917252.5
AMENDED AND RESTATED
LOAN AGREEMENT
among
BANK OF AMERICA, N.A.
formerly NationsBank, N.A., formerly The Boatmen's National Bank of St. Louis
as "Lender"
and
XXXXXXX, INC.,
XXXXXXX/STC, INC.,
XXXXXXX WIRELESS, INC.,
and
XXXXXXX OCS, INC.
as "Borrower"
Effective February 1, 2002
AMENDED AND RESTATED
LOAN AGREEMENT
This agreement (this "Agreement") is executed as of February 1, 2002, among
XXXXXXX, INC., XXXXXXX/STC, INC., XXXXXXX WIRELESS, INC., and XXXXXXX OCS, INC.,
as Borrowers and BANK OF AMERICA, N.A., as Lender, and amends and restates the
Loan Agreement effective June 25, 1996, as amended to the Effective Date hereof,
among Borrowers and Lender (the "Original Loan Agreement").
In consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Borrower and Lender
amend and restate the Original Loan Agreement to read entirely as follows:
1. Effective Date.
This Agreement is effective February 1, 2002.
2. Definitions and Rules of Construction.
2.1. Listed Definitions.
Capitalized terms defined in the Glossary and Index of Defined Terms
attached hereto as Exhibit 2.1 shall have such defined meanings wherever
used in this Agreement and the other Loan Documents.
2.2. Other Definitions.
If a capitalized term used in this Agreement is not defined in the Glossary
and Index of Defined Terms, it shall have such meaning as defined elsewhere
herein, or if not defined elsewhere herein, the meaning defined in the UCC.
2.3. References to Covered Persons.
The words "Covered Person", "a Covered Person", "any Covered Person", "each
Covered Person" and "every Covered Person" refer to Borrower and each of
its Subsidiaries separately. The words "Covered Persons" refer to Borrower
and its Subsidiaries collectively.
2.4. References to Borrower.
The word "Borrower" refers to XxXxxxx, Inc., XxXxxxx/STC, Inc., XxXxxxx
Wireless, Inc., and XxXxxxx OCS, Inc., both separately and collectively,
and their Obligations and liabilities under the Loan Documents are joint
and several.
2.5. Accounting Terms.
Unless the context otherwise requires, accounting terms herein that are not
defined herein shall be calculated under GAAP. All financial measurements
contemplated hereunder respecting "Borrower" shall be made and calculated
for Borrower and all of its Subsidiaries (including XxXxxxx Properties,
Inc.), unless otherwise expressly provided herein, on a consolidated basis
in accordance with GAAP.
2.6. "Satisfactory".
Wherever herein a document or matter is required to be satisfactory to
Lender, unless expressly stated otherwise such document must be
satisfactory to Lender in both form and substance, and unless expressly
stated otherwise, Lender shall have the absolute discretion to determine
whether the document or matter is satisfactory.
2.7. Computation of Time Periods.
In the computation of periods of time from a specified date to a later
specified date, 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 shall be 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,
whether pursuant to a Permitted Acquisition or otherwise, 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, and the word "Exhibit " refers to an
Exhibit to this Agreement unless it expressly refers to something else;
(viii) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended or
modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof; 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.
3. Lender's Commitments.
3.1. Revolving Commitments.
3.1.1. Revolving Advances.
Subject to the limitations in Section 3.1.2 and elsewhere herein,
Lender commits to make available from the Effective Date to the
Maturity Date, a revolving credit facility of $15,000,000, or such
lesser Dollar amount to which it may have been changed as provided
herein, available as Revolving Advances made from time to time as
provided herein. Subject to the limitations in Section 3.1.2 and
elsewhere herein, payments and prepayments that are applied to reduce
the Revolving Loans may be reborrowed. Borrower may reduce the
Revolving Commitment in whole multiples of $1,000,000 at any time and
from time to time, but only if (i) Borrower gives Lender written
notice of Borrower's intention to make such reduction at least one
Business Day prior to the effective date of the reduction, and (ii)
Borrower makes on the effective date of the reduction any payment on
the Revolving Loans required under Section 7.3 as a consequence of the
reduction. Any such reduction of the Revolving Commitment shall be
permanent.
3.1.2. Limitation on Revolving Advances.
No Revolving Advance will be made which would result in the Revolving
Loans exceeding the Maximum Available Amount and no Revolving Advance
will be made on or after the Maturity Date. Lender may, however, in
its absolute discretion make Revolving Advances which would result in
the Revolving Loans exceeding the Maximum Available Amount, 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 Advances
thereafter. At any time after an Event of Default occurs, the
Revolving Commitment may be canceled as provided in Section 17.2.1.
The "Maximum Available Amount" shall be a Dollar amount equal to (A)
the lesser of: (i) the Borrowing Base; or (ii) the amount of the
Revolving Commitment minus (B) the Letter of Credit Exposure (except
to the extent that such Revolving Advance will be used immediately to
reimburse Lender for unreimbursed draws on a Letter of Credit.
3.1.3. Revolving Note.
The obligation of Borrowers to repay Lender's Revolving Loans shall be
evidenced by one promissory note payable to the order of Lender in a
maximum principal amount equal to its Revolving Commitment and
otherwise satisfactory to Lender.
3.1.4. Borrowing Base.
The "Borrowing Base" on any date for any Revolving Advance shall be
the sum of:
3.1.4.1.
85% of the total outstanding principal balance of Eligible
Accounts as of the close of business on such date, or as
certified in the Borrowing Base Certificate most recently
furnished to Lender as required in Section 14.14, whichever is
less; plus
3.1.4.2.
An amount equal to the sum of (i) 50% of the value of all
Eligible Inventory that is finished goods, and (ii) 30% of the
value of all Eligible Inventory that is raw materials or work-
in-process at the close of business on such date, or as
certified in the Borrowing Base Certificate most recently
furnished to Lender as required in Section 14.14, whichever is
less.
For purposes of calculating the Borrowing Base: (i) all Inventory of
Borrower shall be valued at the lower of cost or market on a first-in-
first-out basis; (ii) raw materials and work-in-process shall be
deemed to be equal to total Eligible Inventory less unapplied progress
payments and inventory reserves as regularly maintained by Borrower;
and (iii) finished goods shall be deemed to be equal to the estimated
cost of Borrower's unbilled jobs.
3.1.5. Eligible Accounts.
"Eligible Accounts" include all Accounts of Borrower; provided,
however, that the following classes of Accounts will not be Eligible
Accounts, unless approved in writing by Lender in each case: (i) any
Account with respect to which Lender does not have a valid and
enforceable, first priority, perfected Security Interest; (ii) any
Account which remains unpaid as of 90 days after the original date of
the applicable invoice; (iii) any Account of a single Account Debtor
if 25% or more of the balances due on all Accounts of such Account
Debtor are ineligible under clause (i) or (ii); (iv) any Account with
respect to which the Account Debtor is (a) an Affiliate or employee of
Borrower or (b) a supplier, creditor, sales representative or
distributor of Borrower; provided, however that such Account shall be
ineligible only to the extent of any payable due and owing by Borrower
in favor of such Account Debtor; (v) any Account as to which the
perfection of lender's Security Interest is governed by any federal,
state or local statutory requirements other than those of the UCC or
the Claims Act; (vii) any Account with respect to which the Account
Debtor is the United States of America or any department, agency,
public corporation or other instrumentality thereof, unless filings
and acknowledgements in accordance with the Claims Act and any other
steps necessary to perfect Lender's Security Interest have been
complied with to Lender's satisfaction; (viii) any Account with
respect to which the Account Debtor is not organized under the laws of
the United States or Canada and does not maintain its chief executive
office within either the United States or Canada and any Account with
respect to which the Account Debtor is the government of any foreign
country or any municipality or other political subdivision thereof, or
any department, agency, public corporation or other instrumentality
thereof, unless either (a) the creditor with respect to such Account
and Lender are beneficiaries of a letter of credit in the amount of
such Account that secures such Account Debtor's payment on such
Account and is in form and substance satisfactory to Lender and has
been issued by a bank satisfactory to Lender and, if so required by
Lender, confirmed by a bank satisfactory to Lender, or (b) the
creditor with respect to such Account has obtained for the benefit of
Lender F.C.I.A. insurance insuring such Account Debtor's payment of
such Account; (ix) any Account with respect to goods or services whose
delivery or performance has been rejected by the Account Debtor or
whose earlier acceptance has been revoked; (x) any Account, the goods
giving rise to which have not been shipped and delivered to and
accepted by the Account Debtor or the services giving rise to which
have not been performed by Borrower, (xi) any Account arising from the
delivery of goods or performance of services for which an invoice has
not been sent to the Account Debtor within five days after such
delivery or performance; (xii) any Account owing by an Account Debtor
that is the subject of a bankruptcy or similar insolvency proceeding,
has made an assignment for the benefit of creditors, has acknowledged
that it is unable to pay its debts as they mature, or whose assets
have been transferred to a receiver or trustee, or who has ceased
business as a going concern or, if an individual, who is dead or has
been judicially declared incompetent; (xiii) any Account with respect
to which the Account Debtor's obligation to pay the Account is
conditional upon the Account Debtor's approval or is otherwise subject
to any repurchase obligation or return right, as with sales made on a
xxxx-and-hold, guarantied sale, sale-and-return, sale on approval
(except with respect to Accounts in connection with which Account
Debtors are entitled to return Inventory solely on the basis of the
quality of such Inventory) or consignment basis or, to the extent of
any dilution resulting therefrom, Accounts arising from a sale
involving any cash discount other than cash discounts offered by
Borrower in the ordinary course of business, contra-account, credit
memorandum or other similar factor; (xiv) any Account owing by an
Account Debtor that has disputed liability or made any claim with
respect to any other Account due from such Account Debtor, or that has
any right of setoff against such Account, or to which Borrower is
indebted in any way, but only to the extent of such indebtedness,
setoff, dispute or claim; (xv) any Account subject to a chargeback
from a volume discount or an advertising discount, but only to the
extent of such chargeback or discount; (xvi) any Account owing by an
Account Debtor whose Indebtedness to Borrower exceeds a credit limit
satisfactory to Lender; (xvii) any Account of an Account Debtor with
respect to particular goods still in the possession of the creditor on
the Account or included in Inventory of such creditor and against
which the Account Debtor has filed a financing statement under the UCC
or has obtained or purported to have obtained a Security Interest;
(xiii) any Account with respect to which the delivery of goods or
performance of services is bonded; (xix) any Account as to which
Lender does not have the right or ability to obtain direct payment to
Lender; (xx) any Account with respect to which any of the
representations, warranties, covenants and agreements contained in any
of the Loan Documents are not or have ceased to be complete and
correct or have been breached; (xxi) any Account with respect to
which, in whole or in part, a check or other instrument for the
payment of money has been received, presented for payment and returned
uncollected for any reason; (xxii) any Account which represents a
progress billing or as to which Borrower has extended the time for
payment without the consent of Lender (for purposes hereof, "progress
billing" being any invoice for goods sold or leased or services
rendered under a contract or agreement pursuant to which the Account
Debtor's obligation to pay such invoice is conditioned upon Borrower's
completion of any further performance under the contract or
agreement); (xxiii) any Account which is evidenced by a promissory
note or other instrument or by chattel paper or which has been reduced
to judgment; (xxiv) any Account which arises out of a sale not made in
the ordinary course of Borrower's business; and (xxv) any Account
which is not invoiced (and dated as of the date of such invoice) and
sent to the Account Debtor within 5 days after delivery of the
underlying goods to or performance of the underlying services for such
Account Debtor.
3.1.6. Eligible Inventory.
"Eligible Inventory" includes all Inventory, except Inventory (i) that
is obsolete, not in good condition, or not either currently usable or
currently saleable in the ordinary course of Borrower's business; (ii)
that is not subject to a valid and enforceable, first priority,
perfected Security Interest in favor of Lender; (iii) that is stored
at a location other than the locations listed in the Disclosure
Statement, unless approved by Lender in writing; (iv) that is not
satisfactory to Lender because of its age, condition, type, or
quantity, (v) to which Borrower does not have lawful and absolute
title, (vi) to which Borrower does not have the full and unqualified
right to assign and grant a Security Interest to Lender as security
for the Loan Obligations, (vii) which is subject to any Security
Interest other than Permitted Security Interests and (viii) with
respect to which any of the representations, warranties, covenants and
agreements contained in any of the Loan Documents are not or have
ceased to be complete and correct or have been breached.
3.2. Letter of Credit Commitment.
Lender commits to issue standby letters of credit and commercial letters of
credit for the account of Borrower from time to time from the Effective
Date to the Maturity Date, but only in connection with transactions
reasonably satisfactory to Lender and only if the Letter of Credit Exposure
will not as a result of such issuance exceed the lesser of (a) $3,000,000
and (b) any excess of the Maximum Available Amount over the Revolving
Loans. The expiration date of any Letter of Credit will not be more than
one year after its issuance date and in no event will be later than the
Maturity Date.
4. Interest; Yield Protection.
4.1. Interest on the Loans.
Each of the Loans shall bear interest at a rate designated by Borrower as
provided herein that is equal to either (i) the LIBO Rate plus the
applicable LIBOR Margin determined from the following table; or (ii) the
Alternate Base Rate plus the applicable Alternate Base Rate Margin
determined from the following table.
Level Senior Applicable Applicable
Funded LIBOR Alternate
Debt to Margin Base Rate
EBITDA Margin
Ratio
-------- --------- ---------- ----------
-- ------ ---- --
I >2.25 2.25% .75%
II < 2.25 2.00% .50%
and >
1.75
III < 1.75 1.75% .25%
and >
1.25
IV < 1.25 1.50% .00%
and >
0.75
V < 0.75 1.25% .00%
The "Alternate Base Rate" shall be the higher of (i) the Prime Rate and
(ii) the Federal funds rate plus .50% and shall change as and when the
Prime Rate or Federal funds rate, as applicable, changes. The "LIBO Rate"
shall be the interest rate per annum equal to the quotient (rounded to the
nearest 0.001%) of
(i) the rate at which Dollar deposits in immediately available funds,
approximately equal in amount to the Loans and for a maturity equal to the
applicable Interest Period, are offered or available in the London
Interbank Market for Eurodollars as of 11:00 a.m. (London time) two
Business Days before the first day of the applicable Interest Period as
reported on Telerate Screen LIBO page 3750,
divided by
(ii) a number equal to one minus the decimal equivalent of the
aggregate of the maximum rates during the applicable Interest Period of all
reserve requirements (including, without limitation, marginal, emergency,
supplemental and special reserves), established by the FRB or any other
Governmental Authority to which any Lender is subject, in respect of
"Eurocurrency liabilities" as referred to in Regulation D, including but
not limited to those imposed under Regulation D. (The entire amount of a
Loan shall be deemed to constitute a Eurocurrency liability if it is
subject to LIBOR Accrual and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions
or offsets which may be available from time to time to any Lender under
Regulation D.) The LIBO Rate shall be adjusted automatically on and as of
the effective date of any change in any such reserve requirements.
Until Lender receives Borrowers' Compliance Certificate for the first
fiscal quarter of Borrower ended after the Effective Date, the LIBOR Margin
and Alternate Base Rate Margin in Level IV of the above table shall be
applicable. Thereafter, the applicable LIBOR Margin and applicable
Alternate Base Rate Margin, for any fiscal quarter, shall be the applicable
rate per annum set forth in the table above opposite the ratio of Senior
Funded Debt to EBITDA determined as of the last day of the immediately
preceding fiscal quarter. Any changes in the LIBOR Margin and Alternate
Base Rate Margin shall become applicable on the first day following the day
when Borrower delivers its Financial Statements for its fiscal quarter just
ended to Lender as required in Section 14.13.2. If Borrower does not
deliver its Financial Statements to Lender within the period required by
Section 14.13.2, the highest possible Alternate Base Rate Margin and
highest possible LIBOR Margin shall become applicable as of the last day of
such quarter and shall remain applicable until Borrower delivers such
Financial Statements to Lender.
4.2. Interest Periods.
If Borrower designates a Revolving Loan to be subject to LIBOR Accrual,
Borrower shall also select an Interest Period to be applicable to the Loan.
The Interest Period shall be either a one-, two-, three-, or six-month
period.
4.3. Conversion of a Loan.
Borrower may (i) at any time convert a Loan from Alternate Base Rate
Accrual to LIBOR Accrual, or (ii) at the end of any Interest Period if the
Loan is subject to LIBOR Accrual, continue the Loan under LIBOR Accrual for
an additional Interest Period or convert the Loan to Alternate Base Rate
Accrual. To cause any conversion or continuation, Borrower shall give
Lender, prior to 11:00 a.m., St. Louis time, two (2) Business Days prior to
the date the conversion or continuation is to be effective (the "Conversion
Date"), a written request (which may be mailed, personally delivered or
telecopied as provided in Section 19.1) (a "Notice of
Conversion/Continuation") (i) specifying whether a conversion or
continuation is requested, (ii) in the case of a conversion, specifying
whether the Loan is to be subject to LIBOR Accrual or Alternate Base Rate
Accrual upon the conversion, and (iii) in the case of conversion to or
continuation of LIBOR Accrual, specifying the Interest Period therefor. If
a Notice of Conversion/Continuation is not made by 11:00 a.m. St. Louis
time on the second Business Day preceding the last day of the Interest
Period and the Loan is subject to LIBOR Accrual, then Borrower shall be
deemed to have timely given a Notice of Conversion/Continuation to Lender
requesting to convert the Loan to Alternate Base Rate Accrual. If the Loan
is subject to LIBOR Accrual, any conversion or continuation shall become
effective only on the day following the last day of the current Interest
Period.
4.4. 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.
4.5. Computation.
Interest accruing at the Alternate Base Rate shall be computed for the
actual days elapsed over a 365/366 day year. All other calculations of
interest and fees shall be computed for the actual days elapsed over a year
deemed to consist of 360 days.
4.6. Rate After Maturity.
Borrower shall pay interest on the Revolving Loans after their Maturity,
and (at the option of Lender) on the Revolving Loans and on the other Loan
Obligations after the occurrence of an Event of Default, at a rate per
annum equal to 2% plus the Alternate Base Rate.
4.7. Taxes on Payments.
If any Tax is required to be withheld or deducted from, or is otherwise
payable by Borrower in connection with, any payment due from Borrower to
any Lender under the Loan Documents, Borrower (i) shall, if required,
withhold or deduct the amount of such Tax from such payment and, in any
case, pay such Tax to the appropriate taxing authority in accordance with
applicable Law and (ii) shall pay to Lender, as applicable, (a) such
additional amounts as may be necessary so that the net amount received by
Lender with respect to such payment, after withholding or deducting all
Taxes required to be withheld or deducted, is equal to the full amount
payable under the Loan Documents, and (b) an amount equal to all Taxes
payable by Lender as a result of payments made by Borrower (whether to a
taxing authority or to Lender) pursuant to this Section. If any Tax is
withheld or deducted from, or is otherwise payable by Borrower in
connection with, any payment due to Lender under the Loan Documents,
Borrower shall, within 30 days after the date of such payment, furnish to
Lender, as applicable, the original or a certified copy of a receipt for
such Tax from the applicable taxing authority. If any payment due to
Lender under the Loan Documents is or is expected to be made without
withholding or deducting therefrom, or otherwise paying in connection
therewith, any Tax payable to any taxing authority under circumstances that
would lead Lender to reasonably believe such withholding or deduction is
required, Borrower shall, within 30 days after any request from Lender, as
applicable, furnish to Lender a certificate from such taxing authority, or
an opinion of counsel acceptable to Lender, in either case stating that no
Tax payable to such taxing authority was or is, as the case may be,
required to be withheld or deducted from, or otherwise paid by Borrower in
connection with, such payment.
