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EXHIBIT 10.3
CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made and entered into as of the 19th
day of July, 1999, by SHOPKO STORES, INC., a Wisconsin corporation (hereinafter
called the "Lender"), and PROVANTAGE HEALTH SERVICES, INC., a Delaware
corporation (hereinafter called the "Company").
WHEREAS, the Company is presently an indirect, wholly-owned subsidiary of
the Lender;
WHEREAS, the parties hereto anticipate that the Company will sell shares of
its common stock in an initial public offering; and
WHEREAS, the Company has requested that, following the date of such initial
public offering, the Lender make a $25.0 million line of credit available to the
Company for working capital purposes and for capital expenditures, and the
Lender has agreed to extend such line of credit on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions set forth below, the parties hereto agree as follows:
Section 1. Definitions.
1.01. Specific Definitions: As used herein, the following terms shall have
the indicated meanings:
"Account Balancing Loan": as such term is defined in Section 2.
"Account Balancing Loan Rate": means, for any day, a rate per annum equal
to the higher of (i) the "prime rate" for such day as published by Bankers Trust
Company in New York City, and (ii) the sum of (x) 1/2 of 1% and (y) the Federal
Funds Rate on overnight federal funds transactions for such day as published by
the Federal Reserve Bank of New York.
"Business Day": a day of the year on which national banks are open for
business in Green Bay, Wisconsin.
"Code": the Internal Revenue Code of 1986, as amended.
"Commitment": the Lender's obligation to make Loans pursuant to Section
2.01 of this Agreement.
"Effective Date": the date on or after the execution and delivery of this
Agreement by the Company and the Lender on which all of the conditions precedent
set forth in Section 4.01 shall have been satisfied.
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"Event of Default": as such term is defined in Section 6.
"Indebtedness": with respect to any Person at any time, without
duplication: (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid (other than accounts payable on normal payment
terms to suppliers incurred in the ordinary course of business), (d) all
obligations of such Person under leases that are required to be reported as a
liability under generally accepted accounting principles, (e) all obligations of
such Person for the deferred purchase price of property or services (other than
accounts payable on normal payment terms to suppliers incurred in the ordinary
course of business), (f) all obligations of others secured by any Lien on
property owned or acquired by such Person, whether or not the obligation secured
thereby has been assumed and (g) all guarantees by such Person of Indebtedness
of others.
"Initial Public Offering": the initial public offering of the Company's
Common Stock as described in the Company's Registration Statement on Form S-1
filed with the Securities and Exchange Commission.
"Lien": any security interest, mortgage, pledge, lien, charge, encumbrance,
title retention agreement or analogous instrument, in, of, or on any of the
assets or properties, whether now owned or hereafter acquired, of the Company or
any Subsidiary, whether arising by agreement or operation of law.
"Loan": as defined in Section 2.01.
"Loan Documents": this Agreement and all agreements, instruments and
documents heretofore, herewith or hereafter executed and delivered by the
Company or any other Person pursuant to, or in connection with, this Agreement.
"Maximum Commitment": Twenty Five Million Dollars ($25,000,000).
"Person": any natural person, corporation, partnership, joint venture,
firm, association, trust, unincorporated organization, government or
governmental agency or political subdivision or any other entity, whether acting
in an individual, fiduciary or other capacity.
"Request Loan": as such term is defined in Section 2.
"Request Loan Rate": means, for any day, a rate per annum equal to the
interest rate applicable to Euro-Dollar Loans under the ShopKo Credit Agreement.
"ShopKo Credit Agreement": the Credit Agreement dated as of July 8, 1997
among the Lender, the Banks named therein and Bankers Trust Company as Agent, as
the same may be amended from time to time.
"Subsidiary": means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or
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other persons performing similar functions are at the time directly or
indirectly owned by the Company.
"Termination Date": the earliest of (i) January 31, 2001, (ii) the date on
which the Commitment is terminated pursuant to Section 6, or (iii) the date on
which the Commitment is terminated pursuant to Sections 2.07 or 2.13.
1.02. Certain Other Terms. For purposes of this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with generally accepted accounting principles.
Section 2. The Loans.
