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EXHIBIT (b)
LOAN AGREEMENT DATED AUGUST 15, 2000, AS AMENDED BY THE
MODIFICATION AGREEMENT DATED AUGUST 1, 2001,
BETWEEN ORIG, LLC AND BANK OF LOUISVILLE.
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EXHIBIT (b)
LOAN AGREEMENT DATED AUGUST 15, 2000, AS AMENDED BY THE
MODIFICATION AGREEMENT DATED AUGUST 1, 2001,
BETWEEN ORIG, LLC AND BANK OF LOUISVILLE.
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LOAN AGREEMENT
dated as of August 15, 2000
between
BANK OF LOUISVILLE
as the Lender
and
ORIG, LLC
as the Borrower
and joined by
X. X. XXXXXXX
and
XXXXX XXXXX
as the Guarantors
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TABLE OF CONTENTS
SECTION I DEFINITIONS......................................................1
SECTION II REVOLVING CREDIT LOAN............................................5
2.01 Amount of Revolving Credit.......................................5
2.02 Term of the Revolving Credit.....................................5
2.03 Revolving Credit Loans...........................................5
2.04 The Revolving Credit Notes.......................................8
2.05 Interest on Revolving Credit Loans...............................8
2.06 Minimum Principal Balance........................................9
2.07 Notation of Disbursements and Payments...........................9
2.08 Principal and Interest Payments..................................9
2.09 Mandatory Prepayments............................................9
2.10 Optional Principal Payments......................................9
2.11 Application of Payments.........................................10
2.12 Application of Principal Payments...............................10
2.13 Purposes of Loans...............................................10
2.14 Certain limitations on Revolving Credit Loan Advances...........10
SECTION III SECURITY FOR THE LOANS..........................................11
3.01 Right of Offset.................................................11
3.02 Security Interest in Partnership Interests......................11
3.03 Guaranties......................................................11
SECTION IV CONDITIONS PRECEDENT............................................11
4.01 Conditions Precedent to the first Revolving Credit Loan.........11
4.02 Conditions Preceding to Subsequent Revolving Credit Loans.......13
SECTION V GENERAL COVENANTS...............................................13
5.01 Insurance.......................................................13
5.02 Taxes and Other Payment Obligations.............................15
5.03 Financial Statements............................................15
5.04 Financial Records...............................................16
5.05 Properties......................................................16
5.06 Existence and Good Standing.....................................16
5.07 Notice Requirements.............................................17
5.08 Revolving Credit Notes and Other Borrower Documents.............17
5.09 Compliance with Law.............................................17
5.10 Liens...........................................................17
5.11 Limit on Indebtedness, Guarantees, Etc..........................18
5.12 Articles of Organization and Operating Agreement................18
5.13 Mergers, Sales, Transfers and Other Dispositions of Assets......18
5.14 Loans...........................................................19
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5.15 No Change in Ownership..........................................19
5.16 Payment of Distributions........................................19
5.17 ERISA Compliance................................................19
5.18 Joinder of Subsidiaries.........................................20
SECTION VI REPRESENTATIONS AND WARRANTIES..................................20
6.01 Organization and Existence......................................20
6.02 Right to Act....................................................20
6.03 No Conflicts....................................................21
6.04 Authorization...................................................21
6.05 Enforceable Agreements..........................................21
6.06 Contingent Obligations..........................................21
6.07 Litigation......................................................21
6.08 Financial Statements............................................21
6.09 Compliance with Contractual Obligations, Laws and Judgments.....22
6.10 Investment Company..............................................22
6.11 Tax Returns.....................................................22
6.12 No Undisclosed Liabilities or Guaranties........................22
6.13 Title to Properties.............................................22
6.14 Trademarks and Permits..........................................22
6.15 No Defaults.....................................................23
6.16 Employee Benefit Plans..........................................23
6.17 No Material Adverse Conditions..................................23
6.18 Regulations Q and U.............................................23
6.19 Environmental Matters...........................................23
6.20 No Public Utility Holding Company...............................24
6.21 No Subsidiaries.................................................24
6.22 Disclosure......................................................24
SECTION VII EVENTS OF DEFAULT...............................................24
7.01 Failure to Pay..................................................24
7.02 No Notice Required..............................................24
7.03 Notice Required.................................................24
7.04 Falsity of Representation or Warranty...........................25
7.05 Judgments.......................................................25
7.06 Adverse Financial Change........................................25
7.07 Other Obligations...............................................25
7.08 Dissolution or Termination of Existence.........................25
7.09 Solvency........................................................25
SECTION VIII REMEDIES UPON DEFAULT...........................................26
8.01 Right to Offset.................................................26
8.02 Enforcement of Rights...........................................26
8.03 Rights Under Security Instruments...............................27
8.04 Cumulative Remedies.............................................27
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SECTION IX FEES AND EXPENSES...............................................27
9.01 Transaction Expenses............................................27
9.02 Enforcement Expenses............................................27
SECTION X MISCELLANEOUS PROVISIONS........................................28
10.01 Business Days...................................................28
10.02 Term of this Agreement..........................................28
10.03 No Waivers......................................................28
10.04 Course of Dealing...............................................28
10.05 Certain Waivers by the Borrower and the Guarantors..............28
10.06 Severability....................................................28
10.07 Time of the Essence.............................................28
10.08 Benefit and Binding Effect......................................28
10.09 Further Assurances..............................................29
10.10 Incorporation by Reference......................................29
10.11 Entire Agreement; No Oral Modifications.........................29
10.12 Headings........................................................29
10.13 Governing Law...................................................29
10.14 Assignments.....................................................29
10.15 Multiple Counterparts...........................................29
10.16 Notices.........................................................30
10.17 Survival of Covenants...........................................31
10.18. Consent to Jurisdiction.........................................31
10.20 JURY TRIAL WAIVER.............................................31-A
10.21 ACKNOWLEDGMENT................................................31-A
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LOAN AGREEMENT
--------------
This is a Loan Agreement (this "Agreement") dated as of August 15,
2000, between
BANK OF LOUISVILLE
a Kentucky banking corporation
000 X. Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Lender")
and
ORIG, LLC
a Kentucky limited liability company
00000 Xxxx Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx (the "Borrower")
and joined in by
X. X. XXXXXXX
00000 Xxxx Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000 ("Xxxxxxx")
and
XXXXX XXXXX
00000 Xxxx Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000 ("Xxxxx")
Recitals
--------
The Lender intends to provide to the Borrower, and the Borrower would
like to avail itself of the Revolving Credit Loan subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
SECTION I
---------
Definitions
-----------
As used in this Agreement, the following terms shall have the
following meanings and the meanings assigned to them shall be equally
applicable to both the singular and plural forms of the terms defined:
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"Affiliate" shall mean any Person (a) who directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, a Person, or (b) five percent (5%) or more of the equity
interests of whom is beneficially owned or held by such Person or a subsidiary
of such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of equity interest, by
contract or otherwise.
"Borrower" shall mean ORIG, LLC, together with all existing, as well
as future Subsidiaries of ORIG, LLC.
"Borrower Documents" shall mean, collectively, this Agreement, the
Revolving Credit Notes, the Pledge Agreement, the Guaranty Agreements and any
and all other documents to be executed and/or delivered by the Borrower and/or
the Guarantors which relate to this Agreement.
"Business Day" shall mean any day other than a Saturday or Sunday or
legal holiday on which commercial banks are authorized or required to be closed
for business in the Commonwealth of Kentucky.
"Closing Date" shall mean August 15, 2000.
"Collateral" shall mean any and all of the property of the Borrower in
which the Borrower grants the Lender a security interest.
"CPA Firm" shall mean the Borrower's firm of certified public
accountants which regularly performs accounting services for the Borrower,
provided that such firm is reasonably satisfactory to the Lender in the
Lender's discretion.
"Distribution" shall mean any amount of money or other property
declared or paid, or set apart for the purpose of payment of, any distribution
on or in respect of any capital, income or other interest in the Borrower
(including, without limitation, any "membership interest" or similar interest
under any operating agreement) and/or the purchase, retirement, reacquisition
or redemption of any capital, income, membership or other interest (including,
without limitation, any "membership interest" or similar interest under any
operating agreement) and/or any distribution by way of reduction of capital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA as in
effect on the date of this Agreement and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"Event of Default" shall mean any one of the occurrences which are
Events of Default under Section VII of this Agreement.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with prior periods.
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"Guarantors" shall mean Xxxxxxx and Xxxxx.
"Guaranty Agreements" shall mean, collectively, (a) the Guaranty
Agreement dated as of August 15, 2000 among the Lender, the Borrower, and (b)
the Guaranty Agreement dated as of August 15, 2000, among the Lender, the
Borrower and Xxxxx. "Guaranty Agreement" shall mean either of the Guaranty
Agreements.
"Indebtedness" shall mean all obligations, contingent or otherwise,
which, in accordance with GAAP, should be classified on the Person's balance
sheet as liabilities.
"Loan" shall mean any Revolving Credit Loan, and "Loans" shall mean
all of the Revolving Credit Loans, collectively.
"Note" shall mean any of the Revolving Credit Notes and any note or
notes delivered in renewal, replacement, substitution extension or novation of
any of them.
"NTS III" shall mean NTS-Properties III, a limited partnership
organized under the laws of the State of Georgia.
"NTS IV" shall mean NTS-Properties IV, a limited partnership organized
under the laws of the Commonwealth of Kentucky.
"NTS V" shall mean NTS-Properties V, a Maryland Limited Partnership, a
limited partnership organized under the laws of the State of Maryland.
"NTS VI" shall mean NTS-Properties VI, a Maryland Limited Partnership,
a limited partnership organized under the laws of the State of Maryland.
"NTS VII" shall mean NTS-Properties VII, Ltd., a limited partnership
organized under the laws of the State of Florida.
"NTS Plus" shall mean NTS-Properties Plus, Ltd., a limited partnership
organized under the laws of the State of Florida.
"Partnership" shall mean any of NTS III, NTS IV, NTS V, NTS VI, NTS
VII, and/or NTS Plus, and "Partnerships" shall mean all of them or any
combination of them.
"Partnership Interests" shall mean all general and/or limited
partnership interest or interests of the Borrower from time to time in any one
or more of the Partnerships to the maximum extent permitted by law, including
Florida Statutes sec. 620.102, Georgia Code Xxx. sec. 14-9-101, Kentucky Revised
Statutes sec. 362.401 and Maryland Code Xxx. sec. 10-101, and shall include
without limitation the right to profits, distributions, return of capital,
partner loans or advances, and all rights to vote for, consent or otherwise
approve any matter. The Partnership Interests of the Borrower on the date of
this Agreement are described on Schedule 1(P) to this Agreement. Partnership
Interests in one or more of the Partnerships acquired after the date of this
Agreement are not described on Schedule 1(P) (although they may be described in
one or
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more Supplements to Pledge Agreements), but such failure to be described on
Schedule 1(P) does not derogate from those interests in the Partnerships being
Partnership Interests.
"Partnership Notice and Assignment" shall mean a notice to a
Partnership of the pledge of a Partnership Interest or Partnership Interests,
together with the acknowledgement by the Partnership of that pledge,
satisfactory in all respects to the Lender and generally in the form of ANNEX E
to this Agreement.
"Prime Rate" shall mean the rate of interest announced by the Lender
from time to time as its Prime Rate, as that Prime Rate may change from time to
time, provided, however, the Prime Rate is not necessarily the best or lowest
rate offered by the Lender to its customers.
"Person" shall mean any individual, partnership, limited liability
company, association, trust, corporation or other entity.
"Plan" or "Plans" means, at any time, an employee pension or benefit
plan which is covered by Title IV of ERISA and is either (a) maintained by the
Borrower, or (b) maintained pursuant to a collective bargaining agreement or
similar arrangement under which more than one employee makes contributions and
to which the Borrower is making and accruing an obligation to make
contributions or has within the preceding five plan years made contributions.
"Pledge Agreement" shall mean the Pledge Agreement dated as of August
15, 2000, between the Borrower and the Lender, satisfactory to the Lender in
its discretion, and substantially in the form attached hereto as ANNEX B, as it
may be amended from time to time.
"Request for Advance" shall mean a request, written or oral, in such
form and with such information as the Lender may request or require, from the
Borrower for an advance under the Revolving Credit Loan.
"Revolving Credit" shall mean the Revolving Credit made available by
the Lender to the Borrower under Section II of this Agreement.
"Revolving Credit Notes" shall mean collectively the three promissory
notes issued by the Borrower to the order of the Lender with respect to the
Revolving Credit Loan in the face principal amount of Two Million Dollars
($2,000,000.00) each (for a total of Six Million Dollars ($6,000,000.00)), and
substantially in the form of ANNEXES A-1 though A-3 attached hereto, and all
notes delivered in renewal, replacement, substitution, extension or novation
thereof. "Revolving Credit Note" shall mean any of the Revolving Credit Notes.
"Subsidiary" shall mean, any Person of which the Borrower, directly or
indirectly, through one or more intermediaries, owns a Majority. Without
limiting the foregoing, if a Majority of any Person is owned, directly or
indirectly, by a Subsidiary, such Person is, itself, a Subsidiary. "Majority"
shall mean more than fifty percent (50%) of (a) the voting stock or interests
(by number of votes), and/or (b) the equity in, or equity interests of, such
Person.
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"Supplement to Pledge Agreement" shall have the meaning given it in
the Pledge Agreement.
"Termination Date" shall mean August 31, 2005.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the Commonwealth of Kentucky.
"Unmatured Default" shall mean the happening of any material breach
under this Agreement, including but not limited to failure to pay any
installment of principal or interest of the Revolving Credit Note when due, or
a breach of the financial covenants under this Agreement, or other similar
material breach the happening of which, together with the giving of any
required notice or the passage of any required period of time, would constitute
an Event of Default.
SECTION II
----------
Revolving Credit Loan
---------------------
The Lender hereby establishes the Revolving Credit Loan in favor of
the Borrower as follows:
2.01 AMOUNT OF REVOLVING CREDIT. The total principal amount available
under the Revolving Credit shall be Six Million Dollars and 00/100
($6,000,000.00).
2.02 TERM OF THE REVOLVING CREDIT. The Revolving Credit is effective
as of the date of this Agreement, and shall continue in effect until the
Termination Date, unless the Revolving Credit is sooner extended or terminated
as provided in this Agreement. On the Termination Date, the Revolving Credit
shall terminate and all Revolving Credit Loans shall mature and be payable in
full.
2.03 REVOLVING CREDIT LOANS.
(a) The Borrower may request and the Lender may advance Revolving
Credit Loans during the term of Revolving Credit. Unless sooner terminated,
advances under the Revolving Credit will be available until the maturity of the
Revolving Credit on the Termination Date, after which the Borrower shall not be
entitled to obtain any additional advances under the Revolving Credit.
