Exhibit 10.1
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LOAN AGREEMENT
AMONG
LASALLE BANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
AND
LASALLE BANK NATIONAL ASSOCIATION
AND
THE OTHER LENDERS LISTED ON EXHIBIT 3
AS LENDERS
AND
XXXXXXXX CORPORATION
AS BORROWER
MAY 30, 2002
TABLE OF CONTENTS
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1. Effective Date..........................................................1
2. Definitions and Rules of Construction...................................1
2.1. Listed Definitions.................................................1
2.2. Other Definitions..................................................1
2.3. References to Covered Person.......................................1
2.4. References to Required Lenders.....................................1
2.5. Accounting Terms...................................................1
2.6. Meaning of Satisfactory............................................1
2.7. Computation of Time Periods........................................1
2.8. General............................................................2
2.9. Initial Advance Date...............................................2
3. Lenders' Commitments....................................................2
3.1. Revolving Loan Commitments.........................................2
3.1.1. Aggregate Amount; Reductions.................................2
3.1.2. Limitation on Revolving Loan Advances........................3
3.1.3. Revolving Notes..............................................3
3.2. Swingline Commitment...............................................3
3.2.1. Swingline Advances...........................................3
3.2.2. Limitations on Swingline Advances............................3
3.2.3. Swingline Note...............................................4
3.3. Letter of Credit Commitment........................................4
3.4. UMB Letters of Credit..............................................4
4. Interest................................................................5
4.1. Interest on Draws on Letters of Credit.............................5
4.2. Interest on the Swingline Loan.....................................5
4.3. Interest on Aggregate Loans........................................5
4.4. Adjusted Base Rate.................................................5
4.5. Adjusted Eurodollar Rate...........................................5
4.6. Base Rate Revolving Margins and Eurodollar Revolving Margins.......6
4.7. Interest Periods for Eurodollar Loans..............................6
4.8. Time of Accrual....................................................7
4.9. Computation........................................................7
4.10. Rate After Maturity................................................7
5. Fees....................................................................7
5.1. Upfront Fee........................................................7
5.2. Revolving Loan Unused Fee..........................................7
5.3. Letter of Credit Fee...............................................8
5.4. Letter of Credit Fronting Fee......................................8
5.5. Other Letter of Credit Fees........................................8
5.6. Calculation of Fees................................................8
6. Payments................................................................8
6.1. Scheduled Payments on Aggregate Revolving Loan and Swingline Loan..8
6.1.1. Interest.....................................................8
6.1.2. Principal....................................................8
6.1.3. Extension of Revolving Loan Maturity Date....................9
6.2. Application........................................................9
6.3. Prepayments........................................................9
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6.3.1. Voluntary Prepayment.........................................9
6.3.2. Mandatory Prepayments When Over-Advances Exist...............9
6.3.3. Other Mandatory Prepayments.................................10
6.4. Reimbursement Obligations of Borrower.............................10
6.5. Manner of Payments and Timing of Application of Payments..........11
6.5.1. Payment Requirement.........................................11
6.5.2. Application of Payments and Proceeds........................11
6.5.3. Interest Calculation........................................11
6.6. Returned Instruments..............................................11
6.7. Compelled Return of Payments or Proceeds..........................11
6.8. Due Dates Not on Business Days....................................12
7. Procedure for Obtaining Advances and Letters of Credit.................12
7.1. Initial Advances..................................................12
7.2. Subsequent Revolving Loan Advances................................12
7.2.1. Borrower Requests...........................................12
7.2.2. Revolving Loan Advances to Repay the Swingline Loan.........12
7.2.3. Administrative Agent's Right to Make Other Revolving Loan
Advances..................................................13
7.3. Letters of Credit.................................................13
7.4. Fundings..........................................................13
7.4.1. Revolving Advances..........................................13
7.4.2. Draws on Letters of Credit..................................14
7.4.3. All Fundings Ratable........................................14
7.5. Administrative Agent's Availability Assumption....................15
7.5.1..................................................................15
7.6. Disbursement......................................................16
7.7. Restrictions on Advances..........................................16
7.8. Restriction on Number of Eurodollar Loans.........................16
7.9. Each Advance Request and Letter of Credit Request a Certification.16
7.10. Requirements for Every Advance Request............................16
7.11. Requirements for Every Letter of Credit Request...................16
7.12. Exoneration of Administrative Agent and Lenders...................17
8. Conditions of Lending..................................................17
8.1. Conditions to Initial Advance.....................................17
8.1.1. Listed Documents and Other Items............................17
8.1.2. Financial Condition; Projections............................17
8.1.3. No Default..................................................18
8.1.4. Representations and Warranties..............................18
8.1.5. No Material Adverse Change..................................18
8.1.6. Pending Material Proceedings................................18
8.1.7. Payment of Fees and Expenses................................18
8.1.8. Insurance...................................................18
8.1.9. Existing Indebtedness.......................................18
8.1.10. Non-Healthcare Divestiture and Healthcare Divestiture.......18
8.1.11. Closing Certificate.........................................18
8.1.12. Other Items.................................................18
8.2. Conditions to Subsequent Advances.................................18
8.2.1. General Conditions..........................................18
8.2.2. Representations and Warranties..............................19
8.2.3. No Prohibitions.............................................19
8.2.4. No Default..................................................19
9. Conditions to Issuance of Letters of Credit............................19
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9.1. Letter of Credit Application/Reimbursement Agreement...........19
9.2. No Prohibitions................................................19
9.3. Representations and Warranties.................................19
9.4. No Default.....................................................20
9.5. Other Conditions...............................................20
10. Representations and Warranties......................................20
10.1. Organization and Existence.....................................20
10.2. Authorization..................................................20
10.3. Due Execution..................................................20
10.4. Enforceability of Obligations..................................20
10.5. Burdensome Obligations.........................................20
10.6. Legal Restraints...............................................20
10.7. Labor Contracts and Disputes...................................21
10.8. No Material Proceedings........................................21
10.9. Material Licenses..............................................21
10.10. Compliance with Material Laws..................................21
10.11. Prior Transactions.............................................21
10.12. Solvency.......................................................21
10.13. Projections; Pro Forma Balance Sheet...........................21
10.14. Financial Statements...........................................21
10.15. No Change in Condition.........................................22
10.16. No Defaults....................................................22
10.17. Investments....................................................22
10.18. Indebtedness...................................................22
10.19. Indirect Obligations...........................................22
10.20. Tax Liabilities; Governmental Charges..........................22
10.21. Pension Benefit Plans..........................................22
10.21.1. Prohibited Transactions...................................22
10.21.2. Claims....................................................22
10.21.3. Reporting and Disclosure Requirements.....................23
10.21.4. Accumulated Funding Deficiency............................23
10.21.5. Multi-employer Plan.......................................23
10.22. Welfare Benefit Plans..........................................23
10.23. Retiree Benefits...............................................23
10.24. State of Property..............................................23
10.25. Negative Pledges...............................................23
10.26. Affiliates; Subsidiaries.......................................23
10.27. Margin Stock...................................................24
10.28. Securities Matters.............................................24
10.29. Investment Company Act, Etc....................................24
10.30. No Material Misstatements or Omissions.........................24
10.31. Filings........................................................24
11. Modification and Survival of Representations........................24
12. Affirmative Covenants...............................................25
12.1. Use of Proceeds................................................25
12.2. Corporate Existence............................................25
12.3. Maintenance of Property and Leases.............................25
12.4. Insurance......................................................25
12.5. Payment of Taxes and Other Obligations.........................26
12.6. Compliance With Laws...........................................26
12.7. Termination of Pension Benefit Plan............................26
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12.8. Notice to Administrative Agent of Material Events..............26
12.9. Borrowing Officer..............................................27
12.10. Accounting System; Tracing of Proceeds.........................27
12.11. Financial Statements...........................................27
12.11.1. Annual Financial Statements...............................27
12.11.2. Quarterly Financial Statements............................28
12.11.3. Statement of Existing Reimbursement Obligations...........28
12.12. Other Financial Information....................................28
12.12.1. Stockholder Reports.......................................28
12.12.2. Pension Benefit Plan Reports..............................28
12.12.3. Tax Returns...............................................28
12.13. Annual Projections.............................................28
12.14. Other Information..............................................29
12.15. Access to Officers and Auditors................................29
12.16. Acquisition Documents..........................................29
12.17. Further Assurances.............................................29
12.18. Covered Persons................................................29
12.19. Guarantees.....................................................29
13. Negative Covenants..................................................29
13.1. Investments....................................................29
13.2. Indebtedness...................................................30
13.3. Indirect Obligations...........................................31
13.4. Security Interests.............................................31
13.5. Acquisitions...................................................31
13.6. Disposal of Property...........................................32
13.7. Stock Dividends; Distributions/Redemptions.....................33
13.8. Change of Control..............................................33
13.9. Amendment to Charter Documents.................................33
13.10. Capital Structure; Equity Securities...........................33
13.11. Change of Business.............................................34
13.12. Conflicting Agreements.........................................34
13.13. Sale and Leaseback Transactions................................34
13.14. Fiscal Year....................................................34
13.15. Transactions Having a Material Adverse Effect on Covered
Person.......................................................34
13.16. Transactions with Affiliates...................................34
14. Financial Covenants.................................................34
14.1. Special Definitions............................................34
14.2. Minimum Fixed Charge Coverage..................................35
14.3. Maximum Ratio of Funded Indebtedness to EBITDA.................35
14.4. Minimum Net Worth..............................................36
15. Default.............................................................36
15.1. Events of Default..............................................36
15.1.1. Failure to Pay Principal or Interest........................36
15.1.2. Failure to Pay Amounts Owed to Other Persons................36
15.1.3. Representations or Warranties...............................36
15.1.4. Certain Covenants...........................................36
15.1.5. Other Covenants.............................................36
15.1.6. Acceleration of Other Indebtedness..........................37
15.1.7. Default Under Other Agreements..............................37
15.1.8. Bankruptcy; Insolvency; Etc.................................37
15.1.9. Judgments; Attachment; Settlement; Etc......................37
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15.1.10. Pension Benefit Plan Termination, Etc.....................37
15.1.11. Liquidation or Dissolution................................38
15.1.12. Seizure of Assets.........................................38
15.1.13. Racketeering Proceeding...................................38
15.1.14. Loss to Assets............................................38
15.1.15. Guaranty; Guarantor.......................................38
15.2. Cross Default..................................................38
15.3. Rights and Remedies............................................38
15.3.1. Termination of Commitments..................................38
15.3.2. Acceleration................................................38
15.3.3. Right of Setoff.............................................39
15.3.4. Rights Generally............................................39
15.3.5. Joint and Several...........................................39
15.4. Application of Funds...........................................39
16. Administrative Agent and Lenders....................................40
16.1. Appointment, Powers, and Immunities............................40
16.2. Reliance by Administrative Agent...............................40
16.3. Employment of Agents and Counsel...............................40
16.4. Defaults.......................................................41
16.5. Rights as Lender...............................................41
16.6. Indemnification................................................41
16.7. Notification of Lenders........................................42
16.8. Non-Reliance on Agent and Other Lenders........................42
16.9. Resignation....................................................42
16.10. Collections and Distributions to Lenders by Administrative
Agent........................................................43
17. Change in Circumstances.............................................43
17.1. Compensation for Increased Costs and Reduced Returns...........43
17.1.1. Law Changes or Tax Impositions..............................43
17.1.2. Capital Adequacy............................................44
17.1.3. Notice to Borrower..........................................44
17.2. Market Failure.................................................44
17.3. Illegality.....................................................45
17.4. Compensation...................................................45
17.5. Treatment of Affected Loans....................................45
17.6. Taxes..........................................................46
17.6.1. Gross-Up....................................................46
17.6.2. Lenders' Undertakings.......................................47
17.6.3. Survival of Borrower's Obligations..........................47
17.7. Usury..........................................................48
18. General.............................................................48
18.1. Lenders' Right to Cure.........................................48
18.2. Rights Not Exclusive...........................................48
18.3. Survival of Agreements.........................................48
18.4. Assignments....................................................48
18.4.1. Permitted Assignments.......................................48
18.4.2. Consequences and Effect of Assignments......................49
18.4.3. Agreements Upon Assignment..................................49
18.4.4. Register....................................................50
18.4.5. Notice to Borrower of Assignment............................50
18.4.6. Assignment to Federal Reserve Bank..........................50
18.5. Sale of Participations.........................................51
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18.6. Information; Confidentiality...................................51
18.7. Payment of Expenses............................................51
18.8. General Indemnity..............................................52
18.9. Letters of Credit..............................................53
18.10. Changes in Accounting Principles...............................53
18.11. Loan Records...................................................53
18.12. Other Security and Guaranties..................................54
18.13. Loan Obligations Payable in Dollars............................54
19. Miscellaneous.......................................................54
19.1. Notices........................................................54
19.2. Amendments and Modifications; Waivers and Consents.............55
19.3. Rights Cumulative..............................................55
19.4. Successors and Assigns.........................................55
19.5. Severability...................................................55
19.6. Counterparts...................................................55
19.7. Governing Law; No Third Party Rights...........................56
19.8. Counterpart Facsimile Execution................................56
19.9. Effect of Merger of Bank.......................................56
19.10. Negotiated Transaction.........................................56
19.11. CHOICE OF FORUM................................................56
19.12. SERVICE OF PROCESS.............................................57
19.13. WAIVER OF JURY TRIAL...........................................57
19.14. Incorporation By Reference.....................................57
19.15. Statutory Notice - Insurance...................................57
19.16. Statutory Notice - Oral Commitments............................58
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LOAN AGREEMENT
In consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged,
Xxxxxxxx Corporation, a Missouri corporation (Borrower) and LaSalle Bank
National Association (LaSalle), as Administrative Agent, and LaSalle and the
other lenders listed on Exhibit 3 to this Agreement, as Lenders, agree as
follows:
1. EFFECTIVE DATE. This Agreement is effective May 30, 2002.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.1. LISTED DEFINITIONS. Capitalized words defined in the Glossary
attached hereto as Exhibit 2.1 shall have such defined meanings
wherever used in this Agreement and the other Loan Documents. The
inclusion of a defined term in the Glossary that is not used elsewhere
in this Agreement or in the other Loan Documents shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
2.2. OTHER DEFINITIONS. If a capitalized word in this Agreement
is not defined in the Glossary, it shall have such meaning as defined
elsewhere herein, or if not defined elsewhere herein, the meaning
defined in the UCC. Terms are italicized in this Agreement where they
are defined.
2.3. REFERENCES TO COVERED PERSON. The words Covered Person, a
Covered Person, any Covered Person, each Covered Person and every
Covered Person refer to Borrower and each of its now existing or later
acquired, created or organized Subsidiaries (including, without
limitation, all direct and indirect Subsidiaries of Borrower and all
Guarantors) separately. The words Covered Persons refers to Borrower
and its now existing or later acquired, created or organized
Subsidiaries collectively.
2.4. REFERENCES TO REQUIRED LENDERS. The words Required Lenders
means any one or more Lenders whose shares of Lenders' Exposure at the
relevant time aggregate at least 66.666666667%.
2.5. ACCOUNTING TERMS. Unless the context otherwise requires,
accounting terms herein that are not defined herein shall be determined
under GAAP. All financial measurements contemplated hereunder
respecting Borrower shall be made and calculated for Borrower and all
of its now existing or later acquired, created or organized
Subsidiaries, if any, on a consolidated and consolidating basis in
accordance with GAAP unless expressly provided otherwise herein.
2.6. MEANING OF SATISFACTORY. Whenever herein a document or matter
is required to be satisfactory to Administrative Agent or satisfactory
to Lenders or satisfactory to Required Lenders, unless expressly stated
otherwise such document must be satisfactory to Administrative Agent,
Lenders or Required Lenders (as applicable) in both form and substance,
and unless expressly stated otherwise Administrative Agent, Lenders or
Required Lenders (as applicable) shall have the commercially reasonable
discretion to determine whether the document or matter is satisfactory.
2.7. COMPUTATION OF TIME PERIODS. In computing or defining periods
of time from a specified date to a later specified date, and in
computing the accrual of interest or fees, the word from shall mean
from and including and the words to and until shall each mean to but
excluding. Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are
expressly prescribed, and references in this Agreement to months and
years are to calendar months and calendar years unless otherwise
specified.
2.8. GENERAL. Unless the context of this Agreement clearly requires
otherwise: (i) references to the plural include the singular and vice
versa; (ii) references to any Person include such Person's successors
and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement; (iii) references to one gender include
all genders; (iv) including is not limiting; (v) or has the inclusive
meaning represented by the phrase and/or; (vi) the words hereof,
herein, hereby, hereunder and similar terms in this Agreement refer to
this Agreement as a whole, including its Exhibits, and not to any
particular provision of this Agreement; (vii) the word Section or
section and Page or page refer to a section or page, respectively, of,
and the word Exhibit refers to an Exhibit to, this Agreement unless it
expressly refers to something else; (viii) reference to any agreement,
document, or instrument (including this Agreement and any other Loan
Document or other agreement, document or instrument defined herein),
means such agreement, document, or instrument as amended, modified,
restated or replaced and in effect from time to time in accordance with
the terms thereof and, if applicable, the terms hereof, and includes
all attachments thereto and documents incorporated therein, if any; and
(ix) general and specific references to any Law means such Law as
amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time. Section captions and the Table of Contents
are for convenience only and shall not affect the interpretation or
construction of this Agreement or the other Loan Documents.
2.9. INITIAL ADVANCE DATE. The Borrower, Lenders, and Administrative
Agent each agree that if the conditions to the initial Revolving Loan
Advance are not met as required by this Agreement and initial Revolving
Loan Advance hereunder is not funded on or before June 15, 2002, then,
unless each of the parties hereto otherwise agrees in writing in its
sole discretion, this Agreement and the Commitments hereunder shall
terminate on such date.
3. LENDERS' COMMITMENTS. Subject to the terms and conditions hereof, and
in reliance upon the Representations and Warranties, Lenders make the following
commitments to Borrower:
3.1. REVOLVING LOAN COMMITMENTS.
3.1.1. AGGREGATE AMOUNT; REDUCTIONS. Subject to the
limitations in Section 3.1.2 and elsewhere herein, each
Lender commits to make available to Borrower, from the
Effective Date to the Revolving Loan Maturity Date, such
Lender's pro-rata share (as listed on Exhibit 3 hereto)
of an Aggregate Revolving Loan Commitment of $70,000,000,
by funding such Lender's pro-rata share of Revolving Loan
Advances made from time to time by Administrative Agent as
provided herein. Subject to the limitations in Section
3.1.2 and elsewhere herein, payments and prepayments that
are applied to reduce the Aggregate Revolving Loan may be
re-borrowed through Revolving Loan Advances. Borrower
may reduce the amount of the Aggregate Revolving Loan
Commitment in whole multiples of $1,000,000 at any time
and from time to time, but only if (i) Borrower gives
Administrative Agent written notice of Borrower's intention
to make such reduction at least three (3) Business Days
prior to the effective date of the reduction, and (ii)
Borrower makes on the effective date of the reduction any
payment on the Aggregate Revolving Loan required
hereunder as a consequence of the reduction, including,
principal, interest and Eurodollar breakage fees (if any).
Any such reduction of the amount of the Aggregate Revolving
Loan Commitment, whether scheduled or voluntary, shall be
permanent. Each Lender's initial Revolving Loan Commitment
is its pro-rata share of the Aggregate Revolving Loan
Commitment. Upon any reduction of the
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Aggregate Revolving Loan Commitment, each Lender's Revolving
Loan Commitment will automatically reduce by such Lender's
pro-rata share of the reduction of the Aggregate Revolving
Loan Commitment.
3.1.2. LIMITATION ON REVOLVING LOAN ADVANCES. No Revolving
Loan Advance will be made which would result in the Aggregate
Revolving Loan exceeding the Maximum Available Amount and no
Revolving Loan Advance will be made on or after the Revolving
Loan Maturity Date. Lenders may, however, in their absolute
discretion make such Revolving Loan Advances, but shall not
be deemed by doing so to have increased the Maximum Available
Amount and shall not be obligated to make any such Revolving
Loan Advances thereafter. At any time that there is an
Existing Default, the Aggregate Revolving Loan Commitment may
be canceled as provided in Section 15.3. The Maximum
Available Amount on any date shall be a Dollar amount equal
to (i) the Aggregate Revolving Loan Commitment, minus (ii)
the sum of (a) the Letter of Credit Exposure on such date
(except to the extent that a Revolving Loan Advance will be
used immediately to reimburse Letter of Credit Issuer (or UMB
with respect to the UMB LCs) for unreimbursed draws on a
Letter of Credit), (b) the Swingline Loan, and (c) the
Existing Reimbursement Obligations owing to Commerce Bank,
N.A. as set forth on Exhibit 12.11.3 attached hereto as such
Exhibit is revised from time to time as required herein.
3.1.3. REVOLVING NOTES. The obligation of Borrower to repay
each Lender's Revolving Loan shall be evidenced by a
promissory note payable to the order of such Lender in a
maximum principal amount equal to the amount of its Revolving
Loan Commitment and otherwise in form and substance
satisfactory to Lenders.
3.2. SWINGLINE COMMITMENT.
3.2.1. SWINGLINE ADVANCES. In order to reduce the frequency
of fundings of Revolving Loan Advances by Lenders, but
subject to the limitations in Section 3.2.2 and elsewhere
herein, Administrative Agent may in its absolute discretion
make Swingline Advances to Borrower from time to time from
the Effective Date to the Revolving Loan Maturity Date.
Subject to the limitations in Section 3.2.2 and elsewhere
herein, payments and prepayments that are applied to reduce
the Swingline Loan may be re-borrowed through Swingline
Advances. Administrative Agent may terminate the foregoing
Swingline Commitment at any time in its absolute discretion.
3.2.2. LIMITATIONS ON SWINGLINE ADVANCES. Administrative
Agent shall not be obligated to make any particular Swingline
Advance, the making of any particular Swingline Advance at
any particular time being absolutely discretionary. At
anytime Administrative Agent may choose to suspend Swingline
Advances and treat all subsequent requests for an Advance as
Revolving Loan Advances. In any event, no Swingline Advance
will be made on or after the Revolving Loan Maturity Date,
and no Swingline Advance will be made which would result in
the Swingline Loan exceeding the Maximum Swingline Amount. No
Swingline Advance will be made which would result in the
Swingline Loan plus the Lender acting as Administrative
Agent's Revolving Loans and such Lender's pro-rata share of
the Letter of Credit Exposure to exceed such Lender's
Revolving Loan Commitment. Administrative Agent may, however,
in its absolute discretion make such Swingline Advances, but
shall not be deemed by doing so to have increased the Maximum
Swingline Amount and shall not be obligated to make any such
Swingline Advance thereafter. The Maximum Swingline Amount on
any date
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shall be a Dollar amount equal to the lesser of (i)
$5,000,000 or (ii) an amount equal to (a) the Aggregate
Revolving Loan Commitment, minus (b) the sum of (i) the
Letter of Credit Exposure and (ii) the Aggregate Revolving
Loan immediately prior to the making of such Swingline
Advance.
3.2.3. SWINGLINE NOTE. The obligation of Borrower to repay
the Swingline Loan shall be evidenced by a promissory note
payable to the order of Administrative Agent in a maximum
principal amount of $5,000,000 and otherwise in form and
substance satisfactory to Administrative Agent.
3.3. LETTER OF CREDIT COMMITMENT.
3.3.1. Letter of Credit Issuer commits to issue standby
letters of credit and commercial (documentary) letters of
credit for the account of Borrower from time to time from the
Effective Date to the Revolving Loan Maturity Date, but only
if the Letter of Credit Exposure will not as a result of such
issuance exceed the lesser of (i) $15,000,000 and (ii) an
amount equal to the difference between (a) the Aggregate
Revolving Loan Commitment, and (b) the Aggregate Revolving
Loan plus the Swingline Loan. The expiration date of any
Letter of Credit will be a Business Day that will be no more
than one (1) year from the date of issuance but in no event
shall such date be later than the date which is twenty-five
days prior to the Revolving Loan Maturity Date; provided,
however, that the expiration date for a Letter of Credit may
be later than the date that is twenty-five (25) days prior to
the Revolving Loan Maturity Date if Letter of Credit Issuer
consents to such issuance and Borrower provides to Letter of
Credit Issuer cash collateral satisfactory to Letter of
Credit Issuer as security for Borrower's obligation to
reimburse Letter of Credit Issuer for all draws thereunder.
3.3.2. Immediately upon the issuance by Letter of Credit
Issuer of a Letter of Credit in accordance with the terms and
conditions of this Agreement, Letter of Credit Issuer shall
be deemed to have sold and transferred to each other Lender,
and such other Lender shall be deemed to have purchased and
received from Letter of Credit Issuer, a pro-rata undivided
interest and participation in such Letter of Credit, the
reimbursement obligation of Borrower with respect thereto,
and any guaranty thereof or collateral therefor. Such other
Lender's pro-rata undivided interest shall be the same as its
pro-rata share of the Aggregate Revolving Loan Commitment.
3.4. UMB LETTERS OF CREDIT. Borrower, Lenders and Administrative
Agent acknowledge that UMB has issued certain letters of credit
which are outstanding as of the Effective Date as set forth on Exhibit
12.11.3 (collectively, the "UMB LCs"). UMB shall not issue any renewals
or extensions of the UMB LCs and the face amount of the UMB LCs shall
at no time exceed $8,966,609.42. While UMB is a Lender hereunder, (i)
with respect to the UMB LCs, UMB shall be entitled to all of the
benefits and rights that the Letter of Credit Issuer is entitled to
hereunder, and (ii) the UMB LCs shall be deemed to be "Letters of
Credit" hereunder and subject to all of the terms hereunder, including,
without limitation, interest on drawings and all fees owing or payable
in connection therewith as set forth in this Agreement (including,
without limitation, the Letter of Credit Fee). UMB shall on the date of
the initial Revolving Loan Advance distribute, without setoff, to each
other Lender its pro-rata share of the Letter of Credit Fee (based on
the Eurodollar Revolving Margin in effect on the Effective Date) for
each UMB LC for the remainder of the current calendar quarter and
thereafter quarterly in advance in accordance with this Agreement. On
the date of the initial Revolving Loan Advance, UMB shall be deemed to
have sold and transferred to each other Lender, and each such other
Lender shall be deemed to have purchased and received from UMB, a
pro-rata undivided interest and participation in each UMB LC, the
reimbursement obligation of Borrower with respect thereto, and any
guaranty thereof or collateral therefor. Such other Lender's pro-rata
undivided interest shall be the same as
4
its pro-rata share of the Aggregate Revolving Loan Commitment. UMB
represents and warrants to each Lender that it has obtained an
executed, enforceable unconditional reimbursement agreement from the
Borrower for each UMB LC. UMB shall provide by email and facsimile to
Administrative Agent (to such Persons at Administrative Agent as
directed by Administrative Agent from time to time) each Business Day
on or before 12:00 p.m. (St. Louis time) a summary of the outstanding
face amount of each UMB LC and the amount of any outstanding drawings
thereunder. Borrower agrees to pay to UMB the Letter of Credit Fee and
other fees applicable to Letters of Credit on each UMB LC in the
amounts set forth in this Agreement, provided, however, in no event
shall a Fronting Fee be payable by Borrower with respect to the UMB
LCs.
4. INTEREST.
4.1. INTEREST ON DRAWS ON LETTERS OF CREDIT. The unreimbursed
amount of each draw on a Letter of Credit shall bear interest at a rate
per annum equal to the Adjusted Base Rate applicable to Revolving
Loans.
4.2. INTEREST ON THE SWINGLINE LOAN. The entire Swingline Loan
shall be a Base Rate Loan and shall bear interest at the Adjusted Base
Rate.