2.01. The Commitment. On the terms and subject to the conditions hereof,
the Lender agrees to make loans (each, a "Loan" and, collectively, the "Loans")
to the Company on a revolving basis at any time and from time to time from and
including the Effective Date through and including the last Business Day
preceding the Termination Date, during which period the Company may borrow,
repay and reborrow in accordance with the provisions hereof; provided, however,
that the unpaid principal amount of outstanding Loans shall not at any time
exceed the Maximum Commitment. Loans made hereunder shall be either Request
Loans or Account Balancing Loans.
2.02. Procedure for Loans.
(a) Request Loans. Any request by the Company for a Request Loan shall be
in writing, or by telephone promptly confirmed in writing, and must be given so
as to be received by the Lender not later than 12:00 noon (Green Bay time) on
the date five Business Days prior to the date of the requested Request Loan.
Each request for a Request Loan shall be irrevocable and shall be deemed a
representation by the Company that on the date of the requested Request Loan and
after giving effect to such Request Loan the applicable conditions specified in
Section 3 have been and will be satisfied. Each request for a Request Loan shall
specify (a) the date of the requested Request Loan, and (b) the amount of such
Request Loan, which shall be in integral multiples of $1,000,000. Unless the
Lender determines that any applicable condition specified in Section 3 has not
been satisfied, the Lender will make available to the Company by deposit into an
account designated in writing by the Company to the Lender not later than 2:00
p.m. (Green Bay time) on the date of the requested Request Loan the amount of
the requested Request Loan. Without in any way limiting the Company's obligation
to confirm in writing any telephone request for a Request Loan, the Lender may
rely on any such request which it believes in good faith to be genuine, and the
Company hereby waives the right to dispute the Lender's record of the terms of
such telephone request for a Request Loan, absent manifest error.
(b) Account Balancing Loans. Account Balancing Loans will be made to cover
the Company's daily cash needs. Each day the Lender's Cash Management Department
will reconcile the Company's cash disbursements with its cash receipts. If cash
disbursements exceed cash receipts, an Account Balancing Loan will be made by
Lender to cover this excess.
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2.03. Requirement to Borrow. The Company shall not borrow any funds from
any person other than the Lender in order to satisfy its short-term financial
requirements unless such borrowing is either consented to by the Lender in
writing or the Lender has not provided the funds it is required to provide under
this Agreement within ten (10) Business Days after the Company makes an
appropriate request hereunder and complies with all terms provided for herein.
If the Company has borrowed any funds from any person other than the Lender in
accordance with the preceding sentence, (a) it will borrow funds from the Lender
under this Agreement to repay such borrowings as soon as the Lender makes funds
available and (b) it will seek to borrow any additional funds from the Lender
pursuant to the terms of this Agreement before it seeks to obtain funds from any
person other than the Lender.
2.04. Interest Rate, Interest Payments and Default Interest.
(a) Each Request Loan shall bear interest on the unpaid principal amount
thereof at a varying rate per annum equal to the Request Loan Rate.
(b) Each Account Balancing Loan shall bear interest on the unpaid principal
amount thereof at a varying rate per annum equal to the Account Balancing Loan
Rate.
(c) Interest shall be calculated daily based on the outstanding principal
amount of the Loans at the close of business on each day after application of
payments pursuant to Section 2.06(b) hereof and payable (i) for each month on
the last day of such month, (ii) upon any permitted prepayment in full and (iii)
on the Termination Date; provided, however, that interest on any Loan not paid
when due shall be payable on demand. Any Loan not paid when due, whether at the
date scheduled therefor or earlier upon acceleration, shall bear interest until
paid in full at a rate per annum equal to the sum of the applicable interest
rate plus 2.0%.
(d) The interest rates provided in this Section 2.04 are predicated upon
the continued existence of the ShopKo Credit Agreement in its current form.
Lender hereby expressly reserves the right to increase the interest rates set
forth herein if the ShopKo Credit Agreement is amended or replaced, provided,
however, that the interest rates charged to the Company hereunder shall not
exceed those set forth in Lender's then-current primary revolving credit
agreement.
2.05. Repayment. The principal of the Loans, together with all accrued and
unpaid interest thereon, shall be due and payable on the Termination Date.
2.06. Prepayments.
(a) Optional Prepayments. The Company may prepay the Loans in whole or in
part, at any time upon two Business Days' notice to the Lender, without premium
or penalty. Any prepayment in full must be accompanied by accrued and unpaid
interest on the amount prepaid. Any partial prepayment need not be accompanied
by accrued and unpaid interest. Each partial prepayment shall be in an amount of
$1,000,000 or an integral multiple thereof.
