolving Loan
Advance or the initial Term Loan Advance unless:
8.2.1. General Conditions. All of the conditions to the
initial Advances in Section 8.1 (except the condition in
Section 8.1.4 and Section 8.1.9) shall have been and shall
remain satisfied.
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8.2.2. Representations and Warranties. The Representations
and Warranties are then true, with such exceptions as have
been disclosed to Lenders in writing by Borrower or any
Guarantor from time to time and are satisfactory to
Lenders, and will be true as of the time of such Advance,
as if then made with such exceptions.
8.2.3. No Prohibitions. No order, judgment or decree of
any Governmental Authority shall exist which purports by
its terms to enjoin or restrain Administrative Agent or
any Lender from making the requested Advance, and no Law
or request or directive (whether or not having the force
of law) from any Governmental Authority with jurisdiction
over Administrative Agent or any Lender shall exist which
prohibits, or requests that Administrative Agent or any
Lender refrain from, the making of loans generally or
Administrative Agent or any Lender in particular, or
imposes upon Administrative Agent or any Lender with
respect to such Advance any restriction or reserve or
capital requirement (for which Administrative Agent or any
Lender is not otherwise compensable by Borrower
hereunder).
8.2.4. No Default. There shall be no Existing Default and
no Default or Event of Default will occur as a result of
such Advance being requested or made or the application of
the proceeds thereof.
9. CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. As conditions precedent to
the issuance of any Letter of Credit:
9.1. LETTER OF CREDIT APPLICATION/REIMBURSEMENT AGREEMENT. Borrower
shall have executed and delivered to Letter of Credit Issuer a
letter of credit application(s) and reimbursement agreement(s) each
in form and substance satisfactory to Letter of Credit Issuer under
which Borrower further evidences its obligation to reimburse to
Letter of Credit Issuer on demand the amount of each draw on such
Letter of Credit as provided in Section 6.5, together with interest
from the date of the draw at the rate provided in Section 4.1 and
(without duplication) all reasonable expenses incurred by Letter of
Credit Issuer in connection with such Letter of Credit. In the
event of a direct and irreconcilable conflict between the terms of
this Agreement and the terms of the documents executed by Borrower
in connection with the issuance of any Letter of Credit including,
without limitation, any letter of credit application, master letter
of credit agreement or reimbursement agreement, the terms of this
Agreement will control.
9.2. NO PROHIBITIONS. No order, judgment or decree of any
Governmental Authority shall exist which purports by its terms to
enjoin or restrain Letter of Credit Issuer or any other Lender from
issuing such Letter of Credit, and no Law or request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over Letter of Credit Issuer or any
other Lender shall exist which prohibits, or requests that Letter
of Credit Issuer or any other Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular,
or imposes upon Letter of Credit Issuer or any other Lender with
respect to such Letter of Credit any restriction or reserve or
capital requirement (for which Letter of Credit Issuer or any other
Lender is not otherwise compensable by Borrower hereunder).
9.3. REPRESENTATIONS AND WARRANTIES. The Representations and
Warranties are then true, with such exceptions as have been
disclosed to Lenders in writing by Borrower or such Guarantor from
time to time and are satisfactory to Lenders, and will be true as
of the time of the issuance of such Letter of Credit, as if then
made with no exceptions.
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9.4. NO DEFAULT. There shall be no Existing Default and no Default
or Event of Default is reasonably likely to occur as a result of
such Letter of Credit being issued or a draw thereon being made or
paid.
9.5. OTHER CONDITIONS. All of the conditions to the initial
Advances in Section 8.1 (except the condition in Section 8.1.4 and
Section 8.1.9) shall have been and shall remain satisfied.
10. REPRESENTATIONS AND WARRANTIES. Except as otherwise described in the
Disclosure Schedule attached hereto as Exhibit 10, Borrower represents and
warrants to Administrative Agent, Lenders, and Letter of Credit Issuer, on
its behalf and on behalf of each Covered Person, as follows:
10.1. ORGANIZATION AND EXISTENCE. Each Covered Person is duly
organized and existing in good standing under the Laws of the state
of its organization, is duly qualified to do business and is in
good standing in every state where the nature or extent of its
business or properties require it to be qualified to do business,
except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect on any Covered Person.
Each Covered Person has the power and authority to own its
properties and carry on its business as now being conducted. With
respect to each Covered Person, the following information is fully,
accurately and completely set forth on section 10.1 of the
Disclosure Schedule: (i) the full and exact legal name of each
Covered Person, (ii) state of organization/formation of such
Covered Person, (iii) the tax identification number (FEIN or social
security number, as appropriate) of each Covered Person, and (iv)
the charter number (if available) of each Covered Person.
10.2. AUTHORIZATION. Each Covered Person is duly authorized to
execute and perform every Loan Document to which such Covered
Person is a party, and Borrower is duly authorized to borrow
hereunder, and this Agreement and the other Loan Documents have
been duly authorized by all requisite corporate or membership
action (in the case of limited liability companies) of each Covered
Person. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any
other Person, is required in connection with Borrower's execution,
delivery or performance of this Agreement and the other Loan
Documents, except for those already duly obtained.
10.3. DUE EXECUTION. Every Loan Document to which a Covered Person
is a party has been executed on behalf of such Covered Person by a
Person duly authorized to do so.
10.4. ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Covered Person is a party constitutes the legal, valid and
binding obligation of such Covered Person, enforceable against such
Covered Person in accordance with its terms, except to the extent
that the enforceability thereof against such Covered Person may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting creditors' rights generally or by equitable
principles of general application.
10.5. BURDENSOME OBLIGATIONS. No Covered Person is a party to or
bound by any Contract, including, without limitation, any Contract
that would prohibit the granting of a Security Interest on its
assets or require that if a Security Interest is granted that it be
pari passu with any other Person's Security Interest in such
assets, or is subject to any provision in the Charter Documents of
such Covered Person which would, if performed by such Covered
Person, result in a Default or Event of Default either immediately
or upon the elapsing of time.
10.6. LEGAL RESTRAINTS. The execution and performance of any Loan
Document by a Covered Person will not violate or constitute a
default under the Charter Documents of such Covered
24
Person, any Material Agreement of such Covered Person, or any
Material Law, and will not, except as expressly contemplated or
permitted in this Agreement, result in any Security Interest being
imposed on any of such Covered Person's property.
10.7. LABOR CONTRACTS AND DISPUTES. There is no pending or, to
Borrower's knowledge, threatened, strike, work stoppage, unfair
labor practice claim or other labor dispute against or affecting
any Covered Person or its employees which has or is reasonably
likely to have a Material Adverse Effect on any Covered Person.
10.8. NO MATERIAL PROCEEDINGS. There are no Material Proceedings
pending or, to the best knowledge of Borrower, threatened, against
any Covered Person.
10.9. MATERIAL LICENSES. All Material Licenses have been obtained
or exist for each Covered Person.
10.10. COMPLIANCE WITH MATERIAL LAWS. The operations and employee
compensation practices of every Covered Person comply in all
material respects with, and are not subject to any judicial or
administrative complaint, investigation, order or proceeding
alleging the violation of, any and all applicable Environmental
Laws which are Material Laws and Employment Laws which are Material
Laws.
10.11. PRIOR TRANSACTIONS. From and after the Effective Date,
except for Permitted Acquisitions, no Covered Person has been a
party to any merger or consolidation, or acquired all or
substantially all of the assets of any Person, or acquired any of
its property outside of the ordinary course of business.
10.12. SOLVENCY. Borrower is Solvent prior to and after giving
effect to, any fundings of any Advance on the Effective Date.
Borrower is Solvent at the time of each request for an Advance and
immediately after the funding of each such Advance.
10.13. PROJECTIONS; PRO FORMA BALANCE SHEET. The projections of
Borrower's year end financial condition, results of operations, and
cash flow for the periods through the end of the 2007 fiscal year,
a copy of which have been delivered to Administrative Agent and
each Lender, represent Borrower's good faith best estimate of
Borrower's future financial performance for the periods set forth
therein. Such projections have been prepared consistent with GAAP
on the basis of the assumptions set forth therein, which Borrower
believes are fair and reasonable in light of current and reasonably
foreseeable business conditions. The pro forma balance sheet of
Borrower as of the Effective Date, a copy of which has been
provided by Borrower to Administrative Agent and each Lender, has
been prepared consistent with GAAP (except the non year-end
Financial Statements do not contain footnotes and remain subject to
normal year-end adjustments) and presents fairly and accurately
Borrower's financial condition as of the Effective Date as if the
transactions contemplated by the initial advance had occurred on
the Effective Date.
10.14. FINANCIAL STATEMENTS. The Financial Statements are complete
and correct in all material respects, have been prepared in
accordance with GAAP (except the non year-end Financial Statements
do not contain footnotes and remain subject to normal year end
adjustments), and fairly reflect the financial condition, results
of operations and cash flows of the Persons covered thereby as of
the dates and for the periods stated therein, subject in the case
of interim Financial Statements to normal year-end adjustments made
in accordance with GAAP.
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10.15. NO CHANGE IN CONDITION. Since the date of the Financial
Statements delivered to Administrative Agent and Lenders as
required herein, there has been no change which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.16. NO DEFAULTS. No Covered Person has breached or violated or
has defaulted under any Material Agreement, or has defaulted with
respect to any Material Obligation of such Covered Person. No
Default has occurred which is continuing and no Event of Default
has occurred.
10.17. INVESTMENTS. No Covered Person has any Investments in other
Persons except existing Permitted Investments.
10.18. INDEBTEDNESS. No Covered Person has any Indebtedness except
existing Permitted Indebtedness.
10.19. INDIRECT OBLIGATIONS. No Covered Person has any Indirect
Obligations except existing Permitted Indirect Obligations.
10.20. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered Person
has filed or caused to be filed all tax reports and returns
required to be filed by it with any Governmental Authority, except
where extensions have been properly obtained. Each Covered Person
has paid or made adequate provision for payment of all Taxes of
such Covered Person, except Taxes which are being diligently
contested in good faith by appropriate proceedings and as to which
such Covered Person has established adequate reserves in conformity
with GAAP. No Security Interest for any such Taxes has been filed
and no claims are being asserted with respect to any such Taxes
which, if adversely determined, has or is reasonably likely to have
a Material Adverse Effect on such Covered Person. There are no
material unresolved issues concerning any liability of a Covered
Person for any Taxes which, if adversely determined, will have or
is reasonably likely to have a Material Adverse Effect on such
Covered Person.
10.21. PENSION BENEFIT PLANS. All Pension Benefit Plans maintained
by each Covered Person or an ERISA Affiliate of such Covered Person
qualify under Section 401 of the Code and are in compliance with
the provisions of ERISA to the extent ERISA is applicable and all
other Material Laws. Except with respect to events or occurrences
which do not have and are not reasonably likely to have a Material
Adverse Effect on any Covered Person, and to the extent ERISA is
applicable to any such Pension Benefit Plans:
10.21.1. Prohibited Transactions. None of such Pension
Benefit Plans has participated in, engaged in or been a
party to any non-exempt PROHIBITED TRANSACTION as defined
in ERISA or the Code, and no officer, director or employee
of such Covered Person or of an ERISA Affiliate of such
Covered Person has committed a breach of any of the
responsibilities or obligations imposed upon fiduciaries
by Title I of ERISA.
10.21.2. Claims. There are no claims, pending or
threatened, involving any such Pension Benefit Plan by a
current or former employee (or beneficiary thereof) of
such Covered Person or ERISA Affiliate of such Covered
Person, nor is there any reasonable basis to anticipate
any claims involving any such Pension Benefit Plan which
would likely be successfully maintained against such
Covered Person or such ERISA Affiliate.
10.21.3. Reporting and Disclosure Requirements. There are
no violations of any reporting or disclosure requirements
with respect to any such Pension Benefit Plan and none of
26
such Pension Benefit Plans has violated any applicable
Law, including ERISA and the Code.
10.21.4. Accumulated Funding Deficiency. No such Pension
Benefit Plan has (i) incurred an accumulated funding
deficiency (within the meaning of Section 412(a) of the
Code), whether or not waived; (ii) been a Pension Benefit
Plan with respect to which a Reportable Event (to the
extent that the reporting of such events to the PBGC
within thirty days of the occurrence has not been waived)
has occurred and is continuing; or (iii) been a Pension
Benefit Plan with respect to which there exist conditions
or events which have occurred that present a significant
risk of termination of such Pension Benefit Plan by the
PBGC.
10.21.5. Multi-employer Plan. No Covered Person or ERISA
Affiliate of such Covered Person has received notice that
any such Multi-employer Plan is in reorganization or has
been terminated within the meaning of Title IV of ERISA,
and no such Multi-employer Plan is reasonably expected to
be in reorganization or to be terminated within the
meaning of Title IV of ERISA.
10.22. WELFARE BENEFIT PLANS. No Covered Person or ERISA Affiliate
of any Covered Person maintains a Welfare Benefit Plan that has a
liability which, if enforced or collected, has or is reasonably
likely to have a Material Adverse Effect on any Covered Person.
Each Covered Person and each ERISA Affiliate of any Covered Person
has complied in all material respects with the applicable
requirements of Section 4980B of the Code pertaining to
continuation coverage as mandated by COBRA.
10.23. RETIREE BENEFITS. No Covered Person or ERISA Affiliate of
such Covered Person has an obligation to provide any Person with
any medical, life insurance, or similar benefit following such
Person's retirement or termination of employment (or to such
Person's beneficiary subsequent to such Person's death) which has
or is reasonably likely to have a Material Adverse Effect on any
Covered Person.
10.24. STATE OF PROPERTY. Each Covered Person has good and
marketable or merchantable title to all real, personal property and
intangible property purported to be owned by it or reflected in the
Initial Financial Statements, except for personal property sold in
the ordinary course of business after the date of the Initial
Financial Statements, and all such real and personal property is in
good working order and condition, except for normal wear and tear.
Borrower owns all intellectual property (including, without
limitation, patents, trademarks, and copyrights) reasonably
necessary for the operation of its business.
10.25. NEGATIVE PLEDGES. Except as set forth in this Agreement, no
Covered Person is a party to or bound by any Contract which
prohibits the creation or existence of any Security Interest upon
or assignment or conveyance of any of its assets.
10.26. AFFILIATES; SUBSIDIARIES. Borrower has no Subsidiaries,
except for those Subsidiaries listed in section 10.26 of the
Disclosure Schedule, which may be updated by Borrower from time to
time without the consent of Required Lenders so long as any such
new Subsidiaries executes a joinder agreement to the Guaranty if
required by the Administrative Agent in its reasonable discretion.
10.27. MARGIN STOCK. No Covered Person is engaged or will engage,
principally or as one of its important activities, in the business
of extending credit for the purpose of PURCHASING or
27
CARRYING MARGIN STOCK (within the meaning of Regulation U), and no
part of the proceeds of any Advance will be used to purchase or
carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any
purpose which violates, or which would be inconsistent with, the
provisions of Regulation U. None of the transactions contemplated
by this Agreement, any of the other Loan Documents, or any of the
Acquisition Documents will violate Regulations T, U or X of the
FRB.
10.28. SECURITIES MATTERS. No proceeds of any Advance will be used
to acquire any security in any transaction which is subject to
Sections 13 and 14 of the Securities Exchange Act of 1934.
10.29. INVESTMENT COMPANY ACT, ETC. No Covered Person is an
INVESTMENT COMPANY registered or required to be registered under
the Investment Company Act of 1940, or a company CONTROLLED (within
the meaning of such Investment Company Act) by such an INVESTMENT
COMPANY or an AFFILIATED PERSON of, or PROMOTER or PRINCIPAL
UNDERWRITER for, an INVESTMENT COMPANY, as such terms are defined
in the Investment Company Act of 1940. No Covered Person is subject
to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or any other Law
limiting or regulating its ability to incur Indebtedness for money
borrowed.
10.30. NO MATERIAL MISSTATEMENTS OR OMISSIONS. Neither the Loan
Documents, any of the Financial Statements nor any statement, list,
certificate or other information furnished or to be furnished by
Borrower or any other Covered Person to Administrative Agent or
Lenders in connection with the Loan Documents or any of the
transactions contemplated thereby contains any untrue statement of
a material fact, or omits to state a material fact necessary to
make the statements therein not misleading. Borrower has disclosed
to Administrative Agent and Lenders everything regarding the
business, operations, property, financial condition, or business
prospects or itself and every Covered Person that has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.31. FILINGS. All registration statements, reports, proxy
statements and other documents, if any, required to be filed by any
Covered Person with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, and the Securities Exchange Act of
1934, have been filed, and such filings are complete and accurate
in all material respects and contain no untrue statements of
material fact or omit to state any material facts required to be
stated therein or necessary in order to make the statements therein
not misleading.
10.32. NO IMPROPER PAYMENT OR INFLUENCE. Neither Borrower nor any
other Covered Person has directly or indirectly paid or delivered
any fee, commission or other money or property, or engaged in any
lobbying, influencing or other behavior, however characterized, to
any agent, government official, regulatory body, governmental
agency or other Person, in the United States or any other country,
related to the business or operations of the Borrower or any other
Covered Person, that the Borrower and each other Covered Person
knows or has reason to believe to have been illegal under any
federal, state, or local law of the United States or any other
country having jurisdiction, or to have been for the purpose of,
and to have had the effect of, inducing or encouraging the breach
by the recipient thereof of any legal duties, whether as an
employee or otherwise to another Person.
10.33. FOREIGN ENEMIES AND REGULATIONS. The use of the proceeds of
the Loans and use of the Letters of Credit as contemplated by this
Agreement will not violate (A) any regulations promulgated or
administered by the Office of Foreign Assets Control, United States
Department of the Treasury, including without limitation, the
Foreign Assets Control Regulations, the
28
Transaction Control Regulations, the Cuban Assets Control
Regulations, the Foreign Funds Control Regulations, the Iranian
Assets Control Regulations, the Nicaraguan Trade Control
Regulations, the South African Transaction Regulations, the Iranian
Transactions Regulations, the Iraqi Sanctions Regulations, the
Soviet Gold Coin Regulations, the Panamanian Transaction
Regulations or the Libyan Sanctions Regulations of the United
States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as
amended, (B) the Trading with the Enemy Act, as amended, (C)
Executive Orders 8389, 9095, 9193, 12543 (Libya), 12544 (Libya),
12722 or 12724 (Iraq), 12775 or 12779 (Haiti), or 12959 (Iran), as
amended, of the President of the United States or (D) any rule,
regulation or executive order issued or promulgated pursuant to the
laws or regulations described in the foregoing clauses (A) -(C).
11. MODIFICATION AND SURVIVAL OF REPRESENTATIONS. Except as specifically
noted herein, Borrower may at any time after the initial Advances are made
propose to Lenders in writing to modify the representations and warranties
in Section 10, the representations and warranties in any other Loan Document
and any other representation or warranty made in any certificate, report,
opinion or other document delivered by Borrower pursuant to the Loan
Documents. If the proposed modifications are satisfactory to Required
Lenders as evidenced by their written assent thereto, then such
representations and warranties shall be deemed and treated as so modified,
but only as of the date of Borrower's written modification proposal. If such
proposed modifications are not satisfactory to Required Lenders, then such
proposed modifications shall not be deemed or treated as modifying such
representations and warranties. All such representations and warranties, as
made or deemed made as of a particular time, shall survive execution of each
of the Loan Documents and the making of every Advance, and may be relied
upon by Administrative Agent and Lenders as being true and correct as of the
date when made or deemed made until all of the Loan Obligations are fully
and indefeasibly paid, no Letters of Credit are outstanding and the Letter
of Credit Exposure is irreversibly zero.
12. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that, while any of
the Commitments remains in effect and until all of the Loan Obligations are
fully and indefeasibly paid, no Letters of Credit are outstanding and the
Letter of Credit Exposure is irreversibly zero, Borrower shall do, or cause
to be done by each of the other Covered Persons, as applicable, the
following:
12.1. USE OF PROCEEDS. The proceeds of Revolving Loan Advances and
Swingline Advances shall be used by the Company solely to (i)
provide for the working capital and capital expenditures
requirements of the Company and its Subsidiaries, payment of
dividends permitted hereunder, and general corporate purposes of
the Company and its Subsidiaries, and (ii) to finance Permitted
Acquisitions. The proceeds of Term Loan Advances shall be used
solely to finance Permitted Acquisitions or refinance Revolving
Loan Advances.
