EXHIBIT 10.1
------------
CREDIT AGREEMENT
between
XXXXXXXX, INC.
and
LASALLE BANK NATIONAL ASSOCIATION
April 13, 2004
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND DETERMINATIONS. . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . 1
1.2 Time Periods . . . . . . . . . . . . . . . . . 8
1.3 Accounting Terms and Determinations. . . . . . 9
1.4 References . . . . . . . . . . . . . . . . . . 9
1.5 Bank's Discretion. . . . . . . . . . . . . . . 9
ARTICLE II REVOLVING LOAN AND TERMS OF PAYMENT . . . . . . . . . 9
2.1 Revolving Loan . . . . . . . . . . . . . . . . 9
2.2 Conditions of Advances of the Revolving Loan . 9
2.3 Use of Proceeds. . . . . . . . . . . . . . . . 10
2.4 Interest . . . . . . . . . . . . . . . . . . . 10
2.5 LIBOR Loans; Euro Loans. . . . . . . . . . . . 11
2.6 Principal and Interest Payments. . . . . . . . 13
2.7 Prepayments. . . . . . . . . . . . . . . . . . 13
2.8 Denomination and Timing of Payments. . . . . . 14
2.9 Payments after Event of Default. . . . . . . . 14
ARTICLE III CONDITIONS OF INITIAL FUNDING . . . . . . . . . . . . 14
3.1 Delivery of Documents. . . . . . . . . . . . . 14
3.2 Searches . . . . . . . . . . . . . . . . . . . 15
3.3 Opinions of Counsel. . . . . . . . . . . . . . 15
3.4 Approvals and Consents . . . . . . . . . . . . 15
3.5 Financial Statements, Reports and Projections. 15
3.6. Material Adverse Effect. . . . . . . . . . . . 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . 15
4.1 Existence and Power. . . . . . . . . . . . . . 15
4.2 Authority. . . . . . . . . . . . . . . . . . . 15
4.3 Subsidiaries . . . . . . . . . . . . . . . . . 15
4.4 Binding Agreements . . . . . . . . . . . . . . 16
4.5 Compliance with Laws . . . . . . . . . . . . . 16
4.6 Permits and Franchises . . . . . . . . . . . . 16
4.7 Title to Property; Liens . . . . . . . . . . . 16
4.8 Insurance. . . . . . . . . . . . . . . . . . . 16
4.9 Financial Statements . . . . . . . . . . . . . 16
4.10 No Event of Default or Material Adverse Effect 16
4.11 Litigation . . . . . . . . . . . . . . . . . . 16
4.12 Defaults in Other Agreements; Consents;
Conflicting Agreements . . . . . . . . . . . . 16
4.13 Taxes. . . . . . . . . . . . . . . . . . . . . 16
4.14 Environmental Matters. . . . . . . . . . . . . 17
4.15 Application of Certain Laws and Regulations. . 17
4.16 Margin Regulations . . . . . . . . . . . . . . 17
4.17 ERISA Compliance . . . . . . . . . . . . . . . 18
4.18 Employee Matters . . . . . . . . . . . . . . . 18
ARTICLE V AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . 18
5.1 Legal Existence; Good Standing . . . . . . . . 18
5.2 Inspection . . . . . . . . . . . . . . . . . . 18
5.3 Financial Statements and Other Information . . 19
5.4 Insurance. . . . . . . . . . . . . . . . . . . 21
5.5 Environmental Matters. . . . . . . . . . . . . 21
5.6 Compliance with Laws . . . . . . . . . . . . . 21
5.7 Taxes and Claims . . . . . . . . . . . . . . . 21
5.8 Maintenance of Accounts. . . . . . . . . . . . 21
5.9 Further Assurance. . . . . . . . . . . . . . . 21
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PAGE
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ARTICLE VI NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . 22
6.1 Debt . . . . . . . . . . . . . . . . . . . . . 22
6.2 Liens. . . . . . . . . . . . . . . . . . . . . 22
6.3 Negative Pledges . . . . . . . . . . . . . . . 23
6.4 Mergers, Consolidations and Acquisitions . . . 23
6.5 Sale or Transfer of Assets . . . . . . . . . . 24
6.6 Restricted Payments. . . . . . . . . . . . . . 24
6.7 Fundamental Business Changes; Fiscal Year. . . 24
6.8 Amendment of Certain Agreements. . . . . . . . 24
6.9 Transactions with Affiliates . . . . . . . . . 24
6.10 Minimum Tangible Net Worth . . . . . . . . . . 24
ARTICLE VII DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . . 24
7.1 Events of Default. . . . . . . . . . . . . . . 24
7.2 Acceleration of Borrower's Obligations . . . . 26
7.3 Remedies on Default. . . . . . . . . . . . . . 26
7.4 Application of Funds . . . . . . . . . . . . . 27
7.5 Performance of Borrower's Obligations. . . . . 27
ARTICLE VIII EXPENSES AND INDEMNITY . . . . . . . . . . . . 27
8.1 Attorney's Fees and Other Fees and Expenses. . 27
8.2 Indemnity. . . . . . . . . . . . . . . . . . . 28
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 29
9.1 Notices. . . . . . . . . . . . . . . . . . . . 29
9.2 Survival of Credit Agreement; Indemnities. . . 29
9.3 Taxes and Fees . . . . . . . . . . . . . . . . 30
9.4 Severability . . . . . . . . . . . . . . . . . 30
9.5 Waiver . . . . . . . . . . . . . . . . . . . . 30
9.6 Modification of Credit Documents . . . . . . . 30
9.7 Captions . . . . . . . . . . . . . . . . . . . 30
9.8 Successors and Assigns . . . . . . . . . . . . 30
9.9 Remedies Cumulative. . . . . . . . . . . . . . 30
9.10 Entire Agreement; Conflict . . . . . . . . . . 30
9.11 Applicable Law . . . . . . . . . . . . . . . . 30
9.12 Jurisdiction and Venue . . . . . . . . . . . . 31
9.13 Waiver of Right to Jury Trial. . . . . . . . . 31
9.14 Consequential Damages. . . . . . . . . . . . . 31
9.15 Counterparts . . . . . . . . . . . . . . . . . 31
9.16 No Fiduciary Relationship. . . . . . . . . . . 31
9.17 Sale of Note; Participations . . . . . . . . . 31
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LIST OF EXHIBITS AND SCHEDULES
Exhibit 1.1(A) - Form of Compliance Certificate
Exhibit 1.1(B) - Form of EURIBOR Election Notice
Exhibit 1.1(C) - Form of LIBOR Election Notice
Exhibit 1.1(D) - Form of Notice of Borrowing
Exhibit 1.1(E) - Form of Revolving Loan Note
Exhibit 1.1(F) - Form of Subsidiary Guaranty
Schedule 4.3 - Subsidiaries
Schedule 6.1 - Debt
Schedule 6.2 - Liens
iii
CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT, dated as of April 13, 2004, is between
XXXXXXXX, INC., a Delaware corporation ("Borrower"), and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association ("Bank").
PRELIMINARY STATEMENT:
Bank has agreed to extend to Borrower a $25,000,000 unsecured line of
credit, available in Dollars or the Equivalent of Dollars in Euros, upon
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS AND DETERMINATIONS
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1.1 DEFINITIONS. As used in this Credit Agreement and in the other
Credit Documents, unless otherwise expressly indicated herein or therein,
the following terms shall have the following meanings (such meanings to be
applicable equally to both the singular and plural forms of the terms
defined):
ACQUIRED DEBT: means mortgage Debt or Debt with respect to
Capitalized Leases of a Person existing at the time such Person
became a Wholly-Owned Subsidiary of Borrower or assumed by Borrower
or a Wholly-Owned Subsidiary of Borrower pursuant to an Acquisition
(and not created or incurred in connection with or in anticipation of
such Acquisition).
ACQUISITION: means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (i) the acquisition of all or substantially all of the assets of a
Person, or of all or substantially all of any business or division of
a Person, (ii) the acquisition of 10% or more of outstanding capital
stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary or
entering into a joint venture with another Person, or (iii) a merger
or consolidation or any other combination with another Person (other
than a Person that is a Subsidiary).
ADVANCE: means any advance of the Revolving Loan, which
advance shall be comprised of a Base Rate Loan, a LIBOR Loan or a
Euro Loan.
AFFILIATE: means, as to any Person (i) any other Person which,
directly or indirectly, controls or is controlled by or is under
common control with such Person and (ii) any officer or director of
such Person. The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means
the having the possession, direct or indirect, of the power to vote
5% or more of the Voting Stock of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
BANK: has the meaning assigned to that term in the Preamble to
this Credit Agreement.
BANKRUPTCY CODE: means the United States Bankruptcy Code and
any successor statute thereto, and the rules and regulations issued
thereunder, as in effect from time to time.
BASE RATE: means, at any time, the greater of (i) the Federal
Funds Rate plus 0.50% per annum and (ii) the Prime Rate.
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BASE RATE LOAN: means a portion of the Principal Balance
denominated in Dollars which bears interest determined by reference
to the Base Rate.
BASIC FINANCIAL STATEMENTS: has the meaning assigned to that
term in subsection 5.3.2.
BORROWER: has the meaning assigned to that term in the
Preamble to this Credit Agreement.
BORROWER'S OBLIGATIONS: means (i) any and all Debt due or to
become due, whether contingent or otherwise, now existing or
hereafter arising, of Borrower and its Subsidiaries to Bank pursuant
to the terms of this Credit Agreement or any other Credit Document
and (ii) the performance of the covenants of Borrower and its
Subsidiaries contained in the Credit Documents.
BUSINESS DAY: means a day of the year on which banks are not
required or authorized by law to close in Chicago, Illinois and, if
the applicable Business Day relates to any (i) LIBOR Loan, on which
dealings are carried on in the London interbank market and banks are
open for business in London for trading in Dollar deposits or (ii)
Euro Loan, on which dealings are carried on in the London interbank
market and banks are open for business in London and in Frankfurt,
Germany for trading in Euro deposits.
CAPITALIZED LEASE: means, with respect to any Person, any
lease of (or other agreement conveying the right to use) any real or
personal property by such Person that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of such Person.
CLOSING DATE: means the date of this Agreement.
CODE: means the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, and the rules and regulations issued
thereunder, as in effect from time to time.
COMPLIANCE CERTIFICATE: means a compliance certificate
executed by Borrower in the form of EXHIBIT 1.1(A) attached hereto.
CREDIT AGREEMENT: means this Credit Agreement and any
amendments or supplements hereto.
CREDIT DOCUMENTS: means this Credit Agreement, the Revolving
Loan Note, the Subsidiary Guaranty, each Hedging Agreement between
any Credit Party and Bank and such other instruments and documents as
Bank reasonably may require in connection with the transactions
contemplated by this Credit Agreement.
CREDIT PARTY: means (i) Borrower, (ii) Homebuyer's Preferred,
Inc., Healthy Home Air, Inc., Xxxxxxxx International LLC and (iii)
each of Borrower's Subsidiaries, organized under the laws of the
United States or a political subdivision thereof, acquired after the
Closing Date (whether or not such after-acquired Subsidiary is a
Wholly-Owned Subsidiary of Borrower).
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DEBT: means, with respect to any Person, without duplication
(i) all indebtedness of such Person for borrowed money, whether or
not evidenced by bonds, debentures, notes or similar instruments,
including all lines of credit, whether or not any amount is
outstanding thereunder, (ii) all obligations of such Person as lessee
under Capitalized Leases which have been or should be recorded as
liabilities on a balance sheet of such Person in accordance with
GAAP, (iii) all obligations of such Person to pay the deferred
purchase price of property or services (excluding (A) trade accounts
payable in the ordinary course of business and (B) deferred contract
revenue in the ordinary course of business), (iv) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (v) all
obligations, contingent or otherwise, with respect to the available
face amount of all letters of credit (whether or not drawn) and
banker's acceptances issued for the account of such Person, (vi) all
Hedging Obligations of such Person, (vii) all Suretyship Liabilities
of such Person and (viii) all Debt of any partnership of which such
Person is a general partner.
DEFAULT RATE: means with respect to (i) each Base Rate Loan
and all other Borrower's Obligations other than LIBOR Loans and Euro
Loans, a per annum rate equal to the Base Rate in effect from time to
time plus 2.00% per annum, (ii) each LIBOR Loan, a per annum rate
equal to the LIBO Rate applicable thereto plus 3.25% per annum and
(iii) each Euro Loan, a per annum rate equal to the EURIBO Rate
applicable thereto plus 3.25% per annum.
DEFAULT RATE PERIOD: means a period of time commencing on the
date that an Event of Default has occurred and ending on the date
that such Event of Default is cured or waived.
DOLLARS and the sign "$": each mean lawful currency of the
United States.
ENVIRONMENTAL LAWS: means any and all federal, state and local
laws that relate to or impose liability or standards of conduct
concerning public or occupational health and safety or protection of
the environment, as now or hereafter in effect and as have been or
hereafter may be amended or reauthorized and all rules, regulations,
codes, ordinances and guidance documents promulgated or published
thereunder, and the provisions of any licenses, permits, orders and
decrees issued pursuant to any of the foregoing.
EQUIVALENT: means (i) of Dollars in Euros on any date means
the equivalent of Dollars in Euros determined by using the quoted
spot rate at which Bank's principal office in Chicago, Illinois
offers to exchange Dollars for Euros in Chicago, Illinois during
United States trading hours (approximately 8:00 a.m. to 5:00 p.m.
Eastern Standard Time) on such date as is required pursuant to the
terms of this Credit Agreement, and (ii) of Euros in Dollars means
the equivalent of Euros in Dollars determined by using the quoted
spot rate at which Bank's principal office in Chicago, Illinois
offers to exchange such Euros for Dollars in Chicago, Illinois during
United States trading hours (approximately 8:00 a.m. to 5:00 p.m.
Eastern Standard Time) on such date as is required pursuant to the
terms of this Credit Agreement.
ERISA: means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, and the rules
and regulations issued thereunder, as in effect from time to time.
ERISA AFFILIATE: means any Person who is a member of a group
which is under common control with Borrower, who together with
Borrower is treated as a single employer within the meaning of
Section 414(b), (c) and (m) of the Code.
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EURIBO RATE: means, for any Interest Period, a rate of
interest equal to (i) the per annum rate of interest at which Euro
deposits in an amount comparable to the amount of the relevant Euro
Loan and for a period equal to the relevant Interest Period are
offered in the London interbank market at approximately 11:00 a.m.