4.8. Compensation for Increase In Costs of Loans Subject to LIBOR Accrual.
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 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 Lender to any Tax with respect to any Loans subject to LIBOR
Accrual or its obligation to make Loans subject to LIBOR Accrual, or
changes the basis of taxation of any amounts payable to Lender under this
Agreement in respect of any Loans subject to LIBOR Accrual (other than
Taxes imposed on the overall net income of Lender by the jurisdiction in
which Lender has its principal office or the jurisdiction where the Lending
Office is located); or
(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 LIBO Rate) relating to any extensions
of credit or other assets of, or any deposits with or other liabilities or
commitments of, Lender, including the Revolving Commitment of Lender
hereunder; or
(iii) imposes on Lender or on the United States market for certificates
of deposit or the London interbank market any other condition affecting
this Agreement, the Revolving Commitment or the 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 Lender of
making, converting into, continuing, or maintaining any Loans or to reduce
any sum received or receivable by Lender under this Agreement or its Note
with respect to such Loans, then Borrower shall pay to Lender on demand
such amount or amounts as will compensate Lender for such increased cost or
reduction. If Lender requests compensation by Borrower under this Section,
Borrower may, by notice to Lender, suspend the obligation of 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; provided, however, that such suspension shall not affect the right
of Lender to receive the compensation so requested.
4.9. Capital Adequacy Reimbursement.
If, after the Effective Date, 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
Lender as a consequence of Lender's obligations hereunder to a level below
that which Lender 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 Lender such additional amount or amounts as will compensate Lender for
such reduction.
4.10. 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 4.10, 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 17.2.2,
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 17.2.2, any such excess that has been paid by Borrower shall be
applied to the Loan Obligations as provided in Section 17.2.9; and (iv) the
effective rate of interest shall be deemed automatically reduced to the
maximum rate permitted by Law.
5. Fees.
5.1. Commitment Fee.
Borrower shall pay to Lender a "Commitment Fee" calculated by applying the
daily equivalent of the Commitment Fee Rate to the Unused Revolving
Commitment on each day before the Maturity Date. The "Commitment Fee Rate"
shall be 0.20% until the Effective Date and 0.25% thereafter. The "Unused
Revolving Commitment" on any day shall be an amount equal to the Revolving
Commitment minus the sum of the amounts of the Revolving Loans and the
Letter of Credit Exposure. The Commitment Fee shall be payable on the
Effective Date and thereafter quarterly in arrears on the first day of each
calendar quarter and on the Maturity Date.
5.2. Letter of Credit Fees.
Borrower shall pay to Lender a "Letter of Credit Fee" for each Letter of
Credit issued by Lender. The Letter of Credit Fee for a particular standby
Letter of Credit shall be calculated by applying the daily equivalent of
the applicable LIBOR Margin applicable under Section 4.1 to the undrawn
amount of such Letter of Credit for each day to its stated expiration. The
Letter of Credit Fee for a particular commercial Letter of Credit shall be
calculated using such rate or rates as are then customarily charged by
Lender for commercial letters of credit. Any Letter of Credit Fee due
shall be payable quarterly in arrears, commencing on the first day of the
first calendar quarter beginning after the Letter of Credit is issued and
continuing on the first day of each calendar quarter thereafter. Other,
customary fees shall be payable in accordance with Lender's practice at the
time, and agreed fees shall be payable when agreed.
6. Scheduled Payments.
6.1. Maturity Date.
Borrower shall repay the Revolving Loans and all unpaid accrued interest
thereon on May 31, 2003.
6.2. Interest Payments Before Maturity Date.
While a Loan is subject to Alternate Base Rate Accrual, Borrower shall pay
interest accrued thereon monthly in arrears, beginning on the first
Business Day of the first calendar month following the Effective Date, and
continuing on the first day of each calendar month thereafter until the
Maturity Date. While a Loan is subject to LIBOR Accrual, Borrower shall,
until the Maturity Date, pay interest accrued thereon in arrears at the end
of the applicable Interest Period, and in addition, if the Interest Period
is longer than three months, quarterly on the last Business Day of each
calendar quarter ended during such Interest Period.
7. Prepayments and Reduction of Revolving Commitment.
7.1. Voluntary Prepayments.
Borrower may prepay the Revolving Loans in whole or in part at any time
without penalty or premium, but only if (i) Borrower gives Lender written
notice (which may be mailed, personally delivered or telecopied as provided
in Section 19.1) of Borrower's intention to make such prepayment at least
one Business Day prior to tendering the prepayment, (ii) the total amount
of the prepayment is a whole multiple of $10,000, and (iii) Borrower pays
any accrued interest on the amount prepaid at the time of such prepayment.
Additionally, if the prepayment is of LIBOR borrowings, Borrower must
reimburse Lender's breakage and deployment costs.
7.2. Mandatory Prepayments.
7.2.1. Proceeds from Sales of Assets.
If Borrower 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 Lender, to be applied to
reduce the Revolving Loans, 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 from the net proceeds of any such sale of a
capital asset to the extent such net proceeds are expended by Borrower
within 90 days of completion of the sale for replacement of such asset
by another asset of comparable type and utility and such expenditure
will not result in Borrower exceeding the limits for Capital
Expenditures in Section 16.2.
7.2.2. Indebtedness.
The Revolving Loans shall be prepaid by an amount equal to 100% of (i)
the net cash proceeds from all Indebtedness of Borrower for borrowed
money incurred after the Effective Date and (ii) the gross proceeds
from the issuance of any debt securities, or warrants or options
therefor, by Borrower, less reasonable brokers' and underwriters' fees
and commissions and other reasonable issuance expenses.
7.2.3. Proceeds from Sale of Securities.
If after the Effective Date Borrower issues any equity securities, or
warrants or options therefor, Borrower shall promptly after such sale
make a payment to Lender to be applied to reduce the Revolving Loans,
in an aggregate amount equal to the 50% of the gross proceeds
therefrom less reasonable brokers' and underwriters' fees and
commissions and other reasonable issuance expenses.
7.2.4. Maximum Available Amount Exceeded.
If at any time the outstanding principal amount of the Revolving
Loans, together with the Letter of Credit Exposure, at any time
exceeds the Borrowing Base, whether as a result of optional Revolving
Advances by Lender as contemplated in Section 3.1.2 or otherwise,
Borrower shall, within five Business Days after demand by Lender make
a prepayment in the amount of the excess. Each such prepayment will
be applied by Lender to reduce prorata all Revolving Loans then
subject to Alternate Base Rate Accrual, and then to reduce the
Revolving Loans subject to LIBOR Accrual in the order that their then
effective Interests Periods will expire.
7.3. Manner of Payments and Timing of Application of Payments.
7.3.1. Payment Requirement.
Unless expressly provided to the contrary elsewhere herein, each
payment on the Loan Obligations shall be made to Lender as required
under the Loan Documents at the Lending Office. All such payments
shall be made in Dollars on the date when due, without deduction, set-
off or counterclaim.
7.3.2. Application of Payments and Proceeds.
All payments received by Lender in immediately available funds at or
before 2:00 p.m., St. Louis time, on a Business Day will be applied to
the relevant Loan Obligation on the same day. Such payments received
on a day that is not a Business Day or after 2:00 p.m. on a Business
Day will be applied to the relevant Loan Obligation on the next
Business Day. If there is an Existing Default, Lender may apply, and
reverse and reapply, payments and proceeds of Collateral to the Loan
Obligations in such order and manner as Lender determines in its
absolute discretion.
7.4. Direct Debit.
Interest and fees may be deducted automatically by Lender on the due date
from Borrower's account number 100101211467 with Lender, or such other of
Borrower's accounts with Lender as Borrower may designate in writing.
Lender will debit the account before 2:00 p.m. St. Louis time on the dates
the payments become due. Borrower shall maintain sufficient funds in the
designated account for Lender to make such automatic debits on the dates
when contemplated hereunder; but if there are insufficient funds in the
designated account on the date Lender enters a debit, the debit will be
reversed and the payment will be treated as never having been made.
7.5. Returned Instruments.
If a payment is made by check, draft or other instrument and the check,
draft or other instrument is returned unpaid, the application of the
payment to the Loan Obligations will be reversed and will be treated as
never having been made.
7.6. Compelled Return of Payments or Proceeds.
If Lender is for any reason compelled to surrender any payment or any
proceeds of Collateral because such payment or the application of such
proceeds 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 Lender, and shall indemnify Lender for and hold 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 Lender may take in reliance upon its receipt of any such
payment or proceeds. Any such contrary action so taken by Lender shall be
without prejudice to 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 irrevocable. The provisions of this
Section shall survive termination of the Revolving Commitment and the
payment and satisfaction of all of the Loan Obligations.
7.7. Due Dates Not on Business Days.
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; provided, however, that if the next Business Day
would be in the next calendar month, such payment shall instead be due on
the immediately preceding Business Day.
8. Procedure for Obtaining Advances and Letters of Credit.
8.1. Revolving Advances.
Borrower may request Revolving Advances by submitting a request for a
Revolving Advance to Lender. Every request for a Revolving Advance shall
specify a date when the Revolving Advance is requested to be made (the
"Advance Date") and shall be irrevocable. A request for a Revolving
Advance received by Lender on a day that is not a Business Day or that is
received by Lender after 11:00 a.m. (St. Louis time) on a Business Day
shall be treated as having been received by Lender at 11:00 a.m. (St. Louis
time) on the next Business Day. Provided that all conditions precedent
herein to a requested Revolving Advance have been satisfied, Lender will
make the amount of such requested Revolving Advance available to Borrower
on the applicable Advance Date in immediately available funds in Dollars at
the Lending Office. Such funds will be deposited in an account of
Borrower's at the Lending Office unless Borrower gives Lender contrary
specific disbursement instructions satisfactory to Lender.
8.2. Lender's Right to Make Other Revolving Advances.
8.2.1. Payment of Loan Obligations.
Lender shall have the right to make Revolving Advances at any time and
from time to time to cause timely payment of any of the Loan
Obligations. Lender will give notice to Borrower after any such
Revolving Advance is made. Any such Revolving Advance shall
immediately become a Revolving Loan subject to Alternate Base Rate
Accrual.
8.2.2. Payments to Other Creditors.
If Lender is obligated to reimburse or pay to any creditor of Borrower
any amount in order to (i) obtain a release of such creditor's
Security Interest in any of Collateral, or (ii) otherwise satisfy
Borrower's obligations to such creditor to the extent not irrevocably
satisfied by the initial Revolving Advance, then Lender may make
Revolving Advances for that purpose and any such Revolving Advance
shall immediately become a Revolving Loan subject to Alternate Base
Rate Accrual.
8.3. Letters of Credit.
Borrower may request the issuance of a Letter of Credit by submitting a
request for issuance of a Letter of Credit to Lender and executing the
reimbursement agreement required under Section 11.1 no less than five
Business Days prior to the requested issue date for such Letter of Credit.
8.4. Amount, Number, and Purpose Restrictions on Revolving Advances.
No Revolving Advance will be made unless the amount thereof is at least
$100,000. On any one day, no more than one Revolving Advance will be made
pursuant to an advance request. Advances will only be made for the
purposes permitted in Section 14.1.
8.5. Each Request for a Revolving Advance a Certification.
Each submittal by Borrower of a request for a Revolving Advance shall
constitute a certification by Borrower that (i) there is no Existing
Default, (ii) all representations and warranties of Borrower in this
Agreement are then true, with such exceptions as have been disclosed to
Lender in writing by Borrower, and will be true on the Advance Date, as if
then made, with such exceptions as have been disclosed to Lender in writing
by Borrower, except that with respect to the representations and warranties
made regarding Financial Statements or financial data, such representations
and warranties shall be deemed made with respect to the most recent
Financial Statements and other financial data delivered by Borrower to
Lender, and (iii) all conditions herein and in the other Loan Documents to
the making of the requested Advance have been satisfied.
8.6. Requirements for Every Advance Request.
Only a request (which may be oral or in writing) from a Borrowing Officer
to Lender that specifies the amount of the Advance to be made, whether the
Advance is to become a Revolving Loan subject to LIBOR Accrual or Alternate
Base Rate Accrual, the first Interest Period therefor if it is to become a
Loan subject to LIBOR Accrual, and the Advance Date shall be treated as a
request for a Revolving Advance.
8.7. 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 Lender
that specifies the amount, requested issue date (which shall be a Business
Day and in no event later than 180 days before the 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.
8.8. Exoneration of Lender.
Lender shall not incur any liability to Borrower for treating a request
that meets the express requirements of Section 8.6 or Section 8.7 as a
request for an Advance or issuance of a Letter of Credit, as applicable, if
Lender believes in good faith that the Person making the request is a
Borrowing Officer. Lender shall not 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 Lender believes in good faith that
the Person making the request is not a Borrowing Officer.
9. Security and Guaranties.
The payment and performance of the Loan Obligations shall be secured by the
following, with each being satisfactory to Lender:
9.1. Mortgages.
Deeds of trust satisfactory to Lender and (i) granting to Lender a Security
Interest in all of the real property and fixtures owned by Borrower or on
the leasehold interest of Borrower in all real property leased by Borrower
and all improvements thereon and any appurtenant easements and rights and
all income and proceeds thereof, and (ii) assigning to Lender all of
Borrower's rights, title, and interest in, to, and under all leases
affecting any part of the Real Property Collateral and all income and
proceeds thereof, which Security Interests shall be subject only to
Permitted Security Interests affecting the property covered thereby and
existing on the Effective Date. If Borrower acquires or leases any real
property after the Effective Date, Borrower shall notify Lender thereof and
shall deliver to Lender a deed of trust or mortgage, or leasehold deed of
trust or mortgage, as appropriate, on each parcel of such real property or
Borrower's leasehold interest therein promptly upon request by Lender.
9.2. Security Agreements.
Security agreements from Borrower satisfactory to Lender and granting to
Lender a Security Interest under the UCC in all personal property and
Fixtures of Borrower, including all Goods, Equipment, Accounts, Inventory,
Instruments, Documents, Chattel Paper, General Intangibles, Health-Care
Insurance Receivables, Deposit Accounts and other personal property and
Fixtures of Borrower, whether now owned or hereafter acquired, and all
proceeds thereof, subject only to Permitted Security Interests. The
Security Agreement between Borrower and Lender dated June 25, 1999, is
hereby amended by adding Health-Care Insurance Receivables and Deposit
Accounts to the Collateral described therein and Lender is hereby
authorized by Borrower to file UCC financing statements or appropriate
amendments to heretofore filed UCC financing statements so as to perfect
Lender's Security Interest therein.
9.3. Collateral Assignments.
Collateral assignments and pledges satisfactory to Lender and assigning or
pledging to Lender (i) all rights, title and interest of Borrower under all
leases of real property in which Borrower is the tenant or lessee, (ii) the
economic rights of Borrower as a member of Noticom, L.L.C., a Georgia
limited liability company, (iii) all of XxXxxxx, Inc.'s stock in its
Subsidiaries, (iv) all of Borrower's patents, and (v) all of Borrower's
trademarks, trade names, and service marks, each subject to no other
Security Interests except Permitted Security Interests. If Borrower or any
Subsidiary of Borrower leases any real property, Borrower shall execute and
deliver to Lender, or cause to be executed and delivered to Lender, as
further security for payment and performance of the Loan Obligations, a
collateral assignment of all rights, title and interest of Borrower under
such lease.
If Borrower reduces the Revolving Commitment to zero as provided in Section
3.1.1 and all the Obligations of Borrower that are secured by the Security
Documents are fully and indefeasibly paid, Lender will release its Security
Interests in the Collateral.
10. Conditions.
10.1. Conditions to Advances.
Lender will have no obligation to fund any Advance unless:
10.1.1. Listed Documents and Other Items.
Lender shall have received on or before the Effective Date all of the
documents and other items listed or described in Exhibit 10.1.1 hereto
as being conditions to the initial Advances, with each being
satisfactory to Lender and (as applicable) duly executed and (also as
applicable) sealed, attested, acknowledged, certified, or
authenticated.
10.1.2. Representations and Warranties.
The representations and warranties contained in the Loan Documents
shall be true and correct in all material respects as of the time of
such Advance and with the same force and effect as if made at such
time.
10.1.3. No Default.
There shall be no Existing Default and no Default or Event of Default
will occur as a result of the making of the Advance or Borrower's use
of the proceeds thereof.
10.1.4. Perfection of Security Interests.
Every Security Interest and assignment required to be granted or made
by Borrower under Section 9 shall have been perfected and shall be,
except as to applicable Permitted Security Interests or as otherwise
satisfactory to Lender, a first priority Security Interest.
10.1.5. Payment of Fees.
Borrower shall have paid and reimbursed to Lender all fees, costs and
expenses that are payable or reimbursable to Lender hereunder on or
before the date of the Advance.
10.1.6. Material Proceedings.
There are no pending Material Proceedings involving Borrower.
10.1.7. No Material Adverse Change.
There shall not have been any change since the date of the Initial
Financial Statements which has had or is reasonably likely to have a
Material Adverse Effect on Borrower.
10.1.8. Other Items.
Lender shall have received such other consents, approvals, opinions,
certificates or documents as it reasonably deems necessary.
11. Conditions to Issuance of Letters of Credit.
No Letter of Credit will be issued unless as of the time of such issuance:
11.1. Reimbursement Agreement.
Borrower shall have executed and delivered to Lender a reimbursement
agreement satisfactory to Lender under which Borrower undertakes to
reimburse to Lender on demand the amount of each draw on such Letter of
Credit, together with interest from the date of the draw at the Prime Rate
plus the applicable Alternate Base Rate Margin.
11.2. No Prohibitions.
No order, judgment or decree of any Governmental Authority shall exist
which purports by its terms to enjoin or restrain Lender 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 Lender or any other Lender shall exist
which prohibits, or requests that Lender or any other Lender refrain from,
the issuance of letters of credit generally or such Letter of Credit in
particular, or imposes upon Lender or any other Lender with respect to such
Letter of Credit any restriction or reserve or capital requirement (for
which Lender or any other Lender is not otherwise compensable by Borrower
hereunder).
11.3. Conditions to Advances.
All of the conditions in Section 10.1 have been and remain satisfied.
11.4. Representations and Warranties.
The representations and warranties contained in the Loan Documents shall be
true and correct in all material respects as of the time of such Advance
and with the same force and effect as if made at such time, with such
exceptions as have been disclosed to Lender in writing by Borrower as
addenda to the Disclosure Schedule and are satisfactory to Lender, and
except that with respect to the representations and warranties made
regarding financial data in Section 12.13, such representations and
warranties shall be deemed made with respect to the most recent Financial
Statements and other financial data delivered by Borrower to Lender.
11.5. No Default.
There shall be no Existing Default and no Default or Event of Default will
occur as a result of the issuance of the Letter of Credit or Borrower's use
thereof.