12.2. CORPORATE EXISTENCE. Each Covered Person shall maintain its
existence in good standing and shall maintain in good standing its
right to transact business in those states in which it is now or
hereafter doing business, except where the failure to so qualify
will not have and will not be reasonably likely to have a Material
Adverse Effect on any Covered Person. Each Covered Person shall
obtain and maintain all Material Licenses for such Covered Person.
12.3. MAINTENANCE OF PROPERTY AND LEASES. Each Covered Person shall
maintain in good condition and working order, and repair and
replace as required, all buildings, equipment, machinery, fixtures
and other real and personal property owned or leased by it whose
useful economic life has not elapsed and which is reasonably
necessary for the ordinary conduct of the business of such Covered
Person. All of each Covered Person's inventory shall be produced in
accordance with the Federal Fair Labor Standards Act of 1938 and
all rules, regulations, and orders thereunder.
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12.4. INSURANCE. Each Covered Person shall at all times keep
insured or cause to be kept insured, in insurance companies having
a rating of at least "A-" by Best's Rating Service, all property
owned by it of a character usually insured by others carrying on
businesses similar to that of such Covered Person in such manner
and to such extent and covering such risks as such properties are
usually insured subject to deductibles and self-insured retention
levels consistent with past practices. Each Covered Person also
shall carry business interruption insurance in such amounts, in
such manner and to such extent and covering such risks as such
businesses are usually insured subject to deductibles and
self-insured retention levels consistent with past practices. Each
Covered Person shall at all times carry insurance, in insurance
companies having a rating of at least "A-" by Best's Rating
Service, against liability on account of damage to persons or
property (including product liability insurance and insurance
required under all Laws pertaining to workers' compensation) and
covering all other liabilities common to such Covered Person's
business, in such manner and to such extent as such coverage is
usually carried by others conducting businesses similar to that of
such Covered Person subject to deductibles and self-insured
retention levels consistent with past practices. All liability
policies of liability insurance maintained hereunder shall name
Administrative Agent as an additional insured for the benefit of
Lenders, and such policies of insurance maintained hereunder shall
contain a clause providing that such policies may not be canceled,
without 30 days prior written notice to Administrative Agent.
Borrower shall upon request of Administrative Agent at any time
furnish to Administrative Agent updated evidence of insurance (in
the form required as a condition to Administrative Agent's lending
hereunder) for such insurance. Notwithstanding the foregoing, if
the Best's Rating Service rating of any insurance carrier(s) of the
Borrower or any other Covered Person falls below "A-," then such
event shall not be an Event of Default if, within 270 days of such
downgrading, Borrower shall put in place insurance meeting the
requirements of this Section with replacement insurance carrier(s)
with a Best's Rating Service rating of at least "A-."
12.5. PAYMENT OF TAXES AND OTHER OBLIGATIONS. Each Covered Person
shall promptly pay and discharge or cause to be paid and
discharged, as and when due, any and all income taxes, federal or
otherwise, lawfully assessed and imposed upon it, and any and all
lawful taxes, rates, levies, and assessments whatsoever upon its
properties and every part thereof, or upon the income or profits
therefrom and all claims of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons for labor,
materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of
its property; provided, however, that a Covered Person may
diligently contest in good faith by appropriate proceedings the
validity of any such taxes, rates, levies, or assessments, provided
such Covered Person has established adequate reserves therefor in
conformity with GAAP on the books of such Covered Person, and no
Security Interest, other than a Permitted Security Interest,
results from such non-payment.
12.6. COMPLIANCE WITH LAWS. Each Covered Person shall comply with
all Material Laws. Without limiting the foregoing, each Covered
Person shall (i) ensure, and cause each other Covered Person to
ensure, that no person who owns a controlling interest in or
otherwise controls Borrower or a Covered Person is or shall be (A)
listed on the Specially Designated Nationals and Blocked Person
List maintained by the Office of Foreign Assets Control ("OFAC"),
Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive
Order or regulation or (B) a person designated under Section 1(b),
(c) or (d) of Executive Order No. 13224 (September 23, 2001), any
related enabling legislation or any other similar Executive Orders,
and (ii) comply, and cause each other Covered Person to comply,
with all applicable Bank Secrecy Act ("BSA") and anti-money
laundering laws and regulations.
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12.7. TERMINATION OF PENSION BENEFIT PLAN. No Covered Person or
ERISA Affiliate of such Covered Person shall terminate or amend any
Pension Benefit Plan maintained by such Covered Person or such
ERISA Affiliate if such termination or amendment would result in
any liability to such Covered Person or such ERISA Affiliate under
ERISA or any increase in current liability for the plan year for
which such Covered Person or such ERISA Affiliate is required to
provide security to such Pension Benefit Plan under the Code, which
such liability could reasonably be expected to have a Material
Adverse Effect on such Covered Person.
12.8. NOTICE TO ADMINISTRATIVE AGENT OF MATERIAL EVENTS. Borrower
shall, promptly upon any Responsible Officer of Borrower obtaining
knowledge or notice thereof, give notice to Administrative Agent of
(i) any breach of any of the covenants in Section 12, 13, or 14;
(ii) any Default or Event of Default; (iii) the commencement of any
Material Proceeding; and (iv) any loss of or damage to any assets
of a Covered Person or the commencement of any proceeding for the
condemnation or other taking of any of the assets of a Covered
Person, if insurance and/or condemnation proceeds in excess of
$1,000,000 are likely to be payable as a consequence of such loss,
damage or proceeding, or if such loss, damage or proceeding has or
is reasonably likely to have a Material Adverse Effect on such
Covered Person. In addition,
12.8.1. Borrower shall furnish to Administrative Agent
from time to time all information which Administrative
Agent reasonably requests with respect to the status of
any Material Proceeding.
12.8.2. Borrower shall furnish to Administrative Agent
from time to time all information which Administrative
Agent requests with respect to any Pension Benefit Plan
established by a Covered Person or an ERISA Affiliate of
any Covered Person.
12.8.3. Borrower shall promptly deliver to Administrative
Agent notice of any default or event of default, or the
occurrence of any event which would with the passage of
time, giving of notice or otherwise, constitute a default
or event of default with respect to any of the Permitted
Indebtedness which is in an amount which exceeds $500,000.
12.8.4. Borrower shall promptly deliver notice to
Administrative Agent of the assertion by the holder of any
capital stock, membership interest, or any other equity
interest in a Covered Person or any Indebtedness of a
Covered Person in the outstanding principal amount in
excess of $500,000 that a default exists with respect
thereto or that such Covered Person is not in compliance
with the terms thereof, or of the threat or commencement
by such holder of any enforcement action because of such
asserted default or noncompliance (including any general
shareholder suits).
12.8.5. Borrower shall, promptly after becoming aware
thereof, deliver notice to Administrative Agent of any
pending or threatened strike, work stoppage, unfair labor
practice claim or other labor dispute affecting a Covered
Person which has or is reasonably likely to have a
Material Adverse Effect on any Covered Person.
12.8.6. Borrower shall promptly deliver notice to
Administrative Agent of any change in the name, state of
organization, or form of organization of any Covered
Person.
12.8.7. Borrower shall, promptly after becoming aware
thereof, deliver notice to Administrative Agent of any
event that has or is reasonably likely to have a Material
Adverse Effect on any Covered Person.
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12.8.8. Borrower shall, promptly after becoming aware
thereof, deliver notice to Administrative Agent of an
actual or alleged violation of any Material Law applicable
to a Covered Person or the property of a Covered Person.
12.8.9. Borrower shall notify Administrative Agent
promptly in writing of any fact or condition of which
Borrower is aware which materially and adversely affects
the value of its assets taken as a whole.
12.9. BORROWING OFFICER. Borrower shall keep on file with
Administrative Agent at all times an appropriate instrument naming
each Borrowing Officer.
12.10. ACCOUNTING SYSTEM; TRACING OF PROCEEDS. Each Covered Person
shall maintain a system of accounting established and administered
in accordance with GAAP. Each Covered Person shall maintain
detailed and accurate records of all transfers of any proceeds of
the Loans from Borrower to such Covered Person. Borrower shall
maintain detailed and accurate records of proceeds of the Loans and
transfers of proceeds of the Loans (i) received by it from the
Lenders, (ii) transferred from it to any other Covered Person, and
(iii) received by it from another Covered Person. Borrower agrees
that (a) the business operations of Borrower and each Covered
Person are interrelated and complement one another, and such
entities have a common business purpose and common management, and
(b) the proceeds of Advances hereunder will benefit Borrower and
each Covered Person, severally and jointly, regardless of which
Borrower requests or receives part or all of any Advance.
12.11. FINANCIAL STATEMENTS. Borrower shall deliver to
Administrative Agent for each Lender:
12.11.1. Annual Financial Statements. Within 95 days after
the close of each fiscal year of Borrower, year-end
consolidated financial statements of Borrower and its
Subsidiaries, containing a balance sheet, income
statement, statement of cash flows and an audit report
without qualification by an independent certified public
accounting firm selected by Borrower and satisfactory to
Administrative Agent, and accompanied by (i) a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower, (ii) the management letter and report on
internal controls delivered by such independent certified
public accounting firm in connection with their audit, if
any, and (iii) if requested by Administrative Agent, any
summary prepared by such independent certified public
accounting firm of the adjustments proposed by the members
of its audit team.
12.11.2. Quarterly Financial Statements. Within 50 days
after the end of each fiscal quarter, unaudited
consolidated financial statements of Borrower for each of
the fiscal quarters not covered by the latest year-end
financial statements, in each case containing a balance
sheet, income statement, and statement of cash flows; and
in connection with the delivery of such Financial
Statements at the end of each fiscal quarter, a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower.
Each Compliance Certificate shall be in the form of
Exhibit 12.11, shall contain detailed calculations of the
financial measurements referred to in Section 14 for the
relevant periods, and shall contain statements by the
signing officer to the effect that, except as explained in
reasonable detail in such Compliance Certificate, (i) the
attached Financial Statements are complete and correct in
all material respects (subject, in the case of Financial
Statements other than annual, to normal year-end audit
adjustments) and have been prepared in accordance with
GAAP applied consistently throughout the periods covered
thereby and with prior periods (except as disclosed
therein) (ii) all of the
32
Representations and Warranties are true and correct as of
the date such certification is given as if made on such
date, and (iii) there is no Existing Default. If any
Compliance Certificate delivered to Administrative Agent
discloses that a representation or warranty is not true
and correct, or that there is an Existing Default that has
not been waived in writing by Required Lenders, such
Compliance Certificate shall state what action Borrower
has taken or proposes to take with respect thereto.
12.12. OTHER FINANCIAL INFORMATION. Borrower shall also deliver the
following to Administrative Agent:
12.12.1. Stockholder Reports. Upon the reasonable request
of Administrative Agent, copies of any proxy statements,
financial statements and reports which Borrower makes
available to its stockholders, members or partners.
12.12.2. Pension Benefit Plan Reports. Promptly upon the
reasonable request of Administrative Agent at any time or
from time to time, a copy of each annual report or other
filing or notice filed with respect to each Pension
Benefit Plan of a Covered Person or an ERISA Affiliate of
a Covered Person.
12.12.3. Tax Returns. Promptly upon the reasonable request
of Administrative Agent at any time or from time to time,
a copy of each federal, state, or local tax return or
report filed by Borrower.
12.13. ANNUAL PROJECTIONS. Within 60 days after the first day of
each fiscal year of Borrower, projected balance sheets, statements
of income and expense, and statements of cash flows for Borrower
and every other Covered Person as of the end of and for each fiscal
quarter of such fiscal year and on an annual basis for the next two
succeeding fiscal years, in such detail as Administrative Agent may
reasonably require.
12.14. OTHER INFORMATION. Promptly upon the reasonable request of
Administrative Agent, Borrower shall promptly deliver to
Administrative Agent such other information about the business,
operations, revenues, financial condition, property, or business
prospects of Borrower and every other Covered Person as
Administrative Agent may, from time to time, reasonably request.
12.15. ACCESS TO OFFICERS AND AUDITORS. Each Covered Person shall,
within five Business Days of a request from a Lender or
Administrative Agent, permit any Lender and Administrative Agent
and each of their representatives and agents to discuss the
business, operations, revenues, financial condition, property, or
business prospects of such Covered Person with its officers,
employees, accountants and independent auditors as often as
Administrative Agent may request in its reasonable discretion, and
such Covered Person shall direct such officers, employees,
accountants and independent auditors to cooperate with
Administrative Agent, Lenders, and their representatives and
agents, and make full disclosure to Administrative Agent, Lenders,
and their representatives and agents, of those matters that they
may deem relevant to the continuing ability of Borrower timely to
pay and perform the Loan Obligations.
12.16. ACQUISITION DOCUMENTS. Borrower shall fully perform all of
its material obligations under all Acquisition Documents, and shall
enforce all of its rights and remedies thereunder as it deems
appropriate in its reasonable business judgment; provided, however,
that Borrower shall not take any action or fail to take any action
which would result in a waiver or other loss of any material right
or remedy of Borrower thereunder.
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12.17. FURTHER ASSURANCES. Borrower shall execute and deliver, or
cause to be executed and delivered, to Administrative Agent such
documents and agreements, and shall take or cause to be taken such
actions, as Administrative Agent may from time to time reasonably
request to carry out the terms and conditions of this Agreement and
the other Loan Documents.
12.18. COVERED PERSONS. Borrower shall cause each other Covered
Person to comply with each of the terms and provisions of this
Agreement and the other Loan Documents, and Borrower acknowledges
and agrees that failure of Borrower or any Covered Persons to
comply with the terms of this Agreement and the other Loan
Documents, shall be a Default hereunder and thereunder.
12.19. GUARANTEES. Upon the request of the Administrative Agent or
the Required Lenders, Borrower shall cause any Subsidiaries of
Borrower to execute a Guaranty of all of the Loan Obligations in
form and substance reasonably satisfactory to Administrative Agent
and to provide such authorizing resolutions, certificates of
incumbency and other corporate documents as may be reasonably
requested by Administrative Agent in connection therewith.
12.20. LIFE INSURANCE. Borrower shall pay all premiums and other
amounts due under the Life Insurance Policies. At all times while
any Indebtedness permitted by Section 13.2.7 is outstanding,
Borrower shall at all times keep the Life Insurance Policies
relating to such Indebtedness in full force and effect, except with
respect to any such Life Insurance Policies with respect to which
the insured person under such policy has died.
13. NEGATIVE COVENANTS. Borrower covenants and agrees that, while any of the
Commitments remain in effect and until all of the Loan Obligations are fully
and indefeasibly paid, no Letters of Credit are outstanding and the Letter
of Credit Exposure is zero, Borrower shall not, directly or indirectly, do
any of the following, or permit any Covered Person to do any of the
following:
13.1. INVESTMENTS. Make any Investments in any other Person except
the following:
13.1.1. Investments in (i) interest-bearing United States
government obligations; (ii) certificates of deposit
issued by any Lender; (iii) prime commercial paper rated
A1 or better by Standard and Poor's Corporation or Prime
P1 or better by Xxxxx'x Investor Service, Inc.; (iv)
agreements involving the sale to a Covered Person of
United States government securities and their guarantied
repurchase the next Business Day by a commercial bank
chartered under the Laws of the United States or any state
thereof which has capital and surplus of not less than
$500,000,000, or (v) certificates of deposit issued by and
time deposits which do not extend more than 364 days or
money market accounts, with any commercial bank chartered
under the Laws of the United States or any state thereof
which has capital and surplus of not less than
$500,000,000.
13.1.2. Accounts arising in the ordinary course of
business and payable in accordance with Borrower's
customary trade terms.
13.1.3. Any Investments that are Permitted Acquisitions.
13.1.4. Investments existing on the Execution Date and
disclosed in section 10.17 of the Disclosure Schedule.
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13.1.5. Notes or equity interests received by a Covered
Person in settlement of Indebtedness of other Persons to
such Covered Person that was incurred in the ordinary
course of such Covered Person's business.
13.1.6. Investments by any Covered Person in any other
Covered Person.
13.1.7. Loans to members of Borrower's management to
finance the exercise of Approved Options and the payment
of income taxes in connection therewith in a net aggregate
cash amount not exceeding $250,000.
13.2. INDEBTEDNESS. Create, incur, assume, or allow to exist any
Indebtedness of any kind or description, except the following:
13.2.1. Indebtedness to trade creditors incurred in the
ordinary course of business, to the extent that it is not
overdue past the original due date by more than 60 days
(unless such Indebtedness is being contested in good faith
by such Covered Person and adequate reserves under GAAP
have been made).
13.2.2. The Loan Obligations.
13.2.3. Indebtedness secured by Permitted Security
Interests.
13.2.4. Indebtedness under Capital Leases up to $7,500,000
in original capitalized cost outstanding at any time in
the aggregate.
13.2.5. Indebtedness up to $3,000,000 in the aggregate
outstanding at any time secured by Security Interests
permitted under Section 13.4.5.
13.2.6. Unsecured Indebtedness up to $3,000,000 in the
aggregate principal amount outstanding at any time.
13.2.7. Indebtedness up to the cash value of the Life
Insurance Policies.
13.2.8. Non-interest bearing Indebtedness up to $4,000,000
owing to Duke University Health System, Inc., which is (A)
incurred in connection with the Duke Acquisition, (B)
incurred as a deferred purchase price payment for the
assets being purchased by Borrower pursuant to the Duke
Acquisition, (C) due and payable in full no later than one
year following the closing date of the Duke Acquisition,
(D) not evidenced by a promissory note or other
Instrument, and (E) not secured by a Security Interest on
any asset of Borrower or any other Covered Person
(although Borrower may, in its discretion, provide a
Letter of Credit to Duke University Health System, Inc to
secure the Indebtedness described in this Section 13.2.8).
13.2.9. If there is no Existing Default and no Default or
Event of Default would reasonably be likely to result from
the incurrence of the following Indebtedness, subject to
the other terms and conditions of this Agreement
(including, without limitation, Section 6.4.3.2) and if
modifications to this Agreement due to the incurrence of
such Indebtedness are made as the Administrative Agent and
the Required Lenders may reasonably require, unsecured
Indebtedness (pari passu with the Loan Obligations), on
terms and conditions reasonably satisfactory to
Administrative Agent and the Required
35
Lenders, and which shall be subject to an intercreditor
agreement(s) reasonably acceptable to the Administrative
Agent.
13.2.10. In addition to the Indebtedness permitted by
Section 13.2.8, non-interest bearing Indebtedness up to
$5,000,000 in the aggregate outstanding at any time owing
to a Seller which is (A) incurred in connection with a
Permitted Acquisition, (B) incurred as a deferred purchase
price payment for the assets being purchased by Borrower
pursuant to such Permitted Acquisition, (C) due and
payable in full no later than one year following the
closing date of the Permitted Acquisition, (D) not
evidenced by a promissory note or other Instrument, and
(E) not secured by a Security Interest on any asset of
Borrower or any other Covered Person (although Borrower
may, in its discretion, provide a Letter of Credit to such
seller to secure the Indebtedness described in this
Section 13.2.10).
13.3. INDIRECT OBLIGATIONS. Create, incur, assume or allow to exist
any Indirect Obligations except Indirect Obligations existing on
the Execution Date and disclosed on section 10.19 of the Disclosure
Schedule and Indirect Obligations of a Covered Person with respect
to the Permitted Indebtedness of any other Covered Person.
13.4. SECURITY INTERESTS. Create, incur, assume or allow to exist
any Security Interest upon all or any part of its property, real or
personal, now owned or hereafter acquired, except the following:
13.4.1. Security Interests for taxes, assessments or
governmental charges not delinquent or being diligently
contested in good faith and by appropriate proceedings and
for which adequate book reserves in accordance with GAAP
are maintained.
13.4.2. Security Interests arising out of deposits in
connection with workers' compensation insurance,
unemployment insurance, old age pensions, or other social
security or retirement benefits legislation.
13.4.3. Deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds,
and other obligations of like nature arising in the
ordinary course of business.