4.3. INTEREST ON AGGREGATE LOANS. Borrower may, as provided in
Section 7, designate the whole of an Advance or any part of an Advance
(other than, in either case, a Swingline Advance) to be either a Base
Rate Advance or a Eurodollar Advance; provided, however, during the
existence of an Existing Default, Borrower may not designate an Advance
or part of an Advance as a Eurodollar Advance. Each Base Rate Advance
when made will become a Base Rate Loan, which shall bear interest at
the Adjusted Base Rate. Each Eurodollar Advance when made will become a
Eurodollar Loan, which shall bear interest at the Adjusted Eurodollar
Rate. Borrower may also, as provided herein, convert some or all of a
Base Rate Loan into a Eurodollar Loan and some or all of a Eurodollar
Loan into a Base Rate Loan. For each Eurodollar Loan, Borrower shall
select an Interest Period as provided in Section 4.7. A Eurodollar Loan
shall bear interest at the Adjusted Eurodollar Rate throughout the
applicable Interest Period designated by Borrower.
4.4. ADJUSTED BASE RATE. The Adjusted Base Rate for any Base Rate
Loan which is a Revolving Loan or a Swingline Loan shall be the Base
Rate plus the applicable Base Rate Revolving Margin determined from the
table in Section 4.6.
4.5. ADJUSTED EURODOLLAR RATE. The Adjusted Eurodollar Rate for
any Eurodollar Loan which is a Revolving Loan shall be the Eurodollar
Rate plus the applicable Eurodollar Revolving Margin determined from
the table in Section 4.6.
{continued on next page}
5
4.6. BASE RATE REVOLVING MARGINS AND EURODOLLAR REVOLVING MARGINS.
-------------------------------------------------------------------------------------------------------------
IF THE RATIO OF BORROWER EURODOLLAR BASE RATE UNUSED FEE RATE REFERENCE LEVEL
FUNDED INDEBTEDNESS TO REVOLVING MARGIN REVOLVING MARGIN
EBITDA (FOR THE FOUR
FISCAL QUARTER PERIOD OF
BORROWER MOST RECENTLY
ENDED) IS
-------------------------------------------------------------------------------------------------------------
greater than or equal to 1.75% 0.00% 0.35% IV
1.75 to 1.00
-------------------------------------------------------------------------------------------------------------
greater than or equal to 1.50% 0.00% 0.30% III
1.25 to 1.00 but less
than 1.75 to 1.00
-------------------------------------------------------------------------------------------------------------
greater than or equal to 1.25% 0.00% 0.25% II
0.75 to 1.00 but less
than 1.25 to 1.00
-------------------------------------------------------------------------------------------------------------
less than 0.75 to 1.00 1.00% 0.00% 0.20% I
-------------------------------------------------------------------------------------------------------------
The Increments applicable on the Effective Date shall be those of
Level II. Thereafter, the applicable Increments shall be re-determined
by Administrative Agent based on the ratio of Borrower's Funded
Indebtedness to EBITDA for the four fiscal quarter period of Borrower
most recently ended, promptly after each delivery by Borrower to
Administrative Agent of Borrower's Financial Statements (and
accompanying Compliance Certificate) as required in Section 12.11 and
will become applicable on the third Business Day following the day when
Borrower delivers such Financial Statements (and accompanying
Compliance Certificate) to Administrative Agent.
4.7. INTEREST PERIODS FOR EURODOLLAR LOANS. For each Eurodollar
Loan Borrower shall select an Interest Period that is either 30, 60,
90, or 180 days; provided that:
(i) every such Interest Period for a Eurodollar Advance shall
commence on the date of the Advance or on the date of the
conversion or continuation of any Loan as a Eurodollar Loan;
(ii) if any Interest Period would otherwise expire on a day
of a calendar month which is not a Business Day, then such
Interest Period shall expire on the next succeeding Business
Day in that calendar month; provided, however, that if the
next succeeding Business Day would be in the following
calendar month, it shall expire on the first preceding
Business Day;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period;
and
6
(iv) no Interest Period for a Eurodollar Loan that is part of
the Aggregate Revolving Loan shall extend beyond the
Revolving Loan Maturity Date.
4.8. TIME OF ACCRUAL. Interest shall accrue on all principal
amounts outstanding from the date when first outstanding to the date
when no longer outstanding. Amounts shall be deemed outstanding until
payments are applied thereto as provided herein.
4.9. COMPUTATION. Interest shall be computed for the actual days
elapsed over a year deemed to consist of 360 days. Interest rates that
are based on the Base Rate shall change simultaneously with any change
in the Base Rate and shall be effective for the entire day on which
such change becomes effective. The Base Rate will be determined by
Administrative Agent before the initial Advances on the Effective Date
and on each Business Day thereafter when the Base Rate changes.
4.10. RATE AFTER MATURITY. Borrower shall pay interest on the
Aggregate Loans, the Swingline Loan and any Obligations with respect
to Letters of Credit after their Maturity, and, at the option of
Administrative Agent or at the direction of the Required Lenders, on
the Aggregate Loans, the Swingline Loan and on the other Loan
Obligations after the occurrence of an Event of Default, at a rate per
annum of two percent (2%) plus the then-applicable rates. Past due fees
and other amounts past due and owing hereunder shall bear interest at
two percent (2%) above the then-current Adjusted Base Rate.
5. FEES.
5.1. UPFRONT FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender on the Effective Date a
non-refundable, one-time upfront fee (the "Upfront Fee") in the amount
previously agreed to between the Borrower and the Administrative Agent
pursuant to a separate fee letter (and the Administrative Agent agrees
to promptly forward to each Lender a portion of such Upfront Fee in the
amount previously agreed to between Administrative Agent and each
Lender).
5.2. REVOLVING LOAN UNUSED FEE. Borrower shall pay to Administrative
Agent for the account of Lenders a non-refundable, recurring Revolving
Loan Unused Fee calculated by applying the daily equivalent of an
annual Unused Fee Rate determined pursuant to the table set forth in
Section 4.6 to the Unused Revolving Loan Commitment on each day during
the period from the Effective Date to the Revolving Loan Maturity Date.
The Unused Revolving Loan Commitment on any day shall be the difference
between (i) the amount of the Aggregate Revolving Loan Commitment and
(ii) the sum of (a) the Aggregate Revolving Loan, and (b) the face
amount of all outstanding Letters of Credit and (c) without duplication
of clause (b), the total of all amounts drawn on the outstanding
Letters of Credit but not reimbursed to the Letter of Credit Issuer by
Borrower as of the close of business on such day. The Revolving Loan
Unused Fee shall be payable quarterly in arrears commencing on the last
day of the first calendar quarter ending after the Effective Date and
continuing on the last day of each calendar quarter thereafter and on
the Revolving Loan Maturity Date. The Unused Fee Rate shall be
determined from the chart in Section 4.6 of this Agreement under the
heading "Unused Fee Rate." The Unused Fee Rate applicable on the
Effective Date shall be Level II. Thereafter, the Borrower's ratio of
Funded Indebtedness to EBITDA for the four fiscal quarter period of
Borrower most recently ended will be calculated and applied to
determine the applicable Unused Fee Rate in the same manner used for
determination of the applicable Base Rate Revolving Margin, and
Eurodollar Revolving Margin as described in Section 4.6.
7
5.3. LETTER OF CREDIT FEE. Borrower shall pay to Administrative Agent
(or UMB in the case of the UMB LCs) for the account of Letter of Credit
Issuer (or UMB in the case of the UMB LCs) and each other Lender with a
Revolving Loan Commitment, a non-refundable recurring Letter of Credit
Fee for each Letter of Credit issued by Letter of Credit Issuer (or UMB
in the case of the UMB LCs). All Letter of Credit Fees are to be paid
to the Lenders pro-rata in accordance with their respective pro-rata
shares as set forth on Exhibit 3. The Letter of Credit Fee for any
Letter of Credit shall be an amount equal to the aggregate undrawn
amount of such Letter of Credit multiplied by the Eurodollar Revolving
Margin in effect on the date such Letter of Credit is issued and any
annual renewal date of each such Letter of Credit. The Letter of Credit
Fee for each Letter of Credit shall be payable in advance for the
remaining portion of the quarter when issued and quarterly thereafter
on the last day of each full calendar quarter thereafter (or portion
thereof for the last calendar quarter) while such Letter of Credit is
outstanding.
5.4. LETTER OF CREDIT FRONTING FEE. Borrower shall pay to Letter of
Credit Issuer (for its own account) a non-refundable, one-time Fronting
Fee equal to .125% of the face amount of each Letter of Credit issued
by Letter of Credit Issuer. The Fronting Fee due for any Letter of
Credit shall be payable in advance on the issuance date of such Letter
of Credit.
5.5. OTHER LETTER OF CREDIT FEES. Borrower shall pay to Letter of
Credit Issuer (or UMB in the case of the UMB LCs) for its own account
such Letter of Credit Issuer's other customary fees for issuance,
amendment, or renewal of a Letter of Credit and, as Letter of Credit
Issuer and Borrower may agree with respect to each Letter of Credit,
and for each negotiation of a draft drawn under such Letter of Credit.
5.6. CALCULATION OF FEES. All of the foregoing fees and all other fees
payable to Administrative Agent or any Lender that are based on an
annual percentage shall be calculated on the basis of a year deemed to
consist of 360 days and for the actual number of days elapsed.
6. PAYMENTS.
6.1. SCHEDULED PAYMENTS ON AGGREGATE REVOLVING LOAN AND SWINGLINE LOAN.
6.1.1. INTEREST. Borrower shall pay interest accrued on
each Base Rate Loan included in the Aggregate Revolving Loan
and on the Swingline Loan quarterly in arrears beginning on
the last day of the first calendar quarter ending after the
Effective Date and continuing on the last day of each
calendar quarter thereafter, and on the Revolving Loan
Maturity Date. Borrower shall pay interest accrued on each
Eurodollar Loan included in the Aggregate Revolving Loan at
the end of its Interest Period and, in addition, for each
such Eurodollar Loan with an Interest Period longer than 90
days, Borrower shall pay interest accrued thereon quarterly
on the same date of each quarter as the date such Eurodollar
Loan was made. Borrower shall pay interest accrued thereon on
each day that would have been the end of an Interest Period
with respect to such Eurodollar Loan had successive Interest
Periods of 90 days' duration been applicable to such
Eurodollar Loan. Borrower shall pay interest accrued on each
Revolving Loan and the Swingline Loan after the Revolving
Loan Maturity Date on demand.
6.1.2. PRINCIPAL. Subject to Section 6.1.3, Borrower shall
repay the entire amount of the Aggregate Revolving Loan as
then outstanding on May 30, 2005 (the Revolving Loan Maturity
Date), and Borrower shall repay the entire amount of the
Swingline Loan on demand, or if no demand is made, on the
Revolving Loan Maturity Date.
8
6.1.3. EXTENSION OF REVOLVING LOAN MATURITY DATE. If Borrower
provides written notice to the Administrative Agent and each
Lender no less then ninety (90) days and no more than one
hundred and fifty days (150) prior to the first annual
anniversary (the "First Extension Right") of the Effective
Date, and again, prior to the second annual anniversary (the
"Second Extension Right") of the Effective Date (an
"Extension Request") that it wishes to extend the Revolving
Loan Maturity Date, in each case by one year, then, if, and
only if, each of the Lenders affirmatively agree, in each
case, in writing to an extension in each of their respective
sole discretion by executing an extension agreement
containing such terms and conditions as required by the
Lenders (signed by Administrative Agent, each Lender and
Borrower), the Revolving Loan Maturity Date shall be so
extended by one year. Whether or not Borrower exercises the
First Extension Right, Borrower may exercise the Second
Extension Right. The Administrative Agent shall notify the
Borrower in writing within 30 days of the Lenders' receipt of
an Extension Request, whether or not the Lenders agree to an
extension of the Revolving Loan Maturity Date and, if so,
under what terms and conditions. If a Lender fails to advise
the Administrative Agent of its decision with respect to an
Extension Request within such 30 day period referred to in
the preceding sentence, such Lender shall be deemed to have
denied such request.
6.2. APPLICATION. Payments shall be paid or applied by the
Administrative Agent (in each case up to the outstanding principal
amount of the applicable Loan) (i) first, to reduce the Swingline
Loan to zero, and then (ii) second, as set forth in Section 16.10.
6.3. PREPAYMENTS.
6.3.1. VOLUNTARY PREPAYMENT. Subject to the limitations in
the following sentences, Borrower may wholly prepay any Base
Rate Loan, or Eurodollar Loan that is included in the
Aggregate Revolving Loan at any time and may make a partial
prepayment thereon from time to time, without penalty or
premium, but only if (i) Borrower gives Administrative Agent
written notice (which may be mailed, personally delivered or
telecopied as provided in Section 19.1) or telephonic notice
(promptly confirmed in writing in the manner provided in
Section 19.1) of Borrower's intention to make such prepayment
at least one Business Day prior to tendering such prepayment,
(ii) the total amount of such prepayment is a whole multiple
of $500,000, and (iii) Borrower pays any amount that is due
under Section 17.4 as a consequence of the prepayment. Unless
there is an Existing Default, all payments on the Revolving
Loan shall be made first to the outstanding balance of the
Swingline Loan, if any, and then to the remaining amount of
the Aggregate Revolving Loan.
6.3.2. MANDATORY PREPAYMENTS WHEN OVER-ADVANCES EXIST. If at
any time the Aggregate Revolving Loan exceeds the Maximum
Available Amount, whether as a result of optional Revolving
Loan Advances by Lenders as contemplated by Section 3.1.2 or
otherwise, Borrower shall on demand make a payment in the
amount of the excess to Administrative Agent for the account
of Administrative Agent on the Swingline Loan and Lenders on
the Aggregate Revolving Loan. Each such prepayment will be
applied by Administrative Agent and Lenders first to reduce
the Swingline Loan (and consequently each Lenders' risk
participation in such Swingline Loan) until it is reduced to
zero, then to reduce the Base Rate Loans that are included in
the Aggregate Revolving Loan (and consequently a ratable
portion of each Lender's Revolving Loan) until they are
reduced to zero and then to reduce the Eurodollar Loans that
are included in the Aggregate
9
Revolving Loan (and consequently a ratable portion of each
Lender's Revolving Loan). In the case of such a prepayment,
Borrower will pay any accrued interest on the amount prepaid
at the time of such prepayment, and Borrower pays any amount
that is due under Section 17.4 as a consequence of the
prepayment.
6.3.3. OTHER MANDATORY PREPAYMENTS.
6.3.3.1. PROCEEDS FROM SALES OF ASSETS NOT IN
ORDINARY COURSE. If Borrower or any Covered Person
sells any of its assets in a single transaction or
related series of transactions that are not in the
ordinary course of business, Borrower shall make a
payment to Administrative Agent for the ratable
benefit of the Lenders, to be applied to reduce
the Loan Obligations, in the aggregate amount of
the gross proceeds therefrom less reasonable selling
expenses and the increment in federal, state and
local income taxes, if any, payable as a consequence
of any taxable gain from such sale. Borrower need
not make such prepayment, however, (i) unless the
net proceeds from such sale or sales exceed
$2,000,000 in any one fiscal year, or (ii) from
the net proceeds of any such sale of a capital
asset to the extent such net proceeds are expended
or committed in writing to be expended by Borrower
within 180 days of completion of the sale for
replacement of such asset by another asset of
comparable type and utility. Borrower and Lenders
agree that it is Borrower's normal practice
to sell from time to time certain of its textile
service plants, and such sales are deemed to be in
the ordinary course of business; provided, however,
that any such sale in excess of an aggregate of five
over the term of this Agreement shall not be deemed
to be in the ordinary course of business.
Transactions permitted by Section 13.13 are not
subject to this Section.
6.3.3.2. PROCEEDS FROM SALE OF SECURITIES OR
ISSUANCE OF INDEBTEDNESS. If after the Execution
Date Borrower or any Covered Person issues any debt,
equity (except equity issued in connection with a
Permitted Acquisition) or debt securities, or
warrants or options therefor (other than the
exercise of warrants or options issued to
management of Borrower pursuant to a management
incentive stock option program (the Approved
Options)), Borrower shall promptly after such sale
make a payment to Administrative Agent for the
ratable benefit of the Lenders, to be applied to
reduce the Loan Obligations, in an aggregate amount
equal to the gross proceeds therefrom less
reasonable brokers' and underwriters' fees and
commissions and other reasonable issuing expenses.
6.4. REIMBURSEMENT OBLIGATIONS OF BORROWER. Borrower hereby
unconditionally agrees to immediately pay to Letter of Credit Issuer
on demand at the Letter of Credit Issuer's Applicable Lending Office
all amounts required to pay all drafts drawn under Letters of Credit
issued for the account of such Borrower, all fees associated with the
Letters of Credit, and all reasonable expenses incurred by Letter of
Credit Issuer in connection with such Letters of Credit and in any
event and without demand to remit to Letter of Credit Issuer (which may
be through obtaining Advances if permitted under Section 3.1.2)
sufficient funds to pay all debts and liabilities arising under any
Letter of Credit issued for the account of such Borrower. Borrower
hereby unconditionally agrees to immediately pay to UMB on demand at
UMB's Applicable Lending Office all amounts required to pay all drafts
drawn under UMB LCs, all fees associated with the UMB LCs, and all
reasonable expenses incurred by UMB in connection with such UMB LCs and
in any event and without demand to remit to UMB (which may be through
obtaining Advances) sufficient funds to pay all debts and liabilities
arising under any UMB LC.
10
6.5. MANNER OF PAYMENTS AND TIMING OF APPLICATION OF PAYMENTS.
6.5.1. PAYMENT REQUIREMENT. Unless expressly provided to
the contrary elsewhere herein, Borrower shall make each
payment on the Loan Obligations to Administrative Agent for
the account of Lenders as required under the Loan Documents
at the Applicable Lending Office of the Administrative Agent
on the date when due, without deduction, setoff or
counterclaim. All such payments will be distributed by
Administrative Agent to Lenders as provided in Section 16.10
for application to the Loan Obligations as provided herein.
6.5.2. APPLICATION OF PAYMENTS AND PROCEEDS. All payments
received by Administrative Agent in immediately available
funds at or before 12:00 noon (Local Time) on a Business Day
will be distributed by Administrative Agent to Lenders as
provided in Section 16.10 on the same Business Day. Such
payments received on a day that is not a Business Day or
after 12:00 noon (Local Time) on a Business Day will be
distributed by Administrative Agent to Lenders as provided in
Section 16.10 on the next Business Day. The amount so
distributed to a Lender will be applied by such Lender to the
relevant Loan Obligation on the Business Day when received.
6.5.3. INTEREST CALCULATION. Section 6.5.2 notwithstanding,
for purposes of interest calculation only, (i) a payment in
cash or by wire transfer or direct debit to an account of
Borrower received at or before 12:00 noon (Local Time) on a
Business Day shall be deemed to have been applied to the
relevant Loan Obligation on the Business Day when it is
received, and (ii) a payment in cash or by wire transfer or
direct debit to an account of Borrower received on a day that
is not a Business Day or after 12:00 noon (Local Time) on a
Business Day shall be deemed to have been applied to the
relevant Loan Obligation on the next Business Day. A payment
made by check, draft or other instrument will be applied for
interest purposes in Administrative Agent's commercially
reasonable discretion in a manner consistent with its
customary collection policies.
6.6. RETURNED INSTRUMENTS. If a payment is made by check, draft or
other instrument and the check, draft or other instrument is returned
unpaid, any application of the payment to the Loan Obligations will
be reversed and will be treated as never having been made.
6.7. COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If Administrative Agent
or any Lender is for any reason compelled to surrender any payment
because such payment is for any reason invalidated, declared
fraudulent, set aside, or determined to be void or voidable as a
preference, an impermissible setoff, or a diversion of trust funds,
then this Agreement and the Loan Obligations to which such payment or
proceeds was applied or intended to be applied shall be revived as if
such application was never made; and Borrower shall be liable to pay to
Administrative Agent or such Lender, and shall indemnify Administrative
Agent or such Lender for and hold Administrative Agent or such Lender
harmless from any loss with respect to, the amount of such payment or
proceeds surrendered. This Section shall be effective notwithstanding
any contrary action that Administrative Agent or such Lender may take
in reliance upon its receipt of any such payment or proceeds. Any such
contrary action so taken by Administrative Agent or such Lender shall
be without prejudice to Administrative Agent's or such Lender's rights
under this Agreement and shall be deemed to have been conditioned upon
the application of such payment or proceeds having become final and
indefeasible. The provisions of this Section shall survive termination
of the Commitments, the expiration of the Letters of Credit and the
indefeasible full payment and satisfaction of all of the Loan
Obligations.
11
6.8. DUE DATES NOT ON BUSINESS DAYS. Subject to Section 4.7(ii), if
any payment required hereunder becomes due on a date that is not a
Business Day, then such due date shall be deemed automatically
extended to the next Business Day (including any interest accruing
during any such extension period).
7. PROCEDURE FOR OBTAINING ADVANCES AND LETTERS OF CREDIT.
7.1. INITIAL ADVANCES. Provided that all conditions thereto hereunder
are satisfied and subject to the limitations contained herein,
Lenders will fund and Administrative Agent will make the initial
Revolving Loan Advance on the Effective Date as directed by
Borrower in a written direction delivered to Administrative Agent.
The manner of disbursement shall be subject to Administrative
Agent's approval.
7.2. SUBSEQUENT REVOLVING LOAN ADVANCES.
7.2.1. BORROWER REQUESTS. Borrower may request subsequent
Revolving Loan Advances at any time, but not more often than
once each Business Day, by submitting a request therefor to
Administrative Agent as provided in Section 7.10.
Administrative Agent may treat every request for a Revolving
Loan Advance that is a Base Rate Advance as a request for a
Swingline Advance to the extent the requested amount does not
exceed the Maximum Swingline Amount and as a request for a
Revolving Loan Advance in the amount of the excess.
Administrative Agent may treat every request for an Advance
as a request for a Base Rate Advance if Borrower does not
specify that such Advance is to be a Eurodollar Advance in
Borrower's request for an Advance. Every request for a
Revolving Loan Advance shall be irrevocable. A request for a
Revolving Loan Advance received by Administrative Agent on a
day that is not a Business Day or that is received by
Administrative Agent after 12:00 noon (Local Time) (or 2:00
p.m. (Local Time) in the case of a request for a Revolving
Loan Advance which will, subject to the terms of this
Agreement, be treated by Administrative Agent as a request
for a Swingline Advance) on a Business Day shall be treated
as having been received by Administrative Agent prior to
12:00 noon (Local Time) (or 2:00 p.m. (Local Time) in the
case of a request for a Revolving Loan Advance which will,
subject to the terms of this Agreement, be treated by
Administrative Agent as a request for a Swingline Advance) on
the next Business Day.
7.2.2. REVOLVING LOAN ADVANCES TO REPAY THE SWINGLINE LOAN.
7.2.2.1. Administrative Agent may in its sole and
absolute discretion on any Business Day give notice
to Lenders of the amount of the Swingline Loan after
application of all payments to be applied thereto
as provided elsewhere herein. Such notice shall be
given no later than 1:00 p.m. (Local Time) and may
include a demand that the Swingline Loan be
fully paid. If Administrative Agent demands that the
Swingline Loan be fully paid, then prior to 3:00
p.m. (Local Time) on such date, Lenders shall remit
funds to Administrative Agent sufficient to reduce
the Swingline Loan to zero. The aggregate of such
remittances shall be treated as a Revolving Loan
Advance and the Aggregate Revolving Loan
increased accordingly. Each such remittance by
a Lender shall be made in accordance with its
pro-rata share of the Aggregate Revolving Loan
Commitment and shall be made notwithstanding that
(i) the amount of the aggregate of such remittances
by Lenders may not be in the minimum amount for
Revolving Loan
12
Advances otherwise required hereunder, (ii) any
conditions to Advances in Section 8 may not be then
satisfied, (iii) there is an Existing Default,
(iv) the aggregate amount of such remittances by
Lenders would result in the Aggregate Revolving
Loan exceeding the Maximum Available Amount, or
(v) such remittances by Lenders may be made after
the Revolving Loan Maturity Date; provided,
however, that in no event shall any Lender be
required to make any such remittance that would
result in the sum of (a) the Revolving Loan of
such Lender, plus (b) such Lender's pro-rata share
of the Letter of Credit Exposure exceeding
such Lender's Revolving Loan Commitment.
7.2.2.2. If for any reason, including the
commencement of a proceeding in bankruptcy with
respect to Borrower, remittances by Lenders as
provided above cannot be made on the date otherwise
required above, then each Lender shall be deemed
automatically to have purchased from Administrative
Agent as of such date a pro-rata undivided interest
and participation in the Swingline Loan so as to
cause such Lender to share in the Swingline Loan
in accordance with its pro-rata share of the
Aggregate Revolving Loan Commitment. Each Lender
shall remit its pro-rata share of the Swingline
Loan to Administrative Agent promptly on demand.
All interest payable with respect to such Lender's
pro-rata share of the Swingline Loan shall be for
the account of Administrative Agent to the date
such remittance is made, and shall be for the
account of and remitted by Administrative Agent to
such Lender as a participant from such date.
Further, until such remittance is made, such Lender
shall pay to Administrative Agent, on demand,
interest on such Lender's pro-rata share of the
Swingline Loan at the Federal Funds Rate.
7.2.3. ADMINISTRATIVE AGENT'S RIGHT TO MAKE OTHER REVOLVING
LOAN ADVANCES.
7.2.3.1. PAYMENT OF LOAN OBLIGATIONS. At any time if
there is an Existing Default, or if there is no
Existing Default if agreed to by Borrower and
Administrative Agent, Administrative Agent shall
have the right to make Revolving Loan Advances at
any time and from time to time to cause timely
payment of any of the Loan Obligations, and
Administrative Agent shall have the right to make
withdrawals from or debits against any accounts
of any Covered Person at Administrative Agent at
any time and from time to time to cause timely
payment of any of the Loan Obligations.
Administrative Agent may select the Advance Date
for any such Revolving Loan Advance, but such
Advance Date may only be a Business Day.
Administrative Agent will give notice to Borrower
after any such Revolving Loan Advance is made.
Any such Revolving Loan Advance will be a Base
Rate Advance.
7.3. LETTERS OF CREDIT. Borrower may request the issuance of a Letter
of Credit by submitting an issuance request to Letter of Credit Issuer
and executing the reimbursement agreement required under Section
9.1 no less than five (5) Business Days prior to the requested
issue date for such Letter of Credit, although Letter of Credit
Issuer agrees to use its commercially reasonable efforts to issue a
requested Letter of Credit within three (3) Business Days of a
request from Borrower.
7.4. FUNDINGS.
7.4.1. REVOLVING ADVANCES. Not later than 1:00 p.m. (Local
Time) on each Advance Date for an Advance other than a
Swingline Advance, Administrative Agent shall
13
promptly notify each Lender of the amount of the Advance
to be made on that Advance Date. Each Lender shall make
immediately available to Administrative Agent by 3:00
p.m. (Local Time) on the Advance Date funds consisting
solely of Dollars in the amount of its pro-rata share of
such Advance, rounded to the nearest xxxxx, in
accordance with such remittance instructions as may be
given by Administrative Agent to Lenders from time to
time.
7.4.2. DRAWS ON LETTERS OF CREDIT. In the event that a
draw is made on a Letter of Credit and Borrower does not
reimburse the amount of such draw in full to Letter of
Credit Issuer immediately on demand, Letter of Credit
Issuer shall promptly notify Administrative Agent of
such failure. Upon Administrative Agent's receipt of
such notice from Letter of Credit Issuer, Administrative
Agent may notify each Lender thereof and shall have the
right to cause a Revolving Loan Advance to be made,
regardless whether such Revolving Loan Advance would
result in the Aggregate Revolving Loan exceeding the
Maximum Available Amount, by notifying each Lender of
the draw, the amount of the Revolving Loan Advance
required to fund reimbursement of such draw, and the
amount of such Lender's ratable share of such Revolving
Loan Advance. The Advance Date and time for such
Revolving Loan Advance shall not be later than 3:00 p.m.