11.6. No Material Adverse Change.
Since the date of the most recent prior Advance or issuance of a Letter of
Credit there shall not have been any change which has had or is reasonably
likely to have a Material Adverse Effect on Borrower.
12. Representations and Warranties.
Except as otherwise described the disclosure schedule that is attached hereto as
Exhibit 12.12 (the "Disclosure Schedule"), Borrower represents and warrants to
Lender as follows:
12.1. 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 will not have a Material Adverse Effect on
such Covered Person. Each Covered Person has the power and authority to
own its properties and carry on its business as now being conducted.
12.2. 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 action 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.
12.3. Due Execution.
Every Loan Document to which a Covered Person is a party has been executed
on behalf of such Covered Person by a legally competent Person duly
authorized to do so.
12.4. 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.
12.5. Burdensome Obligations.
No Covered Person is a party to or bound by any Contract 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.
12.6. Legal Restraints.
The execution of any Loan Document by a Covered Person will not violate or
constitute a default under the Charter Documents of such Covered 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. The performance by any Covered Person of its
obligations under any Loan Document to which it is a party will not violate
or constitute a default under the Charter Documents of such Covered 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.
12.7. Labor Contracts and Disputes.
There is no collective bargaining agreement or other labor contract
covering employees of a Covered Person. No union or other labor
organization is seeking to organize, or to be recognized as, a collective
bargaining unit of employees of a Covered Person. There is no pending or,
to Borrower's knowledge, threatened, strike, work stoppage, material unfair
labor practice claim or other material labor dispute against or affecting
any Covered Person or its employees.
12.8. No Material Proceedings.
There are no Material Proceedings pending or, to the best knowledge of
Borrower, threatened.
12.9. Material Licenses.
All Material Licenses have been obtained or exist for each Covered Person.
12.10. Compliance with Material Laws.
Each Covered Person is in compliance with all Material Laws. Without
limiting the generality of the foregoing:
12.10.1. General Compliance with Environmental Laws.
The operations of every Covered Person comply in all material respects
with all applicable Environmental Laws.
12.10.2. General Compliance with Employment Laws.
The employee compensation practices of every Covered Person comply in
all material respects with all applicable Employment Laws.
12.10.3. Proceedings.
None of the operations of any Covered Person are the subject of any
judicial or administrative complaint, order or proceeding alleging the
violation of any applicable Environmental Laws or Employment Laws.
12.10.4. Investigations Regarding Hazardous Materials.
None of the operations of any Covered Person are the subject of
investigation by any Governmental Authority regarding the improper
transportation, storage, disposal, generation or release into the
environment of any Hazardous Material, the results of which are
reasonably likely to have a Material Adverse Effect on such Covered
Person, or reduce materially the value of Collateral.
12.10.5. Notices and Reports Regarding Hazardous Materials.
No notice or report under any Environmental Law indicating a past or
present spill or release into the environment of any Hazardous
Material from any of the real property assets of Borrower has been
filed within the immediately preceding four fiscal years of such
Covered Person, or, to the knowledge of such Covered Person, is
required to be filed by any Covered Person.
12.10.6. Hazardous Materials on Real Property.
No Covered Person, nor to Borrower's knowledge, any other Person, has
at any time unlawfully released any Hazardous Material on the surface,
below the surface, or within the boundaries of any of the real
property assets of Borrower or unlawfully transported, stored,
disposed of, or generated any Hazardous Material. Borrower has no
knowledge of any Hazardous Material on the surface, below the surface,
or within the boundaries of any of the real property assets of
Borrower. None of the real property assets of Borrower is subject to
a Security Interest in favor of any Governmental Authority for any
liability under any Environmental Law or damages arising from or costs
incurred by such Governmental Authority in response to a spill or
release of Hazardous Material into the environment.
12.11. Other Names.
No Covered Person has used any name other than the full name which
identifies such Covered Person in this Agreement. The only trade name or
style under which a Covered Person sells Inventory or creates Accounts, or
to which instruments in payment of Accounts are made payable, is the name
which identifies such Covered Person in this Agreement.
12.12. Solvency.
Each Covered Person is Solvent.
12.13. Financial Statements.
The Financial Statements of Borrower as of November 25, 2001, are complete
and correct in all material respects, have been prepared in accordance with
GAAP, and fairly reflect the financial condition, results of operations and
cash flows of the Persons covered thereby as of the dates and for the
periods stated therein.
12.14. No Change in Condition.
Since the date of the Initial Financial Statements delivered to Lender,
there has been no change which is reasonably likely to have a Material
Adverse Effect on any Covered Person.
12.15. 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. There is no Existing Default.
12.16. Investments.
No Covered Person has any Investments in other Persons except Permitted
Investments.
12.17. Indebtedness.
No Covered Person has any Indebtedness except Permitted Indebtedness.
12.18. Indirect Obligations.
No Covered Person has any Indirect Obligations except Permitted Indirect
Obligations.
12.19. Encumbrances.
None of the Real Property Collateral is subject to any Encumbrances except
existing Permitted Encumbrances.
12.20. Operating Leases.
No Covered Person has an interest as lessee under any Operating Leases
other than leases of non-material items of equipment.
12.21. Capital Leases.
No Covered Person has an interest as a lessee under any Capital Leases
other than Capital Leases that do not cause a breach of any limitation
herein on Capital Expenditures by Borrower.
12.22. 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 or where failure to file is
not reasonably likely to have a Material Adverse Effect on such Covered
Person. 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 Interests for any such Taxes has been filed and no
claims are being asserted with respect to any such Taxes which, if
adversely determined, would have a Material Adverse Effect on such Covered
Person. The period during which any assessments may be made by the IRS
with respect to any federal income tax return filed more than three years
before the Effective Date of any Covered Person has expired without waiver
or extension. There are no material unresolved issues concerning any
liability of a Covered Person for any Taxes which, if adversely determined,
would have a Material Adverse Effect on such Covered Person.
12.23. 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. Except with respect to
events or occurrences which do not have and are not reasonably likely to
have a Material Adverse Effect on such Covered Person:
12.23.1. 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 a 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.
12.23.2. Claims.
Other than routine claims for benefits, 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 ERISA Affiliate of such Covered Person.
12.23.3. 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.
12.23.4. 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.
12.23.5. Multi-employer Plan.
All Multi-employer Plans to which any Covered Person contributes or is
obligated to contribute are listed in Item 12.23.5 of the Disclosure
Schedule. 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.
12.24. Welfare Benefit Plans.
No Covered Person or ERISA Affiliate of such Covered Person maintains a
Welfare Benefit Plan that has a liability which, if enforced or collected,
would have a Material Adverse Effect on such Covered Person. Each Covered
Person and ERISA Affiliate of such 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.
12.25. 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) other than (i) such benefits provided to Persons at such Person's
sole expense and (ii) obligations under COBRA.
12.26. Real Property.
Item 12.26 of the Disclosure Schedule contains a correct and complete list
of (i) the street addresses and a general description of all real property
owned by Borrower, and (ii) a list of all leases and subleases of real
property by Borrower, with Borrower identified for each as the lessee,
sublessee, lessor, or sublessor, as is the case, together with the street
addresses and a general description of the real property involved and the
names of the other parties to such leases and subleases. Each of such
leases and subleases is valid and enforceable in accordance with its terms
and is in full force and effect, and no default by any party to any such
lease or sublease exists.
12.27. State of Collateral and other Property.
Each Covered Person has good and marketable or merchantable title to all
real and personal 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. Attachment 1 to the Disclosure Schedule contains the legal
descriptions from the most recent evidence of title to all the real
property in which Lender will have a Security Interest under a Mortgage as
provided in Section 9.1. Each tangible Item of Personal Property
Collateral purported to be owned by a Covered Person is in good operating
condition and repair and is suitable for the use to which it is customarily
put by its owner. Without limiting the generality of the foregoing:
12.27.1. Accounts.
With respect to each Account scheduled, listed or referred to in
reports submitted by Borrower to Lender pursuant to the Loan
Documents, except as disclosed therein: (i) the Account arose from a
bona fide transaction completed in accordance with the terms of any
documents pertaining to such transaction; (ii) the Account is not
evidenced by a judgment and there is no material dispute respecting
it; (iii) the amount of the Account as shown on Borrower's books and
records and all invoices and statements which may be delivered to
Lender with respect thereto are actually and absolutely owing to
Borrower and are not in any way contingent; (iv) there are no
set-offs, counterclaims or disputes existing or asserted with respect
to the Account and Borrower has not made any agreement with any
Account Debtor for any deduction therefrom except a discount or
allowance allowed by Borrower in the ordinary course of its business;
(v) there are no facts, events or occurrences which in any way impair
the validity or enforcement of the Account or tend to reduce the
amount payable thereunder as shown on Borrower's books and records and
all invoices and statements delivered to Lender with respect thereto;
(vi) the Account is assignable; (vii) the Account arose in the
ordinary course of Borrower's business; (viii) the services furnished
and/or goods sold giving rise to the Account are not subject to any
Security Interest except the first priority perfected Security
Interest granted to Lender and except the Permitted Security
Interests; and (ix) there are no proceedings or actions which are
threatened or pending against the Account Debtor with respect to the
Account.
12.27.2. Inventory.
With respect to Inventory scheduled, listed or referred to in any
certificate, schedule, list or report given by Borrower, except as
disclosed therein: (i) such Inventory (except for Inventory in
transit) is located at one or another of the premises listed in
Item 12.27.2 of the Disclosure Schedule; (ii) Borrower has good and
merchantable title to such Inventory subject to no Security Interest
whatsoever except for the first priority perfected Security Interest
granted to Lender and except for existing Permitted Security
Interests; (iii) such Inventory is of good and merchantable quality,
free from any material defects; (iv) such Inventory is not subject to
any licensing, patent, royalty, trademark, trade name or copyright
agreements with any third parties; and (v) the completion of
manufacture and sale or other disposition of such Inventory by Lender
following an Event of Default shall not require the consent of any
Person and shall not constitute a breach or default under any contract
or agreement to which Borrower is a party or to which the Inventory is
subject.
12.27.3. Equipment.
With respect to the Borrower's equipment: (i) Borrower has good and
marketable title thereto; (ii) none of such equipment is subject to
any Security Interests except for the first priority Security Interest
granted to Lender pursuant hereto and except for Permitted Security
Interests; and (iii) all such equipment is in good operating condition
and repair, ordinary wear and tear alone excepted, and is suitable for
the uses to which customarily put in the conduct of Borrower's
business.
12.27.4. Intellectual Property.
(i) Item 12.27.4 of the Disclosure Schedule contains a complete and
correct list of all of Borrower's Intellectual Property, (ii) Borrower
owns all right, title and interest in, under and to such Intellectual
Property, subject to no licenses or any interest therein or other
agreements relating thereto, except for the applicable Collateral
Assignment; (iii) no Intellectual Property or grant of license by or
to Borrower is subject to any pending or, to Borrower's knowledge,
threatened challenge; (iv) to Borrower's knowledge, Borrower has not
committed any patent, trademark, trade name, service xxxx or copyright
infringement, and the present conduct of Borrower's business does not
infringe any patents, trademarks, trade name rights, service marks,
copyrights, publication rights, trade secrets or other proprietary
rights of any Person; and (v) there are no claims or demands of any
Person pertaining to, or any proceedings which are pending or, to
Borrower's knowledge, threatened, which challenge Borrower's rights in
respect of any proprietary or confidential information or trade
secrets used in the conduct of Borrower's business.
12.27.5. Documents, Instruments and Chattel Paper.
All documents, instruments and chattel paper describing, evidencing or
constituting Collateral, and all signatures and endorsements thereon,
are complete, valid, and genuine, and all goods evidenced by such
documents, instruments and chattel paper are owned by Borrower free
and clear of all Security Interests other than Permitted Security
Interests.
12.28. Chief Place of Business; Locations of Collateral.
As of the Effective Date,
12.28.1.
the only chief executive office and the principal places of business
of Borrower are located at the places listed and so identified in
Item 12.28.1 of the Disclosure Schedule;
12.28.2.
the books and records of Borrower, and all of the Borrower's chattel
paper and all records of Accounts, are located only at the places
listed and so identified in Item 12.28.2 of the Disclosure Schedule.
12.28.3.
all of the tangible Collateral (except for Inventory which is in
transit and the Real Property Collateral) is located only at the
places listed and so identified in Item 12.28.3 of the Disclosure
Schedule.
12.29. 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 the Collateral.
12.30. Security Documents.
12.30.1. Security Agreements.
Each Security Agreement is effective to grant to Lender an enforceable
Security Interest in all rights, title and interest of Borrower in the
Personal Property Collateral described therein. Lender has a fully
perfected first priority Security Interest in the Personal Property
Collateral described in each Security Agreements, subject only to
Permitted Security Interests affecting such Personal Property
Collateral.
12.30.2. Collateral Assignments.
Each Collateral Assignment is effective to assign to Lender all of
Borrower's rights, title and interest in and to the tangible and
intangible property described therein, subject only to Permitted
Security Interests affecting the Real Property Collateral.
12.30.3. Mortgages.
The Mortgages are effective to grant to Lender legal, valid and
enforceable mortgage liens on the Real Property Collateral. Lender
has fully perfected first priority liens on the Real Property
Collateral subject only to Permitted Security Interests affecting the
Real Property Collateral.
12.31. S Corporation.
There is no election in effect under Section 1362(a) of the Code for
Borrower to be treated as an S Corporation as defined in Section 1361(a) of
the Code.
12.32. Subsidiaries and Affiliates.
Borrower has no Affiliates who are not individuals and has no Subsidiaries
other than those listed in Item 12.32 of the Disclosure Schedule.
12.33. Margin Stock.
Borrower is not engaged and will not 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 none 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 or Regulation G. None of the transactions contemplated by any
Acquisition Documents will violate Regulations G, T, U or X of the FRB.
12.34. 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, as amended.
12.35. Investment Company Act, Etc.
Borrower is not an investment company registered or required to be
registered under the Investment Company Act of 1940, as amended, 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, as amended. Borrower is not 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.
12.36. No Material Misstatements or Omissions.
To the best knowledge of Borrower, neither the Loan Documents, any of the
Financial Statements nor any statement, list, certificate or other
information furnished or to be furnished by Borrower to 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.
12.37. Filings.
All registration statements, reports, proxy statements and other documents,
if any, required to be filed by Borrower with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, have been filed, and such
filings are complete and accurate 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.
12.38. Broker's Fees.
No broker or finder is entitled to compensation for services rendered with
respect to the loan transactions contemplated by this Agreement and the
other Loan Documents.
12.39. Eligibility of Collateral.
Each Account or Item of Inventory which Borrower, expressly or by
implication, requests Lender to classify as an Eligible Account or as
Eligible Inventory, respectively, will, as of the time when such request is
made, conform in all respects to the requirements of such classification
set forth in the respective definitions of "Eligible Accounts" and
"Eligible Inventory" herein.
13. Survival of Representations.
All representations and warranties in Section 12, and all representations and
warranties in any certificate delivered by Borrower pursuant hereto, shall
survive execution of each of the Loan Documents and the making of every Advance,
and may be relied upon by Lender as being true and correct as of the date when
made or deemed made or reaffirmed until all of the Loan Obligations are fully
and irrevocably paid.
14. Affirmative Covenants.
Borrower covenants and agrees that, so long as any of the Commitments remains in
effect or any of the Loan Obligations are owing to Lenders by Borrower, Borrower
shall do, or cause to be done, the following:
14.1. Use of Proceeds.
All proceeds of the Loans shall be used by Borrower to: (i) provide for
working capital and other general corporate purposes of Borrower and its
Subsidiaries, if any; (ii) finance capital expenditures; and (iii) repay
the existing $1.6 million term loan Borrower has from Lender.
14.2. 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 is not reasonably likely to have a Material Adverse Effect on such
Covered Person. Each Covered Person shall obtain and maintain all Material
Licenses for such Covered Person.
14.3. 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 whose useful economic life
has not elapsed and which is necessary for the ordinary conduct of the
business of such Covered Person. Each Covered Person shall maintain in
good standing and free of defaults all of its leases of buildings,
equipment, machinery, fixtures and other real and personal property whose
useful economic life has not elapsed and which is necessary for the
ordinary conduct of the business of such Covered Person. Borrower shall
not permit any of its equipment to become a fixture to real property or an
accession to other personal property unless Lender has a valid, perfected
and first priority Security Interest in such real or personal property.
Borrower shall not, without Lender's prior written consent, alter or remove
any identifying symbol or number on its equipment.
14.4. 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. 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 applicable workers' compensation laws) 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. All policies of
liability insurance maintained hereunder shall name Lender as an additional
insured; all fire and casualty policies of insurance maintained hereunder
shall reflect Lender's interest therein as mortgagees under a standard New
York or Union mortgagee clause. Lender is authorized, but not obligated,
as the attorney-in-fact for Borrower, (i) prior to the occurrence of an
Event of Default, with Borrower's consent (which consent shall not be
unreasonably withheld), and upon the occurrence of an Event of Default,
without Borrower's consent, to adjust and compromise proceeds payable under
such policies of insurance, (ii) to collect, receive and give receipts for
such proceeds in the name of Borrower, Lender, and (iii) to endorse
Borrower's name upon any instrument in payment thereof. Such power granted
to Lender shall be deemed coupled with an interest and shall be
irrevocable. All policies of insurance maintained hereunder shall contain
a clause providing that such policies may not be canceled, reduced in
coverage or otherwise modified without 30 days prior written notice to
Lender. Borrower shall upon request of Lender at any time furnish to
Lender updated evidence of insurance (in the form required as a condition
to Lender's lending hereunder) for such insurance.
14.5. 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, all Taxes lawfully assessed or imposed
upon it, and all Taxes lawfully assessed upon any of the Collateral or its
other property, 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 the Collateral or its other property; provided, however, that a Covered
Person may diligently contest in good faith by appropriate proceedings the
validity of any such Taxes if Borrower 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.
14.6. Compliance With Laws.
Each Covered Person shall comply with all Material Laws. Without limiting
the generality of the foregoing:
14.6.1. Environmental Laws.
Each Covered Person shall comply in all material respects and shall
use commercially reasonable efforts to ensure compliance in all
material respects by all tenants, subtenants and other occupants of
the real property assets of Borrower, if any, with all Environmental
Laws.
14.6.2. Pension Benefit Plans.
Each Covered Person and each ERISA Affiliate of such Covered Person
shall at all times make prompt payments or contributions to meet the
minimum funding standards under ERISA and the Code with respect to any
Pension Benefit Plan maintained by such Covered Person or ERISA
Affiliate of such Covered Person, and shall comply in all material
respects with all reporting and disclosure requirements and all
provisions of the Code and ERISA applicable to any Pension Benefit
Plan maintained by such Covered Person or ERISA Affiliate of such
Covered Person.
14.6.3. Employment Laws.
Each Covered Person shall comply in all material respects with all
requirements of all Employment Laws applicable to such Covered Person.
