REVOLVING CREDIT AGREEMENT
dated effective as of September 1, 2016, between
XXXX MARKETS, INC., DUTCH VALLEY FOOD COMPANY, LLC, WEIS TRANSPORTATION, LLC AND WMK FINANCING, INC.,
as Co-Borrowers
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Lender
TABLE OF CONTENTS
Article 1 DEFINITIONS |
1 |
1.1.Defined Terms |
1 |
1.2.Calculations and Financial Data |
12 |
Article 2 THE LOAN |
13 |
2.1.The Loan and the Note |
13 |
2.2.Borrowings |
13 |
2.3.Interest |
18 |
2.4.Repayments and Prepayments |
18 |
2.5.Origination and Unused Fees |
19 |
2.6.Additional Provisions Respecting Rates and Costs |
20 |
2.7.Taxes |
21 |
Article 3 CONDITIONS OF FUNDING |
22 |
3.1.Conditions to Funding |
22 |
3.2.Conditions to Each Loan |
24 |
3.3.Methods of Satisfying Certain Conditions |
24 |
Article 4 REPRESENTATIONS AND WARRANTIES |
25 |
4.1.Representations of Borrowers |
25 |
Article 5 FINANCIAL REPORTS AND INFORMATION |
31 |
0.0.Xxxxxxxxx Data |
31 |
5.2.Ongoing Reporting Requirements |
32 |
5.3.Disclosure |
33 |
Article 6 FINANCIAL COVENANTS |
34 |
6.1.Minimum EBITDA |
34 |
Article 7 GENERAL AFFIRMATIVE COVENANTS |
34 |
7.1.Existence |
34 |
0.0.Xxxxx Requirements; Maintenance of Properties |
34 |
7.3.Payment of Taxes and Claims |
35 |
0.0.Xxxxxxxxx |
35 |
7.5.Inspection |
35 |
0.0.Xxxxxxxx of Note |
35 |
7.7.Consistent Action |
36 |
7.8.Use of Loan Proceeds |
36 |
7.9.Subsidiaries to be Wholly-Owned |
36 |
7.10.Maintenance of Certain Contracts and Other Rights |
36 |
7.11.Conduct of Business |
36 |
7.12.Further Assurances |
36 |
Article 8 GENERAL NEGATIVE COVENANTS |
37 |
8.1.Indebtedness |
37 |
8.2.Liens |
37 |
1
0.0.Xxxxxxxxxxx and Acquisitions |
39 |
8.4.Transactions with Affiliates |
40 |
8.5.Sales or Other Dispositions of Assets, Etc. |
40 |
0.0.Xxxxxxxxxx; Control |
41 |
8.7.Compliance with Federal Reserve Regulations |
41 |
8.8.Limitations on Restrictive Covenants |
41 |
8.9.Environmental Matters |
41 |
8.10.ERISA |
42 |
0.00.Xxxx and Leaseback |
43 |
8.12.Limitations on Changes in Lines of Business |
43 |
Article 9 EVENTS OF DEFAULT |
43 |
0.0.Xxxxxx of Default |
43 |
9.2.Acceleration; Remedies |
45 |
Article 10 MISCELLANEOUS |
46 |
10.1.Notices |
46 |
10.2.Duration; Survival |
47 |
00.0.Xx Implied Waiver |
48 |
10.4.Entire Agreement and Amendments |
48 |
10.5.Successors and Assigns |
48 |
10.6.Descriptive Headings |
49 |
10.7.Governing Law |
49 |
10.8.Holidays |
49 |
10.9.Counterparts |
49 |
10.10.Maximum Lawful Interest Rate |
49 |
10.11.Set-off |
50 |
10.12.Severability |
50 |
10.13.Non-Merger of Remedies |
50 |
10.14.Payment and Reimbursement of Costs and Expenses; Indemnification |
50 |
10.15.Reserved |
52 |
10.16.Consent to Jurisdiction, Service and Venue; Waiver of Jury Trial |
52 |
10.17.Foreign Assets Control Regulations, Etc |
53 |
10.18.Terrorism Sanctions Regulations |
55 |
10.19.Joint and Several Liability |
55 |
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REVOLVING CREDIT AGREEMENT dated effective as of September 1, 2016, among XXXX MARKETS, INC., a Pennsylvania corporation, DUTCH VALLEY FOOD COMPANY, LLC, a Pennsylvania limited liability company, WEIS TRANSPORTATION, LLC, a Pennsylvania limited liability company and WMK FINANCING, INC., a Delaware corporation (individually and collectively the "Borrowers" and each a "Borrower"), and XXXXX FARGO, NATIONAL ASSOCIATION (the "Lender").
Background of Agreement
The Borrowers are engaged in the business of operating retail grocery markets.
The Borrowers have requested, and the Lender is willing to provide, a revolving credit facility (the "Line of Credit") in an aggregate principal amount not to exceed One Hundred Million Dollars ($100,000,000.00), with an additional discretionary availability of Fifty Million Dollars ($50,000,000.00), subject in all events to the terms and conditions set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
Unless the context otherwise requires, as used in this Agreement, the following terms shall have the meanings specified in this Section. Further, unless the context otherwise requires, references to the plural include the singular, references to the singular include the plural, and all gender references are interchangeable and deemed to refer to the appropriate gender.
Accordion Amount: shall have the meaning specified in Section 2.2.2(a)(iv).