13.4.4. Security Interests imposed by any Law, such as
mechanics', workmen's, materialmen's, landlords',
carriers', or other like Security Interests arising in the
ordinary course of business which secure payment of
obligations which are not past due or which are being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP are maintained on Borrower's books.
13.4.5. Purchase money Security Interests securing payment
of the purchase price of capital assets the amount of
which otherwise permitted under Section 13.2.5 acquired by
Borrower and Covered Persons after the Execution Date in
an aggregate principal amount outstanding at any one time
that does not exceed $3,000,000, which such Security
Interests only secure the assets purchased with the
proceeds of such Indebtedness.
13.4.6. Security Interests on assets subject to capital
leases to the extent permitted by Section 13.2.4.
36
13.4.7. Security Interests in favor of the issuer of the
Life Insurance Policies on the cash value of the Life
Insurance Policies to secure the Indebtedness permitted by
Section 13.2.7 to such issuer of the Life Insurance
Policies to the extent of such Indebtedness.
At no time shall Borrower or any Covered Person allow to exist on
or against its assets any financing statements, mortgages or
similar documents, except as permitted in Section 13.4.5.
13.5. ACQUISITIONS. Acquire stock, membership interests, or any
other equity interest in a Person, or acquire all or substantially
all of the assets of a Person (including without limitation assets
comprising all or substantially all of an unincorporated business
unit or division of any Person), except for Permitted Acquisitions.
Permitted Acquisition means an acquisition of the stock, membership
interests, or any other equity interest in a Person, or the
acquisition of some or all or substantially all of the assets of a
Person (including without limitation assets comprising all or
substantially all of an unincorporated business unit or division of
any Person), which satisfies each of the following conditions: (i)
the Borrower or a Guarantor is the Acquiring Company (and if the
Covered Person making the acquisition is not a party to the
Guaranty, it will execute a joinder to the Guaranty or execute a
new Guaranty, in each case in form and substance reasonably
acceptable to Administrative Agent), (ii) the Borrower or a
Guarantor is the Surviving Company, (iii) the Target Company is in
a substantially similar line of business as Borrower or a
Guarantor, (iv) except for Permitted Acquisitions (including,
without limitation, Small Permitted Acquisition) with an aggregate
gross purchase price of less than $5,000,000 in each Loan Year (to
which this clause (iv) shall not apply), Target Company has an
EBITDA (provided, however, that with respect to the purchase of
assets of less than an entire Target Company, EBITDA will be
calculated on a proforma basis prepared in good faith based on
reasonable assumptions) in excess of zero Dollars for the twelve
month period ended on the last day of the calendar month most
recently ended prior to the date such acquisition is consummated,
(v) there is no Existing Default, no Default or Event of Default
has occurred and is continuing, and no Default or Event of Default
will occur or is reasonably likely to occur as a result of or due
to such acquisition, (vi) the Maximum Available Amount exceeds the
Aggregate Revolving Loan by at least $10,000,000 after giving
effect to such acquisition, (vii) excluding the Royal Acquisition
and the National Linen Acquisition, the purchase price (including
without limitation any deferred purchase price, seller notes,
assumed Indebtedness, or similar items) together with all expenses
incurred in connection with such acquisition does not exceed
$25,000,000 in the aggregate for all Permitted Acquisitions
(including, without limitation, acquisitions with negative EBITDA
and Small Permitted Acquisitions) from and after the Effective
Date, (viii) simultaneously with the closing of such acquisition,
the Target Company or the Surviving Company, as the case may be,
executes and delivers to Administrative Agent, if requested by the
Administrative Agent, a joinder agreement satisfactory to
Administrative Agent in which such Target Company or Surviving
Company becomes a Guarantor under the Guaranty, (ix) prior to the
closing of such acquisition, a Responsible Officer of Borrower
delivers to Administrative Agent a certificate on behalf of
Borrower certifying that such acquisition is a Permitted
Acquisition; (x) such acquisition is friendly, rather than hostile,
in nature, and (xi) except for any Permitted Acquisition with a
gross purchase price of less than $2,000,000 including without
limitation any deferred purchase price, seller notes, assumed
Indebtedness, or similar items (a "Small Permitted Acquisition"),
Borrower has, no less than 15 days prior to making such
acquisition, prepared and furnished to Administrative Agent (and
Administrative Agent shall use its reasonable efforts to promptly
provide such information to each Lender) (A) the proforma financial
statements described below for the Target Company (if such
acquisition is structured as a purchase of equity) or the Surviving
Company (if such acquisition is structured as a purchase of assets
or a merger), demonstrating to the satisfaction of Administrative
Agent that the Target Company, all Surviving Companies, and
Borrower, as the case may be, will be Solvent upon consummation of
such acquisition and upon
37
the passage of time thereafter, and that none of the covenants in
Section 14 will be violated as a consequence of such acquisition or
with the passage of time thereafter, (B) a proforma Compliance
Certificate showing compliance with Section 14 of this Agreement,
after giving effect to such Permitted Acquisition, and (C) copies
of the audited financial statements (if available, or unaudited
financial statements if no audited financial statements exist) for
the Target Company for the three fiscal years most recently ended
(if available) and for each of the completed fiscal quarters in the
then current fiscal year. The proforma financial statements
referred to in clause (xi) shall contain consolidated balance
sheets, income statements, statements of cash flows and such other
reports and disclosures of Borrower as well as the Target Company
(if such Permitted Acquisition is structured as a purchase of
equity) or the Surviving Company (if such Permitted Acquisition is
structured as a purchase of assets or a merger) and shall cover
such forecast periods, as Administrative Agent may in its
reasonable discretion require. Borrower shall provide written
notice to Administrative Agent promptly after the closing of each
Small Permitted Acquisition.
13.6. DISPOSAL OF PROPERTY. Sell, transfer, exchange, lease, or
otherwise dispose of any of its assets except (i) sales of
inventory in the ordinary course of business or other sales in the
ordinary course of business as contemplated by Section 6.4.3.1,
(ii) the sale or disposition of obsolete or unused assets, and
(iii) sales or dispositions up to $2,000,000 in the aggregate
during the term of this Agreement unless the net proceeds therefrom
are applied as required by Section 6.4.3.1. Transactions permitted
by Section 13.13 are not subject to this Section.
13.7. STOCK DIVIDENDS; DISTRIBUTIONS/REDEMPTIONS.
13.7.1. While there is an Existing Default or a Default or
Event of Default would reasonably be likely to result from
the making of a Stock Dividend, or while there is a
reasonable likelihood of a change in control of the
Borrower which would not be permitted by this Agreement,
directly or indirectly declare or make, or incur any
liability to make, any Stock Dividend to any Person, other
than from one Covered Person to another.
13.7.2. While there is an Existing Default or a Default or
Event of Default would reasonably be likely to result from
the making of a Redemption/Distribution, directly or
indirectly declare or make, or incur any liability to
make, any Redemption/Distribution; provided, however, any
such Redemption/Distribution may be consummated up to
$1,000,000 in the aggregate during the term of this
Agreement, if there is no Existing Default and no Default
or Event of Default would reasonably be likely to result
from the consummation of any such Redemption/Distribution.
13.7.3. For purposes of this Section, a Stock Dividend
means any cash dividend or payment to shareholders. For
purposes of this Section, a Redemption/Distribution means
and includes, with respect to a Covered Person, (i) any
acquisition or redemption of any outstanding stock,
membership interests or other equity interest, (ii) any
retirement or prepayment of debt securities before their
regularly scheduled maturity dates, and (iii) any loan or
advance to a shareholder or partner (other than loans made
to assist in the exercise of Approved Options).
13.8. CHANGE OF CONTROL. (A) With respect to (i) Borrower, merge or
consolidate with or into another Person, except in connection with
a Permitted Acquisition, the Borrower may merge with a Target
Company so long as it is the Surviving Company, and (ii) with
respect to any other Covered Person (other than Borrower, which is
addressed in clause (i)), merge or consolidate with or into another
Person except another Covered Person, and except in connection with a
38
Permitted Acquisition, a Covered Person (other than Borrower, which
is addressed in clause (i)) may merge with a Target Company so long
as it is the Surviving Company and either is or becomes a
Guarantor; or (B) with respect to Borrower (i) permit any Person or
Group to become the record or beneficial owner, directly or
indirectly, on a fully diluted basis, of securities representing
25% or more of the voting power of Borrower's then outstanding
securities having the power to vote or 25% or more of Borrower's
then outstanding capital stock, or to acquire the power to elect a
majority of the Board of Directors of Borrower, or (ii) permit any
Person or Group other than Borrower to own, directly or indirectly,
any capital stock of Borrower's Subsidiaries (except, with regards
to foreign Subsidiaries, director/officer qualifying shares).
13.9. AMENDMENT TO CHARTER DOCUMENTS. Change its state of
incorporation or formation or otherwise amend, modify, supplement,
restate, replace, or change any of its Charter Documents, except to
the extent such change could not reasonably be expected to
adversely effect Administrative Agent or any Lender.
13.10. CAPITAL STRUCTURE; EQUITY SECURITIES. Make any change in the
capital structure of any Covered Person which has or is reasonably
likely to have a Material Adverse Effect on any Covered Person; or
issue or create any stock, membership interest, or other equity
interest (or class or series thereof), or non-equity interest that
is convertible into stock, membership interests or other equity
interest (or class or series thereof), in any Covered Person,
except stock, membership interests, or other equity interests (or
class or series thereof) that are subordinated in right of payment
to all the Loan Obligations in a manner satisfactory to
Administrative Agent and if Borrower complies with the other terms
and conditions of this Agreement (including, without limitation,
Section 6.4.3.3).
13.11. CHANGE OF BUSINESS. Engage in any business other than
substantially as conducted on the Effective Date.
13.12. CONFLICTING AGREEMENTS. Enter into any agreement, that
would, if fully complied with by it, result in a Default or Event
of Default either immediately or upon the elapsing of time.
13.13. SALE AND LEASEBACK TRANSACTIONS. Except for transactions up
to $8,000,000 in the aggregate during the term hereof, enter into
any agreement or arrangement with any Person providing for any
Covered Person to lease or rent property that Borrower has or will
sell or otherwise transfer to such Person.
13.14. FISCAL YEAR. Change its fiscal year.
13.15. TRANSACTIONS HAVING A MATERIAL ADVERSE EFFECT ON COVERED
PERSON. Enter into any transaction which has or is reasonably
likely to have a Material Adverse Effect on any Covered Person; or
enter into any transaction, or take or contemplate taking any other
action, or omit or contemplate omitting to take any action, which
any Responsible Officer knows, or reasonably should know is likely
to cause a Default or Event of Default hereunder.
13.16. TRANSACTIONS WITH AFFILIATES. Enter into or be a party to
any transaction or arrangement, including the purchase, sale or
exchange of property of any kind or the rendering of any service,
with any Affiliate (other than a Covered Person), or make any loans
or advances to any Affiliate (other than to a Covered Person and
otherwise permitted hereunder), except that each Covered Person may
engage in the such transactions in the ordinary course of business
and pursuant to the reasonable requirements of its business and on
fair and reasonable terms substantially as favorable to it as those
which it could obtain in a comparable arm's-length transaction with
a non-
39
Affiliate. No Covered Person may pay any management or other
similar fees to any Affiliate that is not a Covered Person
14. FINANCIAL COVENANTS.
14.1. SPECIAL DEFINITIONS. As used in this Section 14 and elsewhere
herein, the following capitalized terms have the following
meanings:
EBITDA means, with respect to any fiscal period of Borrower, the
consolidated Net Income of the Borrower and its Subsidiaries for
such fiscal period, as determined in accordance with GAAP and
reported on the Financial Statements for such period, plus (i)
----
without duplication, the sum of (A) Interest Expense in such
period, (B) income tax expense accrued for in such period, (C)
amortization of goodwill and other intangible assets and
depreciation expense taken or accrued for in such period, (D) any
extraordinary non-cash loss in such period whether incurred or
accrued for, and (E) any losses from discontinued operations, minus
-----
(ii) the sum of, without duplication, (A) any extraordinary
income/gain in such period whether incurred or accrued for, and (B)
any income from discontinued operations.
Fixed Charges means, for any period of calculation, the sum of (i)
Interest Expense, (ii) the sum of all scheduled principal payments
on long term Indebtedness of Borrower (including other
interest-bearing Indebtedness) but excluding Indebtedness permitted
by Sections 13.2.7 and 13.2.8 of this Agreement, (iii) federal,
state and local income taxes paid, (iv) Stock Dividends and
Redemptions/Distributions paid or accrued for, without duplication,
and (v) $2,000,000 per fiscal quarter, which represents a
pre-agreed to amount of maintenance capital expenditures.
Funded Indebtedness means the result of (i) outstanding principal
balance of the Loan Obligations and other Indebtedness for borrowed
money, plus (ii) the initial capitalized cost of assets subject to
Capital Leases at the time of calculation, less (iii) if there is
no Indebtedness outstanding as permitted by Section 13.2.7 of this
Agreement, cash in excess of $500,000, as shown on the balance
sheet for the most recent fiscal quarter ended. The foregoing shall
exclude the outstanding principal amount of the Indebtedness
permitted by Sections 13.2.7 and 13.2.8 of this Agreement.
Interest Expense means for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without
duplication, on Indebtedness of Borrower during such period,
including, without limitation, on Indebtedness permitted by Section
13.2.7 and 13.2.8 of this Agreement.
Upon completion of a Permitted Acquisition (except for Small
Permitted Acquisitions), the Target shall be included in each of
these covenants contained in this Section 14 on a pro-forma basis,
including for periods prior to the completion of any such Permitted
Acquisition.
All other capitalized terms used in this Section 14 shall have
their meanings and shall be determined under GAAP. All of the
financial covenants contained in this Section 14 shall be
calculated on a consolidated basis for the Borrower and all of its
Subsidiaries.
14.2. MINIMUM FIXED CHARGE COVERAGE. Borrower shall cause the ratio
of EBITDA for the most recently ended four fiscal quarters to Fixed
Charges for the most recently ended four fiscal quarters, for the
fiscal quarters ended on the dates specified below, calculated as
of the last day of each such fiscal quarter, to not be less than
the ratio specified for such period:
40
======================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR MINIMUM FIXED CHARGE COVERAGE RATIO
MOST RECENTLY BEFORE THE FOLLOWING DATES:
--------------------------------------------------------------------------------------
January 31, 2005 and each April 30, July 31, 1.20:1.00
October 31 and January 31 thereafter
--------------------------------------------------------------------------------------
14.3. MAXIMUM RATIO OF FUNDED INDEBTEDNESS TO EBITDA. Borrower
shall cause the ratio of Funded Indebtedness to EBITDA for the most
recently ended four fiscal quarters, for the fiscal quarters ended
on the dates specified below, calculated as of the last day of each
such fiscal quarter, to not be greater than the ratio specified for
such period:
==========================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR MAXIMUM RATIO OF FUNDED INDEBTEDNESS TO
MOST RECENTLY BEFORE THE FOLLOWING DATES: EBITDA
------------------------------------------------------------------------------------------
January 31, 2005, April 30, 2005, July 31, 2.75:1.00
2005, October 31, 2005, and January 31, 2006,
------------------------------------------------------------------------------------------
April 30, 2006, and each July 31, October 31, 2.50:1.00
January 31, and April 30 thereafter
==========================================================================================
14.4. MINIMUM NET WORTH. For each completed fiscal quarter of
Borrower after the date of the Agreement, Borrower's Net Worth as
of the last day of such fiscal quarter shall not be less than (i)
$126,023,000, and (ii) as of any other fiscal quarter end after
October 31, 2004, an amount of not less than the sum of (x) Fifty
Percent (50%) of Net Income during the fiscal quarter then-ended
plus (y) the minimum Net Worth required as of the prior fiscal
quarter after taking into account clause (x) above for such prior
fiscal quarter, which is cumulative from and including the fiscal
quarter ending on or most recently after October 31, 2004, plus (z)
90% of the net proceeds of any issuance of equity or equity
securities in the Borrower issued after the Effective Date. If Net
Income is a negative number for any fiscal quarter (e.g. a loss),
such amount shall not reduce Borrower's Net Worth for that fiscal
quarter, and shall be disregarded for all future Net Worth
calculations so that any such negative number shall not reduce the
minimum Net Worth required hereunder for any subsequent fiscal
quarter.
15. DEFAULT.
15.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an event of default (an Event of Default) under this
Agreement:
15.1.1. Failure to Pay Principal or Interest. Failure of
Borrower to pay any principal of the Loans or interest
accrued thereon when due, or failure of Borrower to pay
any of the other Loan Obligations on or within three (3)
days of becoming due.
15.1.2. Failure to Pay Amounts Owed to Other Persons.
Failure of any Covered Person (i) to make any payment due
on Indebtedness for borrowed money of such Covered Person
over $500,000 to Persons (other than Lenders under the
Loan Documents), or to make any payment due on any Capital
Lease where the original capitalized cost of the property
subject to any such Capital Lease was over $500,000, which
in either case continues unwaived beyond any applicable
grace period specified in the documents evidencing such
Indebtedness, or (ii) to pay any other Indebtedness (other
than Indebtedness described in clause (i)) over $500,000
in the aggregate if the holder of such Indebtedness
commences any legal action against such Covered Person;
provided, however, that the foregoing Events of Default
alone described in clauses (i) and (ii) shall
41
not constitute an Event of Default to the extent such
Indebtedness is being contested in good faith by such
Covered Person and such Covered Person makes adequate
reserves therefor under GAAP.
15.1.3. Representations or Warranties. Any of the
Representations and Warranties is discovered to have been
false in any material respect when made.
15.1.4. Certain Covenants. Failure of any Covered Person
to comply with the covenants in Sections 12.1, 12.4,
12.11, 12.15, 13, or 14.
15.1.5. Other Covenants. Failure of any Covered Person to
comply with of any of the terms or provisions of the
Agreement or any of the other Loan Documents applicable to
it (other than a failure which constitutes an immediate
Event of Default hereunder, or for which some other grace
period is specified in any other Section of this 15.1)
which is not remedied or waived in writing by
Administrative Agent within 20 days after the initial
occurrence of such failure.
15.1.6. Acceleration of Other Indebtedness. Any Obligation
(other than a Loan Obligation) of a Covered Person for the
repayment of $500,000 or more of borrowed money becomes or
is declared to be due and payable or required to be
prepaid (other than by an originally scheduled prepayment)
prior to the original maturity thereof.
15.1.7. Default Under Other Agreements. The occurrence of
any default or event of default under any agreement to
which a Covered Person is a party (other than the Loan
Documents), which default or event of default continues
unwaived beyond any applicable grace period provided
therein and has or is reasonably likely to have a Material
Adverse Effect.
15.1.8. Bankruptcy; Insolvency; Etc. A Covered Person (i)
fails to pay, or admits in writing its inability to pay,
its debts generally as they become due, or otherwise
becomes insolvent (however evidenced); (ii) makes an
assignment for the benefit of creditors; (iii) files a
petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions or applies to any tribunal for any
receiver or any trustee of such Covered Person or any
substantial part of its property; (iv) commences any
proceeding relating to such Covered Person under any
reorganization, arrangement, readjustment of debt,
dissolution or liquidation Law of any jurisdiction,
whether now or hereafter in effect; (v) has commenced
against it any such proceeding which remains undismissed
for a period of 60 days, or by any act indicates its
consent to, approval of, or acquiescence in any such
proceeding or the appointment of any receiver of or any
trustee for it or of any substantial part of its property,
or allows any such receivership or trusteeship to continue
undischarged for a period of 60 days; or (vi) takes any
action to authorize any of the foregoing.
15.1.9. Judgments; Attachment; Settlement; Etc. Any one or
more judgments or orders is entered against a Covered
Person or any attachment or other levy is made against the
property of a Covered Person with respect to a claim or
claims involving in the aggregate liabilities (not paid or
fully covered by insurance, less the amount of reasonable
deductibles in effect on the Execution Date) in excess of
$500,000 and such judgment or order becomes final and
non-appealable or if timely appealed is not fully bonded
and collection thereof stayed pending the appeal.