London time, on the applicable Interest Rate Determination Date, as
displayed in the BLOOMBERG FINANCIAL MARKETS system or, if the
BLOOMBERG FINANCIAL MARKETS system is not available, the Reuters 3000
Xtra LIBOR page (or another authoritative source selected by Bank in
its sole discretion), divided by (ii) a number determined by
subtracting from 1.00 the then stated Eurocurrency Rate Reserve
Percentage, such rate to remain fixed for such Interest Period, or,
if neither the Bloomberg Financial Markets system nor the Reuters
Xtra LIBOR page are available the EUROIBO Rate is otherwise
determined by Bank from reliable sources chosen by Bank in the
exercise of its reasonable discretion. Bank's determination of the
EURIBO Rate shall be conclusive, absent manifest error.
EURIBOR ELECTION NOTICE: a notice by Borrower to Bank to have
a portion of the Principal Balance bear interest at a EURIBO Rate, in
the form of EXHIBIT 1.1(B).
EURO: means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as
referred to in the EMU legislation.
EUROCURRENCY RATE RESERVE PERCENTAGE: means, as of any
Interest Rate Determination Date with respect to any Interest Period
as applied to a LIBOR Loan or a Euro Loan, the then stated maximum
reserve percentage for determining reserves required to be maintained
by Bank 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.
EURO LOAN: means a portion of the Principal Balance
denominated in Euros which bears interest determined by reference to
a EURIBO Rate.
EVENT OF DEFAULT: means any of the Events of Default set forth
in Section 7.1.
FEDERAL FUNDS RATE: means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor publication, "H.15(519)") on the
preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day
will be the arithmetic mean as determined by Bank of the rates for
the last transaction in overnight Federal funds arranged prior to
9:00 a.m. New York City time on that day by each of three leading
brokers of Federal funds transactions in New York City selected by
Bank.
FISCAL QUARTER: means each three month accounting period of
Borrower ending on the last day of December, March, June and
September of each year.
FISCAL YEAR: means each fiscal accounting year of Borrower
consisting of twelve months and ending on the last day of September
of each year.
FRENCH ACQUISITION: means the Acquisition by Borrower of the
remaining interests in LCIE-Xxxxxxxx, Ltd. not already owned by
Borrower.
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FUNDING DATE: means the date of disbursement of any Advance,
which shall be a Business Day.
GAAP: means generally accepted accounting principles in effect
from time to time, which shall include but shall not be limited to
the official interpretations thereof by the Financial Accounting
Standards Board or any successor thereto.
GERMAN ACQUISITION: means the Acquisition by Borrower of the
radiation monitoring business in Nordrhein-Westfalen of
Materialprufungsamt.
GOVERNMENTAL BODY: means any foreign, federal, state,
municipal or other government, or any department, commission, board,
bureau, agency, public authority or instrumentality thereof or any
court or arbitrator.
HAZARDOUS MATERIALS: means any hazardous, toxic, dangerous or
other waste, substance or material defined as such in, regulated by
or for purposes of any Environmental Law.
HEDGING AGREEMENT: means any interest rate, currency or
commodity swap agreement, cap agreement or collar agreement, and any
other agreement or arrangement designed to protect a Person against
fluctuations in interest rates, currency exchange rates or commodity
prices.
HEDGING OBLIGATION: means, as to any Person, any liability of
such Person under any Hedging Agreement.
INCIPIENT DEFAULT: means any event or condition which, with
the giving of notice or the lapse of time, or both, would become an
Event of Default.
INTANGIBLE ASSETS: means, with respect to Borrower and its
Subsidiaries, goodwill, deferred income taxes, licenses, patents,
trademarks, copyrights, and other like intangibles shown on the
consolidated balance sheet of Borrower prepared in accordance with
GAAP. Notwithstanding the foregoing, it is expressly understood and
agreed that investments in joint ventures shall not constitute
"Intangible Assets" for purposes of this Credit Agreement.
INTEREST PERIOD: means a period (i) commencing (A) on the
applicable Funding Date, if Borrower prior thereto has elected
pursuant to subsection 2.5.1 to have all or a portion of the Advance
to be disbursed on such date bear interest from such date at a LIBO
Rate or a EURIBO Rate, (B) with respect to the conversion of a Base
Rate Loan to a LIBOR Loan or the redenomination of a EURIBO Loan into
Dollars and the conversion of such EURIBO Loan to a LIBOR Loan, on
the Business Day specified by Borrower in the applicable LIBOR
Election Notice and (C) with respect to the continuation as a LIBOR
Loan or a Euro Loan of all or a portion of a then existing LIBOR Loan
or Euro Loan after the expiration of the Interest Period applicable
to such existing LIBOR Loan or Euro Loan, on the last day of the
Interest Period applicable to such existing LIBOR Loan or Euro Loan,
and (ii) ending one, two, three or six months thereafter, as selected
by Borrower in its LIBOR Election Notice or EURIBOR Election Notice;
provided, however:
(a) if any Interest Period otherwise would end on a day
that is not a Business Day, such Interest Period shall end on
the next succeeding Business Day, unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
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(b) any Interest Period that begins on a day for which
there is no numerically corresponding day in the last month of
such Interest Period shall end on the last Business Day of the
last month of such Interest Period;
(c) Interest Periods for LIBOR Loans and Euro Loans
disbursed on the same date shall be of the same duration; and
(d) Borrower may not select any Interest Period that
ends after the Maturity Date.
INTEREST RATE DETERMINATION DATE: means the date for
determining a LIBO Rate or a EURIBO Rate, which date shall be two
Business Days prior to the date of commencement of the applicable
Interest Period.
LIBOR ELECTION NOTICE: a notice by Borrower to Bank to have a
portion of the Principal Balance bear interest at a LIBO Rate, in the
form of Exhibit 1.1(C).
LIBOR LOAN: a portion of the Principal Balance denominated in
Dollars which bears interest determined by reference to a LIBO Rate.
LIBO RATE: means, for any Interest Period, a rate of interest
equal to (i) the per annum rate of interest at which 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 approximately 11:00 a.m. London
time on the applicable Interest Rate Determination Date, as displayed
in the BLOOMBERG FINANCIAL MARKETS system (or other authoritative
source selected by Bank in its sole discretion), divided by (ii) a
number determined by subtracting from 1.00 the then stated
Eurocurrency Rate Reserve Percentage, such rate to remain fixed for
such Interest Period, or as the LIBO Rate is otherwise determined by
Bank in its sole and absolute discretion. Bank's determination of
the LIBO Rate shall be conclusive, absent manifest error.
LIEN: means any mortgage, deed of trust, pledge, assignment,
lien, charge, encumbrance or security interest of any kind, or the
interest of a vendor or lessor under any conditional sale agreement,
Capitalized Lease or other title retention agreement.
MATERIAL ADVERSE EFFECT: means (i) a material adverse effect
upon the business, operations, Property, profits or financial
condition of the Credit Parties taken as a whole or upon the
validity, enforceability or priority of the Credit Documents or (ii)
a material impairment of the ability of Borrower or any other Credit
Party to perform its obligations under any Credit Document to which
it is a party or of Bank to enforce, against Borrower or any other
Credit Party, or to collect, any of Borrower's Obligations.
MATURITY DATE: means the earlier of (i) April 12, 2005 or (ii)
the date on which Borrower's Obligations are accelerated pursuant to
this Credit Agreement.
MULTIEMPLOYER PLAN: means any multiemployer plan as defined
pursuant to Section 3(37) of ERISA to which Borrower or any ERISA
Affiliate makes, or accrues an obligation to make, contributions, or
has made, or been obligated to make, contributions within the
preceding six years.
NET WORTH: means, at any date, the amount which would be set
forth opposite the caption "stockholders' equity" on a consolidated
balance sheet of Borrower as of such date prepared in accordance with
GAAP.
NOTICE OF BORROWING: means a notice by Borrower to Bank
requesting an Advance, substantially in the form of EXHIBIT 1.1(D).
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PBGC: means the Pension Benefit Guaranty Corporation or any
Governmental Body succeeding to the functions thereof.
PLAN: means an employee benefit plan (as defined in
Section 3(3) of ERISA) which Borrower sponsors or maintains or to
which Borrower makes or is making, or is obligated to make,
contributions and includes and Pension Plan.
PENSION PLAN: means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Part 3 of
Title I of ERISA, Title IV of ERISA, or Section 412 of the Code and
which (i) is maintained for employees of Borrower or any ERISA
Affiliate, or (ii) has at any time within the preceding six years
been maintained for the employees of Borrower or any of its current
or former ERISA Affiliates.
PERMITTED LIENS: means any Lien permitted to exist under
Section 6.2.
PERSON: means any individual, firm, corporation, limited
liability company, business enterprise, trust, association, joint
venture, partnership, Governmental Body or other entity, whether
acting in an individual, fiduciary or other capacity.
PRIME RATE: means, for any day, the rate of interest in effect
for such day as publicly announced from time to time by Bank as its
prime rate (whether or not such rate is actually charged by Bank).
Any change in the Prime Rate announced by Bank shall take effect at
the opening of business on the day specified in the public
announcement of such change.
PRINCIPAL BALANCE: means the unpaid principal balance of the
Revolving Loan or any specified portion thereof outstanding from time
to time.
PROPERTY: means all types of real, personal or mixed property
and all types of tangible or intangible property.
REVOLVING LOAN: means the revolving loan made available by
Bank to Borrower pursuant to Section 2.1.
REVOLVING LOAN COMMITMENT: means Twenty-Five Million Dollars
($25,000,000).
REVOLVING LOAN NOTE: means the promissory note executed by
Borrower payable to the order of Bank in the amount of the Revolving
Loan Commitment, in the form of EXHIBIT 1.1(E) attached hereto.
SUBSIDIARY: means, as to any Person, a corporation,
partnership, limited liability company or other entity of which such
Person and/or its other Subsidiaries own, directly or indirectly,
such number of outstanding shares or other ownership interests as
have more than 50% of the ordinary voting power for the election of
directors or other managers of such corporation, partnership, limited
liability company or other entity. Unless the context otherwise
requires, each reference to Subsidiaries herein shall be a reference
to Subsidiaries of Borrower.
SUBSIDIARY GUARANTY: means a guaranty of Borrower's
Obligations executed by each Credit Party other than Borrower, in the
form of EXHIBIT 1.1(F) attached hereto.
7
SURETYSHIP LIABILITY: means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to or otherwise to invest in a debtor, or otherwise to
assure a creditor against loss) any indebtedness, obligation or other
liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment
of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation in respect of any
Suretyship Liability shall (subject to any limitation set forth
therein) be deemed to be the principal amount of the debt, obligation
or other liability supported thereby.
TANGIBLE NET WORTH: means at any date, the Net Worth of
Borrower at such date after subtracting therefrom the aggregate
amount at such date of all Intangible Assets of Borrower.
TERMINATION EVENT: means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder; or (ii)
the withdrawal of Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2); or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC; or (v) any other event or condition which
would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan; or (vi) the partial or complete withdrawal of Borrower
or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a lien pursuant to Section 412 of the Code or Section
302 of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections
4241 or 4245 of ERISA; or (ix) any event or condition which results
in the termination of a Multiemployer Plan under Section 4041A of
ERISA or the institution by the PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
VOTING STOCK: means capital stock issued by a corporation, or
equivalent interest in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
WHOLLY-OWNED SUBSIDIARY: means as to any Person, another
Person all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by such Person and/or another
Wholly-Owned Subsidiary of such Person.
1.2 TIME PERIODS. In this Credit Agreement and the other Credit
Documents, in the computation of periods of time from a specified date to a
later specified date, (i) the word "from" means "from and including," (ii)
the words "to" and "until" each mean "to, but excluding" and (iii) the
words "through," "end of" and "expiration" each mean "through and
including." Unless otherwise specified, all references in this Credit
Agreement and the other Credit Documents to (i) a "month" shall be deemed
to refer to a calendar month, (ii) a "quarter" shall be deemed to refer to
a calendar quarter and (iii) a "year" shall be deemed to refer to a
calendar year.
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1.3 ACCOUNTING TERMS AND DETERMINATIONS. All accounting terms not
specifically defined herein shall be construed, all accounting
determinations hereunder shall be made and all financial statements
required to be delivered pursuant hereto shall be prepared in accordance
with GAAP as in effect at the time of such interpretation, determination or
preparation, as applicable.
1.4 REFERENCES. All references in this Credit Agreement to
"Article," "Section," "subsection," "subparagraph," "clause" or "Exhibit,"
unless otherwise indicated, shall be deemed to refer to an Article,
Section, subsection, subparagraph, clause or Exhibit, as applicable, of
this Credit Agreement.
1.5 BANK'S DISCRETION. Whenever the terms "satisfactory to Bank,"
"determined by Bank," "acceptable to Bank," "Bank shall elect," "Bank shall
request," "at the option or election of Bank," or similar terms are used in
the Credit Documents, except as otherwise specifically provided therein,
such terms shall mean satisfactory to, at the election or option of,
determined by, acceptable to or requested by Bank, in its sole and
unlimited discretion.
ARTICLE II
REVOLVING LOAN AND TERMS OF PAYMENT
-----------------------------------
2.1 REVOLVING LOAN. Upon the terms and subject to the conditions
herein set forth, Bank agrees to make Advances to Borrower from time to
time from the Closing Date to the Maturity Date; provided that Bank shall
not be obligated to make any Advance if, after giving effect to such
Advance, the Principal Balance (based in respect of any Euro Loans on the
Equivalent in Dollars determined on the date of delivery of the applicable
Notice of Borrowing) would exceed the Revolving Loan Commitment then in
effect. Each Advance denominated in Dollars shall be either a Base Rate
Loan or a LIBOR Loan, and each Advance denominated in Euros shall be a Euro
Loan. The Revolving Loan shall be evidenced by the Revolving Loan Note.
Subject to the conditions set forth in this Credit Agreement, Borrower from
time to time may reborrow all or any portion of any Advance which is repaid
or prepaid.