Accumulated Funding Deficiency: any accumulated funding deficiency as defined in Section 412(a) of the Code and Section 302(a) of ERISA and any successor sections thereto.
Acquisition: any transaction or series of transactions by means of which (a) a Person (the "Acquiror") acquires any going business or all or substantially all the assets of any other Person or division thereof whether through purchase of assets or stock, merger or otherwise or (b) any Person becomes a Subsidiary of the Acquiror.
Affiliate: with reference to any Person, any director or officer of such Person, any other entity of which such Person is a general partner, director, officer or employee, and any other individual or entity directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For purposes of this definition "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, direct or indirect, of the power to direct or
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cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise, provided, however, that, in any event, any Person that owns directly or indirectly capital securities having 20% or more of the ordinary voting power for the election of the directors or other governing body of a corporation or 20% or more of the partnership or other ownership interests in any other Person (other than as a limited partner of such Person) will be deemed to control such corporation or other Person.
Agreement: this Revolving Credit Agreement, as the same may be amended, modified or supplemented from time to time.
Anti-Corruption Laws: shall have the meaning specified in Section 10.17.
Anti-Money Laundering Laws: shall have the meaning specified in Section 10.17.
Applicable Margin: the meaning specified in Subsection 2.3.3.
Asbestos-Containing Material: any material containing more than 1% asbestos by weight.
Bank Tax: any Tax based on or measured by net income, any franchise Tax and any doing business Tax (including any gross receipts Tax in the nature of a doing business Tax), or any tax measured by any similar standard, imposed upon the Lender by any jurisdiction (or any political subdivision thereof) in which the Lender is located and/or doing business.
Base Rate: shall mean, for any day, the higher of (a) the rate of interest publicly announced by the Lender from time to time at its principal office as its prime commercial lending rate (which rate is not necessarily the lowest rate charged by the Lender to its borrowers) or (b) the Federal Funds Rate, plus one-half of one percent (0.50%). Notwithstanding anything in this Agreement to the contrary, if the Base Rate determined as provided above would be less than zero percent (0.00%) then the Base Rate shall be deemed to be zero percent (0.00%).
Blocked Person: shall have the meaning specified in Section 10.17.
Borrowers and Borrower: the respective meanings specified in the preamble to this Agreement.
Business Day: a day other than a Saturday, Sunday or day on which commercial banks are required or permitted to close in Harrisburg, Pennsylvania.
CAA: the Clean Air Act (42 U.S.C.A. §§ 7401 to 7642), as amended from time to time, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
Capital Expenditures: expenditures to acquire or construct fixed or capital assets (within the meaning of GAAP), including, but not limited to, the purchase, construction or rehabilitation of equipment or other physical assets (including renewals, improvements, replacements and incurrence of Capital Lease Obligations, but excluding Acquisitions).
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Capital Lease: a lease with respect to which the lessee has recognized or is required to recognize as a capital lease on the balance sheet of such lessee or otherwise disclose in a note to such balance sheet in accordance with GAAP.
Capital Lease Obligation: with respect to any Capital Lease, the amount of the obligation of the lessee thereunder which would in accordance with GAAP appear on a balance sheet of such lessee in respect of such Capital Lease or otherwise be disclosed in a note to such balance sheet.
CERCLA: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.A. §§ 9601 to 9675), as amended from time to time, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
Change of Control: the occurrence of any of the following events:
CISADA: shall mean the Comprehensive Iran Sanctions, Accountability and Divestment Act.
Closing Date: the date on which the initial Loans are advanced pursuant to the terms of this Agreement.
COBRA: the Consolidated Omnibus Budget Reconciliation Act of 1985 and any amendments thereto.
Code: the Internal Revenue Code of 1986, as amended, or its predecessor or successor, as applicable, and any Treasury regulations, revenue rulings or technical information releases issued thereunder.
Commitment: the meaning specified in Subsection 2.2.2 below.
Consolidated: with respect to any Person and any specified Subsidiaries, the method of consolidation of financial statements of such Person and such Subsidiaries and of particular items in such financial statements in accordance with GAAP.
Controlled Entity: shall mean (i) any of the Subsidiaries of the Borrowers and any of their or the Borrowers' respective Controlled Affiliates and (ii) if any of the Borrowers have a parent company, such parent company and its Controlled Affiliates. As used in this definition, "Control" means the possession, directly or indirectly, of the power to direct or cause
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the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Controlling Shareholders: Xxxxx X.X. Xxxxxxxxx, EKTJ Management, Xxxxxxx X. Xxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxxx X. Xxxx Xxxx, Xxxxxxxx X. Xxxx, Xxxxxxxx Xxxx and Xxxxxxx Xxxx Xxxx.
CWA: the Clean Water Act (33 U.S.C.A. § 1251 to 1387), as amended from time to time, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
Default: any condition or event which, with notice or passage of time or both, would become an Event of Default.
Default Rate: the meaning specified in Subsection 2.3.4.
EBITDA: for any period, the Net Income of the Borrowers and their Subsidiaries, on a Consolidated basis, plus (to the extent otherwise deducted therefrom) Interest Expense, income tax expense, depreciation and amortization minus only gains or losses from asset sales not in the ordinary course of business, non-cash nonrecurring gain plus any non-cash non-recurring charges to the extent included in determining Net Income.