14.7. Discovery and Clean-Up of Hazardous Material.
14.7.1. In General.
Upon any Covered Person receiving notice of any violation of
Environmental Laws or any similar notice described in Section 14.9.4,
or upon any Covered Person otherwise discovering Hazardous Material on
the real property assets of Borrower or any other property owned or
leased by such Covered Person which is in violation of, or which is
reasonably likely to result in liability under, any Environmental Law,
Borrower shall: (i) promptly take such acts as may be necessary to
prevent danger or harm to the affected property or any person therein
as a result of such Hazardous Material; (ii) at the request of Lender,
and at Borrower's sole cost and expense, obtain and deliver to Lender
promptly, but in no event later than 90 days after such request, a
then currently dated environmental assessment of the property
certified to Lender and any future holder of the Loan Obligations, a
proposed plan for responding to any environmental problems described
in such assessment, and an estimate of the costs thereof; and (iii)
take all necessary steps to initiate and expeditiously complete all
removal, remedial, response, corrective and other action to eliminate
any such environmental problems, and keep Lender informed of such
actions and the results thereof.
14.7.2. Asbestos Clean-Up.
In the event that any of the real property assets of Borrower or any
other property of any Covered Person contains Asbestos Material,
Borrower shall develop and implement, as soon as reasonably possible,
an Operations and Maintenance Program (as contemplated by EPA guidance
document entitled "Managing Asbestos in Place; A Building Owner's
Guide to Operations and Maintenance Programs for Asbestos-Containing
Materials") for managing in place the Asbestos Material, and deliver a
true, correct and complete copy of such Operations and Maintenance
Program to Lender. In the event that the asbestos survey done in
connection with developing the Operations and Maintenance Program
reveals Asbestos Material which, due to its condition, location or
planned building renovation, is recommended to be encapsulated or
removed, Borrower shall promptly cause the same to be encapsulated or
removed and disposed of offsite, in either case by a licensed and
experienced asbestos contractor, all in accordance with applicable
state, federal and local Laws. Upon completion of any such
encapsulation or removal, Borrower shall deliver to Lender a
certificate in such form as is then customarily available signed by
the consultant overseeing the activity certifying to Lender that the
work has been completed in compliance with all applicable Laws
regarding notification, encapsulation, removal and disposal and that
no airborne fibers beyond permissible exposure limits remain on site.
All costs of such inspection, testing and remedial actions shall be
paid by Borrower.
14.8. 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
ERISA Affiliate of such Covered Person if such termination or amendment
would result in any liability to such Covered Person or ERISA Affiliate of
such Covered Person under ERISA or any increase in current liability for
the plan year for which such Covered Person or ERISA Affiliate of such
Covered Person is required to provide security to such Pension Benefit Plan
under the Code.
14.9. Notice to Lender of Material Events.
Borrower shall, promptly upon any Responsible Officer of Borrower obtaining
knowledge or notice thereof, give notice to Lender (together with copies,
if applicable) of (i) any breach of any of the covenants in Section 14, 15,
or 16; (ii) any Default or Event of Default; (iii) the commencement of any
Material Proceeding; and (iv) any material loss of or damage to any of
Collateral or any material part of the other assets of a Covered Person or
the commencement of any proceeding for the condemnation or other taking of
any of Collateral or any material part of the other assets of a Covered
Person, if Insurance/Condemnation Proceeds are likely to be payable as a
consequence of such loss, damage or proceeding, or if such loss, damage or
proceeding is reasonably likely to have a Material Adverse Effect on such
Covered Person. In addition,
14.9.1.
Borrower shall furnish to Lender from time to time all information
which Lender requests with respect to the status of any Material
Proceeding.
14.9.2.
Borrower shall furnish to Lender from time to time all information
which Lender requests with respect to any Pension Benefit Plan
established by a Covered Person or ERISA Affiliate of such Covered
Person.
14.9.3.
Borrower shall deliver notice to Lender of the establishment of any
Pension Benefit Plan by a Covered Person or an ERISA Affiliate of such
Covered Person.
14.9.4.
Borrower shall promptly inform Lender of its receipt of, and deliver
to Lender a copy of, any (i) notice that any violation of any
Environmental Law or Employment Law may have been committed or is
about to be committed by any Covered Person, (ii) notice that any
administrative or judicial complaint or order has been filed or is
about to be filed against any Covered Person alleging violations of
any Environmental Law or Employment Law or requiring such Covered
Person to take any action in connection with the release of any
Hazardous Material into the environment, (iii) notice from a
Governmental Authority or private party alleging that a Covered Person
may be liable or responsible for costs associated with a response to
or cleanup of a release of Hazardous Material into the environment or
any damages caused thereby, (iv) notice that a Covered Person is
subject to federal, state or local investigation regarding the
improper transportation, storage, disposal, generation or release into
the environment of any Hazardous Material, or (v) notice that any
properties or assets of a Covered Person are subject to a Security
Interest in favor of any Governmental Authority for any liability
under any Environmental Law or damages arising from or costs incurred
by such Governmental Authority in response to a release of Hazardous
Material into the environment.
14.9.5.
Borrower shall deliver to Lender notice of the following events
promptly after they occur: (i) the failure of any Covered Person or
ERISA Affiliate of such Covered Person to make any required
installment or any other required payment to any Pension Benefit Plan
in sufficient amount to comply with ERISA and the Code on or before
the due date for such installment or payment; (ii) the occurrence of
any Reportable Event, or a prohibited transaction or accumulated
funding deficiency (as those terms are defined in ERISA), with respect
to any Pension Benefit Plan maintained or contributed to by a Covered
Person or ERISA Affiliate of such Covered Person; (iii) receipt by a
Covered Person or ERISA Affiliate of such Covered Person of any notice
from a Multi-employer Plan regarding the imposition of withdrawal
liability; and (iv) receipt by a Covered Person or ERISA Affiliate of
such Covered Person of any notice of the institution, or a Covered
Person's expectancy of the institution, of any proceeding or receipt
by such Covered Person or ERISA Affiliate of such Covered Person of
any notice of the taking, or such Covered Person's expectancy of the
taking, of any other action which may result in the termination of any
Pension Benefit Plan maintained or contributed to by such Covered
Person or ERISA Affiliate of such Covered Person, or the withdrawal or
partial withdrawal by a Covered Person or ERISA Affiliate of such
Covered Person from any Pension Benefit Plan, and the filing or
receipt by a Covered Person or ERISA Affiliate of such Covered Person
of any such notice and filing or receipt of all subsequent reports or
notices under ERISA with or from the IRS, the PBGC, or the DOL
relating to the same; and, in addition to such notice, deliver to
Lender a certificate of a Responsible Officer of Borrower, setting
forth details as to such events and the action that the affected
Covered Person or ERISA Affiliate of such Covered Person proposes to
take with respect thereto. For purposes of this Section, a Covered
Person and any ERISA Affiliate of such Covered Person shall be deemed
to know all facts known by the administrator of any Plan of which such
Covered Person or any ERISA Affiliate of such Covered Person is the
plan sponsor.
14.9.6.
Borrower shall promptly deliver to Lender 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.
14.9.7.
Borrower shall promptly deliver notice to Lender of the assertion by
the holder of any securities of a Covered Person or any Indebtedness
of a Covered Person in an outstanding principal amount in excess of
$100,000 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.
14.9.8.
Borrower shall, promptly after becoming aware thereof, deliver notice
to Lender of any pending or threatened strike, work stoppage, material
unfair labor practice claim or other material labor dispute affecting
a Covered Person.
14.9.9.
Borrower shall promptly deliver notice to Lender of any change in the
name, state of incorporation, or form of organization of any Covered
Person, or the trade names or styles under which a Covered Person will
sell Inventory or create Accounts, or to which instruments in payment
of Accounts may be made payable, at least 30 days prior to such
change.
14.9.10.
Borrower shall, promptly after becoming aware thereof, deliver notice
to Lender of any event that has had or is reasonably likely to have a
Material Adverse Effect on any Covered Person.
14.9.11.
Borrower shall, promptly after becoming aware thereof, deliver notice
to Lender of an actual, alleged, or potential violation of any
Material Law applicable to a Covered Person or any of Collateral or
any material part of other property of a Covered Person.
14.9.12.
Borrower shall notify Lender promptly in writing of any fact or
condition of which Borrower is aware which materially and adversely
affects the value of Collateral, including any adverse fact or
condition or the occurrence of any event which causes loss or
depreciation in the value of any Item of Collateral, and the amount of
such loss or depreciation. Borrower shall provide such additional
information to Lender regarding the amount of any loss or depreciation
in value of Collateral as Lender may request from time to time.
14.10. Borrowing Officer.
Borrower shall keep on file with Lender at all times an appropriate
instrument naming each Borrowing Officer.
14.11. Maintenance of Security Interests of Security Documents.
14.11.1. Preservation and Perfection of Security Interests.
Borrower shall promptly, upon the reasonable request of Lender and at
Borrower's expense, execute, acknowledge and deliver, or cause the
execution, acknowledgment and delivery of, and thereafter file or
record in the appropriate governmental office, any document or
instrument supplementing or confirming the Security Documents or
otherwise deemed necessary by Lender to create, preserve or perfect
any Security Interest purported to be created by the Security
Documents or to fully consummate the transactions contemplated by the
Loan Documents. The foregoing actions by Borrower shall include (i)
filing financing or continuation statements, and amendments thereof,
in form and substance satisfactory to Lender; (ii) delivering to
Lender the original certificates of title for motor vehicles, or
applications therefor duly executed, with Lender's Security Interest
properly shown thereon; (iii) delivering to Lender the originals of
all instruments, documents and chattel paper, and all other Collateral
of which Lender determines it should have physical possession in order
to perfect and protect Lender's Security Interest therein, duly
endorsed or assigned to Lender without restriction; (iv) delivering to
Lender warehouse receipts covering any portion of the Collateral
located in warehouses and for which warehouse receipts are issued; (v)
transferring Inventory to warehouses designated by Lender; (vi)
delivering to Lender all letters of credit on which Borrower is named
beneficiary; (vii) placing a durable notice of the existence of
Lender's Security Interest , acceptable to Lender, upon such items of
the Collateral as are designated by Lender; and (viii) placing a
notice of the existence of Lender's Security Interest , acceptable to
Lender, upon those writings evidencing the Collateral and the books
and records of Borrower pertaining to the Collateral, as designated by
Lender.
14.11.2. Collateral Held Off Borrower's Premises.
If at any time any Collateral is located on any premises that are not
owned by Borrower, then Borrower shall obtain written waivers, in form
and substance satisfactory to Lender, of all present and future
Security Interests to which the owner or lessor or any mortgagee of
such premises may be entitled to assert against the Collateral. If
any Collateral is at any time in the possession or control of a
warehouseman, bailee or any of Borrower's agents or processors, then
Borrower shall notify Lender thereof and shall notify such Person of
Lender's Security Interest in such Collateral and, upon Lender's
request, instruct such Person to hold all such Collateral for Lender's
account subject to Lender's instructions.
14.11.3. Compliance With Terms of Security Documents.
Borrower shall comply with all of the terms, conditions and covenants
in the Security Documents to which Borrower is a party.
14.12. Accounting System.
Each Covered Person shall maintain a system of accounting established and
administered in accordance with GAAP. Without limiting the generality of
the foregoing:
14.12.1. Account Records.
Each Covered Person shall maintain a record of Accounts at its
principal place of business that itemize each Account of such Covered
Person and describe the names and addresses of the Account Debtors on
such Accounts, all relevant invoice numbers, invoice dates, and
shipping dates, and the due dates, collection histories, and aging of
such Accounts.
14.12.2. Inventory Records.
Each Covered Person shall maintain an inventory system satisfactory to
Lender.
14.13. Financial Statements.
Borrower shall deliver to Lender:
14.13.1. Annual Financial Statements.
Within 120 days after the close of each fiscal year of Borrower, year-
end consolidated and consolidating Financial Statements of Borrower
and its Subsidiaries, containing an audit report without qualification
by an independent certified public accounting firm selected by
Borrower and satisfactory to Lender, and in each case accompanied by a
Compliance Certificate of the Chief Financial Officer of Borrower.
14.13.2. Quarterly Financial Statements.
Within 60 days after the end of each fiscal quarter of Borrower,
unaudited consolidated and consolidating Financial Statements of
Borrower and its Subsidiaries for the quarters not covered by the
latest year-end Financial Statements, in each case accompanied by a
Compliance Certificate of the Chief Financial Officer of Borrower.
14.13.3. Monthly Financial Statements.
Within 30 days after the end of each month, unaudited consolidated
Financial Statements of Borrower and its Subsidiaries for each of the
months not covered by the latest year-end Financial Statements, in
each case accompanied by (i) a statement comparing such Financial
Statements with budgeted projections for such month and for the
elapsed portion of the fiscal year of Borrower as contained in the
annual budget prepared for such fiscal year, (ii) a statement
comparing the statements delivered pursuant to clause (i) above with
the statements for the equivalent months and equivalent elapsed
periods during the prior year of Borrower, and (iii) a summary of
significant items discussed at any meetings of the Board of Directors
of Borrower held during such month.
Each Compliance Certificate shall be in the form of Exhibit 14.13, shall
contain detailed calculations of the financial measurements referred to in
Section 16 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 of Borrower contained in this Agreement and other Loan Documents
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 Lender discloses that a representation or warranty
is not true and correct, or that a Default or Event of Default has occurred
that has not been waived in writing by Lender, such Compliance Certificate
shall state what action Borrower has taken or proposes to take with respect
thereto.
14.14. Borrowing Base Certificate.
On the Effective Date and periodically thereafter, but not less often than
monthly within 15 days after the end of each month, a borrowing base
certificate in substantially the form of Exhibit 14.14 duly completed and
signed by the chief financial officer of Borrower.
14.15. Audits by Lender.
Lender or Persons authorized by and acting on behalf of Lender may at any
time and from time to time during normal business hours audit the books and
records, and inspect any of the property, of each Covered Person from time
to time upon reasonable notice to such Covered Person, and in the course
thereof may make copies or abstracts of such books and records and discuss
the affairs, finances and books and records of such Covered Person with its
accountants, officers and employees. Each Covered Person shall cooperate
with Lender and such Persons in the conduct of such audits and shall
deliver to Lender any instrument necessary for Lender to obtain records
from any service bureau maintaining records for such Covered Person.
Borrower shall reimburse Lender for all costs and expenses actually
incurred by it in conducting each audit; provided, however, that if an
Event of Default has not occurred, such reimbursement for each such audit
shall be limited to $500 per day per person involved in conducting the
audit plus Lender's other actual out-of-pocket expenses.
14.16. Verification of Accounts and Notices to Account Debtors.
Upon an Event of Default, Lender shall have the right at any time and from
time to time, after first giving either oral or written notice to Borrower,
to verify the validity and amount of any Account and any other matter
relating to an Account, by communicating in writing or orally directly with
the Account Debtor or any Person who represents or Lender believes
represents the Account Debtor.
14.17. Access to Officers and Auditors.
Each Covered Person shall permit any Lender and Persons authorized by
Lender to discuss the affairs, finances and accounts of such Covered Person
with its officers and independent auditors as often as Lender may
reasonably request, and such Covered Person shall direct such officers and
independent auditors to cooperate with Lender and make full disclosure to
Lender of those matters that they may deem relevant to the continuing
ability of Borrower timely to pay and perform the Loan Obligations. Lender
agrees that it will not disclose to third parties any information that it
obtains about Borrower or its operations or finances other than its legal
counsel and other professional advisors, or in litigation or similar
proceedings, in connection with enforcement or interpretation of any of the
Loan Documents. Lender may, however, disclose such information 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. Lender shall advise such persons that such information is to be
treated as confidential. 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 Lender's
counsel advises in writing that such disclosure is reasonably necessary.
Lender's non-disclosure obligation shall not apply to any information that
(i) is disclosed to Lender by a third party 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 Lender.
14.18. Further Assurances.
Borrower shall execute and deliver, or cause to be executed and delivered,
to Lender such documents and agreements, and shall take or cause to be
taken such actions, as Lender may from time to time reasonably request to
carry out the terms and conditions of this Agreement and the other Loan
Documents.
14.19. Future Subsidiaries Shall Become Guarantors.
In the event Borrower organizes, creates or acquires any Subsidiary,
contemporaneous with the organization, creation or acquisition of such
Subsidiary the applicable Covered Person and such Subsidiary shall execute
and deliver to Lender a guarantee of payment and performance of the Loan
Obligations.
15. Negative Covenants.
Borrower covenants and agrees that, while any of the Commitments remain in
effect or any of the Loan Obligations are owing to Lender by Borrower or any of
the Letters of Credit are outstanding, Borrower shall not, directly or
indirectly, do any of the following, or permit any Covered Person to do any of
the following, without the prior written consent of Lender:
15.1. Investments.
Make any Investments in any other Person except the following:
15.1.1.
Investments in (i) interest-bearing United States government
obligations; (ii) certificates of deposit issued by any Lender; (iii)
certificates of deposit issued by and time deposits with any
commercial bank chartered under the laws of the United States or any
state thereof having capital and surplus of not less than
$500,000,000; (iv) prime commercial paper rated A1 or better by
Standard and Poor's Corporation or Prime P1 or better by Xxxxx'x
Investor Service, Inc.; (v) agreements involving the sale to Borrower
of United States government securities and their guarantied repurchase
the next Business Day by a Qualified Financial Institution; or (vi)
existing Investments by XxXxxxx, Inc. in XxXxxxx/STC, Inc., XxXxxxx
Wireless, Inc., XxXxxxx OCS, Inc., and Xxxxxxx Abbey, Ltd.
15.1.2.
Accounts arising in the ordinary course of business and payable in
accordance with Borrower's customary trade terms.
15.2. Indebtedness.
Create, incur, assume, or allow to exist any Indebtedness of any kind or
description, except the following:
15.2.1.
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 90 days.
15.2.2.
The Loan Obligations.
15.2.3.
Other Indebtedness to Lender.
15.2.4.
Indebtedness secured by Permitted Security Interests.
15.2.5.
The Subordinated Indebtedness.
15.2.6.
The Indebtedness of Borrower to the City of Joplin, Missouri, existing
on the Effective Date.
15.2.7.
The Indebtedness of Borrower to the Arkansas Development Finance
Authority with respect to the expansion of Borrower's plant in
Berryville, Arkansas.
15.3. Prepayments.
Voluntarily prepay any Indebtedness other than (a) the Loan Obligations in
accordance with the terms of the Loan Documents, and (b) trade payables in
the ordinary course of business.
15.4. Indirect Obligations.
Create, incur, assume or allow to exist any Indirect Obligations except
Indirect Obligations existing on the Effective Date and disclosed in
Item 12.18 of the Disclosure Schedule.
15.5. 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 in connection with Permitted Acquisitions and the
following ("Permitted Security Interests"):
15.5.1.
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.
15.5.2.
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.
15.5.3.
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.
15.5.4.
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 book reserves in accordance with GAAP are maintained.
15.5.5.
Purchase money Security Interests securing payment of the purchase
price of capital assets acquired by Borrower after the Effective Date
in an amount not to exceed $500,000 in the aggregate.
15.5.6.
Security Interests of customers of Borrower in items of Inventory for
the manufacture of which such customers have paid deposits to
Borrower, to the extent such Security Interests secure the repayment
of such deposits.
15.5.7.
Security Interests securing the Loan Obligations in favor of Lender.
15.5.8.