(Local Time) on the first Business Day following
Administrative Agent's delivery of such notice to
Lenders. By no later than such Advance Date and time,
each Lender shall make immediately available to
Administrative Agent funds consisting solely of Dollars
in the amount of its pro-rata share of such Revolving
Loan Advance, rounded to the nearest xxxxx, in
accordance with such remittance instructions as may be
given by Administrative Agent to each Lender from time
to time. Each Revolving Loan Advance made by
Administrative Agent pursuant to this Section 7.4.2
shall be deemed to be a Base Rate Advance.
In the event that a draw is made on a UMB LC and Borrower
does not reimburse the amount of such draw in full to UMB
immediately on demand, UMB shall promptly notify each
other Lender and Administrative Agent of such failure.
Upon each other Lender's and Administrative Agent's
receipt of such notice from UMB, Administrative Agent
shall have the right to cause a Revolving Loan Advance to
be made, regardless whether such Revolving Loan Advance
would result in the Aggregate Revolving Loan exceeding the
Maximum Available Amount, by notifying each Lender of the
amount of the Revolving Loan Advance required to fund
reimbursement of such draw, and the amount of such
Lender's ratable share of such Revolving Loan Advance. The
Advance Date and time for such Revolving Loan Advance
shall not be later than 3:00 p.m. (Local Time) on the
first Business Day following Administrative Agent's
delivery of such notice to Lenders. By no later than such
Advance Date and time, each Lender (including UMB) shall
make immediately available to Administrative Agent funds
consisting solely of Dollars in the amount of its pro-rata
share of such Revolving Loan Advance, rounded to the
nearest xxxxx, in accordance with such remittance
instructions as may be given by Administrative Agent to
each Lender from time to time. Each Revolving Loan Advance
made by Administrative Agent pursuant to this Section 7.4.2
shall be deemed to be a Base Rate Advance.
7.4.3. ALL FUNDINGS RATABLE. All fundings of Advances (other
than Swingline Advances) shall be made by Lenders as provided
herein in accordance with their pro-rata shares of the
respective Aggregate Commitments, as applicable. Except as
otherwise expressly provided herein, a Lender shall not be
obligated to fund Revolving Loan Advances that would
result in the sum of (a) such Lender's Revolving Loan,
plus (b)
14
such Lender's pro-rata share of the Letter of Credit
Exposure exceeding its Revolving Loan Commitment, or
make available any more than its pro-rata share of any
Advance.
7.5. ADMINISTRATIVE AGENT'S AVAILABILITY ASSUMPTION.
7.5.1. Unless Administrative Agent has been given written
notice by a Lender prior to an Advance Date that such Lender
does not intend to make immediately available to
Administrative Agent such Lender's pro-rata share of the
Advance which Administrative Agent will be obligated to
make on the Advance Date, Administrative Agent may
assume that such Lender has made the required amount
available to Administrative Agent on the Advance Date
and Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding
amount. If such corresponding amount is not in fact made
immediately available to Administrative Agent by such
Lender on the Advance Date, Administrative Agent shall
be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay
such corresponding amount (or an amount demanded by
Administrative Agent pursuant to Section 7.2.2.1)
immediately upon Administrative Agent's demand therefor,
then Administrative Agent shall promptly notify Borrower
and the other Lenders and Borrower shall immediately pay
such corresponding amount to Administrative Agent.
Administrative Agent shall also be entitled to recover,
either from such defaulting Lender (a Defaulting Lender)
or Borrower, interest on such corresponding amount for
each day from the date such corresponding amount was
made available by Administrative Agent to Borrower to
the date such corresponding amount is recovered by
Administrative Agent, at a rate per annum equal to (i)
if paid by such Lender, the cost to Administrative Agent
of funding such amount at the Federal Funds Rate, or
(ii) if paid by Borrower, the applicable rate for the
Advance in question determined from the request
therefor. Each Lender shall be obligated only to fund
its pro-rata share of an Advance subject to the terms
and conditions hereof, regardless of the failure of
another Lender to fund its pro-rata share thereof. In
addition, the failure of any Lender to pay its pro-rata
share of any such Advance shall cause such Lender to be
a Defaulting Lender and such Defaulting Lender shall,
until such amount is paid to Administrative Agent (with
interest at the Federal Funds Rate), (a) permit
Administrative Agent the unconditional and irrevocable
right of setoff against any amounts (including, without
limitation, payments of principal, interest, and fees,
as well as indemnity payments) received by
Administrative Agent hereunder for the benefit of any
such Defaulting Lender, and (b) if such failure to pay
shall continue for a period of two Business Days, result
in any such Defaulting Lender forfeiting any right to
vote on any matter that the Required Lenders or all
Lenders are permitted to vote for hereunder (and the
calculation of Required Lenders shall exclude such
Defaulting Lender's interest in the Lenders' Exposure);
provided, however, once such a failure is cured, then
such Lender shall, subsequent thereto, have all rights
hereunder; provided, further, however, if any Lender
shall fail to make such a payment within the two
Business Day period specified in clause (b) above (other
than by reason of events beyond the reasonable control
of such Lender) four (4) or more times during the term
hereof, such Lender shall permanently forfeit its right
to vote hereunder (and the calculation of Required
Lenders shall exclude such Defaulting Lender's interest
in the Lenders' Exposure). If there is a Defaulting
Lender, the Administrative Agent shall with reasonable
promptness request that the other Lenders fund such
Defaulting Lender's portion of the requested Advances,
although the other Lenders shall have no obligation to
do so and may refuse to do so in their sole discretion.
7.5.2. Unless Administrative Agent has been given
written notice by Borrower prior to the date any payment
to be made by it is due, that it does not intend to
remit such
15
payment, Administrative Agent may assume that the
Borrower has timely remitted such payment and
Administrative Agent may, in reliance upon such
assumption, make available a corresponding amount or
pro-rata portion thereof to the Persons entitled
thereto. If such payment was not in fact remitted to the
Administrative Agent in immediately available funds,
then, each Lender shall immediately on demand repay to
Administrative Agent the corresponding amount or
pro-rata portion thereof made available to such Lender,
together with interest thereon in respect of each day
from the date such amount was made available by
Administrative Agent to such Lender to the date such
amount is repaid to Administrative Agent, at the Federal
Funds Rate.
7.6. DISBURSEMENT. Provided that all conditions precedent herein to a
requested Advance or, if applicable, a Swingline Advance, have been
satisfied, Administrative Agent will make the amount of such
requested Advance available to Borrower on the applicable Advance
Date in immediately available funds in Dollars at Administrative
Agent's Applicable Lending Office.
7.7. RESTRICTIONS ON ADVANCES. No Advance will be made unless it is a
whole multiple of $500,000 and not less than $1,000,000, in the
case of a Eurodollar Advance, or a whole multiple of $100,000 and
not less than $500,000, in the case of a Base Rate Advance. No more
than one Revolving Loan Advance and no more than one Swingline
Advance will be made on any one day pursuant to a request for a
Revolving Loan Advance. Advances will only be made for the purposes
permitted in Section 12.1. No Eurodollar Advance will be made so
long as there is any Existing Default.
7.8. RESTRICTION ON NUMBER OF EURODOLLAR LOANS. No more than five (5)
Eurodollar Loans with different Interest Periods may be outstanding
at any one time.
7.9. EACH ADVANCE REQUEST AND LETTER OF CREDIT REQUEST A CERTIFICATION.
Each submittal of a request for an Advance and each submittal of a
request for the issuance of a Letter of Credit by a Borrowing Officer
shall constitute a certification by Borrower that (i) there is no
Existing Default, (ii) all conditions precedent hereunder to the making
of the requested Advance or issuance of the requested Letter of Credit
have been satisfied, and (iii) the Representations and Warranties are
then true, with such exceptions as have been disclosed to Lenders in
writing by Borrower or a Guarantor from time to time and are
satisfactory to Lenders, and will be true on the Advance Date or
issuance date, as applicable, as if then made with such exceptions.
7.10. REQUIREMENTS FOR EVERY ADVANCE REQUEST. Only a request (which
shall be in writing, or oral and confirmed in writing within one
Business Day, in the form attached hereto as Exhibit 7.10 and mailed,
personally delivered or telecopied as provided in Section 19.1) from a
Borrowing Officer to Administrative Agent that specifies the amount of
the Advance to be made, the Advance Date for the requested Advance, the
portion of the Advance which is requested to be a Eurodollar Advance
and the portion of the Advance which is requested to be a Base Rate
Advance, and the Interest Period to be applicable to the Eurodollar
Loan that will result from a requested Eurodollar Advance, shall be
treated as a request for an Advance. No Advance Date for any requested
Advance may be other than a Business Day. A request for a Eurodollar
Advance must be given prior to 12:00 noon, Local Time, at least three
(3) Business Days prior to the Advance Date for such Eurodollar
Advance. A request for a Base Rate Advance must be given prior to 12:00
noon, Local Time, on the Advance Date for such Base Rate Advance.
7.11. REQUIREMENTS FOR EVERY LETTER OF CREDIT REQUEST. Only a written
request (which may be mailed, personally delivered or telecopied as
provided in Section 19.1) from a Borrowing Officer to
Administrative Agent or an electronic initiation over an online
service provided by
16
Letter of Credit Issuer that specifies the amount, requested expiry
date (which shall be a Business Day and in no event later than
twenty-five (25) days before the Revolving Loan Maturity Date) and
beneficiary of the requested Letter of Credit and other information
necessary for its issuance shall be treated as a request for issuance
of a Letter of Credit.
7.12. EXONERATION OF ADMINISTRATIVE AGENT AND LENDERS. Neither
Administrative Agent nor any Lender shall incur any liability to
Borrower for treating a request that meets the express requirements of
Section 7.10 or Section 7.11 as a request for an Advance or issuance of
a Letter of Credit, as applicable, if Administrative Agent believes in
good faith that the Person making the request is a Borrowing Officer or
if, in the case of a request for a Letter of Credit, it is
electronically initiated. Neither Administrative Agent nor any Lender
shall incur any liability to Borrower for failing to treat any such
request as a request for an Advance or issuance of a Letter of Credit,
as applicable, if Administrative Agent believes in good faith that the
Person making the request is not a Borrowing Officer.
8. CONDITIONS OF LENDING.
8.1. CONDITIONS TO INITIAL ADVANCE. Lenders will have no obligation to
fund the initial Revolving Loan Advance or any subsequent Revolving
Loan Advance unless:
8.1.1. LISTED DOCUMENTS AND OTHER ITEMS. Administrative Agent
shall have received on or before the Effective Date all of
the documents and other items listed or described in
Exhibit 8.1.1 hereto as being conditions to the initial
Revolving Loan Advances as being delivered or executed on
or before the Execution Date, with each being satisfactory
to Lenders and (as applicable) duly executed and (also as
applicable) sealed, attested, acknowledged, certified, or
authenticated.
8.1.2. FINANCIAL CONDITION; PROJECTIONS. Lenders shall (A)
have received (i) audited consolidated financial statements
for the Borrower for the fiscal years ended in 2000, 2001 and
2002, and (ii) unaudited interim consolidated financial
statements for the Borrower for each quarterly period ended
after the latest fiscal year referred to in clause (i) above,
and such financial statements shall not, in the judgment of
the Lenders, disclose any material adverse change in the
consolidated financial position of the Borrower from what was
reflected in the financial statements previously furnished to
the Lenders, and (B) have determined to their satisfaction
that the proforma balance sheet previously provided to
Administrative Agent (which such balance sheet is proforma
after giving effect to the Healthcare Divestiture and the
Non-Healthcare Divestiture, the repayment of the Existing
Indebtedness (including any applicable prepayment penalties)
and the funding of the initial Revolving Loan Advances, and
the payment of all fees and expenses hereunder), and proforma
financial statements (which such proforma financial
statements are after giving effect to the Healthcare
Divestiture and the Non-Healthcare Divestiture, the repayment
of the Existing Indebtedness (including any applicable
prepayment penalties) and the funding of the initial
Revolving Loan Advances, and the payment of all fees and
expenses hereunder) for the remainder of fiscal year 2003 and
each of fiscal years 2004 and 2005, as furnished to
Administrative Agent and Lenders, and other information
furnished to Administrative Agent and Lenders by Borrower (i)
for the periods ended on or before the Effective Date, fairly
and accurately reflect the business and financial condition
of Borrower, its cash flows and the results of its operations
for such periods, and (ii) for the periods that will end
after the Effective Date, fairly and accurately forecast the
business and financial condition of Borrower, its cash flows,
and the results of its operations for such periods.
17
8.1.3. NO DEFAULT. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such
Advance being requested or made or the application of the
proceeds thereof.
8.1.4. REPRESENTATIONS AND WARRANTIES. The Representations
and Warranties shall be true and correct.
8.1.5. NO MATERIAL ADVERSE CHANGE. Since the date of the
Initial Financial Statements delivered to Administrative
Agent, there shall not have been any change which has or is
reasonably likely to have a Material Adverse Effect on any
Covered Person.
8.1.6. PENDING MATERIAL PROCEEDINGS. There shall be no
pending Material Proceedings.
8.1.7. PAYMENT OF FEES AND EXPENSES. Borrower shall have paid
and reimbursed to Lenders all fees, costs and expenses that
are payable or reimbursable to Lenders hereunder on or
before the Effective Date.
8.1.8. INSURANCE. Administrative Agent shall be satisfied
with the insurance maintained by Borrower (including the
insurance carrier, the types of insurance maintained, and
the levels of insurance maintained).
8.1.9. EXISTING INDEBTEDNESS. Administrative Agent shall have
received satisfactory evidence that either prior to the
Effective Date or simultaneously with the funding of the
initial Revolving Loan Advance, that, except for the
Existing Reimbursement Obligations, all of the Existing
Indebtedness shall be fully repaid and all commitments of
the lenders thereunder and obligations of Borrower and
each Covered Person thereunder shall be terminated.
8.1.10. NON-HEALTHCARE DIVESTITURE AND HEALTHCARE DIVESTITURE.
The Non-Healthcare Divestiture and the Healthcare Divestiture
shall have each closed and the Borrower shall have
received no less than $35,000,000 in cash in net sale
proceeds in the aggregate from both such closings.
8.1.11. CLOSING CERTIFICATE. A closing certificate (on the
Effective Date and on the date of the initial Revolving
Advance) certifying as to the completion of the conditions
to closing, including without limitation, the matters in
Sections 8.1.3 and 8.1.4.
8.1.12. OTHER ITEMS. Administrative Agent shall have received
such other consents, approvals, opinions, certificates,
documents or information as it reasonably deems necessary.
The Lenders shall be satisfied with the capitalization and
corporate structure of Borrower and its Subsidiaries.
8.2. CONDITIONS TO SUBSEQUENT ADVANCES. Lenders will have no
obligation to fund any Advance after the initial Revolving Loan
Advance unless:
8.2.1. GENERAL CONDITIONS. All of the conditions to the
initial Advances in Section 8.1 (except the condition in
Section 8.1.4 and Section 8.1.8) shall have been and shall
remain satisfied.
18
8.2.2. REPRESENTATIONS AND WARRANTIES. The Representations
and Warranties are then true, with such exceptions as have
been disclosed to Lenders in writing by Borrower or any
Guarantor from time to time and are satisfactory to
Lenders, and will be true as of the time of such Advance,
as if then made with such exceptions.
8.2.3. NO PROHIBITIONS. No order, judgment or decree of any
Governmental Authority shall exist which purports by its
terms to enjoin or restrain Administrative Agent or any
Lender from making the requested Advance, and no Law or
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over
Administrative Agent or any Lender shall exist which
prohibits, or requests that Administrative Agent or any
Lender refrain from, the making of loans generally or
Administrative Agent or any Lender in particular, or imposes
upon Administrative Agent or any Lender with respect to such
Advance any restriction or reserve or capital requirement
(for which Administrative Agent or any Lender is not
otherwise compensable by Borrower hereunder).
8.2.4. NO DEFAULT. There shall be no Existing Default and no
Default or Event of Default will occur as a result of such
Advance being requested or made or the application of the
proceeds thereof.
9. CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. As conditions precedent to
the issuance of any Letter of Credit:
9.1. LETTER OF CREDIT APPLICATION/REIMBURSEMENT AGREEMENT. Borrower
shall have executed and delivered to Letter of Credit Issuer a letter
of credit application(s) and reimbursement agreement(s) each in form
and substance satisfactory to Letter of Credit Issuer under which
Borrower further evidences its obligation to reimburse to Letter of
Credit Issuer on demand the amount of each draw on such Letter of
Credit as provided in Section 6.4, together with interest from the date
of the draw at the rate provided in Section 4.1 and (without
duplication) all reasonable expenses incurred by Letter of Credit
Issuer in connection with such Letter of Credit. In the event of a
direct and irreconcilable conflict between the terms of this Agreement
and the terms of the documents executed by Borrower in connection with
the issuance of any Letter of Credit (including any UMB LC) including,
without limitation, any letter of credit application, master letter of
credit agreement or reimbursement agreement, the terms of this
Agreement will control.
9.2. NO PROHIBITIONS. No order, judgment or decree of any Governmental
Authority shall exist which purports by its terms to enjoin or restrain
Letter of Credit Issuer or any other Lender from issuing such Letter of
Credit, and no Law or request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
Letter of Credit Issuer or any other Lender shall exist which
prohibits, or requests that Letter of Credit Issuer or any other Lender
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular, or imposes upon Letter of Credit Issuer
or any other Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which Letter of
Credit Issuer or any other Lender is not otherwise compensable by
Borrower hereunder).
9.3. REPRESENTATIONS AND WARRANTIES. The Representations and Warranties
are then true, with such exceptions as have been disclosed to
Lenders in writing by Borrower or such Guarantor from time to time
and are satisfactory to Lenders, and will be true as of the time of
the issuance of such Letter of Credit, as if then made with no
exceptions.
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9.4. NO DEFAULT. There shall be no Existing Default and no Default or
Event of Default is reasonably likely to occur as a result of such
Letter of Credit being issued or a draw thereon being made or paid.
9.5. OTHER CONDITIONS. All of the conditions to the initial Advances
in Section 8.1 (except the condition in Section 8.1.4 and Section
8.1.8) shall have been and shall remain satisfied.
10. REPRESENTATIONS AND WARRANTIES. Except as otherwise described in the
Disclosure Schedule attached hereto as Exhibit 10, Borrower represents and
warrants to Administrative Agent, Lenders, and Letter of Credit Issuer, on
its behalf and on behalf of each Covered Person, as follows:
10.1. ORGANIZATION AND EXISTENCE. Each Covered Person is duly organized
and existing in good standing under the Laws of the state of its
organization, is duly qualified to do business and is in good standing
in every state where the nature or extent of its business or properties
require it to be qualified to do business, except where the failure to
so qualify could not reasonably be expected to have a Material Adverse
Effect on any Covered Person. Each Covered Person has the power and
authority to own its properties and carry on its business as now being
conducted. With respect to each Covered Person, the following
information is fully, accurately and completely set forth on section
10.1 of the Disclosure Schedule: (i) the full and exact legal name of
each Covered Person, (ii) state of organization/formation of such
Covered Person, (iii) the tax identification number (FEIN or social
security number, as appropriate) of each Covered Person, and (iv) the
charter number (if available) of each Covered Person.
10.2. AUTHORIZATION. Each Covered Person is duly authorized to execute
and perform every Loan Document to which such Covered Person is a
party, and Borrower is duly authorized to borrow hereunder, and
this Agreement and the other Loan Documents have been duly
authorized by all requisite corporate or membership action (in the
case of limited liability companies) of each Covered Person. No
consent, approval or authorization of, or declaration or filing
with, any Governmental Authority, and no consent of any other
Person, is required in connection with Borrower's execution,
delivery or performance of this Agreement and the other Loan
Documents, except for those already duly obtained.
10.3. DUE EXECUTION. Every Loan Document to which a Covered Person is
a party has been executed on behalf of such Covered Person by a
Person duly authorized to do so.
10.4. ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Covered Person is a party constitutes the legal, valid and
binding obligation of such Covered Person, enforceable against such
Covered Person in accordance with its terms, except to the extent
that the enforceability thereof against such Covered Person may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting creditors' rights generally or by equitable
principles of general application.
10.5. BURDENSOME OBLIGATIONS. No Covered Person is a party to or bound
by any Contract, including, without limitation, any Contract that
would prohibit the granting of a Security Interest on its assets or
require that if a Security Interest is granted that it be pari
passu with any other Person's Security Interest in such assets, or
is subject to any provision in the Charter Documents of such
Covered Person which would, if performed by such Covered Person,
result in a Default or Event of Default either immediately or upon
the elapsing of time.
10.6. LEGAL RESTRAINTS. The execution and performance of any Loan
Document by a Covered Person will not violate or constitute a
default under the Charter Documents of such Covered
20
Person, any Material Agreement of such Covered Person, or any
Material Law, and will not, except as expressly contemplated or
permitted in this Agreement, result in any Security Interest being
imposed on any of such Covered Person's property.
10.7. LABOR CONTRACTS AND DISPUTES. There is no pending or, to
Borrower's knowledge, threatened, strike, work stoppage, unfair labor
practice claim or other labor dispute against or affecting any Covered
Person or its employees which has or is reasonably likely to have a
Material Adverse Effect on any Covered Person.
10.8. NO MATERIAL PROCEEDINGS. There are no Material Proceedings
pending or, to the best knowledge of Borrower, threatened, against any
Covered Person.
10.9. MATERIAL LICENSES. All Material Licenses have been obtained or
exist for each Covered Person.
10.10. COMPLIANCE WITH MATERIAL LAWS. The operations and employee
compensation practices of every Covered Person comply in all
material respects with, and are not subject to any judicial or
administrative complaint, investigation, order or proceeding
alleging the violation of, any and all applicable Environmental
Laws which are Material Laws and Employment Laws which are Material
Laws.
10.11. PRIOR TRANSACTIONS. From and after the Effective Date, except
for Permitted Acquisitions, no Covered Person has been a party to any
merger or consolidation, or acquired all or substantially all of
the assets of any Person, or acquired any of its property outside
of the ordinary course of business.
10.12. SOLVENCY. Borrower is Solvent prior to and after giving effect
to, the transactions contemplated by the initial Revolving Loan
Advance on the Effective Date. Borrower is Solvent at the time of each
request for an Advance and immediately after the funding of each such
Advance.
10.13. PROJECTIONS; PRO FORMA BALANCE SHEET. The projections of
Borrower's year end financial condition, results of operations, and
cash flow for the periods through the end of the 2005 fiscal year, a
copy of which have been delivered to Administrative Agent and each
Lender, represent Borrower's good faith best estimate of Borrower's
future financial performance for the periods set forth therein (after
giving effect to the Non-Healthcare Divestiture, the Healthcare
Divestiture, the repayment of the Existing Indebtedness (including
prepayment penalties) and the funding of the initial Advance
hereunder). Such projections have been prepared consistent with GAAP
on the basis of the assumptions set forth therein, which Borrower
believes are fair and reasonable in light of current and reasonably
foreseeable business conditions. The pro forma balance sheet of
Borrower as of the Effective Date, a copy of which has been provided by
Borrower to Administrative Agent and each Lender, has been prepared
consistent with GAAP (except the non year-end Financial Statements do
not contain footnotes and remain subject to normal year-end
adjustments) and presents fairly and accurately Borrower's financial
condition as of the Effective Date as if the transactions contemplated
by the initial advance had occurred on the Effective Date.
10.14. FINANCIAL STATEMENTS. The Financial Statements are complete and
correct in all material respects, have been prepared in accordance
with GAAP (except the non year-end Financial Statements do not
contain footnotes and remain subject to normal year end
adjustments), and fairly reflect the financial condition, results
of operations and cash flows of the Persons covered
21
thereby as of the dates and for the periods stated therein, subject in
the case of interim Financial Statements to normal year-end adjustments
made in accordance with GAAP.
10.15. NO CHANGE IN CONDITION. Since the date of the Financial
Statements delivered to Administrative Agent and Lenders as required
herein, there has been no change which has or is reasonably likely to
have a Material Adverse Effect on any Covered Person.
10.16. NO DEFAULTS. No Covered Person has breached or violated or has
defaulted under any Material Agreement, or has defaulted with respect
to any Material Obligation of such Covered Person. No Default has
occurred which is continuing and no Event of Default has occurred.
10.17. INVESTMENTS. No Covered Person has any Investments in other
Persons except existing Permitted Investments.
10.18. INDEBTEDNESS. No Covered Person has any Indebtedness except
existing Permitted Indebtedness.
10.19. INDIRECT OBLIGATIONS. No Covered Person has any Indirect
Obligations except existing Permitted Indirect Obligations.
10.20. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered Person has
filed or caused to be filed all tax reports and returns required to be
filed by it with any Governmental Authority, except where extensions
have been properly obtained. Each Covered Person has paid or made
adequate provision for payment of all Taxes of such Covered Person,
except Taxes which are being diligently contested in good faith by
appropriate proceedings and as to which such Covered Person has
established adequate reserves in conformity with GAAP. No Security
Interest for any such Taxes has been filed and no claims are being
asserted with respect to any such Taxes which, if adversely determined,
has or is reasonably likely to have a Material Adverse Effect on such
Covered Person. There are no material unresolved issues concerning any
liability of a Covered Person for any Taxes which, if adversely
determined, will have or is reasonably likely to have a Material
Adverse Effect on such Covered Person.
10.21. PENSION BENEFIT PLANS. All Pension Benefit Plans maintained by
each Covered Person or an ERISA Affiliate of such Covered Person
qualify under Section 401 of the Code and are in compliance with the
provisions of ERISA to the extent ERISA is applicable and all other
Material Laws. Except with respect to events or occurrences which do
not have and are not reasonably likely to have a Material Adverse
Effect on any Covered Person, and to the extent ERISA is applicable to
any such Pension Benefit Plans:
10.21.1. PROHIBITED TRANSACTIONS. None of such Pension Benefit
Plans has participated in, engaged in or been a party to
any non-exempt PROHIBITED TRANSACTION as defined in ERISA
or the Code, and no officer, director or employee of such
Covered Person or of an ERISA Affiliate of such Covered
Person has committed a breach of any of the
responsibilities or obligations imposed upon fiduciaries
by Title I of ERISA.
10.21.2. CLAIMS. There are no claims, pending or threatened,
involving any such Pension Benefit Plan by a current or
former employee (or beneficiary thereof) of such Covered
Person or ERISA Affiliate of such Covered Person, nor is
there any reasonable basis to anticipate any claims
involving any such Pension Benefit Plan which would likely
be successfully maintained against such Covered Person or
such ERISA Affiliate.
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10.21.3. REPORTING AND DISCLOSURE REQUIREMENTS. There are no
violations of any reporting or disclosure requirements
with respect to any such Pension Benefit Plan and none of
such Pension Benefit Plans has violated any applicable
Law, including ERISA and the Code.
10.21.4. ACCUMULATED FUNDING DEFICIENCY. No such Pension
Benefit Plan has (i) incurred an accumulated funding
deficiency (within the meaning of Section 412(a) of the
Code), whether or not waived; (ii) been a Pension Benefit
Plan with respect to which a Reportable Event (to the extent
that the reporting of such events to the PBGC within thirty
days of the occurrence has not been waived) has occurred
and is continuing; or (iii) been a Pension Benefit Plan with
respect to which there exist conditions or events which
have occurred that present a significant risk of termination
of such Pension Benefit Plan by the PBGC.
10.21.5. MULTI-EMPLOYER PLAN. No Covered Person or ERISA
Affiliate of such Covered Person has received notice that
any such Multi-employer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no
such Multi-employer Plan is reasonably expected to be in
reorganization or to be terminated within the meaning of
Title IV of ERISA.
10.22. WELFARE BENEFIT PLANS. No Covered Person or ERISA Affiliate
of any Covered Person maintains a Welfare Benefit Plan that has a
liability which, if enforced or collected, has or is reasonably
likely to have a Material Adverse Effect on any Covered Person.
Each Covered Person and each ERISA Affiliate of any Covered Person
has complied in all material respects with the applicable
requirements of Section 4980B of the Code pertaining to
continuation coverage as mandated by COBRA.