42
15.1.10. Pension Benefit Plan Termination, Etc. Any
Pension Benefit Plan termination by the PBGC or the
appointment by the appropriate United States District
Court of a trustee to administer any Pension Benefit Plan
or to liquidate any Pension Benefit Plan; or any event
which constitutes grounds either for the termination of
any Pension Benefit Plan by PBGC or for the appointment by
the appropriate United States District Court of a trustee
to administer or liquidate any Pension Benefit Plan shall
have occurred and be continuing for thirty (30) days after
Borrower has notice of any such event; or any voluntary
termination of any Pension Benefit Plan which is a DEFINED
BENEFIT PENSION PLAN as defined in Section 3(35) of ERISA
while such defined benefit pension plan has an ACCUMULATED
FUNDING DEFICIENCY, unless Administrative Agent has been
notified of such intent to voluntarily terminate such plan
and Required Lenders have given their consent and agreed
that such event shall not constitute a Default; or the
plan administrator of any Pension Benefit Plan applies
under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(1) of the Code
and Required Lenders determine that the substantial
business hardship upon which the application for such
waiver is based could subject any Covered Person or ERISA
Affiliate of any Covered Person to a liability in excess
of $500,000 which is not reserved for in accordance with
GAAP.
15.1.11. Liquidation or Dissolution. A Covered Person
files a certificate of dissolution under applicable state
Law or is liquidated or dissolved or suspends or
terminates the operation of its business, or has commenced
against it any action or proceeding for its liquidation or
dissolution or the winding up of its business, or takes
any corporate action in furtherance thereof, except in
connection with the consolidation of such a Covered Person
and its assets with another Covered Person and its assets.
15.1.12. Seizure of Assets. All or any material part of
the property of any Covered Person is nationalized,
expropriated, seized or otherwise appropriated, or custody
or control of such property or of any Covered Person shall
be assumed by any Governmental Authority or any court of
competent jurisdiction at the instance of any Governmental
Authority, unless the same is being contested in good
faith by proper proceedings diligently pursued and a stay
of enforcement is in effect.
15.1.13. Racketeering Proceeding. There is filed against
any Covered Person any civil or criminal action, suit or
proceeding under any federal or state racketeering statute
(including, without limitation, the Racketeer Influenced
and Corrupt Organization Act of 1970), which action, suit
or proceeding is not dismissed within 60 days and could
result in the confiscation or forfeiture of any material
portion of its assets.
15.1.14. Loss to Assets. Any loss, theft, damage or
destruction of any item or items of its assets occurs
which either (i) has or is reasonably likely to have a
Material Adverse Effect on any other Covered Person or
(ii) materially and adversely affects the operation of
Borrower's business and is not covered by insurance as
required herein.
15.1.15. Guaranty; Guarantor. Any Guaranty ceases to be in
full force and effect or any action is taken to
discontinue or assert the invalidity or unenforceability
of any Guaranty or any Guarantor fails to comply with any
of the terms or provisions of any Guaranty, or any
representation or warranty of any Guarantor therein is
false, or any Guarantor denies that it has any further
liability under any Guaranty or gives notice to Lender to
such effect.
43
15.2. CROSS DEFAULT. An Event of Default under this Agreement will
automatically and immediately constitute a default under all other
Loan Documents without regard to any requirement therein for the
giving of notice or the passing of time.
15.3. RIGHTS AND REMEDIES.
15.3.1. Termination of Commitments. Upon an Event of
Default described in Section 15.1.8, the Commitments shall
be deemed canceled. Upon any other Event of Default, and
at any time thereafter, Required Lenders may cancel the
Commitments. Such cancellation may be, in either case,
without presentment, demand or notice of any kind, which
Borrower expressly waives.
15.3.2. Acceleration. Upon an Event of Default described
in Section 15.1.8, all of the outstanding Loan Obligations
shall automatically become immediately due and payable.
Upon any other Event of Default, and at any time
thereafter, Required Lenders may declare all of the
outstanding Loan Obligations immediately due and payable.
Such acceleration may be, in either case, without
presentment, demand or notice of any kind, which Borrower
expressly waives.
15.3.3. Right of Setoff. Upon the occurrence and during
the continuation of an Event of Default, each Lender is
hereby authorized, without notice to Borrower (any such
notice being expressly waived by Borrower), to the fullest
extent permitted by law, to set off and apply against the
Loan Obligations any and all deposits (general or special,
time or demand, provisional or final) at any time held, or
any other Indebtedness at any time owing by such Lender
(or its Affiliate) to or for the credit or the account of
Borrower, irrespective of whether or not such Lender shall
have made any demand under this Agreement or the Notes or
any Guaranty and although such Loan Obligations may be
unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such
Lender may otherwise have. All amounts received by each
Lender on account of the Loan Obligations pursuant to this
Section shall be paid over promptly to Administrative
Agent for distribution to Lenders as provided in this
Agreement and shall be applied as provided in this
Agreement.
15.3.4. Rights Generally. Upon the occurrence and during
the continuation of an Event of Default and acceleration
of the Loan Obligations as provided herein, and at any
time and from time to time thereafter, Administrative
Agent and Lenders may exercise any or all of its rights
they may have under the Loan Documents or otherwise
available in equity or under any other applicable Law.
15.3.5. Joint and Several. Each Obligation and liability
to the Letter of Credit Issuer, Administrative Agent and
each Lender of Borrower and Guarantors, including, without
limitation, the Loan Obligations, are the joint and
several obligations of Borrower and Guarantors, and
Administrative Agent may proceed directly against
Borrower, any Guarantor, all of the foregoing, or any one
of the foregoing or any combination of the foregoing,
without first proceeding against Borrower, or without
joining all Persons liable or potentially liable for any
portion of the Loan Obligations in one action.
15.4. APPLICATION OF FUNDS. Any funds received by Lenders or
Administrative Agent for the benefit of Lenders with respect to any
Loan Obligation after its Maturity, shall be applied as follows:
(i) first, to reimburse Lenders pro-rata for any amounts due to
Lenders under Section
44
18.8; (ii) second, to reimburse to Administrative Agent all
unreimbursed costs and expenses paid or incurred by Administrative
Agent that are payable or reimbursable by Borrower hereunder; (iii)
third, to reimburse to Lenders pro-rata all unreimbursed costs and
expenses paid or incurred by Lenders (including costs and expenses
incurred by Administrative Agent as a Lender that are not
reimbursable as provided in the preceding clause) that are payable
or reimbursable by Borrower hereunder; (iv) fourth, to the payment
of accrued and unpaid fees due hereunder and all other amounts due
hereunder (other than the Loans and interest accrued thereon); (v)
fifth, to the payment of the Loans of each of the Lenders and
interest accrued thereon (which payments shall be pro rata to each
of the Lenders in accordance with the amount of the Loans
outstanding) and to the payment (pari passu with the foregoing) of
any Rate Hedging Obligations and cash collateral to the Letter of
Credit Issuer as collateral for the Letter of Credit Exposure; and
(vi) sixth, to the payment of the other Loan Obligations. Any
remaining amounts shall be applied to payment of all the
Obligations to Administrative Agent. Any further remaining amounts
shall be paid to Borrower or such other Persons as shall be legally
entitled thereto. Except as expressly provided otherwise herein,
Lenders may apply and reverse and reapply, payments to the Loan
Obligations in such order and manner as Lenders determine in their
absolute discretion.
16. ADMINISTRATIVE AGENT AND LENDERS.
16.1. APPOINTMENT, POWERS, AND IMMUNITIES. LaSalle is hereby
appointed Administrative Agent hereunder and under each of the
other Loan Documents. Each Lender hereby irrevocably appoints and
authorizes Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to Administrative Agent by
the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto.
Administrative Agent (which term as used in this sentence and in
Section 16.5 and the first sentence of Section 16.6 hereof shall
include its affiliates and its own and its affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement
and shall not be a trustee or fiduciary for any Lender; (b) shall
not be responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any
Loan Document, or any other document referred to or provided for
therein or for any failure by any Covered Person or any other
Person to perform any of its obligations thereunder or the
validity; (c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of
any covenants or agreements by any Covered Person or the
satisfaction of any condition or to inspect the property (including
the books and records) of any Covered Person or any of its
Subsidiaries or affiliates; (d) shall not be required to initiate
or conduct any litigation or collection proceedings under any Loan
Document; and (e) shall not be responsible for any action taken or
omitted to be taken by it under or in connection with any Loan
Document, except for its own gross negligence or willful
misconduct. Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care.
16.2. RELIANCE BY ADMINISTRATIVE AGENT. Administrative Agent shall
be entitled to rely upon any certification, notice, instrument,
writing, or other communication (including, without limitation, any
thereof by telephone or telecopy) believed by it to be genuine and
correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel for any Covered Person),
independent accountants, and other experts selected by
Administrative Agent. Administrative Agent may
45
deem and treat the payee of any Note as the holder thereof for all
purposes hereof unless and until Administrative Agent receives and
accepts an Assignment and Acceptance executed in accordance with
Section 18.4 hereof. As to any matters not expressly provided for
by this Agreement, Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding on all of
the Lenders; provided, however, that Administrative Agent shall not
be required to take any action that exposes Administrative Agent to
personal liability or that is contrary to any Loan Document or
applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such
action.
16.3. EMPLOYMENT OF AGENTS AND COUNSEL. Administrative Agent may
execute any of its duties hereunder by or through employees,
agents, and attorneys-in-fact and shall not be liable to any
Lender, except with respect to money or securities received by it
or such agents or attorneys-in-fact, for the default or misconduct
of any such agents or attorneys-in-fact selected by it with
reasonable care. Administrative Agent shall be entitled to advice
of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and shall not be liable to any
Lender for acting or failing to act based as advised by such
counsel, except where doing so violates an express obligation of
Administrative Agent under the Loan Documents.
16.4. DEFAULTS. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of
Default unless Administrative Agent has received written notice
from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a Notice of Default. In the
event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent
shall give notice thereof to the Lenders. Administrative Agent
shall (subject to Section 16.2 hereof) take such action with
respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders, provided that, unless and until
Administrative Agent shall have received such directions,
Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interest of the Lenders.
16.5. RIGHTS AS LENDER. With respect to its Commitment and the
Loans made by it, LaSalle (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not acting as
Administrative Agent, and the term Lender or Lenders shall, unless
the context otherwise indicates, include Administrative Agent in
its individual capacity. LaSalle (and any successor acting as
Administrative Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money
to, make investments in, provide services to, and generally engage
in any kind of lending, trust, or other business with any Covered
Person or any of its Subsidiaries or Affiliates as if it were not
acting as Administrative Agent, and LaSalle (and any successor
acting as Administrative Agent) and its Affiliates may accept fees
and other consideration from any Covered Person or any of its
Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to
Lenders. The Lenders acknowledge that, pursuant to such activities,
Administrative Agent or its Affiliates may receive information
regarding Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of Borrower
or such Affiliates) and acknowledge that Administrative Agent shall
be under no obligation to provide such information to the Lenders.
46
16.6. INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, Lenders agree to reimburse and indemnify
Administrative Agent upon demand (to the extent not reimbursed
under Section 18.7, but without limiting the obligations of
Borrower under Section 18.7) ratably in accordance with their
respective Commitments, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against Administrative Agent (including by any
Lender) in any way relating to or arising out of any Loan Document
or the transactions contemplated thereby or any action taken or
omitted by Administrative Agent under any Loan Document; provided
that no Lender shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct
of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse Administrative Agent
promptly upon demand for its ratable share of any costs or expenses
payable by Borrower under Section 18.7, to the extent that
Administrative Agent is not promptly reimbursed for such costs and
expenses by Borrower. The agreements contained in this Section
shall survive payment in full of the Loans and all other amounts
payable under this Agreement.
16.7. NOTIFICATION OF LENDERS. Each Lender agrees to use its good
faith efforts, upon becoming aware of anything which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person, to promptly notify Administrative Agent thereof.
Administrative Agent shall promptly deliver to each Lender copies
of every written notice, demand, report (including any financial
report), or other writing which Administrative Agent gives to or
receives from Borrower and which itself (a) constitutes, or which
contains information about, something that has or is reasonably
likely to have a Material Adverse Effect on any Covered Person, or
(b) is otherwise delivered to Administrative Agent by Borrower
pursuant to the Loan Documents and is deemed material information
by Administrative Agent in its sole discretion. Administrative
Agent and its directors, officers, agents, and employees shall have
no liability to any Lender for failure to deliver any such item to
such Lender unless the failure constitutes gross negligence or
willful misconduct.
16.8. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
acknowledges that Administrative Agent has not made any
representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any review of the
affairs of Borrower and its Affiliates, shall be deemed to
constitute any representation or warranty by Administrative Agent
to any Lender. Each Lender agrees that it has, independently and
without reliance on Administrative Agent or any other Lender, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Covered Persons
and their Subsidiaries and decision to enter into this Agreement
and that it will, independently and without reliance upon
Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not
taking action under the Loan Documents. Except for notices,
reports, and other documents and information expressly required to
be furnished to Lenders by Administrative Agent hereunder,
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning
the affairs, financial condition, or business of any Covered Person
or any of its Subsidiaries or Affiliates that may come into the
possession of Administrative Agent or any of its Affiliates.
16.9. RESIGNATION. Administrative Agent may resign at any time by
giving notice thereof to the Lenders and Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent which appointment shall be subject
to the consent (which consent will not be unreasonably withheld or
delayed) of Borrower so long as there is no
47
Existing Default. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of
America having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor shall
thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. If no successor has
accepted appointment as Administrative Agent within thirty (30)
days after the date on which Administrative Agent first attempts to
appoint a successor Administrative Agent, the resigning
Administrative Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor which accepts such
appointment. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section
16.9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
16.10. COLLECTIONS AND DISTRIBUTIONS TO LENDERS BY ADMINISTRATIVE
AGENT. Except as otherwise provided in this Agreement, all payments
of interest, fees, principal and other amounts received by
Administrative Agent for the account of Lenders shall be
distributed by Administrative Agent to Lenders in accordance with
their pro-rata shares of the outstanding Loan Obligations at the
time of such distribution (or entirely to Administrative Agent in
the case of payments of interest, fees or principal with respect to
the Swingline Loan) on the same Business Day when received, unless
received after 12:00 noon (Local Time) in which case they shall be
so distributed by 12:00 noon (Local Time) on the next Business Day.
All amounts received by any Lender on account of the Loan
Obligations, including amounts received by way of setoff, shall be
paid over promptly to Administrative Agent for distribution to
Lenders as provided above in this Section. Such distributions shall
be made according to instructions that each Lender may give to
Administrative Agent from time to time. Unless there is an Existing
Default (in which case the Lenders may apply payments as they
determine in their discretion), and except for mandatory
prepayments described in Section 6.4.3 and unless otherwise
directed by Borrower, payments received shall be applied (after
application to the Swingline Loan to reduce it to zero), first to
reduce any Base Rate Loans included in the Aggregate Revolving Loan
owing to each Lender, and then to any Eurodollar Loans included in
the Aggregate Revolving Loan owing to each Lender, and then to any
Base Rate Loans included in the Aggregate Term Loan owing to each
Lender, and then to any Eurodollar Loans included in the Aggregate
Term Loan owing to each Lender.
17. CHANGE IN CIRCUMSTANCES.
17.1. COMPENSATION FOR INCREASED COSTS AND REDUCED RETURNS.
17.1.1. Law Changes or Tax Impositions. If, after the
Effective Date, the adoption of any applicable Law or any
change in any applicable Law or any change in the
interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any
such Governmental Authority, central bank, or comparable
agency:
48
(i) subjects such Lender (or its Applicable
Lending Office) to any Tax with respect to any
Eurodollar Loans or its obligation to make
Eurodollar Loans, or change the basis of taxation
of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement
in respect of any Eurodollar Loans (other than
Taxes imposed on the overall net income of such
Lender by the jurisdiction in which such Lender
has its principal office or such Applicable
Lending Office);
(ii) imposes, modifies, or deems applicable any
reserve, special deposit, assessment or similar
requirement (other than the reserve requirement
utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or
other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the
Commitment of such Lender hereunder; or
(iii) imposes on such Lender (or its Applicable
Lending Office) or on the United States market
for certificates of deposit or the London
Interbank market any other condition affecting
this Agreement, its Commitments or its Note or
any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the
cost to such Lender (or its Applicable Lending Office) of
making, converting into, continuing, or maintaining any
Loans or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under this
Agreement or any of its Notes with respect to any Loans,
then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests
compensation by Borrower under this Section 17.1.1,
Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such
Lender to make or continue Loans of the type with respect
to which such compensation is requested, or to convert
Loans of any other type into Loans of such type, until the
event or condition giving rise to such request ceases to
be in effect (in which case the provisions of Section 17.5
shall be applicable); provided, however, that such
suspension shall not affect the right of such Lender to
receive the compensation so requested.
17.1.2. Capital Adequacy. If, after the Effective Date,
any Lender shall have determined that the adoption of any
applicable Law regarding capital adequacy or any change
therein or in the interpretation or administration thereof
by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration
thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any
such governmental authority, central bank, or comparable
agency, has or would have the effect of reducing the rate
of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for
such adoption, change, request, or directive (taking into
consideration its policies with respect to capital
adequacy), then from time to time upon demand Borrower
shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
17.1.3. Notice to Borrower. Each Lender shall promptly
notify Borrower and Administrative Agent of any event of
which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to
this Section 17.1 and
49
will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment
of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section 17.1 shall
furnish to Borrower and Administrative Agent a statement
setting forth the additional amount or amounts to be paid
to it hereunder which shall be conclusive in the absence
of manifest error. In determining such amount, such Lender
may use any reasonable averaging and attribution methods.
17.2. MARKET FAILURE. If on or prior to the first day of any
Interest Period for any Eurodollar Loan:
(i) Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate
for such Interest Period; or
(ii) the Required Lenders determine (which determination
shall be conclusive) and notify Administrative Agent that
the Eurodollar Rate will not adequately and fairly reflect
the cost to the Lenders of funding Eurodollar Loans for
such Interest Period;
then Administrative Agent shall give Borrower prompt notice
thereof, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional Eurodollar
Loans, continue Eurodollar Loans, or to convert Eurodollar Loans
and Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans either prepay such
Loans or convert such Loans into Base Rate Loans in accordance with
the terms of this Agreement.
17.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or
its Applicable Lending Office to make, maintain, or fund Eurodollar
Loans hereunder, then such Lender shall promptly notify Borrower
thereof and such Lender's obligation to make, continue Eurodollar
Loans or convert Base Rate Loans into Eurodollar Loans shall be
suspended until such time as such Lender may again make, maintain,
and fund Eurodollar Loans (in which case the provisions of Section
17.5 shall be applicable).
17.4. COMPENSATION. Upon the request of any Lender, Borrower shall
pay to such Lender such amount or amounts as shall be sufficient
(in the reasonable opinion of such Lender) to compensate it for any
loss, cost, or expense (including loss of anticipated profits)
incurred by it as a result of:
(i) any payment, prepayment, or conversion of a Eurodollar
Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to the terms hereof) on
a date other than the last day of the Interest Period for
such Eurodollar Loan; or
(ii) any failure by Borrower for any reason to borrow,
convert, continue, or prepay a Eurodollar Loan on the date
for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this
Agreement.
If a Lender claims compensation under this Section 17.4, such
Lender shall furnish a certificate to Borrower that states the
amount to be paid to it hereunder and includes a description of the
method used by such Lender in calculating such amount. Borrower
shall have the burden of proving that the amount of any such
compensation calculated by a Lender is not correct. Any
50
compensation payable by Borrower to a Lender under this Section
17.4 shall be payable without regard to whether such Lender has
funded its pro-rata share of any Eurodollar Advance or Eurodollar
Loan through the purchase of deposits in an amount or of a maturity
corresponding to the deposits used as a reference in determining
the Eurodollar Rate.
