Exhibit 4.9
AMENDED AND RESTATED
AGENTED CREDIT AGREEMENT
This Amended and Restated Agented Credit Agreement ("Agreement") is
dated as of June 24, 2005, among ORCHIDS PAPER PRODUCTS COMPANY, a Delaware
corporation ("Borrower"), and BANK OF OKLAHOMA, N.A. ("BOK"), BANCFIRST, and
COMMERCE BANK, N.A. (individually a "Bank" and collectively the "Banks"), and
BANK OF OKLAHOMA, N.A., as agent for the Banks hereunder (in such capacity, the
"Agent").
RECITALS
A. Reference is made to the Agented Revolving Credit and Term Loan
Agreement by and among Borrower, Bank of Oklahoma, N.A., International Bank of
Commerce (f/k/a Local Oklahoma Bank) ("IBC") and Agent, dated October 15, 2002
and amended October 14, 2003, January 14, 2004, March 1, 2004, July 19, 2004,
and February 29, 2005 (as amended, the "2002 Original Credit Agreement"),
pursuant to which currently exists (i) an $11,764,819.37 term loan; and (ii) a
$5,000,000 revolving line of credit.
B. Reference is made to Amendment Three to the 2002 Original Credit
Agreement pursuant to which Orchids Acquisition Group, Inc. ("OAG") was added as
a borrower. Subsequently, OAG and Borrower entered into an agreement for merger
of the two companies, effective April 19, 2005, with Borrower being the
surviving entity.
C. Reference is made to the Loan Agreement dated July 8, 2004 ("2004
Original Credit Agreement") between Borrower, OAG and BOK, pursuant to which
currently exists a $3,898,851.98 term loan.
D. Borrower has requested that a $15,000,000 construction loan be
established to finance the construction of a new paper mill and the installation
of related equipment.
E. Effective as of the date hereof, the participation of IBC under the
2002 Original Credit Agreement shall be terminated, and IBC will not be
participating in any loans under this Agreement. BancFirst and Commerce Bank,
N.A. are to be added as lenders pursuant to the terms hereof.
F. The Banks have agreed to accommodate Borrower's request for
establishment of a new $15,000,000 construction loan, and the continuation of
the $5,000,000 revolving line of credit, the $11,764,819.37 term loan, and the
$3,898,851.98 term loan subject to the terms and conditions set forth in this
Agreement. This Agreement shall consolidate and restate the 2002 Original Credit
Agreement and the 2004 Original Credit Agreement in their entirety, and shall
supercede and replace said documents.
AGREEMENT
For valuable consideration received, it is agreed as follows:
1. DEFINED TERMS. As used in this Agreement, the following terms have the
following meanings (terms defined in the singular to have the same meaning when
used in the plural and vice versa). All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
8.9, and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
1.1. "Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the LIBOR
Rate Margin. The Adjusted LIBOR Rate shall be recalculated by Agent (which
determination shall be conclusive subject to manifest error) on not less than a
quarterly basis, upon Agent's receipt of Borrower's quarterly financial
statements.
1.2. "Adjusted Prime Rate" shall mean the Prime Rate plus the Prime
Rate Margin. The Adjusted Prime Rate shall be recalculated by Agent (which
determination shall be conclusive subject to manifest error) on not less than a
quarterly basis, upon Agent's receipt of Borrower's quarterly financial
statements.
1.3. "Advance" means a disbursement by Agent to or for the benefit or
account of Borrower of any proceeds of the Construction Loan.
1.4. "Advance Request" means a written request from Borrower (and such
other parties as may be required by Agent from time to time) to Agent specifying
the requested Advance amount, the disbursement date, and making certain
certifications to Agent, all as more specifically set forth in the Advance
Request form, a copy of which is attached hereto as Schedule "1.4". If requested
by Agent, (i) each Advance Request shall be accompanied by billing statements,
vouchers and invoices, in form and content satisfactory to Agent, with regard to
items that are the subject of the Advance Request; and (ii) each Advance Request
shall be accompanied by appropriate waivers of lien rights, in form and content
satisfactory to Agent and its legal counsel, executed and acknowledged by all
contractors, subcontractors, laborers and materialmen who have furnished labor
or materials relating to the Improvements. If requested, partial lien waivers
must be delivered to Agent within five (5) business days following each Advance
for the amount of work completed and paid for as of the date of billing on which
the latest Advance was based, and general lien waivers must be delivered to
Agent upon the disbursement of the final Advance and, if requested by Agent,
such waivers shall be accompanied by an indemnity agreement or affidavit of
payment from Borrower and Contractor in favor of Agent, in form and content
satisfactory to Agent, regarding discharge or prevention of any mechanics' or
materialmen's lien(s).
1.5. "Affiliate" means any Person: (i) which directly or indirectly
controls, or is controlled by, or is under common control with, Borrower; (ii)
which directly or indirectly beneficially owns or holds five percent (5%) or
more of any class of voting stock of Borrower; or (iii) five percent (5%) or
more of the voting stock of which is directly or indirectly beneficially owned
or held by Borrower. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
1.6. "Agreement" means this Amended and Restated Agented Credit
Agreement, as amended, supplemented, or modified from time to time.
1.7. "Appraisal" shall mean a FIRREA conforming written appraisal of
the Mortgaged Property prepared by a public appraiser acceptable to Agent.
1.8. "Approved Budget" means a budget or cost schedule prepared by
Borrower in form and content satisfactory to Agent, and specifying the cost by
item of: (a) all labor, materials and services necessary for completion of the
Improvements in accordance with the Plans and all Governmental Requirements; and
(b) all other expenses anticipated by Borrower incident to the Loan, the Land
and construction of the Improvements, and estimating the dates on which Borrower
contemplates requiring advances from Agent hereunder for such costs and
expenses.
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1.9. "Borrower's Authority Documents" shall mean the following: (i) a
Certificate of Good Standing from Borrower's state of incorporation and such
other states in which Borrower does business and is required to domesticate or
otherwise register; (ii) a certified copy of Borrower's certificate of
incorporation and any amendments thereto; (iii) a copy of Borrower's bylaws and
any amendments thereto; and (iv) a certificate of the secretary of Borrower, in
form and content set forth on Schedule "1.9" hereto, certifying resolutions
authorizing Borrower to enter into the Loan.
1.10. "Borrowing Base" means, at any date of determination thereof, the
sum of eighty percent (80%) of Borrower's Qualified Receivables at such date,
plus fifty percent (50%) of Borrower's Qualified Inventory at such date, as
determined by Agent based upon the most recent information relating thereto
provided to Agent pursuant to Section 2.3; provided, however, that Qualified
Inventory shall not exceed the Qualified Inventory Cap as determined by Agent in
its sole discretion. The "Qualified Inventory Cap" shall equal the lesser of 50%
of Qualified Inventory or 80% of Borrower's Qualified Receivables such that
Qualified Inventory comprises no more than 50% of the overall Borrowing Base.
1.11. "Borrowing Base Certificate" means each certificate from Borrower
to Agent relating to the Borrowing Base, substantially in the form of Schedule
"1.11" hereto.
1.12. "Business Day" means any day other than a Saturday, Sunday, or
other day on which commercial banks in Oklahoma are authorized or required to
close under the laws of the State of Oklahoma.
1.13. "Capital Lease" means all leases which have been or should be
capitalized on the books of the lessee in accordance with GAAP.
1.14. "Certificate of Completion" means certificates satisfactory to
Agent signed by the Borrower and Contractor, certifying that the Improvements
have been completed in accordance with the Plans. The Certificate of Completion
shall be accompanied by a certificate of occupancy for the Improvements and such
other written evidence reasonably required by Agent of the approval of the
municipality where the Improvements are located, reflecting that the
Improvements in their entirety are available for permanent occupancy.
1.15. "Change Order" means a change or modification to either the
Construction Contract or any other contract with laborers or material suppliers.
1.16. "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations and published interpretations thereof.
1.17. "Collateral" means all property in which the Banks are intended
to have a security interest, as described in Section 3.
1.18. "Commitment" means each Bank's obligation to make loans to the
Borrower pursuant to this Agreement. Each Bank's Commitment shall be equal to
its Pro Rata Share of the total amount committed under the Revolving Line, the
Term Loan and the Construction Loan.
1.19. "Commitment Fee" means a fee in the amount of $75,000 payable to
Banks on a pro rata basis at or before closing.
1.20. "Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 414(b) or 414(c) of the Code.
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1.21. "Completion Date" shall mean October 31, 2006.
1.22. "Construction Contract" means the written agreement between
Borrower and Contractor regarding the construction of the Improvements pursuant
to the Plans.
1.23. "Construction Loan" shall mean the $15,000,000 advancing term
loan from Banks to Borrower.
1.24. "Construction Notes" shall mean, initially, the $15,000,000
Promissory Note attached hereto as Schedule "1.24", which promissory note will
be replaced on the date of the initial Advance under the Construction Loan by
promissory notes payable to each Bank in amounts based on each Bank's Pro Rata
Share of $15,000,000.
1.25. "Contractor" shall mean Dick Engineering Inc. The Contractor must
be reasonably acceptable to Agent.
1.26. "Debt" means, including but not limited to: (i) indebtedness or
liability for borrowed money; (ii) obligations evidenced by bonds, debentures,
notes, or other similar instruments; (iii) obligations for the deferred purchase
price of property or services (including trade obligations); (iv) obligations
under letters of credit; (v) obligations under acceptance facilities; (vi) all
guaranties, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest in any Person or entity, or
otherwise to assure a creditor against loss; and (vii) obligations secured by
any Liens, whether or not the obligations have been assumed.
1.27. "Debt Service Coverage Ratio" shall mean the ratio of (i) EBITDA
less cash taxes actually paid for the preceding four (4) consecutive fiscal
quarters of Borrower, to (ii) Borrower's Debt Service Requirement for the same
four (4) consecutive fiscal quarters; provided, that for purposes of this
Section, the $1,500,000 held in the Interest Reserve Account may be used in the
calculation of EBITDA for fiscal year 2006.
1.28. "Debt Service Requirement" shall mean the sum of (i) interest
expense (whether paid or accrued and including interest attributable to Capital
Leases), (ii) scheduled principal payments on borrowed money, and (iii)
capitalized lease expenditures, all determined without duplication and in
accordance with GAAP.
1.29. "EBITDA" shall mean net income plus (i) interest expense, (ii)
depreciation, depletion, obsolescence and amortization of property, (iii)
capitalized lease expense, and (iv) tax expense, all determined in accordance
with GAAP, and for a particular period.
1.30. "Environmental Audit" means an audit performed by an inspecting
entity or person reasonably acceptable to Borrower and Agent verifying that no
hazardous wastes, toxic substances, asbestos insulation and/or UREA formaldehyde
insulation (as those terms are then defined by any Governmental Authority) has
been or are presently stored, treated, disposed of or incorporated into, on or
around the Land, and no underground tanks exist on the Land. Borrower shall pay
all costs and expenses relating to the Environmental Audit. Any exceptions,
conditions or disclaimers set forth in the Environmental Audit must be
reasonably acceptable to Agent.
1.31. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereof.
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1.32. "Event of Default" means any of the events specified in Section
12.
1.33. "Federal Funds Rate" means, for any day, an interest rate per
annum 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, as published for such day by the Federal Reserve Bank of New
York, or if such rate is not so published for such day, the average of the
quotations for such day on such transactions received by the Agent from three
(3) federal funds brokers of recognized standing selected by it.
1.34. "Flood Plain Approval" means evidence satisfactory to Agent and
the Banks that the Land is not located in an area designated by the Secretary of
Housing and Urban Development as an area having special flood or mudslide
hazards, and that flood hazard insurance is not required for this Loan under the
terms of any law, rule or regulation governing Agent's or any of the Banks'
activities.
1.35. "Funded Debt" shall mean, to the extent actually funded and
outstanding at a specified time, all interest bearing Debt of Borrower plus
Subordinated Debt and permitted Capitalized Lease Expenditures; provided,
however, that advances under the Construction Loan shall not be included in the
calculation of Funded Debt until the date which is seven (7) months from the
date of issuance of the Certificate of Completion.
1.36. "GAAP" means generally accepted accounting principles in the
United States, applied on a consistent basis.
1.37. "Government Approvals" shall mean authorizations required by
Governmental Authorities for the construction and operation of the Improvements
contemplated by the Plans including, without limitation, a copy of the building
permit and zoning clearance issued by the city which has jurisdiction over the
contemplated project.
1.38. "Governmental Authority" means the United States, the state, the
county, the city or any other political subdivision in which the Land is
located, and any other political subdivision, agency or instrumentality
exercising jurisdiction over Borrower, Guarantor or all or any portion of the
Land.
1.39. "Governmental Requirements" means all laws, orders, decrees,
ordinances, rules and regulations of any Governmental Authority.
1.40. "Guarantor" means any future Subsidiary which guarantees the
Obligations hereunder in accordance with Section 8.12 hereof.
1.41. "Guaranty Agreement" means the guaranty agreement executed and
provided to Agent by any Guarantor in accordance with Section 8.12 hereof.
1.42. "Improvements" means the improvements described in the Plans to
be made to the Land.
1.43. "Insurance Certificate" means a certificate or certificates
evidencing that policies of insurance, with insurance companies satisfactory to
Agent, in such amounts and against such risks as shall be required by Agent, as
set forth in Section 8.6 hereof, have been obtained by Borrower and are in full
force and effect, and that Agent is listed as an additional insured or loss
payee thereon.