2.2 CONDITIONS OF ADVANCES OF THE REVOLVING LOAN. The obligation
of Bank to disburse any Advance of the Revolving Loan is subject to the
satisfaction of the following conditions precedent:
(a) each (i) Base Rate Loan shall be in a minimum amount of
$100,000, (ii) LIBOR Loan shall be in an amount not less than
$500,000 or integral multiples of $100,000 in excess thereof and
(iii) each Euro Loan shall be in an amount not less than the
Equivalent in Euros of $500,000 or integral multiples of the
Equivalent in Euros of $100,000 in excess thereof;
(b) Bank shall have received a Notice of Borrowing from
Borrower with respect to such Advance, by facsimile transmission to
LaSalle Bank National Association, 000 X. XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, 00000, Telecopy No.: (000) 000-0000, Attention:
Xxxxx Carbon, no later than: 2:00 p.m., Chicago time on the (i)
Funding Date of such Advance in the case of an Advance consisting of
a Base Rate Loan and (ii) 11:00 a.m. Chicago time on the second
Business Day prior to the Funding Date of such Advance in the case of
an Advance consisting of a LIBOR Loan or a Euro Loan;
(c) if such Advance is to be a LIBOR Loan or a Euro Loan,
such Notice of Borrowing shall be accompanied by a LIBOR Election
Notice or a EURIBOR Election Notice, as applicable, specifying the
initial Interest Period for such Advance (it being understood that
each LIBOR Loan shall be denominated in Dollars and each Euro Loan
shall be denominated in Euros);
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(d) no Event of Default or Incipient Default shall exist or
would be created by the making of any such Advance; and
(e) on the applicable Funding Date the representations and
warranties of each Credit Party set forth in the Credit Documents to
which such Credit Party is a party shall be true and correct in all
material respects when made and on such Funding Date, except to the
extent that any such representations and warranties expressly relate
to an earlier date.
Each request for an Advance hereunder shall constitute a representation and
warranty by Borrower that, as of the date of such request and as of the
applicable Funding Date, that the conditions in this Section 2.2 are
satisfied.
2.3 USE OF PROCEEDS. The proceeds of the Revolving Loan shall be
used for working capital and other general corporate purposes and for
Acquisitions permitted under this Credit Agreement.
2.4 INTEREST.
2.4.1INTEREST RATE. Each Base Rate Loan shall bear interest
at the Base Rate in effect from time to time, each LIBOR Loan shall
bear interest at the applicable LIBO Rate plus 1.25% per annum and
each Euro Loan shall bear interest at the applicable EURIBOR Rate
plus 1.25% per annum; provided, however, that during a Default Rate
Period Borrower's Obligations shall bear interest at the applicable
Default Rate.
2.4.2INTEREST COMPUTATION. Interest shall be computed on the
basis of a year consisting of 360 days and charged for the actual
number of days during the period for which interest is being charged.
In computing interest, the Funding Date shall be included and the
date of payment shall be excluded.
2.4.3MAXIMUM INTEREST. Bank and Borrower intend this Credit
Agreement to comply in all respects with all provisions of law and
not to violate, in any way, any legal limitations on interest and
other charges. Accordingly, if, for any reason, Borrower is required
to pay, or has paid, interest on the Principal Balance or other
charges at a rate in excess of the highest rate of interest and other
charges which may be charged by Bank or which Borrower legally may
contract to pay under applicable law (the "Maximum Rate"), then the
interest and other charges payable hereunder shall be deemed to be
reduced, automatically and immediately, to the Maximum Rate, the
interest and other charges payable hereunder shall be computed and
paid at the Maximum Rate and the portion of all prior payments of
interest or other charges in excess of the Maximum Rate shall be
deemed to have been payments in reduction of the Principal Balance.
2.4.4INCREASED COSTS. If, after the Closing Date, either
(i) any change in or in the interpretation of any law or regulation
is introduced, including, without limitation, with respect to reserve
requirements applicable to Bank (other than reserves included in the
Eurocurrency Rate Reserve Percentage), (ii) Bank complies with any
future guideline or request from any central bank or other
Governmental Body proposed or promulgated after the Closing Date or
(iii) Bank determines that the adoption of any applicable law, rule
or regulation regarding capital adequacy or any change therein, or
any change in the interpretation or administration thereof by any
Governmental Body, central bank or comparable agency charged with the
interpretation or administration thereof announced after the Closing
Date has or would have the effect described below, or Bank complies
with any request or directive regarding capital adequacy (whether or
10
not having the force of law) of any such Governmental Body, central
bank or comparable agency announced after the Closing Date and in
case of any event set forth in this clause (iii), such adoption,
change or compliance has or would have the direct or indirect effect
of reducing the rate of return on any of Bank's capital as a
consequence of its obligations hereunder to a level below that which
Bank could have achieved but for such adoption, change or compliance
(taking into consideration Bank's policies with respect to capital
adequacy) by an amount deemed by Bank to be material, and any of the
foregoing events described in clauses (i), (ii) or (iii) increases
the cost to Bank of funding or maintaining the Revolving Loan or the
Commitment or reduces the amount receivable in respect thereof by
Bank, then upon demand by Bank made at any time within 180 days after
the date on which an officer of Bank responsible for overseeing this
Credit Agreement knows or has reason to know of its right to
additional compensation under this Section 2.4.4, Borrower shall pay
to Bank additional amounts sufficient to reimburse Bank against such
increase in cost or reduction in amount receivable; provided,
however, the if Bank fails to deliver such demand within such 180 day
period, Bank shall only be entitled to additional compensation for
any such costs incurred from and after the date that is 180 days
prior to the date Borrower receives such demand. A certificate as to
the amount of such increased cost, and setting forth in reasonable
detail the calculation thereof, shall be submitted to Borrower by
Bank, and shall be conclusive absent manifest error. Bank will
promptly notify Borrower of any event of which it has knowledge that
would entitle Bank to additional compensation under this subsection
2.4.4. Bank shall not request any additional compensation under this
subsection 2.4.4 unless it is generally making similar requests of
other borrowers similarly situated, and Bank agrees to use a
reasonable basis for calculating amounts allocable to its Commitment
hereunder.
2.5 LIBOR LOANS; EURO LOANS.
2.5.1ELECTION BY BORROWER. Subject to the provisions of
subsection 2.5.2 and provided no Event of Default then exists,
Borrower from time to time may elect to have each LIBOR Loan
requested by Borrower bear and, upon the expiration of the Interest
Period applicable thereto, continue to bear, interest at a LIBO Rate,
and each Euro Loan requested by Borrower bear and, upon the
expiration of the Interest Period applicable thereto, continue to
bear, interest at a EURIBO Rate. Each such election shall be
exercised by delivery of a LIBOR Election Notice or EURIBOR Election
Notice, as applicable, to Bank by facsimile transmission to LaSalle
Bank National Association, 000 X. XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, 00000, Telecopy No.: (000) 000-0000, Attention:
Xxxxx Carbon, not later than 11:00 a.m., Chicago time on the second
Business Day prior to the commencement of the applicable Interest
Period. Bank shall determine (which determination shall, absent
manifest error, be presumptively correct) the LIBO Rate applicable to
the relevant LIBOR Loan or the EURIBO Rate applicable to the relevant
Euro Loan on the applicable Interest Rate Determination Date and
promptly shall give notice thereof to Borrower. Bank shall have the
right without further confirmation to assume that any LIBOR Election
Notice or EURIBOR Election Notice received by Bank has been given by
a person duly authorized to act on behalf of Borrower. Each LIBOR
Election Notice and each EURIBOR Election Notice received by Bank
shall be irrevocable. Upon the expiration of an Interest Period (i)
the applicable LIBOR Loan shall be converted to and become a Base
Rate Loan unless such LIBOR Loan has been continued as a LIBOR Loan
in accordance with this subsection 2.5.1 and (ii) unless such Euro
Loan has been continued as a Euro Loan in accordance with this
subsection 2.5.1, the applicable Euro Loan shall be redenominated
into an Equivalent amount of Dollars and converted to and become a
Base Rate Loan or, if Borrower has given a LIBOR Election Notice with
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respect thereto in accordance with this subsection 2.4.1, a LIBOR
Loan. If Borrower delivers a LIBOR Election Notice or a EURIBOR
Election Notice to Bank and thereafter withdraws such election before
it becomes effective, Borrower shall reimburse Bank on demand for the
amount of any loss, cost and/or expense incurred by Bank as a result
of Bank's reliance on such notice, including without limitation, any
loss, cost or expense resulting from Bank's contractual obligations
in connection with the applicable Dollar or Euro deposits.
2.5.2LIBOR LOAN AND EURO LOAN LIMITATIONS. At no time shall
the aggregate number of LIBOR Loans and Euro Loans outstanding exceed
five (5).
2.5.3DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE.
If prior to the commencement of any Interest Period Bank determines
that Dollar or Euro deposits, as applicable, of the relevant amount
for the relevant Interest Period are not available in the London
interbank market or the rate at which such Dollar or Euro deposits
are being offered will not adequately and fairly reflect the cost to
Bank of maintaining a LIBO Rate or a EURIBO Rate, as applicable, for
such Interest Period, or that by reason of circumstances affecting
such market, adequate and reasonable means do not exist for
ascertaining the LIBO Rate or the EURIBO Rate applicable to such
Interest Period, Bank promptly shall give notice of such
determination to Borrower and any LIBOR Election Notice or EURIBOR
Election Notice previously given by Borrower which has not yet become
effective shall be deemed to be canceled.
2.5.4TAX AND OTHER LAWS. In the event that by reason of any
law, regulation or requirement or interpretation thereof by any
Governmental Body, or the imposition of any requirement of any such
Governmental Body, whether or not having the force of law, including
the imposition of any reserve and/or special deposit requirement
(other than reserves included in the Eurocurrency Rate Reserve
Percentage), Bank shall be subjected to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever
(other than any tax imposed upon the total net income of Bank) and if
any such measures or any other similar measure shall result in an
increase in the cost to Bank of maintaining any LIBOR Loan or Euro
Loan or in a reduction in the amount of principal or interest
receivable by Bank in respect thereof, then Borrower shall pay to
Bank within ten (10) days after receipt of a notice from Bank (which
notice shall be accompanied by a statement in reasonable detail
setting forth the basis for the calculation thereof, which
calculation, in the absence of manifest error, shall be conclusive
and binding, and a copy of such notice concurrently therewith shall
be delivered to Bank), an amount equal to such increased cost or
reduced amount. At any time after receipt of such notice Borrower
may convert all LIBOR Loans and/or Euro Loans to Base Rate Loans, and
such conversion shall be effective two (2) Business Days after Bank
has received notice from Borrower of such conversion.
2.5.5CHANGES IN LAW RENDERING LIBOR LOANS OR EURIBOR UNLAWFUL.
If at any time any law, treaty or regulation, or any interpretation
thereof by any Governmental Body shall make it unlawful for Bank to
fund or maintain its share of any LIBOR Loan or Euro Loan with monies
obtained in the London interbank market, Bank, upon the occurrence of
such event, shall notify Borrower thereof and thereupon the (i) right
of Borrower to make any election under subsection 2.5.1 shall be
suspended for the duration of such illegality and (ii) if required by
such law, regulation or interpretation, on such date as shall be
specified in such notice all Interest Periods then in effect with
respect to Bank shall be terminated, and thereafter all LIBOR Loans
and Euro Loans shall be deemed converted to Base Rate Loans.
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2.5.6INDEMNITY. In addition to any other payments payable by
Borrower to Bank pursuant to the Credit Documents, Borrower shall
indemnify and reimburse Bank on demand for any loss or expense which
Bank may sustain as a consequence of any prepayment of any LIBOR Loan
or Euro Loan prior to the expiration of the Interest Period
applicable thereto and/or any failure by Borrower to borrow the
amount set forth in any LIBOR Election Notice or EURIBOR Election
Notice on the date specified therefor.
2.6 PRINCIPAL AND INTEREST PAYMENTS.
2.6.1INTEREST. Interest on (i) each Base Rate Loan shall be
payable quarterly in arrears on the first Business Day of each
quarter and (ii) each LIBOR Loan and each Euro Loan shall be payable
on the last day of the Interest Period applicable thereto and, if
such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period.
2.6.2PRINCIPAL. The Principal Balance of the Revolving Loan
together with all other sums which then are due and payable pursuant
to the terms of the Credit Documents, shall be due and payable in
full on the Maturity Date.
2.7 PREPAYMENTS.
2.7.1OPTIONAL PREPAYMENTS. Upon notice from Borrower to Bank
at least one Business Day prior to the date of such prepayment in the
case of LIBOR Loans and Euro Loans, and not later than 11:00 a.m.
Chicago time on the date of such prepayment in the case of Base Rate
Loans, which notice shall state the prepayment date and the aggregate
principal amount of the Advance to be prepaid, Borrower may prepay
any Advance in whole or in part provided that (i) each partial
prepayment shall be in an aggregate principal amount of at least
$100,000 in the case of Advances denominated in Dollars and the
Equivalent in Euros of at least $100,000 in the case of Advances
denominated in Euros; (ii) each such prepayment shall be accompanied
by payment of accrued interest to the date of such prepayment on the
principal amount prepaid and (iii) in the event of any prepayment of
any LIBOR Loan or Euro Loan, Borrower shall be obligated to reimburse
Bank in respect thereof pursuant to subsection 2.5.6.
2.7.2MANDATORY PREPAYMENTS. If Bank notifies Borrower at any
time that the sum of (i) the aggregate principal amount of all
Advances denominated in Dollars then outstanding plus (ii) the
Equivalent in Dollars (both (i) and (ii) determined on the third
Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Euros then
outstanding exceeds the Commitment on such date, Borrower shall,
within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Advances owing by the Borrowers
in an aggregate amount sufficient to reduce such sum after such
payment to an amount not to exceed the Commitment. Each prepayment
made pursuant to this subsection 2.7.2 shall be made together with
any interest accrued to the date of such prepayment on the principal
amounts prepaid and, in the case of any prepayment of a LIBOR Loan or
Euro Loan on a date other than the last day of an Interest Period or
at its maturity, any additional amounts which Borrower shall be
obligated to reimburse to Bank in respect thereof pursuant to
subsection 2.5.6.
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2.8 DENOMINATION AND TIMING OF PAYMENTS.
2.8.1DENOMINATION OF PAYMENTS. Borrower shall make each
payment hereunder, except with respect to Euro Loans, not later than
11:00 a.m. Chicago time on the day when due in Dollars to Bank, at
such place as Bank from time to time may direct Borrower, in same day
funds and without deduction, set off or counterclaim. Borrower shall
make each payment hereunder with respect to principal of, interest
on, and other amounts relating to, Euro Loans not later than 11:00
a.m. on the day when due in Euros to Bank, at such place as Bank from
time to time may direct Borrower, in same day funds and without
deduction, set off or counterclaim.