(b) The Lender shall have the right, at its option, in its own
discretion, to terminate the Revolving Credit upon the occurrence of any Event
of Default by giving notice to the Borrower of such termination. Any
termination of the Revolving Credit shall not release the Borrower from its
obligations under this Agreement or any of the other Borrower Documents, nor
shall it terminate this Agreement or any of the other Borrower Documents. The
provisions of this Agreement and the other Borrower Documents shall continue in
full force and effect for the entire term of this Agreement as provided in
Section 10.02.
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(c) Subject to the terms and conditions of this Agreement, so
long as the Revolving Credit remains in effect and is not terminated, and no
Unmatured Default or Event of Default has occurred, the Lender agrees to make
Revolving Credit Loans as the Borrower may request from time to time in
accordance with the provisions of this Agreement generally, and this Section II
in particular, provided that after giving effect to any requested Revolving
Credit Loan, the principal balance of all Revolving Credit Loans outstanding at
any one time shall not exceed the amount of the Revolving Credit as provided in
Section 2.01. Principal borrowed under the Revolving Credit and then repaid may
be reborrowed, subject to the other terms, provisions and conditions of this
Agreement and the other Borrower Documents.
(d) The Lender is under no duty to extend the period of the
Revolving Credit beyond the Termination Date. Before, at or after the
termination of the Revolving Credit, the Lender may (at its discretion, with no
obligation to do so) extend the term of the Revolving Credit, on a basis and
with terms and conditions satisfactory to the Lender. Any such extension must
be done in a writing signed by the Lender and specifically providing for an
extension of the Revolving Credit in order to be binding. If any extension of
the period of the Revolving Credit were to occur, the Pledge Agreement, and the
other Borrower Documents would remain in effect and continue to apply to the
Revolving Credit Notes, as extended (or to renewal or replacement notes for the
Revolving Credit Notes, or their replacement), until those Revolving Credit
Notes, as extended, renewed or replaced, have been paid in full.
(e) Each Revolving Credit Loan shall be subject to the following
terms and conditions, in addition to any other terms and conditions provided in
this Agreement:
(1) Each Revolving Credit Loan shall be in connection with
the acquisition of and payment for specific Partnership Interests, and shall be
in an amount no greater than the actual, out-of-pocket costs to the Borrower to
acquire those specific Partnership Interests.
(2) Before the Borrower enters into a binding contract to
acquire Partnership Interests, it shall (A) advise the Lender of its desire to
do so; (B) provide the Lender with such information as the Lender may desire
with respect to the particular Partnership Interests to be acquired and the
price that the Borrower would pay to acquire those Partnership Interests; and
(C) refrain from entering into a binding contract to acquire those Partnership
Interests until and unless the Lender shall, in its discretion, have approved
the aggregate cost to the Borrower of acquiring those Partnership Interests.
(3) Whenever the Borrower desires to obtain an Revolving
Credit Loan, it shall deliver to the Lender a Request for Advance either orally
or in writing, unless waived by the Lender in writing, on or before the day on
which it wishes to have the advance made available, together with such other
information with respect to that advance and its purpose as the Lender may
request. Without limiting the foregoing, each Request for Advance shall specify
the amount of the advance under the Revolving Credit Loan requested and the
date on which the Borrower desires the advance to be made available.
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(4) Together with a Request for Advance, the Borrower shall
deliver to the Lender (A) a Supplement to Pledge Agreement in such form and
such information as the Lender may require to confirm that the Partnership
Interests to be acquired with the proceeds (in whole or in part) of that
Revolving Credit Loan shall become subject to the Pledge Agreement; (B)
Partnership Notices and Assignments with respect to all of the Partnership
Interests to be acquired with the proceeds (in whole or in part) of that
Revolving Credit Loan; (C) UCC-3 Amendments to Financing Statements describing
the Partnership Interests to be acquired (in whole or in part) with proceeds
from the Revolving Credit Loan as additional collateral for the obligations
secured by the Pledge Agreement; and (D) evidence satisfactory to the Lender
that the Partnership Interests to be acquired with proceeds (in whole or in
part) of that Revolving Credit Loan are or will be (upon completion of the
acquisition) owned by the Borrower free from any interest, claim, lien, charge,
encumbrance and/or security interest of any Person other than the Lender.
Without limiting the foregoing clause (D), such evidence shall include, but not
be limited to, (I) in the case of the Borrower's acquisition of Partnership
Interests which, when aggregated with all previous acquisitions of Partnership
Interests from the same Person, directly or indirectly, have an aggregated
acquisition cost of $25,000 or greater, (a) a search or searches of such public
records in the name of the Borrower as the Lender may specify, in its
discretion, disclosing no lien, charge, interest, encumbrance and/or security
interest in favor of any Person, other than the Lender, and (b) a search or
searches of such public records in the name of the Person from whom the
Borrower acquired or would acquire the Partnership Interests as the Lender may
specify, in its discretion, disclosing no lien, charge, interest, encumbrance
and/or security interest in favor of any Person, and (II) in all cases,
delivery of any and all certificates and/or other writings evidencing and/or
representing such Partnership Interests, together with an assignment in blank
in form and substance satisfactory to the Lender and its counsel in their
discretion.
(5) The Borrower shall not be entitled to obtain any
Revolving Credit Loan if any Event of Default or Unmatured Default shall exist
or would exist upon the making of the Revolving Credit Loan requested, even if
the Lender does not elect to terminate the Revolving Credit as a result of such
Event of Default or Unmatured Default.
(6) The Borrower shall not be entitled to obtain any
Revolving Credit Loan if immediately after the advance requested were made, the
aggregate of all of the Revolving Credit Loans would exceed the maximum amount
permitted under Section 2.01.
(7) All Revolving Credit Loans shall be made in strict
compliance with the terms and provisions of this Agreement unless the Lender
elects in its discretion to waive any of those terms and conditions (which the
Lender shall not be required to do). The waiver of any terms and/or conditions
with respect to any one advance shall not constitute a course of dealing or a
waiver of the same or any other terms or conditions with respect to any other
requested advance.
(8) Each request by the Borrower for a Revolving Credit Loan
shall constitute the making of the following representations and warranties by
the Borrower and the Guarantors to the Lender:
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(A) That the Borrower is then, and at the time the advance
will be made will be, entitled under this Agreement to obtain that Revolving
Credit Loan; and
(B) All of the covenants, agreements, representations and
warranties made by the Borrower and the Guarantors in this Agreement, and in
the other Borrower Documents, are true, correct and complete in all material
respects and have been complied with in all material respects as of such date
(subject to only two changes of circumstances which (x) are fully disclosed by
the Borrower to the Lender in writing, describing the changed circumstances,
and (y) do not result in any violation of any condition, provision, promise
and/or covenant of this Agreement, or otherwise result in an Unmatured Default
or an Event of Default).
2.04 THE REVOLVING CREDIT NOTES.
(a) The Revolving Credit Loans shall be evidenced by and payable
in accordance with the terms of the Revolving Credit Notes and on the terms of
this Agreement. In the event of any disagreement between the terms of the
executed Revolving Credit Notes and this Agreement, the terms of the Revolving
Credit Notes shall prevail.
(b) The first Two Million Dollars ($2,000,000) of Revolving
Credit Loans shall be allocated to and evidenced by Revolving Credit Note A.
The principal balance of Revolving Credit Loans will be credited against and
evidenced by Revolving Credit Note B if, but only if, and only to the extent
the aggregate principal balance of all Revolving Credit Loans outstanding at
one time exceeds Two Million Dollars ($2,000,000), but is less than Four
Million Dollars ($4,000,000). The outstanding principal balance of Revolving
Credit Loans shall be credited against and evidenced by Revolving Credit Note C
if, but only if, and only to the extent the aggregate principal balance of all
Revolving Credit Loans outstanding at one time equals or exceeds Four Million
Dollars ($4,000,000). Accordingly, the first Two Million Dollars ($2,000,000),
or portion thereof, of Revolving Credit Loans outstanding at any one time shall
be credited against and evidenced by Revolving Credit Note A; at such time as
the outstanding principal balance of the Revolving Credit Loans is greater than
Two Million Dollars ($2,000,000), but less than Four Million Dollars
($4,000,000), Revolving Credit Loans made at such time shall be credited
against and evidenced by Revolving Credit Note B; and at such time as the
outstanding principal balance of all Revolving Credit Loans outstanding at one
time equals or exceeds Four Million Dollars ($4,000,000), Revolving Credit
Loans made at such time shall be credited against and evidenced by Revolving
Credit Note C.
2.05 INTEREST ON REVOLVING CREDIT LOANS.
(a) The principal balance of the Revolving Credit Loans
outstanding from time to time shall bear interest from the date of the
Revolving Credit Notes until all principal and interest on the Revolving Credit
Loans shall have been paid in full.
(b) The outstanding principal balance of Revolving Credit Loans
from time to time evidenced by Revolving Credit Note A shall bear interest at
an annual rate equal to one quarter percent (1/4%), PLUS the Prime Rate as that
Prime Rate may change from time to time.
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The outstanding principal balance of Revolving Credit Loans from time to time
evidenced by Revolving Credit Note B shall bear interest at an annual rate
equal to one-half percent (1/2%), PLUS the Prime Rate as that Prime Rate may
change from time to time. The outstanding principal balance of Revolving Credit
Loans from time to time evidenced by Revolving Credit Note C shall bear
interest at an annual rate equal to one percent (1%), PLUS the Prime Rate as
that Prime Rate may change from time to time.
(c) All interest on the Revolving Credit Loan shall be calculated
on the basis of the actual number of days elapsed over an assumed year of
three-hundred sixty days (360).
2.06 MINIMUM PRINCIPAL BALANCE. If, for any reason, after the making
of the first Revolving Credit Loan the principal balance of the Revolving
Credit Notes is reduced below one thousand dollars ($1,000.00), then, at the
option of the Lender the Revolving Credit may be terminated by the Lender
without necessity of notice to the Borrower.
2.07 NOTATION OF DISBURSEMENTS AND PAYMENTS. Disbursements of, and
payments of principal with respect to, Revolving Credit Loans shall be
evidenced by notations by the Lender on its electronic data processing
equipment, showing the date and amount of each advance and each payment of
principal. The principal amount outstanding under the Revolving Credit Notes
from time to time shall also be recorded by the Lender on that electronic data
processing equipment. The aggregate amount of all disbursements of Revolving
Credit Loans made and shown on the Lender's electronic data processing
equipment, over all of the payments of principal made by the Borrower and
recorded on the Lender's electronic data processing equipment, shall be prima
facie evidence of the outstanding principal balance due under the Revolving
Credit Notes.
2.08 PRINCIPAL AND INTEREST PAYMENTS. Commencing on September 1, 2000,
and continuing on the first (1st) day of each calendar month occurring through
and including August 1, 2005, the Borrower shall pay to the Lender all accrued
and unpaid interest on the Revolving Credit Loans. On the Termination Date, the
Borrower shall pay to the Lender all of the outstanding principal balance of,
and all accrued but unpaid interest on, the Revolving Credit Loans.
2.09 MANDATORY PREPAYMENTS. If the Borrower sells, transfers or
otherwise disposes of any of the Partnership Interests, then the Borrower shall
make a prepayment of the Revolving Credit Loans in an amount calculated in
accordance with this Section. The amount of the prepayment shall be not less
than the amount of proceeds of the Revolving Credit Loan or Loans which the
Borrower received and applied (in whole or in part) towards the acquisition of
the Partnership Interest or Partnership Interests sold, transferred, or
otherwise disposed of. Mandatory prepayments under this Section shall be
applied in accordance with Section 2.10 of this Agreement.
2.10 OPTIONAL PRINCIPAL PAYMENTS. The Borrower may make optional
prepayments of principal of the Revolving Credit Loan from time to time. Each
prepayment shall be accompanied by written statement that it is in prepayment
of the Revolving Credit Loan.
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2.11 APPLICATION OF PAYMENTS. The Lender shall apply all payments of
Revolving Credit Loans received when no Event of Default has occurred and is
continuing first to any late fees or other charges, then to accrued but unpaid
interest, and then to principal. The Lender may apply all payments of Revolving
Credit Loans received after an Event of Default has occurred and is continuing
among late fees and other charges, interest and principal as the Lender may
determine, in its discretion.
2.12 APPLICATION OF PRINCIPAL PAYMENTS. Unless otherwise agreed by the
Lender and the Borrower in writing, all payments of principal, whether
mandatory or optional, received by the Lender when no Event of Default has
occurred and is continuing shall be applied first to the principal of Revolving
Credit Loans evidenced by Revolving Credit Note C until all of the Revolving
Credit Loans evidenced thereby shall have been paid in full, then to the
principal of Revolving Credit Loans evidenced by Revolving Credit Note B, until
all of the Revolving Credit Loans evidenced thereby shall have been paid in
full, then to the principal of Revolving Credit Loans evidenced by Revolving
Credit Note A. All payments of principal on Revolving Credit Loans, whether
mandatory or optional, received by the Lender after an Event of Default has
occurred and is continuing may be applied by the Lender among Revolving Credit
Notes A, B and C as the Lender may determine, in its discretion.
2.13 PURPOSES OF LOANS. The Borrower shall use the proceeds of all
Loan solely to acquire Partnership Interests, provided, that, the Borrower may
not apply any proceeds from any Revolving Credit Loan to the purchase of any
Partnership Interests unless the Borrower shall first have advised the Lender
of the specific Partnership Interests that the Borrower intends to acquire with
the proceeds of that Revolving Credit Loan, and the Lender shall, in its
discretion, have approved the purchase price of those Partnership Interests.
2.14 CERTAIN LIMITATIONS ON REVOLVING CREDIT LOAN ADVANCES. Without
limiting Section 2.13,
(a) the Borrower may not use any proceeds of any Revolving Credit
Loan to acquire any Partnership Interest or Partnership Interests from (1) any
Affiliate of the Borrower, (2) either Guarantor, and/or (3) any member of the
family of either of the Guarantors (for purposes of this provision, "family"
means (A) mother or father of the subject Person, (B) any brother or sister (or
brother-in-law or sister-in-law) of such mother or father, (C) any son or
daughter (or son-in-law or daughter-in-law) of any such brother or sister of
such mother or father, and (D) any son or daughter (or son-in-law or
daughter-in-law) and/or grandson or granddaughter (and/or grandson-in-law or
granddaughter-in-law) of such Person).
(b) the Borrower shall not use the proceeds of any Revolving
Credit Loan to pay any interest that has accrued on the Revolving Credit Loans.
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SECTION III
-----------
Security for the Loans
----------------------
The Revolving Credit Notes and the Revolving Credit Loans evidenced
thereby, as well as all of the Borrower's obligations under all of the Borrower
Documents are and shall be secured by and entitled to the benefits of all of
the following:
3.01 RIGHT OF OFFSET. The right of offset provided in Section VIII of
this Agreement.
3.02 SECURITY INTEREST IN PARTNERSHIP INTERESTS. A first priority
perfected security interest in the Partnership Interests pursuant to the Pledge
Agreement.