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1.44. "Interest Period" shall mean a period of time equal to the lesser
of: (i) at the election of the Borrower, thirty (30), sixty (60), or ninety (90)
days; or (ii) the number of days between the contemplated effective date
specified by the Borrower in the applicable Interest Rate Election and the
maturity date of the applicable Note.
1.45. "Interest Rate Election" means written notice from Borrower to
Agent no earlier than twenty (20) days and no later than five (5) days prior to
the contemplated effective date, substantially in form and content as set forth
on Schedule "1. 45" hereto, whereby Borrower may elect from time to time that
interest shall accrue under the Notes at the Adjusted Prime Rate or the Adjusted
LIBOR Rate.
1.46. "Interest Reserve Account" means an account established and
maintained by Borrower with Agent, for the benefit of Banks, which shall at all
times contain a balance in compliance with Section 8.13 hereof.
1.47. "Issuing Bank" means Bank of Oklahoma, N.A., or any successor
issuing lender hereunder.
1.48. "Interest Reserve Account Security Agreement" means a Deposit
Account Security Agreement in form and content as set forth on Schedule "1.48"
attached hereto.
1.49. "Land" means the real property described on Schedule "1. 49"
attached hereto.
1.50. "Letter of Credit" means any letter of credit issued pursuant to
Section 2.14 or outstanding hereunder.
1.51. "Letter of Credit Action" means the issuance, supplement,
amendment, renewal, extension, modification or other action relating to a Letter
of Credit.
1.52. "Letter of Credit Application" means an application for a Letter
of Credit Action as shall at any time be in use by Issuing Bank.
1.53. "Letter of Credit Commitment" means an amount equal to the lesser
of (a) $3,000,000 or (b) the combined Commitments of the Banks.
1.54. "Letter of Credit Fee" means a fee of two percent (2%) per annum
on the face amount of any Letter of Credit issued or renewed after the date
hereof.
1.55. "Letter of Credit Usage" means, as at any date of determination,
the aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Bank and not reimbursed to Issuing Bank by the Borrower or converted into Loans.
1.56. "LIBOR Loan" means any Loan when and to the extent that the
interest rate therefor is determined by reference to the LIBOR Rate.
1.57. "LIBOR Rate" means the London Interbank Offered Rate composite
rate per annum for U.S. Dollars for the applicable Interest Period which appears
on the LIBOR 01 page of the Reuters information service on the day the Interest
Rate Election is received by Agent. The LIBOR Rate shall remain fixed during the
applicable Interest Period.
1.58. "LIBOR Margin" shall mean the following:
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RATIO OF FUNDED DEBT TO EBITDA LIBOR MARGIN
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Greater than or equal to 3.5 to 1 4.25%
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Greater than or equal to 3.0 to 1 but less than 3.5 to 1 3.75%
--------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1 but less than 3.0 to 1 3.00%
--------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.5 to 1 but less than 2.25 to 1 2.75%
--------------------------------------------------------------------------------------------------------------------
Less than 1.5 to 1 2.25%
--------------------------------------------------------------------------------------------------------------------
1.59. "Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the UCC or comparable law of any jurisdiction in respect of any
of the foregoing.)
1.60. "Line Advance" means a disbursement by Agent to or for the
benefit or account of Borrower of any proceeds of the Revolving Line.
1.61. "Line Notes" shall mean, initially, the $5,000,000 Promissory
Note attached hereto as Schedule "1.61", which promissory note will be replaced
on the date of the initial Advance under the Construction Loan by promissory
notes payable to each Bank in amounts based on each Bank's Pro Rata Share of
$5,000,000.
1.62. "Loan" means advances under the Revolving Line, the Term Loan,
and the Construction Loan.
1.63. "Loan Documents" shall mean any and all agreements, contracts,
promissory notes, security agreements, assignments, subordination agreements,
pledge or hypothecation agreements, mortgages, deeds of trust, leases,
guaranties, instruments, letters of credit, letter of credit agreements and
documents now and hereafter existing between Banks and/or Agent and Borrower,
executed and/or delivered pursuant to this Agreement or otherwise or
guaranteeing, securing or in any other manner relating to any of the
Obligations, including, without limitation, the instruments and documents
referred to in Section 4 hereof together with any other instrument or document
executed by Borrower, Agent or any other person in connection with the Loan.
1.64. "Merger Documents" means a Certificate of Merger issued by the
Secretary of State of Delaware, and any other documents reasonably requested by
Agent, evidencing the merger of OAG into Borrower.
1.65. "Mortgage" means that certain first and prior Amended and
Restated Mortgage, Assignment of Rents and Leases, Security Agreement and
Financing Statement in favor of Agent, for the benefit of the Banks, on the
Mortgaged Property, in form and content substantially as set forth on Schedule
"1.65" hereto.
1.66. "Mortgaged Property" means the Land and Improvements.
1.67. "Mortgage Related Documents" means, with regard to the Mortgaged
Property:
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(i) a Title Insurance Binder prior to the Closing, and Title
Insurance Policy within sixty (60) days of the Closing to Agent,
evidencing only those exceptions acceptable to Agent;
(ii) an Appraisal on the Mortgaged Property, in form and
content satisfactory to Agent and the Banks, evidencing an aggregate
minimum value reasonably acceptable to Agent and the Banks;
(iii) an Environmental Audit from an auditor and in form and
content acceptable to Agent; and
(iv) Flood Plain Approval.
1.68. "Multiemployer Plan" means a Plan described in Section 4001(a)(3)
of ERISA.
1.69. "Note Rate" means (i) the Adjusted Prime Rate or (ii) the
Adjusted LIBOR Rate, as elected by Borrower pursuant to an Interest Rate
Election; provided, that at the end of any applicable Interest Period, the Note
Rate shall revert to the Adjusted Prime Rate unless a new Interest Rate Election
has been properly made by Borrower.
1.70. "Notes" means, separately and collectively, the Term Notes, the
Line Notes, and the Construction Notes.
1.71. "Obligations" means the Obligations defined in Section 3.
1.72. "Opinion of Borrower's Counsel" means a legal opinion from
Borrower's legal counsel including, without limitation, the opinions relating to
Borrower and this loan transaction as set forth on Schedule "1.72" attached
hereto.
1.73. "Outstanding Line Obligations" means, as of any date, and giving
effect to making any advances requested under the Revolving Line on such date
and all payments, repayments and prepayments made on such date, the sum of (a)
the aggregate outstanding principal amount under the Revolving Line, and (b) all
Letter of Credit Usage.
1.74. "PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
1.75. "Payment and Performance Bonds" means guarantees of payment and
performance satisfactory to Banks.
1.76. "Permitted Liens" means, as to Borrower and all Subsidiaries:
(1) Liens in favor of the Banks;
(2) Liens for taxes or assessments or other government charges
or levies if not yet due and payable or, if due and payable or, if they
are being contested in good faith by appropriate proceedings and for
which appropriate reserves are maintained;
(3) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' liens, and other similar
Liens, securing obligations incurred in the ordinary course of business
which are not past due for more than thirty (30) days or
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which are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established;
(4) Liens under workers' compensation, unemployment insurance,
Social Security, or similar legislation;
(5) Liens, deposits, or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of
money), leases (permitted under the terms of this Agreement), public or
statutory obligations, surety, stay, appeal, indemnity, performance or
other similar bonds, or other similar obligations arising in the
ordinary course of business;
(6) The liens described on Schedule "1.76(6)";
(7) Judgment and other similar liens arising in connection
with court proceedings, provided the execution or other enforcement of
such Liens is effectively bonded, stayed and the claims secured thereby
are being actively contested in good faith and by appropriate
proceedings;
(8) Easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Borrower of the property or
assets encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto; and
(9) Purchase-money liens on any property hereafter acquired or
the assumption of any lien on property existing at the time of such
acquisition (and not created in contemplation of such acquisition), or
a lien incurred in connection with any conditional sale or other title
retention agreement or a Capital Lease; provided that:
(a) Any property subject to any of the foregoing is
acquired by the Borrower or any subsidiary in the ordinary
course of its business; and
(b) Each such lien shall attach only to the property
so acquired and fixed improvements thereon.
1.77. "Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority, or other entity of whatever
nature.
1.78. "Plan" means any pension plan which is covered by Title IV of
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
1.79. "Plans" shall mean the final working drawings and specifications
for the construction of the Improvements prepared by the Contractor and approved
by Agent, Borrower, and any necessary Governmental Authority.
1.80. "Prime Loan" means any Loan when and to the extent that the
interest rate therefor is determined by reference to the Prime Rate.
1.81. "Prime Rate" means a fluctuating interest rate per annum as in
effect from time to time, which interest rate per annum shall at all times be
equal to the rate of interest announced
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publicly from time to time (whether or not charged in each instance), by X.X.
Xxxxxx Xxxxx Bank ("Rate Bank"), as its base rate or general reference rate.
Each change in the Prime Rate (or any component thereof) shall become effective
hereunder without notice to Borrower (which notice is hereby expressly waived by
Borrower), on the effective date of each such change. Should the Rate Bank
abolish or abandon the practice of announcing or publishing a Prime Rate, then
the Prime Rate used during the remaining term of the Notes shall be that
interest rate or other general reference rate then in effect at the Rate Bank
which, from time to time, in the reasonable judgment of Agent, most effectively
approximates the initial definition of the "Prime Rate." Borrower acknowledges
that Banks may, from time to time, extend credit to other borrowers at rates of
interest varying from, and having no relationship to, the Prime Rate. The rate
of interest payable upon the indebtedness evidenced by the Notes shall not,
however, at any time exceed the maximum rate of interest permitted under the
laws of the State of Oklahoma for loans of the type and character evidenced by
the Notes.
1.82. "Prime Rate Margin" shall mean the following:
RATIO OF FUNDED DEBT TO EBITDA PRIME RATE MARGIN
--------------------------------------------------------------------------------------------------------------------
Greater than or equal to 3.5 to 1 1.5%
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Greater than or equal to 3.0 to 1 but less than 3.5 to 1 1.0%
--------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1 but less than 3.0 to 1 .25%
--------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.5 to 1 but less than 2.25 to 1 0
--------------------------------------------------------------------------------------------------------------------
Less than 1.5 to 1 -.5%
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1.83. "Principal Office" means the main office of each Bank and Agent,
as set forth on the signature pages hereof.
1.84. "Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
1.85. "Pro Rata Share" shall mean: (i) prior to the initial Advance
under the Construction Loan, as to Bank of Oklahoma, N.A., one hundred percent
(100%), and as to BancFirst and Commerce Bank, N.A., zero percent (0%); and (ii)
on the date of and at all times after the date of the initial Advance under the
Construction Loan, as to Bank of Oklahoma, N.A., fifty percent (50%), as to
BancFirst, twenty-five percent (25%), and as to Commerce Bank, N.A., twenty-five
percent (25%).
1.86. "Qualified Inventory" means the amount of inventory of Borrower
located in the United States of America that is not subject to any Lien or
adverse claim and that conforms to the representations and warranties contained
in this Agreement and that is acceptable to the Agent in its sole discretion,
less any packaging materials and supplies, damaged or unsalvageable goods
returned or rejected by its customers, goods to be returned to its suppliers,
goods in transit to third parties (other than its agent or warehouses), goods
out at contractors, and work in process, and less any reserves required by the
Agent in its sole discretion for special order goods, market value declines and
xxxx and hold (deferred shipment) sales. Notwithstanding the foregoing, however,
parent rolls and furnish products shall be included as Qualified Inventory.
1.87. "Qualified Receivables" means and includes only accounts
receivable of Borrower which meet the following specifications at the time they
came into existence and continue to meet the same until collected in full.
1.87.1. The account is due and payable. No account shall be
outstanding for more than ninety (90) days from the date of the
applicable invoice.
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1.87.2. The account arose from a bona fide outright sale of
goods previously made or from the performance of services, but not from
leasing, and Borrower has possession of or has delivered to Agent
shipping and delivery receipts evidencing shipment of the goods or, if
representing services, the services have been fully performed for the
respective account debtor.
1.87.3. The account is not subject to any assignment, claim,
lien or security interest of any character or subject to any
attachment, levy, garnishment or other judicial process, except the
security interest of Agent.
1.87.4. The account is not subject to any claim for credit,
setoff, allowance, adjustment by the account debtor or counterclaim,
and Borrower has not received any notice of any such claim for credit,
setoff, allowance, adjustment or counterclaim from or on behalf of the
account debtor.
1.87.5. The account arose in the ordinary course of Borrower's
business and no notice of the bankruptcy, insolvency or adverse change
in the financial condition of the account debtor has been received by
Borrower or Agent.
1.87.6. Agent has not previously notified Borrower that the
account or the account debtor is or has become unsatisfactory, based
upon reasonable credit standards, or the account debtor has been
adjudicated bankrupt or is subject to a similar proceeding.
1.87.7. The account is not evidenced by a judgment, an
instrument or chattel paper.
1.87.8. The account debtor is not a governmental entity or a
foreign (i.e., residing or incorporated in or organized under a
jurisdiction outside the United States) person or company and is not a
parent, subsidiary, officer, employee, director, agent or Affiliate of
any Borrower, and the account debtor and any Borrower do not have
common shareholders, officers or directors.
1.87.9. All receivables of one account debtor shall become
ineligible if more than 10% of such receivables are over ninety (90)
days past due from the invoice.
1.87.10. The accounts receivable of the account debtor cannot
exceed 10% of the total accounts receivable, and any amounts over 10%
will be excluded from the Borrowing Base unless specifically waived in
writing in each instance by Agent in its sole discretion.