2.8.2DUE DATES. Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment
of interest, provided, however, that if such extension would cause
payment of interest on or principal of LIBOR Loans or Euro Loans to
be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
2.8.3DEBIT OF ACCOUNT. Bank may debit from Borrower's
operating account maintained at Bank all payments to be made pursuant
to the Credit Documents by Borrower to Bank.
2.9 PAYMENTS AFTER EVENT OF DEFAULT. All payments received by Bank
during the existence of an Event of Default shall be applied in accordance
with Section 7.4.
ARTICLE III
CONDITIONS OF INITIAL FUNDING
-----------------------------
The obligation of Bank to disburse the initial Advance shall be
subject to the satisfaction or waiver of the conditions to each Advance set
forth in Section 2.2 and the satisfaction of all of the following
conditions in a manner, form and substance satisfactory to Bank:
3.1 DELIVERY OF DOCUMENTS. The following shall have been delivered
to Bank, each duly authorized and executed, where applicable, and in form
and substance satisfactory to Bank:
(a) the Credit Documents;
(b) a certificate of good standing or similar certification
for each Credit Party from the respective states in which each such
Person is organized and from all states in which the laws thereof
require any such Person to be licensed and/or qualified to do
business, in each case dated not more than 30 days prior to the
Closing Date;
(c) copies of the articles or certificate of incorporation or
formation or similar governing document for each Credit Party,
certified by the Secretary of State of the state of organization, or
applicable Governmental Body of the country of organization, of such
Person, together with all effective and proposed amendments thereto;
(d) copies of the by-laws or similar governing document of
each Credit Party and of resolutions adopted by the board of
directors or similar governing body of each Credit Party pursuant to
applicable laws authorizing the execution and delivery of the Credit
Documents to which such Person is a party and the consummation of the
transactions contemplated therein, certified by a duly authorized
officer of such Credit Party;
14
(e) signature and incumbency certificates for each Credit
Party;
(f) evidence satisfactory to Bank that all insurance coverage
required pursuant to Section 5.4 is in full force and effect and all
premiums then due thereon have been paid in full; and
(g) such other instruments, documents, certificates,
consents, waivers and opinions as Bank reasonably may request.
3.2 SEARCHES. No Lien shall exist on any of Borrower's Property
other than Permitted Liens, and Bank shall have received such UCC, state
and federal tax lien, pending suit, judgment and other searches as Bank
deems necessary to confirm the foregoing.
3.3 OPINIONS OF COUNSEL. Bank shall have received an opinion
letter dated the Closing Date from Borrower's counsel, addressed to Bank,
in such form and covering such matters as Bank reasonably may require.
3.4 APPROVALS AND CONSENTS. Bank shall have received evidence
reasonably satisfactory to it that the approval or consent shall have been
obtained from all Governmental Bodies and all other Persons whose approval
or consent is required to enable each Credit Party to enter into and
perform their respective obligations under the Credit Documents to which
each such Person is a party.
3.5 FINANCIAL STATEMENTS, REPORTS AND PROJECTIONS. Bank shall have
received and found satisfactory such financial reports, projections and
other information with respect to Borrower and its Subsidiaries as Bank
shall request.
3.6 MATERIAL ADVERSE EFFECT. No event shall have occurred since
December 31, 2003 which has had or could reasonably be expected to have a
Material Adverse Effect, and no laws, statute, rule, regulation, order or
decree shall be in effect or proceedings pending which prevent or enjoin
the disbursement of the initial Advance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to Bank as follows:
4.1 EXISTENCE AND POWER. Each Credit Party is a corporation duly
formed and validly existing under the laws of the jurisdiction of its
incorporation. Each Credit Party is in good standing under the laws of
each other jurisdiction in which the failure to be in good standing could
reasonably be expected to have a Material Adverse Effect. Each Credit
Party has all requisite power and authority to own its Property and to
carry on its business as now conducted and as proposed to be conducted
following the Closing Date.
4.2 AUTHORITY. Each Credit Party has full power and authority to
enter into, execute, deliver and carry out the terms of the Credit
Documents to which it is a party and to incur the obligations provided for
therein, all of which have been duly authorized by all proper and necessary
action and, if applicable, are not prohibited by the organizational
instruments of such Credit Party.
4.3 SUBSIDIARIES. There is set forth on SCHEDULE 4.3 a list of all
Subsidiaries of Borrower as of the Closing Date, showing the name, type of
entity and the jurisdiction of formation of each such Subsidiary and the
ownership interest of Borrower in each such Subsidiary.
15
4.4 BINDING AGREEMENTS. This Credit Agreement and the other Credit
Documents, when executed and delivered, will constitute the valid and
legally binding obligations of each Credit Party to the extent such Credit
Party is a party thereto, enforceable against such Credit Party in
accordance with their respective terms, except as such enforceability may
be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect affecting the
enforcement of creditors' rights generally and (ii) equitable principles
(whether or not any action to enforce such document is brought at law or in
equity).
4.5 COMPLIANCE WITH LAWS. Each Credit Party is in compliance with
all applicable statutes and regulations, and all judgments, orders, writs,
injunctions, decrees and decisions, of all Governmental Bodies (including
Environmental Laws), except to the extent the failure to be in compliance
could not reasonably be expected to have a Material Adverse Effect.
4.6 PERMITS AND FRANCHISES. The Credit Parties collectively own,
possess or have the right to use all permits, memberships, franchises,
contracts, licenses, patents, trademarks, service marks, trade names,
copyrights, franchises and rights with respect thereto which are necessary
for the conduct of the business proposed to be conducted by Borrower after
the Closing Date, without any known conflict with the rights of others.
4.7 TITLE TO PROPERTY; LIENS. Each Credit Party owns all of its
Property, except the portion thereof that it leases. All of such Property
is free and clear of all Liens, except Permitted Liens.
4.8 INSURANCE. The properties and business of each Credit Party
are insured with financially sound and reputable insurance companies in
such amounts, with such deductibles and covering such risks as are
customarily carried by Persons engaged in similar businesses and owning
similar properties in localities in which such Credit Party operates.
4.9 FINANCIAL STATEMENTS. All financial statements and other
information submitted by Borrower to Bank (i) in the case of financial
statements, have been prepared in conformity with GAAP and present fairly
in all material respects the results of operations of the Borrower for the
periods covered thereby and the financial condition of the Borrower as of
the dates indicated therein and (ii) are true and correct in all material
respects and complete insofar as necessary to give Bank true and accurate
knowledge of the subject matter thereof.
4.10 NO EVENT OF DEFAULT OR MATERIAL ADVERSE EFFECT. There exists
no Incipient Default or Event of Default. Since December 31, 2003 no event
has occurred which could reasonably be expected to have a Material Adverse
Effect.
4.11 LITIGATION. There are no actions, suits, arbitration
proceedings and claims pending or, to the best knowledge of Borrower,
threatened against any Credit Party, at law or in equity or before any
Governmental Body which (i) could reasonably be expected to be adversely
determined and (ii) if adversely determined could reasonably be expected to
have a Material Adverse Effect.
4.12 DEFAULTS IN OTHER AGREEMENTS; CONSENTS; CONFLICTING AGREEMENTS.
No Credit Party is in default under any agreement to which it is a party or
by which it or any of its Property is bound, the effect of which default
could reasonably be expected to have a Material Adverse Effect. No
authorization, consent, approval or other action by, and no notice to or
filing with, any Governmental Body or any other Person which has not
already been obtained, taken or filed, as applicable, is required (i) for
the due execution, delivery or performance by any Credit Party of any of
the Credit Documents to which it is a party or (ii) as a condition to the
16
validity or enforceability of any of the Credit Documents to which any
Credit Party is a party. No provision of any mortgage, indenture,
contract, agreement, statute, rule, regulation, judgment, decree or order
binding on any Credit Party or affecting its Property conflicts with, or
requires any consent which has not already been obtained under, or would in
any way prevent the execution, delivery or performance of the terms of any
of the Credit Documents. The execution, delivery and performance of the
terms of the Credit Documents will not constitute a default under, or
result in the creation or imposition of, or obligation to create, any Lien
upon the Property of any Credit Party pursuant to the terms of any such
mortgage, indenture, contract or agreement.
4.13 TAXES. Each Credit Party has filed all tax returns required to
be filed, and has paid, or made adequate provision for payment of, all
taxes shown to be due and payable on such returns or in any assessments
made against it, and no tax liens have been filed and, to the best
knowledge of Borrower, no claims are being asserted in respect of such
taxes which are required by GAAP to be reflected in the financial
statements of any Credit Party and are not so reflected therein. The
charges, accruals and reserves on the books of each Credit Party with
respect to all federal, state, local and other taxes are considered by the
management of Borrower to be adequate, and Borrower does not know of any
unpaid assessment which is or might be due and payable by any Credit Party
or create a Lien against any Property of any Credit Party, except such
assessments as are being contested in good faith and by appropriate
proceedings diligently conducted, and for which adequate reserves have been
set aside in accordance with GAAP. None of the tax returns of Borrower are
under audit.
4.14 ENVIRONMENTAL MATTERS. Each Credit Party is in compliance in
all material respects with all applicable Environmental Laws. There has
been no disposal of Hazardous Substances from, nor any release or
threatened release of Hazardous Substances at or from, any property of any
Credit Party in violation of or in any matter which could give rise to
material liability under any Environmental Laws. No Credit Party has
received or is aware of any material claim or notice of material violation
regarding environmental matters or compliance with Environmental Laws with
regard to the properties or operations of any Credit Party, nor does
Borrower have knowledge or reason to believe any such action is being
contemplated, considered or threatened.
4.15 APPLICATION OF CERTAIN LAWS AND REGULATIONS. Borrower is not
and no Affiliate of Borrower is (i) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended or (ii) a "holding company," or
a "subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company," as
such terms are defined in the Public Utility Company act of 1935, as
amended.
4.16 MARGIN REGULATIONS. None of the transactions contemplated by
this Credit Agreement or any of the other Instruments, including the use of
the proceeds of the Revolving Loan, will violate or result in a violation
of Section 7 of the Securities Exchange Act of 1934, as amended, or any
regulations issued pursuant thereto, including, without limitation,
Regulation T, U and X.
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4.17 ERISA COMPLIANCE. Except as specifically disclosed in writing
to Bank prior to the Closing Date: (i) each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and all
federal or state laws; (ii) there are no pending, or to the best knowledge
of Borrower, threatened, claims, actions or lawsuits, or action by any
Governmental Body, with respect to any Plan which as resulted or could
reasonably be expected to result in a Material Adverse Effect; (iii) there
has been no prohibited transaction or other violation of the fiduciary
responsibilities with respect to any Plan which could reasonably be
expected to result in a Material Adverse Effect; (iv) each Plan which is
intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service and to the
best knowledge of Borrower nothing has occurred which would cause the loss
of such qualification; (v) as of the Closing Date, neither Borrower nor any
ERISA Affiliate maintains or contributes to any Pension Plan or other Plan
subject to Section 412 of the Code and (vi) neither Borrower or any entity
under common control with Borrower in the preceding sentence has ever
contributed to any multiemployer plan within the meaning of Section
4001(a)(3) of ERISA.
4.18 EMPLOYEE MATTERS. There are no strikes, slowdowns, work
stoppages, unfair labor practice complaints, grievances, arbitration
proceedings or controversies pending or, to the best knowledge of Borrower,
threatened against any Credit Party by any of any Credit Party's employees,
other than employee grievances or controversies arising in the ordinary
course of business that in the aggregate could not reasonably be expected
to have a Material Adverse Effect. No Credit Party and, to Borrower's best
knowledge, no employee of any Credit Party, is subject to any employment
agreement or non-competition agreement with any former employer or any
other Person which agreement could reasonably be expected to have a
Material Adverse Effect due to (i) any information which Borrower would be
prohibited from using under the terms of such agreement or (ii) any legal
considerations relating to unfair competition, trade secrets or proprietary
information.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
Until all of Borrower's Obligations are paid and performed in full
Borrower agrees that it will, and will cause each of its Subsidiaries to,
comply with each of the following covenants:
5.1 LEGAL EXISTENCE; GOOD STANDING. Borrower shall, and shall
cause each of its Subsidiaries to, maintain its existence and its good
standing in the jurisdiction of its formation and maintain its
qualification to transact business in each jurisdiction in which the
failure so to qualify could reasonably be expected to have a Material
Adverse Effect; PROVIDED, HOWEVER, that nothing in this Section 5.1 shall
prohibit the dissolution, sale, transfer or other disposition of any
Subsidiary that is not otherwise prohibited by this Agreement.
5.2 INSPECTION. Borrower shall, and shall cause each of its
Subsidiaries to, permit representatives of Bank, upon reasonable notice,
during business hours and up to four times in each calendar year, to (i)
visit its offices, (ii) examine its books and records and Accountants'
reports relating thereto, (iii) make copies or extracts therefrom, (iv)
discuss its affairs with its employees, (v) examine and inspect its
Property and (vi) meet and discuss its affairs with its accountants, and
such accountants, as a condition to their retention by Borrower, are hereby
irrevocably authorized by Borrower to fully discuss and disclose all such
affairs with Bank.
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5.3 FINANCIAL STATEMENTS AND OTHER INFORMATION. Borrower shall,
and shall cause each of its Subsidiaries to, maintain a system of
accounting in accordance with GAAP and furnish to Bank:
5.3.1QUARTERLY STATEMENTS. As soon as available and in any
event within 45 days after the close of each Fiscal Quarter:
(a) the consolidated balance sheet of Borrower as of
the end of such Fiscal Quarter, and
(b) the consolidated statements of operations and cash
flows of Borrower for such Fiscal Quarter, and for the period
from the beginning of the then current Fiscal Year to the end
of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding period in the preceding Fiscal Year,
all in reasonable detail and consistent with the 10-Q reports filed
by Borrower with the Securities and Exchange Commission, and
certified as complete and correct, subject to normal year-end
adjustments, by the chief financial officer of Borrower.