Eligible Institution: any commercial bank, savings and loan or savings bank organized under the laws of the United States or any state or political subdivision thereof or under the laws of another country that is a member of the Organization for Economic Cooperation and Development (OECD), or any affiliate of the foregoing, in each case having combined capital and surplus in excess of One Billion Dollars ($1,000,000,000).
Employee Pension Plan: any Plan other than a Multiemployer Plan which (a) is maintained by the Borrowers, any Subsidiary thereof or any ERISA Affiliate and (b) is subject to Part 3 of Title I of ERISA.
Environmental Laws: any national, state or local law, ordinance or regulation (including, without limitation, CERCLA, RCRA, CWA, CAA, EPCRA and OSHA) enacted in connection with or relating to the protection or regulation of the indoor or outdoor environment or public or employee health and safety, including, without limitation, those laws, statutes, and regulations regulating the presence, Release, disposal, removal, production, storing, refining, handling, transferring, processing, generating, or transporting of Hazardous Substances, and all rules, regulations and guidance issued, promulgated or adopted in connection with such statutes by any governmental authority and any orders, decrees or judgments issued by any court of competent jurisdiction or administrative body in connection with any of the foregoing.
EPCRA: the Emergency Planning Community Right-to-Know Act of 1986 (42 U.S.C.A. §§ 11001 to 11050) as amended from time to time, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
ERISA: the Employee Retirement Income Security Act of 1974, as amended, and any regulations issued thereunder by the Department of Labor or PBGC.
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ERISA Affiliate: (a) any corporation included with the Borrowers or any Subsidiary thereof in a controlled group of corporations within the meaning of Section 414(b) of the Code, (b) or any trade or business (whether or not incorporated) which is under common control with the Borrowers or any Subsidiary thereof within the meaning of Section 414(c) of the Code, and (c) any member of an affiliated service group of which the Borrowers or any Subsidiary thereof is a member within the meaning of Section 414(m) of the Code.
Event of Default: the meaning specified in Section 9.1.
Federal Funds Rate: for any day, a fluctuating interest rate per annum equal for such day to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next Business Day as so published on the next succeeding Business Day, and (b) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate charged to the Lender on such day on such transactions as determined by the Lender in a commercially reasonable manner.
Fiscal Year: Means the fiscal year of Borrowers and their Subsidiaries ending on the last Saturday in the month of December of each year.
GAAP: generally accepted accounting principles in the United States of America as in effect from time to time consistently applied that are applicable to the circumstances as of the date of determination, which, as applied to the Borrowers shall be consistent with those applied in the preparation of the financial statements referred to in Subsection 4.1.14.
Governmental Authority shall mean
(ii) any other jurisdiction in which the Borrowers conduct all or any part of their business, or which assert jurisdiction over any properties of the Borrowers, or |
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government. |
Governmental Official: (a) any governmental official or employee, (b) official or employee of any government-owned or government-controlled entity or political party, or (c) any employee or official or anyone else acting in an official capacity for a Governmental Authority, a government-owned or government-controlled entity or political party.
Guaranty: as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any indebtedness, lease, dividend or other obligation of another Person, including, but not limited to, any such obligation directly or indirectly
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guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business) or discounted or sold with recourse by such Person, or in respect of which such Person is otherwise directly or indirectly liable, including, but not limited to, any such obligation in effect guaranteed by such Person through any agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain the solvency or other financial condition of the obligor of such obligation, or to make payment for any products, materials or supplies or for any transportation or services regardless of the non-delivery or nonfurnishing thereof, in any such case if the purpose or intent of such agreement is to provide assurance that such obligation will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected against loss in respect thereof.
Hazardous Substances: any and all pollutants, contaminants, toxic or hazardous wastes, toxic or hazardous substances, or any other substances that might pose a hazard to health, safety or the environment, the investigation, removal or remediation of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, Release, discharge, spillage, seepage, migration, or filtration of which is or shall be regulated, restricted, prohibited or penalized by any Environmental Law (including, without limitation, petroleum products, asbestos, Asbestos-Containing Materials, urea formaldehyde foam insulation and polychlorinated biphenyls and substances defined or regulated as Hazardous Substances, Pollutants or Contaminants under any Environmental Law).
HIPAA: the Health Insurance Portability and Accountability Act of 1996 and any amendments thereto.
Indebtedness: with respect to any Person (without duplication):
(a) all principal indebtedness of such Person for borrowed money and non-current interest and fees relating thereto; |
(b) all obligations of such Person for the deferred purchase price of property or services (not payable and paid on ordinary trade terms); |
(c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; |
(f) all obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar facilities; |
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(j) all payments required by such Person under non-compete agreements which are recorded on the balance sheet of such Person as a liability in accordance with GAAP. |
Indemnitees: the meaning specified in Section 10.14.
Interest Expense: for any period, the amount of interest accrued on, or with respect to, Indebtedness of the Borrowers and their Subsidiaries, on a Consolidated basis, for such period, including, without limitation, imputed interest on Capital Leases and imputed or accreted interest in respect of deep discount or zero coupon obligations.