3.03 GUARANTIES. The guaranties of the Guarantors pursuant to the
Guaranty Agreements.
SECTION IV
----------
Conditions Precedent
--------------------
4.01 CONDITIONS PRECEDENT TO THE FIRST REVOLVING CREDIT LOAN. The
Lender's obligation to provide the Borrower with the Revolving Credit and the
first Revolving Credit Loan shall be conditioned upon the fulfillment of all
the following conditions in form and substance, and in appropriate cases
through documents, in each case satisfactory to the Lender and its counsel in
their discretion:
(a) RESOLUTIONS. The Borrower shall have furnished the Lender
with certified copies of appropriate resolutions of the Borrower (1)
authorizing the execution of the following documents: this Agreement, the
Revolving Credit Notes, the Pledge Agreement, financing statements and any
other documents, instruments and agreements referred to herein which are
required to be executed and/or delivered by the Borrower and (2) authorizing
consummation of the transactions contemplated by, and performance of this
Agreement.
(b) ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT. The
Borrower shall have furnished the Lender with a copy of the Borrower's Articles
of Organization and Operating Agreement and all amendments to each.
(c) CERTIFICATES OF EXISTENCE. The Borrower shall have furnished
the Lender with a certificate of existence of recent date issued by the
Secretary of State of the Commonwealth of Kentucky, certifying that it is duly
organized and validly existing under the laws of the Commonwealth of Kentucky.
The Borrower shall also have furnished the Lender with certificates of
existence with respect to the Partnerships from appropriate offices in Georgia,
Kentucky, Maryland and Florida.
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(d) OPINION OF COUNSEL FOR THE BORROWER AND THE GUARANTORS. The
Borrower and the Guarantors shall have furnished the Lender, at the Borrower's
expense, with the legal opinion of Xxxxxxxxxx, Doll & XxXxxxxx PLLC, as counsel
for the Borrower, addressed to the Lender, dated the date of this Agreement,
addressing the matters set forth in ANNEX C, and otherwise satisfactory to the
Lender and its counsel.
(e) CERTIFICATES OF INCUMBENCY OF THE BORROWER. The Borrower
shall have furnished the Lender with a certificate of its secretary certifying
the names of the officers of the Borrower authorized to sign the Borrower
Documents, together with the true signatures of such officers.
(f) EXECUTED DOCUMENTS. The Borrower shall have duly executed and
shall have delivered to the Lender each of the following documents in
subparagraphs (1) through (5), and the Guarantors shall have executed and
delivered to the Lender the documents set forth in paragraphs (1) and (4)
below:
(1) this Agreement;
(2) the three Revolving Credit Notes;
(3) the Pledge Agreement;
(4) the Guaranty Agreements; and
(5) such UCC-1 financing statements or other
documents for filing with public officials with respect to the Pledge Agreement
as the Lender may request.
(g) PARTNERSHIP NOTICES AND ACKNOWLEDGEMENTS. The Borrower shall
have caused each Partnership to have countersigned and delivered to the Lender
Partnership Notices and Acknowledgements with respect to each, every and all of
the Partnership Interests described on Schedule 1(P) to this Agreement.
(h) REPRESENTATIONS AND WARRANTIES. Each and every representation
and warranty made by or on behalf of the Borrower at the time of or after the
execution of this Agreement relating to the Borrower Documents or the
transactions contemplated thereby shall be true, complete and correct in all
material respects on and as of the date such Loan is to be made.
(i) NO DEFAULTS. There shall exist no Event of Default or
Unmatured Default which has not been cured to the Lender's satisfaction.
(j) NO CHANGE IN THE BORROWER'S CONDITION. There shall have been
no material adverse change in the condition, financial or otherwise of the
Borrower from that existing on the date of the financial statements described
in Section 6.08 of this Agreement.
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(k) RECORDINGS AND FILINGS. The Lender shall have received
evidence satisfactory to it that all financing statements or other instruments,
as the Lender may reasonably request, have been executed and delivered by the
Borrower and filed or recorded in such public offices as the Lender may request
to perfect and maintain the perfection of the security interests which secure
the Loan, and to release any security interests, financing statements and/or
other liens or encumbrances on any of the Collateral other than such interests,
liens or encumbrances in favor of the Lender.
(l) COUNSEL FEES. The Borrower shall have paid the Lender's
counsel fees and expenses in accordance with Section 9.01 of this Agreement.
(m) RESULTS OF RECORDS SEARCHES. The Borrower shall have
delivered to the Lender results of searches of the records of such public
offices as the Lender may require with respect to liens, encumbrances or other
interests with respect to all existing Partnership Interests, disclosing no
liens, encumbrances or interests with respect to all existing Partnership
Interests other than those in favor of the Lender.
(n) EVIDENCE OF OWNERSHIP. The Borrower shall have delivered to
the Lender evidence satisfactory to the Lender of the Borrower's ownership of
the Partnership Interests described on Schedule 1(P) to this Agreement. Without
limiting the generality of the preceding sentence, the Borrower shall have
delivered to the Lender any and all certificates and/or other writings
evidencing and/or representing those Partnership Interests, together with
assignments in blank in form and substance satisfactory to the Lender and its
counsel in their discretion.
(o) COMPLIANCE WITH SECTION 2.03. The Borrower shall have
complied with Section 2.03 of this Agreement in all respects regarding such
Revolving Credit Loan.
4.02 CONDITIONS PRECEDING TO SUBSEQUENT REVOLVING CREDIT LOANS. The
Lender's obligation to provide the Borrower with Revolving Credit Loans after
the first Revolving Credit Loan shall be conditioned upon the fulfillment of
the conditions in Sections 4.01(g) with respect to the Partnership Interests
being acquired, in whole or in part with the proceeds of such Revolving Credit
Loan or Loans, and upon fulfillment of the conditions in Sections 4.01 (h),
(i), (j), (k), (n) and (o) with respect to such Revolving Credit Loans.
SECTION V
---------
General Covenants
-----------------
During the term of this Agreement, the Borrower shall comply with all
of the following provisions:
5.01 INSURANCE. The Borrower shall maintain insurance as follows:
(a) LIABILITY INSURANCE. The Borrower at its own cost and
expense, shall procure, maintain and carry in full force and effect general
liability, public liability, workers'
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compensation liability, environmental hazard liability and property damage
insurance with respect to the actions and operations of the Borrower to such
extent, in such amounts and with such deductibles as are carried by prudent
businesses similarly situated, but in any event not less than the amounts of
coverage per person and per occurrence, and with the deductibles, as are
provided in the Borrower's insurance in effect on the date of this Agreement.
Without limiting the foregoing, such insurance shall insure against any
liability for loss, injury, damage or claims caused by or arising out of or in
connection with the operation of the Borrower's business including injury to or
death of the Borrower's employees, agents or any other persons and damage to or
destruction of public or private property.
(b) PHYSICAL DAMAGE INSURANCE. The Borrower at its own cost and
expense, shall insure all of its insurable properties to such extent, against
such hazards (including, without limitation, environmental hazards), in the
amount of coverage and with such deductibles as are carried by prudent
businesses similarly situated, but in any event insuring against such hazards
and with such coverages and deductibles as are provided in the Borrower's
insurance in effect on the date of this Agreement, and in any event in amounts
of coverage not less than the insurable value of the property insured. Without
limiting the foregoing, such insurance shall name the Lender as an additional
insured and shall provide for payment of the proceeds thereof to the Borrower
and to the Lender as their interests may appear.
(c) GENERAL INSURANCE REQUIREMENTS.
(1) All insurance which the Borrower is required to maintain
shall be satisfactory to the Lender in form, amount and insurer. Such insurance
shall provide that any loss thereunder shall be payable notwithstanding any
action, inaction, breach of warranty or condition, breach of declarations,
misrepresentation or negligence of the Borrower. Each policy shall contain an
agreement by the insurer that, notwithstanding lapse of a policy for any
reason, or right of cancellation by the insurer or any cancellation by the
Borrower such policy shall continue in full force for the benefit of the Lender
for at least thirty (30) days after written notice thereof to the Lender and
the Borrower, and no alteration in any such policy shall be made except upon
thirty (30) days written notice of such proposed alteration to the Lender and
the Borrower and written approval by the Lender. At or before the making of the
first Loan, the Borrower shall provide the Lender with certificates evidencing
its due compliance with the requirements of this Section.
(2) Prior to the expiration date of any policy of insurance
maintained pursuant to this Agreement, the Borrower shall provide the Lender
with a certificate of insurance evidencing the acquisition of a new policy, or
an extension or renewal of an existing policy, evidencing the Borrower's due
compliance with this Section.
(3) If the Borrower fails to acquire any policy of insurance
required to be maintained pursuant to this Section, or fails to renew or
replace any such policy at least ten (10) days prior to the expiration thereof,
or fails to keep any such policy in full force and effect, the Lender shall
have the option (but not the obligation) to pay the premiums on any such policy
of insurance or to take out new insurance in amount, type, coverage and terms
satisfactory to the Lender, after first notifying the Borrower of the Lender's
intent to pay it. Any amounts paid
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therefor by the Lender shall be immediately due and payable to the Lender by
the Borrower upon demand. No exercise by the Lender of such option shall in any
way affect the provisions of this Agreement, including the provision that
failure by the Borrower to maintain the prescribed insurance shall constitute
an Event of Default.
5.02 TAXES AND OTHER PAYMENT OBLIGATIONS.
(a) The Borrower shall pay and discharge, or cause to be paid and
discharged, before any of them become in arrears, all taxes, assessments,
governmental charges, levies, and claims for labor, materials or supplies which
if unpaid might become a lien or charge upon any of their property, and all of
their other debts, obligations and liabilities.
(b) The Borrower may refrain from paying any amount it would be
required to pay pursuant to subparagraph (a) of this Section 5.02 if the
validity or amount thereof is being contested in good faith by appropriate
proceedings timely instituted which shall operate to prevent the collection or
enforcement of the obligation contested, provided that if the Borrower is
engaged in such a contest, it shall have set aside on its books appropriate
reserves with respect thereto. If the validity or amount of any such
obligations in excess of One Hundred Thousand Dollars ($100,000.00) shall be
contested pursuant to the provisions of this subparagraph, the Borrower shall
notify the Lender immediately upon the institution of the proceedings
contesting the obligation.
5.03 FINANCIAL STATEMENTS. The Borrower shall deliver to the Lender:
(a) ANNUAL STATEMENTS OF THE BORROWER. As soon as available, and
in any event within one hundred twenty (120) days after the end of each fiscal
year, the Borrower shall furnish to the Lender an audited balance sheet, income
statement, statement of cash flows, for such fiscal year, prepared by the
Borrower or the CPA Firm. Together with such annual financial statements, if
the CPA Firm prepared the annual financial statements, the Borrower shall
furnish the Lender with the CPA Firm's statement that the CPA Firm has reviewed
the provisions of this Agreement and nothing has come to the CPA Firm's
attention to cause it to believe that any Event of Default or Unmatured Default
exists as of the date of the statement, or, if such is not the case, specifying
such Event of Default or Unmatured Default and the nature thereof, and the
action the Borrower has taken or will take to correct it.
(b) ANNUAL STATEMENTS OF THE GUARANTORS. On or before June 1 of
each year, each Guarantor shall provide their financial statements to the
Lender as at the preceding December 31, in such form, with such detail and of
such scope as the Lender may determine in its discretion.
(c) ADDITIONAL FINANCIAL INFORMATION. The Borrower shall deliver
to the Lender:
(1) Promptly upon receipt thereof, all detailed reports,
management letters and the like, if any (excluding working drafts), submitted
to the Borrower by the CPA Firm if the CPA Firm audited the books of the
Borrower.
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(2) Within thirty (30) days after the respective dates of
filing the corporate federal income tax returns of the Borrower for each year,
a written statement signed by the CPA Firm that the firm has prepared or
reviewed the federal income tax returns of the Borrower for such year and in
the firm's opinion the provisions for federal taxes based on the income of the
Borrower, as recorded in the accounts, represents an adequate estimate of the
liability of the Borrower for federal taxes based on income.
(3) Promptly upon their becoming available, copies of all
financial statements, reports, notices of meetings and proxy statements which
the Borrower shall send to its members.
(4) Within thirty (30) days after the filing thereof in the
office of the Secretary of State of the Commonwealth of Kentucky, certified
copies of all amendments to the Borrower's Articles of Organization and
Operating Agreement.
(5) Such additional information with respect to the
Borrower's financial condition (including, without limitation, information
regarding the Collateral) as may be reasonably requested by the Lender from
time to time.
(e) All financial statements required under this Agreement shall
be prepared on a consolidated and consolidating basis (regardless whether
permitted or required under GAAP) for the Borrower and any Subsidiary which the
Borrower acquires or forms at any time.
5.04 FINANCIAL RECORDS. The Borrower shall maintain a standard modern
system of accounting in which full, true and correct entries shall be made of
all dealings or transactions in relation to its business and affairs in
accordance with GAAP applied on a basis consistent with prior years and,
without limitation, making appropriate accruals for estimated contingent losses
and liabilities.
5.05 PROPERTIES. The Borrower shall maintain its plants and other
fixed assets in good condition, subject only to normal wear and tear, and make
all necessary and proper repairs, renewals and replacements. The Borrower shall
comply with all material leases and other material agreements in order to
prevent loss or forfeiture, unless compliance is being contested in good faith
by appropriate proceedings timely instituted which shall operate to prevent
enforcement of the loss or forfeiture. The Lender shall have the right to
inspect the Borrower's plants and other fixed assets at all reasonable times,
and from time to time.
5.06 EXISTENCE AND GOOD STANDING. The Borrower shall preserve its
existences in good standing and shall be and remain qualified to do business
and in good standing in all states and countries in which failure to so qualify
would have a material adverse effect upon the Borrower.
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5.07 NOTICE REQUIREMENTS.
(a) DEFAULT. The Borrower shall cause its chief officer, or in
his absence an officer of the Borrower designated by it, to notify the Lender
in writing within three (3) Business Days, after the Borrower, or any of the
Borrower's members or officers, has notice of any Event of Default or Unmatured
Default or has notice that any representation or warranty made in this
Agreement, or in any related document or instrument, for any reason was not
true and complete and not misleading in any material respect when made. Such
notice shall specify the nature of such Event of Default or Unmatured Default
and the action the Borrower has taken or will take to correct it.
(b) MATERIAL LITIGATION. The Borrower promptly shall notify the
Lender in writing of the institution or existence of any litigation or
administrative proceeding to which the Borrower may be or become a party which
might involve any material risk of any judgment or liability which (1) would be
in excess of One Hundred Thousand Dollars ($100,000.00), or (2) would otherwise
result in any material adverse change in the Borrower's business, assets or
condition, financial or otherwise.