5.3.2ANNUAL STATEMENTS. As soon as available and in any event
within 90 days after the close of each Fiscal Year:
(a) the consolidated balance sheet of Borrower as of
the end of such Fiscal Year and the statements of operations,
cash flows and shareholders' equity (collectively, the "Basic
Financial Statements" ) of Borrower for such Fiscal Year
setting forth in each case in comparative form the
corresponding figures for the preceding Fiscal Year and
consistent with the 10-K reports filed by Borrower with the
Securities and Exchange Commission, and
(b) an opinion of an independent certified public
accounting firm selected by Borrower and reasonably
satisfactory to Bank which shall accompany the Basic Financial
Statements which opinion shall be unqualified as to going
concern and scope of audit, stating that (i) the examination by
such accounting firm in connection with such Basic Financial
Statements has been made in accordance with generally accepted
auditing standards, (ii) such Basic Financial Statements have
been prepared in conformity with GAAP and in a manner
consistent with prior periods, and (iii) such Basic Financial
Statements fairly present in all material respects the
financial position and results of operations of Borrower.
5.3.3COMPLIANCE CERTIFICATE. As soon as available and in any
event within 45 days after the close of each Fiscal Quarter, a
Compliance Certificate as of the end of such Fiscal Quarter.
5.3.4AUDIT REPORTS. Promptly upon receipt thereof, a copy of
each report, other than the reports referred to in subsection 5.3.2,
including any so-called "Management Letter" or similar report,
submitted to Borrower by the Accountants in connection with any
annual, interim or special audit made by the Accountants of the books
of Borrower.
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5.3.5NOTICE OF DEFAULTS; LOSS. Prompt written notice if:
(i) any Debt of any Credit Party in a principal amount in excess of
$500,000 is declared or shall become due and payable prior to its
declared or stated maturity, or called and not paid when due, (ii) an
event has occurred that enables the holder of any note, or other
evidence of such Debt, certificate or security evidencing any such
Debt of Borrower to declare such Debt due and payable prior to its
stated maturity, (iii) there shall occur and be continuing an Event
of Default, accompanied by a statement setting forth what action
Borrower proposes to take in respect thereof, or (iv) any event shall
occur which has had or could reasonably be expected to have a
Material Adverse Effect, including the amount of the estimated amount
of any loss or adverse effect.
5.3.6NOTICE OF SUITS; ADVERSE EVENTS. Prompt written notice
of: (i) any citation, summons, subpoena, order to show cause or
other order naming Borrower a party to any proceeding before any
Governmental Body which could reasonably be expected to have a
Material Adverse Effect, including with such notice a copy of such
citation, summons, subpoena, order to show cause or other order, (ii)
any lapse or other termination of any license, permit, franchise,
agreement or other authorization issued to any Borrower by any
Governmental Body or any other Person that is material to the
operation of the business of Borrower, (iii) any refusal by any
Governmental Body or any other Person to renew or extend any such
license, permit, franchise, agreement or other authorization and (iv)
any dispute between Borrower and any Governmental Body or any other
Person, which lapse, termination, refusal or dispute referred to in
clauses (ii) and (iii) above or in this clause (iv) could reasonably
be expected to have a Material Adverse Effect.
5.3.7REPORTS TO SHAREHOLDERS, CREDITORS AND GOVERNMENTAL
BODIES.
(a) Promptly upon becoming available, copies of all financial
statements and periodic reports sent by Borrower to its shareholders,
of all regular and periodic reports and all registration statements
and prospectuses filed by Borrower with any securities exchange or
with the Securities and Exchange Commission or any Governmental Body
succeeding to any of its functions, and of all statements generally
made available by Borrower concerning material developments in the
business of Borrower.
(b) Promptly upon becoming available, copies of any periodic
or special reports filed by Borrower with any Governmental Body or
Person, if such reports indicate any material change in the business,
operations, affairs or condition of Borrower, or if copies thereof
are requested by Bank, and copies of any material notices and other
communications from any Governmental Body or Person which
specifically relate to Borrower.
5.3.8ERISA NOTICES AND REQUESTS. If and when Borrower or any
ERISA Affiliate is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect
to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC.
5.3.9OTHER INFORMATION. Promptly upon request therefor, such
other information and reports relating to the past, present or future
financial condition, operations, plans and projections of Borrower as
Bank reasonably may request from time to time.
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5.4 INSURANCE. Borrower shall maintain in full force and effect
such property, casualty and liability insurance as may be required by law
and as may be customarily maintained by a similarly situated business, all
of which shall be written by financially sound and reputable insurance
companies and in amounts as are customarily carried by Persons under
similar circumstances.
5.5 ENVIRONMENTAL MATTERS. Borrower shall at all times comply in
all material respects with, and be responsible for, its obligations under
all Environmental Laws applicable to its properties and assets and the
operation of its business. At its sole cost and expense, Borrower shall
(i) comply in all material respects with (A) any notice of any violation or
administrative or judicial order having been filed against it or any
Property owned by it or used by it in the operation of its business
alleging violations of any law, ordinance and/or regulation requiring such
Person to take any action in connection with the release, transportation
and/or clean-up of any Hazardous Materials, and (B) any notice from any
Governmental Body or any other Person alleging that it is or may be liable
for costs associated with a response or clean-up of any Hazardous Materials
or any damages resulting from such release or transportation, or (ii)
diligently contest in good faith by appropriate proceedings any demands set
forth in such notices provided (A) reserves in an amount reasonably
satisfactory to Bank to pay the costs associated with complying with any
such notice are established and (B) no Lien would or will attach to the
Property which is the subject of any such notice as a result of any
compliance by it which is delayed during any such contest. Promptly upon
receipt of any notice described in the foregoing clause (i), Borrower shall
deliver to Bank a copy thereof.
5.6 COMPLIANCE WITH LAWS. Borrower shall comply with all federal,
state and local laws, ordinances, requirements and regulations and all
judgments, orders, injunctions and decrees applicable to Borrower and its
operations, the failure to comply with which could reasonably be expected
to have a Material Adverse Effect.
5.7 TAXES AND CLAIMS. Borrower shall pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any Property belonging to it, prior to the date
on which penalties attach thereto, and all lawful claims which, if unpaid,
might become a Lien (other than a Permitted Lien) upon its Property,
provided that no Credit Party shall be required by this Section 5.11 to pay
any such amount if the same is being contested diligently and in good faith
by appropriate proceedings and as to which Borrower has set aside reserves
on its books in accordance with GAAP.
5.8 MAINTENANCE OF ACCOUNTS. Borrower shall maintain its primary
operating and disbursement accounts with Bank under Bank's customary terms
and conditions.
5.9 FURTHER ASSURANCE. Borrower shall, and shall cause each of its
Subsidiaries to, execute and deliver to Bank such additional documents as
Bank reasonably may require from time to time to carry out the purposes of
the Credit Documents and to protect Bank's rights thereunder, including,
without limitation, taking such actions as are necessary or as Bank
reasonably may request from time to time to ensure that the obligations of
Borrower hereunder and under the other Credit Documents are guaranteed by
all of the Subsidiaries of Borrower (including, promptly upon the
acquisition or creation thereof, any Subsidiary acquired or created after
the date hereof) by execution of a counterpart of the Subsidiary Guaranty.
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ARTICLE VI
NEGATIVE COVENANTS
------------------
Until all of Borrower's Obligations are paid and performed in full,
Borrower shall not, and shall not permit any of its Subsidiaries to, fail
to comply with any of the following covenants:
6.1 DEBT. Borrower shall not, and shall not permit any of its
Subsidiaries to, create, incure, assume or suffer to exist any Debt except:
(a) Borrower's Obligations;
(b) other Debt existing on the date hereof and described on
SCHEDULE 6.1 and any extension, renewal or refinancing thereof so
long as the principal amount thereof is not increased;
(c) guarantees of loans to its employees provided that the
aggregate principal amount of all loans so guaranteed does not exceed
$100,000 at any time;
(d) Debt secured by Liens permitted by Section 6.2(d), and
extensions, renewals and refinancings thereof; provided that the
aggregate amount of all such Debt at any time outstanding shall not
exceed $1,000,000;
(e) unsecured Debt of Borrower to its Subsidiaries or of
Borrower's Subsidiaries to Borrower provided that the aggregate
principal amount of all Debt of Borrower's Subsidiaries to Borrower
does not exceed $500,000 at any time;
(f) Hedging Obligations incurred for bona fide hedging
purposes and not for speculation;
(g) any other unsecured Debt of Borrower which has
subordination terms, covenants, pricing and other terms which have
been approved in writing by Bank ("Subordinated Debt"); and
(h) Acquired Debt of Borrower assumed in Acquisitions
permitted under Section 6.3, in an aggregate amount not at any time
exceeding $1,000,000.
6.2 LIENS. Borrower shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, except:
(a) any Lien existing on the date of this Credit Agreement
and disclosed in Schedule 6.2, and any extension, renewal or
replacement of any such Lien so long as the principal amount of the
Debt secured thereby is not increased and the scope of the Property
subject to such Lien is not extended;
(b) Liens for taxes or other governmental charges not at the
time delinquent or thereafter payable without penalty or being
contested in good faith by appropriate proceedings and, in each case,
for which it maintains adequate reserves; provided that no notice of
Lien has been filed or recorded under the Code;
(c) Liens arising in the ordinary course of business (such as
(i) Liens of carriers, warehousemen, mechanics and materialmen and
other similar Liens imposed by law and (ii) Liens incurred in
connection with worker's compensation, unemployment compensation and
other types of social security (excluding Liens arising under ERISA)
or in connection with surety bonds, bids, performance bonds and
similar obligations) for sums not overdue or being contested in good
22
faith by appropriate proceedings and not involving any deposits or
advances or borrowed money or the deferred purchase price of property
or services and, in each case, for which it maintains adequate
reserves);
(d) subject to the limitation set forth in Section 6.1(d),
(i) Liens arising in connection with Capitalized Leases (and
attaching only to the property being leased), (ii) Liens existing on
Property at the time of the acquisition thereof by any Credit Party
(and not created in contemplation of such acquisition) and (iii)
Liens that constitute purchase money security interests on any
Property securing Debt incurred for the purpose of financing all or
any part of the cost of acquiring such Property, provided that any
such Lien attaches to such Property within 60 days of the acquisition
thereof and attaches solely to the Property so acquired;
(e) Liens in respect of judgments or awards with respect to
which no Event of Default would exist pursuant to subsection 7.1.6;
(f) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in
any material respect with the ordinary conduct of the business of any
Credit Party;
(g) Liens in favor of Bank;
(h) Liens securing Acquired Debt permitted by Section 6.1(h);
and
(i) the replacement, extension or renewal of any Lien permitted
by clauses (a) or (h) above upon or in the same property theretofore
subject thereto arising out of the extension, renewal or replacement
of the Debt secured thereby (without increase in the principal amount
thereof).
6.3 NEGATIVE PLEDGES. Borrower shall not, and shall not permit any
of its Subsidiaries to, suffer or permit to exist, or enter into, any
agreement or commitment which would restrict or prohibit Borrower or any of
its Subsidiaries from granting any Lien on any of its Property to Bank
other than Property upon which Permitted Liens have been or are granted to
secure Debt permitted under Section 6.1.
6.4 MERGERS, CONSOLIDATIONS AND ACQUISITIONS. Borrower shall not,
and shall not permit any of its Subsidiaries to, become a party to any
merger or consolidation, or purchase or otherwise acquire all or
substantially all of the assets or any stock of any class of, or any
partnership or joint venture interest in, any other Person, except for (i)
any such merger or consolidation of any Wholly-Owned Subsidiary of Borrower
into Borrower or into any other Wholly-Owned Subsidiary of Borrower, (ii)
any such purchase or other acquisition by Borrower or any Wholly-Owned
Subsidiary of Borrower of the assets or stock of any Wholly-Owned
Subsidiary of Borrower; and (iii) any Acquisition by Borrower or any
Wholly-Owned Subsidiary where (A) the assets acquired (in the case of an
asset purchase) are for use, or the Person acquired (in the case of any
other Acquisition) is engaged, solely in a line or lines of business
similar, ancillary or complementary to the business engaged in by Borrower
on the date hereof, (B) immediately before and after giving effect to such
Acquisition, no Event of Default or Incipient Default shall exist; and (C)
in the case of the Acquisition of any Person, the Board of Directors of
such Person has approved such acquisition. Notwithstanding the foregoing,
it is expressly understood and agreed that Borrower may consummate the
French Acquisition and the German Acquisition so long as immediately before
and after giving effect thereto no Event of Default or Incipient Default
shall exist.
23
6.5 SALE OR TRANSFER OF ASSETS. Borrower shall not sell, lease,
assign, transfer or otherwise dispose of Property (other than Property
constituting inventory and Property that is regularly sold to customers in
the ordinary course of business) having a net book value greater than
$500,000 in the aggregate for all transactions unless otherwise agreed to
in writing by the Bank, except that (i) the stock or other ownership
interests of any Subsidiary of the Borrower may be sold or otherwise
disposed of if such sale or disposition would not otherwise result in an
Incipient Default or any Event of Default, and (ii) any Subsidiary of the
Borrower may enter into a merger or consolidation as a means of effecting a
disposition of its stock or ownership interests which would not result in
an Incipient Default or Event of Default.
6.6 RESTRICTED PAYMENTS. If any Incipient Default or Event of
Default exists and is continuing or could reasonably be expected to result
therefrom, Borrower shall not (i) make any dividend or distribution to any
of its shareholders, (ii) purchase or redeem any of its capital stock or
other equity interests or any warrants, options or other rights in respect
thereof, (iii) pay any management fees or similar fees to any of its
shareholders or any of its Affiliates, (iv) make any redemption,
prepayment, defeasance or repurchase of any Subordinated Debt or (v) set
aside funds for any of the foregoing.
6.7 FUNDAMENTAL BUSINESS CHANGES; FISCAL YEAR. Borrower shall not
materially change the nature of its business or change its Fiscal Year from
a fiscal year ending September 30 of each year.
6.8 AMENDMENT OF CERTAIN AGREEMENTS. Borrower shall not amend,
modify or waive any term or provision of its articles or certificate of
incorporation or its by-laws in any manner which could reasonably be
expected to have a material adverse effect on the interests of Bank.