Notwithstanding the foregoing, but subject to formal written approval
of the Banks, the accounts receivable of Dollar General Store and
Family Dollar (or their respective successors) shall be included as
Qualified Receivables up to 40% and 20%, respectively, of total
accounts receivable, and any amounts over 40% or 20%, respectively,
will be excluded from the Borrowing Base unless specifically waived in
writing in each instance by the Banks in their sole discretion.
1.88. "Reportable Event" means any of the events set forth in Section
4043 of ERISA.
1.89. "Revolving Line" means the $5,000,000 revolving line of credit
established in favor of Borrower by Banks pursuant to Section 2.3 hereof.
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1.90. "Security Agreement" means the Amended and Restated Security
Agreement in form and content as set forth on Schedule "1.90" hereto.
1.91. "Subordinated Debt" means the aggregate principal amount of up to
$2,150,000 evidenced by the Subordinated Notes issued to the lenders set forth
on Schedule "1.91" hereto and in such amounts set forth opposite each lender's
name on Schedule "1.91".
1.92. "Subordinated Notes" means the unsecured, subordinated Promissory
Notes issued by OAG (now Borrower), the form of which is attached as Schedule
"1.92" hereto.
1.93. "Subordination Agreement" means the Amended and Restated
Subordination Agreement, in form and content as set forth on Schedule "1.93"
hereto.
1.94. "Subsidiary" or "Subsidiaries" means, separately and
collectively, any corporation of which shares of stock having ordinary voting
power (other than stock having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by the Borrower.
1.95. "Survey (Initial)" means a survey of the Land prepared by and
certified to Agent by a licensed civil engineer or surveyor satisfactory to
Agent, which survey shall: (i) include a legal description identical to the
legal description identified in the Title Insurance Binder; (ii) locate the
perimeter of the Land; (iii) locate any improvements (e.g., water, gas, electric
and sewer lines, walks, alleys, drives); (iv) locate and identify (by reference
to book and page number and/or instrument of record) all easements, rights of
way, setback lines and other matters affecting the Land and set forth in the
Title Insurance Binder; and (v) showing other physical matters affecting the
title and use of the Land required by Agent and the title insurance company
issuing the Title Insurance Binder and Title Insurance Policy.
1.96. "Survey (Post-Completion)" means a Survey (Post-Foundation)
revised following the completion of the foundation of the construction of the
Improvements, showing the location of all completed Improvements, and otherwise
in form and content reasonably satisfactory to Agent.
1.97. "Survey (Post-Foundation)" means a Survey (Initial) revised
following the completion of the foundation for the Improvements, showing no
encroachments or violations of the Improvements upon setback lines, easements,
rights of way or property lines of the Land, and otherwise in form and content
reasonably satisfactory to Agent.
1.98. "Term Loan" means the $14,084,646.81 Term Loan from Banks to
Borrower.
1.99. "Term Notes" shall mean, initially, the $14,084,646.81 Promissory
Note attached hereto as Schedule "1.99", which promissory note will be replaced
on the date of the initial Advance under the Construction Loan by promissory
notes payable to each Bank in amounts based on each Bank's Pro Rata Share of the
outstanding principal balance under the Term Loan on such date.
1.100. "Termination Date" means April 30, 2007.
1.101. "Title Insurance Binder" means an original mortgagee's title
guaranty binder or commitment in favor of Agent, for the benefit of Banks,
issued by a title insurer and agent satisfactory to Agent, committing to issue
an ALTA mortgagee's title guaranty policy insuring the Mortgage to be a first
and prior lien on the Mortgaged Property, containing only such exceptions which
are acceptable to Agent, and subject to the following additional requirements:
(i) the insured
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amount must equal the Loan amount; (ii) the legal description must be identical
with the description of the property identified in the Survey (Initial), Survey
(Post-Foundation), and Survey (Post-Completion); (iii) the legal description
should show as separately insured parcels any off-premises easements that
benefit the Mortgaged Property; (iv) list and identify by reference to volume
and page number all easements, rights of way and other instruments or matters
affecting title to the Mortgaged Property or any off-premises easements that
benefit the Mortgaged Property; (v) legible copies of all instruments affecting
title to the Mortgaged Property must be submitted with the Title Insurance
Binder; and (vi) the "standard" exceptions regarding (a) matters which a survey
would disclose, (b) liens, (c) possessory interests, and (d) all requirements
must be deleted prior to closing.
1.102. "Title Insurance Policy" means an original fully paid ALTA
mortgagee title insurance policy issued pursuant to the Title Insurance Binder
in the amount of the Loan and insuring the Mortgage to be a first and prior lien
on Borrower's fee simple ownership interests in the Mortgaged Property, with no
exceptions from coverage as to mechanics' and materialmen's liens, matters shown
by a current survey, rights of parties in possession, or such other exceptions
as Agent shall approve.
1.103. "Title Insurance Policy Endorsement" means a "date-down"
endorsement to the Title Insurance Policy dated effective the date of the
requested Advance, stating that the effective date of the Title Insurance Policy
is extended to the date of the applicable Endorsement, and showing a state of
facts reasonably acceptable to Agent including, but not limited to, a showing
that no claim for mechanics' and materialmen's liens has been filed against the
Mortgaged Property. The Endorsement must have the effect of increasing the
coverage of the Title Insurance Policy by an amount equal to the Advance then
being made, if the Title Insurance Policy does not by its terms automatically
provide for such increase.
1.104. "UCC" shall mean the Uniform Commercial Code of the applicable
jurisdiction.
1.105. "UCC Chattel Check" means a UCC records search as to Borrower
from the UCC Division of the Secretary of State of Delaware, the Oklahoma County
Clerk, and from any other office deemed necessary or advisable by Agent, which
chattel checks must evidence no conflicting security interests, except the
Permitted Liens.
1.106. "UCC-1 Financing Statement" means a financing statement, or
amendment thereto, which will be filed with the appropriate office and shall
evidence perfection of a first and prior security interest in the collateral
described in the Security Agreement in favor of Agent, for the benefit of the
Banks, except for the Permitted Liens.
1.107. "Zoning Approval" means evidence satisfactory to Agent that the
use of the Improvements as contemplated by the Plans does not violate any
applicable zoning ordinance pertaining to the Land.
2. AMOUNT AND TERMS OF THE LOANS.
2.1. Term Loan. Subject to the terms and conditions of this Agreement,
each Bank agrees to make a Term Loan to Borrower in the amount of its Pro Rata
Share of $14,084,646.81, to be further evidenced by the Term Notes.
2.2. Mandatory Excess Cash Flow Recapture. Commencing with the year
following issuance of the Certificate of Completion, Borrower shall make an
annual principal reduction to the Construction Notes equal to forty percent
(40%) of the Excess Cash Flow determined annually based upon Borrower's annual
audited financial statements to Agent. Such principal reduction
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payment shall be received by Agent no later than one hundred twenty (120) days
following the end of each fiscal year of Borrower. For purposes hereof, Excess
Cash Flow shall mean, for the applicable twelve (12) month period, EBITDA minus,
without duplication: (i) principal and interest paid under the Notes, (ii)
interest expense to the extent paid in cash during such period, (iii)
capitalized lease payments permitted hereunder, (iv) any income taxes paid in
cash and (v) cash payments made in such period with respect to permitted capital
expenditures, excluding the new paper machine.
2.3. Revolving Line. Subject to the terms and conditions of this
Agreement, and so long as no Event of Default has occurred, each Bank agrees to
loan to Borrower (by advancing funds or issuing Letters of Credit in amounts not
to exceed $5,000,000 in the aggregate), such amounts up to said Bank's Pro Rata
Share of the aggregate principal amount of $5,000,000 as Borrower may request
from time to time on or before the Termination Date, to be further evidenced by
the Line Notes; provided that the aggregate outstanding principal amount of Line
Advances at any time outstanding shall not exceed the lesser of (i) $5,000,000
or (ii) the Borrowing Base. Such Borrowing Base shall be computed on a monthly
basis, and Borrower agrees to provide to Agent on the 15th day of each month
with regard to the immediately preceding month all information requested in
connection therewith, including without limitation a Borrowing Base Certificate.
In the event Banks shall make Line Advances in excess of the formula set forth
above, any such Line Advance shall, nevertheless, be secured by all Collateral.
In the event outstanding Line Advances with respect to Qualified Receivables or
Qualified Inventory fail to comply with such formula, by reason of any accounts
receivable or inventory ceasing to be so qualified, for whatever reason, then
Borrower shall immediately notify Agent of such situation and shall, within five
(5) Business Days of the imbalance, either (i) reduce the amount of the
outstanding balances to bring such amounts within the formulas prescribed, or
(ii) provide additional Qualified Receivable or Qualified Inventory, without any
additional advance being made by Banks with respect thereto, necessary to comply
with the formulas required herein. Within the limits set forth in this Section
2.3, Borrower may borrow, repay and reborrow at any one time and from time to
time.
2.4. Notice and Manner of Borrowing Under the Revolving Line. The
Borrower shall give the Agent notice of any Line Advances under this Agreement,
specifying the date and amount thereof, in writing or via telephone (with voice
verification by the appropriate officer), no later than 12:00 p.m. (Tulsa time)
on the date of such Line Advances. The Agent shall promptly notify each Bank of
each such notice. Not later than 2:00 p.m. or three (3) hours following receipt
of such notice, whichever is later, on the date of each request for a Line
Advance, each Bank will make available to the Agent at Agent's Principal Office
in immediately available funds, such Bank's Pro Rata Share of such Line
Advances. After the Agent's receipt of such funds, and upon fulfillment of the
applicable conditions, the Agent will make such Line Advances available to the
Borrower in immediately available funds by crediting the amount thereof to the
following account with the Agent: Account styled Orchids Paper Products Company,
No. 209908802.
2.5. Non-Receipt of Funds by Agent. Unless the Agent shall have
received notice from a Bank prior to the date on which such Bank is to provide
funds to the Agent for an Advance or Line Advance to be made by such Bank that
such Bank will not make available to the Agent such funds, the Agent may assume
that such Bank has made such funds available to the Agent on the date of such
Advance or Line Advance in accordance with Section 2.4 or Section 6.2 and the
Agent in its sole discretion may, but shall not be obligated to, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Bank shall not have made such
funds available to the Agent, such Bank agrees to repay to the Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at the Federal Funds Rate for three (3) Business
Days and thereafter at the Prime Rate. If such Bank
14
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Advance or Line Advance for purposes of this Agreement.
If such Bank does not pay such corresponding amount forthwith upon the Agent's
demand therefor, the Agent shall promptly notify the Borrower, and if the
outstanding balance under the Revolving Line is equal to or exceeds the Pro Rata
Share of the Commitment of the remaining Bank, within ten (10) days of such
notice the Borrower shall pay such corresponding amount to the Agent with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at the rate of
interest applicable at the time to such proposed Advance or Line Advance.
Notwithstanding the above, as long as no Event of Default exists, Bank's shall
not unreasonably withhold funding of an Advance or Line Advance requested by
Borrower in accordance with the terms of Section 2.4 or 6.2.
Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent in its sole
discretion may, but shall not be obligated to, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower shall not have so
made such payment in full to the Agent, each Bank shall repay to the Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Agent, at the Federal Funds
Rate for three (3) Business Days and thereafter at the Prime Rate.
2.6. Interest Rate Determination. The Agent shall determine the Note
Rate, and shall give prompt notice to the Borrower and the Banks of the
applicable interest rate, or any change therein, as determined by the Agent
pursuant to the terms of this Agreement.
2.7. Method of Payment. The Borrower shall make each payment under this
Agreement and under the Notes on the date when due in lawful money of the United
States to the Agent at its Principal Office for the account of each Bank in
immediately available funds. The Agent will promptly thereafter cause to be
distributed each Bank's Pro Rata Share of such payments of principal and
interest in like funds to each Bank. The Borrower hereby authorizes each Bank,
if and to the extent payment is not made when due under this Agreement or under
the Notes, to charge from time to time against any account of the Borrower with
such Bank any amount as due. Any amounts collected by any Bank under this
provision shall be transferred to Agent, and Agent will promptly thereafter
cause to be distributed each Bank's Pro Rata Share of such payments in like
funds to each Bank. Whenever any payment to be made under this Agreement or
under the Notes shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall be included in the computation of the payment of
interest and the Non-use Fee, as the case may be, except, in the case of a LIBOR
Loan, if the result of such extension would be to extend such payment into
another calendar month, such payment shall be made on the immediately preceding
Business Day.
2.8. Illegality. Notwithstanding any other provision in this Agreement,
if any Bank determines that any applicable law, rule, or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank, or comparable agency shall make it unlawful or
impossible for such Bank to (1) maintain its Commitment, then upon notice to the
Borrower by such Bank the Commitment of such Bank shall terminate; or (2)
maintain or fund its LIBOR Loan, then upon notice to the Borrower by such Bank
the outstanding principal amount of the LIBOR Loan, together with interest
accrued thereon, and
15
any other amounts payable to such Bank under this Agreement shall be repaid (a)
immediately upon demand of such Bank if such change or compliance with such
request, in the judgment of such Bank, requires immediate repayment; or (b) at
the expiration of the last Interest Period to expire before the effective date
of any such change or request.