(c) OTHER INFORMATION. From time to time, upon request by the
Lender, the Borrower shall furnish to the Lender such information regarding the
Borrower's business, assets and condition, financial or otherwise, as the
Lender may reasonably request. The Lender shall have the right during
reasonable business hours to examine all of the Borrower's business and
financial books and records and to make notes and abstracts therefrom, to make
an independent examination of the Borrower's books and records for the purpose
of verifying the accuracy of reports delivered by the Borrower and ascertaining
compliance with this Agreement.
5.08 REVOLVING CREDIT NOTES AND OTHER BORROWER DOCUMENTS. The Borrower
shall pay the Revolving Credit Notes in accordance with their respective terms,
and the Borrower shall comply with the provisions of the other Borrower
Documents.
5.09 COMPLIANCE WITH LAW. The Borrower shall comply in all material
respects with (a) all valid and applicable statutes, rules and regulations of
the United States of America, of the States thereof and their counties,
municipalities and other subdivisions and of any other jurisdiction applicable
to the Borrower, including, but not limited to all applicable state and federal
environmental laws and ERISA; (b) the valid and applicable orders, judgments
and decrees of all courts or administrative agencies with jurisdiction over the
Borrower; or its business; and (c) the applicable provisions of licenses issued
to the Borrower except where compliance therewith shall be currently contested
in good faith by appropriate proceedings, timely instituted, which shall
operate to stay any order with respect to such non-compliance.
5.10 LIENS. Except for security interests previously granted by the
Borrower to the Lender contemporaneously with the execution of this Agreement
(including, without limitation, those permitted in Section 5.02(b) and those
disclosed in Section 6.13 of this Agreement), and except for liens permitted in
this Agreement, the Borrower shall not (a) create or incur or suffer to be
created or incurred or to exist any encumbrance, mortgage, pledge, lien,
charge, restriction or other security interest of any kind upon any of the
Collateral, whether owned or held on the
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date of this Agreement or acquired thereafter, or upon the proceeds therefrom,
or (b) transfer any Collateral or the proceeds therefrom for the purpose of
subjecting the same to payment of indebtedness or performance of any other
obligation except payments made in accordance with Section 5.02 of this
Agreement or payments made to the Lender in accordance with the terms and
provisions of this Agreement, or (c) acquire, or agree or have an option to
acquire, any Collateral upon conditional sale or other title retention or
purchase money security agreement, device or arrangement, or (d) sell or
transfer, assign, or pledge any Collateral, with or without recourse. The
Borrower may incur or create, or suffer to be incurred or created or to exist,
the following liens without violating the provisions of this Section 5.10:
(1) Statutory liens to secure claims for labor, material or
supplies to the extent that payment thereof shall not at the time be required
to be made in accordance with Section 5.02 of this Agreement.
(2) Deposits or pledges made in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age pensions or
other social security, or in connection with contests, to the extent that
payment thereof shall not at that time be required to be made in accordance
with Section 5.02 of this Agreement.
(3) Statutory liens for taxes or assessments or governmental
charges or levies if payment shall not at the time be required to be made in
accordance with Section 5.02 of this Agreement.
(4) Statutory liens (and contractual liens that provide to the
secured party no greater rights than equivalent statutory liens) to secure
payment of rent or lease payments with respect to leases of real property to
the extent that such payments shall not at the time be required to be made in
accordance with Section 5.02 of this Agreement.
5.11 LIMIT ON INDEBTEDNESS, GUARANTEES, ETC. The Borrower shall not,
in the absence of prior written consent from the Lender, incur, assume,
guarantee, or otherwise be or become liable in respect of any Indebtedness
except for those matters described in Schedule 6.12 to this Agreement, if after
giving pro forma effect to the Indebtedness, the Indebtedness would result in
an Unmatured Default or an Event of Default.
5.12 ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT. Without the
Lender's prior written consent, which shall not be withheld or delayed
unreasonably, the Borrower shall not make any changes in or amendments to its
Articles of Organization or Operating Agreement.
5.13 MERGERS, SALES, TRANSFERS AND OTHER DISPOSITIONS OF ASSETS.
Without the Lender's prior written consent, which shall not be withheld
unreasonably, the Borrower shall not:
(a) Be a party to any consolidation, reorganization (including
without limitation those types referred to in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Internal Revenue Code of 1986, as amended), "stock-swap" or merger;
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(b) Sell or otherwise transfer any material part of either its
tangible or intangible assets (except for assets that are worn out or no longer
used or useful in the Borrower's business), provided that Lender shall not
withhold its consent if Borrower demonstrates to the satisfaction of the
Lender, pursuant to pro forma financial statements and other relevant
information based on assumptions acceptable to the Lender that after giving
effect to the proposed sale or transfer no Event of Default or Unmatured Event
of Default shall exist under this Agreement;
(c) Purchase all or a substantial part of the capital stock or
assets of any corporation or other business enterprise;
(d) Effect any change in its capital structure; or
(e) Liquidate or dissolve or take any corporate action with a
view toward liquidation or dissolution.
5.14 LOANS. The Borrower shall not make any loan or advance any funds
whatsoever to any business, entity, party or individual, except advances not to
exceed Five Hundred Thousand Dollars ($500,000.00), in the aggregate at any one
time outstanding.
5.15 NO CHANGE IN OWNERSHIP. The Borrower shall not permit the
ownership interest of the Guarantors (and/or any Person who becomes an owner of
an interest in the Borrower upon the death of one of the Guarantors through
bequest or devise) to be reduced to less than one hundred percent (100%) of the
outstanding membership interests of the Borrower.
5.16 PAYMENT OF DISTRIBUTIONS. In any fiscal year, the Borrower shall
not pay out any Distributions in excess of the Borrower's Net Income for that
fiscal year and in no event shall the Borrower pay out any Distribution while
any Unmatured Default or Event of Default is in existence.
5.17 ERISA COMPLIANCE.
(a) RELATIONSHIP OF VESTED BENEFITS TO PENSION PLAN ASSETS. The
Borrower will at all times maintain the qualified status of its Plans. The
Borrower will not at any time terminate any Plan unless on the date of such
termination the present value of all employee benefits vested under such Plan
does not exceed the present value of the assets allocable to such vested
benefits.
(b) VALUATIONS. All assumptions and methods used to determine the
actuarial valuation of vested employee benefits under Plans at any time
maintained by the Borrower and the present value of assets of such Plans shall
be reasonable in the good faith judgment of the Borrower and shall comply with
all requirements of law in all material respects.
(c) PROHIBITED ACTIONS. Neither the Borrower nor any Plan at any
time maintained by the Borrower will:
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(1) engage in any "prohibited transactions" (as such term is
defined in Section 406 or Section 2003(a) of ERISA);
(2) incur any "accumulated funding deficiency" (as such term
is defined in Section 302 of ERISA) whether or not waived; or
(3) terminate any such Plan in a manner which could result in
the imposition of a Lien on the property of the Borrower pursuant to Section
4006 of ERISA.
5.18 JOINDER OF SUBSIDIARIES. If the Borrower creates or acquires any
Subsidiary, the Borrower shall cause such subsidiary to execute and deliver to
the Lender an agreement (a "Joinder Agreement") substantially in the form
attached as ANNEX D pursuant to which such Subsidiary shall join as a Borrower
hereunder and under each document to which the Borrower is named as a party.
The Borrower shall cause the Joinder Agreement to be delivered to the Lender
within five (5) Business Days after the date of the filing of such Subsidiary's
articles of incorporation if the Subsidiary is a corporation, the date of the
filing of its certificate of limited partnership if it is a limited
partnership, or the date of its organization if it is an entity other than a
corporation or a limited partnership.
SECTION VI
----------
Representations and Warranties
------------------------------
To induce the Lender to enter into this Agreement and the Lender to
make the Revolving Credit Loan, the Borrower and the Guarantors represent and
warrant to the Lender as follows, (which warranties and representations shall
be deemed to be remade and restated in full (subject only to changes of
circumstances which (1) are fully disclosed by the Borrower to the Lender in
writing, describing the changed circumstances, and (2) do not result in any
violation of any condition, provision, promise and/or covenant of this
Agreement, or otherwise result in an Unmatured Default or an Event of Default)
whenever an advance under the Revolving Credit Loan is requested by the
Borrower):
6.01 ORGANIZATION AND EXISTENCE. The Borrower is a limited liability
company duly organized, validly existing, and in good standing under the laws
of the Commonwealth of Kentucky. The Borrower has all necessary power and
authority to carry on its business conducted on the date of this Agreement. The
Borrower is qualified to do business as a foreign limited partnership, and is
in good standing, in all states and in all foreign countries in which it owns
any property or carries on substantial activities or is otherwise required to
be so qualified, and is duly authorized, qualified and licensed under all laws,
regulations, ordinances or orders of public authorities to carry on its
business in the places and in the manner conducted on the date of this
Agreement.
6.02 RIGHT TO ACT. No registration with or consent or approval of any
governmental agency of any kind is required for the execution, delivery,
performance and enforceability of the Borrower Documents. The Borrower has full
power and authority, corporate and otherwise, to execute, deliver and perform
the Borrower Documents.
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6.03 NO CONFLICTS. The Borrower's execution, delivery and performance
of the Borrower Documents do not, and will not, (a) violate any existing
provision Articles of Organization or Operating Agreement of the Borrower or
any law, rule, regulation, or judgment, order or decree applicable to the
Borrower or (b) otherwise constitute a default, or result in the imposition of
any lien under (1) any material existing contract or other obligation binding
upon the Borrower or its property, with or without the passage of time or the
giving of notice or both; (2) any law, rule or regulation applicable to the
Borrower or its business; or (3) any judgment, order or decree of any court or
administrative agency applicable to the Borrower or its business.
6.04 AUTHORIZATION. The execution, delivery and performance by the
Borrower of the Borrower Documents has been duly authorized, and the Borrower
Documents have been duly executed and delivered.
6.05 ENFORCEABLE AGREEMENTS. This Agreement and the other Borrower
Documents are legally valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting creditors
rights or equitable principals generally.
6.06 CONTINGENT OBLIGATIONS. The Borrower does not have any material
contingent obligations, material liabilities for taxes, material long-term
leases or unusual material forward or long-term commitments, which have not
been disclosed to the Lender.
6.07 LITIGATION. Except for those matters described in the financial
statements referenced in Section 6.08 of this Agreement or otherwise disclosed
in writing by the Borrower to Lender, there is no litigation, at law or in
equity, or any proceeding before any federal, state or municipal court, board
or other governmental or administrative agency pending, or to the knowledge of
the Borrower, threatened which is likely to involve any material judgment or
liability against the Borrower or which might otherwise result in any material
adverse change in the Borrower's business, assets or condition, financial or
otherwise. No judgment, decree or order of any federal, state or municipal
court, board or other governmental or administrative agency has been issued
against the Borrower or any of its assets which has, or will likely have, a
material adverse effect on the Borrower's business, assets or condition,
financial or otherwise.
6.08 FINANCIAL STATEMENTS. The Borrower's financial statements dated
April 30, 2000, have been furnished to the Lender. Those financial statements
are true and complete in all material respects, have been prepared in
accordance with GAAP, do not omit reference to any material contingent
liabilities of any kind not otherwise disclosed by Borrower to the Lender in
writing, and fairly present the financial condition of the Borrower as of the
date of those financial statements. Xxxxxxx' financial statements dated
December 31, 1999, and Xxxxx'x financial statements dated March 31, 2000, have
been furnished to the Lender. Those financial statements are true and complete
in all material respects, do not omit reference to any material contingent
liabilities of any kind not otherwise disclosed by Borrower to the Lender in
writing and fairly present the financial condition of the Xxxxxxx and Xxxxx,
respectively, as of the date of the financial statements.
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6.09 COMPLIANCE WITH CONTRACTUAL OBLIGATIONS, LAWS AND JUDGMENTS.
(a) The Borrower is not in default in the payment, performance,
observance or fulfillment of any of the material obligations, covenants or
conditions contained in any lease, indenture, mortgage, deed of trust,
promissory note, agreement or undertaking to which it is a party or by which
its assets are bound.
(b) The Borrower has not violated any applicable statute,
regulation or ordinance of the United States of America or of any state,
municipality or any other subdivision, jurisdiction or agency thereof, in any
respect materially and adversely affecting the Borrower's business, property,
assets, operations or conditions, financial or otherwise.
(c) The Borrower is not in default with respect to any judgment,
order, writ, injunction, decree or demand of any court, arbitrator or
governmental agency or body.
6.10 INVESTMENT COMPANY. The Borrower is not an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
6.11 TAX RETURNS. The Borrower has filed all tax returns which are
required to be filed and has paid, or made adequate provision for the payment
of, all taxes which have or may become due pursuant to such returns or pursuant
to assessments received. The Borrower knows of no material additional
assessments for which adequate reserves have not been established, and the
Borrower has made adequate provision for all current taxes.
6.12 NO UNDISCLOSED LIABILITIES OR GUARANTIES. The Borrower does not
have any material liabilities, direct or contingent, except as disclosed or
referred to in the financial statements referred to in Section 5.03 of this
Agreement or otherwise disclosed to Lender in writing or incurred by Borrower
after such date and not prohibited by the express terms of this Agreement, nor
has the Borrower guaranteed, or otherwise become responsible for, the material
obligations of any person, firm or corporation, other than as set out on
SCHEDULE 10.12 of this Agreement or otherwise not in contravention of any of
the Borrower Documents.
6.13 TITLE TO PROPERTIES. The Borrower has good and marketable title
to all of its property and assets of all character, free and clear of all
mortgages, liens, interests, and encumbrances except (a) encumbrances granted
to the Lender, (b) minor irregularities in title which do not materially
interfere with the use and enjoyment by the Borrower of such properties and
assets in the normal course of business as presently conducted, or materially
impair the value thereof for such business, (c) those encumbrances described on
SCHEDULE 6.13 to this Agreement, and (d) any other encumbrances permitted under
the express terms of the Borrower Documents.
6.14 TRADEMARKS AND PERMITS. The Borrower possesses adequate licenses,
patents, copyrights, trademarks and trade names to conduct their businesses as
now conducted. Neither the Borrower nor any of its officers, directors or
employees has received notice or has knowledge of any claim that the Borrower
has violated any other person's license, patent, copyright,
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trademark or trade name, or that the Borrower's licenses, patents, copyrights,
trademarks or trade names are currently being infringed. The Borrower has all
governmental permits, certificates, consents and franchises necessary to carry
on their businesses as now conducted and to own or lease and operate their
properties as now owned, leased or operated. All such governmental permits,
certificates, consents and franchises are valid, and in effect, and the
Borrower is not in violation thereof, and none of them contains any term,
provision, condition or limitation more burdensome than generally applicable to
persons engaged in the same or similar business.