Investment: as applied to any Person (the "Investor"), any direct or indirect purchase or other acquisition by the Investor of stock or other securities of any other Person (other than an Acquisition), or any direct or indirect loan, advance, or capital contribution by the Investor to any other Person, including all Indebtedness and accounts receivable from such other Person which are not current assets or did not arise from sales to such other Person in the ordinary course of business. The "amount" of any Investment shall mean the sum of the following (without duplication): the amount of cash paid for or contributed to such Investment; the fair market value of any equity or other assets constituting consideration for or contributed to such Investment; and any commitment to pay, contribute, incur, or become liable for any of the foregoing.
Knowledge: an individual will be deemed to have "Knowledge" of a particular fact or other matter if such individual is actually aware of such fact or other matter. An entity will be deemed to have "Knowledge" of a particular fact or other matter if any individual who is serving as a director, officer, partner, executor, trustee, or key management-level employee of such entity (or in any similar capacity) has, or at any time had, knowledge of such fact or other matter.
Lender: the meaning specified in the preamble to this Agreement.
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Lending Office: means, with respect to the Lender, the lending office of the Lender (or of an affiliate of the Lender) designated by the Lender from time to time.
Letter of Credit Agreement: means, with respect to each Letter of Credit to be issued by the Lender, the letter of credit application and reimbursement agreement which such Lender requires to be executed by a Borrower in connection with the issuance of such Letter of Credit.
Letter of Credit Fee: the meaning specified in Section 2.2.2(d)(iii).
Letter of Credit Liabilities: means, at any time, the sum of (a) the aggregate undrawn face amount of all outstanding Letters of Credit, plus (b) all unreimbursed drawings under Letters of Credit.
Letters of Credit: has the meaning specified in Section 2.2.2.
LIBOR Rate: means the variable rate of interest per annum determined in a commercially reasonable manner by Lender each day based on the rate for United States dollar deposits for delivery of funds for one (1) month as reported on Reuters Screen LIBOR page (or any successor page) at approximately 11:00 a.m., London time, or, for any day not a London Business Day, the immediately preceding London Business Day (or if not so reported, then as determined in a commercially reasonable manner by Lender from another recognized source or interbank quotation). Notwithstanding anything in this Agreement to the contrary, if the LIBOR Rate determined as provided above would be less than zero percent (0.00%), then the LIBOR Rate shall be deemed to be zero percent (0.00%).
Lien: with respect to any Person, any mortgage, lien, pledge, adverse claim, charge, security interest or other encumbrance in or on any property or asset of such Person, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease with respect to, any property or asset of such Person.
Line of Credit: the Line of Credit provided for in the preamble to this Agreement.
Loan or Loans: an advance or advances made to the Borrowers pursuant to the terms of this Agreement.
Loan Documents: this Agreement, the Note, and any and all agreements, documents and instruments executed, delivered or filed pursuant to this Agreement, in each case as amended, modified or supplemented from time to time pursuant to the provisions hereof and thereof.
Loan Party: collectively, the Borrowers, their Subsidiaries, and each other party to any Loan Document as a Borrower, guarantor or grantor, from time to time (other than the Lender), if any, together with their successors and permitted assigns, if any.
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Xxxxxx Business Day: means any day that is a day for trading by and between banks in U.S. Dollar deposits in the London interbank market.
Material Adverse Effect: any material adverse effect on:
(a) the business, financial condition, operations, properties or financial prospects of the Borrowers and their Subsidiaries, taken as a whole, |
(b) the ability of the Borrowers taken as a whole to perform their obligations under the Loan Documents, or |
(c) the binding nature, validity or enforceability of any of the Loan Documents as an obligation of the Borrowers. |
Maturity Date: September 1, 2019, or such earlier date as the Commitment shall terminate pursuant to the terms hereof.
Multiemployer Plan: means a multiemployer pension plan as defined in Section 3(37) of ERISA to which Borrowers, any Subsidiary thereof or any ERISA Affiliate has any liability or is required to contribute.
Net Income: means, with respect to the Borrowers and their Subsidiaries, on a Consolidated basis, their net income after taxes determined in accordance with GAAP.
Note: the meaning specified in Section 2.1.
Obligations: all payment and performance obligations of every kind, nature and description of the Borrowers and each other Loan Party to the Lender under, arising out of, or in connection with, this Agreement and the other Loan Documents (including, in each case, any interest, fees, indemnities and other charges that would accrue but for the filing of a bankruptcy action, whether or not such claim is allowed in such bankruptcy action), whether such obligations are direct or indirect, absolute or contingent, due or not due, contractual or tortuous, liquidated or unliquidated, arising by operation of law or otherwise, now existing or hereafter arising, including, without limitation (and without duplication), the following:
OFAC: is defined in Section 10.17.
OFAC Listed Person: shall have the meaning specified in Section 10.17.
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OFAC Sanctions Program: shall mean any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/Xxxxxxxx/Xxxxx/Xxxxxxxx.xxxx.
Officer's Compliance Certificate: a certificate in substantially the form of Exhibit D attached hereto or in such other form as the Lender and the Borrowers shall agree upon, signed by the chief financial officer or other authorized officer of the Borrowers as to: (a) the truth of representations and warranties of the Borrowers in the Loan Documents; (b) the absence of any Default or Event of Default; (c) compliance with the financial covenants set forth herein including the calculations relating thereto; and (d) such other information as is required by this Agreement.
OSHA: the Occupational Safety and Health Act (29 U.S.C.A. §§ 651-678), as amended from time to time, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
PBGC: Pension Benefit Guaranty Corporation, or any governmental agency or instrumentality succeeding to the functions thereof.