10.23. RETIREE BENEFITS. No Covered Person or ERISA Affiliate of such
Covered Person has an obligation to provide any Person with any
medical, life insurance, or similar benefit following such Person's
retirement or termination of employment (or to such Person's
beneficiary subsequent to such Person's death) which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.24. STATE OF PROPERTY. Each Covered Person has good and marketable
or merchantable title to all real, personal property and intangible
property purported to be owned by it or reflected in the Initial
Financial Statements, except for personal property sold in the
ordinary course of business after the date of the Initial Financial
Statements, and all such real and personal property is in good
working order and condition, except for normal wear and tear.
Borrower owns all intellectual property (including, without
limitation, patents, trademarks, and copyrights) reasonably
necessary for the operation of its business.
10.25. NEGATIVE PLEDGES. No Covered Person is a party to or bound by
any Contract which prohibits the creation or existence of any Security
Interest upon or assignment or conveyance of any of its assets.
10.26. AFFILIATES; SUBSIDIARIES. Borrower has no Subsidiaries, except
for those Subsidiaries listed in section 10.26 of the Disclosure
Schedule, which may be updated by Borrower from time to time
without the consent of Required Lenders so long as any such new
Subsidiaries executes a joinder agreement to the Guaranty if
required by the Administrative Agent in its reasonable discretion.
23
10.27. MARGIN STOCK. No Covered Person is engaged or will engage,
principally or as one of its important activities, in the business
of extending credit for the purpose of PURCHASING or CARRYING
MARGIN STOCK (within the meaning of Regulation U), and no part of
the proceeds of any Advance will be used to purchase or carry any
such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose
which violates, or which would be inconsistent with, the provisions
of Regulation U. None of the transactions contemplated by this
Agreement, any of the other Loan Documents, or any of the
Acquisition Documents will violate Regulations T, U or X of the
FRB.
10.28. SECURITIES MATTERS. No proceeds of any Advance will be used to
acquire any security in any transaction which is subject to
Sections 13 and 14 of the Securities Exchange Act of 1934.
10.29. INVESTMENT COMPANY ACT, ETC. No Covered Person is an INVESTMENT
COMPANY registered or required to be registered under the
Investment Company Act of 1940, or a company CONTROLLED (within the
meaning of such Investment Company Act) by such an INVESTMENT
COMPANY or an AFFILIATED PERSON of, or PROMOTER or PRINCIPAL
UNDERWRITER for, an INVESTMENT COMPANY, as such terms are defined
in the Investment Company Act of 1940. No Covered Person is subject
to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or any other Law
limiting or regulating its ability to incur Indebtedness for money
borrowed.
10.30. NO MATERIAL MISSTATEMENTS OR OMISSIONS. Neither the Loan
Documents, any of the Financial Statements nor any statement, list,
certificate or other information furnished or to be furnished by
Borrower or any other Covered Person to Administrative Agent or Lenders
in connection with the Loan Documents or any of the transactions
contemplated thereby contains any untrue statement of a material fact,
or omits to state a material fact necessary to make the statements
therein not misleading. Borrower has disclosed to Administrative Agent
and Lenders everything regarding the business, operations, property,
financial condition, or business prospects or itself and every Covered
Person that has or is reasonably likely to have a Material Adverse
Effect on any Covered Person.
10.31. FILINGS. All registration statements, reports, proxy statements
and other documents, if any, required to be filed by any Covered Person
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, and the Securities Exchange Act of 1934, have been filed,
and such filings are complete and accurate in all material respects and
contain no untrue statements of material fact or omit to state any
material facts required to be stated therein or necessary in order to
make the statements therein not misleading.
11. MODIFICATION AND SURVIVAL OF REPRESENTATIONS. Except as specifically
noted herein, Borrower may at any time after the initial Advances are made
propose to Lenders in writing to modify the representations and warranties
in Section 10, the representations and warranties in any other Loan Document
and any other representation or warranty made in any certificate, report,
opinion or other document delivered by Borrower pursuant to the Loan
Documents. If the proposed modifications are satisfactory to Required
Lenders as evidenced by their written assent thereto, then such
representations and warranties shall be deemed and treated as so modified,
but only as of the date of Borrower's written modification proposal. If such
proposed modifications are not satisfactory to Required Lenders, then such
proposed modifications shall not be deemed or treated as modifying such
representations and warranties. All such representations and warranties, as
made or deemed made as of a particular time, shall survive execution of each
of the Loan Documents and the making of every Advance, and may be relied
upon by Administrative Agent and Lenders as being true and correct as of
the date when made or deemed made
24
until all of the Loan Obligations are fully and indefeasibly paid, no
Letters of Credit are outstanding and the Letter of Credit Exposure is
irreversibly zero.
12. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that, while any of
the Commitments remains in effect and until all of the Loan Obligations are
fully and indefeasibly paid, no Letters of Credit are outstanding and the
Letter of Credit Exposure is irreversibly zero, Borrower shall do, or cause
to be done by each of the other Covered Persons, as applicable, the
following:
12.1. USE OF PROCEEDS. The proceeds of Revolving Loan Advances and
Swingline Advances shall be used solely to (i) to pay and retire
the Existing Indebtedness, (ii) provide for the working capital
requirements, payment of dividends permitted hereunder and general
corporate purposes of the Company, and (iii) to finance Permitted
Acquisitions.
12.2. CORPORATE EXISTENCE. Each Covered Person shall maintain its
existence in good standing and shall maintain in good standing its
right to transact business in those states in which it is now or
hereafter doing business, except where the failure to so qualify
will not have and will not be reasonably likely to have a Material
Adverse Effect on any Covered Person. Each Covered Person shall
obtain and maintain all Material Licenses for such Covered Person.
12.3. MAINTENANCE OF PROPERTY AND LEASES. Each Covered Person shall
maintain in good condition and working order, and repair and
replace as required, all buildings, equipment, machinery, fixtures
and other real and personal property owned or leased by it whose
useful economic life has not elapsed and which is reasonably
necessary for the ordinary conduct of the business of such Covered
Person. All of each Covered Person's inventory shall be produced in
accordance with the Federal Fair Labor Standards Act of 1938 and
all rules, regulations, and orders thereunder.
12.4. INSURANCE. Each Covered Person shall at all times keep insured
or cause to be kept insured, in insurance companies having a rating of
at least "A-" by Best's Rating Service, all property owned by it of a
character usually insured by others carrying on businesses similar to
that of such Covered Person in such manner and to such extent and
covering such risks as such properties are usually insured subject to
deductibles and self-insured retention levels consistent with past
practices. Each Covered Person also shall carry business interruption
insurance in such amounts, in such manner and to such extent and
covering such risks as such businesses are usually insured subject to
deductibles and self-insured retention levels consistent with past
practices. Each Covered Person shall at all times carry insurance, in
insurance companies having a rating of at least "A-" by Best's Rating
Service, against liability on account of damage to persons or property
(including product liability insurance and insurance required under all
Laws pertaining to workers' compensation) and covering all other
liabilities common to such Covered Person's business, in such manner
and to such extent as such coverage is usually carried by others
conducting businesses similar to that of such Covered Person subject to
deductibles and self-insured retention levels consistent with past
practices. All liability policies of liability insurance maintained
hereunder shall name Administrative Agent as an additional insured for
the benefit of Lenders, and such policies of insurance maintained
hereunder shall contain a clause providing that such policies may not
be canceled, without 30 days prior written notice to Administrative
Agent. Borrower shall upon request of Administrative Agent at any time
furnish to Administrative Agent updated evidence of insurance (in the
form required as a condition to Administrative Agent's lending
hereunder) for such insurance. Notwithstanding the foregoing, if the
Best's Rating Service rating of any insurance carrier(s) of the
Borrower or any other Covered Person falls below "A-," then such event
shall not be an Event of Default if, within 270 days of
25
such downgrading, Borrower shall put in place insurance meeting the
requirements of this Section with replacement insurance carrier(s) with
a Best's Rating Service rating of at least "A-."
12.5. PAYMENT OF TAXES AND OTHER OBLIGATIONS. Each Covered Person shall
promptly pay and discharge or cause to be paid and discharged, as and
when due, any and all income taxes, federal or otherwise, lawfully
assessed and imposed upon it, and any and all lawful taxes, rates,
levies, and assessments whatsoever upon its properties and every part
thereof, or upon the income or profits therefrom and all claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons for labor, materials, supplies, storage or other items or
services which if unpaid might be or become a Security Interest or
charge upon any of its property; provided, however, that a Covered
Person may diligently contest in good faith by appropriate proceedings
the validity of any such taxes, rates, levies, or assessments, provided
such Covered Person has established adequate reserves therefor in
conformity with GAAP on the books of such Covered Person, and no
Security Interest, other than a Permitted Security Interest, results
from such non-payment.
12.6. COMPLIANCE WITH LAWS. Each Covered Person shall comply with all
Material Laws.
12.7. TERMINATION OF PENSION BENEFIT PLAN. No Covered Person or ERISA
Affiliate of such Covered Person shall terminate or amend any
Pension Benefit Plan maintained by such Covered Person or such
ERISA Affiliate if such termination or amendment would result in
any liability to such Covered Person or such ERISA Affiliate under
ERISA or any increase in current liability for the plan year for
which such Covered Person or such ERISA Affiliate is required to
provide security to such Pension Benefit Plan under the Code, which
such liability could reasonably be expected to have a Material
Adverse Effect on such Covered Person.
12.8. NOTICE TO ADMINISTRATIVE AGENT OF MATERIAL EVENTS. Borrower
shall, promptly upon any Responsible Officer of Borrower obtaining
knowledge or notice thereof, give notice to Administrative Agent of (i)
any breach of any of the covenants in Section 12, 13, or 14; (ii) any
Default or Event of Default; (iii) the commencement of any Material
Proceeding; and (iv) any loss of or damage to any assets of a Covered
Person or the commencement of any proceeding for the condemnation or
other taking of any of the assets of a Covered Person, if insurance
and/or condemnation proceeds in excess of $1,000,000 are likely to be
payable as a consequence of such loss, damage or proceeding, or if
such loss, damage or proceeding has or is reasonably likely to have a
Material Adverse Effect on such Covered Person. In addition,
12.8.1. Borrower shall furnish to Administrative Agent from
time to time all information which Administrative Agent
reasonably requests with respect to the status of any
Material Proceeding.
12.8.2. Borrower shall furnish to Administrative Agent from
time to time all information which Administrative Agent
requests with respect to any Pension Benefit Plan
established by a Covered Person or an ERISA Affiliate of
any Covered Person.
12.8.3. Borrower shall promptly deliver to Administrative
Agent notice of any default or event of default, or the
occurrence of any event which would with the passage of
time, giving of notice or otherwise, constitute a default
or event of default with respect to any of the Permitted
Indebtedness which is in an amount which exceeds $500,000.
12.8.4. Borrower shall promptly deliver notice to
Administrative Agent of the assertion by the holder of any
capital stock, membership interest, or any other equity
interest in a
26
Covered Person or any Indebtedness of a Covered Person
in the outstanding principal amount in excess of $500,000
that a default exists with respect thereto or that
such Covered Person is not in compliance with the terms
thereof, or of the threat or commencement by such holder
of any enforcement action because of such asserted default
or noncompliance (including any general shareholder
suits).
12.8.5. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of any pending or
threatened strike, work stoppage, unfair labor practice
claim or other labor dispute affecting a Covered Person
which has or is reasonably likely to have a Material
Adverse Effect on any Covered Person.
12.8.6. Borrower shall promptly deliver notice to
Administrative Agent of any change in the name, state of
organization, or form of organization of any Covered Person.
12.8.7. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of any event that
has or is reasonably likely to have a Material Adverse
Effect on any Covered Person.
12.8.8. Borrower shall, promptly after becoming aware thereof,
deliver notice to Administrative Agent of an actual or
alleged violation of any Material Law applicable to a
Covered Person or the property of a Covered Person.
12.8.9. Borrower shall notify Administrative Agent promptly
in writing of any fact or condition of which Borrower is
aware which materially and adversely affects the value of
its assets taken as a whole.
12.9. BORROWING OFFICER. Borrower shall keep on file with
Administrative Agent at all times an appropriate instrument naming each
Borrowing Officer.
12.10. ACCOUNTING SYSTEM; TRACING OF PROCEEDS. Each Covered Person
shall maintain a system of accounting established and administered in
accordance with GAAP. Each Covered Person shall maintain detailed and
accurate records of all transfers of any proceeds of the Loans from
Borrower to such Covered Person. Borrower shall maintain detailed and
accurate records of proceeds of the Loans and transfers of proceeds of
the Loans (i) received by it from the Lenders, (ii) transferred from it
to any other Covered Person, and (iii) received by it from another
Covered Person. Borrower agrees that (a) the business operations of
Borrower and each Covered Person are interrelated and complement one
another, and such entities have a common business purpose and common
management, and (b) the proceeds of Advances hereunder will benefit
Borrower and each Covered Person, severally and jointly, regardless of
which Borrower requests or receives part or all of any Advance.
12.11. FINANCIAL STATEMENTS. Borrower shall deliver to Administrative
Agent for each Lender:
12.11.1. ANNUAL FINANCIAL STATEMENTS. Within 95 days after
the close of each fiscal year of Borrower, year-end
consolidated financial statements of Borrower and its
Subsidiaries, containing a balance sheet, income
statement, statement of cash flows and an audit report
without qualification by an independent certified public
accounting firm selected by Borrower and satisfactory to
Administrative Agent, and accompanied by (i) a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower, (ii) the management letter and report on
internal controls delivered by such independent certified
public accounting firm in connection with their audit, if
any, and (iii) if requested by
27
Administrative Agent, any summary prepared by such independent
certified public accounting firm of the adjustments proposed
by the members of its audit team.
12.11.2. QUARTERLY FINANCIAL STATEMENTS. Within 50 days after
the end of each fiscal quarter, unaudited consolidated
financial statements of Borrower for each of the fiscal
quarters not covered by the latest year-end financial
statements, in each case containing a balance sheet,
income statement, and statement of cash flows; and in
connection with the delivery of such Financial Statements
at the end of each fiscal quarter, a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower.
Each Compliance Certificate shall be in the form of
Exhibit 12.11, shall contain detailed calculations of the
financial measurements referred to in Section 14 for the
relevant periods, and shall contain statements by the
signing officer to the effect that, except as explained in
reasonable detail in such Compliance Certificate, (i) the
attached Financial Statements are complete and correct in
all material respects (subject, in the case of Financial
Statements other than annual, to normal year-end audit
adjustments) and have been prepared in accordance with
GAAP applied consistently throughout the periods covered
thereby and with prior periods (except as disclosed
therein) (ii) all of the Representations and Warranties
are true and correct as of the date such certification is
given as if made on such date, and (iii) there is no
Existing Default. If any Compliance Certificate delivered
to Administrative Agent discloses that a representation or
warranty is not true and correct, or that there is an
Existing Default that has not been waived in writing by
Required Lenders, such Compliance Certificate shall state
what action Borrower has taken or proposes to take with
respect thereto.
12.11.3. STATEMENT OF EXISTING REIMBURSEMENT OBLIGATIONS.
Within 50 days after the end of each fiscal quarter, an
updated Exhibit 12.11.3 detailing the information required
thereon with respect to the Existing Reimbursement
Obligations.
12.12. OTHER FINANCIAL INFORMATION. Borrower shall also deliver the
following to Administrative Agent:
12.12.1. STOCKHOLDER REPORTS. Upon the reasonable request of
Administrative Agent, copies of any proxy statements,
financial statements and reports which Borrower makes
available to its stockholders, members or partners.
12.12.2. PENSION BENEFIT PLAN REPORTS. Promptly upon the
reasonable request of Administrative Agent at any time or
from time to time, a copy of each annual report or other
filing or notice filed with respect to each Pension Benefit
Plan of a Covered Person or an ERISA Affiliate of a Covered
Person.
12.12.3. TAX RETURNS. Promptly upon the reasonable request of
Administrative Agent at any time or from time to time, a
copy of each federal, state, or local tax return or report
filed by Borrower.
12.13. ANNUAL PROJECTIONS. Within 60 days after the first day of each
fiscal year of Borrower, projected balance sheets, statements of
income and expense, and statements of cash flows for Borrower and
every other Covered Person as of the end of and for each fiscal
quarter of such fiscal year and on an annual basis for the next two
succeeding fiscal years, in such detail as Administrative Agent may
reasonably require.
28
12.14. OTHER INFORMATION. Promptly upon the reasonable request of
Administrative Agent, Borrower shall promptly deliver to
Administrative Agent such other information about the business,
operations, revenues, financial condition, property, or business
prospects of Borrower and every other Covered Person as
Administrative Agent may, from time to time, reasonably request.
12.15. ACCESS TO OFFICERS AND AUDITORS. Each Covered Person shall,
within five Business Days of a request from a Lender or Administrative
Agent, permit any Lender and Administrative Agent and each of their
representatives and agents to discuss the business, operations,
revenues, financial condition, property, or business prospects of such
Covered Person with its officers, employees, accountants and
independent auditors as often as Administrative Agent may request in
its reasonable discretion, and such Covered Person shall direct such
officers, employees, accountants and independent auditors to cooperate
with Administrative Agent, Lenders, and their representatives and
agents, and make full disclosure to Administrative Agent, Lenders, and
their representatives and agents, of those matters that they may deem
relevant to the continuing ability of Borrower timely to pay and
perform the Loan Obligations.
12.16. ACQUISITION DOCUMENTS. Borrower shall fully perform all of its
material obligations under all Acquisition Documents, and shall
enforce all of its rights and remedies thereunder as it deems
appropriate in its reasonable business judgment; provided, however,
that Borrower shall not take any action or fail to take any action
which would result in a waiver or other loss of any material right
or remedy of Borrower thereunder.
12.17. FURTHER ASSURANCES. Borrower shall execute and deliver, or cause
to be executed and delivered, to Administrative Agent such documents
and agreements, and shall take or cause to be taken such actions, as
Administrative Agent may from time to time reasonably request to carry
out the terms and conditions of this Agreement and the other Loan
Documents.
12.18. COVERED PERSONS. Borrower shall cause each other Covered Person
to comply with each of the terms and provisions of this Agreement and
the other Loan Documents, and Borrower acknowledges and agrees that
failure of Borrower or any Covered Persons to comply with the terms of
this Agreement and the other Loan Documents, shall be a Default
hereunder and thereunder.
12.19. GUARANTEES. Upon the request of the Administrative Agent or the
Required Lenders, Borrower shall cause any Subsidiaries of Borrower to
execute a Guaranty of all of the Loan Obligations in form and substance
reasonably satisfactory to Administrative Agent and to provide such
authorizing resolutions, certificates of incumbency and other corporate
documents as may be reasonably requested by Administrative Agent in
connection therewith.
13. NEGATIVE COVENANTS. Borrower covenants and agrees that, while any of the
Commitments remain in effect and until all of the Loan Obligations are fully
and indefeasibly paid, no Letters of Credit are outstanding and the Letter
of Credit Exposure is zero, Borrower shall not, directly or indirectly, do
any of the following, or permit any Covered Person to do any of the
following:
13.1. INVESTMENTS. Make any Investments in any other Person except the
following:
13.1.1. Investments in (i) interest-bearing United States
government obligations; (ii) certificates of deposit issued
by any Lender; (iii) prime commercial paper rated A1 or
better by Standard and Poor's Corporation or Prime P1 or
better by Xxxxx'x Investor Service, Inc.; (iv) agreements
involving the sale to a Covered Person of United States
29
government securities and their guarantied repurchase the
next Business Day by a commercial bank chartered under the
Laws of the United States or any state thereof which has
capital and surplus of not less than $500,000,000, or (v)
certificates of deposit issued by and time deposits which do
not extend more than 364 days or money market accounts, with
any commercial bank chartered under the Laws of the United
States or any state thereof which has capital and surplus of
not less than $500,000,000.
13.1.2. Accounts arising in the ordinary course of business
and payable in accordance with Borrower's customary trade
terms.
13.1.3. Any Investments that are Permitted Acquisitions.
13.1.4. Investments existing on the Execution Date and
disclosed in section 10.17 of the Disclosure Schedule.
13.1.5. Notes received by a Covered Person in settlement of
Indebtedness of other Persons to such Covered Person that was
incurred in the ordinary course of such Covered Person's
business.
13.1.6. Investments by any Covered Person in any other
Covered Person.
13.1.7. Loans to members of Borrower's management to finance
the exercise of Approved Options and the payment of income
taxes in connection therewith in a net aggregate cash amount
not exceeding $250,000.
13.2. INDEBTEDNESS. Create, incur, assume, or allow to exist any
Indebtedness of any kind or description, except the following:
13.2.1. Indebtedness to trade creditors incurred in the
ordinary course of business, to the extent that it is not
overdue past the original due date by more than 60 days
(unless such Indebtedness is being contested in good faith by
such Covered Person and adequate reserves under GAAP have
been made).
13.2.2. The Loan Obligations.
13.2.3. Indebtedness secured by Permitted Security Interests.
13.2.4. Indebtedness under Capital Leases up to $7,500,000 in
original capitalized cost outstanding at any time in the
aggregate.
13.2.5. Indebtedness up to $3,000,000 in the aggregate
outstanding at any time secured by Security Interests
permitted under Section 13.4.5.
13.2.6. The Existing Reimbursement Obligations but only until
the first annual anniversary of the Effective Date, if and
only if the amount of the Existing Reimbursement Obligations
does not increase and no new Existing Reimbursement
Obligations are created or incurred after the Effective Date.
13.2.7. Unsecured Indebtedness up to $3,000,000 in the
aggregate principal amount outstanding at any time.
30
13.3. INDIRECT OBLIGATIONS. Create, incur, assume or allow to exist
any Indirect Obligations except Indirect Obligations existing on the
Execution Date and disclosed on section 10.19 of the Disclosure
Schedule and Indirect Obligations of a Covered Person with respect
to the Permitted Indebtedness of any other Covered Person.
13.4. SECURITY INTERESTS. Create, incur, assume or allow to exist any
Security Interest upon all or any part of its property, real or
personal, now owned or hereafter acquired, except the following:
13.4.1. Security Interests for taxes, assessments or
governmental charges not delinquent or being diligently
contested in good faith and by appropriate proceedings and
for which adequate book reserves in accordance with GAAP are
maintained.
13.4.2. Security Interests arising out of deposits in
connection with workers' compensation insurance, unemployment
insurance, old age pensions, or other social security or
retirement benefits legislation.
13.4.3. Deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds, and
other obligations of like nature arising in the ordinary
course of business.
13.4.4. Security Interests imposed by any Law, such as
mechanics', workmen's, materialmen's, landlords', carriers',
or other like Security Interests arising in the ordinary
course of business which secure payment of obligations which
are not past due or which are being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP are maintained on Borrower's
books.
13.4.5. Purchase money Security Interests securing payment of
the purchase price of capital assets the amount of which
otherwise permitted under Section 13.2.5 acquired by Borrower
and Covered Persons after the Execution Date in an aggregate
principal amount outstanding at any one time that does not
exceed $3,000,000, which such Security Interests only secure
the assets purchased with the proceeds of such Indebtedness.
13.4.6. Security Interests on assets subject to capital
leases to the extent permitted by Section 13.2.4.
At no time shall Borrower or any Covered Person allow to exist on
or against its assets any financing statements, mortgages or
similar documents, except as permitted in Section 13.4.5.
13.5. ACQUISITIONS. Acquire stock, membership interests, or any
other equity interest in a Person, or acquire all or substantially
all of the assets of a Person (including without limitation assets
comprising all or substantially all of an unincorporated business
unit or division of any Person), except for Permitted
Acquisitions. Permitted Acquisition means an acquisition of the
stock, membership interests, or any other equity interest in a
Person, or the acquisition of some or all or substantially all of
the assets of a Person (including without limitation assets
comprising all or substantially all of an unincorporated business
unit or division of any Person), which satisfies each of the
following conditions: (i) the Borrower or a Guarantor is the
Acquiring Company (and if the Covered Person making the
acquisition is not a party to the Guaranty, it will execute a
joinder to the Guaranty or execute a new Guaranty, in each case in
form and substance reasonably acceptable to Administrative Agent),
(ii) the Borrower or a Guarantor is the Surviving Company, (iii)
the Target Company is in a substantially similar line of business
as Borrower or a Guarantor;
31
(iv) except for Permitted Acquisitions (including, without
limitation, Small Permitted Acquisition) with an aggregate gross
purchase price of less than $5,000,000 in each Loan Year (to which
this clause (iv) shall not apply), Target Company has an EBITDA
(provided, however, that with respect to the purchase of assets of
less than an entire Target Company, EBITDA will be calculated on a
proforma basis prepared in good faith based on reasonable
assumptions) in excess of zero Dollars for the twelve month period
ended on the last day of the calendar month most recently ended
prior to the date such acquisition is consummated, (v) there is no
Existing Default, no Default or Event of Default has occurred and
is continuing, and no Default or Event of Default will occur or is
reasonably likely to occur as a result of or due to such
acquisition (vi) the Maximum Available Amount exceeds the
Aggregate Revolving Loan by at least $10,000,000 after giving
effect to such acquisition, (vii) the purchase price (including
without limitation any deferred purchase price, seller notes,
assumed Indebtedness, or similar items) together with all expenses
incurred in connection with such acquisition does not exceed
$25,000,000 in the aggregate for all Permitted Acquisitions
(including, without limitation, acquisitions with negative EBITDA
and Small Permitted Acquisitions) since the Effective Date, (viii)
simultaneously with the closing of such acquisition, the Target
Company or the Surviving Company, as the case may be, executes and
delivers to Administrative Agent, if requested by the
Administrative Agent, a joinder agreement satisfactory to
Administrative Agent in which such Target Company or Surviving
Company becomes a Guarantor under the Guaranty; (ix) prior to the
closing of such acquisition, a Responsible Officer of Borrower
delivers to Administrative Agent a certificate on behalf of
Borrower certifying that such acquisition is a Permitted
Acquisition; (x) such acquisition is friendly, rather than
hostile, in nature; and (xi) except for any Permitted Acquisition
with a gross purchase price of less than $2,000,000 including
without limitation any deferred purchase price, seller notes,
assumed Indebtedness, or similar items (a "Small Permitted
Acquisition"), Borrower has, no less than 15 days prior to making
such acquisition, prepared and furnished to Administrative Agent
(and Administrative Agent shall use its reasonable efforts to
promptly provide such information to each Lender) the proforma
financial statements described below for the Target Company (if
such acquisition is structured as a purchase of equity) or the
Surviving Company (if such acquisition is structured as a purchase
of assets or a merger), demonstrating to the satisfaction of
Administrative Agent that the Target Company, all Surviving
Companies, and Borrower, as the case may be, will be Solvent upon
consummation of such acquisition and upon the passage of time
thereafter, and that none of the covenants in Section 14 will be
violated as a consequence of such acquisition or with the passage
of time thereafter, and Borrower has also provided to
Administrative Agent, no less than 15 days prior to making such
acquisition, copies of the audited financial statements (if
available, or unaudited financial statements if no audited
financial statements exist) for the Target Company for the three
fiscal years most recently ended (if available) and for each of
the completed fiscal quarters in the then current fiscal year. The
proforma financial statements referred to in clause (xi) shall
contain consolidated balance sheets, income statements, statements
of cash flows and such other reports and disclosures of Borrower
as well as the Target Company (if such Permitted Acquisition is
structured as a purchase of equity) or the Surviving Company (if
such Permitted Acquisition is structured as a purchase of assets
or a merger) and shall cover such forecast periods, as
Administrative Agent may in its reasonable discretion require.
Borrower shall provide written notice to Administrative Agent
promptly after the closing of each Small Permitted Acquisition.
13.6. DISPOSAL OF PROPERTY. Sell, transfer, exchange, lease, or
otherwise dispose of any of its assets except (i) sales of
inventory in the ordinary course of business, (ii) the sale or
disposition of obsolete or unused assets, and (iii) sales or
dispositions up to $2,000,000 in the aggregate during the term of
this Agreement unless the net proceeds therefrom are applied as
required by Section 6.3.3.1. Transactions permitted by Section
13.13 are not subject to this Section.