6.15 NO DEFAULTS. The Borrower is not in default in the payment or
performance of any of its obligations or in the performance of any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which it is a party or by which it or any of its assets may be bound, which
default would have a material adverse effect on the business operations, assets
or condition, financial or otherwise, of the Borrower, taken as a whole. No
Unmatured Default or Event of Default hereunder or under the other Borrower
Documents has occurred and is continuing. The Borrower is not in default under
any order, award or decree of any court, arbitrator or governmental authority
binding upon or affecting it or by which any of its assets may be bound or
affected which default would have a material adverse effect on the business of
such Borrower. The Borrower is not subject to any order, award or decree which
is likely to materially adversely affect the ability of the Borrower to carry
on its business as currently conducted or the ability of the Borrower to
perform its obligations under this Agreement and/or the other Borrower
Documents to which it is a party.
6.16 EMPLOYEE BENEFIT PLANS. Except as have been otherwise disclosed
in writing to the Lender, any Plans in existence are in substantial compliance
with ERISA, no Plan is insolvent or in reorganization, no Plan has an
accumulated or waived funding deficiency within the meaning of Section 412 of
the Code, the Borrower has not incurred any material liability (including any
material contingent liability) to or on account of a Plan pursuant to Sections
4062, 4063, 4064, 4201 or 4204 of ERISA, no proceedings have been instituted to
terminate any Plan, and no condition exists which presents a material risk to
the Borrower of incurring a liability to or on account of a Plan pursuant to
any of the foregoing sections of ERISA.
6.17 NO MATERIAL ADVERSE CONDITIONS. There is no fact known to the
Borrower (other than matters of a general economic or political nature) which
materially adversely affects the business, property, assets or financial
condition of the Borrower which has not been disclosed to the Lender or set
forth in the other documents, certificates and statements furnished to the
Lender by or on behalf of the Borrower prior to the date hereof in connection
with the transactions contemplated hereby.
6.18 REGULATIONS Q AND U. The Borrower is not engaged principally, or
as one of the Borrower's important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation Q of the Board of Governors of the Federal Reserve
System), and will not use the proceeds of the Loans so as to violate Regulation
U as it may be amended or interpreted from time to time by the Board of
Governors of the Federal Reserve System.
6.19 ENVIRONMENTAL MATTERS. Except as otherwise disclosed in writing
to the Lender,
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the Borrower fully complies with all federal, state and local environmental
laws, rules, regulations, ordinances and other requirements including, without
limitation, those which relate to the production, storage, disposal or use of
any and all hazardous or toxic wastes, and including, without limitation, the
provisions of 42 U.S.C.secs.9601 ET SEQ. (CERCLA, Super Fund); and 42
U.S.C.secs.6901 ET SEQ. (RCRA).
6.20 NO PUBLIC UTILITY HOLDING COMPANY. The Borrower is not a "holding
company," or a "subsidiary company" of a "holding company," or an affiliate of
either, within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
6.21 NO SUBSIDIARIES. The Borrower has no Subsidiaries.
6.22 DISCLOSURE. Neither this Agreement, nor any agreement, document,
certificate or statement furnished to the Lender by or on behalf of the
Borrower in connection with the transactions contemplated by this Agreement
contains any untrue statement of any material fact or, except in the case of
budgets and forward financial forecasts, omits to state any material fact
necessary to make the statements contained herein or therein not misleading as
of the time the Borrower makes the statement; provided however, that the
Borrower has an immediate and continuing obligation to supplement any of the
foregoing if it should subsequently contain an untrue statement of any material
fact or omits to state any material fact necessary to make the statements
contained herein or therein not misleading. There is no fact known to the
Borrower which materially and adversely affects, or in the future is likely to
materially and adversely affect, the Borrower's business, operations, affairs
or condition, financial or otherwise, which has not been disclosed to the
Lender.
SECTION VII
-----------
Events of Default
-----------------
The occurrence of any one or more of the following shall constitute an
Event of Default under this Agreement (an "Event of Default"):
7.01 FAILURE TO PAY. If the Borrower shall fail to pay in full any
installment of principal or interest on any of the Notes, or payments required
by this Agreement, within five (5) days after such payment first became due.
7.02 NO NOTICE REQUIRED. If the Borrower with respect to the following
provisions shall fail to observe, perform or comply with any term, obligation,
covenant, agreement, condition or other provision contained in Sections 5.02,
5.04, 5.07, 5.10, 5.12, 5.13, 5.15, or 5.18 of this Agreement, or any Event of
Default occurs under any of the other Borrower Documents.
7.03 NOTICE REQUIRED. If the Borrower with respect to any term,
obligation, covenant, agreement, condition or other provision (other than those
referred to in Sections 9.01 or 9.02 hereof) contained or referred to in any of
the Borrower Documents shall fail to observe, perform or comply with those
provisions, and such failure shall not have been fully corrected within thirty
(30) days after the Lender has given written notice thereof to such obligor.
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7.04 FALSITY OF REPRESENTATION OR WARRANTY. If any representation or
warranty or other statement of fact contained in any of the Borrower Documents
or in any writing, certificate, report or statement at any time furnished the
Lender by or on behalf of the Borrower pursuant to or in connection with this
Agreement shall have been false or misleading in any material respect or which
shall omit a material fact, whether or not made with knowledge, at the time it
was made.
7.05 JUDGMENTS. If a final judgment or judgments for the payment of
money in excess of the sum of One Hundred Thousand Dollars ($100,000.00), in
the aggregate, or with respect to property with a value in excess of such
amount, shall be rendered against the Borrower and such judgment or judgments
shall remain unsatisfied for a period of thirty (30) consecutive days after the
entry thereof and within that thirty (30) days has not been (a) stayed pending
appeal, or (b) discharged.
7.06 ADVERSE FINANCIAL CHANGE. If there should be any material adverse
change in the financial condition of the Borrower as determined in Lender's
discretion, from its financial condition as shown on the financial statements
referred to in Section 6.08 of this Agreement, and such adverse change is not
fully corrected to Lender's reasonable satisfaction within sixty (60) days
after notice with respect thereto from the Lender.
7.07 OTHER OBLIGATIONS. Subject to the exception contained in Section
5.02(b) of this Agreement, if the Borrower shall fail to observe, perform or
comply with the terms, obligations, covenants, agreements, conditions or other
provisions of any agreement, document or instrument (including leases) other
than this Agreement and the other Borrower Documents which (a) the Lender or
any of its Affiliates has entered into with the Borrower and which involves any
Indebtedness to the Lender and/or any of its Affiliates in any amount or (b)
any other Person has entered into with the Borrower and/or any of its
Affiliates which involves Indebtedness (or in the case of leases, in total
lease obligations under any single lease) in any single instance exceeding Five
Hundred Thousand Dollars ($500,000.00).
7.08 DISSOLUTION OR TERMINATION OF EXISTENCE. If the Borrower, either
Guarantor and/or any Affiliate of the Borrower takes any action that is
intended to result in the termination, dissolution or liquidation of the
Borrower.
7.09 SOLVENCY.
(a) If the Borrower or either Guarantor shall (1) have an order
of relief entered in any proceeding filed by it under the federal bankruptcy
laws (as in effect on the date of this Agreement or as they may be amended from
time to time); (2) admit its inability to pay its debts generally as they
become due; (3) become insolvent in that its total assets are in the aggregate
worth less than all of its liabilities or it is unable to pay its debts
generally as they become due; (4) make a general assignment for the benefit of
creditors; (5) file a petition, or admit (by answer, default or otherwise) the
material allegations of any petition filed against it, in bankruptcy under the
federal bankruptcy laws (as in effect on the date of this Agreement or as they
may be amended from time to time), or under any other law for the relief of
debtors, or for
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the discharge, arrangement or compromise of their debts; or (6) consent to the
appointment of a receiver, conservator, trustee or liquidator of all or part of
its assets.
(b) If a petition shall have been filed against the Borrower or
either Guarantor in proceedings under the federal bankruptcy laws (as in effect
on the date of this Agreement, or as they may be amended from time to time), or
under any other laws for the relief of debtors, or for the discharge,
arrangement or compromise of their debts, or an order shall be entered by any
court of competent jurisdiction appointing a receiver, conservator, trustee or
liquidator of all or part of the Borrower's assets, and such petition or order
is not dismissed or stayed within sixty (60) consecutive days after entry
thereof.
SECTION VIII
------------
Remedies Upon Default
---------------------
Notwithstanding anything to the contrary, if any Event of Default
occurs under Section 7.09 of this Agreement, the Revolving Credit shall
automatically terminate (if not previously terminated or expired), and the
entire unpaid balance of all Revolving Credit Loans and Revolving Credit Notes,
and all other obligations of the Borrower under and/or in connection with the
Borrower Documents, shall automatically, without requirement of any
presentment, demand or notice of any kind (all of which are hereby waived by
the Borrower), become immediately due and payable in full. Also notwithstanding
any other provision of this Agreement, if any other Event of Default under this
Agreement occurs, the Lender, in its individual discretion, and without notice
to the Borrower, may terminate the Revolving Credit, in which case the Lender
shall be under no further obligation to grant any Revolving Credit Loans to the
Borrower. In addition, upon the occurrence of any Event of Default, and at any
time thereafter, unless all Events of Default have been waived in a writing
signed by the Lender specifically providing the waiver, the Lender shall have
all of the following rights and remedies and it may exercise one or more of
them, singly or in conjunction with others.
8.01 RIGHT TO OFFSET. The Lender shall have the right to set off
against, or appropriate and apply toward the payment of, the obligations of the
Borrower to that Lender, pursuant to this Agreement or as evidenced by the
Revolving Credit Notes whether such obligations shall have matured in due
course or by acceleration, any and all deposit balances and other sums and
indebtedness then held or owed by that Lender to or for the credit or account
of the Borrower and/or either Guarantor. For such purpose the Borrower and each
Guarantor hereby pledges to and grants a security interest in such deposit
balances, other sums and indebtedness of the Lender to secure all of the
Borrower's obligations under this Agreement and the Revolving Credit Notes.
Such offsets following an Event of Default may occur without notice to or
demand upon the Borrower, either Guarantor or any other Person, all of such
notices and demands being hereby waived.
8.02 ENFORCEMENT OF RIGHTS. The Lender shall have the right, to
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceedings either for specific performance of any covenant
or condition contained in any of the Borrower Documents, or in aid of the
exercise of any power granted in any of the Borrower Documents.
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8.03 RIGHTS UNDER SECURITY INSTRUMENTS. The Lender shall also have all
rights and remedies granted it under the Pledge Agreement, the Guaranty
Agreements and any and all other Borrower Documents securing or intending to
secure the Borrower's obligations under the Revolving Credit Notes, or any
other indebtedness or obligation of the Borrower under the Borrower Documents.
8.04 CUMULATIVE REMEDIES. All of the rights and remedies of the Lender
upon occurrence of an Event of Default shall be cumulative to the greatest
extent permitted by law, may be exercised successively or concurrently, from
time to time, and shall be in addition to all of those rights and remedies
afforded the Lender at law, or in equity, or in bankruptcy. Notwithstanding the
foregoing, the Lender shall be entitled to recover from the cumulative exercise
of all remedies an amount no greater than the sum of (a) the aggregate
outstanding principal amount of the Loan, (b) all accrued but unpaid interest
with respect to the aggregate principal amount of the Loan, (c) any other
amounts that the Borrower is required by this Agreement to pay to the Lender
(for example, and without limitation, the reimbursement of expenses and legal
fees, and late charges), and (d) any costs, expenses or damages which the
Lender is otherwise permitted to recover by the terms of this Agreement. Any
exercise of any right or remedy shall not be deemed to be an election of that
right or remedy to the exclusion of any other right or remedy.
SECTION IX
----------
Fees and Expenses
-----------------
9.01 TRANSACTION EXPENSES. The Borrower shall pay to the Lender upon
demand all out-of-pocket expenses incurred by the Lender in connection with the
transactions contemplated by this Agreement, including, but not limited to the
Lender's reasonable attorneys' fees incurred in preparing, negotiating and
closing the Borrower Documents and any and all costs and fees incurred in
connection with the recording or filing of any documents or instruments, and/or
in searches of, any public office, pursuant to or as a consequence of this
Agreement, or to perfect or protect any security for the Loans. The Borrower
shall also pay to the Lender, promptly following the Lender's request, all
out-of-pocket expenses incurred by the Lender from time to time in the
administration of the Loans, including, without limitation, any out-of-pocket
expenses (including, but not limited to, attorneys' fees) incurred by the
Lender if any of the Borrower Documents should be amended, extended and/or
renewed from time to time, or if additional Borrower Documents are prepared.
9.02 ENFORCEMENT EXPENSES. If any Event of Default shall occur under
this Agreement, or any default shall occur under any of the Borrower Documents
or any related documents, the Borrower shall pay to the Lender, to the extent
allowable by applicable law, such amounts as shall be sufficient to reimburse
the Lender fully for all of its costs and expenses incurred in enforcing and/or
protecting its rights and remedies under the Borrower Documents and any related
documents, including without limitation its reasonable attorneys' fees and
court costs. Such amounts shall be deemed to be included in the obligations
secured by the Security Agreement.
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SECTION X
---------
Miscellaneous Provisions
------------------------
10.01 BUSINESS DAYS. If any provision of this Agreement or any of the
other Borrower Documents requires that the Borrower make any payment, or
otherwise perform any act, on a day on which the Lender is not open for
business, then that payment or action shall be deemed to be due on the first
day thereafter that the Lender is open for business.
10.02 TERM OF THIS AGREEMENT. The term of this Agreement shall
commence as of the date hereof, and continue until all Loans and accrued but
unpaid interest thereon shall have been paid in full and the Borrower shall
have paid or performed all of its obligations hereunder.
10.03 NO WAIVERS. Failure or delay by the Lender in exercising any
rights shall not be deemed to be or operate as a waiver of that right, nor
shall any right be exclusive of any other right referred to in this Agreement,
or in any other related document, or available at law or in equity, by statute
or otherwise. Any single or partial exercise of any right shall not preclude
the further exercise of that right. Every right of the Lender shall continue in
full force and effect until such right is specifically waived in a writing
signed by the Lender.
10.04 COURSE OF DEALING. No course of dealing between the Borrower,
the Guarantors and the Lender shall operate as a waiver of any of the Lender's
rights under any of the Borrower Documents.
10.05 CERTAIN WAIVERS BY THE BORROWER AND THE GUARANTORS. The Borrower
and each Guarantor hereby waives, to the extent permitted by applicable law,
(a) all presentments, demands for performances, notices of nonperformance
(except to the extent specifically required by this Agreement or any other of
the Borrower Documents), protests, notices of protest and notices of dishonor
in connection with the Notes (b) any requirement of diligence or promptness on
the part of the Lender in enforcement of rights under the provisions of any of
the Borrower Documents, and (c) any requirement of marshaling assets or
proceeding against persons or assets in any particular order.
10.06 SEVERABILITY. If any part, term or provision of this Agreement
is held by any court to be unenforceable or prohibited by any law applicable to
this Agreement, the rights and obligations of the parties shall be construed
and enforced with that part, term or provision limited so as to make it
enforceable to the greatest extent allowed by law, or, if it is totally
unenforceable, as if this Agreement did not contain that particular part, term
or provision.