Permitted Business: Operation of retail grocery markets and related activities and other lines of business reasonably related thereto and reasonable extensions thereof.
Permitted Liens: the meaning specified in Section 8.2.
Person: a corporation, an association, a limited liability company, a partnership, an organization, a business, an individual, a government or political subdivision thereof, a governmental agency or other entity.
Plan: an "Employee Pension Benefit Plan" (as defined in Section 3(2) of ERISA) which is currently maintained, or to which contributions are currently being made, by the Borrowers, any Subsidiary thereof, or any ERISA Affiliate of the foregoing (or any predecessor thereof).
Projection: the meaning specified in Section 3.1.5.
Quarterly Payment Date: the last Business Day of each March, June, September and December.
RCRA: the Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. §§ 6901 to 6991; a/k/a the Solid Waste Disposal Act), as amended, and all rules, regulations and guidance issued, promulgated or adopted in connection therewith.
Regulatory Change: with respect to the Lender, any change or implementation after the Closing Date in United States federal, state or foreign laws or regulations, including, without limitation, the issuance of any final regulations or guidelines, or the adoption or making after such date of any interpretations, directives or requests applying to a class of banks, including the Lender, of or under any United States federal or state, or any foreign, laws or regulations (having the force of law) or by any court or governmental or monetary authority
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charged with the interpretation or administration thereof provided, however, that any change in, or the implementation of, any Bank Tax shall not constitute a Regulatory Change hereunder.
Reimbursement Obligations: means all indebtedness, liabilities, and obligations of Borrowers or any other Loan Party to reimburse the Lender in accordance with Section 2.2.2 for any demand for payment or drawing under a Letter of Credit.
Release: a release, spill, emission, leaking, pumping, emptying, escaping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or property.
Remedial Action: actions necessary to comply with any Environmental Law with respect to (a) clean up, removal, treatment or handling Hazardous Substances in the indoor or outdoor environment; (b) prevention of Releases or threats of Releases or minimization of further Releases of Hazardous Substances so they do not migrate or endanger or threaten to endanger public or employee health or safety or welfare or the indoor or outdoor environment; or (c) performance of pre-remedial studies and investigations and post-remedial monitoring and care.
Reportable Event: with respect to any Employee Pension Plan, an event described in Section 4043(c) of ERISA.
SEC: the United States Securities and Exchange Commission and any successor governmental agency.
Solvent: with respect to any Person as of the date of any determination, that on such date (a) the fair value of the assets of such Person (both at fair valuation and at present fair saleable value) is greater than the total liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations, and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute unreasonably small capital after giving due consideration to current and anticipated future capital requirements and current and anticipated future business conduct and the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, such liabilities shall be computed at the amount which, in light of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Subsidiary: with respect to any Person, (a) any corporation of which more than 50% of the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of
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any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by the Borrowers, by the Borrowers and one or more of its other Subsidiaries or by one or more of the Borrowers' other Subsidiaries, (b) any partnership, joint venture, limited liability company, or other association of which more than 50% of the equity interests having the power to vote to direct or control the management of such partnership, joint venture, limited liability company, or other association is at the time owned or controlled by the Borrowers, by the Borrowers and one or more of the other Subsidiaries or by one or more of the Borrowers' other Subsidiaries or (c) any other Person that is Consolidated with the Borrowers.
Tax: any federal, state, local or foreign tax, assessment or other governmental charge or levy (including any withholding tax) upon a Person or upon its assets, revenues, income or profits.
United States Person: the meaning specified in Subsection 2.7.1.
USA PATRIOT Act: shall mean United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
U.S. Economic Sanctions: shall have the meaning specified in Section 10.17.
U.S. Dollars and $: lawful money of the United States of America.
Unused Fee Rate: shall mean one eighth of one percent (0.125%).
Withdrawal Liability: any withdrawal liability as defined in Section 4201 of ERISA.
Except as otherwise provided in this Agreement, calculations under this Agreement shall be subject to the following:
of the Borrowers and their Subsidiaries, on a Consolidated basis, for the fiscal quarter in which such Acquisition occurs and for each of the preceding fiscal quarters to which the relevant financial tests apply, the net income, cash flow and other financial data of the acquired assets or entity for such period (with such pro forma adjustments as the Lender shall approve, if any, such approval not to be unreasonably withheld, conditioned or delayed). If there occurs any disposition of any assets or entity by the Borrowers or any Subsidiary, for purposes of the calculations contemplated hereby, there shall be deducted from net income, cash flow and other financial data of the Borrowers and their Subsidiaries, on a Consolidated basis, for the fiscal quarter in which such disposition occurs and the preceding fiscal quarters to which the relevant financial tests apply, the net income, cash flow and other financial data of the assets or entity so disposed of for such period (with such pro forma adjustments as the Lender shall approve, if any, such approval not to be unreasonably withheld, conditioned or delayed). |
The Line of Credit shall be evidenced by the Promissory Note to be issued by the Borrowers to the Lender in substantially the form attached hereto as Exhibit A (as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and together with each replacement thereof, a "Note"), the principal and unpaid interest of which, and all unpaid fees and other sums of any nature due under or in connection with which (to the extent not due and payable before), shall be due and payable on the Maturity Date.