Security Interests existing on the Effective Date that are disclosed
in Item 12.27 of the Disclosure Schedule and are satisfactory to
Lender.
15.6. Acquisitions.
Acquire any stock, partnership interest, membership interest or other
equity interest in a Person, or acquire all or a material part of the
assets of a Person, except asset acquisitions in the ordinary course of
business that are not otherwise prohibited herein.
15.7. 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, or make any loans or advances to any
Affiliate. If there is no Existing Default, however, Borrower 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.
15.8. Distributions.
At any time when there is an Existing Default, directly or indirectly
declare or make, or incur any liability to make, any Distribution. For
purposes of this Section, a "Distribution" means and includes (i) any cash
dividend, (ii) any acquisition or redemption of any outstanding stock,
(iii) any retirement or prepayment of debt securities before their
regularly scheduled maturity dates, and (iv) any loan or advance to a
shareholder.
15.9. Change of Control.
Merge or consolidate with or into another Person, or permit any Person or
Group to become the record or beneficial owner, directly or indirectly, of
securities representing 50% or more of the voting power of Borrower's
outstanding securities having the power to vote, or acquiring the power to
elect a majority of the Board of Directors of Borrower.
15.10. Capital Structure; Equity Securities.
Make any change in its capital structure which has or could have a Material
Adverse Effect on Borrower; or create any new class of stock, issue any
stock, or issue any other equity securities, or non-equity securities that
are convertible into equity securities, except common stock and other
securities that are subordinated in right of payment to all the Loan
Obligations in a manner satisfactory to Lender.
15.11. 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.
15.12. Transactions Having a Material Adverse Effect.
Enter into any transaction which has or is reasonably likely to have a
Material Adverse Effect on Borrower.
15.13. Disposal of Assets.
Sell, transfer, exchange, lease, or otherwise dispose of any of its assets
except sales of Inventory in the ordinary course of business.
Notwithstanding the foregoing, Borrower may sell, transfer or otherwise
dispose of obsolete and unusable equipment, and may sell, transfer or
otherwise dispose of other assets having an orderly liquidation value no
greater than $250,000 in the aggregate in any fiscal year of Borrower.
16. Financial Covenants.
16.1. Special Definitions.
As used in this Section 16 and elsewhere in this Agreement, the following
capitalized terms have the following meanings:
"Current Assets" means, at any date, current assets as determined in
accordance with GAAP.
"Current Liabilities" means, at any date, current liabilities as
determined in accordance with GAAP but excluding the amount of the
Revolving Loans.
"EBITDA" means, for any period of calculation, an amount equal to the
sum of the following, calculated without duplication and after exclusion of
any amount that has been allocated to Borrower from NotiCom L.L.C.: (i)
net income, (ii) federal, state and local income tax expense, (iii)
interest expense, (iv) depreciation and amortization expense, (v) losses on
the sale or other disposition of assets, (vi) extraordinary losses, minus
(a) gains on the sale or other disposition of assets, and (b) extraordinary
gains, all calculated for such period.
"Fixed Charges" means, for any period of calculation and without
duplication, the sum of (i) Interest Expense in such period, (ii) the sum
of all payments on long term Indebtedness of Borrower scheduled to be made
in such period, (iii) federal, state and local income taxes payable in such
period, (iv) Capital Expenditures made in such period, and (v) dividends
paid or declared in such period.
"Funded Debt" means, at any date, the sum of all Indebtedness plus the
unamortized capitalized amount of all Capital Leases.
"Interest Expense" means, for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without duplication, on
Indebtedness during such period.
"Net Worth" means, at any date: (a) the book value (net of
depreciation, obsolescence, amortization, valuation and other proper
reserves determined in accordance with GAAP) at which the assets of
Borrower would be shown on a balance sheet at such date prepared in
accordance with GAAP; less (b) the amount at which all liabilities would be
shown on such balance sheet, including as liabilities all reserves for
contingencies and other potential liabilities which would be shown on such
balance sheet or disclosed in the notes thereto.
"Senior Funded Debt" means the amount of all Funded Debt (excluding
all Subordinated Indebtedness).
16.2. Capital Expenditures.
Borrower shall not make Capital Expenditures (including Capital
Expenditures made in Permitted Acquisitions, and the Capital Expenditure
Equivalent of Capital Leases entered into) that in the aggregate exceed
$4,000,000 in any one fiscal year of Borrower. The "Capital Expenditure
Equivalent" of a Capital Lease entered into in any fiscal year of Borrower
shall be the amount which would have been the aggregate cost of the
property leased if it had been purchased instead.
16.3. Minimum Fixed Charge Coverage.
The ratio of Borrower's EBITDA to Fixed Charges, calculated at the end of
each fiscal quarter of Borrower ended on the basis of the four consecutive
fiscal quarters then ended, shall not be less than 1.25 to 1.00.
16.4. Minimum Net Worth.
Borrower's Net Worth as of the end of each fiscal quarter of Borrower shall
not be less than $24,000,000 plus 50% of cumulative net income (but not any
net loss) of Borrower for all fiscal quarters of Borrower ended on or after
July 1, 2002.
16.5. Maximum Senior Funded Debt to EBITDA Ratio.
The ratio of Borrower's Senior Funded Debt to Borrower's EBITDA calculated
at the end of each fiscal quarter of Borrower on the basis of the twelve
consecutive calendar months then ended shall not be greater than 2.50 to
1.00.
17. Default.
17.1. Events of Default.
Any one or more of the following shall constitute an Event of Default:
17.1.1. Failure to Pay Principal or Interest.
Failure by Borrower to make any principal or interest payment on the
Loans when due under the Loan Documents.
17.1.2. Failure to Pay Other Amounts Owed to Lender.
Failure of Borrower to pay any of the Loan Obligations (other than
principal or interest on the Loans) or any other amount owed to Lender
within five Business Days after notice from Lender that the same is
due.
17.1.3. Failure to Pay Amounts Owed to Other Persons.
Failure of Borrower to make any payment due on Indebtedness of
Borrower over $500,000 to any Person other than Lender which continues
unwaived beyond any applicable grace period specified in the documents
evidencing such Indebtedness.
17.1.4. Acceleration of Other Indebtedness.
Any Obligation of Borrower (other than the Loan Obligations) for the
payment of borrowed money in an amount over $500,000 becomes or is
declared to be due and payable or required to be prepaid (other than
by a regularly scheduled payment or prepayment) prior to the original
maturity thereof as a consequence of a default with respect thereto by
Borrower.
17.1.5. Representations or Warranties.
Any representation or warranty made or deemed made by Borrower to
Lender under any of the Loan Documents is discovered to have been
false in any material respect when made and is not cured within
fifteen Business Days after notice thereof from Lender to Borrower.
17.1.6. Certain Covenants.
Failure of Borrower to comply with the covenants in Section 14.1,
14.8, 14.13, or 14.17.
17.1.7. Financial Covenants.
Failure of Borrower to cure a violation of Section 16 within 30 days
after the end of the applicable fiscal quarter of Borrower.
17.1.8. Other Covenants.
Failure of Borrower to comply with any of the provisions of any of the
Loan Documents that are applicable to it (other than a failure which
constitutes an Event of Default under any of Sections 17.1.1 through
17.1.6) which is not remedied or waived in writing by Lender within 30
days after notice thereof from Lender to Borrower.
17.1.9. Default Under Other Agreements.
The occurrence of any default or event of default under any agreement
to which Borrower is a party which continues unwaived beyond any
applicable grace period provided therein and either (i) involves
Obligations of Borrower greater than $500,000 or (ii) has or is
reasonably likely to have a Material Adverse Effect on Borrower.
17.1.10. Bankruptcy; Insolvency; Etc.
Borrower (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 a general 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 Borrower or any substantial part of its
property; (iv) commences any proceeding relating to Borrower under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such proceeding
which remains undismissed for a period of ninety 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 any substantial part of its property, or allows any such
receivership or trusteeship to continue undischarged for a period of
ninety (90) days; or (vi) takes any corporate action to authorize any
of the foregoing.
17.1.11. Judgments; Attachment; Etc.
Any one or more judgments or orders is entered against Borrower or any
attachment or other levy is made against the property of Borrower,
including but not limited to Collateral, with respect to a claim or
claims involving in the aggregate liabilities (not paid or fully
covered by insurance, less the amount of deductibles satisfactory to
Lender) greater than $100,000 becomes final and non-appealable or if
timely appealed is not fully bonded and collection thereof stayed
pending the appeal.
17.1.12. Pension Benefit Plan Termination, Etc.
Any termination by the PBGC of a Pension Benefit Plan of Borrower or
an ERISA Affiliate of Borrower or the appointment by the appropriate
United States District Court of a trustee to administer any Pension
Benefit Plan of Borrower or an ERISA Affiliate of Borrower or to
liquidate any Pension Benefit Plan of Borrower or an ERISA Affiliate
of Borrower; or any event which constitutes grounds either for the
termination of any Pension Benefit Plan of Borrower or an ERISA
Affiliate of Borrower by PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer or
liquidate any Pension Benefit Plan of Borrower or an ERISA Affiliate
of Borrower has occurred and is continuing for 30 days after Borrower
has notice of any such event; or any voluntary termination of any
Pension Benefit Plan of Borrower or an ERISA Affiliate of Borrower
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 Lender has been notified of such intent to
voluntarily terminate such plan and Lender has given its consent and
agreed that such event shall not constitute an Event of Default; or
the plan administrator of any Pension Benefit Plan of Borrower or an
ERISA Affiliate of Borrower applies under Section 412(d) of the Code
for a waiver of the minimum funding standards of Section 412(1) of the
Code and Lender determines that the substantial business hardship upon
which the application for such waiver is based could subject Borrower
or any ERISA Affiliate of Borrower to a liability in excess of
$100,000.
17.1.13. Liquidation or Dissolution.
Borrower files a certificate of dissolution under applicable state law
or is liquidated or dissolved, or has commenced against it any action
or proceeding for its liquidation or dissolution, or takes any
corporate action in furtherance thereof.
17.1.14. Seizure of Assets.
All or any material part of the property of Borrower, including but
not limited to Collateral, is nationalized, expropriated, seized or
otherwise appropriated, or custody or control of such property or of
Borrower is assumed by any Governmental Authority, unless the same is
being contested in good faith by appropriate proceedings diligently
pursued and a stay of enforcement is in effect.
17.1.15. Racketeering Proceeding.
There is filed against Borrower 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
120 days and could result in the confiscation or forfeiture of any of
Collateral or any material part of other property of Borrower.
17.1.16. Loan Documents; Security Interests.
For any reason (other than the failure of Lender to take any action
available to it to create or maintain perfection of the Security
Interests created in favor of Lender) any Loan Document ceases to be
in full force and effect or any Security Interest on any of the
Collateral is not or ceases to be valid, perfected and prior to all
other Security Interests (other than relevant Permitted Security
Interests) or is terminated, revoked or declared void or invalid.
17.1.17. Loss to Collateral.
Any loss, theft, damage or destruction of any of Collateral occurs
which is not covered by insurance as required herein and has or is
reasonably likely to have a Material Adverse Effect on Borrower.
17.1.18. Material Adverse Change.
There occurs any material adverse change in Borrower's property,
business, operation, or condition (financial or otherwise), or there
occurs any event which has or is reasonably likely to have a Material
Adverse Effect on Borrower.
17.2. Rights and Remedies Upon an Event of Default.
17.2.1. Cancellation of Commitments.
Upon the occurrence of an Event of Default described in
Section 17.1.10, the Commitments shall be deemed canceled without
presentment, demand or notice of any kind. Upon any other Event of
Default, and at any time thereafter, Lender may cancel the
Commitments. Such cancellation may be without demand or notice of any
kind, which Borrower expressly waives.
17.2.2. Acceleration.
Upon the occurrence of an Event of Default described in
Section 17.1.10, all of the outstanding Loan Obligations shall
automatically become immediately due and payable. Upon any other
Event of Default, and at any time thereafter, Lender may declare all
of the outstanding Loan Obligations immediately due and payable. Such
acceleration in either case may be without presentment, demand or
notice of any kind, which Borrower expressly waives.
17.2.3. Right of Set-off.
Upon the occurrence of any Event of Default and at any time and from
time to time thereafter, Lender is hereby authorized, without notice
to Borrower (any such notice being expressly waived by Borrower), 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 Lender to or for
the credit or the account of Borrower, irrespective of whether or not
Lender has made any demand under the Loan Documents and although such
Loan Obligations may be unmatured. The rights of Lender under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which Lender may
otherwise have.
17.2.4. Notice to Account Debtors.
Upon the occurrence of any Event of Default and at any time and from
time to time thereafter, Lender may, without prior notice to Borrower,
notify any or all Account Debtors that the Accounts have been assigned
to Lender and that Lender has a Security Interest therein, and Lender
may direct, or Borrower, at Lender's request, shall direct any or all
Account Debtors to make all payments upon the Accounts directly to
Lender.
17.2.5. Entry Upon Premises and Access to Information.
Upon the occurrence of any Event of Default and acceleration of the
Loan Obligations as provided herein, and at any time and from time to
time thereafter, Lender may (i) enter any premises leased or owned by
Borrower where any Personal Property Collateral is located (or is
believed to be located) without any obligation to pay rent to
Borrower, or any other place or places where Personal Property
Collateral is believed to be located, (ii) render Collateral usable or
saleable, (iii) move movable Personal Property Collateral to the
premises of Lender or any agent of Lender for such time as Lender may
desire in order effectively to collect or liquidate such Personal
Property Collateral; (iv) take possession of, and make copies and
abstracts of, Borrower's original books and records, obtain access to
Borrower's data processing equipment, computer hardware and software
relating to any of Collateral and, subject to any proprietary rights
of third parties, use all of the foregoing and the information
contained therein in any manner Lender deems appropriate in connection
with the exercise of Lender's rights; and (v) notify postal
authorities to change the address for delivery of Borrower's mail to
an address designated by Lender and to receive, open and process all
mail addressed to Borrower.
17.2.6. Borrower's Obligations.
Upon the occurrence of an Event of Default and acceleration of the
Loan Obligations as provided herein, Borrower shall, if Lender so
requests, assemble all movable Personal Property Collateral and make
it available to Lender at the Project site.
17.2.7. Exercise of Rights as Secured Party.
Upon an Event of Default and acceleration of the Loan Obligations as
provided herein, and at any time and from time to time thereafter:
17.2.7.1.
Lender may exercise its right under the Account Assignment,
17.2.7.2.
Lender may exercise any or all of its rights under the other
Security Documents as a secured party under the UCC and any
other applicable Law or the terms thereof; and
17.2.7.3.
Lender may sell or otherwise dispose of any or all of the
Collateral at public or private sale in a commercially
reasonable manner, for cash or credit, which sale Lender may
postpone from time to time by announcement at the time and
place of sale stated in the notice of sale or by announcement
at any adjourned sale without being required to give a new
notice of sale, all as Lender deems advisable. Lender may
become the purchaser at any such sale if permissible under
applicable Law, and Lender may, in lieu of actual payment of
the purchase price, offset the amount thereof against
Borrower's Loan Obligations owing to Lender, and Borrower
agrees that Lender has no obligation to preserve rights to
Collateral against prior parties or to marshal any Collateral
for the benefit of any Person.
In connection with the advertising for sale, selling, or
otherwise realizing upon any of the Collateral securing the
obligations of Borrower to Lender, Lender may use and is hereby
granted a license to use, without charge or liability to Lender
therefor, any of Borrower's labels, trade names, trademarks,
trade secrets, service marks, patents, patent applications,
licenses, certificates of authority, advertising materials, or
any of Borrower's other properties or interests in properties
of similar nature, to the extent that such use thereof is not
prohibited by agreements under which Borrower has rights
therein, and all of Borrower's rights under license, franchise
and similar agreements shall inure to Lender's benefit.
17.2.8. Miscellaneous.
Upon the occurrence of an Event of Default and at any time thereafter,
Lender may exercise any other rights and remedies available to Lender
under the Loan Documents or otherwise available to Lenders at law or
in equity.
17.2.9. Application of Funds.
Any funds received by Lender with respect to the Loan Obligations,
including proceeds of Collateral, after acceleration of the Loan
Obligations as provided herein, shall be applied as follows:
(i) first, to reimburse Lender for any amounts due to Lender under
Section 18.7 (ii) second, to reimburse to Lender all unreimbursed
costs and expenses paid or incurred by Lender that are payable or
reimbursable by Borrower hereunder; (iii) third, to reimburse to
Lender all unreimbursed costs and expenses paid or incurred by Lender
(including costs and expenses incurred by Lender as Lender that are
not reimbursable as provided in the preceding clause) that are payable
or reimbursable by Borrower hereunder; (iv) fourth, to payment of
accrued and unpaid fees due under the Loan Documents and all other
amounts due under the Loan Documents (other than the Loans and
interest accrued thereon); (v) fifth, to payment of interest accrued
on the Loans; (vi) sixth, to payment of the Loans; and (vii) seventh,
to payment of the other Loan Obligations. Any amounts remaining after
the application of funds and proceeds as provided in this
Section shall be paid to Borrower, or to such other Persons as are
legally entitled thereto.
17.3. Limitation of Liability; Waiver.
Lender shall not be liable to Borrower as a result of any commercially
reasonable possession, repossession, collection or sale by Lender of
Collateral; and Borrower hereby waives all rights of redemption from any
such sale and the benefit of all valuation, appraisal and exemption laws.
If Lender seeks to take possession of any of Collateral by replevin or
other court process after an Event of Default, Borrower hereby irrevocably
waives (i) the posting of any bonds, surety and security relating thereto
required by any statute, court rule or otherwise as an incident to such
possession, (ii) any demand for possession of Collateral prior to the
commencement of any suit or action to recover possession thereof, (iii) any
requirement that Lender retain possession and not dispose of any Collateral
until after trial or final judgment, and (iv) to the extent permitted by
applicable law, all rights to notice and hearing prior to the exercise by
Lender of its right to repossess Collateral without judicial process or to
replevy, attach or levy upon Collateral without notice or hearing. No
Lender shall have any obligation to preserve rights to Collateral or to
marshal any Collateral for the benefit of any Person.
17.4. Notice.
Any notice of intended action required to be given by either Lender
(including notice of a public or private sale of Collateral), if given as
provided in Section 19.1 at least 10 days prior to such proposed action,
shall be effective and constitute reasonable and fair notice to Borrower.
18. General.
18.1. Lender's Right to Cure.
Lender may from time to time, in its absolute discretion, for Borrower's
account and at Borrower's expense, pay any amount or do any act required of
Borrower under the Loan Documents or requested by Lender to preserve,
protect, maintain or enforce the Loan Obligations, the Collateral or
Lenders Security Interests therein, and which Borrower fails to pay or do,
including payment of any judgment against Borrower which remains unpaid for
a period of thirty days, insurance premium, Taxes or assessments, warehouse
charge, finishing or processing charge, landlord's claim, and any other
Security Interest upon or with respect to the Collateral. All payments
that Lender makes pursuant to this Section and all out-of-pocket costs and
expenses that Lender pays or incurs in connection with any action taken by
them hereunder shall be a part of the Loan Obligations, the repayment of
which shall be secured by the Collateral. Any payment made or other action
taken by Lender 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.