2.9. Disaster. Notwithstanding anything to the contrary herein, if
Agent determines (which determination shall be conclusive) that:
(1) Quotations of interest rates for the relevant deposits
referred to in the definition of LIBOR Rate, as the case may be, are
not being provided in the relevant amounts or for the relative
maturities for purposes of determining the rate of interest on a LIBOR
Loan as provided in this Agreement; or
(2) The relevant rates of interest referred to in the
definition of LIBOR Rate do not accurately cover the cost to the Banks
of making or maintaining such LIBOR Loan;
then the Agent shall forthwith give notice thereof to the
Borrower, whereupon (a) the obligation of the Banks to make the LIBOR
Loan shall be suspended until the Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist; and (b)
any outstanding LIBOR Loan shall automatically be converted to a Prime
Loan on the last day of the then current Interest Period, unless no
later than such date the Borrower repays in full the then outstanding
principal amount of each LIBOR Loan, together with accrued interest
thereon.
2.10. Increased Cost. The Borrower shall pay to the Agent, for the
account of the applicable Bank, from time to time such amounts as any Bank may
determine to be necessary to compensate such Bank for any costs incurred by such
Bank which such Bank determines are attributable to its making or maintaining
any LIBOR Loan hereunder or its obligation to make any such Loan hereunder, or
any reduction in any amount receivable by such Bank under this Agreement or the
Notes in respect of any such Loan or obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any change after the date of this Agreement in U.S. federal,
state, municipal, or foreign laws or regulations (including Regulation D), or
the adoption or making after such date of any interpretations, directives, or
requirements applying to a class of banks including such Bank or under any U.S.
federal, state, municipal, or any foreign laws or regulations (whether or not
having the force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof ("Regulatory Change"),
which: (1) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or the Notes in respect of any such Loan (other than taxes
imposed on the overall net income of such Bank for any such Loan by the
jurisdiction where the Principal Office is located); or (2) imposes or modifies
any reserve, special deposit, compulsory loan, or similar requirements relating
to any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Bank (including any of such Loans or any deposits referred
to in the definition of LIBOR Rate); or (3) imposes any other condition
affecting this Agreement or the Notes (or any of such extensions of credit or
liabilities). Such Bank will notify the Borrower of any event occurring after
the date of this Agreement which will entitle such Bank to compensation pursuant
to this Section 2.10 as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation.
Determinations by any Bank for purposes of this Section 2.10 of the
effect of any Regulatory Change on its costs of making or maintaining Loans or
on amounts receivable by it in respect of Loans, and of the additional amounts
required to compensate such Bank in respect of any
16
Additional Costs, shall be conclusive, provided that such determinations are
made on a reasonable basis.
2.11. Risk-Based Capital. In the event that any Bank determines that
(1) compliance with any judicial, administrative, or other governmental
interpretation of any law or regulation or (2) compliance by such Bank or any
corporation controlling such Bank with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
has the effect of requiring an increase in the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank,
and such Bank determines that such increase is based upon its obligations
hereunder, and other similar obligations, the Borrower shall pay to the Agent,
for the account of the applicable Bank, such additional amount as shall be
certified by such Bank to be the amount allocable to such Bank's obligations to
the Borrower hereunder. Such Bank will notify the Borrower of any event
occurring after the date of this Agreement that will entitle such Bank to
compensation pursuant to this Section 2.11 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
Determinations by any Bank for purposes of this Section 2.11 of the
effect of any increase in the amount of capital required to be maintained by
such Bank and of the amount allocable to such Bank's obligations to the Borrower
hereunder shall be conclusive, provided that such determinations are made on a
reasonable basis.
2.12. Funding Loss Indemnification. The Borrower shall pay to the
Agent, for the account of the applicable Bank, upon the request of the Agent,
such amount or amounts as shall be sufficient (in the reasonable opinion of the
Agent) to compensate it for any loss, cost, or expense incurred as a result of
any payment of a LIBOR Loan on a date other than the last day of the Interest
Period for such Loan including, but not limited to, acceleration of the Loans by
the Agent pursuant to Section 12.1, unless such loss, cost or expense resulted
from the gross negligence or willful misconduct of Agent, or Banks.
2.13. Non-use Fee. Borrower shall pay a non-use fee to the Agent, for
the benefit of the Banks, from the date hereof to the Termination Date, computed
at a rate equal to three-eighths of one percent (3/8%) per annum on the average
daily amount of the unused portion of the Revolving Line payable quarterly on
the 15th day of each January, April, July and October and on the Termination
Date or such earlier date as the Revolving Line shall terminate as provided
herein. Upon receipt of any Non-use Fee, the Agent will promptly thereafter
cause to be distributed such payment to each Bank in its Pro Rata Share.
2.14. Letters of Credit.
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(a) The Letter of Credit Commitment. Subject to the terms and
conditions hereof, at any time and from time to time from the date hereof
through the date that is 30 days prior to the Termination Date, the Issuing Bank
shall take such Letter of Credit Actions under the Commitments as the Borrower
may request; provided, however, that the Outstanding Line Obligations of each
Bank shall not exceed such Bank's Commitment and the Outstanding Line
Obligations of all Banks shall not exceed the combined Commitments of the Banks
at any time, (ii) the aggregate outstanding Letter of Credit Usage shall not
exceed the Letter of Credit Commitment at any time, (iii) each Letter of Credit
Action shall be in a form acceptable to Issuing Bank and shall not violate any
policies of Issuing Bank, and (iv) the Issuing Bank shall not be required to
issue Letters of Credit that have automatic extension or renewal provisions
("evergreen" Letters of Credit). Each Letter of Credit will be a nontransferable
standby letter of credit to support payment and/or performance obligations of
the Borrower. No Letter of Credit shall expire more than 364 days after the date
of issuance. If any Letter of Credit is to remain outstanding after the
Termination Date, the Borrower shall, not later than seven days prior to the
Termination Date, deposit cash in an amount equal to one hundred and two percent
(102%) of such Letter of Credit Usage in an account with Issuing Bank to be held
as security for payment of such Letter of Credit, which amount will be released
to Borrower upon termination of any Outstanding Line Obligations of Banks under
such Letter of Credit, and payment of all costs and fees related thereto.
(b) Requesting Letter of Credit Actions. The Borrower may irrevocably
request a Letter of Credit Action by delivering a Letter of Credit Application
therefor to Issuing Bank, with a copy to the Agent (who shall notify the Banks),
not later than 8:30 a.m. (Tulsa, Oklahoma time) on the date which is five
Business Days prior to the date of the requested action therefor. Unless Agent
notifies Issuing Bank that such Letter of Credit Action is not permitted
hereunder or Issuing Bank determines that such Letter of Credit Action is
contrary to any policies of Issuing Bank or does not otherwise conform to the
requirements of this Agreement, Issuing Bank shall effect such Letter of Credit
Action. This Agreement shall control in the event of any conflict with any
Letter of Credit Application. Upon the issuance of a Letter of Credit, each Bank
shall be deemed to have purchased a pro rata participation in such Letter of
Credit from Issuing Bank in an amount equal to that Bank's Pro Rata Share.
(c) Reimbursement of Payments Under Letters of Credit. The Borrower
shall reimburse Issuing Bank through Agent for any payment that Issuing Bank
makes under a Letter of Credit on or before the date of such payment; provided,
however, that Borrower may request a Line Advance to reimburse Issuing Bank for
such payment on or before the date thereof by complying with Section 2.3.
(d) Funding by Banks When Issuing Bank Not Reimbursed. If the Borrower
fails to timely make the payment required pursuant to subsection (c) above,
Issuing Bank shall notify Agent of such fact and the amount of such unreimbursed
payment. Agent shall promptly notify each Bank of its Pro Rata Share of such
amount. Each Bank shall make funds in an amount equal to its Pro Rata Share of
such amount available to Agent at Agent's Principal Office on the Business Day
specified by Agent. The obligation of each Bank to so reimburse Issuing Bank
shall be absolute and unconditional and shall not be affected by the occurrence
of an Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse Issuing Bank for the amount of any payment made by Issuing Bank under
any Letter of Credit, together with interest as provided herein.
(e) Nature of Banks' Funding. If the conditions precedent set forth in
Section 4 can be satisfied on the date the Borrower is obligated to make, but
fails to make, a reimbursement of a payment under a Letter of Credit, the
funding by Banks pursuant to subsection (d) above shall
18
be deemed to be an advance under the Revolving Line (without regard to the
minimum amount therefor) requested by the Borrower. If the conditions precedent
set forth in Section 4 cannot be satisfied on the date the Borrower is obligated
to make, but fails to make, a reimbursement of a payment under a Letter of
Credit, the funding by Banks pursuant to subsection (d) above shall be deemed to
be a funding by each Bank of its participation in such Letter of Credit, and
such funds shall be payable by the Borrower upon demand and shall bear interest
at a rate which is equal to the Note Rate plus 2% per annum, and each Bank
making such funding shall thereupon acquire a pro rata participation, to the
extent of such reimbursement, in the claim of Issuing Bank against the Borrower
in respect of such payment and shall share, in accordance with that pro rata
participation, in any payment made by the Borrower with respect to such claim.
(f) Obligations Absolute. The obligation of the Borrower to pay to
Issuing Bank the amount of any payment made by Issuing Bank under any Letter of
Credit shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, the Borrower's obligation shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which the Borrower may have at any time against Issuing Bank,
Agent or any Bank, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or
any unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document
appeared to comply with the terms of the Letter of Credit;
(v) payment by Issuing Bank in good faith under the Letter of
Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of the Letter of Credit;
or any payment made by Issuing Bank under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with (a) any
case, action or proceeding before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other, similar
arrangement; in each case (a) and (b) under U.S. Federal, State or
foreign law;
(vi) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
19
(vii) any error in the transmission of any message relating to
a Letter of Credit not caused by Issuing Bank, or any delay or
interruption in any such message;
(viii) any error, neglect or default of any correspondent of
Issuing Bank in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Bank;
(x) so long as Issuing Bank in good faith determines that the
document appears to comply with the terms of the Letter of Credit, the
form, accuracy, genuineness or legal effect of any contract or document
referred to in any document submitted to Issuing Bank in connection
with a Letter of Credit; and
(xi) where Issuing Bank has acted in good faith.
In addition, the Borrower will promptly examine a copy of each Letter
of Credit and amendments thereto delivered to it and, in the event of any claim
of noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify Issuing Bank in writing. The Borrower shall be
conclusively deemed to have waived any such claim against Issuing Bank and its
correspondents unless such notice is given as aforesaid.
(g) Role of Issuing Bank. Each Bank and the Borrower agree
that, in paying any drawing under a Letter of Credit, Issuing Bank shall not
have any responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No officers, employees,
correspondents, participants or assignees of Issuing Bank shall be liable to any
Bank for any action taken or omitted in connection herewith at the request or
with the approval of Banks; or any action taken or omitted in the absence of
gross negligence or willful misconduct; or the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. No officers,
employees, correspondents, participants or assignees of Issuing Bank, shall be
liable or responsible for any of the matters described in subsection (f) above.
In furtherance and not in limitation of the foregoing, Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Bank shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(h) Applicability of International Standby Practices 1998.
Unless otherwise expressly agreed by Issuing Bank and the Borrower, when a
Letter of Credit is issued, the rules of the "International Standby Practices
1998" or such later revision as may be published by the Institute of
International Banking Law and Practice, subject to applicable laws, shall be
deemed a part of this Section and shall apply to such Letter of Credit.
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(i) Issuance Fee and Documentary and Processing Charges
Payable to Issuing Bank. Concurrently with the issuance of each Letter of
Credit, the Borrower shall pay a Letter of Credit Fee to Issuing Bank. Issuing
Bank will promptly thereafter cause to be distributed each Bank's Pro Rata Share
of such payments in like funds to each Bank. In addition, the Borrower shall pay
directly to Issuing Bank for its sole account its customary documentary and
processing charges in accordance with its standard schedule, as from time to
time in effect, for any amendment or other occurrence relating to a Letter of
Credit. Such fee and charges are nonrefundable.
3. SECURITY. As security for any and all indebtedness, obligations or
liabilities of every kind and description of Borrower to Banks, including,
without limitation, all advances and Loans evidenced by the Notes, and any other
advances or loans made pursuant to this Agreement or any other instrument,
document, agreement executed and/or delivered by Borrower to Agent and/or Banks
in connection herewith, including any extensions, renewals or changes in form of
any of the Notes, and any other obligations or liabilities now existing or
hereafter arising, direct or indirect, absolute or contingent, joint and/or
several, howsoever created or obtained (separately and collectively, the
"Obligations"), Borrower grants to Agent, for the benefit of the Banks, the
following liens and security interests and also agrees as follows:
3.1. A first and prior security interest in all assets of Borrower,
including without limitation all accounts; chattel paper; deposit accounts;
documents; equipment; farm products; fixtures; general intangibles; goods;
instruments; inventory; investment property; letter-of-credit rights; commercial
tort claims; supporting obligations; and proceeds and products of all of the
foregoing; whether now owned or hereafter acquired, howsoever arising or
wheresoever located, all as evidenced by the Security Agreement.
3.2. A first and prior security interest in the Interest Reserve
Account, as evidenced by the Interest Reserve Account Security Agreement.
3.3. A first and prior mortgage lien against the Mortgaged Property, as
evidenced by the Mortgage.
3.4. All proceeds and products of the foregoing.
3.5. Borrower also agrees to execute and deliver all financing
statements or other instruments, documents or agreements required by Agent in
order to effectuate the intent of the parties in connection herewith, including
without limitation documents necessary for proper perfection as deemed necessary
and/or advisable by Agent and legal counsel.
4. CONDITIONS PRECEDENT TO CLOSING AND TO BANKS' OBLIGATION TO MAKE THE
INITIAL ADVANCE.