17.5. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender
to make a Eurodollar Loans or to continue any Eurodollar Loans, or
to convert any Base Rate Loan into a Eurodollar Loan shall be
suspended pursuant to Section 17.1, 17.2, or 17.3 (such Loans being
herein called Affected Loans), such Lender's Affected Loans shall
be automatically and immediately converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected
Loans (or, in the case of a conversion required by Section 17.3, on
such earlier date as such Lender may specify to Borrower with a
copy to Administrative Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified in
Section 17.1, 17.2, or 17.3 that gave rise to such conversion no
longer exist:
(i) to the extent that such Lender's Affected Loans have
been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Affected Loans shall continue to be made and applied as
provided for herein; and
(ii) all Loans that would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or
continued instead as Base Rate Loans, and all Loans of
such Lender that would otherwise be converted into
Eurodollar Loans shall be converted instead into (or shall
remain as) Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to
Administrative Agent) that the circumstances specified in Section
17.1, 17.2, or 17.3 hereof that gave rise to the conversion of such
Lender's Affected Loans pursuant to this Section 17.5 no longer
exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the type of
the Affected Loans made by other Lenders are outstanding, such
Lender's Base Rate Loans shall be automatically converted, on the
first day(s) of the next succeeding Interest Period(s) for such
outstanding Loans of the type of the Affected Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Loans of the type of the Affected Loans and by
such Lender are held pro rata (as to principal amounts, type of
interest, and Interest Periods) in accordance with their respective
Commitments.
17.6. TAXES.
17.6.1. Gross-Up. Any and all payments by Borrower to or
for the account of any Lender or the Administrative Agent
hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all
Taxes, whether imposed now or in the future, excluding, in
the case of each Lender and the Administrative Agent,
Taxes imposed on its income, and franchise Taxes imposed
on it, by the jurisdiction under the Laws of which such
Lender (or its Applicable Lending Office) or the
Administrative Agent (as the case may be) is organized or
any political subdivision thereof. If Borrower is required
by Law to deduct any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to
any Lender or the Administrative Agent, (i) the sum
payable will be increased as necessary so that after
making all required deductions (including deductions
applicable to additional sums payable under this Section
17.6) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount
deducted
51
to the relevant taxation authority or other authority in
accordance with applicable Law, and (iv) Borrower shall
furnish to Administrative Agent, at its address referred
to herein, the original or a certified copy of a receipt
evidencing payment thereof (and Administrative Agent shall
use its reasonable efforts to deliver promptly copy of
such receipt to each Lender). In addition, Borrower agrees
to pay any and all present or future stamp or documentary
taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under
this Agreement or any other Loan Document or from the
execution or delivery of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter
referred to as Impositions). Borrower agrees to indemnify
each Lender and the Administrative Agent for the full
amount of Taxes and Impositions (including, without
limitation, any Taxes or Impositions imposed or asserted
by any jurisdiction on amounts payable under this Section
17.6) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. Within 30 days after the date of any payment of
Taxes, Borrower shall furnish to Administrative Agent the
original or a certified copy of the receipt evidencing
such payment (and Administrative Agent shall use its
reasonable efforts to deliver promptly copy of such
receipt to each Lender).
17.6.2. Lenders' Undertakings.
(i) Each Lender organized under the Laws of a
jurisdiction outside the United States, on or
prior to the date of its execution and delivery
of this Agreement in the case of each Lender
listed on the signature pages hereof and on or
prior to the date on which it becomes a Lender in
the case of each other Lender, and from time to
time thereafter if requested in writing by
Borrower or Administrative Agent (but only so
long as such Lender remains lawfully able to do
so), shall provide Borrower and Administrative
Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to
benefits under an income tax treaty to which the
United States is a party which reduces the rate
of withholding Tax on payments of interest or
certifying that the income receivable pursuant to
this Agreement is effectively connected with the
conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or
W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and
(iii) any other form or certificate required by
any Governmental Authority (including any
certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying
that such Lender is entitled to an exemption from
or a reduced rate of Tax on payments pursuant to
this Agreement or any of the other Loan
Documents. For any period with respect to which a
Lender has failed to provide Borrower and
Administrative Agent with the appropriate form
pursuant to this Section 17.6.2 (unless such
failure is due to a change in treaty or Law
occurring subsequent to the date on which a form
originally was required to be provided), such
Lender shall not be entitled to indemnification
under Section 17.6.1 with respect to Taxes
imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its
failure to deliver a form required hereunder,
Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to
recover such Taxes.
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(ii) If Borrower is required to pay additional
amounts to or for the account of any Lender or
Administrative Agent pursuant to Section 17.1,
then such Lender or the Administrative Agent will
agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so
as to eliminate or reduce any such additional
payment which may thereafter accrue if such
change, in the judgment of such Lender or the
Administrative Agent, as the case may be, is not
otherwise disadvantageous to such Lender or the
Administrative Agent, as the case may be.
17.6.3. Survival of Borrower's Obligations. Without
prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of
Borrower contained in this Section 17.6 shall survive the
termination of the Commitments, the expiration of the
Letters of Credit, the indefeasible full payment and
satisfaction of all of the Loan Obligations.
17.7. USURY. Notwithstanding any provisions to the contrary in
Section 4 or elsewhere in any of the Loan Documents, Borrower shall
not be obligated to pay interest at a rate which exceeds the
maximum rate permitted by Law. If, but for this Section 17.7,
Borrower would be deemed obligated to pay interest at a rate which
exceeds the maximum rate permitted by Law, or if any of the Loan
Obligations is paid or becomes payable before its originally
scheduled Maturity and as a result Borrower has paid or would be
obligated to pay interest at such an excessive rate, then (i)
Borrower shall not be obligated to pay interest to the extent it
exceeds the interest that would be payable at the maximum rate
permitted by Law; (ii) if the outstanding Loan Obligations have not
been accelerated as provided in Section 15.3.2, any such excess
interest that has been paid by Borrower shall be refunded; (iii) if
the outstanding Loan Obligations have been accelerated as provided
in Section 15.3.2, any such excess that has been paid by Borrower
shall be applied to the Loan Obligations as provided in Section
15.4; and (iv) the effective rate of interest shall be deemed
automatically reduced to the maximum rate permitted by Law.
18. GENERAL.
18.1. LENDERS' RIGHT TO CURE. Required Lenders may from time to
time, in their absolute discretion, for Borrower's account and at
Borrower's expense, pay (or, with the consent of Required Lenders,
make a Revolving Loan Advance or Term Loan Advance to pay) any
amount or do any act required of Borrower hereunder or requested by
Administrative Agent or Required Lenders to preserve, protect,
maintain or enforce the Loan Obligations, which Borrower is
required to pay or do, but fails to pay or do, including payment of
any judgment against Borrower, insurance premium, taxes or
assessments, warehouse charge, finishing or processing charge,
landlord's claim, and any other Security Interest upon or with
respect to its assets. All payments that Lenders make pursuant to
this Section and all out-of-pocket costs and expenses that Lenders
pay or incur in connection with any action taken by them hereunder
shall be a part of the Loan Obligations. Any payment made or other
action taken by Lenders pursuant to this Section shall be without
prejudice to any right to assert an Event of Default hereunder and
to pursue Lender's other rights and remedies with respect thereto.
Administrative Agent agrees that so long as there is no Existing
Default, Administrative Agent will use its reasonable efforts to
give notice to Borrower prior to taking any of the actions
described in this Section 18.1; provided, however, that
Administrative Agent shall have no liability for failure to give
any such notice, unless such failure is intentional.
53
18.2. RIGHTS NOT EXCLUSIVE. Every right granted to Administrative
Agent and Lenders hereunder or under any other Loan Document or
allowed to it at law or in equity shall be deemed cumulative and
may be exercised from time to time.
18.3. SURVIVAL OF AGREEMENTS. All covenants and agreements made
herein and in the other Loan Documents shall survive the execution
and delivery of this Agreement, the Notes and other Loan Documents
and the making of every Advance. All agreements, obligations and
liabilities of Borrower under this Agreement concerning the payment
of money to Administrative Agent and Lenders, including Borrower's
obligations under Sections 18.7 and 18.8, but excluding the
obligation to repay the Loans and interest accrued thereon, shall
survive the repayment in full of the Loans and interest accrued
thereon, whether or not indefeasible, the return of the Notes to
Borrower, the termination of the Commitments and the expiration of
all Letters of Credit.
18.4. ASSIGNMENTS.
18.4.1. Permitted Assignments. At any time after the
Execution Date, any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a
portion of the Notes payable to it, its Commitments and
its Loans), provided that the terms of assignment satisfy
the following requirements:
18.4.1.1. Administrative Agent shall have accepted the
assignment, which acceptance shall not be unreasonably
withheld.
18.4.1.2. Each such assignment shall be of a constant,
and not a varying, percentage of all of the assigning
Lender's rights and obligations under this Agreement.
18.4.1.3. The assigning Lender shall execute an
Assignment and Acceptance in the form attached hereto
as Exhibit 18.4.1 together with any Note subject to
an assignment and a processing fee of $3,500.
18.4.1.4. The minimum Commitment which shall be
assigned (which shall include the applicable
portion of the assigning Lender's Revolving Loan
Commitment, Term Loan Commitment, and Letter of
Credit Commitment (and in the case of
Administrative Agent, the Swingline Commitment))
is $5,000,000 or such lesser amount which
constitutes such Lender's entire Commitment;
provided, however, that no such minimum shall
apply between a Lender and its Affiliates, or
between one Lender and another Lender or an
assignment of all of a Lender's rights and
obligations under this Agreement.
18.4.1.5. The assignee shall have an office
located in the United States and is otherwise an
Eligible Assignee.
18.4.1.6. If there is no Existing Default as of
the date of such assignment, Borrower shall have
consented to the assignment, which consent shall
not be unreasonably withheld or delayed.
18.4.2. Consequences and Effect of Assignments. From and
after the effective date specified in any Assignment and
Acceptance, the assignee shall be deemed and treated as a
party to this Agreement and, to the extent that rights and
obligations hereunder and
54
under the Notes held by the assignor have been assigned or
negotiated to the assignee pursuant to such Assignment and
Acceptance, to have the rights and obligations of a Lender
hereunder as fully as if such assignee had been named as a
Lender in this Agreement and of a holder of such Notes,
and the assignor shall, to the extent that rights and
obligations hereunder or under such Notes have been
assigned or negotiated by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from
its future obligations under this Agreement. If the
assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to
Borrower and Administrative Agent certification as to the
exemption from deduction or withholding of Taxes in
accordance with Section 17.6.
18.4.3. Agreements Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assignor
thereunder and the assignee confirm to and agree with each
other and the other parties hereto substantially as
follows: (i) the assignment made under such Assignment and
Acceptance is made under such Assignment and Acceptance
without recourse; (ii) such assignor makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of any Covered
Person or the performance or observance by any Covered
Person of any of its Loan Obligations; (iii) such assignee
confirms that it has received a copy of this Agreement,
together with copies of the Financial Statements and such
other Loan Documents and other documents and information
as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and
without reliance upon Administrative Agent, such assignor,
or any other Lender, and based on such documents and
information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints
and authorizes Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to
Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a
Lender and a holder of a Note.
18.4.4. Register. Administrative Agent shall maintain at
its address referred to herein a copy of each Assignment
and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of
the Lenders and the Commitment of and principal amount of
Loans owing to, each Lender from time to time (the
Register). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and
Borrower, Administrative Agent and Lenders may treat each
Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice. Upon its receipt of an Assignment
and Acceptance executed by the parties thereto, together
with any Note subject to such assignment and payment of
the processing fee, Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 18.4.1 hereto, (i)
accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
18.4.5. Notice to Borrower of Assignment. Upon its receipt
of an Assignment and Acceptance executed by an assigning
Lender, if Administrative Agent accepts the assignment
contemplated thereby, Administrative Agent shall give
prompt notice thereof
55
to Borrower. Borrower shall execute and deliver
replacement Notes to the assignor and assignee as
requested by Administrative Agent and necessary to give
effect to the assignment. If Borrower fails or refuses to
execute and deliver such replacement Notes, Administrative
Agent may, as agent and attorney-in-fact for Borrower,
execute and deliver such replacement Notes on behalf of
Borrower. Borrower hereby appoints Administrative Agent as
its agent and attorney-in-fact for such purpose and
acknowledges that such power is coupled with an interest
and therefore irrevocable. Administrative Agent shall not
have any liability to Borrower or anyone else, including
any Lender, as a consequence of exercising such power in
any instance.
18.4.6. Assignment to Federal Reserve Bank.
Notwithstanding any other provision set forth in this
Agreement, without consent of Borrower or Administrative
Agent, any Lender may at any time assign and pledge all or
any portion of its Loans and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
18.5. SALE OF PARTICIPATIONS. Each Lender may sell participations
to one or more Persons (other than Borrower or an Affiliate of
Borrower) in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and
its Loans); provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions
contained in Section 17 and the right of setoff contained in
Section 15.3.3, (iv) the amount of the participation shall be in a
minimum amount of $5,000,000 or such lesser amount which
constitutes such Lender's entire Commitment, provided, however,
that no such minimum amount shall apply to participations between
any of Lenders or between any Lender and any of its Affiliates; and
(v) Borrower, the other Lenders and Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations
of Borrower relating to its Loans, its Notes and its funding of
Advances and to approve any amendment, modification, or waiver of
any provision of this Agreement, provided, however, that the
approval of a participant of a Lender may be required only for
amendments, modifications, or waivers that (a) forgive the amount
of principal of the Loans, (b) reduce the Eurodollar Revolving
Margin, the Eurodollar Term Margin, the Base Rate Revolving Margin,
the Base Rate Term Margin, or reduce the Revolving Loan Unused Fee,
or (c) extend the Revolving Loan Maturity Date or extend the Term
Loan Maturity Date. The Lender selling a participation shall,
within two (2) Business Days of its effectiveness, provide written
notice of such event to the Administrative Agent. Notwithstanding
the foregoing provisions of this Section, the sale of any such
participations which require Borrower to file a registration
statement with the SEC or under the securities Laws of any state
shall not be permitted.
18.6. INFORMATION; CONFIDENTIALITY. Administrative Agent and each
Lender agrees that it will not disclose to third Persons any
information that it obtains about Borrower or its operations or
finances that are designated by Borrower in writing as confidential
or that Borrower has advised Administrative Agent and Lenders in
writing constitutes non-public information. Administrative Agent
and Lenders may, however, disclose such information to each other,
to assignees and participants (including prospective assignees and
participants) and to all of their respective officers, attorneys,
auditors, accountants, bank examiners, agents and representatives
who have a need to know such information in connection with the
administration, interpretation or enforcement of the Loan Documents
or the lending and collection activity contemplated therein
56
or to the extent required by Law or a Governmental Authority.
Administrative Agent and Lenders shall advise such Persons that
such information is to be treated as confidential. Administrative
Agent and any Lender may also disclose such information in any
documents that it files in any legal proceeding to pursue, enforce
or preserve its rights under the Loan Documents to the extent that
its counsel advises in writing that such disclosure is reasonably
necessary. Administrative Agent's and Lenders' non-disclosure
obligation shall not apply to any information that (i) is disclosed
to Administrative Agent or any Lender by a third Person not
affiliated with or employed by Borrower who does not have a
commensurate duty of non-disclosure, or (ii) becomes publicly known
other than as a result of disclosure by Administrative Agent or a
Lender.
18.7. PAYMENT OF EXPENSES. Borrower agrees to pay or reimburse to
Administrative Agent all of Administrative Agent's out-of-pocket
costs incurred in connection with Administrative Agent's due
diligence review before execution of the Loan Documents; the
negotiation and preparation of proposals, a commitment letter and
the Loan Documents; the syndication of the Loans; the
administration of this Agreement, the Loan Documents and the Loans;
the interpretation of any of the Loan Documents; any amendment of
or supplementation to any of the Loan Documents; and any waiver,
consent, enforcement, or forbearance with respect to any Default or
Event of Default. Borrower agrees to pay or reimburse to
Administrative Agent and each Lender all of Administrative Agent's
and such Lender's out-of-pocket costs incurred in connection with
the enforcement of such Lender's rights and remedies under the Loan
Documents after the occurrence and during the continuation of an
Event of Default. Administrative Agent's out-of-pocket costs may
include but are not limited to the following, to the extent they
are actually paid or incurred by Administrative Agent: title
insurance fees and premiums; the cost of searches for Security
Interests existing against Covered Persons; recording and filing
fees; appraisal fees; environmental consultant fees; litigation
costs; and all attorneys' and paralegals' expenses and reasonable
fees. Each Lender's out-of-pocket costs may include but are not
limited to the following, to the extent they are actually paid or
incurred by a Lender: litigation costs and all attorneys' and
paralegals' expenses and reasonable fees. Attorneys' and
paralegals' expenses may include but are not limited to filing
charges; telephone, data transmission, facsimile and other
communication costs; courier and other delivery charges; and
photocopying charges. Litigation costs may include but are not
limited to filing fees, deposition costs, expert witness fees,
expenses of service of process, and other such costs paid or
incurred in any administrative, arbitration, or court proceedings
involving a Lender and any Covered Person, including proceedings
under the Federal Bankruptcy Code. All costs which Borrower is
obligated to pay or reimburse Administrative Agent or the Lenders
are Loan Obligations payable to Administrative Agent or Lender, as
applicable, and are payable on demand by Administrative Agent or
such Lender.
18.8. GENERAL INDEMNITY.
18.8.1. Borrower agrees to indemnify and hold harmless
Administrative Agent, the Letter of Credit Issuer, and
each Lender and each of their Affiliates and their
respective officers, directors, employees, agents, and
advisors (each, an Indemnified Party) from and against any
and all claims, damages, losses, liabilities, costs, and
expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, the
Acquisition Documents, any of the transactions
contemplated herein or therein or the actual or proposed
use of the proceeds of the Loans, or the manufacture,
storage, transportation, release or disposal of any
Hazardous Material on, from, over or
57
affecting any of its assets or any of the assets,
properties, or operations of any Covered Person or any
predecessor in interest, directly or indirectly, except to
the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section
18.8 applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is
brought by Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or
any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated. Borrower agrees not to assert any claim
against Administrative Agent, any Lender, any of their
Affiliates, or any of their respective directors,
officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect,
consequential, or punitive damages arising out of or
otherwise relating to the Loan Documents, the Acquisition
Documents, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of
the Loans. Borrower shall pay, indemnify and hold harmless
the Indemnified Parties for, from and against, and shall
promptly reimburse the Indemnified Parties for, any and
all claims, damages, liabilities, losses, costs and
expenses (including reasonable attorneys' fees and
expenses and amounts paid in settlement) incurred, paid or
sustained by the Indemnified Parties, arising out of or
relating to the Acquisition Documents.
18.8.2. The obligations of Borrower under this Section
18.8 shall survive the termination of the Commitments, the
expiration of the Letters of Credit, and the indefeasible
full payment and satisfaction of all of the Loan
Obligations.
18.8.3. To the extent that any of the indemnities required
from Borrower under this Section are unenforceable because
they violate any Law or public policy, Borrower shall pay
the maximum amount which it is permitted to pay under
applicable Law.
18.9. LETTERS OF CREDIT. Borrower assumes all risks of the acts or
omissions of any beneficiary of any of the Letters of Credit.
Neither Administrative Agent nor any of its directors, officers,
employees, agents, or representatives shall be liable or
responsible for: (a) the use which may be made of any of the
Letters of Credit or for any acts or omissions of beneficiary in
connection therewith; (b) the validity, sufficiency or genuineness
of documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by
Administrative Agent against presentation of documents which, on
their face, appear to comply with the terms of any Letter of Credit
but which in fact do not; or (d) any other circumstances whatsoever
in making or failing to make payment under any Letter of Credit in
connection with which Administrative Agent would, pursuant to the
Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500
(as amended from time to time), be absolved from liability. In
furtherance and not in limitation of the foregoing, Letter of
Credit Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
18.10. CHANGES IN ACCOUNTING PRINCIPLES. If any Covered Person, at
the end of its fiscal year and with the concurrence of its
independent certified public accountants, changes the method of
valuing the inventory of such Covered Person, or if any other
changes in accounting principles from those used in the preparation
of any of the Financial Statements are required by or result from
the promulgation of principles, rules, regulations, guidelines,
pronouncements or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public
58
Accountants (or successors thereto or bodies with similar functions),
and any of such changes result in a change in the method of
calculation of, or affect the results of such calculation of, any of
the financial covenants, standards or terms found herein, then the
parties hereto agree to enter into and diligently pursue negotiations
in order to amend such financial covenants, standards or terms so as
to equitably reflect such changes, with the desired result that the
criteria for evaluating the financial condition and results of
operations of such Covered Person shall be the same after such
changes as if such changes had not been made; provided, however,
that until such changes are made, all financial covenants herein
and all the provisions hereof which contemplate financial
calculation hereunder shall remain in full force and effect.