(b) Automatic Prepayments. If, upon Lender's reconciliation of the
Company's cash disbursements and cash receipts as set forth in Section 2.02(b),
the Company's cash receipts
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exceed the Company's cash disbursements, such excess cash will automatically be
applied by Lender as a prepayment of Loans made hereunder. Such prepayments will
be applied first to any outstanding Account Balancing Loans, then to any
outstanding Request Loans.
(c) Revolving Borrowing. Amounts paid (unless following an acceleration or
upon termination of the Commitment) or prepaid under this Section 2.06 may be
reborrowed upon the terms and subject to the conditions and limitations of this
Agreement.
2.07. Optional Reduction of Maximum Commitment or Termination of
Commitment. The Company may, at any time, upon not less than two Business Days'
prior written notice to the Lender, reduce the Maximum Commitment, with any such
reduction in an amount equal to $1,000,000 or an integral multiple thereof. Upon
any reduction in the Maximum Commitment pursuant to this Section, the Company
shall pay to the Lender the amount, if any, by which the aggregate unpaid
principal amount of outstanding Loans exceeds the Maximum Commitment as so
reduced. Amounts so paid may not be reborrowed. The Company may, at any time,
upon not less than two Business Days' prior written notice to the Lender,
terminate the Commitment in its entirety. Upon termination of the Commitment
pursuant to this Section, the Company shall pay to the Lender the full amount of
all outstanding Loans, all accrued and unpaid interest thereon, all unpaid
Facility Fees accrued to the date of such termination, and all other unpaid
obligations of the Company to the Lender hereunder.
2.08. Computation. Interest on the Loans and the Facility Fee shall be
computed on the basis of actual days elapsed and a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day).
2.09. Payments. Payments and prepayments of principal of, and interest on,
the Loans and all fees, expenses and other obligations under this Agreement
payable to the Lender shall be made without setoff or counterclaim in
immediately available funds not later than 12:00 noon (Green Bay time) on the
dates called for under this Agreement by deposit into Lender's account number
1-602-3422-4931 with U.S. Bank, Minneapolis, Minnesota office. Funds received on
any day after such time shall be deemed to have been received on the next
Business Day. Whenever any payment to be made hereunder or on the Loans shall be
stated to be due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and such extension of time, in the case
of a payment of principal, shall be included in the computation of any interest
on such principal.
2.10. Use of Proceeds. The proceeds of the initial Loan shall be used in a
manner not in conflict with any of the Company's covenants in this Agreement and
not for any other purpose prohibited under the ShopKo Credit Agreement. No part
of such proceeds shall be used, directly or indirectly, to purchase or carry any
margin stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying such margin stock.
2.11. Setoff. If the unpaid principal amount of the Loans, interest accrued
thereon or any other amount owing by the Company under the Loan Documents shall
have become due and payable (by demand, acceleration or otherwise), the Lender
shall have the right, in addition to all
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other rights and remedies available to it, without notice to the Company, to set
off against, and to appropriate and apply to such due and payable amounts any
debt owing to, and any other funds held in any manner for the account of, the
Company. Such right shall exist whether or not the Lender shall have made any
demand hereunder or under any other Loan Document, whether or not such debt
owing to or funds held for the account of the Company is or are matured or
unmatured, and regardless of the existence or adequacy of any collateral,
guaranty or any other security, right or remedy available to the Lender.
2.12. Facility Fee. The Company shall pay to the Lender a Facility Fee (the
"Facility Fee") in an amount determined by applying a rate of 0.2% per annum to
the Maximum Commitment for the period from the Effective Date to the Termination
Date. Such Facility Fee is payable in arrears quarterly on the last day of each
March, June, September and December, and on the Termination Date. If the Maximum
Commitment is reduced pursuant to Section 2.07, the Maximum Commitment as so
reduced shall be used for calculating the Facility Fee from the date of such
reduction. The Facility Fee rate is subject to increases to the extent the
facility fee rate set forth in Lender's primary revolving credit facility is
increased beyond the 2% per annum rate currently required in the ShopKo Credit
Agreement.
2.13. Term of the Agreement. This Agreement commences on the date of this
Agreement first set forth above and will continue until the Termination Date.