2.2.1. General Conditions. All advances requested by the Borrowers are subject to and conditioned upon continuing compliance with all terms and conditions set forth in this Agreement. |
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(ii) Termination of Commitment. Unless terminated earlier pursuant to the terms of this Agreement, the Commitment shall terminate on the Maturity Date. |
(i) Borrowing Notice. To effect a borrowing, the Borrowers shall give the Lender written notice substantially in the form annexed to this Agreement as Exhibit B or in such other form as the Lender and the Borrowers may agree upon, specifying the amount and date of each intended borrowing, the manner in which the same shall be disbursed, which notice shall be given no later than 11:00 a.m. (Harrisburg, Pennsylvania time) two (2) Business Days (or such shorter period as is acceptable to Lender) prior to the date of such borrowing. Each such notice of borrowing shall contain a certification by the Borrowers that, both before and after giving effect to the proposed borrowing, the Borrowers are in compliance with the covenant set forth in Article 6 below and that no Event of Default exists or would be created thereby. |
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(iii) Obligations Suspended During Default. The Lender shall not be obligated to comply with a borrowing notice or to advance any Loan if there shall then exist an Event of Default. |
(including the first day but excluding the last day). The Borrowers will pay to the Lender all customary issuance and other fees for issuing and processing Letters of Credit and for amendments to and processing of the Letters of Credit. |
furtherance and not in limitation of the foregoing, subject to the provisions of the applications for the issuance of Letters of Credit, the Lender shall not be responsible for: |
(C) the failure of the beneficiary of any Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; |
(D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; |
(F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; |
(G) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; or |
(H) any consequences arising from causes beyond the control of the Lender, including, without limitation, any act of any Governmental Authority. |
None of the foregoing shall affect, impair, or prevent the investing of any of the Lender's rights or powers under this Section 2.2.2(c). The Borrowers shall have a claim against the Lender and the Lender shall be liable to Borrowers, to the extent of any direct (but not indirect, consequential or punitive) damages suffered by the Borrowers which the Borrowers prove in a final nonappealable judgment were caused by (A) the Lender's willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit complied with the terms thereof or (B) the Lender's willful failure to pay under any Letter of Credit after presentation to it of documentation strictly complying with the terms and conditions of such Letter of Credit. The Lender may accept documents that reasonably appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
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Line of Credit. Until such time as the Promissory Note becomes due and payable, the Borrowers shall make payments of interest only on the then outstanding principal amount of the Line of Credit, payable in arrears as set forth in Section 2.3.2.
2.4.3. Voluntary Prepayments of Loan. Except as specifically set forth in this Agreement, the Borrowers shall be permitted to prepay the Line of Credit at any time without penalty or premium. |
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Loans under the Line of Credit. If at any time the outstanding principal balance under the Line of Credit exceeds the Commitment, Borrowers shall immediately prepay and reduce, without need of demand, from time to time, the outstanding principal balance by the amount of such excess.
(a) All payments on account of principal and interest on the Loans, the Unused Fees, and all other amounts otherwise payable by the Borrowers to the Lender under this Agreement, shall be made to the Lender in U.S. Dollars which are immediately available by 3:00 p.m. (Harrisburg, Pennsylvania time), on the due date for such payment, at the Lender's principal office in Harrisburg, Pennsylvania specifying amount and date of payment, re: Borrowers (and if by wire transfer, in accordance with the instructions on the signature page to this Agreement executed by the Lender), or to such other accounts or Persons or at such other place as the Lender may direct in writing. The Borrowers hereby authorize the Lender to (i) apply to the aforesaid payments, up to the amount of such payments, any portion of the balance of any account maintained by the Borrowers for the purpose of facilitating said payments, and/or (ii) cause the aforesaid payments to be made, if not paid by the Borrowers when due, by drawing under the loan facilities provided under this Agreement if available; notwithstanding the foregoing, any amounts not paid when due shall bear interest at the Default Rate, subject to the following sentence. The failure by the Borrowers to make a payment by 3:00 p.m. shall not constitute an Event of Default if such payment is made on the due date; however, any payment made after such time on such due date shall be deemed made on the next Business Day for the purpose of interest and reimbursement calculations. |
(calculated on the basis of a 365 day year and the actual days elapsed) equal to the product of the Unused Fee Rate times the average daily unborrowed portion of the amount of the Commitment during the period ended on such Quarterly Payment Date or such Commitment reduction date or Maturity Date, as the case may be. |
(a) on or prior to the determination of the LIBOR Rate, the Lender determines that for any reason appropriate information is not available to it for purposes of determining the LIBOR Rate; |
(b) the Lender determines that the LIBOR Rate as determined by the Lender would not accurately reflect the cost to the Lender of making or continuing Loans at the LIBOR Rate; |
additional amounts for any period ending prior to the date that is ninety (90) days prior to the giving of such notice. |