32
13.7. STOCK DIVIDENDS; DISTRIBUTIONS/REDEMPTIONS.
13.7.1. While there is an Existing Default or a Default or
Event of Default would reasonably be likely to result from the
making of a Stock Dividend, or while there is a reasonable
likelihood of a change in control of the Borrower which
would not be permitted by this Agreement, directly or
indirectly declare or make, or incur any liability to
make, any Stock Dividend to any Person, other than from
one Covered Person to another.
13.7.2. While there is an Existing Default or a Default or
Event of Default would reasonably be likely to result from
the making of a Redemption/Distribution, directly or
indirectly declare or make, or incur any liability to
make, any Redemption/Distribution; provided, however, any
such Redemption/Distribution may be consummated up to
$1,000,000 in the aggregate during the term of this
Agreement, if there is no Existing Default and no Default
or Event of Default would reasonably be likely to result
from the consummation of any such Redemption/Distribution.
13.7.3. For purposes of this Section, a Stock Dividend means
any cash dividend or payment to shareholders. For purposes
of this Section, a Redemption/Distribution means and
includes, with respect to a Covered Person, (i) any
acquisition or redemption of any outstanding stock,
membership interests or other equity interest, (ii) any
retirement or prepayment of debt securities before their
regularly scheduled maturity dates, and (iii) any loan or
advance to a shareholder or partner (other than loans made
to assist in the exercise of Approved Options).
13.8. CHANGE OF CONTROL. (A) With respect to (i) Borrower, merge
or consolidate with or into another Person, except in connection
with a Permitted Acquisition, the Borrower may merge with a Target
Company so long as it is the Surviving Company, and (ii) with
respect to any other Covered Person (other than Borrower, which is
addressed in clause (i)), merge or consolidate with or into
another Person except another Covered Person, and except in
connection with a Permitted Acquisition, a Covered Person (other
than Borrower, which is addressed in clause (i)) may merge with a
Target Company so long as it is the Surviving Company and either
is or becomes a Guarantor; or (B) with respect to Borrower (i)
permit any Person or Group to become the record or beneficial
owner, directly or indirectly, on a fully diluted basis, of
securities representing 25% or more of the voting power of
Borrower's then outstanding securities having the power to vote or
25% or more of Borrower's then outstanding capital stock, or to
acquire the power to elect a majority of the Board of Directors of
Borrower, or (ii) permit any Person or Group other than Borrower
to own, directly or indirectly, any capital stock of Borrower's
Subsidiaries (except, with regards to foreign Subsidiaries,
director/officer qualifying shares).
13.9. AMENDMENT TO CHARTER DOCUMENTS. Change its state of
incorporation or formation or otherwise amend, modify, supplement,
restate, replace, or change any of its Charter Documents, except
to the extent such change could not reasonably be expected to
adversely effect Administrative Agent or any Lender.
13.10. CAPITAL STRUCTURE; EQUITY SECURITIES. Make any change in the
capital structure of any Covered Person which has or is reasonably
likely to have a Material Adverse Effect on any Covered Person; or
issue or create any stock, membership interest, or other equity
interest (or class or series thereof, or non-equity interest that
is convertible into stock, membership interests or other equity
interest (or class or series thereof), in any Covered Person,
except stock, membership interests, or other equity interests (or
class or series thereof) that are subordinated in right of payment
to all the Loan Obligations in a manner satisfactory to
Administrative Agent.
33
13.11. CHANGE OF BUSINESS. Engage in any business other than
substantially as conducted on the Effective Date.
13.12. CONFLICTING AGREEMENTS. Enter into any agreement, that would,
if fully complied with by it, result in a Default or Event of Default
either immediately or upon the elapsing of time.
13.13. SALE AND LEASEBACK TRANSACTIONS. Except for transactions up to
$5,000,000 in the aggregate during the term hereof, enter into any
agreement or arrangement with any Person providing for any Covered
Person to lease or rent property that Borrower has or will sell or
otherwise transfer to such Person.
13.14. FISCAL YEAR. Change its fiscal year.
13.15. TRANSACTIONS HAVING A MATERIAL ADVERSE EFFECT ON COVERED PERSON.
Enter into any transaction which has or is reasonably likely to
have a Material Adverse Effect on any Covered Person; or enter into
any transaction, or take or contemplate taking any other action, or
omit or contemplate omitting to take any action, which any
Responsible Officer knows, or reasonably should know is likely to
cause a Default or Event of Default hereunder.
13.16. TRANSACTIONS WITH AFFILIATES. Enter into or be a party to
any transaction or arrangement, including the purchase, sale or
exchange of property of any kind or the rendering of any service,
with any Affiliate (other than a Covered Person), or make any
loans or advances to any Affiliate (other than to a Covered Person
and otherwise permitted hereunder), except that each Covered
Person may engage in the such transactions in the ordinary course
of business and pursuant to the reasonable requirements of its
business and on fair and reasonable terms substantially as
favorable to it as those which it could obtain in a comparable
arm's-length transaction with a non-Affiliate. No Covered Person
may pay any management or other similar fees to any Affiliate that
is not a Covered Person.
14. FINANCIAL COVENANTS.
14.1. SPECIAL DEFINITIONS. As used in this Section 14 and elsewhere
herein, the following capitalized terms have the following
meanings:
EBITDA means, with respect to any fiscal period of Borrower, the
consolidated Net Income of the Borrower and its Subsidiaries for
such fiscal period, as determined in accordance with GAAP and
reported on the Financial Statements for such period, plus
----
(i) without duplication, the sum of (A) Interest Expense in such
period, (B) income tax expense accrued for in such period,
(C) amortization of goodwill and other intangible assets and
depreciation expense taken or accrued for in such period, (D) any
extraordinary non-cash loss in such period whether incurred or
accrued for, (E) any prepayment penalty with respect to the
Existing Indebtedness, and (F) any losses from discontinued
operations, minus (ii) the sum of, without duplication, (A) any
-----
extraordinary income/gain in such period whether incurred or
accrued for, and (B) any income from discontinued operations.
EBITDAR means, with respect to any fiscal period of Borrower, the
consolidated Net Income of the Borrower and its Subsidiaries for
such fiscal period, as determined in accordance with GAAP and
reported on the Financial Statements for such period, plus
----
(i) without duplication, the sum of (A) Interest Expense in such
period, (B) income tax expense accrued for in such period,
(C) amortization of goodwill and other intangible assets and
depreciation expense taken or accrued
34
for in such period, without duplication, (D) any extraordinary
non-cash loss in such period whether incurred or accrued for, (E)
rental expense, (F) any prepayment penalty with respect to the
Existing Indebtedness, and (G) any losses from discontinued
operations, minus (ii) the sum of, without duplication, (A) any
-----
extraordinary income/gain in such period whether incurred or
accrued for, and (B) any income from discontinued operations.
Fixed Charges means, for any period of calculation, the sum of (i)
Interest Expense, (ii) the sum of all scheduled principal payments
on long term Indebtedness of Borrower (including other
interest-bearing Indebtedness), (iii) federal, state and local
income taxes paid, (iv) Stock Dividends and Redemptions/Distributions
paid or accrued for, without duplication, (v) rental expense, and
(vi) $2,000,000 per fiscal quarter, which represents a pre-agreed
to amount of maintenance capital expenditures.
Interest Expense means for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without
duplication, on Indebtedness of Borrower during such period.
Funded Indebtedness means the outstanding principal balance of the
Loan Obligations, other Indebtedness for borrowed money, and the
initial capitalized cost of assets subject to Capital Leases at the
time of calculation.
Upon completion of a Permitted Acquisition (except for Small
Permitted Acquisitions), the Target shall be included in each of
these covenants contained in this Section 14 on a pro-forma basis,
including for periods prior to the completion of any such Permitted
Acquisition.
All other capitalized terms used in this Section 14 shall have
their meanings and shall be determined under GAAP. All of the
financial covenants contained in this Section 14 shall be
calculated on a consolidated basis for the Borrower and all of its
Subsidiaries.
14.2. MINIMUM FIXED CHARGE COVERAGE. Borrower shall cause the ratio
of EBITDAR for the most recently ended four fiscal quarters to Fixed
Charges for the most recently ended four fiscal quarters, for the
fiscal quarters ended on the dates specified below, calculated as
of the last day of each such fiscal quarter, to not be less than
the ratio specified for such period:
==========================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR
MOST RECENTLY BEFORE THE FOLLOWING DATES: MINIMUM FIXED CHARGE COVERAGE RATIO
------------------------------------------------------------------------------------------
October 31, 2002 and January 31, 2003 1.15:1.00
------------------------------------------------------------------------------------------
April 30, 2003, July 31, 2003, and each October 31, 1.20:1.00
January 31, April 30 and July 31 thereafter
==========================================================================================
Notwithstanding the foregoing, for the fiscal quarter ended on or
most recently before October 31, 2002, EBITDAR and Fixed Charges
shall be calculated for only that fiscal quarter, and the next
succeeding three fiscal quarters, shall be cumulative from the
fiscal quarter ended on or most recently before October 31, 2002.
Thereafter, the calculation required by this Section 14.2 shall be
on a rolling four fiscal quarters basis.
14.3. MAXIMUM RATIO OF FUNDED INDEBTEDNESS TO EBITDA. Borrower shall
cause the ratio of Funded Indebtedness to EBITDA for the most
recently ended four fiscal quarters, for the fiscal quarters ended
on the dates specified below, calculated as of the last day of each
such fiscal quarter, to not be greater than the ratio specified for
such period:
35
==========================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR MAXIMUM RATIO OF FUNDED INDEBTEDNESS
MOST RECENTLY BEFORE THE FOLLOWING DATES: TO EBITDA
------------------------------------------------------------------------------------------
July 31, 2002, October 31, 2002, January 31, 2003, 2.25:1.00
April 30, 2003, July 31, 2003, October 31, 2003,
January 31, 2004, and April 30, 2004
------------------------------------------------------------------------------------------
July 31, 2004, October 31, 2004, January 31, 2005, 2.00:1.00
April 30, 2005, and the last day of each July,
October, January and April thereafter
==========================================================================================
14.4. MINIMUM NET WORTH. For each completed fiscal quarter of Borrower
beginning with the fiscal quarter ended on or most recently before
July 31, 2002, Borrower's Net Worth as of the last day of each
fiscal quarter shall not be less than (i) $112,600,000 plus (ii) an
aggregate amount equal to 50% of quarterly Net Income, beginning
with the fiscal quarter ended on or most recently before July 31,
2002 (but only if a positive number, and with no reduction for
losses).
15. DEFAULT.
15.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an event of default (an Event of Default) under this
Agreement:
15.1.1. FAILURE TO PAY PRINCIPAL OR INTEREST. Failure of
Borrower to pay any principal of the Loans or interest accrued
thereon when due, or failure of Borrower to pay any of the
other Loan Obligations on or within three (3) days of
becoming due.
15.1.2. FAILURE TO PAY AMOUNTS OWED TO OTHER PERSONS. Failure
of any Covered Person (i) to make any payment due on
Indebtedness for borrowed money of such Covered Person
over $500,000 to Persons (other than Lenders under the
Loan Documents), or to make any payment due on any Capital
Lease where the original capitalized cost of the property
subject to any such Capital Lease was over $500,000, which
in either case continues unwaived beyond any applicable
grace period specified in the documents evidencing such
Indebtedness, or (ii) to pay any other Indebtedness (other
than Indebtedness described in clause (i)) over $500,000
in the aggregate if the holder of such Indebtedness
commences any legal action against such Covered Person;
provided, however, that the foregoing Events of Default
alone described in clauses (i) and (ii) shall not
constitute an Event of Default to the extent such
Indebtedness is being contested in good faith by such
Covered Person and such Covered Person makes adequate
reserves therefor under GAAP.
15.1.3. REPRESENTATIONS OR WARRANTIES. Any of the
Representations and Warranties is discovered to have been
false in any material respect when made.
15.1.4. CERTAIN COVENANTS. Failure of any Covered Person to
comply with the covenants in Sections 12.1, 12.4, 12.11,
12.15, 13, or 14.
15.1.5. OTHER COVENANTS. Failure of any Covered Person to
comply with of any of the terms or provisions of the Agreement
or any of the other Loan Documents applicable to it (other
than a failure which constitutes an immediate Event of
Default hereunder, or for
36
which some other grace period is specified in any other
Section of this 15.1) which is not remedied or waived in
writing by Administrative Agent within 20 days after the
initial occurrence of such failure.
15.1.6. ACCELERATION OF OTHER INDEBTEDNESS. Any Obligation
(other than a Loan Obligation) of a Covered Person for the
repayment of $500,000 or more of borrowed money becomes or
is declared to be due and payable or required to be
prepaid (other than by an originally scheduled prepayment)
prior to the original maturity thereof.
15.1.7. DEFAULT UNDER OTHER AGREEMENTS. The occurrence of any
default or event of default under any agreement to which a
Covered Person is a party (other than the Loan Documents),
which default or event of default continues unwaived beyond
any applicable grace period provided therein and has or is
reasonably likely to have a Material Adverse Effect.
15.1.8. BANKRUPTCY; INSOLVENCY; ETC. A Covered Person (i)
fails to pay, or admits in writing its inability to pay,
its debts generally as they become due, or otherwise becomes
insolvent (however evidenced); (ii) makes an assignment
for the benefit of creditors; (iii) files a petition in
bankruptcy, is adjudicated insolvent or bankrupt,
petitions or applies to any tribunal for any receiver or
any trustee of such Covered Person or any substantial part
of its property; (iv) commences any proceeding relating to
such Covered Person under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation Law of
any jurisdiction, whether now or hereafter in effect; (v)
has commenced against it any such proceeding which remains
undismissed for a period of 60 days, or by any act
indicates its consent to, approval of, or acquiescence in
any such proceeding or the appointment of any receiver of
or any trustee for it or of any substantial part of its
property, or allows any such receivership or trusteeship
to continue undischarged for a period of 60 days; or (vi)
takes any action to authorize any of the foregoing.
15.1.9. JUDGMENTS; ATTACHMENT; SETTLEMENT; ETC. Any one or
more judgments or orders is entered against a Covered Person
or any attachment or other levy is made against the property
of a Covered Person with respect to a claim or claims
involving in the aggregate liabilities (not paid or fully
covered by insurance, less the amount of reasonable
deductibles in effect on the Execution Date) in excess of
$500,000 and such judgment or order becomes final and
non-appealable or if timely appealed is not fully bonded
and collection thereof stayed pending the appeal.
15.1.10. PENSION BENEFIT PLAN TERMINATION, ETC. Any Pension
Benefit Plan termination by the PBGC or the appointment by
the appropriate United States District Court of a trustee to
administer any Pension Benefit Plan or to liquidate any
Pension Benefit Plan; or any event which constitutes
grounds either for the termination of any Pension Benefit
Plan by PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer or
liquidate any Pension Benefit Plan shall have occurred and
be continuing for thirty (30) days after Borrower has
notice of any such event; or any voluntary termination of
any Pension Benefit Plan which is a DEFINED BENEFIT
PENSION PLAN as defined in Section 3(35) of ERISA while
such defined benefit pension plan has an ACCUMULATED
FUNDING DEFICIENCY, unless Administrative Agent has been
notified of such intent to voluntarily terminate such plan
and Required Lenders have given their consent and agreed
that such event shall not constitute a Default; or the
plan administrator of any Pension Benefit Plan applies
under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(1) of the Code
and Required
37
Lenders determine that the substantial business hardship
upon which the application for such waiver is based could
subject any Covered Person or ERISA Affiliate of any Covered
Person to a liability in excess of $500,000 which is not
reserved for in accordance with GAAP.
15.1.11. LIQUIDATION OR DISSOLUTION. A Covered Person files a
certificate of dissolution under applicable state Law or
is liquidated or dissolved or suspends or terminates the
operation of its business, or has commenced against it any
action or proceeding for its liquidation or dissolution or
the winding up of its business, or takes any corporate
action in furtherance thereof, except in connection with
the consolidation of such a Covered Person and its assets
with another Covered Person and its assets.
15.1.12. SEIZURE OF ASSETS. All or any material part
of the property of any Covered Person is nationalized,
expropriated, seized or otherwise appropriated, or custody
or control of such property or of any Covered Person shall
be assumed by any Governmental Authority or any court of
competent jurisdiction at the instance of any Governmental
Authority, unless the same is being contested in good
faith by proper proceedings diligently pursued and a stay
of enforcement is in effect.
15.1.13. RACKETEERING PROCEEDING. There is filed against any
Covered Person any civil or criminal action, suit or
proceeding under any federal or state racketeering statute
(including, without limitation, the Racketeer Influenced
and Corrupt Organization Act of 1970), which action, suit
or proceeding is not dismissed within 60 days and could
result in the confiscation or forfeiture of any material
portion of its assets.
15.1.14. LOSS TO ASSETS. Any loss, theft, damage or
destruction of any item or items of its assets occurs which
either (i) has or is reasonably likely to have a Material
Adverse Effect on any other Covered Person or (ii) materially
and adversely affects the operation of Borrower's business
and is not covered by insurance as required herein.
15.1.15. GUARANTY; GUARANTOR. Any Guaranty ceases to be in
full force and effect or any action is taken to discontinue
or assert the invalidity or unenforceability of any Guaranty
or any Guarantor fails to comply with any of the terms or
provisions of any Guaranty, or any representation or
warranty of any Guarantor therein is false, or any
Guarantor denies that it has any further liability under
any Guaranty or gives notice to Lender to such effect.
15.2. CROSS DEFAULT. An Event of Default under this Agreement will
automatically and immediately constitute a default under all other
Loan Documents without regard to any requirement therein for the
giving of notice or the passing of time.
15.3. RIGHTS AND REMEDIES.
15.3.1. TERMINATION OF COMMITMENTS. Upon an Event of Default
described in Section 15.1.8, the Commitments shall be
deemed canceled. Upon any other Event of Default, and at
any time thereafter, Required Lenders may cancel the
Commitments. Such cancellation may be, in either case,
without presentment, demand or notice of any kind, which
Borrower expressly waives.
15.3.2. ACCELERATION. Upon an Event of Default described in
Section 15.1.8, all of the outstanding Loan Obligations
shall automatically become immediately due and payable.
38
Upon any other Event of Default, and at any time
thereafter, Required Lenders may declare all of the
outstanding Loan Obligations immediately due and payable.
Such acceleration may be, in either case, without
presentment, demand or notice of any kind, which Borrower
expressly waives.
15.3.3. RIGHT OF SETOFF. Upon the occurrence and during the
continuation of an Event of Default, each Lender is hereby
authorized, without notice to Borrower (any such notice
being expressly waived by Borrower), to the fullest extent
permitted by law, to set off and apply against the Loan
Obligations any and all deposits (general or special, time
or demand, provisional or final) at any time held, or any
other Indebtedness at any time owing by such Lender (or
its Affiliate) to or for the credit or the account of
Borrower, irrespective of whether or not such Lender shall
have made any demand under this Agreement or the Notes or
any Guaranty and although such Loan Obligations may be
unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such
Lender may otherwise have. All amounts received by each
Lender on account of the Loan Obligations pursuant to this
Section shall be paid over promptly to Administrative
Agent for distribution to Lenders as provided in this
Agreement and shall be applied as provided in this
Agreement.
15.3.4. RIGHTS GENERALLY. Upon the occurrence and during the
continuation of an Event of Default and acceleration of
the Loan Obligations as provided herein, and at any time
and from time to time thereafter, Administrative Agent and
Lenders may exercise any or all of its rights they may
have under the Loan Documents or otherwise available in
equity or under any other applicable Law.
15.3.5. JOINT AND SEVERAL. Each Obligation and liability to
the Letter of Credit Issuer, Administrative Agent and each
Lender of Borrower and Guarantors, including, without
limitation, the Loan Obligations, are the joint and
several obligations of Borrower and Guarantors, and
Administrative Agent may proceed directly against
Borrower, any Guarantor, all of the foregoing, or any one
of the foregoing or any combination of the foregoing,
without first proceeding against Borrower, or without
joining all Persons liable or potentially liable for any
portion of the Loan Obligations in one action.
15.4. APPLICATION OF FUNDS. Any funds received by Lenders or
Administrative Agent for the benefit of Lenders with respect to
any Loan Obligation after its Maturity, shall be applied as
follows: (i) first, to reimburse Lenders pro-rata for any amounts
due to Lenders under Section 18.8; (ii) second, to reimburse to
Administrative Agent all unreimbursed costs and expenses paid or
incurred by Administrative Agent that are payable or reimbursable
by Borrower hereunder; (iii) third, to reimburse to Lenders
pro-rata all unreimbursed costs and expenses paid or incurred by
Lenders (including costs and expenses incurred by Administrative
Agent as a Lender that are not reimbursable as provided in the
preceding clause) that are payable or reimbursable by Borrower
hereunder; (iv) fourth, to the payment of accrued and unpaid fees
due hereunder and all other amounts due hereunder (other than the
Loans and interest accrued thereon); (v) fifth, to the payment of
the Loans of each of the Lenders and interest accrued thereon
(which payments shall be pro rata to each of the Lenders in
accordance with the amount of the Loans outstanding) and to the
payment (pari passu with the foregoing) of any Rate Hedging
Obligations and cash collateral to the Letter of Credit Issuer as
collateral for the Letter of Credit Exposure; and (vi) sixth, to
the payment of the other Loan Obligations. Any remaining amounts
shall be applied to payment of all the Obligations to
Administrative Agent. Any further remaining amounts shall be paid
to Borrower or such other Persons as shall be legally entitled
thereto. Except as expressly provided
39
otherwise herein, Lenders may apply and reverse and reapply,
payments to the Loan Obligations in such order and manner as
Lenders determine in their absolute discretion.
16. ADMINISTRATIVE AGENT AND LENDERS.
16.1. APPOINTMENT, POWERS, AND IMMUNITIES. LaSalle is hereby
appointed Administrative Agent hereunder and under each of the
other Loan Documents. Each Lender hereby irrevocably appoints and
authorizes Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to Administrative Agent
by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental
thereto. Administrative Agent (which term as used in this sentence
and in Section 16.5 and the first sentence of Section 16.6 hereof
shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents): (a) shall not have
any duties or responsibilities except those expressly set forth in
this Agreement and shall not be a trustee or fiduciary for any
Lender; (b) shall not be responsible to the Lenders for any
recital, statement, representation, or warranty (whether written
or oral) made in or in connection with any Loan Document or any
certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the
value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document, or any other document referred
to or provided for therein or for any failure by any Covered
Person or any other Person to perform any of its obligations
thereunder or the validity; (c) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by any
Covered Person or the satisfaction of any condition or to inspect
the property (including the books and records) of any Covered
Person or any of its Subsidiaries or affiliates; (d) shall not be
required to initiate or conduct any litigation or collection
proceedings under any Loan Document; and (e) shall not be
responsible for any action taken or omitted to be taken by it
under or in connection with any Loan Document, except for its own
gross negligence or willful misconduct. Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
16.2. RELIANCE BY ADMINISTRATIVE AGENT. Administrative Agent shall
be entitled to rely upon any certification, notice, instrument,
writing, or other communication (including, without limitation,
any thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on behalf
of the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel for any Covered Person),
independent accountants, and other experts selected by
Administrative Agent. Administrative Agent may deem and treat the
payee of any Note as the holder thereof for all purposes hereof
unless and until Administrative Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 18.4
hereof. As to any matters not expressly provided for by this
Agreement, Administrative Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting
or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that Administrative Agent shall not be
required to take any action that exposes Administrative Agent to
personal liability or that is contrary to any Loan Document or
applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such
action.
16.3. EMPLOYMENT OF AGENTS AND COUNSEL. Administrative Agent may
execute any of its duties hereunder by or through employees,
agents, and attorneys-in-fact and shall not be liable to
40
any Lender, except with respect to money or securities received by it
or such agents or attorneys-in-fact, for the default or misconduct
of any such agents or attorneys-in-fact selected by it with
reasonable care. Administrative Agent shall be entitled to advice
of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and shall not be liable to any
Lender for acting or failing to act based as advised by such
counsel, except where doing so violates an express obligation of
Administrative Agent under the Loan Documents.
16.4. DEFAULTS. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of
Default unless Administrative Agent has received written notice
from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a Notice of Default. In
the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent
shall give notice thereof to the Lenders. Administrative Agent
shall (subject to Section 16.2 hereof) take such action with
respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders, provided that, unless and until
Administrative Agent shall have received such directions,
Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interest of the Lenders.
16.5. RIGHTS AS LENDER. With respect to its Commitment and the
Loans made by it, LaSalle (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not acting as
Administrative Agent, and the term Lender or Lenders shall, unless
the context otherwise indicates, include Administrative Agent in
its individual capacity. LaSalle (and any successor acting as
Administrative Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money
to, make investments in, provide services to, and generally engage
in any kind of lending, trust, or other business with any Covered
Person or any of its Subsidiaries or Affiliates as if it were not
acting as Administrative Agent, and LaSalle (and any successor
acting as Administrative Agent) and its Affiliates may accept fees
and other consideration from any Covered Person or any of its
Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to
Lenders. The Lenders acknowledge that, pursuant to such
activities, Administrative Agent or its Affiliates may receive
information regarding Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in
favor of Borrower or such Affiliates) and acknowledge that
Administrative Agent shall be under no obligation to provide such
information to the Lenders.
16.6. INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, Lenders agree to reimburse
and indemnify Administrative Agent upon demand (to the extent not
reimbursed under Section 18.7, but without limiting the
obligations of Borrower under Section 18.7) ratably in accordance
with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including reasonable attorneys' fees), or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against Administrative Agent
(including by any Lender) in any way relating to or arising out of
any Loan Document or the transactions contemplated thereby or any
action taken or omitted by Administrative Agent under any Loan
Document; provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse
Administrative Agent promptly upon demand for its ratable share of
any costs or expenses payable by Borrower under Section 18.7, to
the extent that Administrative Agent is not promptly reimbursed
for such costs and expenses by
41
Borrower. The agreements contained in this Section shall survive
payment in full of the Loans and all other amounts payable under
this Agreement.
16.7. NOTIFICATION OF LENDERS. Each Lender agrees to use its good
faith efforts, upon becoming aware of anything which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person, to promptly notify Administrative Agent thereof.
Administrative Agent shall promptly deliver to each Lender copies
of every written notice, demand, report (including any financial
report), or other writing which Administrative Agent gives to or
receives from Borrower and which itself (a) constitutes, or which
contains information about, something that has or is reasonably
likely to have a Material Adverse Effect on any Covered Person, or
(b) is otherwise delivered to Administrative Agent by Borrower
pursuant to the Loan Documents and is deemed material information
by Administrative Agent in its sole discretion. Administrative
Agent and its directors, officers, agents, and employees shall
have no liability to any Lender for failure to deliver any such
item to such Lender unless the failure constitutes gross
negligence or willful misconduct.
16.8. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
acknowledges that Administrative Agent has not made any
representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any review of the
affairs of Borrower and its Affiliates, shall be deemed to
constitute any representation or warranty by Administrative Agent
to any Lender. Each Lender agrees that it has, independently and
without reliance on Administrative Agent or any other Lender, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Covered Persons
and their Subsidiaries and decision to enter into this Agreement
and that it will, independently and without reliance upon
Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or
not taking action under the Loan Documents. Except for notices,
reports, and other documents and information expressly required to
be furnished to Lenders by Administrative Agent hereunder,
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning
the affairs, financial condition, or business of any Covered
Person or any of its Subsidiaries or Affiliates that may come into
the possession of Administrative Agent or any of its Affiliates.