18.11. LOAN RECORDS. The date and amount of all Advances to
Borrower and payments of amounts due from Borrower under the Loan
Documents will be recorded in the records that Administrative Agent
normally maintains for such types of transactions. The failure to
record, or any error in recording, any of the foregoing shall not,
however, affect the obligation of Borrower to repay the Loans and
other amounts payable under the Loan Documents. Borrower shall have
the burden of proving that such records are not correct. Borrower
agrees that Administrative Agent's and any Lender's books and
records showing the Loan Obligations and the transactions pursuant
to this Agreement shall be admissible in any action or proceeding
arising therefrom, and shall constitute prima facie proof thereof,
irrespective of whether any Loan Obligation is also evidenced by a
promissory note or other instrument. Administrative Agent will
provide to Borrower a monthly statement of Advances, payments, and
other transactions pursuant to this Agreement. Such statement shall
be deemed correct, accurate and binding on Borrower and an account
stated (except for reversals and reapplications of payments as
provided in Section 6.8 and corrections of errors discovered by
Administrative Agent or a Lender), unless Borrower notifies
Administrative Agent in writing to the contrary within 30 days
after such statement is rendered. In the event a timely written
notice of objections is given by Borrower, only the items to which
exception is expressly made will be considered to be disputed by
Borrower.
18.12. OTHER SECURITY AND GUARANTIES. Administrative Agent or any
Lender may, in each case for the benefit of all of the Lenders,
without notice or demand and without affecting Borrower's
obligations hereunder, from time to time: (a) take from any Person
(other than Borrower) and hold collateral for the payment of all or
any part of the Loan Obligations and exchange, enforce and release
such collateral or any part thereof; and (b) accept and hold any
endorsement or guaranty of payment of all or any part of the Loan
Obligations and release or substitute any such endorser or
guarantor, or any Person (other than Borrower) who has given any
Security Interest in any other collateral as security for the
payment of all or any part of the Loan Obligations, or any other
Person (other than Borrower) in any way obligated to pay all or any
part of the Loan Obligations.
18.13. LOAN OBLIGATIONS PAYABLE IN DOLLARS. All Loan Obligations
that are payable in Dollars under the terms of the Loan Documents
shall be payable only in Dollars. If, however, to obtain a judgment
in any court it is necessary to convert a Loan Obligation payable
in Dollars into another currency, the rate of exchange used shall
be that at which Administrative Agent, using its customary
procedures, could purchase Dollars with such other currency in New
York, New York on the Business Day immediately preceding the day on
which such judgment is rendered. If any sum in another currency is
paid to a Lender or received by a Lender and applied to a Loan
Obligation payable in Dollars, such Loan Obligation shall be deemed
paid and discharged only to the extent of the amount of Dollars
that Administrative Agent, using its customary procedures, is able
to purchase in New York, New York with such sum on the Business Day
immediately following receipt thereof. Borrower agrees to indemnify
each Lender against any loss in Dollars
59
that it may incur on such Loan Obligation as a result of such
payment or receipt and application to such Loan Obligation.
18.14. DISCLOSURES. Notwithstanding anything herein or the other
Loan Documents to the contrary, Administrative Agent and each
Lender may disclose to any and all Persons, without limitation of
any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to Administrative Agent or such
Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either
case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or
similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby.
19. MISCELLANEOUS.
19.1. NOTICES. All notices, consents, requests and demands to or
upon the respective parties hereto shall be in writing, and shall
be deemed to have been given or made when delivered in person to
those Persons listed on the signature pages hereof or when
deposited in the United States mail, postage prepaid, or the
overnight courier services, when delivered to the overnight courier
service, or in the case of telecopy notice, when sent, verification
received, in each case addressed as set forth on the signature
pages hereof, or such other address as either party may designate
by notice to the other in accordance with the terms of this
Section. No notice given to or demand made on Borrower by
Administrative Agent or any Lender in any instance shall entitle
Borrower to notice or demand in any other instance.
19.2. AMENDMENTS AND MODIFICATIONS; WAIVERS AND CONSENTS.
19.2.1. Unless otherwise provided herein, no amendment to
or modification of any provision of this Agreement, or of
any of the other Loan Documents shall be effective unless
it is in writing and signed by authorized officers of
Borrower and Required Lenders. Unless otherwise provided
herein, no waiver of, or consent to any departure by
Borrower from, the requirements of any provision of this
Agreement or any of the other Loan Documents shall be
effective unless it is in writing and signed by authorized
officers of Required Lenders. Any such amendment,
modification, waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
19.2.2. The foregoing Section 19.2.1 notwithstanding, no
such amendment, modification or consent or waiver shall,
unless signed by authorized officers of Administrative
Agent, Borrower and of all Lenders: (i) reduce or forgive
the repayment of principal of any Advance or the
reimbursement of any draw on a Letter of Credit, (ii)
reduce the Eurodollar Revolving Margin, the Eurodollar
Term Margin, the Base Rate Revolving Margin, the Base Rate
Term Margin, or reduce the Revolving Loan Unused Fee,
except for periodic readjustments in accordance with this
Agreement, (iii) extend the Revolving Loan Maturity Date
or the Term Loan Maturity Date, (iv) change the provisions
of Section 16 to the detriment of any Lender, (v) change
the definition of Required Lenders herein, (vi) change the
provisions of this Section 19.2, (vii) change any
provisions of this Agreement requiring ratable
distributions to Lenders, and (viii) release a Guarantor
from the Guaranty. In addition, the foregoing provisions
of this Section notwithstanding, the Dollar amount of the
Revolving Loan Commitment or the Term Loan Commitment of
any Lender may not be increased without the consent of such
60
Lender and the Borrower and Administrative Agent,
including, without limitation, any increase effected
pursuant to Section 3.1.2.
19.2.3. In addition, the foregoing provisions of Sections
19.2.1 and 19.2.2 notwithstanding, the Dollar amount of
the Aggregate Revolving Loan Commitment (including,
without limitation, any increase effected pursuant to
Section 3.1.2) or the Aggregate Term Loan Commitment may
not be increased without the consent of any Lender
participating in such increase, the Borrower and
Administrative Agent.
19.2.4. No failure by Administrative Agent or any Lender
to exercise, and no delay by Administrative Agent or any
Lender in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Administrative
Agent or any Lender of any right, remedy, power or
privilege hereunder preclude any other exercise thereof,
or the exercise of any other right, remedy, power or
privilege existing under any Law or otherwise.
19.3. RIGHTS CUMULATIVE. Each of the rights and remedies of
Administrative Agent and Lenders under this Agreement shall be in
addition to all of its other rights and remedies under applicable
Law, and nothing in this Agreement shall be construed as limiting
any such rights or remedies.
19.4. RECITALS. The Recitals to this Agreement are substantive in
nature and are a part of this Agreement.
19.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and all future
holders of the Notes and their respective successors and assigns,
except that Borrower may not assign, delegate or transfer any of
its rights or obligations under this Agreement without the prior
written consent of Administrative Agent and all Lenders. With
respect to Borrower's successors and assigns, such successors and
assigns shall include any receiver, trustee or debtor-in-possession
of or for Borrower.
19.6. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or lack of authorization without
invalidating the remaining provisions hereof or affecting the
validity, enforceability or legality of such provision in any other
jurisdiction unless the ineffectiveness of such provision would
result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
19.7. COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of separate counterparts, and all such
counterparts taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one counterpart
signed by the party to be charged.
19.8. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement, the
Notes and the other Loan Documents and the rights and obligations
of the parties hereunder and thereunder shall be governed by and
construed and interpreted in accordance with the internal Laws of
the State of Illinois applicable to contracts made and to be
performed wholly within such state, without regard to choice or
conflicts of law principles. This Agreement is solely for the
benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit,
priority or interest under, or because of the existence of, this
Agreement.
61
19.9. COUNTERPART FACSIMILE EXECUTION. For purposes of this
Agreement, a document (or signature page thereto) signed and
transmitted by facsimile machine or telecopier is to be treated as
an original document. The signature of any Person thereon, for
purposes hereof, is to be considered as an original signature, and
the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At
the request of any party hereto, any facsimile or telecopy document
is to be re-executed in original form by the Persons who executed
the facsimile or telecopy document. No party hereto may raise the
use of a facsimile machine or telecopier or the fact that any
signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this
Agreement or any amendment or other document executed in compliance
with this Section.
19.10. EFFECT OF MERGER OF BANK. Effective immediately upon the
merger of Administrative Agent or a Lender with or into another
financial institution, all references to Administrative Agent or
such Lender under every Loan Document shall be deemed to be
references to the surviving institution. If the surviving
institution does not have a "Prime Rate," references in the Loan
Documents to Prime Rate shall be deemed to be references to the
reference rate (however it is designated) established from time to
time by the surviving institution that is most similar to the Prime
Rate.
19.11. NEGOTIATED TRANSACTION. Borrower, Administrative Agent and
each Lender represent each to the others that in the negotiation
and drafting of this Agreement and the other Loan Documents they
have been represented by and have relied upon the advice of counsel
of their choice. Borrower and Administrative Agent affirm that
their counsel have both had substantial roles in the drafting and
negotiation of this Agreement and each Lender affirms that its
counsel has participated in the drafting and negotiation of this
Agreement; therefore, this Agreement will be deemed drafted by all
of Borrower, Administrative Agent and Lenders, and the rule of
construction to the effect that any ambiguities are to be resolved
against the drafter will not be employed in the interpretation of
this Agreement.
19.12. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN THE NEXT
SENTENCE, BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY
AGREES TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURT OF THE
NORTHERN DISTRICT OF ILLINOIS AND THE STATE COURTS OF ILLINOIS
LOCATED IN XXXX COUNTY AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN,
----- --- ----------
AND AGREES THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN
ADMINISTRATIVE AGENT, LENDERS, AND BORROWER OR THE CONDUCT OF ANY
OF THEM IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE
HEARD ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE
FOREGOING: EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
19.13. SERVICE OF PROCESS. BORROWER HEREBY WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE
OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO BORROWER AT ITS ADDRESS SET FORTH ON THE
SIGNATURE PAGES HEREOF, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED
IN THE U.S. MAILS; OR AT ADMINISTRATIVE AGENT'S OR
62
ANY LENDER'S OPTION, BY SERVICE UPON CT CORPORATION, WHICH BORROWER
IRREVOCABLY APPOINTS AS BORROWER'S AGENT FOR THE PURPOSE OF
ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF ILLINOIS.
ADMINISTRATIVE AGENT OR SUCH LENDER SHALL PROMPTLY FORWARD BY
REGISTERED MAIL ANY PROCESS SO SERVED UPON SAID AGENT TO BORROWER
AT ITS ADDRESS ON THE SIGNATURE PAGES HEREOF. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY
LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
19.14. WAIVER OF JURY TRIAL. BORROWER, ADMINISTRATIVE AGENT, AND
EACH LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
EITHER OF THEM IN RESPECT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWER, ADMINISTRATIVE
AGENT, AND EACH LENDER AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT EITHER MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
19.15. INCORPORATION BY REFERENCE. All of the terms of the other
Loan Documents are incorporated in and made a part of this
Agreement by this reference.
19.16. STATUTORY NOTICE - INSURANCE. The following notice is given
pursuant to Section 10 of the Collateral Protection Act set forth
in Chapter 815 Section 180/1 of the Illinois Compiled Statutes
(1996); nothing contained in such notice shall be deemed to limit
or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY
YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE
TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE
MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE
AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY LATER CANCEL
ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING EVIDENCE
THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF
WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE
FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE
PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE
INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR
OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
63
19.17. STATUTORY NOTICE - ORAL COMMITMENTS. Nothing contained in
the following notice shall be deemed to limit or modify the terms
of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT.
Borrower acknowledges that there are no other agreements between
Administrative Agent, Lenders, and Borrower, oral or written,
concerning the subject matter of the Loan Documents, and that all
prior agreements concerning the same subject matter, including any
proposal or commitment letter, are merged into the Loan Documents
and thereby extinguished.
[SIGNATURE PAGES FOLLOW]
64
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the Execution Date.
XXXXXXXX CORPORATION, A MISSOURI CORPORATION, AS BORROWER
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Xxxxxxxx Corporation
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxxxx Corporation
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 1 of 6
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
NOTICE ADDRESS:
LaSalle Bank National Association
Xxx Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx, Vice President
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxx & Xxxxxxxx, X.X.
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
LaSalle Bank National Association
Xxx Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx, Vice President
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 2 of 6
UMB BANK, NATIONAL ASSOCIATION, A LENDER
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
NOTICE ADDRESS:
UMB Bank, National Association
0 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
UMB Bank, National Association
0 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 3 of 6
XXXXX FARGO BANK, N.A., A LENDER
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
NOTICE ADDRESS:
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 4 of 6
NATIONAL CITY BANK OF THE MIDWEST, A LENDER
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
NOTICE ADDRESS:
00000 Xxxxxxx Xxxx Xxxxxxx XX-XX
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
00000 Xxxxxxx Xxxx Xxxxxxx XX-XX
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 5 of 6
UNION PLANTERS BANK, N.A., A LENDER
By: /s/
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
NOTICE ADDRESS:
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
APPLICABLE LENDING OFFICE:
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
{END OF SIGNATURE PAGES}
Signature Page 6 of 6
EXHIBIT 2.1
GLOSSARY
ACQUIRING COMPANY -- the Person obligated to pay or provide the
consideration payable in connection with a Permitted Acquisition upon the
consummation thereof.
ACQUISITION DOCUMENTS -- in the case of any Permitted Acquisition, the
documents to which Borrower or any other Covered Person is a party and under
which such Permitted Acquisition is contemplated, and all of the foregoing
at any time after a Permitted Acquisition has occurred.
ADJUSTED BASE RATE -- is defined in Section 4.4.
ADJUSTED EURODOLLAR RATE -- is defined in Section 4.5.
ADMINISTRATIVE AGENT -- LaSalle in its capacity as Administrative Agent
under this Agreement, and its successors and assigns in such capacity.
ADVANCE -- a Term Loan Advance, a Revolving Loan Advance or a Swingline Advance.
ADVANCE DATE -- the date on which an Advance is requested by Borrower to be
made, or is otherwise contemplated or intended to be made, as provided
herein.
AFFILIATE -- with respect to any Person, (a) any other Person who is a
partner, director, officer, stockholder, member, partner or other equity
holder of such Person; and (b) any other Person which, directly or
indirectly, through one or more intermediaries, is in control of, is
controlled by or is under common control with such Person, and any partner,
director, officer or stockholder, member, partner or other equity holder of
such other Person described. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has
the power, directly or indirectly, either to (i) vote twenty percent (20%)
or more of the securities, membership interests or other equity interest
having the power to vote in an election of directors or managers of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
AGGREGATE COMMITMENT -- the Aggregate Revolving Loan Commitment or the
Aggregate Term Loan Commitment.
AGGREGATE LOAN -- the Aggregate Revolving Loan or the Aggregate Term Loan.
AGGREGATE REVOLVING LOAN -- the from time to time outstanding principal
balance of all Revolving Loan Advances.
AGGREGATE REVOLVING LOAN COMMITMENT -- the aggregate commitments of Lenders
as stated in Section 3.1.1 to fund Revolving Loan Advances, as it may be
changed as provided herein.
AGGREGATE TERM LOAN -- the from time to time outstanding principal amount of
Term Loan Advances.
AGGREGATE TERM LOAN COMMITMENT -- the aggregate commitments of Lenders as
stated in Section 3.4.1 to fund Term Loan Advances.
APPLICABLE LENDING OFFICE -- means, for Administrative Agent and each Lender
and for each Loan, the Applicable Lending Office of Administrative Agent or
such Lender (or of an Affiliate of such Lender) designated for such Loan on
the signature pages hereof or such other office of such Lender (or an
Affiliate of Administrative Agent or such Lender) as Administrative Agent or
such Lender may from time to time specify to Administrative Agent (in the
case of another Lender) and Borrower by written notice in accordance with
the terms hereof as the office by which its Loans are to be made and
maintained.
APPROVED OPTION - is defined in Section 6.4.3.3.
BASE RATE -- for any day, the rate per annum equal to the higher of (a) the
Federal Funds Rate (as such rate may fluctuate from time to time as provided
for herein) for such day plus .50% and (b) the Prime Rate (as such rate may
fluctuate from time to time as provided for herein) for such day. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate. The interest rate so designated from time to time as the
Base Rate by Administrative Agent is a reference rate and does not
necessarily represent the lowest or best rate charged to any customer of
Administrative Agent or any other Lender.
BASE RATE ADVANCE -- an Advance that will become a Base Rate Loan.
BASE RATE REVOLVING MARGIN -- is specified in Section 4.6.
BASE RATE LOAN -- any portion of a Loan on which interest accrues at the
Base Rate.
BASE RATE TERM MARGIN -- is specified in Section 4.6.
BORROWER -- as defined in the introductory paragraph to this Agreement.
BORROWING OFFICER -- each officer of Borrower who is authorized to submit a
request for an Advance or the issuance of a Letter of Credit on behalf of
Borrower.
BUSINESS DAY-- a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the Laws of
either the United States or the State of Illinois, and when used in
connection with Eurodollar Loans, also a day other than any day on which
dealings in U.S. Dollar deposits are not carried on in the London interbank
market.
CAPITAL LEASE -- any lease that has been or should be capitalized under
GAAP.
CHARTER DOCUMENTS -- the articles or certificate of incorporation and bylaws
of a corporation; the certificate of limited partnership and partnership
agreement of a limited partnership; the partnership agreement of a general
partnership; the articles of organization and operating agreement of a
limited liability company; or the indenture of a trust.
COBRA -- the Consolidated Omnibus Budget Reconciliation Act.
CODE -- the Internal Revenue Code of 1986 and all regulations thereunder of
the IRS.
COMMITMENT -- either the Term Loan Commitment of a Lender, the Revolving
Loan Commitment of a Lender, the Swingline Commitment of Administrative
Agent, or the Letter of Credit Commitment of Letter of Credit Issuer.
ii
COMMONLY CONTROLLED ENTITY -- a Person which is under common control with
another Person within the meaning of Section 414(b) or (c) of the Code.
CONTRACT -- any contract, note, bond, indenture, deed, mortgage, deed of
trust, security agreement, pledge, hypothecation agreement, assignment, or
other agreement or undertaking, or any security.
COVERED PERSON -- defined in Section 2.3.
DEFAULT -- any of the events listed in Section 15.1 of this Agreement,
without giving effect to any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any other condition, event
or act.
DEFAULT RATE -- the rate of interest payable on each Loan after its Maturity
and in certain other circumstances as provided in Section 4.10.
DISCLOSURE SCHEDULE -- the disclosure schedule of Borrower attached hereto
as Exhibit 10.
DOLLARS and the sign $ -- lawful money of the United States.
DEFAULTING LENDER -- is defined in Section 7.5.1.
DUKE ACQUISITION -- means that certain acquisition by Borrower of
substantially all of the laundry business assets of Duke University Health
System, Inc.
EBITDA -- is defined in Section 14.1.
EFFECTIVE DATE -- the date when this Agreement is effective as provided in
Section 1.
ELIGIBLE ASSIGNEE -- means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by Administrative Agent; provided, however,
that neither Borrower, any Covered Person, any Guarantor nor an Affiliate of
Borrower or Guarantor shall qualify as an Eligible Assignee.
EMPLOYMENT LAW -- ERISA, the Occupational Safety and Health Act, the Fair
Labor Standards Act, or any other Law pertaining to the terms or conditions
of labor or safety in the workplace or discrimination or sexual harassment
in the workplace.
ENVIRONMENTAL LAW -- the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Clean Water Act, the Clean Air Act, or any other federal, state, or local
Law (excluding foreign and international law) pertaining to environmental
quality or remediation of Hazardous Material.
EPA -- the United States Environmental Protection Agency.
ERISA -- the Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE -- as to any Person, any trade or business (irrespective of
whether incorporated) which is a member of a group of which such Person is a
member and thereafter treated as a single employer under 414(b), (c), (m) or
(o) of the Code or applicable Treasury Regulations.