10.07 TIME OF THE ESSENCE. Time shall be of the essence in the
performance of all of the Borrower's and the Guarantors' obligations under the
Borrower Documents.
10.08 BENEFIT AND BINDING EFFECT. This Agreement shall inure to the
benefit of the Lender, its successors and assigns, and all obligations of the
Borrower and the Guarantors shall bind their heirs, executors, successors and,
if and to the extent assignment is otherwise permitted
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by this Agreement, assigns.
10.09 FURTHER ASSURANCES. The Borrower shall sign such financing
statements or other documents or instruments as the Lender may request from
time to time more fully to create, perfect, continue, maintain or terminate the
rights and security interests intended to be granted or created pursuant to
this Agreement, the Security Agreement, and any other Borrower Documents.
10.10 INCORPORATION BY REFERENCE. All schedules, annexes or other
attachments to this Agreement are incorporated into this Agreement as if set
out in full at the first place in this Agreement that reference is made
thereto.
10.11 ENTIRE AGREEMENT; NO ORAL MODIFICATIONS. This Agreement, the
schedules and annexes hereto, and the documents and instruments referred to
herein constitute the entire agreement of the parties with respect to the
subject matter hereof, and supersede all prior understandings with respect to
the subject matter hereof. No change, modification, addition or termination of
this Agreement or any of the Borrower Documents shall be enforceable unless in
writing and signed by the party against whom enforcement is sought.
10.12 HEADINGS. The headings used in this Agreement are included for
ease of reference only and shall not be considered in the interpretation or
construction of this Agreement.
10.13 GOVERNING LAW. This Agreement and the related documents and
instruments shall be governed by and construed in accordance with the laws of
the Commonwealth of Kentucky without regard to conflicts of laws unless, except
to the extent that the laws of any other state, province or country where the
Collateral is located require that the laws of such other state, province or
country shall govern the creation, perfection or enforcement of the Lender's
rights and security interests in such Collateral.
10.14 ASSIGNMENTS. Neither the Borrower nor either Guarantor may
assign any rights under this Agreement to any other party. Any attempted
assignment shall be a default under this Agreement and shall be null and void.
10.15 MULTIPLE COUNTERPARTS.
(a) This Agreement may be signed by each party upon a separate
copy, and in such case one counterpart of this Agreement shall consist of
enough of such copies to reflect the signature of each party.
(b) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement or the terms thereof to produce or account for
more than one of such counterparts.
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10.16 NOTICES.
(a) Any requirement of the Uniform Commercial Code or other
applicable law of reasonable notice shall be met if such notice is given at
least ten (10) Business Days before the time of sale, disposition or other
event or thing giving rise to the requirement of notice.
(b) Except as provided in subsection (c) below, all notices or
communications under this Agreement shall be in writing and shall be
hand-delivered, sent by courier, or mailed to the parties addressed to the
addresses as follows and any notice so addressed and (1) hand-delivered, shall
be deemed to have been given when so delivered, or (2) mailed by registered or
certified mail, return receipt requested, shall be deemed to have been given
when mailed, or (3) delivered to a recognized small package overnight courier
service to the address of the intended recipient with shipping prepaid, shall
be deemed to have been given when so delivered to such courier. Addresses for
notices are as follows:
(1) If to the Lender: BANK OF LOUISVILLE
000 X. Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a courtesy copy to: XXXXX, XXXX & XXXXXXX PLLC
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
(2) If to the Borrower: ORIG, LLC
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
with a courtesy copy to: XXXXXXXXX DOLL & XXXXXXXX PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(3) If to the Guarantor: X. X. XXXXXXX
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
with a courtesy copy to: XXXXXXXXX DOLL & XXXXXXXX PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
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(4) If to the Guarantor: XXXXX XXXXX
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
with a courtesy copy to: XXXXXXXXX DOLL & XXXXXXXX PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(c) The parties may at any time, and from time to time, change
the address or addresses to which notice shall be mailed by written notice
setting forth the changed address or addresses.
10.17 SURVIVAL OF COVENANTS. All covenants, agreements, warranties and
representations made by the Borrower herein shall survive the making of each
Revolving Credit Loan and the execution and delivery of the Borrower Documents,
and shall be deemed to be remade and restated by the Borrower each time the
Borrower requests a Revolving Credit Loan.
10.18. CONSENT TO JURISDICTION. THE BORROWER AND THE GUARANTORS
CONSENT TO ONE OR MORE ACTIONS BEING INSTITUTED AND MAINTAINED IN THE JEFFERSON
COUNTY, KENTUCKY, CIRCUIT COURT AND/OR THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY (AT LENDER'S DISCRETION) TO ENFORCE THIS AGREEMENT
AND/OR ONE OR MORE OF THE OTHER BORROWER DOCUMENTS, AND WAIVE ANY OBJECTION TO
ANY SUCH ACTION BASED UPON LACK OF PERSONAL OR SUBJECT MATTER JURISDICTION OR
IMPROPER VENUE. THE PARTIES AGREE THAT ANY PROCESS OR OTHER LEGAL SUMMONS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING MAY BE SERVED BY MAILING A COPY
THEREOF BY CERTIFIED MAIL, OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL, ADDRESSED
TO THE ADDRESSES PROVIDED IN THE PREAMBLE TO THIS AGREEMENT. THE BORROWER AND
THE GUARANTORS ALSO AGREE THAT NONE OF THEM SHALL COMMENCE OR MAINTAIN ANY
ACTION IN ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL OTHER THAN THE
JEFFERSON COUNTY, KENTUCKY, CIRCUIT COURT OR THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY WITH RESPECT TO THIS AGREEMENT, ANY OTHER
OF THE BORROWER DOCUMENTS, ANY OF THE TRANSACTIONS PROVIDED FOR OR CONTEMPLATED
IN ANY OF THE BORROWER DOCUMENTS, OR ANY CAUSE OF ACTION OR ALLEGED CAUSE OF
ACTION ARISING OUT OF OR IN CONNECTION WITH ANY DEBTOR AND CREDITOR
RELATIONSHIP AMONG THE PARTIES THAT MAY EXIST FROM TIME TO TIME.
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10.20 JURY TRIAL WAIVER. THE BORROWER AND EACH GUARANTOR HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT, THE REVOLVING CREDIT NOTES, THE PLEDGE AGREEMENT, THE
GUARANTY AGREEMENTS AND/OR ANY OTHER OF THE BORROWER DOCUMENTS. THIS WAIVER IS
INTENDED TO APPLY TO ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THE BORROWER AND EACH GUARANTOR ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE LENDER TO ENTER INTO A
BUSINESS RELATIONSHIP, AND THAT THE LENDER HAS ALREADY RELIED ON THIS WAIVER IN
ITS DEALINGS WITH THE BORROWER AND THE GUARANTORS. THE BORROWER AND EACH
GUARANTOR FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS OF THIS AGREEMENT, THE REVOLVING CREDIT NOTES, THE PLEDGE
AGREEMENT, THE GUARANTY AGREEMENTS AND/OR THE OTHER BORROWER DOCUMENTS. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL
BY THE COURT.
10.21 ACKNOWLEDGEMENT. THE BORROWER ACKNOWLEDGES THAT IT HAS RECEIVED
A COPY OF THIS AGREEMENT AND EACH OF THE OTHER BORROWER DOCUMENTS, AS FULLY
EXECUTED BY THE PARTIES THERETO. THE BORROWER ACKNOWLEDGES THAT IT (A) HAS READ
THIS AGREEMENT AND THE OTHER BORROWER DOCUMENTS OR HAS CAUSED SUCH DOCUMENTS TO
BE EXAMINED BY ITS REPRESENTATIVES OR ADVISORS; (B) IS THOROUGHLY FAMILIAR WITH
THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND THE OTHER BORROWER
DOCUMENTS; AND (C) HAS HAD THE OPPORTUNITY TO ASK SUCH QUESTIONS TO
REPRESENTATIVES OF THE LENDER, AND RECEIVE ANSWERS THERETO, CONCERNING THE
TERMS AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND THE
OTHER BORROWER DOCUMENTS AS IT DEEMS NECESSARY IN CONNECTION WITH THE ITS
DECISION TO ENTER INTO THIS AGREEMENT.
[THIS BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
32
39
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth in the preamble hereto, but actually on the dates set forth
below.
Lender:
BANK OF LOUISVILLE
By /s/ Xxxxxxx Xxxx
--------------------------------------
Xxxxxxx Xxxx, Senior Vice President
Date: August 15, 2000
Borrower:
ORIG, LLC
By /s/ X.X. Xxxxxxx
--------------------------------------
X. X. Xxxxxxx, Manager
Date: August 15, 2000
/s/ X. X. Xxxxxxx
----------------------------------
X. X. XXXXXXX
Date: August 15, 2000
/s/ Xxxxx Xxxxx
-----------------------------------
XXXXX XXXXX
Date: August 15, 2000
40
Annexes
Annexes A-1 - A-3 Forms of Revolving Credit Notes in favor of the Lender
Annex B Form of Pledge Agreement
Annex C Paragraphs for Opinion of Counsel for the Borrower and
Guarantor
Annex D Form of Joinder Agreement
Annex E Form of Partnership Notice and Acknowledgement
Schedules
Schedule 1(P) Partnership Interests
Schedule 10.12 Permitted Liabilities
Schedule 10.13 Permitted Encumbrances
41
MODIFICATION AGREEMENT
This is a Modification Agreement date as of August 1, 2001 (this
"Agreement"), among
BANK OF LOUISVILLE
a Kentucky banking corporation
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(the "Lender")
and
ORIG, LLC
a Kentucky limited liability company
00000 Xxxx Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
(the "Borrower")
and joined in by
X. X. Xxxxxxx
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
("Xxxxxxx")
and
Xxxxx X. Xxxxx
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
("Xxxxx")
Recitals
--------
A. Pursuant to a Loan Agreement dated as of August 15, 2000 (the
"Original Loan Agreement"), the Lender provided the Borrower with a Revolving
Credit in a maximum principal amount of Six Million and 00/100 Dollars
($6,000,000.00), as provided in Section 2.01 of the Original Loan Agreement.
B. As of the date of this Agreement, the Borrower's obligations are
evidenced by, among other things, (1) Revolving Credit Note A dated August 15,
2000, made by the Borrower and payable to the order of the Lender, in the
maximum principal amount of Two Million and 00/100 Dollars ($2,000,000.00),
with a maturity date of August 31, 2005; (2) Revolving Credit Note B dated
August 15, 2000, made by the
42
Borrower and payable to the order of the Lender, in the maximum principal
amount of Two Million and 00/100 Dollars ($2,000,000.00), with a maturity date
of August 31, 2005; and (3) Revolving Credit Note C dated August 15, 2000, made
by the Borrower and payable to the order of the Lender, in the maximum
principal amount of Two Million and 00/100 Dollars ($2,000,000.00), with a
maturity date of August 31, 2005.
C. The parties wish to enter this Agreement to modify the Loan
Agreement and the other Borrower Documents (as the term is defined in the
Original Loan Agreement) as necessary to (1) increase the maximum principal
amount of the Revolving Credit Loan to Ten Million and 00/100 Dollars
($10,000,000.00), (2) increase Xx. X. X. Xxxxxxx' Guaranty to Seven Million
Five Hundred Thousand and 00/100 Dollars ($7,500,000.00), (3) increase Xx.
Xxxxx X. Xxxxx'x Guaranty to Two Million Five Hundred Thousand and 00/100
Dollars ($2,500,000.00), (4) create Revolving Credit Note D in the face
principal amount of Four Million and 00/100 Dollars ($4,000,000.00), and
substantially in the form of ANNEX A-4 attached hereto, and (5) otherwise
affect the Original Loan Agreement and other Borrower Documents as amended by
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the promises
and agreements set forth herein, and for other good and valuable consideration,
the mutuality, receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. CAPITALIZED TERMS. Unless otherwise defined herein, all capitalized
terms shall have the meanings given them in the Original Loan Agreement, and
the meanings given to all capitalized terms shall be equally applicable to both
the singular and plural forms of the terms defined.
2. SECTION I OF THE LOAN AGREEMENT. Section I of the Original Loan
Agreement is hereby amended as follows, and the other paragraphs of Section I
remain in full force and effect without modification:
(a) AMENDMENT OF EXISTING DEFINITIONS. The definitions of the
following terms as set forth in Section I of the Original Loan Agreement, are
hereby amended and restated to read in their respective entireties as follows:
"Borrower Documents" shall mean, collectively, this Agreement
as amended by the August 2001 Modification Agreement (and as it may be
further amended, extended or modified from time to time) and any and
all agreements, instruments, and/or other documents referred to in
this Agreement and in the August 2001 Modification Agreement to be
executed or delivered by the Borrower and/or any Guarantor.
"Guaranty Agreements" shall mean, collectively, (a) the
Guaranty Agreement dated as of August 15, 2000, among the Lender, the
Borrower, and Xxxxxxx, as amended by the August 2001 Modification
Agreement and as may be further amended or modified from time to time;
and (2) the
2
43
Guaranty Agreement dated as of August 15, 2000, among the Lender, the
Borrower and Xxxxx, as amended by the August 2001 Modification
Agreement and as may be further amended or modified from time to time.
"Guaranty Agreement" shall mean either of the Guaranty Agreements.
"Pledge Agreement" shall mean the Pledge Agreement dated as
of August 15, 2000, between the Borrower and the Lender, including all
supplements thereto and as amended by the August 2001 Modification
Agreement, and as it may be further amended from time to time.
"Revolving Credit Notes" shall mean collectively the four
promissory notes issued by the Borrower to the order of the Lender
with respect to the Revolving Credit Loan, three in the face principal
amount of Two Million and 00/100 Dollars ($2,000,000.00) each (for a
total of Six Million and 00/100 Dollars ($6,000,000)), and
substantially in the form of ANNEXES A-1 through A-3 attached hereto,
and one in the face principal amount of Four Million and 00/100
Dollars ($4,000,000.00) substantially in the form of ANNEX A-4 to this
Agreement and to the August 2001 Modification Agreement, and all notes
delivered in renewal, replacement, substitution, extension and/or
novation of any of these. "Revolving Credit Note" shall mean any of
the Revolving Credit Notes; and "Revolving Credit Note A" shall mean
the Revolving Credit Note in the form of ANNEX A-1, "Revolving Credit
Note B" shall mean the Revolving Credit Note in the form of ANNEX A-2,
"Revolving Credit Note C" shall mean the Revolving Credit Note in the
form of ANNEX A-3, and "Revolving Credit Note D" shall mean the
Revolving Credit Note in the form of ANNEX A-4, and in each case all
notes delivered in renewal, replacement, substitution, extension
and/or novation thereof.