4.1. Closing. Closing shall occur when Agent has received the following
(original, executed documents, where appropriate, and evidencing appropriate
recording, as applicable):
4.1.1. this Agreement;
4.1.2. Notes;
4.1.3. Mortgage;
4.1.4. Security Agreement;
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4.1.5. UCC-1 Financing Statement;
4.1.6. Borrower's Authority Documents;
4.1.7. Opinion of Borrower's Counsel;
4.1.8. any financial statements required by Banks;
4.1.9. Approved Budget;
4.1.10. Plans (copy);
4.1.11. Insurance Certificate;
4.1.12. Government Approvals (copy);
4.1.13. Payment and Performance Bonds (if required by Banks);
4.1.14. UCC Chattel Check;
4.1.15. Merger Documents; and
4.1.16. Any other instruments, documents or agreements
reasonably requested by Agent in connection herewith.
4.2. Initial Advance. It is expressly agreed that Agent shall not be
obligated to make the initial Advance of the Construction Loan proceeds
hereunder until the following conditions have been satisfied, unless waived by
Agent with the approval of Banks. In the event Banks elect to waive any
requirements or conditions contemplated herein with regard to the initial
Advance, such waiver shall not preclude Banks from thereafter requiring full and
complete performance of all terms, conditions and requirements with regard to
any subsequent Advance.
4.2.1. All items set forth in Section 4.1 shall have been
received;
4.2.2. The fully-executed Subordination Agreement shall have
been delivered to Agent;
4.2.3. The Survey (Initial) shall have been delivered to and
approved by Agent;
4.2.4. The Mortgage Related Documents shall have been
delivered to and approved by Agent;
4.2.5. The Zoning Approval shall have been delivered to and
approved by Agent;
4.2.6. Borrower shall provide to Agent written certification
from Borrower's Chief Financial Officer that Borrower has successfully
raised $11,500,000 in equity;
4.2.7. The Interest Reserve Account shall have been
established and funds in the amount of $1,500,000 deposited therein;
4.2.8. The Interest Reserve Account Security Agreement shall
have been executed and delivered to Agent;
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4.2.9. Borrower shall have furnished to Agent evidence
satisfactory to Agent that Borrower has invested funds in an amount
not less than $10,000,000 into the cost of completion of the
Improvements;
4.2.10. Borrower shall have executed and/or delivered to
Agent any other instruments, documents or agreements reasonably
requested by Agent or the Banks in connection herewith;
4.2.11. The representations and warranties set forth under
Section 7, below, shall be true and correct on and as of the date of
such Advance with the effect as if made on such date; and
4.2.12. No Event of Default exists under this Agreement or
any Loan Documents.
5. CONDITIONS PRECEDENT TO BANKS' OBLIGATION TO MAKE ADVANCES AFTER THE
INITIAL ADVANCE. It is expressly agreed that Agent's obligation to make any
Advance of the Construction Loan proceeds after the initial Advance shall be
subject to satisfaction of the following conditions, unless waived by Agent,
with the approval of Banks. In the event Banks elect to waive any requirements
or conditions contemplated herein with regard to the initial Advance, such
waiver shall not preclude Banks from thereafter requiring full and complete
performance of all terms, conditions and requirements with regard to any
subsequent Advance.
5.1. All conditions for the initial Advance must be satisfied or
expressly waived in writing by Agent as of the date of the pending Advance.
5.2. Title Insurance Policy delivered to Agent.
5.3. Title Insurance Policy Endorsement delivered to Agent, if the
effective date of the Title Insurance Policy is not the same as the date of the
pending Advance.
5.4. If required by Agent, Survey (Post-Foundation) delivered to
Agent with the Advance Request first occurring after completion of the
foundation for the Improvements.
5.5. If required by Agent, Survey (Post-Completion) delivered to
Agent with any Advance Request occurring after completion of construction of
the Improvements.
5.6. Certificate of Completion delivered to Agent within fifteen
(15) days after completion of construction of the Improvements.
5.7. The representations and warranties set forth under Section 7,
below, shall be true and correct on and as of the date of the pending Advance
with the effect as if made on such date.
5.8. No Event of Default exists under this Agreement or any Loan
Documents.
6. DISBURSEMENT PROCEDURE. In addition to the conditions precedent under
Sections 4 and 5, above, the parties agree that Advances under the Construction
Notes will be made by Agent to Borrower subject to the following limitations.
6.1. Purpose. The principal sum to be disbursed under the
Construction Notes shall be used for the purpose of paying the items specified
in the Approved Budget, including paying the Contractor, subcontractors,
mechanics, materialmen and suppliers pursuant to the terms of the
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Construction Contract and other contracts for construction of the Improvements,
for services performed and materials purchased for and either incorporated into
the Improvements or stored on the Land for later incorporation, for interest
payments on the Construction Notes, for reimbursement of Agent for expenses
incurred pursuant to this Agreement, and for payment of other costs and
expenses (reasonably acceptable to Agent) which are incidental or related to
the costs of completing or financing the Improvements.
6.2. Request for Advance. Borrower shall deliver to Agent an
Advance Request at least two (2) business days before the requested date of
disbursement. Agent may require that additional information accompany the
Advance Request as described in Section 1.4, above. The Agent shall promptly
notify each Bank of each such notice. Not later than 2:00 p.m., or three (3)
hours following receipt of such notice, whichever is later, on the date of such
Advances, each Bank will make available to the Agent at Agent's Principal
Office in immediately available funds, such Bank's Pro Rata Share of such
Advances. After the Agent's receipt of such funds, and upon fulfillment of the
applicable conditions, the Agent will make such Advances available to the
Borrower as set forth in Section 6.4 below.
6.3. Agent's Inspection. If, for any reason, Agent deems it
necessary to cause the Improvements to be examined by a representative of Agent
prior to making any Advance, it shall have a reasonable time within which to do
so, and Agent shall not be required to make any Advance until such examination
has been made, at Borrower's expense.
6.4. Disbursements. Agent shall, on the date the requested Advance
is to be made or as soon thereafter as all conditions precedent to such Advance
have been satisfactorily met, (i) deliver checks to approved payees whose
invoices are entitled to be paid from the proceeds of the Advance, or (ii) at
the discretion of Agent, such Advance may be made directly in Borrower's
special account with Agent into which all Advances hereunder (but no other
funds) may be deposited, and against which only checks shall be drawn for
payment of items in the Approved Budget and items incidental thereto.
Disbursements shall not be made more often than monthly, and Advances under the
Construction Notes may, at the option of Agent, be recorded on the Construction
Notes and/or by deposits to the foregoing account, and such records shall be
conclusive evidence of all Advances made under the Construction Notes.
Notwithstanding the foregoing disbursement procedure, if an Event of Default
occurs hereunder or under the terms of any of the Loan Documents executed
pursuant hereto, Agent may, with the approval of Banks, until such Event of
Default is cured or for so long as required hereunder, make all disbursements
to a title company escrow account, and such title company will draw checks on
such account for payment of the items approved by Agent. Any expense incurred
because of the disbursement through a controlled title company escrow account
shall be paid by Borrower.
6.5. Projected Budget Overrun. In the event Agent determines, at
any time, that the total cost of completing the Improvements free of liens and
encumbrances, other than those in favor of Agent contemplated hereby, will, in
the reasonable judgment of Agent, exceed the undisbursed balance of the Loan,
Agent may require further security for the payment of the Construction Notes by
(i) requiring Borrower to grant Agent additional collateral, satisfactory to
Agent, and/or (ii) requiring Borrower to make cash deposits with Agent
sufficient in amount to cover such estimated excess cost of completing the
Improvements, which cash deposits will be disbursed on a first-out basis prior
to further Advances by Agent under the Construction Notes. For the purpose of
this Section 6.5, the cost of completion shall be deemed to include, without
limitation, the following: costs of labor and materials, on-site and off-site
improvements, amounts paid to contractors, landscaping, professional fees,
taxes on the Mortgaged Property, premiums for bonds, insurance and title
insurance, title examination costs and fees, survey costs, appraisal fees,
recording costs, interest on the Construction Notes, Loan fees due hereunder,
all amounts reimbursable to Agent for
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expenses incurred hereunder, and the cost of all items necessary to the proper
completion of the Improvements.
6.6. Change Orders. Once the aggregate amount of Change Orders,
including all Change Orders effected subsequent to execution of the
Construction Contract, has reached a point where the total cost of completion
of the Improvements has been increased by $1,350,000 or more, then all Change
Orders, including the Change Order which causes the aggregate amount to exceed
$1,350,000, shall be subject to the prior written consent of Agent, with the
approval of Banks.
6.7. Construction Loan Termination Date. Notwithstanding anything
to the contrary, Agent shall have no duty to advance funds under the
Construction Loan after October 31, 2006.
7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to each Bank that:
7.1. Incorporation, Good Standing, and Due Qualification. Borrower
is a corporation duly incorporated, validly existing, and in good standing
under the laws of the State in which it is incorporated; has the corporate
power and authority to own its assets and to transact the business in which it
is now engaged or proposed to be engaged; and is duly qualified as a foreign
corporation and in good standing under the laws of each other jurisdiction in
which such qualification is required.
7.2. Corporate Power and Authority. The execution, delivery, and
performance by Borrower of the Loan Documents have been duly authorized by all
necessary corporate action and do not and will not (1) require any consent or
approval of the stockholders which has not been given; (2) contravene
Borrower's charter or bylaws; (3) violate any provision of any law, rule,
regulation (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination, or award presently in effect having applicability to
Borrower; (4) result in a breach of or constitute a default under any indenture
or loan or credit agreement or any other agreement, lease, or instrument to
which Borrower is a party or by which it or its properties may be bound or
affected; (5) result in, or require, the creation or imposition of any lien,
upon or with respect to any of the properties now owned or hereafter acquired
by Borrower; or (6) cause Borrower to be in default under any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination, or award
or any such indenture, agreement, lease, or instrument.
7.3. Legally Enforceable Agreement. This Agreement is, and each of
the other Loan Documents when delivered under this Agreement will be, legal,
valid, and binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, and other
similar laws affecting creditors' rights generally.
7.4. Financial Statements. The balance sheet of Borrower as of
April 30, 2005, the related statements of income and retained earnings of
Borrower for the twelve (12) months then ended, are complete and correct and
fairly present the financial condition of Borrower at such dates and the
results of the operations of Borrower for the periods covered by such
statements, all in accordance with GAAP (subject to year-end adjustments in the
case of the interim financial statements), and since April 30, 2005, there has
been no material adverse change in the condition (financial or otherwise),
business or operations of Borrower. There are no liabilities of Borrower, fixed
or contingent, which are material but not reflected in such financial
statements or in the notes thereto, other than liabilities arising in the
ordinary course of business since April 30, 2005. No information, exhibit, or
report furnished by the Borrower to any Bank in connection with the
25
negotiation of this Agreement contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the statement
contained therein not materially misleading.
7.5. Labor Disputes and Acts of God. Neither the business nor the
properties of Borrower is affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act
of God or other casualty (whether or not covered by insurance), materially
adversely affecting such business or the operation of Borrower.
7.6. Other Agreements. Borrower is not a party to any indenture,
loan, or credit agreement, or to any lease or other agreement or instrument, or
subject to any charter or corporate restriction, the performance of which in
accordance with the respective terms could have a material adverse effect on
the business, properties, assets, operations, or condition, financial or
otherwise, of Borrower or the ability of Borrower to carry out its obligations
under the Loan Documents. Borrower is not in material default in any respect in
the performance, observance, or fulfillment of any of the obligations,
covenants, or conditions contained in any agreement or instrument material to
its business to which it is a party.
7.7. Litigation. There is no pending or threatened action or
proceeding against or affecting Borrower before any court, governmental agency
or arbitrator, which may, in any one case or in the aggregate, materially
adversely affect the financial condition, operations, properties, or business
of Borrower or the ability of Borrower to perform its obligations under the
Loan Documents. Any litigation which does exist is set forth in detail
satisfactory to Agent on Schedule "7.7" hereto, but Borrower represents to each
Bank that such litigation does not violate this Section 7.7.
7.8. Ownership and Liens. Borrower has title to, or valid
leasehold interests in, all of its properties and assets, real and personal,
including the properties and assets and leasehold interest reflected in the
financial statements referred to in Section 7.4, and none of the properties and
assets owned by Borrower, and none of its leasehold interests, are subject to
any lien, except the Permitted Liens.
7.9. ERISA. Borrower is in compliance in all material respects
with all applicable provisions of ERISA. Neither a Reportable Event nor a
Prohibited Transaction has occurred and is continuing with respect to any Plan;
no notice of intent to terminate a Plan has been filed, nor has any Plan been
terminated; no circumstances exist which constitute grounds entitling the PBGC
to institute proceedings to terminate, or appoint a trustee to administer, a
Plan, nor has the PBGC instituted any such proceedings; neither Borrower nor
any Commonly Controlled Entity has completely or partially withdrawn from a
Multiemployer Plan; Borrower and each Commonly Controlled Entity have met their
minimum funding requirements under ERISA with respect to all of their Plans and
the present value of all vested benefits under each Plan exceeds the fair
market value of all Plan assets allocable to such benefits, as determined on
the most recent valuation date of the Plan and in accordance with the
provisions of ERISA; and neither Borrower nor any Commonly Controlled Entity
has incurred any liability to the PBGC under ERISA.
7.10. Operation of Business. Borrower possesses all licenses,
permits, franchises, patents, copyrights, trademarks, and trade names, or
rights thereto, to conduct its business substantially as now conducted and as
presently proposed to be conducted, and Borrower is not in violation of any
valid rights of others with respect to any of the foregoing.