Notwithstanding the foregoing, this Agreement may be sooner terminated, without
liability to the terminating party:
(a) by either party, upon 30 days' notice to the other, if the Lender
ceases to beneficially own 50% or more of the combined voting power of the
Common Stock of the Company;
(b) by either party, immediately upon notice to the other party, if that
other party's material breach of this Agreement continues uncured or uncorrected
for 30 days after both the nature of that breach and the necessary cure or
correction has been agreed upon by the parties.
Section 3. Representations and Warranties of the Company. The Company
represents and warrants that:
3.01. Organization, Corporate Powers, Etc. (a) The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated; (b) the Company has the corporate
power and authority to own its properties and assets and to carry on its
business as now being conducted and is qualified to do business in every
jurisdiction wherein such qualification is necessary; and (c) the Company has
the corporate power to execute, deliver and perform the Loan Documents to which
it is a party.
3.02. Authorization of Borrowing, Etc. The execution, delivery and
performance of the Loan Documents to which the Company is a party and the
borrowings hereunder have been duly authorized by all requisite corporate action
and will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or Bylaws of the Company,
any provisions of any indenture, agreement or other instrument to which the
Company is a party or by which it or any of its properties is bound, or result
in the creation or imposition of
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any Lien upon any of the properties or assets of the Company other than Liens in
favor of the Lender. The Loan Documents constitute the legal, valid and binding
obligations of the Company enforceable against them in accordance with their
respective terms.
Section 4. Conditions Precedent.
4.01. Effectiveness of Agreement. This Agreement shall become effective
upon its execution and delivery by the parties hereto and when (i) the Lender
shall have received in form and substance satisfactory to it:
(a) a copy of the Certificate of Incorporation of the Company, certified by
the Secretary of the State of Delaware;
(b) a currently dated long-form certificate of the Secretary of State of
Delaware, certifying as to the legal existence and good standing of the Company;
(c) a copy of the by-laws of the Company, certified by the Secretary or
Assistant Secretary of the Company;
(d) a copy of resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance of the Loan Documents to be
executed by it, certified by the Secretary or Assistant Secretary of the
Company; and
(e) a certificate signed by the Secretary or Assistant Secretary of the
Company, as to the incumbency and signature of the person or persons authorized
to execute and deliver the Loan Documents to be delivered by the Company, and
(ii) the Initial Public Offering shall have closed.
4.02. Conditions Precedent to all Loans. The obligation of the Lender to
make each Loan hereunder (including the initial Loan) shall be subject to the
fulfillment of the following conditions:
(a) The representation and warranties contained in Section 3 shall be true
and correct on and as of the date of such Loan, with the same force and effect
as if made on such date.
(b) No Event of Default or event that could, with the passage of time, the
giving of notice or both, become an Event of Default shall have occurred and be
continuing on the date of such Loan or will exist after giving effect to such
Loan.
(c) The Lender shall have received the Company's request for any Request
Loan in accordance with the terms set forth in Section 2.02(a).
Section 5. Covenants.
The Company covenants and agrees that from the date hereof until payment in
full of the principal of and interest on the Loans and the expiration or
termination of the Commitment, unless the Lender shall otherwise consent in
writing, the Company will:
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5.01. Corporate Existence. Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, and continue to conduct and operate its business substantially as
currently conducted and operated.
5.02. Payments of Indebtedness, Taxes, Etc. (a) Pay all of its Indebtedness
and obligations promptly and in accordance with normal terms, and (b) pay and
discharge or cause to be paid and discharged promptly all taxes, assessments,
and governmental charges or levies imposed upon it or upon its income and
profits, or upon any of its property, before the same shall become in default,
as well as all lawful claims for labor, materials and supplies or otherwise
which, if unpaid, might become a lien or charge upon any of such properties;
provided, however, that the Company shall not be required to pay and discharge
or to cause to be paid and discharged any such tax, assessment, charge, levy or
claim so long as the validity thereof shall be contested in good faith by
appropriate proceedings and the Company shall have set aside on its books
adequate reserves with respect to any such tax, assessment, charge, claim or
levy.