(b) ADDITIONAL DEFINITIONS. Section I of the Original Loan
Agreement is hereby supplemented to add the following definition which shall
read in its entirety as follows:
"August 2001 Modification Agreement" shall mean that certain
Modification Agreement dated as of August 1, 2001, between the Lender
and the Borrower, Xx. Xxxxx and Xx. Xxxxxxx.
"Notes" shall mean Revolving Credit Note A, Revolving Credit
Note B, Revolving Credit Note C, and Revolving Credit Note D,
collectively.
3. SECTION II OF THE ORIGINAL LOAN AGREEMENT. Section II of the
Original Loan Agreement is hereby amended as follows, and the other paragraphs
of Section II remain in full force and effect without modification:
3
44
(a) SECTION 2.01. Section 2.01 of the Original Loan Agreement
is hereby amended and restated to read in its entirety as follows:
SECTION 2.01 AMOUNT OF REVOLVING CREDIT. The total principal
amount available under the Revolving Credit shall be Ten Million and
00/100 Dollars ($10,000,000.00).
(b) SECTION 2.04(B). Subparagraph (b) of Section 2.04 of the
Original Loan Agreement is hereby amended and restated to read in its entirety
as follows:
(b) The first Two Million and 00/100 Dollars ($2,000,000.00)
of Revolving Credit Loans shall be allocated to and evidenced by
Revolving Credit Note A. The principal balance of the Revolving Credit
Loans will be credited against and evidenced by Revolving Credit Note
B if, but only if, and only to the extent the aggregate principal
balance of all Revolving Credit Loans outstanding at one time exceeds
Two Million and 00/100 Dollars ($2,000,000.00), but is less than Four
Million and 00/100 Dollars ($4,000,000.00). The outstanding principal
balance of Revolving Credit Loans shall be credited against and
evidenced by Revolving Credit Note C if, but only if, and only to the
extent the aggregate principal of all Revolving Credit Loans
outstanding at one time equals or exceeds Four Million and 00/100
Dollars ($4,000,000.00), but is less than Six Million and 00/100
Dollars ($6,000,000.00). The outstanding principal balance of
Revolving Credit Loans shall be credited against and evidenced by
Revolving Credit Note D if, but only if, and only to the extent the
aggregate balance of all Revolving Credit Loans outstanding at one
time equals or exceeds Six Million and 00/100 Dollars ($6,000,000.00).
Accordingly, the first Two Million Dollars ($2,000,000.00), or portion
thereof, of Revolving Credit Loans outstanding at any one time shall
be credited against and evidenced by Revolving Credit Note A; at such
time as the outstanding principal balance of the Revolving Credit
Loans is greater than Two Million Dollars ($2,000,000.00), but less
than Four Million Dollars ($4,000,000.00), Revolving Credit Loans made
at such time shall be credited against and evidenced by Revolving
Credit Note B; at such time as the outstanding principal balance of
all Revolving Credit Loans outstanding at one time equals or exceeds
Four Million Dollars ($4,000,000.00), Revolving Credit Loans made at
such time shall be credited against and evidenced by Revolving Credit
Note C; and at such time as the outstanding principal balance of all
Revolving Credit Loans outstanding at one time equals or exceeds Six
Million Dollars ($6,000,000.00), Revolving Credit Loans made at such
time shall be credited against and evidenced by Revolving Credit Note
D.
(c) SECTION 2.05(b). Section 2.05(b) of the Original Loan Agreement is
hereby amended and restated to read in its entirety as follows:
4
45
(b) The outstanding principal balance of Revolving Credit
Loans from time to time evidenced by Revolving Credit Note A shall
bear interest at an annual rate equal to one- quarter percent (1/4%)
PLUS the Prime Rate as that Prime Rate may change from time to time.
The outstanding principal balance of Revolving Credit Loans from time
to time evidenced by Revolving Credit Note B shall bear interest at an
annual rate equal to one-half percent (1/2%) PLUS the Prime Rate as
that Prime Rate may change from time to time. The outstanding
principal balance of Revolving Credit Loans from time to time
evidenced by Revolving Credit Note C shall bear interest at an annual
rate equal to one percent (1%) PLUS the Prime Rate as that Prime Rate
may change from time to time. The outstanding principal balance of
Revolving Credit Loans from time to time evidenced by Revolving Credit
Note D shall bear interest at an annual rate equal to one and
one-quarter percent (1.25%) PLUS the Prime Rate as that Prime Rate may
change from time to time.
(d) SECTION 2.12. Section 2.12 of the Original Loan Agreement
is hereby amended and restated to read in its entirety as follows:
2.12. APPLICATION OF PRINCIPAL PAYMENTS. Unless otherwise
agreed by the Lender and the Borrower in writing, all payments of
principal, whether mandatory or optional, received by the Lender when
no Event of Default has occurred and is continuing shall be applied
first to the principal of Revolving Credit Loans evidenced by
Revolving Credit Note D until all of the Revolving Credit Loans
evidenced thereby shall have been paid in full, then to the principal
of Revolving Credit Loans evidenced by Revolving Credit Note C until
all of the Revolving Credit Loans evidenced thereby shall have been
paid in full, then to the principal of Revolving Credit Loans
evidenced by Revolving Credit Note B, until all of the Revolving
Credit Loans evidenced thereby shall have been paid in full, then to
the principal of Revolving Credit Loans evidenced by Revolving Credit
Note A. All payments of principal on Revolving Credit Loans, whether
mandatory or optional, received by the Lender after an Event of
Default has occurred and is continuing may be applied by the Lender
among Revolving Credit Notes A, B, C and D as the Lender may
determine, in its discretion.
4. SECTION V OF THE LOAN AGREEMENT. Section V of the Original Loan
Agreement is hereby amended as follows, and the other paragraphs remain in full
force and effect without modification:
(a) SECTION 5.18. Section 5.18 of the Original Loan Agreement is
amended and restated to read in its entirety as follows:
5
46
5.18 JOINDER OF SUBSIDIARIES. If the Borrower creates or
acquires any Subsidiary, the Borrower shall cause such subsidiary to
execute and deliver to the Lender an agreement (a "Joinder Agreement")
substantially in the form attached as ANNEX D to this Agreement and
the August 2001 Modification Agreement (Amended Form of Joinder
Agreement) pursuant to which such Subsidiary shall join as a Borrower
hereunder and under each document to which the Borrower is named as a
party. The Borrower shall cause the Joinder Agreement to be delivered
to the Lender within five (5) Business Days after the date of the
filing of such Subsidiary's articles of incorporation if the
Subsidiary is a corporation, the date of the filing of its certificate
of limited partnership if it is a limited partnership, or the date of
its organization if it is an entity other than a corporation or a
limited partnership.
(b) FORM OF ANNEX D TO THE ORIGINAL LOAN AGREEMENT. The Original
Loan Agreement is hereby amended by substituting the amended form of Joinder
Agreement attached as ANNEX D to this Agreement in lieu of and in replacement
for the existing ANNEX D to the Original Loan Agreement.
5. CERTAIN UNDERSTANDING. It is the understanding of the parties to
this Agreement that the term "Loan Agreement" as used in Revolving Credit Notes
A, B and C means the Original Loan Agreement as amended by the August 2001
Modification Agreement.
6. AMENDMENT TO XXXXXXX' GUARANTY AGREEMENT. The Guaranty Agreement
dated as of August 15, 2000, among Lender, the Borrower and X.X. Xxxxxxx, as
Guarantor (the "Xxxxxxx Guaranty"), is hereby amended, clarified and reaffirmed
as follows:
(a) SECTION 1. Section 1 of the Xxxxxxx Guaranty is hereby
amended and restated to read in its entirety as follows:
SECTION 1
Recitals and Definitions
------------------------
This Agreement is entered into concurrently with and pursuant
to a Loan Agreement dated as of August 15, 2000, between the Lender
and the Borrower and joined in by the Guarantor and Xxxxx X. Xxxxx, as
modified by a Modification Agreement dated as of August 1, 2001, among
the Lender, the Borrower, the Guarantor and Xxxxx X. Xxxxx (that
Original Loan Agreement, as modified by that August 2001 Modification
Agreement, and as it may be further modified or amended, the "Loan
Agreement"). Capitalized terms not otherwise defined herein shall have
the meanings given to them in the Loan Agreement. Pursuant to the Loan
Agreement, the Borrower has executed and delivered to the Lender four
Revolving Credit Notes. Revolving Credit Notes A, B and C are dated
6
47
August 15, 2000, and each of them is in the principal amount of Two
Million and 00/100 Dollars ($2,000,000.00), and Note D is dated August
1, 2001, and is in the principal amount of Four Million and 00/100
Dollars ($4,000,000.00) (for a total of Ten Million and 00/100 Dollars
($10,000,000.00)). Each of the four Revolving Credit Notes is payable
to the order of the Lender (such four Revolving Credit Notes,
including any notes or other instruments issued in renewal,
replacement, extension, modification, novation and/or revival thereof,
the "Revolving Credit Notes"). The Borrower and the Guarantors have
also entered into various other Borrower Documents (as that term is
defined in the Loan Agreement).
(b) SECTION 2. Section 2 of the Xxxxxxx Guaranty is hereby
amended and restated to read in its respective entirety as follows:
SECTION 2
Guaranty of Payment and Performance
-----------------------------------
The Guarantor, intending to be bound as an accommodation
party for the Borrower, jointly and severally, absolutely and
unconditionally guarantees the following obligations and/or
liabilities (collectively, the "Guaranteed Principal"): (a) The prompt
payment in full by the Borrower of all principal obligations under the
Revolving Credit Notes; and (b) the punctual and faithful performance
and observance by the Borrower of all other obligations and
undertakings to be performed or observed pursuant to the Loan
Agreement and the other Borrower Documents not included in the Other
Guaranteed Amounts defined below. In addition to the Guaranteed
Principal, the Guarantor, intending to be bound as an accommodation
party for the Borrower, jointly and severally, absolutely and
unconditionally guarantees the following obligations and/or
liabilities (collectively, the "Other Guaranteed Amounts"): (x) any
and all interest accruing on the Guaranteed Principal under the
Revolving Credit Notes, the Loan Agreement and/or any other of the
Borrower Documents; and (y) that the Guarantor will, upon demand, pay
to the Lender any and all fees, charges and costs of collecting the
Guaranteed Principal and/or Other Guaranteed Amounts or otherwise
enforcing the Lender's rights under this Agreement, including without
limitation, the reasonable fees and expenses of the Lender's counsel.
Notwithstanding the foregoing, the maximum aggregate liability of the
Guaranty under this Agreement for the Guaranteed Principal shall not
exceed Seven Million Five Hundred Thousand and 00/100 Dollars
($7,500,000.00) (the "Guarantor Maximum"). The Guaranteed Principal,
limited to the Guarantor Maximum, and the Other Guaranteed Amounts are
sometimes referenced in this Agreement as the "Guaranteed
Obligations." The Guaranteed Obligations under this Agreement shall be
in addition to the maximum
7
48
aggregate liability of the Guarantor or any other guarantor of the
Lender under any Guaranty Agreement of the Guarantor or any other
guarantor heretofore or hereafter given.
7. AMENDMENT TO XXXXX'X GUARANTY AGREEMENT. The Guaranty Agreement
dated as of August 15, 2000, among Lender, the Borrower and Xxxxx X. Xxxxx, as
Guarantor (the "Xxxxx Guaranty") is hereby amended, clarified and reaffirmed as
follows:
(a) SECTION 1. Section 1 of the Xxxxx Guaranty is hereby amended
and restated to read in its entirety as follows:
SECTION 1
Recitals and Definitions
------------------------
This Agreement is entered into concurrently with and pursuant to a
Loan Agreement, dated as of August 15, 2000, between the Lender and the
Borrower and joined in by the Guarantor and X.X. Xxxxxxx, as modified by a
Modification Agreement dated as of August 1, 2001 among the Lender, the
Borrower, the Guarantor and X.X. Xxxxxxx (that Original Loan Agreement as
modified by that August 2001 Modification Agreement, and as it may be further
modified or amended, the "Loan Agreement"). Capitalized terms not otherwise
defined herein shall have the meanings given to them in the Loan Agreement.
Pursuant to the Loan Agreement, the Borrower has executed and delivered to the
Lender four Revolving Credit Notes. Revolving Credit Notes A, B, and C are
dated August 15, 2000, and each of them is in the principal amount of Two
Million and 00/100 Dollars ($2,000,000.00), and Note D is dated August 1, 2001,
and is in the principal amount of Four Million and 00/100 Dollars
($4,000,000.00) (for a total of Ten Million and 00/100 Dollars
($10,000,000.00)). Each of the four Notes are payable to the order of the
Lender (such four Revolving Credit Notes, including any notes or other
instruments issued in renewal, replacement, extension, modification, novation
and/or revival thereof, the "Revolving Credit Notes"). The Borrower and the
Guarantors have also entered into various other Borrower Documents (as that
term is defined in the Loan Agreement).
(b) SECTION 2. Section 2 of the Xxxxx Guaranty is hereby amended
and restated to read in its entirety as follows:
SECTION 2
Guaranty of Payment and Performance.
-----------------------------------
The Guarantor, intending to be bound as an accommodation
party for the Borrower, jointly and severally, absolutely and
unconditionally guarantees the following obligations and/or
liabilities (collectively, the "Guaranteed Principal"): (a) the prompt
payment in full by the Borrower
8
49
of all principal obligations under the Revolving Credit Notes; and (b)
the punctual and faithful performance and observance by the Borrower
of all other obligations and undertakings to be performed or observed
pursuant to the Loan Agreement, and the other Borrower Documents not
included in the Other Guaranteed Amounts defined below. In addition to
the Guaranteed Principal, the Guarantor, intending to be bound as an
accommodation party for the Borrower, jointly and severally,
absolutely and unconditionally guarantees the following obligations
and/or liabilities (collectively, the "Other Guaranteed Amounts'): (x)
any and all interest accruing on the Guaranteed Principal under the
Revolving Credit Notes, the Loan Agreement and/or any other of the
Borrower Documents; and (y) that the Guarantor will, upon demand, pay
to the Lender any and all fees, charges and costs of collecting the
Guaranteed Principal and/or Other Guaranteed Amounts or otherwise
enforcing the Lender's rights under this Agreement, including, without
limitation, the reasonable fees and expenses of the Lender's counsel.
Notwithstanding the foregoing, the maximum aggregate liability of the
Guarantor under this Agreement, for the Guaranteed Principal shall not
exceed the Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00)(the "Guarantor Maximum"). The Guaranteed Principal,
limited to the Guarantor Maximum and the Other Guaranteed Amounts are
sometimes referenced in this Agreement as the "Guaranteed
Obligations." The Guaranteed Obligations under this Agreement, shall
be in addition to the maximum aggregate liability of the Guarantor or
any other guarantor to the Lender under any Guaranty Agreement of the
Guarantor or any other guarantor heretofore or hereafter given.