7.11. Taxes. Borrower has filed all tax returns (federal, state and
local) required to be filed by law and has paid all taxes, assessments, and
governmental charges and levies thereon to be due, including interest and
penalties, except any such taxes, charges or levies which are being diligently
contested in good faith by appropriate proceedings.
26
7.12. Debt. Schedule "7.12" is a complete and correct list of all
credit agreements, indentures, purchase agreements, guaranties, Capital Leases,
and other investments, agreements, and arrangements presently in effect
providing for or relating to extensions of credit (including agreements and
arrangements for the issuance of letters of credit or for acceptance financing)
in respect of which Borrower is in any manner directly or contingently
obligated; and the maximum principal or face amounts of the debt in question,
which are outstanding and which can be outstanding, are correctly stated, and
all liens of any nature given or agreed to be given as security therefor are
correctly described or indicated in such Schedule. With regard to any guaranty
or other contingent obligation of Borrower, Borrower shall promptly notify
Agent in the event any such obligation becomes non-contingent.
7.13. Environment. Borrower has duly complied with, and its
business, operations, assets, equipment, property, leaseholds, or other
facilities are in compliance with, the provisions of all federal, state, and
local environmental, health and safety laws, codes and ordinances, and all
rules and regulations promulgated thereunder, as more fully set forth in the
Mortgage.
7.14. No Unpaid Bills. No work, labor or services have been
performed on the Land nor materials delivered to or placed thereon within
ninety (90) days prior hereto that have not been fully paid, and that there are
no unpaid bills for labor, materials, supplies or services furnished upon the
Land.
7.15. Utilities. All utility service necessary for the construction
of the Improvements, and the operation and maintenance thereof for their
intended purpose, are and will continue to be available for the use of Borrower
at the boundaries of the Land, including water supply, storm and sanitary sewer
facilities, electric, gas and telephone services.
7.16. Access. Adequate vehicular, pedestrian and utility access for
reasonably direct ingress, egress and service to and from the Land from
publicly owned and maintained paved roadways are and will be available when
needed to the Land.
7.17. Construction of Improvements. All labor and materials
contracted for or utilized in connection with the construction of the
Improvements shall be used and employed solely on the Land, and said
construction shall be strictly in accordance with the Plans and free from
encroachments upon building lines, easements and property lines.
7.18. No Violations. Based upon a reasonable investigation, there
exist no violations of any statutes, rules, orders, ordinances, regulations or
requirements of any Governmental Authorities with respect to the Land, and the
anticipated use thereof complies with all applicable statutes, rules,
ordinances, regulations or requirements (including, without limitation, zoning,
environmental, ecological, landmark and all other applicable categories)
affecting the Land.
7.19. Zoning. The Land is not a part of a larger tract of land
owned or leased by Borrower or any of its affiliates, or otherwise considered
as part of one zoning lot, or, if it is, that any authorization or variance
required for the subdivision of such larger tract which a sale of the Mortgaged
Property would entail has been obtained from all the appropriate Governmental
Authorities, so that the Land constitutes one zoning lot (including street
access and parking and utility facilities, if relevant) capable of being
conveyed as such. A "zoning lot" means a piece of property large enough to meet
the minimum size for zoning requirements for "something" to be built on it.
27
7.20. Rights of Way. Necessary rights of way for all roads needed
for the full utilization of the Land for its intended purposes have been
acquired, and/or have been dedicated to public use and accepted by the
appropriate Governmental Authority.
7.21. Title Insurance Exceptions. The exceptions set forth in the
Title Insurance Binder will not legally impair the anticipated operation,
development or use, or any sale, of the Land.
8. AFFIRMATIVE COVENANTS. So long as any Note shall remain unpaid or any
Bank shall have any Commitment under this Agreement, Borrower will comply with
the following:
8.1. Maintenance of Existence. Preserve and maintain its corporate
existence and good standing in the states in which it does business, and
qualify and remain qualified as a foreign corporation in each jurisdiction in
which such qualification is required.
8.2. Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP,
reflecting all financial transactions.
8.3. Maintenance of Properties. Maintain, keep, and preserve all
of its properties (tangible and intangible) necessary or useful in the proper
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
8.4. Lockbox. Upon the request of Agent, Borrower shall establish
and maintain a lockbox in Agent pursuant to an agreement in form and substance
satisfactory to Agent which shall provide, in part, that: (a) Borrower shall
deposit all checks and other instruments with respect to its notes, chattel
paper or accounts receivable in the form received by them in the lockbox, (b)
unless otherwise directed by Agent, Borrower shall direct its debtors and
customers to make all payments in respect to their accounts receivable directly
to the lockbox at Agent, (c) Agent shall deposit all items received by it to
accounts designated by the Agent for the Borrower, provided no Event of Default
shall have occurred and be continuing, and (d) if an Event of Default shall
have occurred and be continuing, all such payments may be applied to the
Indebtedness, at such times and in such order as Agent may elect.
8.5. Conduct of Business. Continue to engage in an efficient and
economical manner in a business of the same general type as conducted by it on
the date of this Agreement.
8.6. Maintenance of Insurance. Borrower will keep or cause to be
kept adequately insured by financially sound and reputable insurers its plant,
equipment, motor vehicles, and all other property of a character usually
insured by businesses engaged in the same or similar businesses. Upon demand by
the Agent, any insurance policies covering the Collateral shall include a loss
payable endorsement to Agent, shall provide that such policies may not be
canceled, reduced or affected in any manner for any reason without thirty (30)
days prior notice to the Agent, and shall provide for any other matters which
the Agent may reasonably require. Such insurance shall be against fire,
casualty and any other hazards normally insured against and shall be in the
amount of the full value (less a reasonable deductible not to exceed amounts
customary in the industry for similarly situated businesses and properties) of
the property insured. So long as no Event of Default exists and is continuing,
the proceeds of said insurance policies may be used for repair or replacement
of the damaged property. The Borrower shall at all times maintain adequate
insurance against damage to persons or property, which insurance shall be by
financially sound and reputable insurers and shall, without limitation, provide
the following coverages: comprehensive general liability (including, without
limitation, coverage, where applicable, damage caused by explosion, broad form
property damage coverage, broad form coverage for contractually independent
contractors), worker's compensation, products liability and automobile
liability.
28
8.7. Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations, and orders, such compliance to
include, without limitation, paying before the same become delinquent all
taxes, assessments, and governmental charges imposed upon it or upon its
property.
8.8. Right of Inspection. At any reasonable time and from time to
time, and following twenty-four (24) hours prior written notice, permit the
Agent or any agent or representative of any of the Banks, to reasonably examine
and make copies of (at a cost to Borrower not to exceed $1,000) and abstracts
from the records and books of account of, and visit the properties of,
Borrower, and to discuss the affairs, finances, and accounts of Borrower with
any of its officers and directors and Borrower's independent accountants. Agent
contemplates conducting at least semi-annual field audits of the Borrower's
property.
8.9. Reporting Requirements. Furnish to Agent and Banks:
8.9.1. Quarterly Financial Statements. As soon as available
and in any event within forty-five (45) days after the end of each
fiscal quarter of Borrower, Borrower shall deliver to Agent and Banks
interim balance sheets of Borrower as of the end of such quarter,
statements of income and retained earnings of Borrower for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, and statements of cash flow of Borrower for the
portion of the fiscal year ended with the last day of such quarter,
all in sufficient detail and stating in comparative form the
respective figures for the corresponding date and period in the
previous fiscal year all prepared in accordance with GAAP and
certified by the chief financial officer of Borrower (subject to
normal year end audit adjustments);
8.9.2. Annual Financial Statements. As soon as available
and in any event within ninety (90) days after the end of each fiscal
year of Borrower, commencing with the fiscal year ending December 31,
2005, balance sheets of Borrower as of the end of such fiscal year,
statements of income and retained earnings of Borrower for such fiscal
year, and statements of cash flow of Borrower for such fiscal year,
with explanatory footnotes in sufficient detail acceptable to the
Agent and Banks, and stating in comparative form the respective
figures for the corresponding date and period in the prior fiscal year
and all prepared in accordance with GAAP and as to the statements
accompanied by an unqualified opinion thereon acceptable to the Agent
and Banks by independent accountants selected by Borrower and which
are acceptable to the Agent and Banks;
8.9.3. Management Letters. Promptly upon receipt thereof,
copies of any reports submitted to Borrower by independent certified
public accountants in connection with examination of the financial
statements of Borrower made by such accountants;
8.9.4. Compliance Certificate. Within forty-five (45) days
after the end of each fiscal quarter of Borrower a certificate of
compliance ("Compliance Certificate") executed by the chief financial
officer of Borrower, in form and content as set forth in Schedule
"8.9.4" hereto;
8.9.5. Notice of Litigation. Promptly after the
commencement thereof, notice of all actions, suits, and proceedings
before any court or governmental department, commission, board,
bureau, agency, or instrumentality, domestic or foreign, affecting
Borrower, which, if determined adversely to Borrower, could have a
material adverse effect on the financial condition, properties, or
operations of Borrower;
29
8.9.6. Notice of Event of Defaults. As soon as possible and
in any event within five (5) days after the occurrence of each Event
of Default, a written notice setting forth the details of such Event
of Default and the action which is proposed to be taken by the
Borrower with respect thereto;
8.9.7. ERISA Reports. As soon as possible, and in any event
within thirty (30) days after Borrower knows or has reason to know
that any circumstances exist that constitute grounds entitling the
PBGC to institute proceedings to terminate a Plan subject to ERISA
with respect to Borrower or any Commonly Controlled Entity, and
promptly but in any event within two (2) Business Days of receipt by
the Borrower or any Commonly Controlled Entity of notice that the PBGC
intends to terminate a Plan or appoint a trustee to administer the
same, and promptly but in any event within five (5) Business Days of
the receipt of notice concerning the imposition of withdrawal
liability with respect to Borrower or any Commonly Controlled Entity,
the Borrower will deliver to the Agent and Banks a certificate of the
chief financial officer of the Borrower setting forth all relevant
details and the action which the Borrower proposes to take with
respect thereto;
8.9.8. Reports to Other Creditors. Promptly after the
furnishing thereof, copies of any statement or report furnished to any
other party pursuant to the terms of any indenture, loan, credit, or
similar agreement and not otherwise required to be furnished to the
Agent and Banks pursuant to any other clause of this Section 8; and
8.9.9. General Information. Such other information
respecting the condition or operations, financial or otherwise, of
Borrower as the Agent and Banks may from time to time reasonably
request.
8.10. Environment. Be and remain in material compliance with the
provisions of all federal, state, and local environmental, health and safety
laws, codes and ordinances, and all rules and regulations issued thereunder, as
more fully set forth in the Mortgage.
8.11. Operating Accounts. Maintain its primary operating accounts
at Agent, with the exception of its payroll account.
8.12. Subsidiaries. At the time of creation or acquisition of any
Subsidiary, Borrower shall cause such Subsidiary to properly become a Guarantor
hereunder.
8.13. Interest Reserve Account. Borrower shall maintain the
Interest Reserve Account with a balance at all times of not less than
$1,500,000; provided, however, that following the date which is seven (7)
months from the date of issuance of the Certificate of Completion, the funds in
such account shall be released, provided the following requirements have been
met: (i) Borrower has maintained an EBITDA of not less than $800,000 for three
(3) consecutive months; (ii) the Financial Covenants set forth in Section 10
have been calculated including advances under the Construction Loan, where
applicable, and Borrower is in compliance with all such Financial Covenants;
and (iii) no Event of Default exists. Once the funds in the Interest Reserve
Account are released, they shall be paid to Agent to be disbursed to Banks
under the terms hereof, and applied to reduce the outstanding principal balance
of the Term Loan hereunder.
9. NEGATIVE COVENANTS. So long as any Notes shall remain unpaid or any
Bank shall have any Commitment under this Agreement or any Letter of Credit
issued in connection herewith, Borrower will not:
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9.1. Negative Pledge. Create, incur, permit or suffer to exist any
Liens upon any of its assets or properties, now owned or hereafter acquired,
except for the Permitted Liens.
9.2. Debt. Create, incur, assume, or suffer to exist any Debt,
except:
(1) Indebtedness arising out of this Agreement;
(2) Purchase money indebtedness not to exceed $500,000
in the aggregate for any given fiscal year;
(3) Current liabilities for taxes and assessments
incurred in the ordinary course of business;
(4) Indebtedness in respect of current accounts payable
or accrued (other than for borrowed funds or purchase money
obligations) and incurred in the ordinary course of business, provided
that all such liabilities, accounts and claims shall be promptly paid
and discharged when due or in conformity with customary trade terms;
(5) Debt described in Schedule "7.12" but no voluntary
prepayment, renewals, extensions, or refinancings thereof;
(6) Unsecured non-Bank Debt in addition to the debt
described in Schedule "7.12" not to exceed $100,000 for the Borrower
in the aggregate in any given fiscal year;
(7) Accounts payable to trade creditors for goods or
services which are not past due more than ninety (90) days from the
billing date, in each case incurred in the ordinary course of
business, as presently conducted, and paid within the specified time,
unless contested in good faith and by appropriate proceedings; and
(8) The Subordinated Debt.
9.3. Mergers, etc. Without the prior written consent of Banks,
wind up, liquidate or dissolve itself, reorganize, merge or consolidate with or
into, or convey, sell, assign, transfer, lease, or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to
any Person.