16.9. RESIGNATION. Administrative Agent may resign at any time by
giving notice thereof to the Lenders and Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent which appointment shall be
subject to the consent (which consent will not be unreasonably
withheld or delayed) of Borrower so long as there is no Existing
Default. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of
America having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights,
powers, discretion, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. If no
successor has accepted appointment as Administrative Agent within
thirty (30) days after the date on which Administrative Agent
first attempts to appoint a successor Administrative Agent, the
resigning Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a
42
successor which accepts such appointment. After any retiring
Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 16.9 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
16.10. COLLECTIONS AND DISTRIBUTIONS TO LENDERS BY ADMINISTRATIVE
AGENT. Except as otherwise provided in this Agreement, all
payments of interest, fees, principal and other amounts received
by Administrative Agent for the account of Lenders shall be
distributed by Administrative Agent to Lenders in accordance with
their pro-rata shares of the outstanding Loan Obligations at the
time of such distribution (or entirely to Administrative Agent in
the case of payments of interest, fees or principal with respect
to the Swingline Loan) on the same Business Day when received,
unless received after 12:00 noon (Local Time) in which case they
shall be so distributed by 12:00 noon (Local Time) on the next
Business Day. All amounts received by any Lender on account of the
Loan Obligations, including amounts received by way of setoff,
shall be paid over promptly to Administrative Agent for
distribution to Lenders as provided above in this Section. Such
distributions shall be made according to instructions that each
Lender may give to Administrative Agent from time to time. Unless
there is an Existing Default (in which case the Lenders may apply
payments as they determine in their discretion), payments received
shall be applied (after application to the Swingline Loan to
reduce it to zero), first to reduce any Base Rate Loans included
in the Aggregate Revolving Loan owing to each Lender, and then to
any Eurodollar Loans included in the Aggregate Revolving Loan
owing to each Lender.
17. CHANGE IN CIRCUMSTANCES.
17.1. COMPENSATION FOR INCREASED COSTS AND REDUCED RETURNS.
17.1.1. LAW CHANGES OR TAX IMPOSITIONS. If, after the
Effective Date, the adoption of any applicable Law or any
change in any applicable Law or any change in the
interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable
Lending Office) with any request or directive (whether or not
having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) subjects such Lender (or its Applicable
Lending Office) to any Tax with respect to any
Eurodollar Loans or its obligation to make
Eurodollar Loans, or change the basis of taxation
of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement
in respect of any Eurodollar Loans (other than
Taxes imposed on the overall net income of such
Lender by the jurisdiction in which such Lender
has its principal office or such Applicable
Lending Office);
(ii) imposes, modifies, or deems applicable any
reserve, special deposit, assessment or similar
requirement (other than the reserve requirement
utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or
other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the
Commitment of such Lender hereunder; or
(iii) imposes on such Lender (or its Applicable
Lending Office) or on the United States market
for certificates of deposit or the London
Interbank market
43
any other condition affecting this Agreement, its
Commitments or its Note or any of such extensions
of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the
cost to such Lender (or its Applicable Lending Office) of
making, converting into, continuing, or maintaining any
Loans or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under this
Agreement or any of its Notes with respect to any Loans,
then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests
compensation by Borrower under this Section 17.1.1,
Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such
Lender to make or continue Loans of the type with respect
to which such compensation is requested, or to convert
Loans of any other type into Loans of such type, until the
event or condition giving rise to such request ceases to
be in effect (in which case the provisions of Section 17.5
shall be applicable); provided, however, that such
suspension shall not affect the right of such Lender to
receive the compensation so requested.
17.1.2. CAPITAL ADEQUACY. If, after the Effective Date, any
Lender shall have determined that the adoption of any
applicable Law regarding capital adequacy or any change
therein or in the interpretation or administration thereof by
any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof,
or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such
governmental authority, central bank, or comparable
agency, has or would have the effect of reducing the rate
of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for
such adoption, change, request, or directive (taking into
consideration its policies with respect to capital
adequacy), then from time to time upon demand Borrower
shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
17.1.3. NOTICE TO BORROWER. Each Lender shall promptly notify
Borrower and Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this
Section 17.1 and will designate a different Applicable
Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation
under this Section 17.1 shall furnish to Borrower and
Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder
which shall be conclusive in the absence of manifest
error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
17.2. MARKET FAILURE. If on or prior to the first day of any
Interest Period for any Eurodollar Loan:
(i) Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate
for such Interest Period; or
44
(ii) the Required Lenders determine (which determination
shall be conclusive) and notify Administrative Agent that
the Eurodollar Rate will not adequately and fairly reflect
the cost to the Lenders of funding Eurodollar Loans for
such Interest Period;
then Administrative Agent shall give Borrower prompt notice
thereof, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional Eurodollar
Loans, continue Eurodollar Loans, or to convert Eurodollar Loans
and Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans either prepay such
Loans or convert such Loans into Base Rate Loans in accordance with
the terms of this Agreement.
17.3. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or
its Applicable Lending Office to make, maintain, or fund Eurodollar
Loans hereunder, then such Lender shall promptly notify Borrower
thereof and such Lender's obligation to make, continue Eurodollar
Loans or convert Base Rate Loans into Eurodollar Loans shall be
suspended until such time as such Lender may again make, maintain,
and fund Eurodollar Loans (in which case the provisions of Section
17.5 shall be applicable).
17.4. COMPENSATION. Upon the request of any Lender, Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in
the reasonable opinion of such Lender) to compensate it for any loss,
cost, or expense (including loss of anticipated profits) incurred
by it as a result of:
(i) any payment, prepayment, or conversion of a Eurodollar
Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to the terms hereof) on
a date other than the last day of the Interest Period for
such Eurodollar Loan; or
(ii) any failure by Borrower for any reason to borrow,
convert, continue, or prepay a Eurodollar Loan on the date
for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this
Agreement.
If a Lender claims compensation under this Section 17.4, such
Lender shall furnish a certificate to Borrower that states the
amount to be paid to it hereunder and includes a description of the
method used by such Lender in calculating such amount. Borrower
shall have the burden of proving that the amount of any such
compensation calculated by a Lender is not correct. Any
compensation payable by Borrower to a Lender under this Section
17.4 shall be payable without regard to whether such Lender has
funded its pro-rata share of any Eurodollar Advance or Eurodollar
Loan through the purchase of deposits in an amount or of a maturity
corresponding to the deposits used as a reference in determining
the Eurodollar Rate.
17.5. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender
to make a Eurodollar Loans or to continue any Eurodollar Loans, or
to convert any Base Rate Loan into a Eurodollar Loan shall be
suspended pursuant to Section 17.1, 17.2, or 17.3 (such Loans
being herein called Affected Loans), such Lender's Affected Loans
shall be automatically and immediately converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a conversion required by
Section 17.3, on such earlier date as such Lender may specify to
Borrower with a copy to Administrative Agent) and, unless and
until such Lender gives notice as provided below that the
circumstances specified in Section 17.1, 17.2, or 17.3 that gave
rise to such conversion no longer exist:
45
(i) to the extent that such Lender's Affected Loans have
been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Affected Loans shall continue to be made and applied as
provided for herein; and
(ii) all Loans that would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or
continued instead as Base Rate Loans, and all Loans of
such Lender that would otherwise be converted into
Eurodollar Loans shall be converted instead into (or shall
remain as) Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to
Administrative Agent) that the circumstances specified in Section
17.1, 17.2, or 17.3 hereof that gave rise to the conversion of such
Lender's Affected Loans pursuant to this Section 17.5 no longer
exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the type of
the Affected Loans made by other Lenders are outstanding, such
Lender's Base Rate Loans shall be automatically converted, on the
first day(s) of the next succeeding Interest Period(s) for such
outstanding Loans of the type of the Affected Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Loans of the type of the Affected Loans and by
such Lender are held pro rata (as to principal amounts, type of
interest, and Interest Periods) in accordance with their respective
Commitments.
17.6. TAXES.
17.6.1. GROSS-UP. Any and all payments by Borrower to or
for the account of any Lender or the Administrative Agent
hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all
Taxes, whether imposed now or in the future, excluding, in
the case of each Lender and the Administrative Agent,
Taxes imposed on its income, and franchise Taxes imposed
on it, by the jurisdiction under the Laws of which such
Lender (or its Applicable Lending Office) or the
Administrative Agent (as the case may be) is organized or
any political subdivision thereof. If Borrower is required
by Law to deduct any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to
any Lender or the Administrative Agent, (i) the sum
payable will be increased as necessary so that after
making all required deductions (including deductions
applicable to additional sums payable under this Section
17.6) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable Law, and (iv)
Borrower shall furnish to Administrative Agent, at its
address referred to herein, the original or a certified
copy of a receipt evidencing payment thereof (and
Administrative Agent shall use its reasonable efforts to
deliver promptly copy of such receipt to each Lender). In
addition, Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise
from any payment made under this Agreement or any other
Loan Document or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other
Loan Document (hereinafter referred to as Impositions).
Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and
Impositions (including, without limitation, any Taxes or
Impositions imposed or asserted by any jurisdiction on
amounts payable under this Section 17.6) paid by such
Lender or the Administrative Agent (as the case may be)
and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
Within 30 days after the date of any payment of Taxes,
Borrower shall furnish to
46
Administrative Agent the original or a certified copy of
the receipt evidencing such payment (and Administrative
Agent shall use its reasonable efforts to deliver promptly
copy of such receipt to each Lender).
17.6.2. LENDERS' UNDERTAKINGS.
(i) Each Lender organized under the Laws of a
jurisdiction outside the United States, on or
prior to the date of its execution and delivery
of this Agreement in the case of each Lender
listed on the signature pages hereof and on or
prior to the date on which it becomes a Lender in
the case of each other Lender, and from time to
time thereafter if requested in writing by
Borrower or Administrative Agent (but only so
long as such Lender remains lawfully able to do
so), shall provide Borrower and Administrative
Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to
benefits under an income tax treaty to which the
United States is a party which reduces the rate
of withholding Tax on payments of interest or
certifying that the income receivable pursuant to
this Agreement is effectively connected with the
conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or
W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and
(iii) any other form or certificate required by
any Governmental Authority (including any
certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying
that such Lender is entitled to an exemption from
or a reduced rate of Tax on payments pursuant to
this Agreement or any of the other Loan
Documents. For any period with respect to which a
Lender has failed to provide Borrower and
Administrative Agent with the appropriate form
pursuant to this Section 17.6.2 (unless such
failure is due to a change in treaty or Law
occurring subsequent to the date on which a form
originally was required to be provided), such
Lender shall not be entitled to indemnification
under Section 17.6.1 with respect to Taxes
imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its
failure to deliver a form required hereunder,
Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to
recover such Taxes.
(ii) If Borrower is required to pay additional
amounts to or for the account of any Lender or
Administrative Agent pursuant to Section 17.1,
then such Lender or the Administrative Agent will
agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so
as to eliminate or reduce any such additional
payment which may thereafter accrue if such
change, in the judgment of such Lender or the
Administrative Agent, as the case may be, is not
otherwise disadvantageous to such Lender or the
Administrative Agent, as the case may be.
17.6.3. SURVIVAL OF BORROWER'S OBLIGATIONS. Without prejudice
to the survival of any other agreement of Borrower hereunder,
the agreements and obligations of Borrower contained in
this Section 17.6 shall survive the termination of the
Commitments, the expiration of the Letters of Credit, the
indefeasible full payment and satisfaction of all of the
Loan Obligations.
47
17.7. USURY. Notwithstanding any provisions to the contrary in
Section 4 or elsewhere in any of the Loan Documents, Borrower
shall not be obligated to pay interest at a rate which exceeds the
maximum rate permitted by Law. If, but for this Section 17.7,
Borrower would be deemed obligated to pay interest at a rate which
exceeds the maximum rate permitted by Law, or if any of the Loan
Obligations is paid or becomes payable before its originally
scheduled Maturity and as a result Borrower has paid or would be
obligated to pay interest at such an excessive rate, then (i)
Borrower shall not be obligated to pay interest to the extent it
exceeds the interest that would be payable at the maximum rate
permitted by Law; (ii) if the outstanding Loan Obligations have
not been accelerated as provided in Section 15.3.2, any such
excess interest that has been paid by Borrower shall be refunded;
(iii) if the outstanding Loan Obligations have been accelerated as
provided in Section 15.3.2, any such excess that has been paid by
Borrower shall be applied to the Loan Obligations as provided in
Section 15.4; and (iv) the effective rate of interest shall be
deemed automatically reduced to the maximum rate permitted by Law.
18. GENERAL.
18.1. LENDERS' RIGHT TO CURE. Required Lenders may from time to
time, in their absolute discretion, for Borrower's account and at
Borrower's expense, pay (or, with the consent of Required Lenders,
make a Revolving Loan Advance to pay) any amount or do any act
required of Borrower hereunder or requested by Administrative
Agent or Required Lenders to preserve, protect, maintain or
enforce the Loan Obligations, which Borrower is required to pay or
do, but fails to pay or do, including payment of any judgment
against Borrower, insurance premium, taxes or assessments,
warehouse charge, finishing or processing charge, landlord's
claim, and any other Security Interest upon or with respect to its
assets. All payments that Lenders make pursuant to this Section
and all out-of-pocket costs and expenses that Lenders pay or incur
in connection with any action taken by them hereunder shall be a
part of the Loan Obligations. Any payment made or other action
taken by Lenders pursuant to this Section shall be without
prejudice to any right to assert an Event of Default hereunder and
to pursue Lender's other rights and remedies with respect thereto.
Administrative Agent agrees that so long as there is no Existing
Default, Administrative Agent will use its reasonable efforts to
give notice to Borrower prior to taking any of the actions
described in this Section 18.1; provided, however, that
Administrative Agent shall have no liability for failure to give
any such notice, unless such failure is intentional.
18.2. RIGHTS NOT EXCLUSIVE. Every right granted to Administrative Agent
and Lenders hereunder or under any other Loan Document or allowed
to it at law or in equity shall be deemed cumulative and may be
exercised from time to time.
18.3. SURVIVAL OF AGREEMENTS. All covenants and agreements made
herein and in the other Loan Documents shall survive the execution
and delivery of this Agreement, the Notes and other Loan Documents
and the making of every Advance. All agreements, obligations and
liabilities of Borrower under this Agreement concerning the
payment of money to Administrative Agent and Lenders, including
Borrower's obligations under Sections 18.7 and 18.8, but excluding
the obligation to repay the Loans and interest accrued thereon,
shall survive the repayment in full of the Loans and interest
accrued thereon, whether or not indefeasible, the return of the
Notes to Borrower, the termination of the Commitments and the
expiration of all Letters of Credit.
18.4. ASSIGNMENTS.
18.4.1. PERMITTED ASSIGNMENTS. At any time after the
Execution Date, any Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations
48
under this Agreement (including all or a portion of the
Notes payable to it, its Commitments and its Loans),
provided that the terms of assignment satisfy the
following requirements:
18.4.1.1. Administrative Agent shall have accepted
the assignment, which acceptance shall not be
unreasonably withheld.
18.4.1.2. Each such assignment shall be of a
constant, and not a varying, percentage of all of
the assigning Lender's rights and obligations under
this Agreement.
18.4.1.3. For each assignment involving the issuance
and transfer of Notes, the assigning Lender shall
execute an Assignment and Acceptance in the form
attached hereto as Exhibit 18.4.1 together with
any Note subject to such assignment and a
processing fee of $3,500.
18.4.1.4. The minimum Commitment which shall be
assigned (which shall include the applicable
portion of the assigning Lender's Revolving Loan
Commitment, and Letter of Credit Commitment (and
in the case of Administrative Agent, the
Swingline Commitment)) is $5,000,000 or such
lesser amount which constitutes such Lender's
entire Commitment; provided, however, that no such
minimum shall apply between a Lender and its
Affiliates, or between one Lender and another Lender
or an assignment of all of a Lender's rights and
obligations under this Agreement.
18.4.1.5. The assignee shall have an office located
in the United States and is otherwise an Eligible
Assignee.
18.4.1.6. If there is no Existing Default as of the
date of such assignment, Borrower shall have
consented to the assignment, which consent shall
not be unreasonably withheld or delayed.
18.4.2. CONSEQUENCES AND EFFECT OF ASSIGNMENTS. From and after
the effective date specified in any Assignment and Acceptance,
the assignee shall be deemed and treated as a party to
this Agreement and, to the extent that rights and
obligations hereunder and under the Notes held by the
assignor have been assigned or negotiated to the assignee
pursuant to such Assignment and Acceptance, to have the
rights and obligations of a Lender hereunder as fully as
if such assignee had been named as a Lender in this
Agreement and of a holder of such Notes, and the assignor
shall, to the extent that rights and obligations hereunder
or under such Notes have been assigned or negotiated by it
pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its future obligations under
this Agreement. If the assignee is not incorporated under
the laws of the United States of America or a state
thereof, it shall deliver to Borrower and Administrative
Agent certification as to the exemption from deduction or
withholding of Taxes in accordance with Section 17.6.
18.4.3. AGREEMENTS UPON ASSIGNMENT. By executing and
delivering an Assignment and Acceptance, the assignor
thereunder and the assignee confirm to and agree with each
other and the other parties hereto substantially as
follows: (i) the assignment made under such Assignment and
Acceptance is made under such Assignment and Acceptance
without recourse; (ii) such assignor makes no representation
or warranty and assumes no
49
responsibility with respect to the financial condition of
any Covered Person or the performance or observance by any
Covered Person of any of its Loan Obligations; (iii) such
assignee confirms that it has received a copy of this
Agreement, together with copies of the Financial Statements
and such other Loan Documents and other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and
without reliance upon Administrative Agent, such assignor, or
any other Lender, and based on such documents and information
as it deems appropriate at the time, continue to make its
own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes
Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to Agent by
the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender
and a holder of a Note.
18.4.4. REGISTER. Administrative Agent shall maintain at its
address referred to herein a copy of each Assignment and
Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the
Lenders and the Commitment of and principal amount of
Loans owing to, each Lender from time to time (the
Register). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and
Borrower, Administrative Agent and Lenders may treat each
Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice. Upon its receipt of an Assignment
and Acceptance executed by the parties thereto, together
with any Note subject to such assignment and payment of
the processing fee, Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 18.4.1 hereto, (i)
accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
18.4.5. NOTICE TO BORROWER OF ASSIGNMENT. Upon its receipt of
an Assignment and Acceptance executed by an assigning Lender,
if Administrative Agent accepts the assignment
contemplated thereby, Administrative Agent shall give
prompt notice thereof to Borrower. Borrower shall execute
and deliver replacement Notes to the assignor and assignee
as requested by Administrative Agent and necessary to give
effect to the assignment. If Borrower fails or refuses to
execute and deliver such replacement Notes, Administrative
Agent may, as agent and attorney-in-fact for Borrower,
execute and deliver such replacement Notes on behalf of
Borrower. Borrower hereby appoints Administrative Agent as
its agent and attorney-in-fact for such purpose and
acknowledges that such power is coupled with an interest
and therefore irrevocable. Administrative Agent shall not
have any liability to Borrower or anyone else, including
any Lender, as a consequence of exercising such power in
any instance.
18.4.6. ASSIGNMENT TO FEDERAL RESERVE BANK. Notwithstanding
any other provision set forth in this Agreement, without
consent of Borrower or Administrative Agent, any Lender
may at any time assign and pledge all or any portion of
its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from
its obligations hereunder.
50
18.5. SALE OF PARTICIPATIONS. Each Lender may sell participations to
one or more Persons (other than Borrower or an Affiliate of Borrower)
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and its Loans); provided,
however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
the participant shall be entitled to the benefit of the yield
protection provisions contained in Section 17 and the right of setoff
contained in Section 15.3.3, (iv) the amount of the participation shall
be in a minimum amount of $5,000,000 or such lesser amount which
constitutes such Lender's entire Commitment, provided, however, that no
such minimum amount shall apply to participations between any of
Lenders or between any Lender and any of its Affiliates; and (v)
Borrower, the other Lenders and Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of Borrower
relating to its Loans, its Notes and its funding of Advances and to
approve any amendment, modification, or waiver of any provision of this
Agreement, provided, however, that the approval of a participant of a
Lender may be required only for amendments, modifications, or waivers
that (a) forgive the amount of principal of the Loans, (b) reduce the
Eurodollar Revolving Margin or the Base Rate Revolving Margin or reduce
the Revolving Loan Unused Fee, or (c) extend the Revolving Loan
Maturity Date. The Lender selling a participation shall, within two (2)
Business Days of its effectiveness, provide written notice of such
event to the Administrative Agent. Notwithstanding the foregoing
provisions of this Section, the sale of any such participations which
require Borrower to file a registration statement with the SEC or under
the securities Laws of any state shall not be permitted.
18.6. INFORMATION; CONFIDENTIALITY. Administrative Agent and each
Lender agrees that it will not disclose to third Persons any
information that it obtains about Borrower or its operations or
finances that are designated by Borrower in writing as confidential or
that Borrower has advised Administrative Agent and Lenders in writing
constitutes non-public information. Administrative Agent and Lenders
may, however, disclose such information to each other, to assignees and
participants (including prospective assignees and participants) and to
all of their respective officers, attorneys, auditors, accountants,
bank examiners, agents and representatives who have a need to know such
information in connection with the administration, interpretation or
enforcement of the Loan Documents or the lending and collection
activity contemplated therein or to the extent required by Law or a
Governmental Authority. Administrative Agent and Lenders shall advise
such Persons that such information is to be treated as confidential.
Administrative Agent and any Lender may also disclose such information
in any documents that it files in any legal proceeding to pursue,
enforce or preserve its rights under the Loan Documents to the extent
that its counsel advises in writing that such disclosure is reasonably
necessary. Administrative Agent's and Lenders' non-disclosure
obligation shall not apply to any information that (i) is disclosed to
Administrative Agent or any Lender by a third Person not affiliated
with or employed by Borrower who does not have a commensurate duty of
non-disclosure, or (ii) becomes publicly known other than as a result
of disclosure by Administrative Agent or a Lender.
18.7. PAYMENT OF EXPENSES. Borrower agrees to pay or reimburse to
Administrative Agent all of Administrative Agent's out-of-pocket costs
incurred in connection with Administrative Agent's due diligence review
before execution of the Loan Documents; the negotiation and preparation
of proposals, a commitment letter and the Loan Documents; the
syndication of the Loans; the administration of this Agreement, the
Loan Documents and the Loans; the interpretation of any of the Loan
Documents; any amendment of or supplementation to any of the Loan
Documents; and any waiver, consent, enforcement, or forbearance with
respect to any
51
Default or Event of Default. Borrower agrees to pay or reimburse
to Administrative Agent and each Lender all of Administrative
Agent's and such Lender's out-of-pocket costs incurred in connection
with the enforcement of such Lender's rights and remedies under the
Loan Documents after the occurrence and during the continuation of an
Event of Default. Administrative Agent's out-of-pocket costs may
include but are not limited to the following, to the extent they are
actually paid or incurred by Administrative Agent: title insurance fees
and premiums; the cost of searches for Security Interests existing
against Covered Persons; recording and filing fees; appraisal fees;
environmental consultant fees; litigation costs; and all attorneys' and
paralegals' expenses and reasonable fees. Each Lender's out-of-pocket
costs may include but are not limited to the following, to the extent
they are actually paid or incurred by a Lender: litigation costs and
all attorneys' and paralegals' expenses and reasonable fees. Attorneys'
and paralegals' expenses may include but are not limited to filing
charges; telephone, data transmission, facsimile and other
communication costs; courier and other delivery charges; and
photocopying charges. Litigation costs may include but are not limited
to filing fees, deposition costs, expert witness fees, expenses of
service of process, and other such costs paid or incurred in any
administrative, arbitration, or court proceedings involving a Lender
and any Covered Person, including proceedings under the Federal
Bankruptcy Code. All costs which Borrower is obligated to pay or
reimburse Administrative Agent or the Lenders are Loan Obligations
payable to Administrative Agent or Lender, as applicable, and are
payable on demand by Administrative Agent or such Lender.
18.8. GENERAL INDEMNITY.
18.8.1. Borrower agrees to indemnify and hold harmless
Administrative Agent, the Letter of Credit Issuer, UMB (as
issuer of the UMB LCs), and each Lender and each of their
Affiliates and their respective officers, directors,
employees, agents, and advisors (each, an Indemnified Party)
from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred
by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason
of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, the
Acquisition Documents, any of the transactions contemplated
herein or therein or the actual or proposed use of the
proceeds of the Loans, or the manufacture, storage,
transportation, release or disposal of any Hazardous Material
on, from, over or affecting any of its assets or any of the
assets, properties, or operations of any Covered Person or
any predecessor in interest, directly or indirectly, except
to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 18.8
applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. Borrower
agrees not to assert any claim against Administrative Agent,
any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys, agents,
and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of
or otherwise relating to the Loan Documents, the Acquisition
Documents, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the
Loans. Borrower shall pay, indemnify and hold harmless the
Indemnified Parties for, from and against, and shall promptly
reimburse the
52
Indemnified Parties for, any and all claims, damages,
liabilities, losses, costs and expenses (including
reasonable attorneys' fees and expenses and amounts paid in
settlement) incurred, paid or sustained by the Indemnified
Parties, arising out of or relating to the Acquisition
Documents.
18.8.2. The obligations of Borrower under this Section 18.8
shall survive the termination of the Commitments, the
expiration of the Letters of Credit, and the indefeasible full
payment and satisfaction of all of the Loan Obligations.
18.8.3. To the extent that any of the indemnities required
from Borrower under this Section are unenforceable because
they violate any Law or public policy, Borrower shall pay the
maximum amount which it is permitted to pay under
applicable Law.
18.9. LETTERS OF CREDIT. Borrower assumes all risks of the acts or
omissions of any beneficiary of any of the Letters of Credit. Neither
Administrative Agent nor any of its directors, officers, employees,
agents, or representatives shall be liable or responsible for: (a) the
use which may be made of any of the Letters of Credit or for any acts
or omissions of beneficiary in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement(s)
thereon, even if such documents should in fact prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (c) payment
by Administrative Agent against presentation of documents which, on
their face, appear to comply with the terms of any Letter of Credit but
which in fact do not; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit in
connection with which Administrative Agent would, pursuant to the
Uniform Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 (as amended from
time to time), be absolved from liability. In furtherance and not in
limitation of the foregoing, Letter of Credit Issuer (or UMB in the
case of UMB LCs) may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless
of any notice or information to the contrary.
18.10. CHANGES IN ACCOUNTING PRINCIPLES. If any Covered Person, at the
end of its fiscal year and with the concurrence of its independent
certified public accountants, changes the method of valuing the
inventory of such Covered Person, or if any other changes in accounting
principles from those used in the preparation of any of the Financial
Statements are required by or result from the promulgation of
principles, rules, regulations, guidelines, pronouncements or opinions
by the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or successors thereto or bodies with
similar functions), and any of such changes result in a change in the
method of calculation of, or affect the results of such calculation of,
any of the financial covenants, standards or terms found herein, then
the parties hereto agree to enter into and diligently pursue
negotiations in order to amend such financial covenants, standards or
terms so as to equitably reflect such changes, with the desired result
that the criteria for evaluating the financial condition and results of
operations of such Covered Person shall be the same after such changes
as if such changes had not been made; provided, however, that until
such changes are made, all financial covenants herein and all the
provisions hereof which contemplate financial calculation hereunder
shall remain in full force and effect.
18.11. LOAN RECORDS. The date and amount of all Advances to Borrower
and payments of amounts due from Borrower under the Loan Documents will
be recorded in the records that Administrative Agent normally maintains
for such types of transactions. The failure to record, or any error in
recording, any of the foregoing shall not, however, affect the
obligation of Borrower to repay the Loans and other amounts payable
under the Loan Documents. Borrower shall have
53
the burden of proving that such records are not correct. Borrower
agrees that Administrative Agent's and any Lender's books and records
showing the Loan Obligations and the transactions pursuant to this
Agreement shall be admissible in any action or proceeding arising
therefrom, and shall constitute prima facie proof thereof, irrespective
of whether any Loan Obligation is also evidenced by a promissory note
or other instrument. Administrative Agent will provide to Borrower a
monthly statement of Advances, payments, and other transactions
pursuant to this Agreement. Such statement shall be deemed correct,
accurate and binding on Borrower and an account stated (except for
reversals and reapplications of payments as provided in Section 6.7 and
corrections of errors discovered by Administrative Agent or a Lender),
unless Borrower notifies Administrative Agent in writing to the
contrary within 30 days after such statement is rendered. In the event
a timely written notice of objections is given by Borrower, only the
items to which exception is expressly made will be considered to be
disputed by Borrower.