to the Lender such additional amounts as may be necessary so that the net amount received by the Lender with respect to such payment, after withholding or deducting all Taxes (other than Bank Taxes) required to be withheld or deducted, is equal to the full amount payable hereunder. If any Tax is withheld or deducted from, or is otherwise payable by the Borrowers in connection with, any payment due to the Lender hereunder, the Borrowers shall furnish to the Lender the original or a certified copy of a receipt for such Tax from the applicable taxing authority within 30 days after the date of such payment (or, if such receipt shall not have been made available by such taxing authority within such time, the Borrowers shall use reasonable efforts to promptly obtain and furnish such receipt). If the Borrowers fail to pay any Taxes, other than Bank Taxes, when due to the appropriate taxing authority or fail to remit to the Lender the required receipts, the Borrowers shall indemnify the Lender for any such Taxes, interest, penalties or additions to such Tax that may become payable by the Lender as a result of any such failure. |
The Lender's obligation to make the initial Loans hereunder is subject to the fulfillment of each of the following conditions, in each case to the reasonable satisfaction of the Lender:
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3.1.4. The Note. The Borrowers shall have delivered a duly executed Note payable to the Lender reflecting the aggregate principal amount of the Loans; |
certified copies of Requests for Information or Copies (Form UCC-11) or other lien search reasonably acceptable to the Lender listing the financing statements if any which name the Borrowers (under their respective present names and any previous names) as debtor and which are filed in their respective jurisdictions of formation, together with copies of such financing statements;
3.1.8. Insurance. The Borrowers shall have delivered a schedule of insurance coverage and such insurance certificates and endorsements as (and if) required by Section 7.4 of this Agreement; |
3.1.10. Fees and Expenses. The Borrowers shall have paid the fees, if applicable, required to be paid to the Lender on or prior to the Closing Date; |
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3.1.14. Additional Information. The Lender shall have received such additional information and material as the Lender may reasonably request, including such additional agreements or certifications executed by the Borrowers or any other Loan Party as the Lender may reasonably request. |
(a) Absence of Default. There shall not, either prior to or after giving effect to each such Loan, exist an Event of Default or a Default that has occurred and is continuing; |
(b) Borrowing Notice. The Lender shall have received a borrowing notice if and as required by Section 2.2.2(b) above; and |
The request for, and acceptance of, any Loan by the Borrowers shall be deemed to be a representation and warranty by the Borrowers that the conditions specified in paragraphs (a) and (c) of the preceding Subsection 3.2.1 have been satisfied.
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In order to induce the Lender to enter into this Agreement and to make the Loan contemplated hereunder, the Borrowers hereby make the following representations and warranties, which representations and warranties shall survive the execution and delivery of this Agreement, the Note and the other Loan Documents and shall not be affected or waived by any inspection or examination made by or on behalf of the Lender:
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No consent, approval or authorization of Borrowers, or recording, filing, registration, notice or other similar action with or to Borrowers, is required in order to insure the legality, validity, binding effect or enforceability of any of the Loan Documents except as may be required by the SEC and those which if not obtained or made would not reasonably be expected to have a Material Adverse Effect.
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All financial reports and statements delivered pursuant to this Agreement and all calculations for financial covenant compliance and other calculations, projections (including those required by Section 3.1.5 above), etc. performed by Borrowers hereunder shall have been prepared in accordance with GAAP applied on a consistent basis throughout the period specified and present fairly in all material respects the financial position of the subject Persons, subject to normal year-end adjustments and absence of foot-note disclosures for interim reporting. The Borrowers have on the date hereof no material non-ordinary course of business contingent liabilities, material liabilities for taxes (other than those not yet due and payable or permitted pursuant to Section 4.1.15), unusual forward or long-term commitments or material unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said balance sheets (including the footnotes thereof) as at said dates. Since the date of such financial reports and statements, no event or condition has occurred which would reasonably be expected to result in a Material Adverse Effect. In any certificates delivered to the Lender after the date of this Agreement which certify the truth and accuracy of the representations, or at any time that these representations shall be deemed restated, this representation shall be deemed to apply to financial reports and statements which the Borrowers have most recently delivered to the Lender pursuant to this Agreement. It is acknowledged and agreed by Lender that to the extent included in any of the foregoing, projections, budgets, forward looking statements or estimates as to future events are inherently uncertain and are not to be viewed as facts and that actual results during the period or periods covered by the foregoing may differ from projected results.
4.1.15. Taxes. The Borrowers have filed all United States Federal income tax returns and all other material Tax returns which are required to be filed by it and has paid all -27-
|
material Taxes due as set forth on such returns or pursuant to any assessment received by the Borrowers or any of their Affiliates and relating to the Borrowers, except such Taxes, if any, as are being contested in good faith by appropriate proceedings, if any, and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Borrowers in respect of Taxes and other governmental charges are, in the opinion of the Borrowers, adequate. There is currently in effect no tax sharing, tax allocation or similar agreement to which the Borrowers are a party. The respective Federal Tax Identification Numbers of the Borrowers are: |
Xxxx Markets, Inc.:00-0000000;
Dutch Valley Food Company, LLC:00-0000000;
Weis Transportation, LLC:00-0000000; and
WMK Financing, Inc.:00-0000000.