9.4. Leases. Without Agent's prior written consent, create, incur,
assume, or suffer to exist, any obligation as lessee for the rental or hire of
any real or personal property, except (1) the leases set forth on Schedule
"9.4" hereto and any extensions or renewals thereof and (2) leases (other than
Capital Leases) which do not in the aggregate require Borrower to make payments
(including taxes, insurance, maintenance, and similar expenses which the
Borrower is required to pay under the terms of any lease) in any fiscal year of
Borrower in excess of Fifty Thousand and no/100ths Dollars ($50,000). Agent
agrees not to unreasonably withhold its consent and will endeavor to respond
within ten (10) days to Borrower's request therefor.
9.5. Sale and Leaseback. Sell, transfer, or otherwise dispose of
any real or personal property to any Person and thereafter directly or
indirectly lease back the same or similar property.
9.6. Dividends. Declare or pay any dividends; or purchase, redeem,
retire, or otherwise acquire for value any of its capital stock now or
hereafter outstanding; or make any distribution of assets to its stockholders
as such whether in cash, assets, or in obligations of the Borrower; or allocate
or otherwise set apart any sum for the payment of any dividend or distribution
on, or for the
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purchase, redemption, or retirement of any shares of its capital stock; or make
any distribution by reduction of capital or otherwise in respect of any shares
of its capital stock.
9.7. Sale of Assets. Sell, lease, assign, transfer, or otherwise
dispose of, any of its now owned or hereafter acquired assets (including,
without limitation, shares of stock, receivables, and leasehold interests),
except: (1) inventory disposed of or leased in the ordinary course of business;
(2) the sale or other disposition of assets no longer used or useful in the
conduct of its business; and (3) treasury stock; provided, however, that the
sale of stock to raise equity required hereunder shall not violate this
Section.
9.8. Guaranties, etc. Assume, guarantee, endorse, or otherwise be
or become directly or contingently responsible or liable (including, but not
limited to, an agreement to purchase any obligation, stock, assets, goods, or
services, or to supply or advance any funds, assets, goods, or services, or an
agreement to maintain or cause such Person to maintain a minimum working
capital net worth, or otherwise to assure the creditors of any Person against
loss), for obligations of any Person, except guaranties by endorsement of
negotiable instruments for deposits or collection or similar transactions in
the ordinary course of business.
9.9. Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate, except in the ordinary course
of and pursuant to the reasonable requirements of each Borrower's business and
upon fair and reasonable terms no less favorable to the Borrower than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate.
Notwithstanding anything to the contrary in the preceding sentence, the
Borrower shall be permitted to enter into and perform its obligations under the
Management Services Agreement between the Borrower and Xxxxxxxxx Group, LLC (or
its affiliates) substantially in the form attached as Schedule "9.9", provided
that such performance does not cause an Event Default.
10. FINANCIAL COVENANTS. So long as any Notes shall remain unpaid or any
Bank shall have any Commitment under this Agreement, Borrower shall comply with
the following:
10.1. Funded Debt to EBITDA. Maintain, tested on the last day of
each fiscal quarter commencing June 30, 2005, a ratio of (i) Funded Debt for
the preceding four consecutive fiscal quarters of Borrower to (ii) EBITDA for
the preceding four consecutive fiscal quarters of Borrower of not greater than
4.0 to 1.
10.2. Fiscal Year. Not change its fiscal year end.
10.3. Tangible Net Worth. Maintain, tested on the last day of each
fiscal quarter commencing June 30, 2005, a net worth of not less than
$8,000,000, including Subordinated Debt; provided, however, that upon closing
of Borrower's anticipated sale of stock to raise equity required hereunder, and
at all times thereafter, Borrower shall maintain a net worth of not less than
$19,500,000, including Subordinated Debt.
10.4. Debt Service Coverage Ratio. Maintain, tested on the last day
of each fiscal quarter commencing June 30, 2005, a Debt Service Coverage Ratio
of not less than 1.25 to 1.
10.5. Capital Expenditures. Not make expenditures for fixed or
capital assets if, after giving effect thereto, the aggregate of all such
expenditures would exceed $1,000,000 during any fiscal year of the Borrower,
excluding the new paper machine.
11. ASSIGNMENTS.
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11.1. Assignment of Construction Contract. Borrower hereby Assigns
to Agent, for the benefit of Banks, Borrower's interest in the Construction
Contract and further represents to Agent that: (i) the Construction Contract is
not subject to any claim, setoff or encumbrance; (ii) there have been no prior
assignments of the Construction Contract; (iii) the Construction Contract
constitutes the valid and binding obligations of the parties thereto, and is
enforceable in accordance with its terms; (iv) neither Borrower nor Contractor
is in default under the terms of the Construction Contract; (v) all covenants,
conditions and agreements have been performed as required by the Construction
Contract, except those which are not due to be performed until after the date
of this Agreement; (vi) Borrower shall continue to be liable for all
obligations of Borrower under the Construction Contract; (vii) Borrower hereby
agrees to punctually perform and observe all of the terms, conditions and
requirements of the Construction Contract to be performed or observed by
Borrower; and (viii) Borrower agrees to indemnify and hold Agent harmless
against and from any loss, cost, liability or expense (including, without
limitation, reasonable attorneys' fees, court costs and investigation expenses)
resulting from any failure of Borrower to perform its obligations under the
Construction Contract.
11.2. Assignment of Contractor's Plans. Borrower hereby assigns to
Agent for benefit of the Banks, Borrower's right, title and interest in and to
the Plans. Borrower further represents to Agent that: (i) the list of the Plans
attached hereto as Schedule "11.2" is complete and accurate; (ii) the Plans
have not been altered or amended except as may be reflected on Schedule "11.2"
and will not hereafter be materially altered or amended without the prior
written consent of Agent; (iii) all the Plans were prepared by the Contractor;
(iv) Borrower is the sole and exclusive owner of the Plans (subject only to the
interest, if any, of Contractor therein) and has the right and authority to
make this Assignment; and (v) a true and correct copy of the Plans has
heretofore been delivered to Agent by Borrower.
12. EVENTS OF DEFAULT.
12.1. Events of Default. If any of the following events shall
occur:
(1) Borrower should fail to pay the principal of, or
interest on, the Notes, or any amount of the Commitment or other fee
within ten (10) days as and when due and payable;
(2) Any representation or warranty made or deemed made
by Borrower in this Agreement or the Security Agreement or which is
contained in any certificate, document, opinion, or financial or other
statement furnished at any time under or in connection with any Loan
Document shall prove to have been incorrect, incomplete, or misleading
in any material respect on or as of the date made or deemed made;
(3) Borrower shall fail to perform or observe any term,
covenant, or agreement contained in this Agreement or any Loan
Documents, following a thirty (30) day notice and cure period as to
non-monetary covenant defaults;
(4) Borrower shall (a) fail to pay any indebtedness for
borrowed money (other than the Notes) or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (b) fail to perform or observe
any term, covenant, or condition on its part required to be performed
or observed under any agreement or instrument relating to any such
indebtedness, when required to be performed or observed, if the effect
of such failure to perform or observe is to accelerate, or to permit
the acceleration of, after the giving of any applicable notice or
passage of time, or both, the maturity of such indebtedness, whether
or not such failure to perform or observe
33
shall be waived by the holder of such indebtedness, or any such
indebtedness shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof;
(5) Borrower or any Guarantor (a) shall generally not
pay, or shall be unable to pay, or shall admit in writing its
inability to pay its debts as such debts become due; or (b) shall make
an assignment for the benefit of creditors, or petition or apply to
any tribunal for the appointment of a custodian, receiver, or trustee
for it or a substantial part of its assets; or (c) shall commence any
proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution, or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (d) shall
have had any such petition or application filed or any such proceeding
commenced against it in which an order for relief is entered or an
adjudication or appointment is made, and which remains undismissed for
a period of thirty (30) days or more; or (e) shall take any corporate
action indicating its consent to, approval of, or acquiescence in any
such petition, application, proceeding, or order for relief or the
appointment of a custodian, receiver, or trustee for all or any
substantial part of its properties; or (f) shall suffer such
custodianship, receivership, or trusteeship to continue undischarged
for a period of thirty (30) days or more;
(6) One or more judgments, decrees, or orders for the
payment of money in excess of One Hundred Thousand and no/100ths
Dollars ($100,000.00) in the aggregate shall be rendered against
Borrower, and such judgments, decrees, or order shall continue
unsatisfied and in effect for a period of sixty (60) consecutive days
without being vacated, discharged, satisfied, or stayed or bonded
pending appeal;
(7) The Collateral documents shall at any time after
their execution and delivery and for any reason cease (a) to create a
valid and perfected first priority security interest in and to the
property purported to be subject to such Collateral documents; or (b)
to be in full force and effect or shall be declared null and void, or
the validity or enforceability thereof shall be contested by Borrower,
or Borrower shall deny it has any further liability or obligation
under the Collateral documents, or Borrower shall fail to perform any
of its obligations under the Collateral documents; or the validity or
enforceability of the Guaranty Agreement of any Guarantor shall be
contested, or liability thereunder is denied;
(8) Any of the following events shall occur or exist
with respect to Borrower and any Commonly Controlled Entity under
ERISA: any Reportable Event shall occur; complete or partial
withdrawal from any Multiemployer Plans shall occur; any Prohibited
Transaction shall occur; a notice of intent to terminate a Plan shall
be filed, or a Plan shall be terminated; or circumstances shall exist
which constitute grounds entitling the PBGC to institute proceedings
to terminate a Plan, or the PBGC shall institute such proceedings; and
in each case above, such event or condition, together with all other
events or conditions, if any, could subject Borrower to any tax,
penalty, or other liability which in the aggregate may exceed One
Hundred Thousand and no/100ths Dollars ($100,000.00);
(9) If the Agent receives its first notice of a
hazardous discharge or an environmental complaint from a source other
than Borrower, and the Agent does not receive notice (which may be
given in oral form, provided same is followed with all due dispatch by
written notice by Certified Mail, Return Receipt Requested) of such
hazardous discharge or environmental complaint from any Borrower
within twenty-four (24) hours of the time the Agent first receives
said notice from a source other than any Borrower; or if any federal,
state, or local agency asserts or creates a Lien upon any or all of
the assets, equipment, property, leaseholds, or other facilities of
the Borrower by reason of the occurrence of a
34
hazardous discharge or an environmental complaint; or if any federal,
state, or local agency asserts a claim against Borrower and/or its
assets, equipment, property, leaseholds, or other facilities for
damages or cleanup costs relating to a hazardous discharge or an
environmental complaint; provided, however, that such claim shall not
constitute a default if, within five (5) Business Days of the
occurrence giving rise to the claim, (a) the Borrower can prove to the
Agent's satisfaction that the Borrower has commenced and is diligently
pursuing either: (i) a cure or correction of the event which
constitutes the basis for the claim, and continues diligently to pursue
such cure or correction to completion or (ii) proceedings for an
injunction, a restraining order, or other appropriate relief preventing
such agency or agencies from asserting such claim, which relief is
granted within ten (10) Business Days of the occurrence giving rise to
the claim and the injunction, order, or relief is not thereafter
resolved or reversed on appeal; and (b) in either of the foregoing
events, the Borrower has posted a bond, letter of credit, or other
security satisfactory in form, substance, and amount to both the Agent
and the agency or entity asserting the claim to secure the proper and
complete cure or correction of the event which constitutes the basis
for the claim;
(10) Without the prior written consent of Banks, which
consent shall not be unreasonably withheld, conditioned or delayed, a
change in management should occur such that Xxxx Xxxx is no longer the
Chief Executive Officer of Borrower, or any merger or other corporate
restructure occurs. Notwithstanding anything to the contrary in the
preceding sentence, the termination of Xxxx Xxxx'x employment for
cause shall not be an Event of Default;
(11) Material variance in construction of the
Improvements from the approved Plans without prior written approval of
Banks;
(12) Failure to complete the Improvements on or before
the Completion Date; provided, however, that Agent shall not
unreasonably withhold its consent to any extension of the Completion
Date of the Improvements provided that: (i) Agent has received a copy
of a written Extension Agreement to the Construction Contract signed
by the Borrower and Contractor; (ii) there is no other default under
this Agreement or the Loan Documents; and (iii) Borrower and Guarantor
execute any related amendments to this Agreement or other Loan
Documents reasonably required by Agent;
(13) The abandonment or cessation of the work on the
Improvements for a period of five (5) consecutive business days,
unless such cessation (but not such abandonment) shall have been the
result of a cause which, with the exercise of due diligence, Borrower
was unable to prevent or overcome;
(14) The issuance of any court order, decree or judgment
pursuant to any judicial or administrative proceeding declaring that
the Improvements or the construction thereof are in violation of any
law, ordinance, rule or regulation of any Governmental Authority,
which order, decree or judgment is not terminated or discharged within
forty-five (45) calendar days from the issuance date; or
(15) Substantial damage to or destruction of the
Improvements which is not repaired promptly to the satisfaction of
Agent.
In any such event, Agent may, at the request of or with the consent of
the Banks, (a) declare the Banks' obligation to make Loans to be terminated,
whereupon the same shall forthwith terminate; and/or (b) declare the
outstanding Notes, all interest thereon, and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Notes, all such
35
interest, and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by the Borrower. Additionally, such Bank is
hereby authorized at any time and from time to time, without further notice to
Borrower (any such notice being expressly waived by the Borrower), to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Bank to or for the credit or the account of the Borrower against any and all of
the obligations of the Borrower now or hereafter existing under this Agreement
or the Notes or other Loan Documents, irrespective of whether or not such Bank
shall have made any demand under this Agreement or the Notes or such other Loan
document and although such obligations may be unmatured. The rights of the
Banks under this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which the Banks may
have, in this Agreement, any other Loan Document or at law or equity, including
without limitation the right to accelerate the Notes upon the occurrence of an
Event of Default.