18.2. Rights Not Exclusive.
Every right granted to Lender hereunder or under any other Loan Document or
allowed to them 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 Note and
other Loan Documents and the making of every Advance. All agreements,
obligations and liabilities of Borrower under the Loan Documents concerning
the payment of money to Lender, including Borrower's obligations under
Sections 18.6 and 18.7, 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, the return of the Note to Borrower, and the
termination or cancellation of the Commitments.
Sale of Participations.
Lender may sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this Agreement
provided that the terms of sale satisfy the following requirements:
Lender's obligations under this Agreement shall remain unchanged.
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations.
Lender shall remain the holder of any Note issued to it for the purpose
of this Agreement.
Borrower and Lender shall continue to deal solely and directly with each
other in connection with Lender's rights and obligations under this
Agreement and with regard to Advances and payments to be made under this
Agreement. Participation agreements between Lender and its participants
may, however, provide that Lender will obtain the approval of such
participant prior to Lender agreeing to any amendment or waiver of any
provisions of this Agreement which would (i) extend the maturity of the
Note, (ii) reduce the interest rate on the Loans, (iii) increase any of
the Commitments of the Lender granting the participation, or (iv)
intentionally omitted.
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.
Assignments to Affiliates.
Lender may assign all or any portion of its interest in the Loans to
its Affiliates without the acceptance or consent of Lender or
Borrower, and may assign all or any portion of its interest in the
Loans to the Federal Reserve Bank without acceptance or approval of
Lender or Borrower and without payment of any fees.
Payment of Expenses.
Borrower agrees to pay or reimburse to Lender all of Lender's out-of-
pocket costs incurred in connection with Lender's due diligence review
before execution of the Loan Documents; the negotiation and
preparation of the commitment letters and the Loan Documents; the
perfection of Lender's Security Interest in any Collateral; the
interpretation of any of the Loan Documents; the enforcement of
Lender's rights and remedies under the Loan Documents after a Default
or Event of Default; any amendment of or supplementation to any of the
Loan Documents; and any waiver, consent or forbearance with respect to
any Default or Event of Default. Borrower further agrees to pay or
reimburse to Lender all of Lender's out-of-pocket costs incurred in
connection with the enforcement of Lender's rights and remedies under
the Loan Documents after a Default or Event of Default. Out-of-pocket
costs may include but are not limited to the following, to the extent
they are actually paid or incurred: title insurance fees and premiums;
the cost of searches for Security Interests existing against Borrower;
recording and filing fees; fees for all required appraisals;
environmental consultant fees; 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
Lender and Borrower, including proceedings under the Federal
Bankruptcy Code. All costs which Borrower is obligated to pay or
reimburse to Lender are Loan Obligations payable on demand and are
secured by the Collateral.
General Indemnity.
Borrower shall indemnify and hold harmless Lender and its directors,
officers, employees, agents, and representatives (the "Indemnified
Parties") for, from and against, and promptly reimburse the
Indemnified Parties for, any and all claims, damages, liabilities,
losses, costs and expenses (including reasonable attorneys' fees and
expenses and amounts paid in settlement) incurred, paid or sustained
by the Indemnified Parties in connection with, arising out of, based
upon or otherwise involving or resulting from any threatened, pending
or completed action, suit, investigation or other proceeding by,
against or otherwise involving the Indemnified Parties and in any way
dealing with, relating to or otherwise involving this Agreement, any
of the other Loan Documents, or any transaction contemplated hereby or
thereby, except to the extent that they arise from the gross
negligence, bad faith, or willful misconduct of any of the Indemnified
Parties. Borrower shall indemnify and hold harmless the Indemnified
Parties for, from and against, and promptly reimburse the Indemnified
Parties for, any and all claims, damages, liabilities, losses, costs
and expenses (including reasonable attorneys' and consultant fees and
expenses, investigation and laboratory fees, removal, remedial,
response and corrective action costs, and amounts paid in settlement)
incurred, paid or sustained by the Indemnified Parties as a result of
the manufacture, storage, transportation, release or disposal of any
Hazardous Material on, from, over or affecting any of Collateral or
any of the assets, properties, or operations of Borrower or any
predecessor in interest, directly or indirectly, except to the extent
that they arise from the gross negligence, bad faith or willful
misconduct of any of the Indemnified Parties.
The obligations of Borrower under this Section 18.7 shall survive the
termination or cancellation of the Commitments, the payment and
satisfaction of all of the Loan Obligations, and the release of
Collateral.
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.
Loan Records.
The date and amount of all Advances and payments of amounts due from
Borrower under the Loan Documents will be recorded in the Lender's
records and the records that Lender normally maintains for such types
of transactions. The failure to record, or any error in recording,
any of the foregoing shall not, however, affect the obligation of
Borrower to repay the Loans and other amounts payable under the Loan
Documents. Borrower shall have the burden of proving that Lender's or
Lender's records are not correct. Borrower agrees that Lender's or
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. Lender will
provide to Borrower a monthly statement of Advances, payments, and
other transactions pursuant to this Agreement. Such statements shall
be deemed correct, accurate and binding on Borrower and an account
stated (except for reversals and reapplications of payments as
provided in Section 7.5 and corrections of errors discovered by
Lender), unless Borrower notifies Lender 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.
Other Security and Guaranties.
Lender may, without notice or demand and without affecting Borrower's
obligations hereunder, from time to time: (a) take from any Person and
hold collateral (other than 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 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 in any way obligated to pay all or
any part of the Loan Obligations.
Miscellaneous.
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 two days after being deposited in the United
States mail, postage prepaid, or, in the case of telegraphic notice,
or the overnight courier services, when delivered to the telegraph
company or overnight courier service, or in the case of telex or
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 paragraph. No notice given to or
demand made on Borrower by any Lender in any instance shall entitle
Borrower to notice or demand in any other instance.
Amendments, Waivers and Consents.
Unless otherwise provided herein, no amendment to or waiver of any
provision of this Agreement, or of any of the other Loan Documents,
nor consent to any departure by Borrower herefrom or therefrom, shall
be effective unless it is in writing and signed by authorized officers
of Borrower and Lender. No notice to or demand on Borrower in any
case shall entitle Borrower to any other or further notice or demand
in similar or other circumstances. No failure by any Lender to
exercise, and no delay by 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 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. Each and
every right granted to Lender hereunder or under any other Loan
Document or other document delivered hereunder or in connection with
this Agreement or allowed to them at law or in equity shall be deemed
cumulative and may be exercised from time to time.
Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and all future holders of the Note 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 Lender. 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.
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.
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.
Governing Law; No Third Party Rights.
This Agreement, the other Loan Documents and the Note 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 Missouri applicable to contracts made
and to be performed wholly within such state, without regard to choice
or conflict of laws provisions; except that the provisions of the Loan
Documents pertaining to the creation or perfection of Security
Interests or the enforcement of the rights of Lender in Collateral
located in states other than Missouri, if any, and other related
matters subject to the law of such states, shall be governed by the
laws of such States. 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.
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.
No Other Agreements.
There are no other agreements between Lender and Borrower, oral or
written, concerning the subject matter of the Loan Documents, and all
prior agreements concerning the same subject matter, including the
Commitment Letter, are merged into the Loan Documents and thereby
extinguished.
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.
Choice of Forum.
SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE, BORROWER AND LENDER HEREBY
AGREE TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS OF THE EASTERN
DISTRICT OF MISSOURI, AND THE STATE COURTS OF MISSOURI LOCATED IN ST. LOUIS
COUNTY OR THE CITY OF ST. LOUIS, MISSOURI, AND WAIVE ANY OBJECTION BASED ON
VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND
AGREE THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN LENDER AND BORROWER
OR THE CONDUCT OF ANY OF THEM IN CONNECTION WITH THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR OTHERWISE SHALL BE HEARD ONLY IN THE COURTS DESCRIBED ABOVE.
NOTWITHSTANDING THE FOREGOING: (1) LENDER SHALL HAVE THE RIGHT TO BRING ANY
ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN ANY COURTS OF ANY OTHER
JURISDICTION LENDER DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON
COLLATERAL, REAL ESTATE OR OTHER SECURITY FOR THE LOAN OBLIGATIONS, AND (2) EACH
OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN
THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE THOSE JURISDICTIONS.
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 CERTIFIED
OR REGISTERED. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF LENDER TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Statutory Notice.
The following notice is given pursuant to Section 432.045 of the Missouri
Revised Statutes; nothing contained in such 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the date first above
written.
XXXXXXX/STC, INC. XXXXXXX WIRELESS, INC.
by its Vice President by its Vice President
s/Xxxxxx X. Xxxxxxxxxx s/Xxxxxx X. Xxxxxxxxxx
Notice Address: Notice Address:
C/X XxXxxxx, Inc. C/X XxXxxxx, Inc.
0000X Xxxxxxx Xxxx 0000X Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xx. Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx Attn: Xxxxxx X. Xxxxxxxxxx
FAX # 000-0000 XXX # 000-0000
TEL # 000-0000 XXX # 000-0000
XXXXXXX, INC. BANK OF AMERICA, N.A.
by its Vice President & CFO by its Vice President
s/Xxxxxx X. Xxxxxxxxxx s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Notice Address: Notice Address:
XxXxxxx, Inc. Bank of America, N.A.
0000X Xxxxxxx Xxxx X00-000-00-00
Xx. Xxxxx, XX 00000 000 Xxxxxx Xxxxxx
Attn: Xxxxxx X. Xxxxxxxxxx Xx. Xxxxx, XX 00000
FAX # 000-0000 Attn: Xxxxx X. Xxxxxxx
TEL # 000-0000 XXX # 000-0000
TEL # 000-0000
XXXXXXX OCS, INC.
by its Vice President
s/Xxxxxx X. Xxxxxxxxxx
EXHIBIT 2.1
GLOSSARY AND INDEX OF DEFINED TERMS
"Account Debtor": the obligor on any Account.
"Account": as to any Person, the right of such Person to payment for goods sold
or leased or for services rendered by such Person.
"Acquiring Company": the Person obligated to pay or provide the consideration
payable in connection with a Permitted Acquisition upon the consummation
thereof.
"Advance": a Revolving Advance.
"Affiliate": with respect to any Person, (a) any other Person who is a partner,
director, officer or stockholder of such Person; and (b) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person, and any partner, director, officer or stockholder 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 having the power to vote in an election of directors of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
"Alternate Base Rate Accrual": as to any Loan, the accrual of interest at the
Alternate Base Rate.
"Asbestos Material": either asbestos or asbestos-containing materials.
"Assigned Collateral": any tangible or intangible property of Borrower, now
owned or hereafter acquired, other than the Real Property Collateral and the
Personal Property Collateral in which Lender holds or will hold a Security
Interest under a Collateral Assignment to secure payment or performance of any
of the Loan Obligations as required or contemplated under Section 9.3, and all
proceeds thereof.
"Borrowing Base Certificate": the certificate required to be delivered to Lender
as provided in Section 14.14.
"Borrowing Officer": each officer of Borrower who is authorized to submit a
request for an Advance.
"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 States of Missouri or Colorado.
"Capital Expenditure": an expenditure for an asset that must be depreciated or
amortized under GAAP, for goodwill, or for any asset that under GAAP must be
treated as a capital asset, including payments under Capital Leases.
"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; or
the indenture of a trust.
"Claims Act": the Assignment of Claims Act of 1940, as amended from time to
time.
"Code": the Internal Revenue Code of 1986, as amended from time to time, and all
regulations thereunder of the IRS.
"Collateral Assignment": any of the collateral assignments required or
contemplated under Section 9.3 to be executed and delivered to Lender, as it may
be amended, restated, or replaced from time to time.
"Collateral": all of the Real Property Collateral, Personal Property
Collateral, and other property in which Lender has a Security Interest to secure
payment or performance of the Loan Obligations.
"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.
"Default": any of the events listed in Section 17.1 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 the Loans after their Maturity
or upon the occurrence of an Event of Default as provided in Section 4.6.
"Disclosure Schedule": the Disclosure Schedule of Borrower attached hereto as
Exhibit 12.
"DOL": the United States Department of Labor.
"Dollars": and the sign "$", lawful money of the United States.
"Effective Date": the date when this Agreement is effective as provided in
Section 1.
"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.
"Encumbrance": as to any Item of real or personal property, any easement,
right-of-way, license, condition, or restrictive covenant, or zoning or similar
restriction, that is not a Security Interest but is enforceable by any Person
other than the record owner of such property.
"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 Law pertaining to environmental
quality or remediation of Hazardous Material.
"EPA": the United States Environmental Protection Agency.
"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.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended from
time to time.
"Event of Default": any of the events listed in Section 17.1 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.
"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
Lender.
"Federal Funds Rate": the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided that (a)if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b)if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Seller on such day on such transactions
as determined by Lender.
"Financial Statements": financial statements of Borrower that are furnished to
Lender as required in Section 14.13 of this Agreement.
"FRB": the Board of Governors of the Federal Reserve System and any successor
thereto or to the functions thereof.
"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.
"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 Asbestos 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 Material which is not friable.
"Indebtedness": as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii) to
pay the deferred purchase price of property or services; (iii) to make payments
or reimbursements with respect to bank acceptances or to a factor; (iv) to make
payments or reimbursements with respect to letters of credit whether or not
there have been drawings thereunder; (v) with respect to which there is any
Security Interest in any property of such Person; (vi) to make any payment or
contribution to a Multi-Employer Plan; (vii) that is evidenced by a note, bond,
debenture or similar instrument; (viii) under any conditional sale agreement or
title retention agreement; or (ix) to pay interest or fees with respect to any
of the foregoing.
"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, or (v) otherwise assure or hold
harmless the beneficiary of any Obligation of another Person against loss in
respect thereof; and (d) 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 of Borrower referred to
in Section 12.13.
"Insurance/Condemnation Proceeds": insurance proceeds payable as a consequence
of damage to or destruction of any of Collateral and proceeds payable as a
consequence of condemnation or sale in lieu of condemnation of any of
Collateral.
"Intellectual Property": as to any Person, any domestic or foreign patents or
patent applications of such Person, any inventions made or owned by such Person
upon which either domestic or foreign patent applications have not yet been
filed, any domestic or foreign trade names or trademarks of such Person, any
domestic or foreign trademark registrations or applications filed by such
Person, any domestic or foreign service marks of such Person, any domestic or
foreign service xxxx registrations and applications by such Person, any domestic
or foreign copyrights of such Person, and any domestic or foreign copyright
registrations or applications by such Person.
"Interest Hedge Obligation": any obligations of Borrower to Lender under an
agreement or agreements between Borrower and Lender 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.
"Interest Period": the period during which a particular LIBO Rate applies to the
Loans, as selected by Borrower as provided in Section 4.2.
"Inventory": goods owned and held by a Person for sale, lease or resale or
furnished or to be furnished under contracts for services, and raw materials,
goods in process, materials, component parts and supplies used or consumed, or
held for use or consumption in such Person's business.
"Investment": (a) a loan or advance of money or property to a Person, (b) stock
or other equity interest in a Person, (c) a debt instrument issued by a Person,
whether or not convertible to stock or other equity interest in such Person, or
(d) any other interest in or rights with respect to a Person which include, in
whole or in part, a right to share, with or without conditions or restrictions,
some or all of the revenues or net income of such Person.
"IRS": the Internal Revenue Service.
"Law": any statute, rule, regulation, order, judgment, award or decree of any
Governmental Authority.
"Lender": Bank of America, N.A.
"Lending Office": 000 Xxxxxx Xxxxxx, Xx. Xxxxx, XX 00000
"Letter of Credit Commitment": the commitment of Lender 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 by Lender for the account of Borrower plus all amounts drawn on
such letters of credit and not yet reimbursed to Lender by Borrower.
"LIBOR Accrual": the accrual of interest at the LIBO Rate.
"Loan" or "Revolving Loan": the from time to time outstanding principal balance
of a Revolving Advance.
"Loan Documents": this Agreement, the Note, the Security Documents and all other
agreements, certificates, documents, instruments and other writings executed in
connection herewith.
"Loan Obligations": all of Borrower's Indebtedness owing to Lender under the
Loan Documents, whether as principal, interest, fees or otherwise, all
reimbursement obligations of Borrower to Lender with respect to the Letter of
Credit Exposure, all other obligations and liabilities of Borrower to Lender
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, and whether or not
presently contemplated by Borrower and Lender in the Loan Documents.
"Material Adverse Effect": as to any Person and with respect to any event or
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, investigation or proceeding), a material adverse effect
on the business, operations, revenues, financial condition, property, or
business prospects of such Person taken as a whole, or the value of Collateral,
or the ability of such Person to timely pay or perform such Person's Obligations
generally, or in the case of Borrower specifically, the ability of Borrower to
pay or perform any of Borrower's Obligations to Lender, or in the case of a
Guarantor, the ability of such Guarantor to pay or perform any of its Guarantied
Obligations (as defined in 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, would
have a Material Adverse Effect on such Person, Borrower or any Guarantor.
"Material Law": any Law whose violation by a Person would have a Material
Adverse Effect on such Person.
"Material License": (i) as to any 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 would
have a Material Adverse Effect on Borrower or a 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 would have a Material Adverse Effect on
such Person.
"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 Borrower as a party
or any property of Borrower, and would have a Material Adverse Effect on
Borrower if adversely determined, (ii) in which there has been issued an
injunction, writ, temporary restraining order or any other order of any nature
which purports to restrain or enjoin the making of any Advance, the consummation
of any other transaction contemplated by the Loan Documents, or the
enforceability of any provision of any of the Loan Documents, (iii) which
involves the actual or alleged breach or violation by Borrower of, or default by
Borrower under, any Material Agreement, or (iv) which involves the actual or
alleged violation by Borrower of any Material Law.
"Maturity Date": the date specified in Section 6.1.
"Maturity": as to any Indebtedness, the time when it becomes payable in full,
whether at a regularly scheduled time, because of acceleration or otherwise.
"Mortgage": any deed of trust or mortgage required or contemplated under
Section 9.1 to be executed and delivered to Lender, as it may be amended,
restated, or replaced from time to time.
"Multi-employer Plan": a Pension Benefit Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
"Note": the Revolving 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.
"Operating Lease": any lease that is not a Capital Lease.
"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 and in respect of which a Person or
a Commonly Controlled Entity of such Person is an "employer" as defined in
Section 3(5) of ERISA, excluding any Multi-employer Plan.
"Permitted Encumbrances": as to any Real Property Collateral, the encumbrances
permitted by Lender in its absolute discretion and identified as Permitted
Encumbrances in the Mortgage covering such Real Property Collateral.
"Permitted Indebtedness": Indebtedness that Borrower is permitted under
Section 15.2 to incur, assume, or allow to exist.
"Permitted Indirect Obligations": Indirect Obligations that Borrower may create,
incur, assume or allow to exist as permitted in Section 15.4.
"Permitted Investments": Investments that Borrower is permitted under
Section 15.1 to make in other Persons.
"Permitted Security Interests": Security Interests that Borrower is permitted
under Section 15.5 to create, incur, assume, or allow to exist.
"Person": any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, limited liability
partnership, 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.