5.03. Financial Statements, Etc. Furnish to the Lender:
(a) within 90 days after the end of each fiscal year of the Company,
balance sheets and statements of income and surplus, together with supporting
schedules, all audited by independent certified public accountants of recognized
standing selected by the Company and acceptable to the Lender, showing the
financial condition of the Company at the close of such year and the results of
operations of the Company during such year;
(b) within 45 days after the end of each fiscal quarter, similar financial
statements to those referred to in clause (a) above, unaudited but certified by
the chief financial officer or the controller of the Company, such balance
sheets to be as of the end of such period and such statements of income and
surplus to be for the period from the beginning of the fiscal year to the end of
such period, in each case subject to audit and year-end adjustments;
(c) with the statements submitted under clauses (a) and (b) above, a
certificate signed by the chief financial officer or the controller of the
Company stating that no Event of Default or event that could, with the passage
of time, the giving of notice or both, become an Event of Default has occurred;
(d) with the statements submitted under clause (a) above, a certificate of
the accountants auditing such financial statements stating that, in making the
audit necessary to the certification of such financial statements, they have
obtained no knowledge of any Event of Default or event that would, with the
passage of time, the giving of notice or both, become an Event of Default, or,
if any such Event of Default or event exists, specifying the nature and period
of existence thereof;
(e) within two Business Days after any executive officer of the Company
becomes aware of the existence of any Event of Default or event that could, with
the passage of time, the giving of notice or both, become an Event of Default, a
telephonic or telecopy notice specifying the nature thereof, the period of
existence thereof and what action the Company intends to take with respect
thereto, which notice shall be promptly confirmed in writing; and
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(f) promptly, from time to time, such other information regarding the
operations, business, affairs and financial condition of the Company as the
Lender may reasonably request.
5.04. Inspection and Audits. Permit any persons designated by the Lender to
visit and inspect any of its properties, to examine and copy its corporate books
and financial records, to conduct audits of its accounts receivable, and to
discuss its affairs and finances with its principal officers, all at such times
as the Lender may reasonably request.
5.05. Compliance with Laws, Etc. Comply with all applicable laws, rules,
regulations and orders in all material respects, 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 except
to the extent contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been established.
5.06. Notice of Litigation. The Company will give prompt written notice to
the Lender of the commencement of any action, suit or proceeding before any
court or arbitrator or any governmental department, board, agency or other
instrumentality affecting the Company or any property of the Company or to which
the Company is a party in which an adverse determination or result could have a
material adverse effect on the business, operations, property or condition
(financial or otherwise) of the Company or on the ability of the Company to
perform its obligations under this Agreement and the other Loan Documents,
stating the nature and status of such action, suit or proceeding.
5.07. Compliance with the ShopKo Credit Agreement. For so long as the
Company falls within the definition of a "subsidiary" of the Lender for purposes
of the ShopKo Credit Agreement, the Company and its Subsidiaries:
(a) shall provide the Lender with all information and notices necessary to
permit the Lender to comply with the ShopKo Credit Agreement, including, without
limitation, Section 5.01 and Article VI of the ShopKo Credit Agreement;
(b) shall comply, to the extent applicable to the Company and its
Subsidiaries, with Sections 5.02 (Maintenance of Property; Insurance), 5.03
(Conduct of Business and Maintenance of Existence) and 5.04 (Compliance with
Laws) of the ShopKo Credit Agreement;
(c) shall not incur or suffer to exist any "lien" on the "restricted
assets" (as those terms are defined in the ShopKo Credit Agreement) of the
Company or any of its Subsidiaries without the Lender's prior written consent;
(d) shall not sell, lease (as lessor) or otherwise transfer, directly or
indirectly any "operating property" (as those terms are defined in the ShopKo
Credit Agreement) of the Company or any of its Subsidiaries without the Lender's
prior written consent;
(e) shall not enter into any "sale and leaseback transaction" (as those
terms are defined in the ShopKo Credit Agreement) without the Lender's prior
written consent;
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(f) shall not incur any "debt" (as that term is defined in the ShopKo
Credit Agreement) except (i) as permitted by Sections 5.12(a) and (b) of the
ShopKo Credit Agreement, and (ii) as approved in advance in writing by Lender;
and
(g) shall not enter into any agreement in violation of Section 5.13
(Limitation on Certain Covenants and Restrictions) of the ShopKo Credit
Agreement.