18.12. OTHER SECURITY AND GUARANTIES. Administrative Agent or any
Lender may, in each case for the benefit of all of the Lenders, without
notice or demand and without affecting Borrower's obligations
hereunder, from time to time: (a) take from any Person (other than
Borrower) and hold collateral for the payment of all or any part of the
Loan Obligations and exchange, enforce and release such collateral or
any part thereof; and (b) accept and hold any endorsement or guaranty
of payment of all or any part of the Loan Obligations and release or
substitute any such endorser or guarantor, or any Person (other than
Borrower) who has given any Security Interest in any other collateral
as security for the payment of all or any part of the Loan Obligations,
or any other Person (other than Borrower) in any way obligated to pay
all or any part of the Loan Obligations.
18.13. LOAN OBLIGATIONS PAYABLE IN DOLLARS. All Loan Obligations that
are payable in Dollars under the terms of the Loan Documents shall be
payable only in Dollars. If, however, to obtain a judgment in any court
it is necessary to convert a Loan Obligation payable in Dollars into
another currency, the rate of exchange used shall be that at which
Administrative Agent, using its customary procedures, could purchase
Dollars with such other currency in New York, New York on the Business
Day immediately preceding the day on which such judgment is rendered.
If any sum in another currency is paid to a Lender or received by a
Lender and applied to a Loan Obligation payable in Dollars, such Loan
Obligation shall be deemed paid and discharged only to the extent of
the amount of Dollars that Administrative Agent, using its customary
procedures, is able to purchase in New York, New York with such sum on
the Business Day immediately following receipt thereof. Borrower agrees
to indemnify each Lender against any loss in Dollars that it may incur
on such Loan Obligation as a result of such payment or receipt and
application to such Loan Obligation.
19. MISCELLANEOUS.
19.1. NOTICES. All notices, consents, requests and demands to or upon
the respective parties hereto shall be in writing, and shall be deemed
to have been given or made when delivered in person to those Persons
listed on the signature pages hereof or when deposited in the United
States mail, postage prepaid, or the overnight courier services, when
delivered to the overnight courier service, or in the case of telecopy
notice, when sent, verification received, in each case addressed as set
forth on the signature pages hereof, or such other address as either
party may designate by notice to the other in accordance with the terms
of this Section. No notice given to or demand made on Borrower by
Administrative Agent or any Lender in any instance shall entitle
Borrower to notice or demand in any other instance.
54
19.2. AMENDMENTS AND MODIFICATIONS; WAIVERS AND CONSENTS. Unless
otherwise provided herein, no amendment to or modification of any
provision of this Agreement, or of any of the other Loan Documents
shall be effective unless it is in writing and signed by authorized
officers of Borrower and Required Lenders. Unless otherwise provided
herein, no waiver of, or consent to any departure by Borrower from, the
requirements of any provision of this Agreement or any of the other
Loan Documents shall be effective unless it is in writing and signed
by authorized officers of Required Lenders. Any such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the purpose for which given. The foregoing provisions
of this Section notwithstanding, no such amendment, modification or
consent or waiver shall, unless signed by authorized officers of
Administrative Agent, Borrower and of all Lenders: (i) reduce or
forgive the repayment of principal of any Advance or the reimbursement
of any draw on a Letter of Credit, (ii) reduce the Eurodollar Revolving
Margin or the Base Rate Revolving Margin or reduce the Revolving Loan
Unused Fee, (iii) extend the Revolving Loan Maturity Date, (iv) change
the provisions of Section 16 to the detriment of any Lender, (v) change
the definition of Required Lenders herein, (vi) change the provisions
of this Section 19.2, (vii) change any provisions of this Agreement
requiring ratable distributions to Lenders, (viii) increase the Dollar
Amount of the Letter of Credit Commitment, (ix) change or grant a
consent or waiver to any breach or Default of or under Section 13.8,
Section 14.3, or Section 14.4, or the definitions of "Funded
Indebtedness", "EBITDA" or "EBITDAR" contained in Section 14.1, or (x)
release a Guarantor from the Guaranty. In addition, the Dollar amount
of the Revolving Loan Commitment of any Lender may not be increased
without the consent of such Lender and the Borrower and Administrative
Agent. No failure by Administrative Agent or any Lender to exercise,
and no delay by Administrative Agent or any Lender in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Administrative
Agent or any Lender of any right, remedy, power or privilege hereunder
preclude any other exercise thereof, or the exercise of any other
right, remedy, power or privilege existing under any Law or otherwise.
19.3. RIGHTS CUMULATIVE. Each of the rights and remedies of
Administrative Agent and Lenders under this Agreement shall be in
addition to all of its other rights and remedies under applicable
Law, and nothing in this Agreement shall be construed as limiting
any such rights or remedies.
19.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and all future holders
of the Notes and their respective successors and assigns, except
that Borrower may not assign, delegate or transfer any of its
rights or obligations under this Agreement without the prior
written consent of Administrative Agent and all Lenders. With
respect to Borrower's successors and assigns, such successors and
assigns shall include any receiver, trustee or debtor-in-possession
of or for Borrower.
19.5. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or lack of authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction
unless the ineffectiveness of such provision would result in such a
material change as to cause completion of the transactions contemplated
hereby to be unreasonable.
19.6. COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of separate counterparts, and all such
counterparts taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement
to produce or account for more than one counterpart signed by the party
to be charged.
55
19.7. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement, the Notes
and the other Loan Documents and the rights and obligations of the
parties hereunder and thereunder shall be governed by and construed and
interpreted in accordance with the internal Laws of the State of
Illinois applicable to contracts made and to be performed wholly within
such state, without regard to choice or conflicts of law principles.
This Agreement is solely for the benefit of the parties hereto and
their respective successors and assigns, and no other Person shall have
any right, benefit, priority or interest under, or because of the
existence of, this Agreement.
19.8. COUNTERPART FACSIMILE EXECUTION. For purposes of this Agreement,
a document (or signature page thereto) signed and transmitted by
facsimile machine or telecopier is to be treated as an original
document. The signature of any Person thereon, for purposes hereof, is
to be considered as an original signature, and the document transmitted
is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party hereto,
any facsimile or telecopy document is to be re-executed in original
form by the Persons who executed the facsimile or telecopy document.
No party hereto may raise the use of a facsimile machine or telecopier
or the fact that any signature was transmitted through the use of a
facsimile or telecopier machine as a defense to the enforcement of this
Agreement or any amendment or other document executed in compliance
with this Section.
19.9. EFFECT OF MERGER OF BANK. Effective immediately upon the merger
of Administrative Agent or a Lender with or into another financial
institution, all references to Administrative Agent or such Lender
under every Loan Document shall be deemed to be references to the
surviving institution. If the surviving institution does not have a
"Prime Rate," references in the Loan Documents to Prime Rate shall be
deemed to be references to the reference rate (however it is
designated) established from time to time by the surviving institution
that is most similar to the Prime Rate.
19.10. NEGOTIATED TRANSACTION. Borrower, Administrative Agent and each
Lender represent each to the others that in the negotiation and
drafting of this Agreement and the other Loan Documents they have been
represented by and have relied upon the advice of counsel of their
choice. Borrower and Administrative Agent affirm that their counsel
have both had substantial roles in the drafting and negotiation of this
Agreement and each Lender affirms that its counsel has participated in
the drafting and negotiation of this Agreement; therefore, this
Agreement will be deemed drafted by all of Borrower, Administrative
Agent and Lenders, and the rule of construction to the effect that any
ambiguities are to be resolved against the drafter will not be employed
in the interpretation of this Agreement.
19.11. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN THE NEXT
SENTENCE, BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY AGREES
TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURT OF THE NORTHERN
DISTRICT OF ILLINOIS AND THE STATE COURTS OF ILLINOIS LOCATED IN XXXX
COUNTY AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS
----- --- ----------
WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREES THAT ANY
DISPUTE CONCERNING THE RELATIONSHIP BETWEEN ADMINISTRATIVE AGENT,
LENDERS, AND BORROWER OR THE CONDUCT OF ANY OF THEM IN CONNECTION WITH
THIS AGREEMENT OR OTHERWISE SHALL BE HEARD ONLY IN THE COURTS
DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING: EACH OF THE PARTIES
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS
56
DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD
BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS.
19.12. SERVICE OF PROCESS. BORROWER HEREBY WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED)
DIRECTED TO BORROWER AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGES
HEREOF, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5)
DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS; OR
AT ADMINISTRATIVE AGENT'S OR ANY LENDER'S OPTION, BY SERVICE UPON CT
CORPORATION, WHICH BORROWER IRREVOCABLY APPOINTS AS BORROWER'S AGENT
FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE OF
ILLINOIS. ADMINISTRATIVE AGENT OR SUCH LENDER SHALL PROMPTLY FORWARD BY
REGISTERED MAIL ANY PROCESS SO SERVED UPON SAID AGENT TO BORROWER AT
ITS ADDRESS ON THE SIGNATURE PAGES HEREOF. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
19.13. WAIVER OF JURY TRIAL. BORROWER, ADMINISTRATIVE AGENT, AND EACH
LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR EITHER OF THEM IN
RESPECT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE. BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
19.14. INCORPORATION BY REFERENCE. All of the terms of the other Loan
Documents are incorporated in and made a part of this Agreement by
this reference.
19.15. STATUTORY NOTICE - INSURANCE. The following notice is given
pursuant to Section 10 of the Collateral Protection Act set forth
in Chapter 815 Section 180/1 of the Illinois Compiled Statutes
(1996); nothing contained in such notice shall be deemed to limit
or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY
YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE
TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE
MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE
AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY LATER CANCEL
ANY INSURANCE PURCHASED BY US,
57
BUT ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS
REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL,
YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE
INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE
DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF
THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR
OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
19.16. STATUTORY NOTICE - ORAL COMMITMENTS. Nothing contained in the
following notice shall be deemed to limit or modify the terms of
the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT.
Borrower acknowledges that there are no other agreements between
Administrative Agent, Lenders, and Borrower, oral or written,
concerning the subject matter of the Loan Documents, and that all
prior agreements concerning the same subject matter, including any
proposal or commitment letter, are merged into the Loan Documents
and thereby extinguished.
[SIGNATURE PAGES FOLLOW]
58
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the Execution Date.
XXXXXXXX CORPORATION, A MISSOURI CORPORATION, AS BORROWER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
Xxxxxxxx Corporation
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxxxx Corporation
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 1 of 4
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
NOTICE ADDRESS:
LaSalle Bank National Association
One Metropolitan Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, First Vice President
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxx & Xxxxxxxx, X.X.
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
LaSalle Bank National Association
One Metropolitan Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, First Vice President
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 2 of 4
UMB BANK, NATIONAL ASSOCIATION, A LENDER
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
NOTICE ADDRESS:
UMB Bank, National Association
0 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
UMB Bank, National Association
0 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
{SIGNATURE PAGES CONTINUE}
Signature Page 3 of 4
XXXXX FARGO BANK, N.A., A LENDER
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
NOTICE ADDRESS:
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
APPLICABLE LENDING OFFICE:
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Signature Page 4 of 4
EXHIBIT 2.1
GLOSSARY
ACQUIRING COMPANY -- the Person obligated to pay or provide the
consideration payable in connection with a Permitted Acquisition upon the
consummation thereof.
ACQUISITION DOCUMENTS -- in the case of any Permitted Acquisition, the
documents to which Borrower or any other Covered Person is a party and under
which such Permitted Acquisition is contemplated, and all of the foregoing
at any time after a Permitted Acquisition has occurred.
ADJUSTED BASE RATE -- is defined in Section 4.4.
ADJUSTED EURODOLLAR RATE -- is defined in Section 4.5.
ADMINISTRATIVE AGENT -- LaSalle in its capacity as Administrative Agent
under this Agreement, and its successors and assigns in such capacity.
ADVANCE -- a Revolving Loan Advance or a Swingline Advance.
ADVANCE DATE -- the date on which an Advance is requested by Borrower to be
made, or is otherwise contemplated or intended to be made, as provided
herein.
AFFILIATE -- with respect to any Person, (a) any other Person who is a
partner, director, officer, stockholder, member, partner or other equity
holder of such Person; and (b) any other Person which, directly or
indirectly, through one or more intermediaries, is in control of, is
controlled by or is under common control with such Person, and any partner,
director, officer or stockholder, member, partner or other equity holder of
such other Person described. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has
the power, directly or indirectly, either to (i) vote twenty percent (20%)
or more of the securities, membership interests or other equity interest
having the power to vote in an election of directors or managers of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
AGGREGATE COMMITMENT -- the Aggregate Revolving Loan Commitment.
AGGREGATE LOAN -- the Aggregate Revolving Loan.
AGGREGATE REVOLVING LOAN -- the from time to time outstanding principal
balance of all Revolving Loan Advances.
AGGREGATE REVOLVING LOAN COMMITMENT -- the aggregate commitments of Lenders
as stated in Section 3.1.1 to fund Revolving Loan Advances, as it may be
changed as provided herein.
APPLICABLE LENDING OFFICE -- means, for Administrative Agent and each Lender
and for each Loan, the Applicable Lending Office of Administrative Agent or
such Lender (or of an Affiliate of such Lender) designated for such Loan on
the signature pages hereof or such other office of such Lender (or an
Affiliate of Administrative Agent or such Lender) as Administrative Agent or
such Lender may from time
to time specify to Administrative Agent (in the case of another Lender) and
Borrower by written notice in accordance with the terms hereof as the office
by which its Loans are to be made and maintained.
APPROVED OPTION -- is defined in Section 6.3.3.2.
BASE RATE -- for any day, the rate per annum equal to the higher of (a) the
Federal Funds Rate (as such rate may fluctuate from time to time as provided
for herein) for such day plus .50% and (b) the Prime Rate (as such rate may
fluctuate from time to time as provided for herein) for such day. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate. The interest rate so designated from time to time as the
Base Rate by Administrative Agent is a reference rate and does not
necessarily represent the lowest or best rate charged to any customer of
Administrative Agent or any other Lender.
BASE RATE ADVANCE -- an Advance that will become a Base Rate Loan.
BASE RATE REVOLVING MARGIN -- is specified in Section 4.6.
BASE RATE LOAN -- any portion of a Loan on which interest accrues at the
Base Rate.
BORROWER -- as defined in the introductory paragraph to this Agreement.
BORROWING OFFICER -- each officer of Borrower who is authorized to submit a
request for an Advance or the issuance of a Letter of Credit on behalf of
Borrower.
BUSINESS DAY -- a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the Laws of
either the United States or the State of Illinois, and when used in
connection with Eurodollar Loans, also a day other than any day on which
dealings in U.S. Dollar deposits are not carried on in the London interbank
market.
CAPITAL LEASE -- any lease that has been or should be capitalized under
GAAP.
CHARTER DOCUMENTS -- the articles or certificate of incorporation and bylaws
of a corporation; the certificate of limited partnership and partnership
agreement of a limited partnership; the partnership agreement of a general
partnership; the articles of organization and operating agreement of a
limited liability company; or the indenture of a trust.
COBRA -- the Consolidated Omnibus Budget Reconciliation Act.
CODE -- the Internal Revenue Code of 1986 and all regulations thereunder of
the IRS.
COMMITMENT -- either the Revolving Loan Commitment of a Lender, the
Swingline Commitment of Administrative Agent, or the Letter of Credit
Commitment of Letter of Credit Issuer.
COMMONLY CONTROLLED ENTITY -- a Person which is under common control with
another Person within the meaning of Section 414(b) or (c) of the Code.
CONTRACT -- any contract, note, bond, indenture, deed, mortgage, deed of
trust, security agreement, pledge, hypothecation agreement, assignment, or
other agreement or undertaking, or any security.
COVERED PERSON -- defined in Section 2.3.
ii
DEFAULT -- any of the events listed in Section 15.1 of this Agreement,
without giving effect to any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any other condition, event
or act.
DEFAULT RATE -- the rate of interest payable on each Loan after its Maturity
and in certain other circumstances as provided in Section 4.10.
DISCLOSURE SCHEDULE -- the disclosure schedule of Borrower attached hereto
as Exhibit 10.
DOLLARS and the sign $ -- lawful money of the United States.
DEFAULTING LENDER -- is defined in Section 7.5.1.
EBITDA -- is defined in Section 14.1.
EFFECTIVE DATE -- the date when this Agreement is effective as provided in
Section 1.
ELIGIBLE ASSIGNEE -- means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by Administrative Agent; provided, however,
that neither Borrower, any Covered Person, any Guarantor nor an Affiliate of
Borrower or Guarantor shall qualify as an Eligible Assignee.
EMPLOYMENT LAW -- ERISA, the Occupational Safety and Health Act, the Fair
Labor Standards Act, or any other Law pertaining to the terms or conditions
of labor or safety in the workplace or discrimination or sexual harassment
in the workplace.
ENVIRONMENTAL LAW -- the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Clean Water Act, the Clean Air Act, or any other federal, state, or local
Law (excluding foreign and international law) pertaining to environmental
quality or remediation of Hazardous Material.
EPA -- the United States Environmental Protection Agency.
ERISA -- the Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE -- as to any Person, any trade or business (irrespective of
whether incorporated) which is a member of a group of which such Person is a
member and thereafter treated as a single employer under 414(b), (c), (m) or
(o) of the Code or applicable Treasury Regulations.
EURODOLLAR ADVANCE -- an Advance that will become a Eurodollar Loan.
EURODOLLAR REVOLVING MARGIN -- is defined in Section 4.5.
EURODOLLAR LOAN -- any portion of an Aggregate Loan on which interest
accrues at the Adjusted Eurodollar Rate.
EURODOLLAR RATE -- for the applicable Interest Period therefor, the interest
rate per annum equal to the quotient of
(i) the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%), as determined by Administrative Agent as
appearing on the Dow Xxxxx Market Page 3750 (or any successor page)
as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m.
iii
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, the term Eurodollar
Rate shall mean, for any Eurodollar Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period (provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates (rounded upwards, if
necessary, to the nearest 1/16 of 1%)),
divided by
(ii) an amount equal to one minus the maximum rate (expressed as a
decimal) at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are
required to be maintained under regulations issued from time to
time by the FRB or any other Governmental Authority to which any
Lender is subject (or any successor) against, including, in the
case of Eurodollar Loans, Eurocurrency liabilities (as such term is
used in Regulation D). Without limiting the effect of the
foregoing, the reserve requirement shall reflect any other reserves
required to be maintained by any Lender with respect to any
category of liabilities which includes deposits by reference to
which the Eurodollar Rate is to be determined, or any category of
extensions of credit or other assets which include Eurodollar
Loans. (The entire amount of a Eurodollar Loan shall be deemed to
constitute a Eurocurrency liability and as such shall be deemed to
be subject to such reserve requirements without benefit of credits
for proration, exceptions or setoffs which may be available from
time to time to any Lender under Regulation D.) The Eurodollar Rate
shall be adjusted automatically on and as of the effective date of
any change in any such reserve requirements.
EVENT OF DEFAULT -- any of the events listed in Section 15.1 of this
Agreement as to which any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any further condition, event
or act has been satisfied.
EXECUTION DATE -- the date when this Agreement has been executed.
EXISTING DEFAULT -- a Default which has occurred and is continuing, or an
Event of Default which has occurred, and which has not been waived in
writing by the Required Lenders, or all of the Lenders if required by
Section 19.2.
EXISTING INDEBTEDNESS -- means, collectively, (i) all Indebtedness and
obligations owing to UMB Bank, National Association, (ii) Commerce Bank,
N.A., (iii) Prudential Insurance Company of America, (iv) Nationwide Life
Insurance Company, (v) American United Life Insurance Company, (vi) Modern
Woodmen of America, and (vii) Aid Association for Lutherans.
EXISTING REIMBURSEMENT OBLIGATIONS -- means the face amount of the existing
letters of credit, which are identified by the issuing financial
institution, letter of credit number, face amount, and expiry, all as listed
on Exhibit 12.11.3 attached hereto.
FEDERAL FUNDS RATE -- for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such
iv
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate charged to Administrative Agent (in its individual
capacity) on such day on such transactions as determined by Administrative
Agent.
FINANCIAL STATEMENTS -- the most recent of the Initial Financial Statements
and the financial statements of Borrower required to be furnished to
Administrative Agent under Section 12.11 of this Agreement.
FIXED CHARGES -- is defined in Section 14.1.
FRB -- the Board of Governors of the Federal Reserve System and any
successor thereto or to the functions thereof.
FRONTING FEE -- the fee payable to Letter of Credit Issuer as required in
Section 5.4.
FUNDED INDEBTEDNESS -- is defined in Section 14.1.
GAAP -- those generally accepted accounting principles set forth in
Statements of the Financial Accounting Standards Board and in Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants or which have other substantial authoritative support in
the United States and are applicable in the circumstances, as applied on a
consistent basis.
GOVERNMENTAL AUTHORITY -- the federal government of the United States; the
government of any foreign country that is recognized by the United States or
is a member of the United Nations; any state of the United States; any local
Government or municipality within the territory or under the jurisdiction of
any of the foregoing; any department, agency, division, or instrumentality
of any of the foregoing; and any court, arbitrator, or board of arbitrators
whose orders or judgments are enforceable by or within the territory of any
of the foregoing.
GROUP -- as used in Regulation 13-D issued by the Securities and Exchange
Commission.
GUARANTOR -- each of the Persons required under this Agreement to execute
and deliver to Administrative Agent for the benefit of Lenders a guaranty of
part or all of the Loan Obligations. On the effective date, Angelica Textile
Services, Inc., a New York corporation, Angelica Textile Services, Inc., a
California corporation, Southern Service Company, a California corporation,
and Angelica Realty Co., a California corporation are each Guarantors and
have executed an unlimited Guaranty of all the Loan Obligations.
GUARANTY -- each guaranty of part (if acceptable to Administrative Agent) or
all of the Loan Obligations executed and delivered to Administrative Agent
for the benefit of Lenders by any Guarantor.
HAZARDOUS MATERIAL -- any hazardous, radioactive, toxic, solid or special
waste, material, substance or constituent thereof, or any other such
substance (as defined under any applicable Law or regulation), including any
asbestos or asbestos containing material. HAZARDOUS MATERIAL does not
include materials or products containing hazardous constituents which are
not considered to be waste under the applicable Environmental Law or which
are considered to be waste but are transported, handled or disposed of in
accordance with the applicable Environmental Law, or asbestos or asbestos
containing material which is not friable.
v
HEALTHCARE DIVESTITURE -- means the sale of all of substantially all of the
assets associated with Borrower's healthcare manufacturing and marketing of
specialized uniforms business segment.
INDEBTEDNESS -- as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii)
to pay the deferred purchase price of property or services; (iii) to make
payments or reimbursements with respect to bank acceptances or to a factor;
(iv) to make payments or reimbursements with respect to letters of credit
whether or not there have been drawings thereunder; (v) with respect to
which there is any Security Interest in any property of such Person; (vi) to
make any payment or contribution to a Multi-Employer Plan; (vii) that is
evidenced by a note, bond, debenture or similar instrument; (viii) under any
conditional sale agreement or title retention agreement; or (ix) to pay
interest or fees with respect to any of the foregoing. INDEBTEDNESS also
includes any other Obligation that either (i) is non-contingent and
liquidated in amount or (ii) should under GAAP be included in liabilities
and not just as a footnote on a balance sheet.
INDIRECT OBLIGATION -- as to any Person, (a) any guaranty by such Person of
any Obligation of another Person; (b) any Security Interest in any property
of such Person that secures any Obligation of another Person; (c) any
enforceable contractual requirement that such Person (i) purchase an
Obligation of another Person or any property that is security for such
Obligation, (ii) advance or contribute funds to another Person for the
payment of an Obligation of such other Person or to maintain the working
capital, net worth or solvency of such other Person as required in any
documents evidencing an Obligation of such other Person, (iii) purchase
property, securities or services from another Person for the purpose of
assuring the beneficiary of any Obligation of such other Person that such
other Person has the ability to timely pay or discharge such Obligation,
(iv) grant a Security Interest in any property of such Person to secure any
Obligation of another Person, (v) otherwise assure or hold harmless the
beneficiary of any Obligation of another Person against loss in respect
thereof; (d) any Obligation arising from the endorsement by such Person of
an instrument; (e) any Obligation of such Person as a surety; and (f) any
other contractual requirement enforceable against such Person that has the
same substantive effect as any of the foregoing. The term INDIRECT
OBLIGATION does not, however, include the endorsement by a Person of
instruments for deposit or collection in the ordinary course of business or
the liability of a general partner of a partnership for Obligations of such
partnership. The amount of any Indirect Obligation of a Person shall be
deemed to be the stated or determinable amount of the Obligation in respect
of which such Indirect Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
INITIAL FINANCIAL STATEMENTS -- the financial statements (not including the
proforma financial statements) of Borrower referred to in Section 8.1.2.
INTEREST EXPENSE -- is defined in Section 14.1.
INTEREST HEDGE OBLIGATION -- any obligations of Borrower to Administrative
Agent or any Affiliate of Administrative Agent under an agreement or
agreements between Borrower and Administrative Agent or any Affiliate of
Administrative Agent under which the exposure of Borrower to fluctuations in
interest rates is effectively limited, whether in the form of one or more
interest rate cap, collar, or corridor agreements, interest rate swaps, or
the like, or options therefor.
INTEREST PERIOD -- the period during which a particular Adjusted Eurodollar
Rate applies to a Eurodollar Loan, as selected by Borrower as provided in
Section 4.7.
INVESTMENT -- (a) a loan or advance of money or property to a Person, (b)
stock, membership interest, or other equity interest in a Person, (c) a debt
instrument issued by a Person, whether or not convertible to stock,
membership interest, or other equity interest in such Person, or (d) any
other interest in or rights
vi
with respect to a Person which include, in whole or in part, a right to
share, with or without conditions or restrictions, some or all of the
revenues or net income of such Person.
IRS -- the Internal Revenue Service.
LASALLE -- LaSalle Bank National Association.
LAW -- any statute, rule, regulation, order, judgment, award or decree of
any Governmental Authority.
LENDER -- any one of the lenders listed on Exhibit 3 to this Agreement,
including Administrative Agent in its capacity as a lender, or any Person
who takes an assignment from any of such lenders of all or a portion of its
rights and obligations as a lender under this Agreement pursuant to Section
18.4.1 and an Assignment and Acceptance as provided therein.
LENDERS' EXPOSURE -- the sum of the Aggregate Revolving Loan Commitment, the
Swingline Loan, and the Letter of Credit Exposure.
LETTER OF CREDIT -- any standby or commercial (documentary) letter of credit
issued by Letter of Credit Issuer pursuant to the Letter of Credit
Commitment and also including the UMB LCs.
LETTER OF CREDIT COMMITMENT -- the commitment of the Letter of Credit Issuer
to issue Letters of Credit as provided in Section 3.3.
LETTER OF CREDIT EXPOSURE -- the undrawn amount of all outstanding letters
of credit issued under the Letter of Credit Commitment, plus the undrawn
amount of all UMB LCs, plus all amounts drawn on any and all such letters of
credit and not yet reimbursed by Borrower.
LETTER OF CREDIT FEE -- the fee payable to Administrative Agent and Lenders
(or UMB for the UMB LCs for the benefit of the Lenders) as required in
Section 5.3.
LETTER OF CREDIT ISSUER -- LaSalle, or any other Lender succeeding to
LaSalle's commitment to issue Letters of Credit pursuant to Section 3.3.
LOAN -- a Revolving Loan or a Swingline Loan.
LOAN AGREEMENT -- this Agreement.
LOAN DOCUMENTS -- this Agreement, the Notes, the Guaranties, any
reimbursement agreement between Borrower and the Letter of Credit Issuer,
and all other agreements, certificates, documents, instruments and other
writings executed from time to time in connection herewith or related
hereto.