8. AMENDMENTS TO PLEDGE AGREEMENT. The Pledge Agreement is hereby
amended, clarified and reaffirmed as follows:
(a) RECITALS. The Recitals to the Pledge Agreement are hereby
amended and restated to read in their entireties as follows:
RECITALS
A. The Borrower and the Lender have entered into a Loan
Agreement dated as of August 15, 2000 (as amended by a Modification
Agreement dated as of August 1, 2001, and as it may be subsequently
modified, amended and/or supplemented from time to time, the "Loan
Agreement") between the Borrower and the Lender, and joined in by the
Guarantors (as defined therein), pursuant to which the Lender has made
Revolving Credit available to the Borrower in an aggregate amount not
to exceed Ten Million and 00/100 Dollars ($10,000,000.00).
9
50
B. Also under the Loan Agreement, among other things, the
Borrower has, among other things, delivered to the Lender four
Revolving Credit Notes payable to the order of Lender, Revolving
Credit Notes A, B and C, each dated August 15, 2000, in the maximum
principal amount of Two Million and 00/100 Dollars ($2,000,000.00),
each being payable to the order of the Lender, and Revolving Credit
Note D dated August 1, 2001, in the maximum principal amount of Four
Million and 00/100 Dollars ($4,000,000.00) (for a total of Ten Million
and 00/100 Dollars ($10,000,000.00)), also payable to the order of the
Lender.
(b) DEFINITIONS. Section 1 of the Pledge Agreement is hereby amended
so that the following defined term(s) is (are) amended and restated as follows,
with the other definitions remaining in full force and effect without
modification:
"Supplement to Pledge Agreement" shall mean a Supplement to
Pledge Agreement generally in the form attached to this Pledge
Agreement and the August 2001 Modification Agreement as Schedule 1(S)
properly completed and satisfactory to the Lender in all respects,
describing New Interests that the Borrower has acquired which
automatically become subject to the terms of this Pledge Agreement.
(c) ADDITIONAL DEFINITIONS. Section 1 of the Pledge Agreement is
hereby supplemented to add the following definitions, which shall read in their
respective entireties as follows:
"Loan Agreement" shall mean the Loan Agreement dated as of
August 15, 2000, between the Lender, and the Borrower and
joined in by the Guarantors (as defined therein), as modified
by a Modification Agreement dated as of August 1, 2001, among
the Lender, the Borrower and the Guarantors, and as that
Original Loan Agreement may be further modified or amended
from time to time.
"August 2001 Modification Agreement" shall mean that certain
Modification Agreement dated as of August 1, 2001, between
the Lender and the Borrower, and the Guarantors (as defined
in the Loan Agreement).
(d) SUBSTITUTION OF AMENDED FORM OF SUPPLEMENT TO PLEDGE AGREEMENT.
The Pledge Agreement is hereby amended by substituting the Amended Form of
Supplement to Pledge Agreement attached as Schedule 1(S) to this Modification
Agreement in lieu of and in replacement for the existing Schedule 1(S) attached
to the form of Pledge Agreement attached to the Original Loan Agreement.
10
51
(e) SECTION 4. Section 4 of the Pledge Agreement is hereby amended and
restated as follows, and the other provisions and sentences of Section 4 remain
in full force and effect without modification:
(1) The first sentence of Section 4 is hereby amended and
restated to read as follows:
To induce the Lender to enter into this Pledge Agreement and to make
the four Revolving Credit Loans, all of the representations and
warranties made by the Borrower in the Loan Agreement and the
Modification Agreement are incorporated herein by reference, and the
Borrower further represents and warrants as follows:
9. CONDITIONS PRECEDENT. The Lender's obligation to enter into this
Modification Agreement and to provide the increase in the Revolving Credit
contemplated in this Modification Agreement shall be conditioned upon the
fulfillment of all the following conditions:
(a) EXECUTED AGREEMENTS. The Borrower shall have delivered a
duly authorized and fully executed original of each of this Modification
Agreement and of Revolving Credit Note D in the form of ANNEX A-4 to this
Modification Agreement.
(b) REPRESENTATIONS AND WARRANTIES. Each and every
representation and warranty made by or on behalf of the Borrower relating to
this Modification Agreement or any of the other Borrower Documents, as modified
by this Modification Agreement, or the transactions contemplated hereby or
thereby shall be true, complete and correct on and as of the date of this
Agreement.
(c) NO DEFAULTS. There shall exist no Event of Default or
Unmatured Default which has not been cured to the Lender's satisfaction.
(d) NO CHANGE IN CONDITION. There shall have been no material
adverse change in the condition, financial or otherwise, of the Borrower or
either Guarantor from that existing on the date of the financial statements
most recently delivered by or on behalf of the Borrower to the Lender.
(e) OTHER DOCUMENTS. The Borrower shall have delivered to the
Lender any and all other agreements, instruments and documents as the Lender
may reasonably have requested in order to further protect its security or
evidence compliance by the Borrower with this Modification Agreement and the
other Borrower Documents.
(f) LENDER'S FEES AND EXPENSES. The Borrower shall have paid to
the Lender the Lender's fees and expenses as of the date of this Modification
Agreement in accordance with paragraph 11 of this Modification Agreement.
(g) RESOLUTIONS. Certified copy of appropriate resolutions (1)
authorizing the execution of this Modification Agreement and any and all other
documents, instruments and agreements referred to herein which are required to
be
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executed and delivered by the Borrower, and (2) authorizing consummation of the
transactions contemplated by this Modification Agreement.
(h) LEGAL OPINION. The Borrowers and the Guarantors shall have
furnished to the Lender, at the Borrower's expense, the legal opinion of
Xxxxxxxxxx, Doll & XxXxxxxx PLLC, as counsel for the Borrower and the
Guarantors, addressed to the Lender and its counsel, dated the date of this
Modification Agreement, addressing the matters set forth in Annex 9(h) to this
Modification Agreement.
(i) INCUMBENCY CERTIFICATE. A certificate certifying the names
of the Persons of the Borrower authorized to sign this Modification Agreement
and the other Borrower Documents each has signed or will sign in connection
with this Modification Agreement, together with the true signatures of such
Persons.
(j) CERTIFICATE OF EXISTENCE. An updated Certificate of
Existence issued by the Secretary of State of the Commonwealth of Kentucky and
dated not more than thirty (30) days prior to the date of this Modification
Agreement.
(k) ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT. The
Borrower shall have furnished the Lender a certified copy of the Borrower's
Operating Agreement, current as of the date of this Modification Agreement, and
a certificate of the [Manager] [Secretary] of the Borrower reflecting the
current Members' Participating Percentages.
10. CHANGES IN REFERENCES IN BORROWER DOCUMENTS. All references in the
Borrower Documents to the "Borrower Documents" shall be deemed to include a
reference to this Modification Agreement, Revolving Credit Note D, and any and
all other agreements, instruments and documents executed and/or delivered in
connection with this Modification Agreement.
11. REAFFIRMATIONS AND CONSENTS. The Borrower and the Guarantors:
(a) CONSENT. Consent to the transactions contemplated in this
Modification Agreement.
(b) REAFFIRM. Reaffirm the Borrower's and the Guarantors'
obligations under any and all of the Borrower Documents and any and all other
agreements, instruments and documents to which it is a party and under which
the Lender has any rights or obligations and which is or may be related in any
way to the agreements, instruments and documents mentioned in or affected by
this Modification Agreement, or the Loan Agreement or any of the other Borrower
Documents as amended by this Modification Agreement.
(c) AGREE. Agree that all of the Borrower Documents remain in
full force and effect, as expressly modified or altered by or in connection
with this Agreement.
12. REPRESENTATIONS AND WARRANTIES. To induce the Lender to enter into
this Modification Agreement, the Borrower agrees that the representations and
warranties
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made by the Borrower and the Guarantors, as set forth in Section VI of the Loan
Agreement as amended by this Modification Agreement, are hereby remade and are
incorporated by reference into this Modification Agreement as if set out in
full.
13. COSTS AND EXPENSES. The Borrower shall pay to the Lender upon
demand all out-of-pocket costs and expenses incurred by the Lender in
connection with the transactions contemplated by this Modification Agreement,
including, but not limited to, the Lender's reasonable attorneys' fees and
disbursements incurred in preparing this Modification Agreement and the
documents to be executed pursuant to this Modification Agreement (including, by
way of illustration but not by way of limitation, the documents to be executed
as a condition precedent to this Modification Agreement) and any and all costs
and fees incurred in connection with the recording or filing of any and all
documents and instruments in any public offices, pursuant to or as a
consequence of this Modification Agreement, or to perfect or protect any
security for the Borrower's obligations described in or incurred in connection
with this Modification Agreement. The Borrower further agrees to pay on demand
all out-of-pocket costs and expenses of the Lender, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Lender, in connection with the execution, delivery, administration,
enforcement, or protection of the Lender's rights under the Loan Agreement and
the other Borrower Documents, as amended by this Modification Agreement.
14. BREACH OF THIS AGREEMENT. Any failure of the Borrower and
Guarantors to observe and perform all of the terms, conditions and provisions
of the Loan Agreement and this Modification Agreement shall constitute an Event
of Default.
15. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. The Loan Agreement, the Borrower Documents,
this Modification Agreement and the agreements, instruments and other documents
referred to herein, constitute the entire agreement of the parties with respect
to, and supersede all prior understandings of the parties with respect to, the
subject matter hereof. No change, modification, addition, or termination of
this Agreement shall be enforceable unless in writing and signed by the party
against whom enforcement is sought.
(b) GOVERNING LAW. The Loan Agreement and this Modification
Agreement and the related writings and the respective rights and obligations of
the parties shall be governed by, and construed and enforced in accordance
with, the laws (without regard to conflicts of laws rules) of the Commonwealth
of Kentucky, except to the extent the laws of any other state, province or
country where security for the Loans is located dictate that the laws of such
other state, province or country shall govern the creation, perfection or
enforcement of the Lender's rights in such security.
(c) COUNTERPARTS. This Modification Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, and it
shall not be
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necessary in making proof of this Modification Agreement or the terms hereof to
produce or account for more than one of such counterparts.
(d) HEADINGS. The headings used in this Modification Agreement
have been included solely for ease of reference and shall not be considered in
the interpretation or construction of this Modification Agreement.
(e) SEVERABILITY. If any court shall finally determine that any
part, term or provision of the Loan Agreement and this Modification Agreement
is in any way unenforceable, such part, term or provision shall be reduced to
the extent necessary to make such provision enforceable to the greatest extent
allowed by law. Consistent with the foregoing, if any provision of the Loan
Agreement and this Agreement or its application shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of all
other applications of that provision and of all other provisions and
applications of this Modification Agreement shall not in any way be affected or
impaired.
(f) BINDING EFFECT. This Modification Agreement shall be binding
upon, and shall inure to the benefit of, the Lender, the Borrower and the
Guarantors, and their respective successors and assigns.
(g) FURTHER ASSURANCES. From time to time at another the Lender's
request and without further consideration, the Borrower and Guarantors shall
execute and deliver such further agreements, instruments and other documents,
and shall take such other actions as the Lender may reasonably request, in
order to more effectively carry out the intents and purposes of this
Modification Agreement.
(h) ANNEXES AND ATTACHMENTS. All annexes or other attachments to
this Modification Agreement are incorporated into this Modification Agreement
as if set out in full at the first place in this Modification Agreement that
reference is made hereto.
(i) NO WAIVER OR COURSE OF DEALING. The Lender's execution and
delivery of this Modification Agreement does not waive any right that the
Lender might have under any of the Borrower Documents except for the specific
modifications and amendments contained in this Modification Agreement. Neither
this Modification Agreement, nor earlier amendments or modifications of any of
the Borrower Documents, creates any course of dealing among the Lender, the
Borrower, Guarantors, or any other Person, and neither the Borrower,
Guarantors, nor any other Person should infer that the Lender will enter into
any other or future amendment or modification of any of the Borrower Documents
in the future, whether similar of dissimilar to this Modification Agreement.
(J) ACKNOWLEDGEMENT. THE BORROWER AND EACH GUARANTOR ACKNOWLEDGES
THAT IT HAS RECEIVED A COPY OF THIS MODIFICATION AGREEMENT AND EACH OF THE
OTHER BORROWER DOCUMENTS, AS FULLY EXECUTED BY THE PARTIES THERETO. THE
BORROWER AND EACH GUARANTOR ACKNOWLEDGES THAT IT (A) HAS READ THIS MODIFICATION
AGREEMENT AND THE OTHER BORROWER DOCUMENTS OR HAS CAUSED SUCH DOCUMENTS TO BE
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EXAMINED BY ITS REPRESENTATIVE OR ADVISORS; (b) IS THOROUGHLY FAMILIAR WITH THE
TRANSACTIONS CONTEMPLATED IN THIS MODIFICATION AGREEMENT AND THE OTHER BORROWER
DOCUMENTS; AND (c) HAS HAD THE OPPORTUNITY TO ASK SUCH QUESTIONS TO
REPRESENTATIVES OF THE LENDER, AND RECEIVED ANSWERS THERETO, CONCERNING THE
TERMS AND CONDITIONS OF THE TRANSACTION CONTEMPLATED IN THIS MODIFICATION
AGREEMENT AND THE OTHER BORROWER DOCUMENTS AS IT DEEMS NECESSARY IN CONNECTION
WITH THE ITS DECISION TO ENTER INTO THIS MODIFICATION AGREEMENT.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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56
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date set forth in the preamble hereto, but actually on the
dates set forth below.
LENDER:
BANK OF LOUISVILLE
By
---------------------------------------------
XXXXXXX XXXX, SENIOR VICE PRESIDENT
Date:
------------------------------------------
BORROWER:
ORIG, LLC
By
---------------------------------------------
X. X. XXXXXXX, MANAGER
Date:
------------------------------------------
GUARANTOR:
X. X. XXXXXXX
-----------------------------------------------
X. X. XXXXXXX
Date:
------------------------------------------
GUARANTOR:
XXXXX X. XXXXX
-----------------------------------------------
XXXXX X. XXXXX
Date:
------------------------------------------
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57
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Agreement was acknowledged before me on _________, 2001
by Xxxxxxx Xxxx as Senior Vice President of Bank of Louisville on behalf of the
corporation.
My Commission Expires:
--------------------------------------------
Notary Public
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Agreement was acknowledged before me on
___________, 2001 by X. X. Xxxxxxx as Manager of ORIG, LLC , a limited
liability corporation, on behalf of the corporation.
My Commission Expires:
--------------------------------------------
Notary Public
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Agreement was acknowledged before me on
___________, 2001 by X. X. Xxxxxxx as Guarantor.
My Commission Expires:
--------------------------------------------
Notary Public
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58
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Agreement was acknowledged before me on
___________, 2001 by Xxxxx X. Xxxxx as Guarantor.
My Commission Expires:
--------------------------------------------
Notary Public
This Instrument Prepared By:
_______________________________________
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxx Xxxx LLC
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
18