EURODOLLAR ADVANCE -- an Advance that will become a Eurodollar Loan.
iii
EURODOLLAR REVOLVING MARGIN -- is defined in Section 4.5
EURODOLLAR LOAN -- any portion of an Aggregate Loan on which interest
accrues at the Adjusted Eurodollar Rate.
EURODOLLAR RATE -- for the applicable Interest Period therefor, the interest
rate per annum equal to the quotient of: (a) the per annum rate of interest
at which United States dollar deposits in an amount comparable to the amount
of the relevant LIBOR Loan and for a period equal to the relevant Interest
Period are offered in the London Interbank Eurodollar market at 11:00 A.M.
(London time) two (2) Business Days prior to the commencement of such
Interest Period (or three (3) Business Days prior to the commencement of
such Interest Period if banks in London, England were not open and dealing
in offshore United States dollars on such second preceding Business Day), as
displayed in the Bloomberg Financial Markets system (or other authoritative
source selected by the Administrative Agent in its sole discretion) or, if
the Bloomberg Financial Markets system or another authoritative source is
not available, as the LIBOR Rate is otherwise determined by the
Administrative Agent in its sole and absolute discretion, divided by (b) a
number determined by subtracting from 1.00 the then stated maximum reserve
percentage for determining reserves to be maintained by member banks of the
Federal Reserve System for Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D),
such rate to remain fixed for such Interest Period. The Administrative
Agent's determination of the LIBOR Rate shall be conclusive, absent manifest
error.
EURODOLLAR TERM MARGIN -- is defined in Section 4.5
EVENT OF DEFAULT -- any of the events listed in Section 15.1 of this
Agreement as to which any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any further condition, event
or act has been satisfied.
EXECUTION DATE -- the date when this Agreement has been executed.
EXISTING DEFAULT -- a Default which has occurred and is continuing, or an
Event of Default which has occurred, and which has not been waived in
writing by the Required Lenders, or all of the Lenders if required by
Section 19.2.
FEDERAL FUNDS RATE -- for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged
to Administrative Agent (in its individual capacity) on such day on such
transactions as determined by Administrative Agent.
FINANCIAL STATEMENTS -- the most recent of the Initial Financial Statements
and the financial statements of Borrower required to be furnished to
Administrative Agent under Section 12.11 of this Agreement.
FIXED CHARGES -- is defined in Section 14.1.
FRB -- the Board of Governors of the Federal Reserve System and any
successor thereto or to the functions thereof.
iv
FRONTING FEE -- the fee payable to Letter of Credit Issuer as required in
Section 5.4.
FUNDED INDEBTEDNESS -- is defined in Section 14.1.
GAAP -- those generally accepted accounting principles set forth in
Statements of the Financial Accounting Standards Board and in Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants or which have other substantial authoritative support in
the United States and are applicable in the circumstances, as applied on a
consistent basis.
GOVERNMENTAL AUTHORITY -- the federal government of the United States; the
government of any foreign country that is recognized by the United States or
is a member of the United Nations; any state of the United States; any local
Government or municipality within the territory or under the jurisdiction of
any of the foregoing; any department, agency, division, or instrumentality
of any of the foregoing; and any court, arbitrator, or board of arbitrators
whose orders or judgments are enforceable by or within the territory of any
of the foregoing.
GROUP -- as used in Regulation 13-D issued by the Securities and Exchange
Commission.
GUARANTOR -- each of the Persons required under this Agreement to execute
and deliver to Administrative Agent for the benefit of Lenders a guaranty of
part or all of the Loan Obligations. Angelica Textile Services, Inc., a New
York corporation, Angelica Textile Services, Inc., a California corporation,
Southern Service Company, a California corporation, and Angelica Realty Co.,
a California corporation are each Guarantors and have executed an unlimited
Guaranty of all the Loan Obligations.
GUARANTY -- each guaranty of part (if acceptable to Administrative Agent) or
all of the Loan Obligations executed and delivered to Administrative Agent
for the benefit of Lenders by any Guarantor.
HAZARDOUS MATERIAL -- any hazardous, radioactive, toxic, solid or special
waste, material, substance or constituent thereof, or any other such
substance (as defined under any applicable Law or regulation), including any
asbestos or asbestos containing material. HAZARDOUS MATERIAL does not
include materials or products containing hazardous constituents which are
not considered to be waste under the applicable Environmental Law or which
are considered to be waste but are transported, handled or disposed of in
accordance with the applicable Environmental Law, or asbestos or asbestos
containing material which is not friable.
INDEBTEDNESS -- as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii)
to pay the deferred purchase price of property or services; (iii) to make
payments or reimbursements with respect to bank acceptances or to a factor;
(iv) to make payments or reimbursements with respect to letters of credit
whether or not there have been drawings thereunder; (v) with respect to
which there is any Security Interest in any property of such Person; (vi) to
make any payment or contribution to a Multi-Employer Plan; (vii) that is
evidenced by a note, bond, debenture or similar instrument; (viii) under any
conditional sale agreement or title retention agreement; or (ix) to pay
interest or fees with respect to any of the foregoing. INDEBTEDNESS also
includes any other Obligation that either (i) is non-contingent and
liquidated in amount or (ii) should under GAAP be included in liabilities
and not just as a footnote on a balance sheet.
INDIRECT OBLIGATION -- as to any Person, (a) any guaranty by such Person of
any Obligation of another Person; (b) any Security Interest in any property
of such Person that secures any Obligation of another Person; (c) any
enforceable contractual requirement that such Person (i) purchase an
Obligation of another Person or any property that is security for such
Obligation, (ii) advance or contribute funds to
v
another Person for the payment of an Obligation of such other Person or to
maintain the working capital, net worth or solvency of such other Person as
required in any documents evidencing an Obligation of such other Person,
(iii) purchase property, securities or services from another Person for the
purpose of assuring the beneficiary of any Obligation of such other Person
that such other Person has the ability to timely pay or discharge such
Obligation, (iv) grant a Security Interest in any property of such Person to
secure any Obligation of another Person, (v) otherwise assure or hold
harmless the beneficiary of any Obligation of another Person against loss in
respect thereof; (d) any Obligation arising from the endorsement by such
Person of an instrument; (e) any Obligation of such Person as a surety; and
(f) any other contractual requirement enforceable against such Person that
has the same substantive effect as any of the foregoing. The term INDIRECT
OBLIGATION does not, however, include the endorsement by a Person of
instruments for deposit or collection in the ordinary course of business or
the liability of a general partner of a partnership for Obligations of such
partnership. The amount of any Indirect Obligation of a Person shall be
deemed to be the stated or determinable amount of the Obligation in respect
of which such Indirect Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
INITIAL FINANCIAL STATEMENTS -- the financial statements (not including the
proforma financial statements) of Borrower referred to in Section 8.1.2.
INTEREST EXPENSE -- is defined in Section 14.1.
INTEREST HEDGE OBLIGATION -- any obligations of Borrower to Administrative
Agent or any Affiliate of Administrative Agent under an agreement or
agreements between Borrower and Administrative Agent or any Affiliate of
Administrative Agent under which the exposure of Borrower to fluctuations in
interest rates is effectively limited, whether in the form of one or more
interest rate cap, collar, or corridor agreements, interest rate swaps, or
the like, or options therefor.
INTEREST PERIOD -- the period during which a particular Adjusted Eurodollar
Rate applies to a Eurodollar Loan, as selected by Borrower as provided in
Section 4.7.
INVESTMENT -- (a) a loan or advance of money or property to a Person, (b)
stock, membership interest, or other equity interest in a Person, (c) a debt
instrument issued by a Person, whether or not convertible to stock,
membership interest, or other equity interest in such Person, or (d) any
other interest in or rights with respect to a Person which include, in whole
or in part, a right to share, with or without conditions or restrictions,
some or all of the revenues or net income of such Person.
IRS -- the Internal Revenue Service.
LASALLE -- LaSalle Bank National Association.
LAW -- any statute, rule, regulation, order, judgment, award or decree of
any Governmental Authority.
LENDER -- any one of the lenders listed on Exhibit 3 to this Agreement,
including Administrative Agent in its capacity as a lender, or any Person
who takes an assignment from any of such lenders of all or a portion of its
rights and obligations as a lender under this Agreement pursuant to Section
18.4.1 and an Assignment and Acceptance as provided therein.
LENDERS' EXPOSURE -- the sum of the Aggregate Revolving Loan Commitment, the
Aggregate Term Loan, the Swingline Loan, and the Letter of Credit Exposure.
vi
LETTER OF CREDIT -- any standby or commercial (documentary) letter of credit
issued by Letter of Credit Issuer pursuant to the Letter of Credit
Commitment.
LETTER OF CREDIT COMMITMENT -- the commitment of the Letter of Credit Issuer
to issue Letters of Credit as provided in Section 3.3.
LETTER OF CREDIT EXPOSURE -- the undrawn amount of all outstanding letters
of credit issued under the Letter of Credit Commitment, plus all amounts
drawn on any and all such letters of credit and not yet reimbursed by
Borrower.
LETTER OF CREDIT FEE -- the fee payable to Administrative Agent and Lenders
as required in Section 5.3.
LETTER OF CREDIT ISSUER -- LaSalle, or any other Lender succeeding to
LaSalle's commitment to issue Letters of Credit pursuant to Section 3.3.
LIFE INSURANCE POLICIES -- those certain life insurance policies owned by
Borrower on the lives of certain of its present and former employees with a
current aggregate cash value of approximately $30,000,000.
LOAN -- a Revolving Loan, a Term Loan or a Swingline Loan.
LOAN AGREEMENT -- this Agreement.
LOAN DOCUMENTS -- this Agreement, the Notes, the Guaranties, any
reimbursement agreement between Borrower and the Letter of Credit Issuer,
and all other agreements, certificates, documents, instruments and other
writings executed from time to time in connection herewith or related
hereto.
LOAN OBLIGATIONS -- all of Borrower's Indebtedness owing to Letter of Credit
Issuer, Administrative Agent or Lenders under the Loan Documents, whether as
principal, interest, fees or otherwise, all reimbursement obligations of
Borrower to Letter of Credit Issuer or Lenders with respect to the Letter of
Credit Exposure, all Obligations to Administrative Agent, and all other
obligations and liabilities of Borrower to Administrative Agent or Lenders
under the Loan Documents and all Interest Hedge Obligations (in each case
including all extensions, renewals, modifications, rearrangements,
restructures, replacements and refinancings of the foregoing, whether or not
the same involve modifications to interest rates or other payment terms),
whether now existing or hereafter created, absolute or contingent, direct or
indirect, joint or several, secured or unsecured, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of
law or otherwise, including but not limited to the obligation of Borrower to
repay future advances by Administrative Agent or Lenders hereunder, whether
or not made pursuant to commitment and whether or not presently contemplated
by Borrower, Administrative Agent or Lenders in the Loan Documents.
LOAN YEAR -- means a twelve month period beginning on the Effective Date (or
an annual anniversary thereof).
LOCAL TIME -- the local time in the city in which Administrative Agent's
address is located, as set forth on the signature page hereto (as changed
from time to time in accordance with the terms hereof).
MARGIN -- Base Rate Revolving Margin, Base Rate Term Margin, Eurodollar
Revolving Margin or Eurodollar Term Margin.
vii
MATERIAL ADVERSE EFFECT -- as to Borrower or any Covered Person and with
respect to any event or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, investigation or proceeding),
material adverse effect on (i) the business, operations, revenues, financial
condition, property, or business prospects of the Covered Persons taken as a
whole, (ii) the value of its assets taken as a whole, (iii) the validity or
enforceability of the Loan Documents, (iv) the ability of any Covered Person
to timely pay or perform such Covered Person's Obligations generally as they
become due, (v) in the case of Borrower specifically, the ability of
Borrower to pay or perform any of Borrower's Obligations to Lender, or (vi)
in the case of a Guarantor specifically, the ability of such Guarantor to
pay or perform any of its Obligations under the terms of its Guaranty.
MATERIAL AGREEMENT -- as to any Person, any Contract to which such Person is
a party or by which such Person is bound which, if violated or breached, has
or is reasonably likely to have a Material Adverse Effect on such Person,
any Covered Person or any Guarantor, including without limitation all
Acquisition Documents.
MATERIAL LAW -- any separately enforceable provision of a Law whose
violation by a Person has or is reasonably likely to have a Material Adverse
Effect on such Person or any Covered Person or any Guarantor.
MATERIAL LICENSE -- (i) as to any Covered Person, any license, permit or
consent from a Governmental Authority or other Person and any registration
and filing with a Governmental Authority or other Person which if not
obtained, held or made by such Covered Person has or is reasonably likely to
have a Material Adverse Effect on such Covered Person or any other Covered
Person or any Guarantor, and (ii) as to any Person who is a party to this
Agreement or any of the other Loan Documents, any license, permit or consent
from a Governmental Authority or other Person and any registration or filing
with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
MATERIAL OBLIGATION -- as to any Person, an Obligation of such Person which
if not fully and timely paid or performed has or is reasonably likely to
have a Material Adverse Effect on such Person or any Covered Person or any
Guarantor.
MATERIAL PROCEEDING -- any litigation, investigation or other proceeding by
or before any Governmental Authority (i) which involves any of the Loan
Documents or any of the transactions contemplated thereby, or involves a
Covered Person or a Guarantor as a party or any property of Covered Person
or a Guarantor, and has or is reasonably likely to have a Material Adverse
Effect on a Covered Person or a Guarantor if adversely determined, (ii) in
which there has been issued an injunction, writ, temporary restraining order
or any other order of any nature which purports to restrain or enjoin the
making of any Advance, the consummation of any other transaction
contemplated by the Loan Documents, or the enforceability of any provision
of any of the Loan Documents, (iii) which involves the actual or alleged
breach or violation by a Covered Person of, or default by a Covered Person
under, any Material Agreement, or (iv) which involves the actual or alleged
violation by a Covered Person or any Guarantor of any Material Law.
MATURITY -- as to any Indebtedness, the time when it becomes payable in
full, whether at a regularly scheduled time, because of acceleration or
otherwise.
MAXIMUM AVAILABLE AMOUNT -- the maximum Dollar amount available for
Revolving Loan Advances on any date as limited in Section 3.1.3, as it may
be changed as provided herein.
viii
MULTI-EMPLOYER PLAN -- a Pension Benefit Plan which is a multi-employer plan
as defined in Section 4001(a)(3) of ERISA.
NOTE -- any Revolving Note, any Term Note, or the Swingline Note.
OBLIGATION -- as to any Person, any Indebtedness of such Person, any
guaranty by such Person of any Indebtedness of another Person, and any
contractual requirement enforceable against such Person that does not
constitute Indebtedness of such Person or a guaranty by such Person but
which would involve the expenditure of money by such Person if complied with
or enforced.
OBLIGATIONS TO ADMINISTRATIVE AGENT -- exclusive of all the Loan
Obligations, all of Borrower's Indebtedness owing to Administrative Agent
(whether as principal, interest, fees or otherwise), all obligations of
Borrower under agreements between Borrower and Administrative Agent under
which the exposure of Borrower to fluctuations in interest rates is
effectively limited, whether in the form of interest rate cap, collar or
corridor agreements, interest rate swaps, or the like, or options therefor,
all Indirect Obligations of Borrower owing to Administrative Agent, all
reimbursement obligations of Borrower to Administrative Agent with respect
to letters of credit, and all other obligations and liabilities of Borrower
to Administrative Agent including all extensions, renewals, modifications,
rearrangements, restructures, replacements and refinancings of the
foregoing, whether or not the same involve modifications to interest rates
or other payment terms), whether now existing or hereafter created, absolute
or contingent, direct or indirect, joint or several, secured or unsecured,
due or not due, contractual or tortious, liquidated or unliquidated, arising
by operation of law or otherwise, or acquired by Administrative Agent
outright, conditionally or as collateral security from another, including
the obligation of Borrower to repay future advances by Administrative Agent,
whether or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Administrative Agent.
PBGC -- the Pension Benefit Guaranty Corporation.
PENSION BENEFIT PLAN -- any pension or profit-sharing plan which is covered
by Title I of ERISA and all other benefit plans, in each case in respect of
which a Covered Person or a Commonly Controlled Entity of such Covered
Person is an employer as defined in Section 3(5) of ERISA.
PERMITTED ACQUISITIONS -- any acquisition by Borrower or a Covered Person of
stock, membership interests, or other equity interests of another Person or
the assets of another Person permitted under Section 13.5.
PERMITTED INDEBTEDNESS -- Indebtedness that Borrower is permitted under
Section 13.2 to incur, assume, or allow to exist.
PERMITTED INDIRECT OBLIGATIONS -- Indirect Obligations that Borrower is
permitted under Section 13.3 to create, incur, assume, or allow to exist.
PERMITTED INVESTMENTS -- Investments that Borrower is permitted under
Section 13.1 to make in other Persons.
PERMITTED SECURITY INTERESTS -- Security Interests that Borrower is
permitted under Section 13.4 to create, incur, assume, or allow to exist.
PERSON -- any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental
Authority, or other organization in any form that has the legal capacity to
xxx or be sued. If the context so implies or requires, the term Person
includes Borrower.
ix
PRIME RATE -- on any day, the rate of interest per annum then most recently
established by Administrative Agent as its Prime Rate. Such rate is a
general reference rate of interest, may not be related to any other rate,
and may not be the lowest or best rate actually charged by Administrative
Agent to any customer or a favored rate and may not correspond with future
increases or decreases in interest rates charged by other lenders or market
interest rates in general.
PROFORMA FINANCIAL STATEMENTS -- the proforma financial statements referred
to in Section 8.1.2.
REDEMPTION/DISTRIBUTION -- is defined in Section 13.7.
REGULATION D, REGULATION T, REGULATION U and REGULATION X -- respectively,
Regulation D issued by the FRB, Regulation T issued by the FRB, Regulation U
issued by the FRB and Regulation X issued by the FRB.
REPORTABLE EVENT -- a reportable event as defined in Title IV of ERISA or
the regulations thereunder.
REPRESENTATIONS AND WARRANTIES -- The representations and warranties made by
any Covered Person with respect to itself and any other Covered Persons in
Section 10, and the representations and warranties made in any other Loan
Document or certificate, report, opinion or other document delivered by
Borrower, any Guarantor, or any other Covered Person pursuant to the Loan
Documents, as such representations and warranties are modified from time to
time as provided in Section 11.
REQUIRED LENDERS -- is defined in Section 2.4.
RESPONSIBLE OFFICER -- as to any Person that is not an individual,
partnership, limited liability company or trust, the Chairman of the Board
of Directors, the President, the chief executive officer, the chief
operating officer, the Chief Financial Officer, the Treasurer, any Assistant
to the Treasurer, or any Vice President in charge of a principal business
unit; as to any partnership, any individual who is a general partner thereof
or any individual who has general management or administrative authority
over all or any principal unit of the partnership's business; as to any
limited liability company, any managing member, or manager, any individual
who has general management or administrative authority over all or any
principal unit of the limited liability company's business; and as to any
trust, any individual who is a trustee.
REVOLVING LOAN -- any Lender's pro-rata share of the Aggregate Revolving
Loan.
REVOLVING LOAN ADVANCE -- an Advance by Administrative Agent that is to be
funded by Lenders under the Aggregate Revolving Loan Commitment.
REVOLVING LOAN COMMITMENT -- the commitment of each Lender as stated in
Section 3.1.1. to fund Revolving Loan Advances, as it may be changed as
provided in this Agreement.
REVOLVING LOAN MATURITY DATE -- the date when Borrower must repay the amount
of Aggregate Revolving Loan then outstanding as provided in Section 6.1.2.
REVOLVING LOAN UNUSED FEE -- the fee described in Section 5.2.
REVOLVING NOTE -- any note delivered to a Lender as required by Section
3.1.4 to evidence Borrower's obligation to repay such Lender's Revolving
Loan.
x
ROYAL ACQUISITION -- is defined in Section 2.14.