Section 6. Events of Default. Upon the occurrence of any of the following
events (hereinafter called Events of Default):
(a) any representation or warranty made herein or any report, certificate,
financial statement or other instrument furnished in connection with this
Agreement shall prove to be false or misleading in any material respect;
(b) default in the payment of the principal of or interest on the Loans or
in any other obligation of the Company under any of the Loan Documents;
(c) default in the payment of any other Indebtedness of the Company when
due, or default in the performance of any other obligation incurred in
connection with any Indebtedness for borrowed money of the Company, if the
outstanding principal amount of such Indebtedness exceeds $1,000,000 and the
effect of such default is to accelerate the maturity of such Indebtedness or to
permit the holder thereof to cause such Indebtedness to be accelerated;
(d) default in the due observance or performance of any covenant, condition
or agreement on the part of the Company to be observed or performed pursuant to
the terms of any Loan Document if such default is not remedied within thirty
(30) days after the Lender shall have given the Company notice thereof;
(e) the Company shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of it or any of its properties or assets, (ii)
admit in writing its inability to pay its debts as they mature, (iii) make a
general assignment for the benefit of creditors, (iv) file a voluntary petition
in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law, or (v) take any corporate action for the
purpose of effecting any of the foregoing;
(f) an order, judgment or decree shall be entered, without the application,
approval or consent of the Company by any court of competent jurisdiction
approving a petition seeking the reorganization, liquidation or dissolution of
the Company or of all or a substantial part of the properties or assets of the
Company, or appointing a receiver, trustee or liquidator of the Company, unless
such order, judgment or decree is stayed, reversed or rescinded within 60 days
after its entry; or
(g) final judgment for the payment of money in excess of $500,000 shall be
rendered against the Company, and the same shall remain undischarged for a
period of 30 days when execution thereof is effectively stayed;
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then, if (x) any Event of Default described in Sections 6(e) or 6(f) shall
occur, the Commitment shall automatically be terminated and the outstanding
principal of the Loans, the accrued interest thereon and all other obligations
of the Company to the Lender under the Loan Documents shall automatically become
immediately due and payable, or (y) any other Event of Default shall occur and
be continuing, then the Lender may, by written notice to the Company, (i)
terminate the Commitment, whereupon the Commitment shall be terminated and (ii)
declare the outstanding principal of the Loans, the accrued interest thereon and
all other obligations of the Company to the Lender under the Loan Documents to
be forthwith due and payable, whereupon the Loans, all accrued interest thereon
and all such obligations shall immediately become due and payable, in each case
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything any Loan Document to the contrary
notwithstanding. In addition, the Lender may enforce any and all rights under
the Loan Documents.
Section 7. Representations and Warranties of the Lender. The Lender
represents and warrants that:
7.01. Organization: Corporate Powers. The Lender is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and has the corporate power and
authority to execute, deliver and perform this Agreement.
7.02. Authorization of Lending, Etc. The execution, delivery and
performance of this Agreement and the lending of funds hereunder have been duly
authorized by all requisite corporate action and will not violate any provision
of law, any order of any court or other agency of government, the Articles of
Incorporation or Bylaws of the Lender, or any provision of any indenture,
agreement or other instrument to which the Lender is a party or by which it or
any of its property is bound. This Agreement constitutes the legal, valid and
binding obligation of the Lender enforceable against it in accordance with its
terms.
Section 8. Miscellaneous.
8.01. No Waiver. No failure on the part of the Lender to exercise and no
delay in exercising any right, power or privilege under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law.
8.02. Accounting. All financial statements furnished to the Lender under
this Agreement and all computations and determinations required to be made
pursuant to this Agreement shall be made in accordance with generally accepted
accounting principles, applied on a basis consistent with the financial
statements for the fiscal year ended January 31, 1998.
8.03. Notices. Except as otherwise specifically provided for herein, all
notices and other communications provided for herein shall be in writing and
telecopied, mailed or delivered to the
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intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. All notices and other
communications hereunder shall be deemed to have been duly given when
transmitted by telecopier, personally delivered or, in the case of a mailed
notice, three Business Days after the date deposited in the mails, postage
prepaid, in each case given or addressed as aforesaid.