13. AGENCY PROVISIONS.
13.1. Authorization and Action. Each Bank hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto. The duties of the Agent shall be mechanical and administrative in
nature and the Agent shall not by reason of this Agreement be a trustee or
fiduciary for any Bank. The Agent shall have no duties or responsibilities
except those expressly set forth herein. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or so refraining from acting)
upon the instructions of the Banks, and such instructions shall be binding upon
all Banks and all holders of Notes; provided, however, that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or applicable law.
13.2. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this Agreement
in the absence of its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent (1) may treat
the payee of any Note as the holder thereof until the Agent receives written
notice of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Agent; (2) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants, or experts; (3) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties, or
representations made in or in connection with this Agreement; (4) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants, or conditions of this Agreement on the part of the
Borrower, or to inspect the property (including the books and records) of the
Borrower; (5) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, perfection, sufficiency, or
value of this Agreement or any other instrument or document furnished pursuant
thereto; and (6) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate, or other instrument or writing
(which may be sent by telegram, telex, or facsimile transmission) believed by
it to be genuine and signed or sent by the proper party or parties.
13.3. Rights of Agent as a Bank. With respect to its Commitment,
the Loans made by it and the Notes issued to it, the Agent shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Agent; and the term "Bank"
36
or "Banks" shall, unless otherwise expressly indicated, include the Agent in
its individual capacity. The Agent and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and any Person who
may do business with or own securities of the Borrower or any Subsidiary, all
as if the Agent were not the Agent and without any duty to account therefor to
the Banks.
13.4. Independent Credit Decisions. Each Bank acknowledges that it
has, independently and without reliance upon the Agent or any other Bank and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by
the Agent hereunder, the Agent shall have no duty or responsibility to provide
any Bank with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries (or any of
their Affiliates) which may come into the possession of the Agent or any of its
Affiliates.
13.5. Indemnification. The Banks agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably based upon the Pro Rata
Share of each Bank, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Bank shall be liable for any portion of any of the
foregoing resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
(to the extent not reimbursed by the Borrower) promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred
by the Agent in connection with the preparation, administration, or enforcement
of, or legal advice in respect of rights or responsibilities under, this
Agreement.
13.6. Successor Agent. The Agent may resign at any time by giving
at least sixty (60) days' prior written notice thereof to the Banks and the
Borrower. Upon any such resignation, the Banks shall have the right to appoint
a successor Agent. If no successor Agent shall have been so appointed by the
Banks, and shall have accepted such appointment, within thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement.
13.7. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Notes held by it in excess of its
ratable share of payments on account of the Notes obtained by all the Banks,
such Bank shall purchase from the other Banks such participations in the Notes
held by them as shall be necessary to cause such purchasing Bank to share the
excess payment ratably with each of the other Banks, provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and each Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable share (according
to the proportion of (1) the amount of
37
such Bank's required repayment to (2) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant
to this Section 13.7 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of setoff) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
14. MISCELLANEOUS.
14.1. Amendments, Etc. No amendment, modification, termination, or
waiver of any provision of any Loan Document to which the Borrower is a party,
nor consent to any departure by the Borrower from any Loan Document to which it
is a party, shall in any event be effective unless the same shall be in
writing, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given, provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following: (1) waive any of the
conditions precedent specified in Section 4 hereof; (2) increase or extend the
Commitments of the Banks or subject the Banks to any additional obligations;
(3) reduce the principal of, or interest on, the Notes or any fees hereunder,
or the LIBOR Margin or Prime Rate Margin; (4) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees hereunder; (5)
release all or any portion of the Collateral; (6) modify or amend any of the
Financial Covenants set forth in Section 10 hereof; (7) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes or
the number of Banks which shall be required for the Banks or any of them to
take action hereunder; or (8) amend, modify or waive any provision of this
Section 14.1, and provided further that no amendment, waiver, or consent shall,
unless in writing and signed by the Agent in addition to the Banks required
above to take such action, affect the rights or duties of the Agent under any
of the Loan Documents.
14.2. Notices, etc. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and telecopier numbers set forth below (or to such other addresses
and telecopier numbers as a party may designate by notice to the other
parties):
If to the Borrower:
ORCHIDS PAPER PRODUCTS COMPANY
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
38
If to BOK as the Agent or as a Bank:
BANK OF OKLAHOMA, N.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Riggs, Abney, Neal, Turpen, Orbison & Xxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
If to Banks:
BANCFIRST
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Blue
Facsimile: (000) 000-0000
COMMERCE BANK, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: R. Xxxxx Xxxxx, Xx.
Facsimile: (000) 000-0000
or at such other address as shall be designated by such party in a written
notice to the other party complying as to delivery with the terms of this
Section 14.2. Except as is otherwise provided in this Agreement, all such
notices and communications shall be effective when deposited in the mails
addressed as aforesaid, except that notices for advances to the Agent pursuant
to the provisions of Section 2.4 shall not be effective until received by the
Agent. Any notices due from Borrower need only be sent to the Agent. The Agent
shall provide copies of all notices from Borrower to the Banks.
14.3. No Waiver. No failure or delay on the part of any Bank or the
Agent in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy hereunder. The rights and remedies
provided herein are cumulative, and are not exclusive of any other rights,
powers, privileges, or remedies, now or hereafter existing, at law or in equity
or otherwise.
14.4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, each Bank and the Agent, and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights under any Loan Document to which the Borrower is a
party without the prior written consent of all the Banks.
14.5. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses incurred by the Agent in connection with the
preparation, execution, delivery, filing, and initial administration of the
Loan Documents, including without limitation the reasonable fees of
39
Riggs, Abney, Neal, Turpen, Orbison & Xxxxx, and of any amendment,
modification, or supplement to the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent or any of the Banks, incurred in connection with advising the Agent or
any of the Banks as to their rights and responsibilities hereunder. The
Borrower also agrees to pay all such costs, expenses and reasonable fees,
including court costs, incurred in connection with enforcement of the Loan
Documents, or any amendment, modification, or supplement thereto, whether by
negotiation, legal proceedings, or otherwise. In addition, the Borrower shall
pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing, and recording of
any of the Loan Documents and the other documents to be delivered under any
such Loan Documents, and agrees to hold the Agent and the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes and fees. This provision shall survive
termination of this Agreement.
14.6. Integration. This Agreement and the Loan Documents contain
the entire agreement between the parties relating to the subject matter hereof
and supersede all prior and contemporaneous oral statements and writings with
respect thereto.
14.7. Indemnity. The Borrower hereby agrees to defend, indemnify,
and hold each Bank harmless from and against any and all claims, damages,
judgments, penalties, costs, and expenses (including reasonable attorneys' fees
and court costs now or hereafter arising from the aforesaid enforcement of this
clause) arising directly or indirectly from the activities of the Borrower, its
predecessors in interest, or third parties with whom they have a contractual
relationship, or arising directly or indirectly from the violation of any
environmental protection, health or safety law, whether such claims are
asserted by any governmental agency or any other Person, except where such
claim or expense arose from the gross negligence or willful misconduct of Agent
or any Bank. This indemnity shall survive termination of this Agreement.
14.8. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of Oklahoma.
14.9. Severability of Provisions. Any provision of any Loan
Documents which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
14.10. Counterparts. This Agreement may be executed in any number of
counterparts, and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
14.11. Headings. Article and Section headings in the Loan Documents
are included in such Loan Documents for the convenience of reference only and
shall not constitute a part of the applicable Loan Documents for any other
purpose.
14.12. Jury Trial Waiver. BORROWER AND EACH BANK HEREBY WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT
OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR THE LOAN DOCUMENTS. BORROWER AND EACH BANK ALSO SUBMITS ITSELF AND
OTHERWISE CONSENTS TO THE JURISDICTION AND VENUE OF THE XXXXX COUNTY DISTRICT
COURT OR FEDERAL DISTRICT COURT (NORTHERN DISTRICT OF OKLAHOMA), AS TO ANY
DISPUTES OR OTHER MATTERS ARISING OUT OF OR IN CONNECTION HEREWITH.
40
14.13. USA Patriot Act Notification. IMPORTANT INFORMATION ABOUT
PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding
of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record information that
identifies each person or entity that opens an account, including any deposit
account, treasury management account, loan, other extension of credit, or other
financial services product. What this means for Borrower: When Borrower opens
an account, if Borrower is an individual, Agent will ask for Borrower's name,
taxpayer identification number, residential address, date of birth, and other
information that will allow Agent to identify Borrower, and, if Borrower is not
an individual, Agent will ask for Borrower's name, taxpayer identification
number, business address, and other information that will allow Agent to
identify Borrower. Agent may also ask, if Borrower is an individual, to see
Borrower's driver's license or other identifying documents, and, if Borrower is
not an individual, to see Borrower's legal organizational documents or other
identifying documents.
14.14. Conflicts. To the extent any conflict exists under any of the
Loan Documents, this Agreement shall be controlling.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
[Signature Pages to Follow]
41
"Borrower"
ORCHIDS PAPER PRODUCTS COMPANY
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx, Chief Financial
Officer
42
"Banks"
BANK OF OKLAHOMA, N.A.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice
President
Principal Office:
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
43
BANCFIRST
By /s/ Xxxxxxxxx X. Blue
------------------------------------
Xxxxxxxxx X. Blue, Senior Vice
President
Principal Office:
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
44
COMMERCE BANK, N.A.
By /s/ R. Xxxxx Xxxxx
------------------------------------
R. Xxxxx Xxxxx, Xx., Vice President
Principal Office:
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
45
"Agent"
BANK OF OKLAHOMA, N.A.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice
President
Principal Office:
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
46
SCHEDULE "1.4"
(Advance Request)
47
SCHEDULE "1.9"
(Secretary's Certificate)
48
SCHEDULE "1.11"
(Borrowing Base Certificate)
49
SCHEDULE "1.24"
(Construction Notes)
50
SCHEDULE "1.45"
(Interest Rate Election Notice)
51
SCHEDULE "1.48"
(Interest Reserve Account Security Agreement)
52
SCHEDULE "1.49"
(Land)
TRACT 1:
A parcel of land in the Xxxxxxxxx Xxxxxxx xx Xxxxxxx Xxxxx (0), Xxxxxxxx Xxxxxx
(20) North, Range Nineteen (19) East of the Indian Base and Meridian, Xxxxx
County, State of Oklahoma, more particularly described as follows, to-wit:
Proceeding North 00(Degree)02'00" West from the Southwest Corner along the
Westerly line of Section 3 a distance of 346.79 feet to a pk nail, which is the
point of beginning; thence North 00(Degree)02'00" West for a distance of 550.69
feet to a set pk nail; thence South 89(Degree)58'22" East for a distance of
423.13 feet to a set 3/8 inch iron pin; thence North 00(Degree)01'54" West for a
distance of 19.60 feet to a set 3/8 inch iron pin; thence North 89(Degree)58'52"
East for a distance of 854.97 feet to a set 3/8 inch iron pin; thence South
00(Degree)02'50" West for a distance of 571.41 feet to a 3/8 inch iron pin;
thence North 89(Degree)57'10" West for a distance of 1,277.30 feet to the Point
of Beginning.
AND
TRACT 2:
A tract of land being a part of Section Four (4), Township Twenty (20) North,
Range Nineteen (19) East of the Indian Base and Meridian, Xxxxx County, State of
Oklahoma, more particularly described as follows, to-wit: Beginning at a point
4131.09 feet South of the Northeast Corner of said Section 4, said point being
the intersection of the East line of Section 4 and the Center line of "P"
Street; thence North 89(Degree)53'05" West for a distance of 1436.32 feet to the
Point of Intersection of the Center line of "P" Street and the existing Railroad
Right of Way; thence along said Right of Way being a curve to the right and
Southwesterly having a radius of 344.76 feet a distance of 59.71 feet to a point
of tangency; thence South 00(Degree)07'22" West a distance of 175.18 feet to a
point; thence along said Right of Way South 3(Degree)10'51" East for a distance
of 76.21 feet to a point of Curve to the left and Southeasterly having a radius
of 457.47 feet a distance of 661.24 feet to the point of tangency; thence South
89(Degree)48'37" East for a distance of 975.36 feet to the point of intersection
of said Right of Way and the East line of said Section 4; thence North
00(Degree)02'12" West along said East line a distance of 712.81 feet to the
Point of Beginning.
53
SCHEDULE "1.61"
(Line Notes)
54
SCHEDULE "1.65"
(Mortgage)
55
SCHEDULE "1.72"
(Opinion of Borrower's Counsel)
56
SCHEDULE "1.76(6)"
(Permitted Liens)
None.
57
SCHEDULE "1.90"
(Security Agreement)
58
SCHEDULE "1.91"
(Subordinated Debt)
59
SCHEDULE "1.92"
(Subordinated Notes)
60
SCHEDULE "1.93"
(Subordination Agreement Amendment)
61
SCHEDULE "1.99"
(Term Notes)
62
SCHEDULE "7.7"
(Litigation)
None.
63
SCHEDULE "7.12"
(Debt)
64
SCHEDULE "8.9.4"
(Compliance Certificate)
65
SCHEDULE "9.4"
(Leases)
None.
66
SCHEDULE "9.9"
(Management Services Agreement - Xxxxxxxxx Group, LLC)
67
SCHEDULE "11.2"
(Plans)
68