SECURITY INTEREST -- as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a
Contract, or by operation of law or statute (such as but not limited to a
statutory lien for work or materials), or as a result of a judgment, or
which arises under any form of preferential or title retention agreement or
arrangement (including a conditional sale agreement or a lease) that has
substantially the same economic effect as any of the foregoing; provided
however, that the term "Security Interest" is not intended to include a
notice filing by a lessor regarding ownership of property subject to a true
operating lease so long as such notice filing or any related agreement does
not contain a grant of a lien or security interest and does not cover
property or assets not subject to such true operating lease.
SELLER -- any Person who is a party to any Permitted Acquisition other than
Borrower or a Covered Person.
SMALL PERMITTED ACQUISITIONS -- is defined in Section 13.5.
SOLVENT -- as to any Person, such Person not being "insolvent" within the
meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (the "UFTA") or Section 3 of the Illinois Uniform
Fraudulent Transfer Act set forth in Section 160/3 of the Illinois Compiled
Statutes (1996) (the "Illinois UFTA"), (ii) such Person not having
unreasonably small capital, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the Illinois UFTA,
and (iii) such Person not being unable to pay such Person's debts as they
become due within the meaning of Section 548 of the Bankruptcy Code, Section
4 of the UFTA, or Section 5 of the Illinois UFTA.
STOCK DIVIDEND -- is defined in Section 13.7.
SUBSIDIARY -- as to any Person, another Person with respect to which more
than 40% of the outstanding shares of stock or other equity interests of
each class having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) is at the time owned by
such Person or by one or more Subsidiaries of such Person.
SURVIVING COMPANY -- as applicable, either (i) the Person that will own the
assets to be acquired from a Target Company in a Permitted Acquisition upon
the consummation thereof, or (ii) the survivor of the merger of an Acquiring
Company with the Target Company in a Permitted Acquisition upon the
consummation thereof.
SWINGLINE ADVANCE -- an advance by Administrative Agent to Borrower under the
Swingline Commitment.
SWINGLINE COMMITMENT -- the commitment of Administrative Agent as stated in
Section 3.2.1 to make Swingline Advances.
SWINGLINE LOAN -- the from time to time outstanding principal balance of all
Swingline Advances.
TARGET COMPANY -- the Person whose assets or stock, membership interests, or
other equity interests will be acquired in a Permitted Acquisition upon the
consummation thereof, or if applicable, with which an Acquiring Company will
merge in a Permitted Acquisition upon the consummation thereof.
xi
TAX -- as to any Person, any tax, duty, impost, deduction, charges,
withholdings, assessment, fee, or other charge 1evied by a Governmental
Authority (and all liabilities associated therewith) on the income or
property of such Person, including any interest or penalties thereon, and
which is payable by such Person.
TERM LOAN -- any Lender's pro-rata share of the Aggregate Term Loan.
TERM LOAN ADVANCE -- an Advance by Administrative Agent that is to be funded
by Lenders under the Aggregate Term Loan Commitment.
TERM LOAN COMMITMENT -- the commitment of each Lender as stated in Section
3.4 to fund the Term Loan Advance.
TERM LOAN MATURITY DATE -- the date when Borrower must repay the amount of
the Aggregate Term Loan then outstanding as provided in Section 6.2.2.
TERM NOTE -- any note delivered to a Lender as required by Section 3.4.2 to
evidence Borrower's obligation to repay such Lender's Term Loan.
THIS AGREEMENT -- this document (including every document that is stated
herein to be an appendix, exhibit or schedule hereto, whether or not
physically attached to this document).
UCC -- the Uniform Commercial Code as in effect from time to time in the
State of Illinois or such other similar statute as in effect from time to
time in Illinois or any other appropriate jurisdiction.
UNITED STATES -- when used in a geographical sense, all the states of the
United States of America and the District of Columbia; and when used in a
legal jurisdictional sense, the government of the country that is the United
States of America.
UPFRONT FEE -- the fee payable to Administrative Agent as required in
Section 5.1.
WAGE AND HOUR LAWS -- the Xxxxx-Xxxxx Act, the Service Contract Act, the
Contract Work Hours & Safety Standards Act and any other federal Law
governing wage compensation or hours of work.
WELFARE BENEFIT PLAN -- any plan described by Section 3(1) of ERISA.
xii
EXHIBIT 3
---------
LENDERS' COMMITMENTS AND PRO-RATA SHARES
--------------------------------------------------------------------------------------------------------------
REVOLVING LOAN TERM LOAN PRO-RATA
LENDER TOTALS COMMITMENT COMMITMENT SHARES
--------------------------------------------------------------------------------------------------------------
LaSalle Bank National
Association $47,500,000.00 $31,666,666.67 $15,833,333.33 31.666666667%
--------------------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. $32,500,000.00 $21,666,666.67 $10,833,333.33 21.666666667%
--------------------------------------------------------------------------------------------------------------
UMB Bank, National
Association $29,000,000.00 $19,333,333.33 $9,666,666.67 19.333333333%
--------------------------------------------------------------------------------------------------------------
National City Bank of
the Midwest $18,000,000.00 $12,000,000.00 6,000,000.00 12.000000000%
--------------------------------------------------------------------------------------------------------------
Union Planters Bank,
N.A. $23,000,000.00 $15,333,333.33 7,666,666.67 15.333333333%
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
AGGREGATES $150,000,000.00 $100,000,000.00 $50,000,000.00 100.000000000%
--------------------------------------------------------------------------------------------------------------
i
EXHIBIT 7.10
FORM OF ADVANCE REQUEST
Xxxxx' Xxxxxx
XxXxxxx Bank National Association, as Administrative Agent
000 X. XxXxxxx
Xxxxxxx, XX 00000
Via Fax Transmission: (000) 000-0000
Dear Xxxxx':
Please effect the following transactions under our Amended and Restated Loan
Agreement dated as of January 27, 2005, as amended from time to time. All
movement of funds should take place through our DDA # ___________.
REVOLVER TERM
-------- --------
Base Rate Option (12:00 noon same day notification)
Effective Date:
----------------
Current Balance:
----------------
Advance/(Payment) Amt: (min. $500,000)
----------------
Ending Balance
----------------
Swing Line (12:00 noon same day notification) (BASE RATE ONLY)
Effective Date:
----------------
Current Balance:
----------------
Advance/(Payment) Amt: (min. $500,000)
----------------
Ending Balance
----------------
Eurodollar Rate Option 12:00 noon 3 business days notification -
limit 5 Interest Periods
Effective Date:
----------------
Maturing Amount:
----------------
Increase/(Decrease) Amt: (increments: $500,000)
----------------
Conversion from/(to) Prime:
----------------
New Eurodollar Amount: (min: $1,000,000)
----------------
Interest Period: (one (1) month, two
----------------(2) months, three (3)
months or six (6)
months)
Maturity Date: to be set by Bank
All-In Rate: to be set by Bank
Sincerely,
Xxxxxxxx Corporation
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
i
EXHIBIT 8.1.1
DOCUMENTS AND REQUIREMENTS LIST
1) Master Assignment and Assumption Agreement.
2) Amended and Restated Loan Agreement, together with all exhibits and
schedules (including the Disclosure Schedule).
3) $31,666,666.67 Amended and Restated Revolving Note payable to
LaSalle Bank National Association.
4) $21,666,666.67 Amended and Restated Revolving Note payable to Xxxxx
Fargo Bank, N.A.
5) $19,333,333.33 Amended and Restated Revolving Note payable to UMB
Bank, National Association.
6) $12,000,000.00 Revolving Note payable to National City Bank of the
Midwest.
7) $15,333,333.33 Revolving Note payable to Union Planters Bank, N.A.
8) $15,833,333.33 Term Note payable to LaSalle Bank National Association.
9) $10,833,333.33 Term Note payable to Xxxxx Fargo Bank, N.A.
10) $9,666,666.67 Term Note payable to UMB Bank, National Association.
11) $6,000,000.00 Term Note payable to National City Bank of the Midwest.
12) $7,666,666.67 Term Note payable to Union Planters Bank, N.A.
13) Reaffirmation of Guaranty executed by Angelica Textile Services,
Inc., a New York corporation, Angelica Textile Services, Inc., a
California corporation, Southern Service Company, a California
corporation, and Angelica Realty Co., a California corporation.
14) Borrower's Closing Certificate.
15) Solvency Certificate.
16) Legal Opinion of ThompsonCoburn, Borrower's and each Guarantors'
counsel.
17) Current Insurance Certificates for Borrower and each Covered Person
evidencing that Borrower and each Covered Person has in force
insurance meeting the applicable requirements of the Loan Agreement,
showing LaSalle Bank National Association, as administrative agent
for itself and the other lenders, as additional insured on all
liability policies.
18) Secretary's Certificate (certifying resolutions, Articles or
Certificate of Incorporation, Bylaws and Incumbency) for Borrower
19) Secretary's Certificate (certifying resolutions, Articles or
Certificate of Incorporation, Bylaws and Incumbency) for Xxxxxxxx
Textile Services, Inc., a New York corporation.
i
20) Secretary's Certificate (certifying resolutions, Articles or
Certificate of Incorporation, Bylaws and Incumbency) for Xxxxxxxx
Textile Services, Inc., a California corporation.
21) Secretary's Certificate (certifying resolutions, Articles or
Certificate of Incorporation, Bylaws and Incumbency) for Southern
Service Company, a California corporation.
22) Secretary's Certificate (certifying resolutions, Articles or
Certificate of Incorporation, Bylaws and Incumbency) for Angelica
Realty Co., a California corporation.
23) Good Standing Certificates for Borrower from the Secretary of State
of Missouri.
24) Good Standing Certificates for Xxxxxxxx Textile Services, Inc., a New
York corporation from the Secretary of State of New York.
25) Good Standing Certificates for Angelica Textile Services, Inc., a
California corporation from the Secretary of State of California.
26) Good Standing Certificates for Southern Service Company, a California
corporation from the Secretary of State of California.
27) Good Standing Certificates for Angelica Realty Co., a California
corporation from the Secretary of State of California.
28) Initial Compliance Certificate for the financial covenants in
Sections 14.2, 14.3 and 14.4 (pro-forma as the close of the fiscal
quarter closest to October 31, 2004, to include all acquisitions
closed since October 31, 2004 through the Effective Date).
29) UCC, tax lien, judgment lien, and pending suit searches for the
following:
a) XXXXXXXX CORPORATION
i) Secretary of State of Missouri
ii) St. Louis County, Missouri
iii) City of St. Louis, Missouri
b) XXXXXXXX TEXTILE SERVICES, INC. (UCC ONLY)
i) Secretary of State of New York
ii) Secretary of State of California
c) SOUTHERN SERVICE COMPANY (UCC ONLY)
i) Secretary of State of California
d) ANGELICA REALTY CO. (UCC ONLY)
i) Secretary of State of California
ii
EXHIBIT 10
DISCLOSURE SCHEDULE OF BORROWER
i
EXHIBIT 12.11
FORM OF COMPLIANCE CERTIFICATE
TO: LaSalle Bank National Association, as Administrative Agent
This Compliance Certificate is furnished pursuant to that certain Amended
and Restated Loan Agreement effective January 27, 2005 (as it may be
amended, modified, restated or replaced from time to time, the Loan
Agreement), among Xxxxxxxx Corporation, a Missouri corporation (Borrower),
LaSalle Bank National Association, as Administrative Agent for itself and
the other Lenders (Administrative Agent) and the Lenders as defined in the
Loan Agreement (Lenders). Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings defined in the Loan
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the [CHIEF FINANCIAL OFFICER] [TREASURER] of
Borrower.
2. I have reviewed the terms of the Loan Agreement and the
Loan Documents and I have made, or have caused to be made
under my supervision, a review of the transactions and
conditions of Borrower and each other Covered Person
during the accounting period covered by the attached
Financial Statements.
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any
condition or event which constitutes an Default or Event
of Default as of the date of this Compliance Certificate;
and to my knowledge all of the Representations and
Warranties (including those of each Guarantor in its
Guaranty) are true.
4.
5. Borrower and every other Covered Person is in compliance
with all of the covenants in the Loan Agreement, including
the financial covenants in Section 14, and Schedule II
attached hereto contains calculations based on Borrower's
financial statements and other financial records that show
Borrower's compliance with such financial covenants. The
calculations and the data upon which they are based are
believed by me to be complete and correct.
This Compliance Certificate, together with the Schedules hereto, is executed
and delivered this day of .
---------------------
Xxxxxxxx Corporation, a Missouri corporation
By:
------------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
ii
SCHEDULE I TO COMPLIANCE CERTIFICATE
------------------------------------
See current Financial Statements.
i
SCHEDULE II TO COMPLIANCE CERTIFICATE
-------------------------------------
All calculations done in accordance with GAAP on a consolidated basis,
in accordance with the provisions of the Amended and Restated Loan Agreement
and based on the period ended __________________. Any inconsistencies
between the descriptions of the items set forth in this Schedule II and the
terms of any of Sections 14.1 through 14.4 shall be resolved in favor of the
terms set forth in Sections 14.1 through 14.4. Reference should be made to
Sections 14.1 through 14.4 of the Amended and Restated Loan Agreement for
more specific instructions regarding the calculation periods and how the
components of the financial covenants should be calculated.
NOTE: BORROWER SHALL ALSO INCLUDE THE CALCULATION NECESSARY FOR THE
CALCULATIONS IN SECTION 4.6 AND SECTION 5.2.
I. EBITDA (for preceding four fiscal quarters):
(i) Net Income $_________
(ii) Federal, State and Local Income
Tax expense accrued for as a liability $_________
(iii) Interest Expense $_________
(iv) Amortization of goodwill and
other intangible assets and depreciation
expense taken or accrued for in such period,
without duplication $_________
(v) Extraordinary non-cash losses in such period incurred
or accrued for in such period, without duplication $_________
(vi) Losses from Discontinued Operations $_________
(vii) Sum of Items (i), (ii), (iii), (iv), (v), and (vi) $_________
(viii) Extraordinary income/gain in such period incurred
or accrued for in such period, without duplication $_________
(ix) Income from Discontinued Operations $_________
(x) Item (viii) minus Items (ix) and (x)
EBITDA $_________
II. MINIMUM FIXED CHARGES COVERAGE (SECTION 14.2)
A. EBITDA for preceding four fiscal quarters
per Item I $_________
B. Fixed Charges for preceding four fiscal quarters:
1. Interest Expense $_________
2. Sum of all scheduled principal payments
on long term Indebtedness of Borrower $_________
3. Federal, State and Local Income
Taxes expense paid $_________
4. Stock Dividends and Redemptions/Distributions
paid or accrued for, without duplication $_________
5. For each fiscal quarter (which represents a
pre-agreed to amount of maintenance
capital expenditures) $2,000,000
per quarter
i
(or $8,000,000
for four quarters)
6. Rental expense
7. FIXED CHARGES (Sum of items 1 through 7) $_________
C. Ratio of Item A to Item B.5. ___:1.0
D. Minimum Ratio required by Section 14.2 for such period ___:1.0
III. FUNDED INDEBTEDNESS TO EBITDA (SECTION 14.3)
A. Funded Indebtedness as of the calculation date $_________
B. EBITDA for preceding four fiscal quarters
per Item I $_________
C. Ratio of Item A to Item B $_________
D. Maximum Ratio of Funded Indebtedness
to EBITDA permitted by Section 14.3 ___:1.0
IV. MINIMUM NET WORTH (SECTION 14.4)
A. Actual Net Worth $_________
B. Minimum Net Worth Required by Section 14.4
(i) $________________, and (ii) as of any
other fiscal quarter end after October
31, 2004, an amount of not less than the
sum of (x) Fifty Percent (50%) of Net
Income during the fiscal quarter
then-ended plus (y) the minimum Net Worth
required as of the prior fiscal quarter
after taking into account clause (x)
above for such prior fiscal quarter,
which is cumulative from and including
the fiscal quarter ending on or most
recently before October 31, 2004, plus
(z) 90% of the net proceeds of any
issuance of equity interests in the
Borrower issued after the Effective Date.
If Net Income is a negative number for
any fiscal quarter (e.g. a loss) such
amount shall not reduce Borrower's Net
Worth for that fiscal quarter, and shall
be disregarded for all future Net Worth
calculations so that any such negative
number shall not reduce the minimum Net
Worth required hereunder for any
subsequent fiscal quarter
V. PERMITTED ACQUISITIONS (SECTION 13.5).
A. Aggregate Purchase Price of all
Acquisitions since the Effective Date $_________
B. Aggregate Purchase Price of Permitted Acquisitions in
ii
current Loan Year with negative EBITDA $_________
"purchase price" includes, without limitation, any deferred purchase
price, seller notes, assumed Indebtedness, or similar items.
iii
EXHIBIT 18.4.1
FORM
ASSIGNMENT AND ACCEPTANCE
DATED: ___________, ______
Amended and Restated Loan Agreement effective January 27, 2005 (as
it may be amended, modified, restated or replaced from time to time, the
Loan Agreement) among Xxxxxxxx Corporation, a Missouri corporation
(Borrower), LaSalle Bank National Association, as Administrative Agent for
itself and the other Lenders (Administrative Agent), and the Lenders as
defined in the Loan Agreement (Lenders). Terms defined in the Loan Agreement
are used herein with the same meaning.
The Assignor and the Assignee referred to on Schedule 1 agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly
set forth herein, and the Assignee hereby purchases and assumes
from the Assignor, an interest in and to the Assignor's rights and
obligations under the Loan Agreement and the other Loan Documents
as of the date hereof equal to the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the Loan
Agreement and the other Loan Documents. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of
the Loans owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made
in or in connection with the Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any other instrument or document
furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of any Covered Person or the performance or
observance by any Covered Person of any of its obligations under
the Loan Documents or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Note(s) held by the
Assignor and requests that Administrative Agent exchange such
Note(s) for new Note(s) payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement, together with copies of the financial statements
referred to in Section thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance;
(ii) agrees that it will, independently and without reliance upon
Administrative Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Loan Agreement; (iii) confirms that it is
an Eligible Assignee; (iv) appoints and authorizes Administrative
Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Agreement as are
delegated to Administrative Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their
terms all of
i
the obligations that by the terms of the Loan Agreement are required
to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section
4. Following the execution of this Assignment and Acceptance, it will
be delivered to Administrative Agent for acceptance and recording
by Administrative Agent. The effective date for this Assignment and
Acceptance (the Effective Date) shall be the date of acceptance
hereof by Administrative Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Loan
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Loan Agreement.
6. Upon such acceptance and recording by Administrative Agent, from
and after the Effective Date, Administrative Agent shall make all
payments under the Loan Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Loan Agreement and
the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Illinois.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of
Schedule 1 to this Assignment and Acceptance by telecopier shall be
effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
ii
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage of Aggregate Commitment to be held by Assignee upon the
effectiveness of the assignment: ________%
Percentage of Aggregate Commitment to be held by Assignor the
effectiveness of the assignment: ________%
Assignee's Total Commitment after the effectiveness of the
Assignment: $________
Assignee's Revolving Loan Commitment after the effectiveness of
the Assignment: $________
Assignee's Term Loan Commitment after the effectiveness of the
Assignment: $________
Assignor's Total Commitment after the effectiveness of the
Assignment: $________
Assignor's Revolving Loan Commitment after the effectiveness of the
Assignment: $________
Assignor's Term Loan Commitment after the effectiveness of the
Assignment: $________
Aggregate outstanding principal amount of the Revolving Loans
assigned: $________
Aggregate outstanding principal amount of the Term Loans assigned: $________
Principal amount of Revolving Note payable to Assignee: $________
Principal amount of Term Note payable to Assignee: $________
Principal amount of Revolving Note payable to Assignor: $________
Principal amount of Term Note payable to Assignor: $________
Effective Date (if other than date of
acceptance by Administrative Agent): * _________________,__________
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------------
Title:
------------------------------
Dated: ,
----------- -----
iii
[NAME OF ASSIGNEE], as Assignee
By:
---------------------------------
Title:
------------------------------
Applicable Lending Office:
iv
*This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to Administrative Agent.
Accepted [and Approved]
This ___ day of ______________ , _____
LaSalle Bank National Association, as Administrative Agent
By:
----------------------------------------
Title:
-------------------------------------
Accepted [and Approved]**
This ___ day of ______________ , _____
________________, for itself and each of the Borrower
By:
----------------------------------------
Title:
-------------------------------------
**Approval of Borrower required only if there is no Existing Default.
v