"Personal Property Collateral": all of the Goods, Equipment, Accounts,
Inventory, Instruments, Documents, Chattel Paper, General Intangibles, and other
personal property and Fixtures of Borrower, whether now owned or hereafter
acquired, in which Lender holds or will hold a Security Interest under the
Security Agreement to secure the payment or performance of any of the Loan
Obligations as required or contemplated in Section 9.2, and all proceeds
thereof.
"Prime Rate": on any day, the rate of interest per annum then most recently
established by Lender as its prime rate, which 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 Lender to any customer or favored rate and may not
correspond with future increases or decreases in interest rates charged by other
lenders or market rates in general.
"Qualified Financial Institution": a commercial bank chartered under the laws of
the United States or any state thereof having capital and surplus of not less
than $250,000,000.
"Real Property Collateral": all real property of Borrower, whether now owned or
hereafter acquired, in which Lender holds or will hold Security Interest to
secure the payment or performance of any of the Loan Obligations as required or
contemplated under Section 9.2, and all income therefrom and proceeds thereof.
"Real Property Lease Collateral": all leases of real property under which
Borrower is a tenant or lessee and which are assigned or will be assigned to
Lender to secure the payment or performance of any of the Loan Obligations as
required or contemplated under Section 9.3 and all income therefrom and proceeds
thereof.
"Regulation D", "Regulation G", and Regulation U": respectively, Regulation D
issued by the FRB, Regulation G issued by the FRB, and Regulation U issued by
the FRB.
"Reportable Event": a reportable event as defined in Title IV of ERISA or the
regulations thereunder.
"Responsible Officer": as to any Person that is not an individual, partnership
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; and as
to any trust, any individual who is a trustee.
"Revolving Advance": an advance to Borrower under the Revolving Commitment.
"Revolving Commitment": the commitment of Lender as stated in Section 3.1.1 to
make Revolving Advances.
"Revolving Loan" or "Loan": the from time to time outstanding principal balance
of a Revolving Advance.
"Revolving Note": the note delivered to each Lender as required by Section 3.1.3
to evidence Borrower's obligation to repay the Revolving Advances made by Lender
hereunder.
"Security Agreement": any security agreement required or contemplated under
Section 9.2 to be executed and delivered to Lender, and all amendments,
restatements, and replacements thereof.
"Security Documents": all of the documents required or contemplated to be
executed and delivered to Lender under Section 9, and any similar documents at
any time executed and delivered to Lender, by Borrower or any other Person to
secure payment or performance of any of the Loan Obligations, and all
amendments, restatements, and replacements thereof.
"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.
"Senior Funded Debt" is defined in Section 16.1.
"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 428.014 of the Missouri Revised
Statutes, (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 428.024 of the Missouri Revised Statutes, 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 428.024 of
the Missouri Revised Statutes.
"Subordinated Indebtedness": the Indebtedness of Borrower under $5,621,000 in
total principal amount of 7.5% Subordinated Notes of Borrower due June, 2003,
that were issued in March, 1999, in connection with Borrower's acquisition of
Open Cellular Systems, Inc., and all other Indebtedness of Borrower that is
subordinated to the Loan Obligations pursuant to documents that are satisfactory
to Lender.
"Subsidiary": as to any Person, a corporation with respect to which more than
20% of the outstanding shares of stock 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, (ii) the survivor of the merger of an Acquiring Company
with a Target Company in a Permitted Acquisition upon the consummation thereof,
or (iii) the Target Company whose stock will be acquired by another Person in a
Permitted Acquisition upon the consummation thereof.
"Target Company": the Person whose assets or stock 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, assessment, fee, or other charge levied by a
Governmental Authority 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), as amended from time to time.
"UCC": the Uniform Commercial Code as in effect from time to time in the State
of Missouri or such other similar statute as in effect from time to time in
Missouri or any other appropriate jurisdiction.
"United States": when used in a geographical sense, all the states of the United
States of America and the District of Columbia; and when used in a legal
jurisdictional sense, the government of the country that is the United States of
America.
"Welfare Benefit Plan": any plan described by Section 3(1) of ERISA.
EXHIBIT 10.1.1
DOCUMENTS AND REQUIREMENTS LIST
This Amended and Restated Loan Agreement
The Revolving Note
Opinion of Counsel to Borrower covering the subject matter described in the
Opinion Specification attachment hereto
Secretary's Certificate of each Borrower (certifying resolutions authorizing
execution and performance of the Loan Documents and incurrence of the Loan
Obligations pursuant thereto, Articles or Certificate of Incorporation, Bylaws
and Incumbency)
Good Standing Certificates for each Borrower
Compliance Certificate in form of Exhibit 14.13 for period ended December 31,
2001
Borrowing Base Certificate dated as of December 31, 2001, in form of Exhibit
14.14
Attachment to Documents and Requirements List
Opinion Specification
Legal opinion of counsel to Borrowers must be on firm letterhead and together
meet these requirements with respect to each Borrower:
1. Address to Bank of America, N.A. at the Lending Office.
2. Refer to Loan Agreement and use its definitions.
3. Give opinions on the subjects covered in all of the following example
paragraphs with respect to each Borrower:
a. Borrower is a corporation duly formed, validly existing and in good
standing under the Laws of the State of Delaware and is duly qualified and
authorized to do business and is in good standing as a foreign corporation in
all states where the nature and extent of the
business transacted by it or the
ownership of its assets makes such qualification necessary, except where the
failure to so qualify will not have a Material Adverse Effect.
b. Borrower has all requisite corporate power, authority and legal capacity
and legal rights (a) to own, lease and
operate its properties and assets and to
carry on its business as now being conducted and (b) to execute, deliver and
perform the terms of the Loan Documents to which it is a party.
c. All action on the part of Borrower requisite for the execution, delivery
and performance of the Loan Documents to which it is a party has been duly
taken.
d. The execution, delivery and performance of the Loan Documents by Borrower
will not (a) violate, be in conflict with, result in the breach of, or
constitute (with due notice or lapse of time, or both) a default under (i)
Borrower's Charter Documents, or (ii) any franchise, agreement, indenture, or
other instrument to which Borrower is a party or by which it or any of its
property is bound or affected or (iii) any Law or other legal requirement
applicable to Borrower, or (b) result in the creation or imposition of a
Security Interest of any nature whatsoever upon Borrower's property or assets
other than pursuant to the Loan Documents.
e. Borrower has duly executed and delivered each of the Loan Documents to
which it is a party and each such Loan
Document constitutes the legal, valid and
binding obligation of Borrower enforceable
against Borrower in accordance with
its terms.
f. Each Person who signed any Loan Document as an officer of Borrower is duly
authorized on behalf of Borrower to execute,
deliver and perform such document
on behalf of Borrower and is duly authorized to perform its obligations
thereunder and to incur the obligations
and make the representations, warranties
and covenants made by it in such Loan Document.
g. Borrower has all certificates of authority, licenses, permits,
qualifications and documentation to own,
lease and operate its properties and to
carry on its business as now being conducted,
and is in compliance with all Laws
applicable to the conduct of its business.
h. No consent, approval or other authorization of or by, or registration or
filing with, any Governmental Authority or other Person is required in
connection with the execution, delivery
and performance by Borrower of the Loan
Documents to which it is a party that has not
already been obtained and a copy
thereof delivered to Borrower.
i. There are no actions, proceedings or investigations pending or threatened
against Borrower which might adversely
affect the validity or enforceability of
any of the Loan Documents, the ability of Borrower to perform its obligations
thereunder or which might adversely affect
the business, operations, revenues,
financial condition, property or business prospects of Borrower.
j. The use of the proceeds of the Loans will not violate Regulations T, U or X
of the Federal Reserve Board.
k. The Security Documents are still in full force and effect.
4. Add appropriate exceptions and limitations, all of which must be acceptable
to Lender.
5. Signature by a partner of the firm in his or her individual name or in the
name of the firm.
EXHIBIT 12
DISCLOSURE SCHEDULE OF BORROWER
Section Description
--------- ------------------------------
12.7 Collective bargaining agreement with respect to
Borrower's Joplin, Missouri, facilities dated
January 10, 1999, by and
between Borrower and General
Drivers and Helpers, Local
Union No. 823, affiliated
with the International Brotherhood of Teamsters.
12.8, A proceeding involving EPA is pending at Borrower's
12.10.1, Joplin, Missouri, facilities
which may or may not have a
12.10.3, Material Adverse Effect
and which may or may not involve
12.10.4, Hazardous Materials.
12.10.5,
and
12.10.6
12.11 XxXxxxx, Inc. utilizes the trade name "XxXxxxx
Electronics" from time to time. UCC-1 financing
statements have been filed
against XxXxxxx, Inc. under
the name XxXxxxx Electronics.
12.23 The Management Retirement
Savings Plan of XxXxxxx, Inc.,
a deferred compensation plan for a select group of
management or highly compensated employees, is not
qualified under Section 401 of the Code.
12.23.5 Central States Fund relating to the Teamster
International Health and Welfare Plan.
12.26 (i) Real Property Owned by Borrower:
Owner Address/Description
--------------------------
XxXxxxx, Inc. Berryville Plant, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
XxXxxxx, Inc. Joplin Plant #1, 0000 Xxxxxx Xxxx,
Xxxxxx, XX 00000
(ii) Real Property Leased by Borrower:
Lessee Address/Description Owner
-------- ---------- -------
1. XxXxxxx, Inc. Plant at 403 XxXxxxx Attn: Xxxxxx
Avenue Wilshire
Huntsville, AR Madison
72740 Industrial
Development
0000 X. Xxxxxx
Xxxxxx Xxxx,
XX 00000
2. XxXxxxx, Inc. Plant at 0000 Xxxxx Xxxxxx
Xxxx. Xxxxxxxx
Xxxxxx, XX 00000 00000 Xxxxxxx
Xxxxxxx Xxxxx
Xxxxx, XX
00000
3. XxXxxxx, Inc. Plant at 00000 X. Xxxxxx II
00xx Xx. x/x Xxxxxx
Xxxxx, XX 00000 Associates
Attn: X.X.
Xxxxxx XX
000 Xxxxxxxxxx
Xxx.,
Xxxxx 0
Xxx Xxxxx, XX
00000
4. XxXxxxx, Inc. Tulsa Plant 2 Rainbow I - An
Suite No. 107, 108, OK Gen.
109 Partnership
12626 East 69th c/o Grant
Street Brothers, Inc.
Xxxxx, XX 00000 00000 Xxxx
00xx Xxxxxx,
Xxxxx 000
Xxxxx, XX
00000
5. XxXxxxx, Inc. 00000 Xxxx 00xx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxx, XX 00000 Company of
America
c/o Household
Attn: Leasing,
Licensing &
Contracts
0000 Xxxxxxx
Xxxx
Xxxxxxxx
Xxxxxxx, XX
00000
6. XxXxxxx, Inc. Berryville Storage Xxxxxxxx
Xxxxxxxx Shopping Family Ltd.
Center Partnership
000 Xxxxxx Xxxxxx c/o Shirley
Xxxxxxxxxx, XX Xxxxxxxx
00000 000 Xxxxxx
Xxxxxx
Xxxxxxxxxx, XX
00000
7. XxXxxxx/STC, Inc. Plant at University
XxXxxxx/STC, Inc. Business Park
A Subsidiary of Schlumberger
XxXxxxx, Inc. Limited
0000 Xxxx Xxxxxxx 000 Xxxxxxxxxx
Xxxxxxx, XX 00000 Blvd.
Xxxxx Xxxx, XX
00000
8. XxXxxxx, Inc. Joplin Warehouse Xxxxxxx X. and
0000 Xxxx 00xx Xxxxxxx X.
Xxxxxx Xxxxxx
Xxxxxx, XX 00000 Rural Route 6,
(1113 A-2 Xxxxx Xxxx Xxx 000
Xxxx) Xxxxxx, XX
new street name as 64804
of 7/1/2001
12.27.4 Registered Trademarks of XxXxxxx, Inc.:
U.S. Reg. No. 764,803 on LA BARGE.
U.S. Reg. No. 925,365 on LBI (STYLIZED).
Trade Names of XxXxxxx, Inc.:
XxXxxxx Electronics
12.28.1 See items Sections 12.26
12.28.2 See Item for Section .12.26
12.28.3 See Item for Section 12.26.
12.32 1. XxXxxxx/STC, Inc.,
a wholly-owned subsidiary of
XxXxxxx, Inc.
2. XxXxxxx Wireless, Inc.,
a wholly-owned subsidiary
of XxXxxxx, Inc.
Attachment 1 to Disclosure Schedule
Legal Descriptions of Real Property to be Mortgaged
as Security for Loan Obligations
Borrower's real property includes the following, which will be mortgaged to
Lender to secure payment of the Loan Obligations:
0000 Xxxxxx Xxxx, Xxxxxx, XX
All of Lots Numbered Seven (7) and Eight (8) in CHAMBER OF COMMERCE ADDITION to
the City of Xxxxxx, Xxxxxx County, Missouri, according to the recorded Plat
thereof and that part of vacated streets described as follows: A tract of land
commencing at the East Line of Maiden Lane, 30 feet North of the Northwest
corner of Lot 7 in the Chamber of Commerce Addition to the City of Joplin, which
place of beginning is otherwise described as the point where the East line of
Maiden Lane meets the Center line of vacated 15th Street, thence East along the
center line of vacated 00 Xxxxxx 000 feet, thence South 30 feet to the North
line of the aforesaid Lot 7, thence East along the South line of vacated 00xx
Xxxxxx to the West right-of-way line of the Missouri, Pacific Railroad, thence
Southwesterly along the West right-of-way line of the Missouri Pacific Railroad
to its point of interSection with the North right-of-way line of the St. Louis
and San Francisco Railroad, thence Southwesterly along the North right-of-way
line of the St. Louis and San Francisco Railroad (a distance of 402.73 feet more
or less), to a point where the West line of the East Half (1/2) of vacated
Harlem Avenue intersects with said North right-of-way line of the St. Louis and
San Francisco Railroad, thence Northward along the center line of vacated Harlem
Avenue), (a distance of 148.83 feet more or less), to a point where the South
line of Lot 7, in Chamber of Commerce Addition to the City of Joplin, would
intersect, if such South line of Lot 7 were projected eastward to the Center of
vacated Harlem Avenue, thence West along said projected line of the South line
of Lot 7 in Chamber of Commerce Addition (a distance of 30 feet) to the
Southeast corner of said Lot 7, thence West along the South line of said Lot 7,
( a distance of 300 feet) to the Southwest corner of said Xxx 0, xxxx Xxxxxxxxx
xxxxxx xx Xxx 0 being on the East line of Maiden Lane thence North along the
East line of Maiden Lane to the place of beginning 30 feet North of the
Northwest corner of said Lot 7, where the east line of Maiden Lane meets the
center line of vacated 00xx Xxxxxx; the tract herein described being all in the
Chamber of Commerce Addition to the city of Joplin, and located on part of the
Northwest Quarter (NW 1/4) of the Southwest Quarter (SW 1/4), Xxxxxxx 00,
Xxxxxxxx 00, Xxxxx 00, Xxxxxx Xxxxxx, Xxxxxxxx.
000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX
The Land is comprised of (i) all of the Mortgagor's leasehold estate (except the
last day of the original term thereof unless extended, in which case excepting
the last day of the extended term) created, and owned by the mortgagor, by
virtue of a certain Lease Agreement dated as of December 1, 1981 by and between
the City of Berryville, Arkansas, as Lessor, and the Mortgagor, as Lessee, said
lease being recorded in the Office of the Circuit Clerk and Ex Officio Recorder
of Xxxxxxx County, Arkansas at Mortgage Book 104, page 654-708 (said lease, as
so evidenced of record, together with all future amendments consented to by the
Mortgagee, herein called the "Ground Lease") and (ii) all of the Mortgagor's
right, title and interest in, to and under the Ground Lease including, without
limitation, all credits, deposits, options, right of first refusal and
privileges of the Mortgagor thereunder. The Ground Lease demises the following
legally described property:
XXX 0 XX XXX XXXXXXXXXX XXXX XX XXX XXXX OF BERRYVILLE, ARKANSAS, AS RECORDED IN
PLAT BOOK "E", PAGE 0, XXXXXXX XXXXX'X XXXXXX, XXXXXXX XXXXXX, XXXXXXXX.
Common Address: North East Corner of the interSection of Xxxxxxx Switch Road
and Commercial Avenue, Berryville, Arkansas 72616
Attachment 2 to Disclosure Schedule
Intellectual Property to be Assigned for Loan Obligations
Borrower's Intellectual Property includes the following, which has been assigned
to Lender to secure payment of the Loan Obligations:
Same as disclosed in Item 12.27.4 of the Disclosure Schedule.
EXHIBIT 14.13
FORM OF COMPLIANCE CERTIFICATE
TO: THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
This Compliance Certificate is furnished pursuant to that certain Amended
and Restated Loan Agreement effective February 1, 2002 (as the same may be
amended, restated or otherwise modified from time to time, the "Loan
Agreement"), between Xxxxxxx, Inc., et al., as Borrower, and Bank of America,
N.A., as lender. 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 duly elected of the 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 Event of Default as of the date of this Compliance
Certificate; and to my knowledge all of the representations and
warranties of Borrower contained in the Loan Agreement and other Loan
Documents are true and correct.
4. {Use for annual financial statements: Schedule I attached hereto
contains the Financial Statements for Borrower for the fiscal year
ended , which are complete and correct in all material
respects and have been prepared in accordance with GAAP applied
consistently throughout the period and with prior periods (except as
disclosed therein).}
{Use for quarterly and monthly financial statements: Schedule I
attached hereto contains the Financial Statements for Borrower for the
fiscal {quarter} {month} ended , which are complete and
correct in all material respects (subject to normal year-end audit
adjustments) and have been prepared in accordance with GAAP applied
consistently throughout the period and with prior periods (except as
disclosed therein).}
5. To my knowledge, Borrower and every other Covered Person is in
compliance with all of the covenants in the Loan Agreement, including
the financial covenants in Section 16, 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 ___________________________.
Print Name:
Title:
SCHEDULE I TO COMPLIANCE CERTIFICATE
See current Financial Statements.