LOAN OBLIGATIONS -- all of Borrower's Indebtedness owing to Letter of Credit
Issuer, Administrative Agent or Lenders under the Loan Documents, whether as
principal, interest, fees or otherwise, all reimbursement obligations of
Borrower to Letter of Credit Issuer or Lenders with respect to the Letter of
Credit Exposure (including, without limitation, the UMB LCs), all
Obligations to Administrative Agent, and all other obligations and
liabilities of Borrower to Administrative Agent or Lenders under the Loan
Documents and all Interest Hedge Obligations (in each case including all
extensions, renewals, modifications, rearrangements, restructures,
replacements and refinancings of the foregoing, whether or not the same
involve modifications to interest rates or other payment terms), whether now
existing or hereafter created, absolute or contingent, direct or indirect,
joint or several, secured or unsecured, due or not due, contractual or
tortious, liquidated or unliquidated, arising by operation of law or
otherwise,
vii
including but not limited to the obligation of Borrower to repay future
advances by Administrative Agent or Lenders hereunder, whether or not made
pursuant to commitment and whether or not presently contemplated by
Borrower, Administrative Agent or Lenders in the Loan Documents.
LOAN YEAR -- means a twelve month period beginning on the Effective Date (or
an annual anniversary thereof).
LOCAL TIME -- the local time in the city in which Administrative Agent's
address is located, as set forth on the signature page hereto (as changed
from time to time in accordance with the terms hereof).
MARGIN -- Base Rate Revolving Margin or Eurodollar Revolving Margin.
MATERIAL ADVERSE EFFECT -- as to Borrower or any Covered Person and with
respect to any event or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, investigation or proceeding),
material adverse effect on (i) the business, operations, revenues, financial
condition, property, or business prospects of the Covered Persons taken as a
whole, (ii) the value of its assets taken as a whole, (iii) the validity or
enforceability of the Loan Documents, (iv) the ability of any Covered Person
to timely pay or perform such Covered Person's Obligations generally as they
become due, (v) in the case of Borrower specifically, the ability of
Borrower to pay or perform any of Borrower's Obligations to Lender, or (vi)
in the case of a Guarantor specifically, the ability of such Guarantor to
pay or perform any of its Obligations under the terms of its Guaranty.
MATERIAL AGREEMENT -- as to any Person, any Contract to which such Person is
a party or by which such Person is bound which, if violated or breached, has
or is reasonably likely to have a Material Adverse Effect on such Person,
any Covered Person or any Guarantor, including without limitation all
Acquisition Documents.
MATERIAL LAW -- any separately enforceable provision of a Law whose
violation by a Person has or is reasonably likely to have a Material Adverse
Effect on such Person or any Covered Person or any Guarantor.
MATERIAL LICENSE -- (i) as to any Covered Person, any license, permit or
consent from a Governmental Authority or other Person and any registration
and filing with a Governmental Authority or other Person which if not
obtained, held or made by such Covered Person has or is reasonably likely to
have a Material Adverse Effect on such Covered Person or any other Covered
Person or any Guarantor, and (ii) as to any Person who is a party to this
Agreement or any of the other Loan Documents, any license, permit or consent
from a Governmental Authority or other Person and any registration or filing
with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
MATERIAL OBLIGATION -- as to any Person, an Obligation of such Person which
if not fully and timely paid or performed has or is reasonably likely to
have a Material Adverse Effect on such Person or any Covered Person or any
Guarantor.
MATERIAL PROCEEDING -- any litigation, investigation or other proceeding by
or before any Governmental Authority (i) which involves any of the Loan
Documents or any of the transactions contemplated thereby, or involves a
Covered Person or a Guarantor as a party or any property of Covered Person
or a Guarantor, and has or is reasonably likely to have a Material Adverse
Effect on a Covered Person or a Guarantor if adversely determined, (ii) in
which there has been issued an injunction, writ, temporary restraining order
or any other order of any nature which purports to restrain or enjoin the
making of any Advance, the consummation of any other transaction
contemplated by the Loan
viii
Documents, or the enforceability of any provision of any of the Loan
Documents, (iii) which involves the actual or alleged breach or violation by
a Covered Person of, or default by a Covered Person under, any Material
Agreement, or (iv) which involves the actual or alleged violation by a
Covered Person or any Guarantor of any Material Law.
MATURITY -- as to any Indebtedness, the time when it becomes payable in
full, whether at a regularly scheduled time, because of acceleration or
otherwise.
MAXIMUM AVAILABLE AMOUNT -- the maximum Dollar amount available for
Revolving Loan Advances on any date as limited in Section 3.1.2, as it may
be changed as provided herein.
MULTI-EMPLOYER PLAN -- a Pension Benefit Plan which is a multi-employer plan
as defined in Section 4001(a)(3) of ERISA.
NON-HEALTHCARE DIVESTITURE -- means the sale of all of substantially all of
the assets associated with Borrower's non-healthcare manufacturing and
marketing of specialized uniforms business segment.
NOTE -- any Revolving Note or the Swingline Note.
OBLIGATION -- as to any Person, any Indebtedness of such Person, any
guaranty by such Person of any Indebtedness of another Person, and any
contractual requirement enforceable against such Person that does not
constitute Indebtedness of such Person or a guaranty by such Person but
which would involve the expenditure of money by such Person if complied with
or enforced.
OBLIGATIONS TO ADMINISTRATIVE AGENT -- exclusive of all the Loan
Obligations, all of Borrower's Indebtedness owing to Administrative Agent
(whether as principal, interest, fees or otherwise), all obligations of
Borrower under agreements between Borrower and Administrative Agent under
which the exposure of Borrower to fluctuations in interest rates is
effectively limited, whether in the form of interest rate cap, collar or
corridor agreements, interest rate swaps, or the like, or options therefor,
all Indirect Obligations of Borrower owing to Administrative Agent, all
reimbursement obligations of Borrower to Administrative Agent with respect
to letters of credit, and all other obligations and liabilities of Borrower
to Administrative Agent including all extensions, renewals, modifications,
rearrangements, restructures, replacements and refinancings of the
foregoing, whether or not the same involve modifications to interest rates
or other payment terms), whether now existing or hereafter created, absolute
or contingent, direct or indirect, joint or several, secured or unsecured,
due or not due, contractual or tortious, liquidated or unliquidated, arising
by operation of law or otherwise, or acquired by Administrative Agent
outright, conditionally or as collateral security from another, including
the obligation of Borrower to repay future advances by Administrative Agent,
whether or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Administrative Agent.
PBGC -- the Pension Benefit Guaranty Corporation.
PENSION BENEFIT PLAN -- any pension or profit-sharing plan which is covered
by Title I of ERISA and all other benefit plans, in each case in respect of
which a Covered Person or a Commonly Controlled Entity of such Covered
Person is an employer as defined in Section 3(5) of ERISA.
PERMITTED ACQUISITIONS -- any acquisition by Borrower or a Covered Person of
stock, membership interests, or other equity interests of another Person or
the assets of another Person permitted under Section 13.5.
ix
PERMITTED INDEBTEDNESS -- Indebtedness that Borrower is permitted under
Section 13.2 to incur, assume, or allow to exist.
PERMITTED INDIRECT OBLIGATIONS -- Indirect Obligations that Borrower is
permitted under Section 13.3 to create, incur, assume, or allow to exist.
PERMITTED INVESTMENTS -- Investments that Borrower is permitted under
Section 13.1 to make in other Persons.
PERMITTED SECURITY INTERESTS -- Security Interests that Borrower is
permitted under Section 13.4 to create, incur, assume, or allow to exist.
PERSON -- any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental
Authority, or other organization in any form that has the legal capacity to
xxx or be sued. If the context so implies or requires, the term Person
includes Borrower.
PRIME RATE -- on any day, the rate of interest per annum then most recently
established by Administrative Agent as its Prime Rate. Such rate is a
general reference rate of interest, may not be related to any other rate,
and may not be the lowest or best rate actually charged by Administrative
Agent to any customer or a favored rate and may not correspond with future
increases or decreases in interest rates charged by other lenders or market
interest rates in general.
PROFORMA FINANCIAL STATEMENTS -- the proforma financial statements referred
to in Section 8.1.2.
REDEMPTION/DISTRIBUTION -- is defined in Section 13.7.
REGULATION D, REGULATION T, REGULATION U and REGULATION X -- respectively,
Regulation D issued by the FRB, Regulation T issued by the FRB, Regulation U
issued by the FRB and Regulation X issued by the FRB.
REPORTABLE EVENT -- a reportable event as defined in Title IV of ERISA or
the regulations thereunder.
REPRESENTATIONS AND WARRANTIES -- The representations and warranties made by
any Covered Person with respect to itself and any other Covered Persons in
Section 10, and the representations and warranties made in any other Loan
Document or certificate, report, opinion or other document delivered by
Borrower, any Guarantor, or any other Covered Person pursuant to the Loan
Documents, as such representations and warranties are modified from time to
time as provided in Section 11.
REQUIRED LENDERS -- defined in Section 2.4.
RESPONSIBLE OFFICER -- as to any Person that is not an individual,
partnership, limited liability company or trust, the Chairman of the Board
of Directors, the President, the chief executive officer, the chief
operating officer, the Chief Financial Officer, the Treasurer, any Assistant
to the Treasurer, or any Vice President in charge of a principal business
unit; as to any partnership, any individual who is a general partner thereof
or any individual who has general management or administrative authority
over all or any principal unit of the partnership's business; as to any
limited liability company, any managing member, or manager, any individual
who has general management or administrative authority over all or any
principal unit of the limited liability company's business; and as to any
trust, any individual who is a trustee.
REVOLVING LOAN -- any Lender's pro-rata share of the Aggregate Revolving
Loan.
x
REVOLVING LOAN ADVANCE -- an Advance by Administrative Agent that is to be
funded by Lenders under the Aggregate Revolving Loan Commitment.
REVOLVING LOAN COMMITMENT -- the commitment of each Lender as stated in
Section 3.1.1. to fund Revolving Loan Advances.
REVOLVING LOAN MATURITY DATE -- the date when Borrower must repay the amount
of Aggregate Revolving Loan then outstanding as provided in Section 6.1.2.
REVOLVING LOAN UNUSED FEE -- the fee described in Section 5.2.
REVOLVING NOTE -- any note delivered to a Lender as required by Section
3.1.3 to evidence Borrower's obligation to repay such Lender's Revolving
Loan.
SECURITY INTEREST -- as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a
Contract, or by operation of law or statute (such as but not limited to a
statutory lien for work or materials), or as a result of a judgment, or
which arises under any form of preferential or title retention agreement or
arrangement (including a conditional sale agreement or a lease) that has
substantially the same economic effect as any of the foregoing; provided
however, that the term "Security Interest" is not intended to include a
notice filing by a lessor regarding ownership of property subject to a true
operating lease so long as such notice filing or any related agreement does
not contain a grant of a lien or security interest and does not cover
property or assets not subject to such true operating lease.
SELLER -- any Person who is a party to any Permitted Acquisition other than
Borrower or a Covered Person.
SMALL PERMITTED ACQUISITIONS -- is defined in Section 13.5.
SOLVENT -- as to any Person, such Person not being "insolvent" within the
meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (the "UFTA") or Section 3 of the Illinois Uniform
Fraudulent Transfer Act set forth in Section 160/3 of the Illinois Compiled
Statutes (1996) (the "Illinois UFTA"), (ii) such Person not having
unreasonably small capital, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the Illinois UFTA,
and (iii) such Person not being unable to pay such Person's debts as they
become due within the meaning of Section 548 of the Bankruptcy Code, Section
4 of the UFTA, or Section 5 of the Illinois UFTA.
STOCK DIVIDEND -- is defined in Section 13.7.
SUBSIDIARY -- as to any Person, another Person with respect to which more
than 40% of the outstanding shares of stock or other equity interests of
each class having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) is at the time owned by
such Person or by one or more Subsidiaries of such Person.
SURVIVING COMPANY -- as applicable, either (i) the Person that will own the
assets to be acquired from a Target Company in a Permitted Acquisition upon
the consummation thereof, or (ii) the survivor of the merger of an Acquiring
Company with the Target Company in a Permitted Acquisition upon the
consummation thereof.
xi
SWINGLINE ADVANCE -- an advance by Administrative Agent to Borrower under
the Swingline Commitment.
SWINGLINE COMMITMENT -- the commitment of Administrative Agent as stated in
Section 3.2.1 to make Swingline Advances.
SWINGLINE LOAN -- the from time to time outstanding principal balance of all
Swingline Advances.
TARGET COMPANY -- the Person whose assets or stock, membership interests, or
other equity interests will be acquired in a Permitted Acquisition upon the
consummation thereof, or if applicable, with which an Acquiring Company will
merge in a Permitted Acquisition upon the consummation thereof.
TAX -- as to any Person, any tax, duty, impost, deduction, charges,
withholdings, assessment, fee, or other charge 1evied by a Governmental
Authority (and all liabilities associated therewith) on the income or
property of such Person, including any interest or penalties thereon, and
which is payable by such Person.
THIS AGREEMENT -- this document (including every document that is stated
herein to be an appendix, exhibit or schedule hereto, whether or not
physically attached to this document).
UCC -- the Uniform Commercial Code as in effect from time to time in the
State of Illinois or such other similar statute as in effect from time to
time in Illinois or any other appropriate jurisdiction.
UMB -- UMB Bank, National Association, and its successors and assigns.
UMB LCS -- is defined in Section 3.4.
UNITED STATES -- when used in a geographical sense, all the states of the
United States of America and the District of Columbia; and when used in a
legal jurisdictional sense, the government of the country that is the United
States of America.
UPFRONT FEE -- the fee payable to Administrative Agent as required in
Section 5.1.
WAGE AND HOUR LAWS -- the Xxxxx-Xxxxx Act, the Service Contract Act, the
Contract Work Hours & Safety Standards Act and any other federal Law
governing wage compensation or hours of work.
WELFARE BENEFIT PLAN -- any plan described by Section 3(1) of ERISA.
xii
EXHIBIT 3
---------
LENDERS' COMMITMENTS AND PRO-RATA SHARES
-------------------------------------------------------------------------------------------
REVOLVING LOAN PRO-RATA
LENDER TOTALS COMMITMENT SHARES
-------------------------------------------------------------------------------------------
LaSalle Bank National $30,000,000.00 $30,000,000.00 42.857142858%
Association
-------------------------------------------------------------------------------------------
UMB Bank, National $20,000,000.00 $20,000,000.00 28.571428571%
Association
-------------------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. $20,000,000.00 $20,000,000.00 28.571428571%
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
AGGREGATES $70,000,000.00 $70,000,000.00 100.000000000%
-------------------------------------------------------------------------------------------
i
EXHIBIT 7.10
FORM OF ADVANCE REQUEST
Xxxxx Xxxxxx
LaSalle Bank National Association, as Administrative Agent
000 X. XxXxxxx
Xxxxxxx, XX 00000
Via Fax Transmission: (000) 000-0000
Dear Xxxxx:
Please effect the following transactions under our Loan Agreement dated as
of May 30, 2002, as amended from time to time. All movement of funds should
take place through our DDA # .
-----------
REVOLVER
----------
Base Rate Option (12:00 noon same day notification)
Effective Date:
---------------
Current Balance:
---------------
Advance/(Payment) Amt: (min. $500,000)
---------------
Ending Balance:
---------------
Swing Line (12:00 noon same day notification) (BASE RATE ONLY)
Effective Date:
---------------
Current Balance:
---------------
Advance/(Payment) Amt: (min. $500,000)
---------------
Ending Balance:
---------------
Eurodollar Rate Option 12:00 noon 3 business days notification -
limit 5 Interest Periods
Effective Date:
---------------
Maturing Amount:
---------------
Increase/(Decrease) Amt: (increments: $500,000)
---------------
Conversion from/(to) Prime:
---------------
New Eurodollar Amount: (min: $1,000,000)
---------------
Interest Period: (30, 60, 90, or 180 days)
---------------
Maturity Date: to be set by Bank
All-In Rate: to be set by Bank
Sincerely,
Xxxxxxxx Corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT 8.1.1
DOCUMENTS AND REQUIREMENTS LIST
DELIVER AND/OR EXECUTE ON EXECUTION DATE
1) Loan Agreement, together with all exhibits and schedules (including the
Disclosure Schedule)
2) $30,000,000 Revolving Note payable to LaSalle Bank National Association
3) $20,000,000 Revolving Note payable to UMB Bank, National Association
4) $20,000,000 Revolving Note payable to Xxxxx Fargo Bank, N.A.
5) $5,000,000 Swingline Note payable to LaSalle Bank National Association
6) Guaranty executed by Angelica Textile Services, Inc., a New York
corporation, Angelica Textile Services, Inc., a California corporation,
Southern Service Company, a California corporation, and Angelica Realty
Co., a California corporation.
7) Borrower's Closing Certificate.
8) Solvency Certificate for Borrower.
9) Notice of Borrowing/Disbursement Letter signed by Borrower.
10) Master Letter of Credit Agreement (LaSalle Bank standard form).
11) Payoff letter from:
a) Commerce Bank, N.A.,
b) United Missouri Bank, N.A.,
c) Prudential Insurance Company of America,
d) Nationwide Life Insurance Company,
e) American United Life Insurance Company,
f) Modern Woodmen of America, and
g) Aid Association for Lutherans.
12) Legal Opinion of ThompsonCoburn, Borrower's and each Guarantors' counsel.
13) Current Insurance Certificates for Borrower and each Covered Person
evidencing that Borrower and each Covered Person has in force
insurance meeting the applicable requirements of the Loan Agreement,
showing LaSalle Bank National Association, as administrative agent
for itself and the other lenders, as additional insured on all
liability policies.
14) Secretary's Certificate (certifying resolutions, Articles or Certificate
of Incorporation, Bylaws and Incumbency) for Borrower.
15) Secretary's Certificate (certifying resolutions, Articles or Certificate
of Incorporation, Bylaws and Incumbency) for Xxxxxxxx Textile Services,
Inc., a New York corporation.
i
16) Secretary's Certificate (certifying resolutions, Articles or Certificate
of Incorporation, Bylaws and Incumbency) for Xxxxxxxx Textile Services,
Inc., a California corporation.
17) Secretary's Certificate (certifying resolutions, Articles or Certificate
of Incorporation, Bylaws and Incumbency) for Southern Service Company, a
California corporation.
18) Secretary's Certificate (certifying resolutions, Articles or Certificate
of Incorporation, Bylaws and Incumbency) for Angelica Realty Co., a
California corporation.
19) Good Standing Certificates for Borrower from the Secretary of State of
Missouri.
20) Good Standing Certificates for Xxxxxxxx Textile Services, Inc., a New
York corporation from the Secretary of State of New York.
21) Good Standing Certificates for Angelica Textile Services, Inc., a
California corporation from the Secretary of State of California.
22) Good Standing Certificates for Southern Service Company, a California
corporation from the Secretary of State of California.
23) Good Standing Certificates for Angelica Realty Co., a California
corporation from the Secretary of State of California.
24) Initial Compliance Certificate for the financial covenants in Sections
14.3 and 14.4 but not Section 14.2 (pro-forma as the close of the fiscal
quarter closest to April 30, 2002).
25) UCC, tax lien, judgment lien, and pending suit searches for the
following:
a) XXXXXXXX CORPORATION
i) Secretary of State of Missouri
ii) St. Louis County, Missouri
iii) City of St. Louis, Missouri
b) XXXXXXXX TEXTILE SERVICES, INC. (UCC ONLY)
i) Secretary of State of New York
ii) Secretary of State of California
c) SOUTHERN SERVICE COMPANY (UCC ONLY)
i) Secretary of State of California
d) ANGELICA REALTY CO. (UCC ONLY)
i) Secretary of State of California
26) Current Financial Statements
ii
EXHIBIT 10
DISCLOSURE SCHEDULE OF BORROWER
i
EXHIBIT 12.11
FORM OF COMPLIANCE CERTIFICATE
TO: LaSalle Bank National Association, as Administrative Agent
This Compliance Certificate is furnished pursuant to that certain Loan
Agreement effective May 30, 2002 (as it may be amended, modified, restated
or replaced from time to time, the Loan Agreement), among Xxxxxxxx
Corporation, a Missouri corporation (Borrower), LaSalle Bank National
Association, as Administrative Agent for itself and the other Lenders
(Administrative Agent) and the Lenders as defined in the Loan Agreement
(Lenders). Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings defined in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the [CHIEF FINANCIAL OFFICER] [TREASURER] of Borrower.
2. I have reviewed the terms of the Loan Agreement and the
Loan Documents and I have made, or have caused to be made
under my supervision, a review of the transactions and
conditions of Borrower and each other Covered Person
during the accounting period covered by the attached
Financial Statements.
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any
condition or event which constitutes an Default or Event
of Default as of the date of this Compliance Certificate;
and to my knowledge all of the Representations and
Warranties (including those of each Guarantor in its
Guaranty) are true.
4.
5. Borrower and every other Covered Person is in compliance
with all of the covenants in the Loan Agreement, including
the financial covenants in Section 14, and Schedule II
attached hereto contains calculations based on Borrower's
financial statements and other financial records that show
Borrower's compliance with such financial covenants. The
calculations and the data upon which they are based are
believed by me to be complete and correct.
This Compliance Certificate, together with the Schedules hereto, is executed
and delivered this day of
---- ---------------------.
Xxxxxxxx Corporation, a Missouri corporation
By:
-----------------------------------------
Print Name:
---------------------------------
Title:
--------------------------------------
ii
SCHEDULE I TO COMPLIANCE CERTIFICATE
------------------------------------
See current Financial Statements.
SCHEDULE II TO COMPLIANCE CERTIFICATE
-------------------------------------
All calculations done in accordance with GAAP on a
consolidated basis, in accordance with the provisions of the Loan Agreement
and based on the period ended . Any inconsistencies
------------------
between the descriptions of the items set forth in this Schedule II and the
terms of any of Sections 14.1 through 14.4 shall be resolved in favor of the
terms set forth in Sections 14.1 through 14.4. Reference should be made to
Sections 14.1 through 14.4 of the Loan Agreement for more specific
instructions regarding the calculation periods and how the components of the
financial covenants should be calculated.
NOTE: BORROWER SHALL ALSO INCLUDE THE CALCULATION NECESSARY FOR THE
CALCULATIONS IN SECTION 4.6 AND SECTION 5.2.
I. EBITDA AND EBITDAR (for preceding four fiscal quarters):
(i) Net Income $
---------
(ii) Federal, State and Local Income Tax expense accrued
for as a liability $
---------
(iii) Interest Expense $
---------
(iv) Amortization of goodwill and other intangible assets
and depreciation expense taken or accrued for in
such period, without duplication $
---------
(v) Extraordinary non-cash losses in such period incurred
or accrued for in such period, without duplication $
---------
(vi) Prepayment Penalty on Existing Indebtedness $
---------
(vii) Losses from Discontinued Operations $
---------
(viii) Sum of Items (i), (ii), (iii), (iv), (v), (vi) and (vii) $
---------
(ix) Extraordinary income/gain in such period incurred
or accrued for in such period, without duplication $
---------
(x) Income from Discontinued Operations $
---------
(xi) Item (viii) minus Items (ix) and (x) EBITDA $
---------
(xii) EBITDAR: sum of Item (viii) plus rental expense
minus the sum of Items (ix) and (x) $
---------
II. MINIMUM FIXED CHARGES COVERAGE (SECTION 14.2)
A. EBITDAR for preceding four fiscal quarters per Item I $
---------
B. Fixed Charges for preceding four fiscal quarters:
1. Interest Expense $
---------
2. Sum of all scheduled principal payments on long term
Indebtedness of Borrower $
---------
i
3. Federal, State and Local Income Taxes expense paid $
---------
4. Stock Dividends and Redemptions/Distributions
paid or accrued for, without duplication $
---------
5. For each fiscal quarter (which represents a
pre-agreed to amount of maintenance capital
expenditures) $2,000,000
6. Rental expense
7. FIXED CHARGES (Sum of items 1 through 7) $
---------
C. Ratio of Item A to Item B.5. :1.0
---
D. Minimum Ratio required by Section 14.2 for such period :1.0
---
III. FUNDED INDEBTEDNESS TO EBITDA (SECTION 14.3)
A. Funded Indebtedness as of any date $
---------
B. EBITDA for preceding four fiscal quarters per Item I $
---------
C. Ratio of Item A to Item B $
---------
D. Maximum Ratio of Funded Indebtedness
to EBITDA permitted by Section 14.3 :1.0
---
IV. MINIMUM NET WORTH (SECTION 14.4)
A. Actual Net Worth $
---------
B. Minimum Net Worth Required by Section 14.4:
$112,600,000 plus an aggregate amount equal
----
to 50% of quarterly Net Income (but only if a
positive number, and with no reduction for losses)
for each completed fiscal quarter of Borrower
beginning with the fiscal quarter ended $
--------- ---------
V. PERMITTED ACQUISITIONS (SECTION 13.5)
A. Aggregate Purchase Price of all Acquisitions
since Effective Date $
---------
B. Aggregate Purchase Price of Permitted Acquisitions in
current Loan Year with negative EBITDA $
---------
"purchase price" includes, without limitation, any deferred
purchase price, seller notes, assumed Indebtedness, or
similar items.
ii
EXHIBIT 12.11.3
STATEMENT OF EXISTING REIMBURSEMENT OBLIGATIONS
i
EXHIBIT 18.4.1
FORM
ASSIGNMENT AND ACCEPTANCE
DATED: ___________, ______
Loan Agreement effective May 30, 2002 (as it may be amended,
modified, restated or replaced from time to time, the Loan Agreement) among
Xxxxxxxx Corporation, a Missouri corporation (Borrower), LaSalle Bank
National Association, as Administrative Agent for itself and the other
Lenders (Administrative Agent), and the Lenders as defined in the Loan
Agreement (Lenders). Terms defined in the Loan Agreement are used herein
with the same meaning.
The Assignor and the Assignee referred to on Schedule 1 agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly
set forth herein, and the Assignee hereby purchases and assumes
from the Assignor, an interest in and to the Assignor's rights and
obligations under the Loan Agreement and the other Loan Documents
as of the date hereof equal to the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the Loan
Agreement and the other Loan Documents. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of
the Loans owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Covered
Person or the performance or observance by any Covered Person of any of
its obligations under the Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note (s)
held by the Assignor and requests that Administrative Agent exchange
such Note (s) for new Note (s) payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Loan
Agreement, together with copies of the financial statements referred to
in Section thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon Administrative Agent, the
Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan
Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under
the Loan Agreement as are delegated to Administrative Agent by the
terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of
i
the obligations that by the terms of the Loan Agreement are required
to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section .
4. Following the execution of this Assignment and Acceptance, it will
be delivered to Administrative Agent for acceptance and recording
by Administrative Agent. The effective date for this Assignment and
Acceptance (the Effective Date) shall be the date of acceptance
hereof by Administrative Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Loan
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Loan Agreement.
6. Upon such acceptance and recording by Administrative Agent, from
and after the Effective Date, Administrative Agent shall make all
payments under the Loan Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Loan Agreement and
the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Illinois.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of
Schedule 1 to this Assignment and Acceptance by telecopier shall be
effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
ii
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: %
---------
Assignee's Commitment: $
--------
Aggregate outstanding principal
amount of Loans assigned: $
--------
Principal amount of Note payable to Assignee: $
--------
Principal amount of Note payable to Assignor: $
--------
Effective Date (if other than date of
acceptance by Administrative Agent): * ,
------------------ --------
[NAME OF ASSIGNOR], as Assignor
By:
--------------------------------
Title:
-----------------------------
Dated: ,
----------------- ----------
[NAME OF ASSIGNEE], as Assignee
By:
--------------------------------
Title:
-----------------------------
Applicable Lending Office:
iii
*This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to Administrative Agent.
Accepted [and Approved]
This day of ,
--- ---------------- -------
LaSalle Bank National Association, as Administrative Agent
By:
----------------------------------------
Title:
-------------------------------------
Accepted [and Approved]**
This day of ,
--- ---------------- -------
, for itself and each of the Borrower
----------------
By:
----------------------------------------
Title:
-------------------------------------
**Approval of Borrower required only if there is no Existing Default.
iv