6.9 TRANSACTIONS WITH AFFILIATES. Borrower shall not sell, lease,
assign, transfer or otherwise dispose of any Property to any of its
Affiliates, lease Property, render or receive services or purchase assets
from any such Affiliate, or otherwise enter into any contractual
relationship with any such Affiliate, except in the ordinary course of
business on terms no less favorable to it than would be obtainable on an
arm's-length basis by it from a Person who is not one of its Affiliates,
provided, however, that in the event of any such sale, lease, assignment,
transfer or any other disposal in the ordinary course of business the
aggregate amount of receivables due to Borrower arising from any such sale,
lease, assignment, transfer or any other disposal in the ordinary course of
business may not exceed $500,000 at any time.
6.10 MINIMUM TANGIBLE NET WORTH. Borrower shall not permit Tangible
Net Worth to be less than $15,382,000 at the end of any Fiscal Quarter.
ARTICLE VII
DEFAULT AND REMEDIES
--------------------
7.1 EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an Event of Default under the Credit Documents:
7.1.1DEFAULT IN PAYMENT. If Borrower shall fail to pay all or
any portion of Borrower's Obligations when the same become due and
payable.
7.1.2BREACH OF COVENANTS.
(a) If Borrower shall fail to observe or perform any covenant
or agreement made by Borrower contained in Section 5.2, 5.4, 5.7 or
in Article VI; or
24
(b) If Borrower shall fail to observe or perform any covenant
or agreement made by Borrower contained in Section 5.3 and such
failure shall continue for a period of five (5) days; or
(c) If Borrower or any other Credit Party shall fail to
observe or perform any covenant or agreement (other than those
referred to in subparagraphs (a) and (b) above or specifically
addressed elsewhere in this Section 8.1) made by such Person in any
of the Credit Documents to which such Person is a party, and such
failure shall continue for a period of thirty (30) days.
7.1.3BREACH OF WARRANTY. If any representation or warranty
made by or on behalf of any Credit Party in or pursuant to any of the
Credit Documents or in any instrument or document furnished in
compliance with the Credit Documents shall prove to be false or
misleading in any material respect.
7.1.4DEFAULT UNDER OTHER DEBT. If (i) any Credit Party at any
time shall be in default (as principal or guarantor or other surety)
in the payment of any principal of or premium or interest on any Debt
(other than Borrower's Obligations) beyond the grace period, if any,
applicable thereto and the aggregate amount of such payments then in
default beyond such grace period shall exceed $100,000 or (ii) any
default shall occur in respect of any issue of Debt (other than
Borrower's Obligations) of any Credit Party outstanding in a
principal amount of at least $500,000, or in respect of any agreement
or instrument relating to any such issue of Debt, and such default
shall continue beyond the grace period, if any, applicable thereto,
and the result thereof is to cause, or permit the holders of such
Debt to cause, the acceleration of the maturity of such debt.
7.1.5BANKRUPTCY.
(a) If any Credit Party shall (i) generally not be paying its
debts as they become due, (ii) file, or consent, by answer or
otherwise, to the filing against it of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or
insolvency under the laws of any jurisdiction, (iii) make an
assignment for the benefit of creditors, (iv) consent to the
appointment of a custodian, receiver, trustee or other officer with
similar powers for it or for any substantial part of its Property, or
(v) be adjudicated insolvent.
(b) If any Governmental Body of competent jurisdiction shall
enter an order appointing, without the consent of such Credit Party,
a custodian, receiver, trustee or other officer with similar powers
with respect to any Credit Party or with respect to any substantial
part of its Property, or if an order for relief shall be entered in
any case or proceeding for liquidation or reorganization or otherwise
to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation
of any Credit Party or if any petition for any such relief shall be
filed against it and such petition shall not be dismissed or stayed
within 60 days.
7.1.6JUDGMENTS. If there shall be entered against Borrower
one or more judgments, awards or decrees, or orders of attachment,
garnishment or any other writ, which exceed $500,000 in the aggregate
at any one time outstanding, excluding judgments, awards, decrees,
orders or writs (i) for which there is full insurance (subject to
deductibles approved by Bank) and with respect to which the insurer
has assumed responsibility in writing, (ii) for which there is full
indemnification (upon terms and by creditworthy indemnitors which are
satisfactory to Bank) or (iii) which have been in force for less than
the applicable period for filing an appeal so long as execution has
not been levied thereunder (excluding, however, judgments for which
25
an appeal has been filed on or prior to the expiration of an
applicable filing period and a levy of an execution has been removed)
or in respect of which Borrower shall at the time in good faith be
prosecuting an appeal or proceeding for review and in respect of
which a stay of execution or appropriate appeal bond shall have been
obtained pending such appeal or review.
7.1.7ERISA EVENTS. If any Termination Event shall occur and,
as a result of such event or condition, together with all other such
events or conditions, any Borrower or any ERISA Affiliate shall
incur, or in the opinion of Bank be reasonably likely to incur, a
liability to a Pension Plan or Multiemployer Plan or the PBGC (or any
of them) which, in the reasonable judgment of Bank, could reasonably
be expected to have a Material Adverse Effect.
7.1.8SUBSIDIARY GUARANTY. If (i) the Subsidiary Guaranty
shall cease to be in full force and effect with respect to any
Subsidiary of Borrower or (ii) any Credit Party (other than
Borrower), or any Person by, through or on behalf of such Credit
Party, shall deny or disaffirm its obligations under the Subsidiary
Guaranty or contest in any manner the validity, binding nature or
enforceability of the Subsidiary Guaranty, in either case, except
with respect to any Subsidiary the stock or ownership interests of
which have been sold or otherwise disposed of by the Borrower or
another Subsidiary, or which has been dissolved or liquidated, to the
extent not otherwise prohibited by this Agreement.
7.1.9CHANGE IN CONTROL. (i) Any Person or two or more Persons
acting in concert (other than Borrower or one of its Subsidiaries)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of Borrower; or (ii) during any period of up to 24 consecutive
months, commencing after the date of this Credit Agreement,
individuals who at the beginning of such period were directors of
Borrower shall cease for any reason to constitute a majority of the
board of directors of Borrower unless the election or nomination for
election by Borrower's stockholders of each new director was approved
by the vote of at least two-thirds of the directors then still in
office who were directors at the beginning of such period.
7.2 ACCELERATION OF BORROWER'S OBLIGATIONS. Upon the occurrence
of:
(a) any Event of Default described in clauses (ii), (iii),
(iv) and (v) of subsection 7.1.5(a) or in 7.1.5(b), the Commitments
shall automatically terminate and all of Borrower's Obligations at
that time outstanding automatically shall mature and become due, and
(b) any other Event of Default, Bank, at any time, at its
option, without further notice or demand, may declare all of
Borrower's Obligations due and payable, whereupon the Commitments
shall automatically terminate and all of Borrower's Obligations
immediately shall mature and become due and payable,
all without presentment, demand, protest or notice (other than notice of
the declaration referred to in clause (b) above), all of which hereby are
waived.
7.3 REMEDIES ON DEFAULT. If Borrower's Obligations have been
accelerated pursuant to Section 7.2, Bank may:
7.3.1Enforce its rights and remedies under the Credit
Documents in accordance with their respective terms; and/or
26
7.3.2Enforce any of the rights or remedies accorded to Bank at
equity or law, by virtue of statute or otherwise.
7.4 APPLICATION OF FUNDS. Any funds received by Bank pursuant to
the exercise of any rights accorded to Bank pursuant to, or by the
operation of any of the terms of, any of the Credit Documents shall be
applied to Borrower's Obligations in the following order of priority:
7.4.1EXPENSES. First, to the payment of (i) all fees and
expenses actually incurred, including, without limitation, court
costs, fees of appraisers, costs of sale, and all other costs
incurred by Bank in exercising any rights accorded to such Persons
pursuant to the Credit Documents or by applicable law, including,
without limitation, reasonable attorney's fees, and (ii) all Liens
superior to the Liens, if any.
7.4.2BORROWER'S OBLIGATIONS. Next, to the payment of
Borrower's Obligations, in such order as Bank may determine.
7.4.3SURPLUS. Any surplus, to the Person or Persons legally
entitled thereto.
7.5 PERFORMANCE OF BORROWER'S OBLIGATIONS. If Borrower fails to
(i) maintain in force and pay for any insurance policy or bond which
Borrower is required to provide pursuant to any of the Credit Documents,
(ii) keep its Property free from all Liens except for Permitted Liens,
(iii) pay when due all taxes, levies and assessments on or in respect of
its Property, except as otherwise permitted pursuant to the terms hereof,
(iv) keep fully and perform promptly any other of the obligations of
Borrower hereunder or under any of the other Credit Documents, or (v) keep
fully and perform promptly the obligations of Borrower with respect to any
issue of Debt secured by a Permitted Lien, then Bank may (but shall not be
required to) procure and pay for such insurance policy or bond, pay,
contest or settle such Liens or taxes or any judgments based thereon or
otherwise make good any other aforesaid failure of Borrower. Borrower
shall reimburse Bank immediately upon demand for all sums paid or advanced
on behalf of Borrower for any such purpose, together with costs and
expenses (including reasonable attorney's fees) paid or incurred by Bank in
connection therewith and interest on all sums advanced from the date of
advancement until repaid to Bank at the Default Rate. All such sums
advanced by Bank, with interest thereon, immediately upon advancement
thereof, shall be deemed to be part of Borrower's Obligations.
ARTICLE VIII
EXPENSES AND INDEMNITY
----------------------
8.1 ATTORNEY'S FEES AND OTHER FEES AND EXPENSES. Whether or not
any of the transactions contemplated by this Credit Agreement shall be
consummated, Borrower agrees to pay to Bank on demand all expenses incurred
by Bank in connection with the transactions contemplated hereby (other than
the fees and expenses of counsel retained by Bank in connection with the
preparation and negotiation of the Credit Documents) including, without
limitation:
8.1.1FEES AND EXPENSES FOR ADMINISTRATION OF THE REVOLVING
LOAN. All expenses and disbursements actually incurred by Bank in
connection with the administration of the Revolving Loan.
27
8.1.2FEES AND EXPENSES IN ENFORCEMENT OF RIGHTS OR DEFENSE OF
CREDIT DOCUMENTS. Any expenses or other costs, including reasonable
attorney's fees actually incurred by Bank in connection with the
enforcement or collection against any Credit Party of any provision
of any of the Credit Documents, and in connection with or arising out
of any litigation, investigation or proceeding instituted by any
Governmental Body or any other Person with respect to any of the
Credit Documents, whether or not suit is instituted, including, but
not limited to, such costs or expenses arising from the enforcement
or collection against any Credit Party of any provision of any of the
Credit Documents, in any workout or restructuring or in any state or
federal bankruptcy or reorganization proceeding.
8.2 INDEMNITY. Borrower agrees to indemnify and save Bank harmless
of and from the following:
8.2.1BROKERAGE FEES. The fees, if any, of brokers and finders
engaged by Borrower.
8.2.2GENERAL. Any loss, cost, liability, damage or expense
(including reasonable attorneys' fees and expenses) incurred by Bank
in investigating, preparing for, defending against, providing
evidence, producing documents or taking other action in respect of
any commenced or threatened litigation, administrative proceeding,
suit instituted by any Person or investigation under any law,
including any federal securities law, Bankruptcy Code, any relevant
state corporate statute or any other securities law, bankruptcy law
or law affecting creditors generally of any jurisdiction, or any
regulation pertaining to any of the foregoing, or at common law or
otherwise, relating, directly or indirectly, to the transactions
contemplated by or referred to in, or any other matter related to,
the Credit Documents, whether or not Bank is a party to such
litigation, proceeding or suit, or is subject to such investigation,
except to the extent of any gross negligence or willful misconduct of
Bank.
8.2.3JOINT VENTURERS. Any loss, cost, liability, damage or
expense (including reasonable attorneys' fees and expenses) incurred
in connection with the construction of Bank and Borrower as having
the relationship of joint venturers or partners or the determination
that Bank has acted as agent for Borrower.
8.2.4ENVIRONMENTAL INDEMNITY. Any and all claims, losses,
damages, response costs, clean-up costs and expenses suffered and/or
incurred at any time by Bank arising out of or in any way relating to
the existence at any time of any Hazardous Materials in, on, under,
at, transported to or from, or used in the construction and/or
renovation of, any of any Credit Party's Property, or otherwise with
respect to any Environmental Law, and/or the failure of any Credit
Party to perform its obligations and covenants hereunder with respect
to environmental matters, including, but not limited to: (i) claims
of any Persons for damages, penalties, response costs, clean-up
costs, injunctive or other relief, (ii) costs of removal and
restoration, including fees of attorneys and experts, and costs of
reporting the existence of Hazardous Materials to any Governmental
Body, and (iii) any expenses or obligations, including attorney's
fees and expert witness fees, incurred at, before and after any trial
or other proceeding before any Governmental Body or appeal therefrom
whether or not taxable as costs, including, without limitation,
witness fees, deposition costs, copying and telephone charges and
other expenses, all of which shall be paid by Borrower to Bank when
incurred by Bank.
28
ARTICLE IX
MISCELLANEOUS
-------------
9.1 NOTICES. All notices and communications under this Credit
Agreement shall be in writing and shall be (i) delivered in person, (ii)
sent by telecopy, or (iii) mailed, postage prepaid, either by registered or
certified mail, return receipt requested, or by overnight express carrier,
addressed in each case as follows:
To Borrower: Xxxxxxxx, Inc.
0 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. X'Xxxxxxx
Chief Financial Officer
Telecopy No.: (000) 000-0000
Copy to: Sidley Xxxxxx Xxxxx & Xxxx LLP
10. X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
To Bank: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Carbon
Telecopy No.: (000) 000-0000
Copy to: Xxxx, Xxxx & Xxxxx LLC
00 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy No.: (000) 000-0000
or to any other address or telecopy number, as to any of the parties
hereto, as such party shall designate in a written notice to the other
parties hereto. All notices sent pursuant to the terms of this Section 9.1
shall be deemed received (i) if personally delivered, then on the Business
Day of delivery, (ii) if sent by telecopy before 2:00 p.m. Chicago time, on
the day sent if a Business Day or if such day is not a Business Day or if
sent after 2:00 p.m. Chicago time, then on the next Business Day, (iii) if
sent by overnight, express carrier, on the next Business Day immediately
following the day sent, or (iv) if sent by registered or certified mail,
when actually received. Any notice by telecopy shall be followed by
delivery on the next Business Day by overnight, express carrier or by hand.