8.04. Expenses; Taxes; Attorneys' Fees; Etc. The Company agrees to pay or
cause to be paid and to save the Lender harmless against liability for the
payment of all reasonable out-of-pocket expenses, whether incurred by the Lender
before or after the Effective Date, including but not limited to fees and
expenses of counsel for the Lender incurred from time to time, in connection
with the preparation, execution, delivery and performance of the Loan Documents,
any requested amendments, waivers or consents to the Loan Documents, and the
Lender's enforcement or preservation of rights under the Loan Documents or any
other such documents or instruments, including but not limited to such expenses
as may be incurred by the Lender in the collection of the Loans. The Company
agrees to pay all stamp, document, transfer, recording or filing taxes or fees
and similar impositions now or hereafter reasonably determined by the Lender to
be payable in connection with the Loan Documents, or any other documents,
instruments or transactions pursuant to or in connection herewith or therewith,
and the Company agrees to save the Lender harmless from and against any and all
present or future claims liabilities or losses with respect to or resulting from
any omission to pay or delay in paying any such taxes, fees or impositions. All
such expenses, taxes or attorneys' fees shall, to the extent paid or payable by
the Lender, be payable to the Lender by the Company on demand.
8.05. Entire Agreement. This Agreement and the other Loan Documents embody
the entire agreement and understanding between the Company and the Lender with
respect to the subject matter hereof and thereof. This Agreement supersedes all
prior agreements and understandings relating to the subject matter hereof.
8.06. Amendments, Etc. No amendment, modification or waiver of any
provision of the Loan Documents and no consent to any departure therefrom shall
in any event be effective unless the same shall be in writing and signed by, in
the case of amendments and modifications, the Lender and the Company or, in the
case of waivers and consents, the Lender, and then such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
purpose for which given.
8.07. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Company may not assign its rights or obligations
hereunder without the prior written consent of the Lender.
8.08. Marshalling; Payments Set Aside. The Lender shall be under no
obligation to xxxxxxxx any assets in favor of the Company or any other Person or
against or in payment of the Loans and other Indebtedness of the Company to the
Lender. To the extent that the Company makes a payment or payments to the Lender
or the Lender exercises its rights of setoff, and such payment or payments or
the proceeds of such setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a
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trustee, receiver or any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
8.09. Section Titles. The section titles contained in this Agreement shall
be without substantive meaning or content of any kind whatsoever and shall not
govern the interpretation of any of the provisions of this Agreement.
8.10. Reliance by the Lender. All covenants, agreements, representations
and warranties made herein and in any Loan Document by the Company shall,
notwithstanding any investigation by the Lender, be deemed to be material to and
to have been relied upon by the Lender and shall survive the execution and
delivery of this Agreement.
8.11. Survival. The agreements and obligations of the Company under
Sections 8.04, 8.08 and 8.13 shall survive the repayment of the Loans.
8.12. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.13. Governing Law and Construction. The Loan Documents shall be governed
by, and construed in accordance with, the internal law, and not the law of
conflicts, of the State of Wisconsin. Whenever possible, each provision of the
Loan Documents and any other statement, instrument or transaction contemplated
hereby or thereby or relating hereto or thereto shall be interpreted in such
manner as to be effective and valid under such applicable law, but, if any
provision of the Loan Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited or invalid under such applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of the Loan Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto. The parties shall
endeavor in good-faith negotiations to replace any invalid, illegal or
unenforceable provisions with a valid provision the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provision. In the event of any conflict within, between or among the provisions
of any of the Loan Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto, those provisions
giving the Lender the greater right shall govern.
8.14. Limitations on Liability. Neither party shall have any liability
under this Agreement (including any liability for its own negligence) for
damages, losses or expenses (including expenses or higher interest rates
incurred in order to obtain alternative financing sources) suffered by the other
party or its subsidiaries as a result of the performance or non-performance of
such party's obligations hereunder, unless such damages, losses or expenses are
caused by or arise out of the willful misconduct or gross negligence of such
party or a breach by such party. In no event shall either party have any
liability to the other party for indirect,
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incidental or consequential damages that such other party or its subsidiaries or
any third party may incur or experience on account of the performance or
non-performance of such party's obligations hereunder. The provisions of this
Section 8.14 shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SHOPKO STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President, General Counsel/Secretary
Address for Notices:
000 Xxxxxxx Xxx
Xxxxx Xxx, Xxxxxxxxx 00000-0000
Attention: Controller
cc: Counsel
Facsimile Number: (000) 000-0000
PROVANTAGE HEALTH SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Operating Officer
Address for Notices:
ProVantage Health Services, Inc.
000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Controller
cc: Legal Department
Facsimile Number: (000) 000-0000
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