SCHEDULE II TO COMPLIANCE CERTIFICATE
SECTION 16 FINANCIAL MEASUREMENTS
I. Capital Expenditures (Section 16.2)
A. Capital Expenditures $_________
B. Capital Expenditure permitted by
Section 16.2 $4,000,000
II. Minimum Fixed Charge Coverage (Section 16.3)
A. Net income $_________
+ federal, state and local Tax expense $_________
+ Interest expense $_________
+ Depreciation and amortization expense $_________
+ Losses on the sale or other disposition of assets $_________
+ Extraordinary losses $_________
- Gains from sale or other disposition of assets $_________
- Extraordinary Gains $_________
= EBITDA $_________
B. Interest expense $_________
+ sum of all scheduled principal payments on any
Indebtedness of Borrower (including the Loans) $_________
+ Federal, state and local income taxes payable $_________
+ Dividends paid $_________
+ Capital Expenditures $_________
= FIXED CHARGES $_________
C. Ratio of EBITDA to Fixed Charges (ratio of II.A to II.B) __________
D. Minimum ratio permitted by Section 16.3 1.25 to 1.00
III. Minimum Net Worth (Section 16.4)
A. Total Assets $_________
B. Total Liabilities $_________
C. TANGIBLE NET WORTH (Item III.A minus
items III.B and III.C) $_________
D. Minimum Net Worth required
by Section 16.4: $_________
IV. Maximum Funded Debt to EBITDA (Section 16.5)
A. Total Indebtedness $_________
+ Unamortized capitalized amount of all Capital Leases $_________
= FUNDED DEBT $_________
B. EBITDA (Item II.A above) $_________
C. Ratio of Funded Debt to EBITDA
(Ratio of Item V.A. to Item V.B) _________
D. Maximum ratio permitted by Section 16.5: 2.50 to 1.00
EXHIBIT 14.14
BORROWING BASE CERTIFICATE
Accounts Rec per Aging: $
Reclass Unpaid Prog Bills $
Accruals-Net $
Accounts Rec per Stmt
Less: $
Noticom Receivables $
Net Accrued Revenues $
Government $
Receivables
Foreign Receivables $
Debit Memos $
Over 90 $
Freight $
Cross Age $
Contra A/R $
Total Ineligibles $
Eligible Accounts Rec $
Advance Rate 85%
Raw Material $
Work in Process $
Gross Inventories $
Less: $
Unliquidated Prog $
Bills
Reclass Unpaid Prog $
Bills
Reserves $
Total Adjustments $
Eligible Raw Mat & WIP $
Advance Rate 30%
Limit Check NO LIMIT
Maximum limit check NO LIMIT
Finished Goods: $
Accruals - Net $
Debits $
Gross Profit comp $
(33%)
Eligible Finished Goods $
Advance Rate 50%
NO LIMIT
Preliminary Borrowing $
Base
Limit Adjustments $
Cap limitation $
Less Letter of Credits $
Total Revolver Borrowings $
Allowed
Maximum Availability $
Unpd Revolving Loans on $
_____________
Payment required herewith $
Borrower hereby certifies that (i) Borrower is not in Default under the Loan
Agreement and (ii) the foregoing computations evidencing Borrower's Borrowing
Base and availability under the Loan Agreement are believed by Borrower to be
true, complete and correct as of the date written above. Attached is a copy of
the most recent Compliance Certificate delivered to Lender.
Print Name:
Title:
TABLE OF CONTENTS
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 Persons. 1
2.4. References to Borrower. 1
2.5. Accounting Terms. 1
2.6. "Satisfactory". 1
2.7. Computation of Time Periods. 1
2.8. General. 2
3. Lender's Commitments. 2
3.1. Revolving Commitments. 2
3.1.1. Revolving Advances. 2
3.1.2. Limitation on Revolving Advances. 2
3.1.3. Revolving Note. 2
3.1.4. Borrowing Base. 3
3.1.5. Eligible Accounts. 3
3.1.6. Eligible Inventory. 5
3.2. Letter of Credit Commitment. 5
4. Interest; Yield Protection. 5
4.1. Interest on the Loans. 5
4.2. Interest Periods. 6
4.3. Conversion of a Loan. 6
4.4. Time of Accrual. 7
4.5. Computation. 7
4.6. Rate After Maturity. 7
4.7. Taxes on Payments. 7
4.8. Compensation for Increase In Costs of Loans Subject to LIBOR
Accrual. 7
4.9. Capital Adequacy Reimbursement. 8
4.10. Usury. 8
5. Fees. 8
5.1. Commitment Fee. 8
5.2. Letter of Credit Fees. 9
6. Scheduled Payments. 9
6.1. Maturity Date. 9
6.2. Interest Payments Before Maturity Date. 9
7. Prepayments and Reduction of Revolving Commitment. 9
7.1. Voluntary Prepayments. 9
7.2. Mandatory Prepayments. 9
7.2.1. Proceeds from Sales of Assets. 9
7.2.2. Indebtedness. 10
7.2.3. Proceeds from Sale of Securities. 10
7.2.4. Maximum Available Amount Exceeded. 10
7.3. Manner of Payments and Timing of Application of Payments. 10
7.3.1. Payment Requirement. 10
7.3.2. Application of Payments and Proceeds. 10
7.4. Direct Debit. 10
7.5. Returned Instruments. 11
7.6. Compelled Return of Payments or Proceeds. 11
7.7. Due Dates Not on Business Days. 11
8. Procedure for Obtaining Advances and Letters of Credit. 11
8.1. Revolving Advances. 11
8.2. Lender's Right to Make Other Revolving Advances. 11
8.2.1. Payment of Loan Obligations. 11
8.2.2. Payments to Other Creditors. 11
8.3. Letters of Credit. 12
8.4. Amount, Number, and Purpose Restrictions on Revolving Advances.
12
8.5. Each Request for a Revolving Advance a Certification.12
8.6. Requirements for Every Advance Request. 12
8.7. Requirements for Every Letter of Credit Request. 12
8.8. Exoneration of Lender. 12
9. Security and Guaranties. 12
9.1. Mortgages. 12
9.2. Security Agreements. 13
9.3. Collateral Assignments. 13
10. Conditions. 13
10.1. Conditions to Advances. 13
10.1.1. Listed Documents and Other Items. 13
10.1.2. Representations and Warranties. 13
10.1.3. No Default. 14
10.1.4. Perfection of Security Interests. 14
10.1.5. Payment of Fees. 14
10.1.6. Material Proceedings. 14
10.1.7. No Material Adverse Change. 14
10.1.8. Other Items. 14
11. Conditions to Issuance of Letters of Credit. 14
11.1. Reimbursement Agreement. 14
11.2. No Prohibitions. 14
11.3. Conditions to Advances. 14
11.4. Representations and Warranties. 14
11.5. No Default. 15
11.6. No Material Adverse Change. 15
12. Representations and Warranties. 15
12.1. Organization and Existence. 15
12.2. Authorization. 15
12.3. Due Execution. 15
12.4. Enforceability of Obligations. 15
12.5. Burdensome Obligations. 15
12.6. Legal Restraints. 15
12.7. Labor Contracts and Disputes. 16
12.8. No Material Proceedings. 16
12.9. Material Licenses. 16
12.10. Compliance with Material Laws. 16
12.10.1. General Compliance with Environmental Laws.16
12.10.2. General Compliance with Employment Laws. 16
12.10.3. Proceedings. 16
12.10.4. Investigations Regarding Hazardous Materials. 16
12.10.5. Notices and Reports Regarding Hazardous Materials.
16
12.10.6. Hazardous Materials on Real Property. 16
12.11. Other Names. 17
12.12. Solvency. 17
12.13. Financial Statements. 17
12.14. No Change in Condition. 17
12.15. No Defaults. 17
12.16. Investments. 17
12.17. Indebtedness. 17
12.18. Indirect Obligations. 17
12.19. Encumbrances. 17
12.20. Operating Leases. 17
12.21. Capital Leases. 17
12.22. Tax Liabilities; Governmental Charges. 17
12.23. Pension Benefit Plans. 18
12.23.1. Prohibited Transactions. 18
12.23.2. Claims. 18
12.23.3. Reporting and Disclosure Requirements. 18
12.23.4. Accumulated Funding Deficiency. 18
12.23.5. Multi-employer Plan. 18
12.24. Welfare Benefit Plans. 18
12.25. Retiree Benefits. 18
12.26. Real Property. 19
12.27. State of Collateral and other Property. 19
12.27.1. Accounts. 19
12.27.2. Inventory. 19
12.27.3. Equipment. 20
12.27.4. Intellectual Property. 20
12.27.5. Documents, Instruments and Chattel Paper. 20
12.28. Chief Place of Business; Locations of Collateral.20
12.29. Negative Pledges. 20
12.30. Security Documents. 21
12.30.1. Security Agreements. 21
12.30.2. Collateral Assignments. 21
12.30.3. Mortgages. 21
12.31. S Corporation. 21
12.32. Subsidiaries and Affiliates. 21
12.33. Margin Stock. 21
12.34. Securities Matters. 21
12.35. Investment Company Act, Etc. 21
12.36. No Material Misstatements or Omissions. 21
12.37. Filings. 22
12.38. Broker's Fees. 22
12.39. Eligibility of Xxxxxxxxxx. 00
00. Survival of Representations. 22
14. Affirmative Covenants. 22
14.1. Use of Proceeds. 22
14.2. Corporate Existence. 22
14.3. Maintenance of Property and Leases. 22
14.4. Insurance. 22
14.5. Payment of Taxes and Other Obligations. 23
14.6. Compliance With Laws. 23
14.6.1. Environmental Laws. 23
14.6.2. Pension Benefit Plans. 23
14.6.3. Employment Laws. 24
14.7. Discovery and Clean-Up of Hazardous Material. 24
14.7.1. In General. 24
14.7.2. Asbestos Clean-Up. 24
14.8. Termination of Pension Benefit Plan. 24
14.9. Notice to Lender of Material Events. 25
14.10. Borrowing Officer. 27
14.11. Maintenance of Security Interests of Security Documents.
27
14.11.1. Preservation and Perfection of Security Interests.
27
14.11.2. Collateral Held Off Borrower's Premises. 27
14.11.3. Compliance With Terms of Security Documents.27
14.12. Accounting System. 27
14.12.1. Account Records. 27
14.12.2. Inventory Records. 28
14.13. Financial Statements. 28
14.13.1. Annual Financial Statements. 28
14.13.2. Quarterly Financial Statements. 28
14.13.3. Monthly Financial Statements. 28
14.14. Borrowing Base Certificate. 28
14.15. Audits by Lender. 29
14.16. Verification of Accounts and Notices to Account Debtors.
29
14.17. Access to Officers and Auditors. 29
14.18. Further Assurances. 29
14.19. Future Subsidiaries Shall Become Guarantors. 29
15. Negative Covenants. 30
15.1. Investments. 30
15.2. Indebtedness. 30
15.3. Prepayments. 30
15.4. Indirect Obligations. 30
15.5. Security Interests. 31
15.6. Acquisitions. 31
15.7. Transactions With Affiliates. 31
15.8. Distributions. 31
15.9. Change of Control. 32
15.10. Capital Structure; Equity Securities. 32
15.11. Conflicting Agreements. 32
15.12. Transactions Having a Material Adverse Effect. 32
15.13. Disposal of Assets. 32
16. Financial Covenants. 32
16.1. Special Definitions. 32
16.2. Capital Expenditures. 33
16.3. Minimum Fixed Charge Coverage. 33
16.4. Minimum Net Worth. 33
16.5. Maximum Senior Funded Debt to EBITDA Ratio. 33
17. Default. 33
17.1. Events of Default. 33
17.1.1. Failure to Pay Principal or Interest. 33
17.1.2. Failure to Pay Other Amounts Owed to Lender.33
17.1.3. Failure to Pay Amounts Owed to Other Persons. 33
17.1.4. Acceleration of Other Indebtedness. 33
17.1.5. Representations or Warranties. 34
17.1.6. Certain Covenants. 34
17.1.7. Financial Covenants. 34
17.1.8. Other Covenants. 34
17.1.9. Default Under Other Agreements. 34
17.1.10. Bankruptcy; Insolvency; Etc. 34
17.1.11. Judgments; Attachment; Etc. 34
17.1.12. Pension Benefit Plan Termination, Etc. 34
17.1.13. Liquidation or Dissolution. 35
17.1.14. Seizure of Assets. 35
17.1.15. Racketeering Proceeding. 35
17.1.16. Loan Documents; Security Interests. 35
17.1.17. Loss to Collateral. 35
17.1.18. Material Adverse Change. 35
17.2. Rights and Remedies Upon an Event of Default. 36
17.2.1. Cancellation of Commitments. 36
17.2.2. Acceleration. 36
17.2.3. Right of Set-off. 36
17.2.4. Notice to Account Debtors. 36
17.2.5. Entry Upon Premises and Access to Information. 36
17.2.6. Borrower's Obligations. 36
17.2.7. Exercise of Rights as Secured Party. 37
17.2.8. Miscellaneous. 37
17.2.9. Application of Funds. 37
17.3. Limitation of Liability; Waiver. 38
17.4. Notice. 38
18. General. 38
18.1. Lender's Right to Cure. 38
18.2. Rights Not Exclusive. 38
18.3. Survival of Agreements. 38
18.4. Sale of Participations. 39
18.5. Assignments to Affiliates. 39
18.6. Payment of Expenses. 39
18.7. General Indemnity. 39
18.8. Loan Records. 40
18.9. Other Security and Guaranties. 40
19. Miscellaneous. 41
19.1. Notices. 41
19.2. Amendments, Waivers and Consents. 41
19.3. Successors and Assigns. 41
19.4. Severability. 41
19.5. Counterparts. 41
19.6. Governing Law; No Third Party Rights. 42
19.7. Counterpart Facsimile Execution. 42
19.8. No Other Agreements. 42
19.9. Incorporation By Reference. 42
20. Choice of Forum. 42
21. Service of Process. 42
22. Statutory Notice. 43
THIRD AMENDED AND RESTATED REVOLVING NOTE
$15,000,000 St. Louis, Missouri
February 1, 2002
For value received, XXXXXXX, INC., XXXXXXX/STC, INC., XXXXXXX WIRELESS,
INC., and XXXXXXX OCS, INC. (individually and collectively, "Borrower"),
promise, jointly and severally, to pay to the order of BANK OF AMERICA, N.A.
(formerly NationsBank, N.A.) ("Lender") the principal sum of FIFTEEN MILLION
DOLLARS ($15,000,000) or such lesser aggregate unpaid principal amount as shall
be outstanding under this Revolving Note (this "Note"), plus all interest
accrued thereon, on the Maturity Date.
Borrower further promises to pay interest from the date hereof on the
balance of said principal from time to time outstanding at a per annum rate or
rates determined pursuant to the Loan Agreement (defined below). Upon the
occurrence of any Event of Default as defined in the Loan Agreement, or at the
option of Lender upon the occurrence of a Default as defined in the Loan
Agreement, all outstanding principal and, to the extent permitted by law,
accrued interest in respect of this Note and all other amounts owing hereunder
shall bear interest, payable on demand, at the Default Rate set forth in the
Loan Agreement. In addition, such Default Rate shall apply after Maturity,
whether by acceleration or otherwise. All such interest shall be computed and
be payable on the basis and on such dates as are provided for under the Loan
Agreement.
Both principal and interest are payable in Dollars to Lender at its office
at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (Attention: Xxxxx Xxxxxxx).
This Note is the Revolving Note referred to in, and is issued under the
terms of, and pursuant to the provisions of, that certain Amended and Restated
Loan Agreement effective February 1, 2002, as amended (as so amended and as it
may be further amended, restated, extended, renewed, replaced, or otherwise
modified from time to time, the "Loan Agreement"). All capitalized terms used
and not otherwise defined herein shall have the same meanings as given them in
the Loan Agreement.
This Note is secured by the Collateral described in the Loan Documents and
evidenced by Security Documents executed from time to time by Borrower in favor
of Lender as set forth in the Loan Agreement. Reference to the Loan Documents,
the Security Documents and the Loan Agreement is made for a statement of the
rights of the Lender with respect to such Collateral.
Borrower shall prepay the principal amount of this Note to the extent
provided in the Loan Agreement. Borrower may prepay the principal amount of
this Note to the extent and upon the conditions provided in the Loan Agreement.
The date and amount of all disbursements and receipts representing
principal and receipts of interest by Lender with respect to the Revolving Loan
shall be recorded by Lender in the records it maintains with respect thereto.
The failure to record, or any error in recording, any of the foregoing shall
not, however, affect the obligations of Borrower under this Note to repay the
principal amount advanced hereunder together with all interest accruing thereon.
Such record as maintained by Lender shall constitute prima facie evidence of the
amount outstanding under this Note.
Reference is made to the Loan Agreement for provisions regarding the
acceleration of the maturity hereof on the occurrence of any Event of Default,
which provisions are incorporated herein by this reference.
If Borrower sells, assigns, transfers or conveys all or any part of the
Real Property Collateral or any interest therein without the prior written
consent of Lender as required by the Loan Agreement, all outstanding principal
and accrued interest under this Note shall become immediately due and payable.
If any payment required under this Note or the Loan Agreement is not made
when due, or upon any other Event of Default, Borrower shall pay all costs of
collection on this Note, including but not limited to court costs and reasonable
attorneys fees and actual expenses of such attorneys, whether or not litigation
is commenced, including representation of Lender in connection with any
bankruptcy or insolvency proceeding of Borrower.
Demand for payment, protest, notice of dishonor, and all other notices and
demands under this Note and any and all lack of diligence in the enforcement of
this Note are hereby waived by all who are or shall become parties to this Note
and the same hereby assent to each and every extension or postponement of the
time of payment, at or after demand, or other indulgence, and hereby waive any
and all notice thereof. Every such party by becoming a party to this Note
further waives any and all defenses which such party may have based on
suretyship or impairment of collateral with respect to this Note.
No amendment, modification or waiver of any provision of this Note, nor
consent to any departure by Borrower herefrom, shall be effective unless the
same shall be in writing signed by an authorized officer of Lender, and then
only in the specific instance and for the purpose for which given. No failure
on the part of Lender to exercise, and no delay in exercising, any right under
this Note shall operate as a waiver thereof, nor shall any single or partial
exercise by Lender of any right under this Note preclude any other or further
exercise thereof, or the exercise of any other right. Each and every right
granted to Lender under this Note or allowed to it at law or in equity shall be
deemed cumulative and such remedies may be exercised from time to time
concurrently or consecutively at Lender's option.
All notices required to be given or which may be given in connection with
this Note shall be given in the manner required for notices under the Loan
Agreement.
This Note is governed by and shall be interpreted in accordance with the
laws of the State of Missouri, without regard to choice or conflict of laws
rules.
This Note is an amendment and restatement of the revolving note from
Borrower to The Boatmen's National Bank of St. Louis dated as of June 25, 1996,
as amended and restated to the date hereof. This Note is not a novation.
[SIGNATURE PAGE FOLLOWS]
XXXXXXX/STC, INC. XXXXXXX WIRELESS, INC.
By its Vice President By its Vice President
s/Xxxxxx X. Xxxxxxxxxx s/Xxxxxx X. Xxxxxxxxxx
Print Name: Xxxxxx X. Xxxxxxxxxx Print Name: Xxxxxx X.
Xxxxxxxxxx
Notice Address:
C/X XxXxxxx, Inc. Notice Address:
0000X Xxxxxxx Xxxx C/X XxXxxxx, Inc.
Xx. Xxxxx, XX 00000 0000X Xxxxxxx Xxxx
Attn: Xxxxxx X. Xxxxxxxxxx Xx. Xxxxx, XX 00000
FAX # 000-0000 Attn: Xxxxxx X.
TEL # 000-0000 Nonnenkamp
FAX # 000-0000
TEL # 000-0000
XXXXXXX, INC. XXXXXXX OCS, INC.
by its Vice President by its Vice President
s/Xxxxxx X. Xxxxxxxxxx s/Xxxxxx X. Xxxxxxxxxx
Print Name: Xxxxxx X. Print Name: Xxxxxx X.
Xxxxxxxxxx Nonnenkamp
Notice Address: Notice Address:
XxXxxxx, Inc. C/X XxXxxxx, Inc.
0000X Xxxxxxx Xxxx 0000X Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000 Xx. Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx Attn: Xxxxxx X.
FAX # 000-0000 Nonnenkamp
TEL # 000-0000 XXX # 000-0000
TEL # 000-0000