9.2 SURVIVAL OF CREDIT AGREEMENT; INDEMNITIES. All covenants,
agreements, representations and warranties made in this Credit Agreement
and in the certificates delivered pursuant hereto shall survive the making
by Bank of the Advances and the execution and delivery to Bank of the
Revolving Loan Note and of all other Credit Documents, and shall continue
in full force and effect so long as any of Borrower's Obligations remain
outstanding, unperformed or unpaid. Notwithstanding the repayment of all
amounts due under the Credit Documents, the cancellation of the Revolving
Loan Note and the release and/or cancellation of any and all of the Credit
Documents, the obligations of Borrower to indemnify Bank with respect to
the expenses, damages, losses, costs and liabilities described in Section
8.2 shall survive until all applicable statute of limitations periods with
respect to actions which may be brought against Bank has run.
29
9.3 TAXES AND FEES. Should any tax (other than taxes based upon
the net income of Bank), recording or filing fees become payable in respect
of any of the Credit Documents, or any amendment, modification or
supplement thereof, Borrower agrees to pay the same on demand, together
with any interest or penalties thereon attributable to any delay by
Borrower in meeting Bank's demand, and agrees to hold Bank harmless with
respect thereto.
9.4 SEVERABILITY. In the event that any provision of this Credit
Agreement is deemed to be invalid by reason of the operation of any law or
by reason of the interpretation placed thereon by any court or any other
Governmental Body, as applicable, the validity, legality and enforceability
of the remaining terms and provisions of this Credit Agreement shall not in
any way be affected or impaired thereby, all of which shall remain in full
force and effect, and the affected term or provision shall be modified to
the minimum extent permitted by law so as to achieve most fully the
intention of this Credit Agreement.
9.5 WAIVER. No delay on the part of Bank in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, and no
single or partial exercise of any right, power or privilege hereunder shall
preclude other or further exercise thereof, or be deemed to establish a
custom or course of dealing or performance between the parties hereto, or
preclude the exercise of any other right, power or privilege.
9.6 MODIFICATION OF CREDIT DOCUMENTS. No modification or waiver of
any provision of any of the Credit Documents shall be effective unless the
same shall be in writing and signed by Bank. Any such waiver or consent
shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on Borrower in any case shall entitle
Borrower to any other or further notice or demand in the same, similar or
other circumstances.
9.7 CAPTIONS. The headings in this Credit Agreement are for
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
9.8 SUCCESSORS AND ASSIGNS. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that Borrower may
not assign any of its rights or delegate any of its duties hereunder to any
other Person.
9.9 REMEDIES CUMULATIVE. All rights and remedies of Bank pursuant
to this Credit Agreement, any other Credit Documents or otherwise, shall be
cumulative and non-exclusive, and may be exercised singularly or
concurrently. Bank shall not be required to prosecute collection,
enforcement or other remedies against any Credit Party before proceeding
against any other Credit Party or to enforce or resort to any security,
liens, collateral, if any, or other rights of Bank. One or more successive
actions may be brought against Borrower and/or any other Credit Party,
either in the same action or in separate actions, as often as Bank deems
advisable, until all of Borrower's Obligations are paid and performed in
full.
9.10 ENTIRE AGREEMENT; CONFLICT. This Credit Agreement and the
other Credit Documents executed prior or pursuant hereto constitute the
entire agreement among the parties hereto with respect to the transactions
contemplated hereby or thereby and supersede any prior agreements, whether
written or oral, relating to the subject matter hereof. In the event of a
conflict between the terms and conditions set forth herein and the terms
and conditions set forth in any other Credit Document, the terms and
conditions set forth herein shall govern.
9.11 APPLICABLE LAW. The Credit Documents shall be construed in
accordance with and governed by the laws and decisions of the State of
Illinois, without regard to conflict of laws principles. For purposes of
this Section 9.11, the Credit Documents shall be deemed to be performed and
made in the State of Illinois.
30
9.12 JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL
ACTIONS OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THE CREDIT DOCUMENTS SHALL BE LITIGATED IN EITHER THE
SUPERIOR COURT OF XXXX COUNTY, ILLINOIS OR IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, OR IF BANK INITIATES SUCH
ACTION, IN ADDITION TO THE FOREGOING COURTS, ANY COURT IN WHICH BANK SHALL
INITIATE OR TO WHICH BANK SHALL REMOVE SUCH ACTION, TO THE EXTENT SUCH
COURT HAS JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY BANK
IN OR REMOVED BY BANK TO ANY OF SUCH COURTS. BORROWER WAIVES ANY CLAIM
THAT EITHER THE SUPERIOR COURT OF XXXX COUNTY, ILLINOIS OR THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. TO THE
EXTENT PROVIDED BY LAW, SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO
APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF,
BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE
ENTERED BY THE COURT AGAINST BORROWER AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR
BORROWER SET FORTH IN THIS SECTION 9.12 SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT BY BANK OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING BY BANK OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK
ANY SUCH JUDGMENT OR ACTION.
9.13 WAIVER OF RIGHT TO JURY TRIAL. BANK AND BORROWER ACKNOWLEDGE
AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE CREDIT
DOCUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE
THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
9.14 CONSEQUENTIAL DAMAGES. Neither Bank nor any attorney of Bank
shall be liable to Borrower for consequential damages arising from any
breach of contract, tort or other wrong relating to the establishment,
administration or collection of the Borrower's Obligations.
9.15 COUNTERPARTS. This Credit Agreement may be executed by the
parties hereto in several counterparts and each such counterpart shall be
deemed to be an original, but all such counterparts shall together
constitute one and the same agreement.
9.16 NO FIDUCIARY RELATIONSHIP. No provision in this Credit
Agreement or in any other Credit Document, and no course of dealing among
the parties hereto, shall be deemed to create any fiduciary duty by Bank to
Borrower.
9.17 SALE OF NOTE; PARTICIPATIONS. Bank may assign to one or more
banks or other Persons all or any part of, or may grant participations to
one or more banks or other Persons in, its right, title and interest in the
Revolving Loan, this Credit Agreement, the other Credit Documents, or any
of them, and to the extent of any such assignment or participation (unless
otherwise stated therein) the assignee or participant of such assignment or
participation shall have the same rights, benefits and obligations
hereunder and thereunder as Bank would have hereunder, and, to the extent
of any such assignment, Bank shall be relieved of its obligations
hereunder.
[remainder of this page intentionally left blank]
31
IN WITNESS WHEREOF, this Credit Agreement has been executed and
delivered by each of the parties hereto by a duly authorized officer of
each such party on the date first set forth above.
XXXXXXXX, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
32
EXHIBIT 1.1(A)
FORM OF COMPLIANCE CERTIFICATE
(See Attached)
COMPLIANCE CERTIFICATE
XXXXXXXX, INC.
___________, ____
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Carbon
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of April 13, 2004
(as amended, the "Credit Agreement") between the undersigned, Xxxxxxxx,
Inc., and LaSalle Bank National Association. Capitalized terms used but
not elsewhere defined herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
The undersigned hereby certifies that the following is a true and
correction computation as at _______________, _____ (the "Computation
Date") of Borrower's Tangible Net Worth. The following calculations are
made on a consolidated basis for Borrower and its Subsidiaries in
accordance with GAAP consistently applied.
I. SECTION 6.10 - MINIMUM TANGIBLE NET WORTH (FISCAL QUARTER ENDS ONLY)
(A) Tangible Net Worth: $_________
(B) Minimum Tangible Net Worth under SECTION 6.10: $_________
Borrower hereby further certifies and warrants to you that:
(1) the undersigned is the Chief Financial Officer of Borrower as
of the date hereof;
(2) the representations and warranties of Borrower set forth in the
Credit Documents are true and correct as of the date hereof; and
(3) no Event of Default or Incipient Default presently exists and
is continuing.
The foregoing certifications are made by _______________, in his/her
capacity as the acting Chief Financial Officer of Borrower, from his/her
personal knowledge, after due inquiry and with full knowledge that Bank
will rely thereon.
XXXXXXXX, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 1.1(B)
FORM OF EURIBOR ELECTION NOTICE
(See Attached)
EURIBOR ELECTION NOTICE
XXXXXXXX, INC.
__________, ____
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Carbon
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of April 13, 2004
(as amended, the "Credit Agreement") between the undersigned, Xxxxxxxx,
Inc., and LaSalle Bank National Association. Capitalized terms used but
not elsewhere defined herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
Borrower hereby irrevocably requests that Bank:
. disburse as a Euro Loan, on _______________, _____, the
Equivalent in Euros of $__________ of the Advance being
requested pursuant to the Notice of Borrowing of even date
herewith for an interest period of __________ months;
. continue as a Euro Loan, on _______________, _____, the Euro
Loan in the Equivalent in Euros of $__________ now bearing
interest determined by reference to a EURIBO Rate for an
additional interest period of _______________ months;
. redenominate to Euros, on _______________, _____, $_________ of
the Principal Balance now bearing interest determined by
reference to the Base Rate, such Euro Loan to bear interest
determined by reference to the EURIBO Rate for an interest
period of _______________ months.
XXXXXXXX, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 1.1(C)
FORM OF LIBOR ELECTION NOTICE
(See Attached)
LIBOR ELECTION NOTICE
XXXXXXXX, INC.
___________, ____
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Carbon
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of April 13, 2004
(as amended, the "Credit Agreement") between the undersigned, Xxxxxxxx,
Inc., and LaSalle Bank National Association. Capitalized terms used but
not elsewhere defined herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
Borrower hereby irrevocably requests that Bank:
. disburse as a LIBOR Loan, on _______________, _____,
$__________ of the Advance being requested pursuant to the
Notice of Borrowing of even date herewith for an interest
period of __________ months;
. continue as a LIBOR Loan, on _______________, _____, the
$__________ LIBOR Loan now bearing interest determined by
reference to a LIBO Rate for an additional interest period of
_______________ months;
. convert to a LIBOR Loan, on _______________, _____, $__________
of the $__________ portion of the Principal Balance now bearing
determined by reference to the Base Rate, such LIBOR Loan to
bear interest determined by reference to the LIBO Rate for an
interest period of _______________ months.
XXXXXXXX, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 1.1(D)
FORM OF NOTICE OF BORROWING
(See Attached)
NOTICE OF BORROWING/DISBURSEMENT REQUEST
XXXXXXXX, INC.
___________, ____
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Carbon
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of April 13, 2004
(as amended, the "Credit Agreement") between the undersigned, Xxxxxxxx,
Inc., and LaSalle Bank National Association. Capitalized terms used but
not elsewhere defined herein shall have the respective meanings ascribed to
such terms in the Credit Agreement.
Borrower hereby notifies Lender that on the date hereof, Borrower
desires to borrow an Advance in the principal amount of $__________.
Borrower hereby directs Lender to disburse such principal amount in
accordance with the payment instructions attached hereto as EXHIBIT A.
Borrower acknowledges and agrees that even though a portion of the
disbursements described on Exhibit A may be directed to entities other than
Borrower, receipt of such disbursements by the applicable payees shall
constitute receipt of such disbursements by Borrower.
Borrower acknowledges that this Notice of Borrowing/Disbursement
Request and acceptance by Borrower of the proceeds of the disbursements
contemplated hereby constitute a representation and warranty that the
conditions contained in the Credit Agreement have been satisfied in all
material respects.
Very truly yours,
XXXXXXXX, INC.,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT A
ENTITY, PAYMENT INSTRUCTIONS AMOUNT
$__________
By Wire Transfer to:
Bank Name:
------------------------------
Bank Address:
------------------------------
ABA No.:
------------------------------
Acct. No.:
------------------------------
Acct. Name:
------------------------------
Attention:
------------------------------
Telephone:
------------------------------
EXHIBIT 1.1(E)
FORM OF REVOLVING LOAN NOTE
(See Attached)
REVOLVING LOAN NOTE
April 13, 2004
Chicago, Illinois $25,000,000.00
FOR VALUE RECEIVED, the undersigned, XXXXXXXX, INC., a Delaware
corporation ("Maker"), promises to pay to the order of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association ("Bank"), at the
principal office of Bank in Chicago, Illinois, the principal amount of
TWENTY-FIVE MILLION AND NO/100THS DOLLARS ($25,000,000) or, if less, the
aggregate unpaid amount of all Advances made to the undersigned by Bank
pursuant to the Credit Agreement referred to below (as shown in the records
of Bank), such principal amount to be payable on the dates set forth in the
Credit Agreement.
Maker further promises to pay interest on the unpaid principal amount
of each Advance from the date such Advance is made until the date the
Revolving Loan is paid in full, payable at the rate(s) and at the time(s)
set forth in the Credit Agreement. Payments of both principal and interest
are to be made in lawful money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to
the terms and provisions of, the Credit Agreement dated as of April 13,
2004 (as amended or otherwise modified from time to time, the "Credit
Agreement") between Maker and Bank to which Credit Agreement reference is
hereby made for a statement of the terms and provisions under which this
Note may or must be paid prior to its due date or its due date accelerated.
Capitalized terms used but not elsewhere defined in this Note shall have
the respective meanings ascribed to such terms in the Credit Agreement.
This Note is made under and governed by the laws of the State of
Illinois applicable to contracts made and to be performed entirely within
such State.
XXXXXXXX, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT 1.1(F)
FORM OF SUBSIDIARY GUARANTY
(See Attached)
GUARANTY
This GUARANTY (this "Guaranty") dated as of April 13, 2004, is made by and
among the Subsidiaries (as hereinafter defined) organized under the laws of
the United States or a political subdivision thereof of Xxxxxxxx, Inc., a
Delaware corporation ("Borrower"), from time to time parties hereto (each,
a "Guarantor"), and collectively, "Guarantors"), in favor of LaSalle Bank
National Association, a national banking association ("Bank").
RECITALS:
A. Borrower and Bank entered into that certain Credit Agreement
dated as of April 13, 2004 (such Credit Agreement, as the same may be
amended, supplemented, modified or restated from time to time, hereinafter
is referred to as the "Credit Agreement") pursuant and subject to the terms
and conditions of which Bank has agreed to make loans and other financial
accommodations to Borrower.
B. Each Guarantor is a wholly-owned Subsidiary of Borrower
organized under the laws of the United States or a political subdivision
thereof. Accordingly, each Guarantor has a direct financial interest in
inducing Bank to enter into the Credit Agreement.
C. One of the conditions precedent to the obligations of Bank
under the Credit Agreement is that each Guarantor shall have executed and
delivered to Bank a counterpart of this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, each Guarantor hereby agrees
as follows:
1. DEFINITIONS. All capitalized terms used but not elsewhere
defined herein shall have the respective meanings ascribed to such terms in
the Credit Agreement.
2. GUARANTY OF PAYMENT. Each Guarantor hereby jointly and
severally, unconditionally and irrevocably guarantees to Bank the full and
complete payment when due, whether at stated maturity or by acceleration or
otherwise, of the Debt of Borrower arising under the Credit Agreement and
the other Credit Documents. Each Guarantor agrees that this Guaranty is a
present and continuing guaranty of payment and not of collectibility, and
that Bank shall not be required to prosecute collection, enforcement or
other remedies against Borrower, any other Guarantor or any other Person
before calling such Guarantor for payment. The obligations of each
Guarantor hereunder and under any of the other Credit Documents to which
any Guarantor is subject hereinafter are referred to as such Guarantor's
"Obligations." Notwithstanding any provisions of this Guaranty to the
contrary, it is intended that this Guaranty not constitute a "Fraudulent
Conveyance" (as defined below). Consequently, each Guarantor agrees that if
this Guaranty would, but for the application of this sentence, constitute a
Fraudulent Conveyance, this Guaranty shall be valid and enforceable only to
the maximum extent that would not cause this Guaranty to constitute a
Fraudulent Conveyance, and this Guaranty shall automatically be deemed to
have been amended accordingly at all relevant times. For purposes hereof,
"Fraudulent Conveyance" means a fraudulent conveyance under Section 548 of
Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the
provisions of any applicable fraudulent conveyance or fraudulent transfer
law, order, ruling, decision or similar law, order, ruling or decision
binding upon any Guarantor of any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency,
public authority or instrumentality thereof or any court or arbitrator
(each, a "Governmental Body"), as in effect from time to time.
3. CONTINUING GUARANTY. Each Guarantor agrees that such
Guarantor's Obligations shall be primary obligations of such Guarantor,
shall not be subject to any counterclaim, set-off, abatement, deferment or
defense based upon any claim that such Guarantor may have against Bank,
Borrower, any other Guarantor or any other Person, and shall remain in full
force and effect without regard to, and shall not be released, discharged,
limited or affected in any way by any circumstance or condition (whether or
not such Guarantor shall have any knowledge thereof), including, without
limitation:
(a) any lack of validity or enforceability of the Credit
Agreement or any of the other Credit Documents;
(b) any termination, restatement, amendment, modification or
other change in the Credit Agreement or any of the other Credit
Documents;
(c) any furnishing, exchange, substitution or release of any
collateral, if any, or any failure to perfect any lien in any
collateral, if any, given to secure the Debt of Borrower arising
under the Credit Agreement and the other Credit Documents;
(d) any failure, omission or delay on the part of Borrower,
Bank, or any other Guarantor to conform or comply with any term of
the Credit Agreement or any of the other Credit Documents or any
failure of Bank to give notice of any Event of Default or any
Incipient Default;
(e) any waiver, compromise, release, settlement or extension
of time of payment or performance or observance of any of the
obligations or agreements contained in the Credit Agreement or any of
the other Credit Documents;
(f) any action or inaction by Bank under or in respect of the
Credit Agreement or any of the other Credit Documents, any failure,
lack of diligence, omission or delay on the part of Bank to enforce,
assert or exercise any right, power or remedy conferred on Bank in
the Credit Agreement or any of the other Credit Documents, or any
other action or inaction on the part of Bank;
(g) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, liquidation, marshalling of
assets and liabilities or similar events or proceedings with respect
to any Guarantor, Borrower or any other Person or any of their
respective properties or creditors, or any action taken by any
trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of Borrower, any Guarantor or
any other Person into or with any Person, or any sale, lease or
transfer of any of the assets of Borrower, any Guarantor or any other
Person to any other Person;
(i) any change in the ownership of any of the capital stock
of or other equity interests in Borrower or any Guarantor or any
change in the relationship between any Guarantor and Borrower or any
other Guarantor, or any termination of any such relationship;
(j) any release or discharge by operation of law of any
Guarantor or of Borrower from any obligation or agreement contained
in the Credit Agreement or any of the other Credit Documents;
(k) any other occurrence, circumstance, happening or event,
whether similar or dissimilar to the foregoing and whether foreseen
or unforeseen, which otherwise might constitute a legal or equitable
defense or discharge of the liabilities of a guarantor or surety or
which otherwise might limit recourse against any Guarantor or
Borrower;
(l) any election by Bank in any proceeding instituted under
Chapter 11 of Bankruptcy Code;
(m) any borrowing or grant of a security interest by
Borrower, any Guarantor or any other Person, as debtor-in-possession,
or extension of credit, under Bankruptcy Code;
(n) the disallowance, under Bankruptcy Code, of all or any
portion of Bank's claim(s) for repayment of the Debt of Borrower
arising under the Credit Agreement and the other Credit Documents or
of such Guarantor's Obligations;
(o) any use of cash collateral under Bankruptcy Code, and
(p) any agreement or stipulation as to the provision of
adequate protection in any bankruptcy proceeding.
4. WAIVERS. Each Guarantor unconditionally waives, to the extent
permitted by law, (i) notice of any of the matters referred to in SECTION 3
above, (ii) all notices which may be required by statute, rule of law or
otherwise, now or hereafter in effect, to preserve intact any rights
against such Guarantor, including, without limitation, any demand,
presentment and protest, proof of notice of non-payment under any of the
Credit Documents and notice of any Incipient Default, any Event of Default
or any failure on the part of any Guarantor or Borrower to perform or
comply with any covenant, agreement, term or condition of the Credit
Agreement or any of the other Credit Documents, (iii) any right to the
enforcement, assertion or exercise against any Guarantor or Borrower of any
right or remedy conferred under the Credit Agreement or any of the other
Credit Documents, (iv) any requirement of diligence on the part of any
Person, (v) any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under the Credit Agreement or any of the
other Credit Documents, and (vi) any notice of any sale, transfer or other
disposition of any right, title or interest of Bank, under the Credit
Agreement or any of the other Credit Documents.
5. SUBORDINATION. Each Guarantor agrees that any and all present
and future debts and obligations of Borrower or any other Guarantor to such
Guarantor hereby are subordinated to the claims of Bank and Bank hereby are
assigned by such Guarantor to Bank, as security for the payment and
performance of the Debt of Borrower arising under the Credit Agreement and
the other Credit Documents.
6. REINSTATEMENT. The obligations of each Guarantor pursuant to
this Guaranty shall continue to be effective or automatically be
reinstated, as the case may be, if at any time payment of any of the Debt
of Borrower arising under the Credit Agreement and the other Credit
Documents is rescinded or otherwise must be restored or returned by Bank
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of any Guarantor or Borrower or for any other reason, all as though such
payment had not been made.
7. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to Bank that (i) it is fully informed as to the nature and extent
of the transactions contemplated by the Credit Agreement and the other
Credit Documents, (ii) it has received a copy of the Credit Agreement and
the other Credit Documents, together with copies of the financial
statements referred to therein and such other documents and information as
it has deemed appropriate to make its own decision and analysis to enter
into this Guaranty and (iii) the representations and warranties made by
Borrower in the Credit Agreement with respect to such Guarantor are true
and correct in all material respects.
8. COVENANTS. Until all Debt of Borrower arising under the Credit
Agreement and the other Credit Documents and all of each Guarantor's
Obligations are paid and performed in full, and the commitments to extend
credit under the Credit Agreement have been terminated, each Guarantor
agrees that it will observe, perform and comply with all covenants
contained in SECTION 5 and SECTION 6 of the Credit Agreement with which
Borrower has agreed to cause such Guarantor to observe, perform or comply.
9. REMEDIES ON DEFAULT. If any Event of Default occurs and is
continuing, (i) each Guarantor shall pay such Guarantor's Obligations in
full, immediately upon demand and (ii) Bank at its option, may enforce its
rights and remedies under this Guaranty in accordance with its terms and
enforce any other rights or remedies accorded to Bank at equity or law, by
virtue of statute or otherwise. Each Guarantor agrees that Bank has all
rights of set-off and bankers' lien provided by applicable law, and in
addition thereto, each Guarantor agrees that at any time any Event of
Default occurs and is continuing, Bank may apply to the payment of any
obligations of such Guarantor hereunder, whether or not then due, any and
all balances, credits, deposits, accounts or moneys of such Guarantor then
or thereafter with Bank.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the
benefit of Bank and its successors and assigns. This Guaranty shall be
binding on each Guarantor and its successors and assigns, and shall
continue in full force and effect until all Debt of Borrower arising under
the Credit Agreement and the other Credit Documents and each Guarantor's
Obligations are paid and performed in full and the commitments to extend
credit under the Credit Agreement have been terminated. Notwithstanding
the foregoing, no Guarantor may assign all or any of its obligations
hereunder.
11. NO WAIVER OF RIGHTS. Neither any delay in exercising, nor any
failure on the part of Bank to exercise any right, power or privilege under
this Guaranty, the Credit Agreement or any of the other Credit Documents
shall operate as a waiver thereof, and no single or partial exercise of any
right, power or privilege shall preclude any other or further exercise
thereof or the exercise of any other power or right, or be deemed to
establish a custom or course of dealing or performance among the parties
hereto. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law. No notice to or
demand on any Guarantor in any case shall entitle such Guarantor to any
other or further notice or demand in the same, similar or any other
circumstance.
12. MODIFICATION. The terms of this Guaranty may be waived,
discharged or terminated only by an instrument in writing signed by the
party against whom enforcement of the change, waiver, discharge or
termination is sought. No amendment, modification, waiver or other change
of any of the terms of this Guaranty shall be effective without the prior
written consent of Bank and the Guarantors.
13. COSTS AND EXPENSES. Each Guarantor agrees to pay on demand all
documented costs and expenses incurred by or on behalf of Bank (including,
without limitation, reasonable attorneys' fees and expenses) in enforcing
such Guarantor's Obligations.
14. GOVERNING LAW. This Guaranty shall be a contract made under
and governed by the internal laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State.
15. FORUM SELECTION AND CONSENT TO JURISDICTION. EACH GUARANTOR
HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY SUCH GUARANTOR
AND ARISING DIRECTLY OR INDIRECTLY OUT OF THE CREDIT DOCUMENTS SHALL BE
LITIGATED IN EITHER THE SUPERIOR COURT OF XXXX COUNTY, ILLINOIS OR IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, OR IF
BANK INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING COURTS, ANY COURT
IN WHICH BANK SHALL INITIATE OR TO WHICH BANK SHALL REMOVE SUCH ACTION, TO
THE EXTENT SUCH COURT HAS JURISDICTION. EACH GUARANTOR HEREBY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED BY BANK IN OR REMOVED BY BANK TO ANY OF SUCH COURTS,
AND HEREBY AGREES THAT PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR
OTHER PROCESS OR PAPERS ISSUED THEREIN MAY BE SERVED IN THE MANNER PROVIDED
FOR NOTICES HEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT
OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH GUARANTOR AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT
TO BORROWER PURSUANT TO SECTION 9.1 OF THE CREDIT AGREEMENT. EACH
GUARANTOR WAIVES ANY CLAIM THAT EITHER THE SUPERIOR COURT OF XXXX COUNTY,
ILLINOIS OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF
VENUE. TO THE EXTENT PROVIDED BY LAW, SHOULD ANY GUARANTOR, AFTER BEING SO
SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR
PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE
MAILING THEREOF, SUCH GUARANTOR SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED BY THE COURT AGAINST SUCH GUARANTOR AS
DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE
EXCLUSIVE CHOICE OF FORUM FOR GUARANTOR SET FORTH IN THIS SECTION 15 SHALL
NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY BANK OF ANY JUDGMENT OBTAINED
IN ANY OTHER FORUM OR THE TAKING BY BANK OF ANY ACTION TO ENFORCE THE SAME
IN ANY OTHER APPROPRIATE JURISDICTION, AND EACH GUARANTOR HEREBY WAIVES THE
RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
16. WAIVER OF RIGHT TO JURY TRIAL. BANK AND EACH GUARANTOR
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE
CREDIT DOCUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY
WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE
PARTIES AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
17. NO JOINDER. Each Guarantor agrees that any action to enforce
this Guaranty may be brought against such Guarantor without any
reimbursement or joinder of Borrower in such action.
18. SEVERABILITY. In the event that any provision of this Guaranty
is deemed to be invalid by reason of the operation of any law, or by reason
of the interpretation placed thereon by any court or any Governmental Body,
as applicable, the validity, legality and enforceability of the remaining
terms and provisions of this Guaranty shall not in any way be affected or
impaired thereby, all of which shall remain in full force and effect, and
the affected term or provision shall be modified to the minimum extent
permitted by law so as to achieve most fully the intention of this
Guaranty.
19. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
20. SUBORDINATION OF SUBROGATION RIGHTS. Each Guarantor
unconditionally and irrevocably (i) subordinates all rights it may have to
be subrogated to the rights of Bank as a result of any claim or payment
made on or in respect of this Guaranty to the prior payment in full of the
Debt of Borrower arising under the Credit Agreement and the other Credit
Documents and (ii) waives any defense based upon an election of remedies by
Bank which destroys or otherwise impairs any subrogation rights of such
Guarantor and/or the right of such Guarantor to proceed against Borrower
for reimbursement.
21. NO FOREIGN GUARANTORS. No Subsidiary of Borrower organized
under the laws of a jurisdiction other than the United States or a
political subdivision thereof shall be required to become a Guarantor under
this Guaranty.
[remainder of this page intentionally left blank]
The undersigned, a Subsidiary of Xxxxxxxx, Inc., a Delaware
corporation ("Borrower"), in witness of and intending to be bound by the
foregoing Guaranty (the "Guaranty") made by various Subsidiaries of
Borrower in favor of LaSalle Bank National Association, a national banking
association ("Bank"), in respect of the obligations of Borrower under the
Credit Agreement described in such Guaranty, hereby joins with and into the
Guaranty and executes and delivers to Bank this counterpart signature page
to the Guaranty.
____________________________________
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
SCHEDULE 4.3
SUBSIDIARIES
(To be prepared by Borrower)
SCHEDULE 6.1
DEBT
(To be prepared by Borrower)
SCHEDULE 6.2
LIENS
(To be prepared by Borrower)