(a) The Borrowers do not maintain or contribute to any Plan except as disclosed in Schedule 4.1.20 attached hereto. |
qualification under Section 401(a) of the Code or an application for such determination within the applicable remedial amendment period has been filed. Upon request, the Borrowers will furnish the Lender with a copy of the most recent actuarial report for each Employee Pension Plan, and each such report is accurate in all material respects. |
terminated Plan have been distributed in accordance with ERISA, and all liabilities with respect to participants and beneficiaries under any such terminated Plan have been satisfied. |
(f) The Permitted Business activities of the Borrowers do not and never have involved the use, handling, clean up or removal of Asbestos-Containing Materials; and |
(g) No equipment containing polychlorinated biphenyls, including electrical transformers, are located on any real property owned and/or occupied by the Borrowers -30-
|
in levels which exceed those permitted by any and all governmental authorities with jurisdiction over such premises and which are not properly labeled in accordance with requisite standards. |
The Borrowers shall comply with the following covenants so long as any Loan or any other amounts due under the Loan Documents remain unpaid (other than contingent indemnification obligations) or the Lender has a commitment to lend hereunder:
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Report |
Time Period for Delivery to Lender |
SEC 10-K |
120 days after Fiscal Year end |
SEC 10-Q |
60 days after fiscal quarter end |
XXX 0-X |
00 days after public availability |
All other reports required by section 5.1.4 |
60 days after public availability |
In lieu of furnishing Lender with copies of the SEC 10-K and SEC 10-Q reports referred to in this Section 5.1.4, the Borrowers may make available such reports to Lender by posting such reports on the Borrowers' website or on the SEC's XXXXX website.
The Borrowers shall, in addition to other reporting requirements set forth herein, deliver to the Lender the following information:
Upon request of the Lender, (i) a copy of each annual report filed with respect to each Plan of the Borrowers or any Subsidiary with the Internal Revenue Service, Secretary of Labor or the PBGC, (ii) a copy of all material non-routine correspondence with the PBGC, Secretary of Labor or any representative of the Internal Revenue Service with respect to any Plan, and (iii) actuarial reports any such Person receives with respect to any Employee Pension Plan;
As soon as possible (and in any event within 5 days) after any officer of the Borrowers or any Subsidiary thereof obtains knowledge that the Borrowers, any Subsidiary thereof or any ERISA Affiliate has incurred or anticipates incurring Withdrawal Liability, or that any material excise taxes have been assessed against the Borrowers, a Subsidiary thereof or ERISA Affiliate in respect of any Plan, or that any Multiemployer Plan is in reorganization or that any Reportable Event has occurred with respect to any Employee Pension Plan except to the extent that the PBGC has waived such reporting requirement with respect to such event or that PBGC has instituted or will institute proceedings under Title IV of ERISA to terminate any Employee Pension Plan or to appoint a trustee to administer any Employee Pension Plan, a statement setting forth the details respecting such situation;
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Within the time required for notice to the PBGC under Section 303(k)(4)(A) of ERISA, a notice concerning any lien arising under Section 303(k) of ERISA in favor of any Plan;
The Lender is hereby authorized to show or deliver a copy of any financial report or statement or any other information relating to the business, operations or financial condition of the Borrowers or any Loan Party which may be furnished to the Lender or come to its attention pursuant to this Agreement to any regulatory body or agency having jurisdiction over the Lender, to the Lender's counsel, advisers and auditors, and to any Person which shall, or has expressed an interest to, succeed to all or any part of the Lender's interest in the Note, and/or this Agreement. Effective during the existence of an Event of Default, the Lender and its counsel, advisors and auditors are hereby further authorized to show or deliver a copy of such information to other Persons in connection with protecting, preserving, exercising or enforcing any rights of the Lender in, under or related to the Loan Documents. Except as set forth above in this
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Section 5.3 above, the Lender hereby covenants and agrees to use commercially reasonable efforts to (a) maintain the confidentiality of all information of a non-public nature submitted to it by the Borrowers and other Loan Parties pursuant to the terms of this Agreement and the other Loan Documents, and (b) ensure that its counsel, advisors, auditors, prospective assignees and participants, and other persons referred to in this Section 5.3 maintain the confidentiality of such information in similar fashion.
The Borrowers shall comply with the following covenant so long as any Loan or any other amounts due under the Loan Documents remain unpaid (other than contingent indemnification obligations) or the Lender has a commitment to lend hereunder:
The Borrowers, on a Consolidated basis, shall maintain, at all times, minimum EBITDA of not less than Seventy-Five Million Dollars ($75,000,000.00). This covenant shall be tested on the last day of each fiscal quarter of the Borrowers on a trailing twelve (12) month basis based upon the reports required by Section 5.1.4 above.
The Borrowers and their Subsidiaries shall comply with each of the following covenants so long as any Loan or any other amounts due under the Loan Documents remain unpaid (other than contingent indemnification obligations) or the Lenders have a commitment to lend hereunder.
Each of the Borrowers will at all times preserve and keep in full force and effect its corporate existence and its good standing in all states in which it is formed or required to qualify to do business where failure to be so qualified would reasonably be expected to result in a Material Adverse Effect. Except for mergers and dispositions expressly permitted by this Agreement, each Subsidiary of the Borrowers will at all times preserve and keep in full force and effect its corporate or limited liability company existence and its good standing in the state of its formation and its good standing in each other state where the failure of qualify and remain qualified would reasonably be expected to have a Material Adverse Effect.
The Borrowers and each of their Subsidiaries shall materially comply with all laws, ordinances or governmental rules and regulations to which it is subject, including but not limited to ERISA and Environmental Laws, and obtain or maintain all franchises, copyrights, trademarks, patents or other governmental authorizations or approvals or intellectual property rights necessary for the ownership of its properties and the conduct of its businesses except where failure to do so would not reasonably be expected to have a Material Adverse Effect. The Borrowers and their Subsidiaries will each maintain its properties in good repair, working order and condition (ordinary wear and tear and casualty and condemnation events excluded) and
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make or cause to be made in the Borrowers' reasonable business judgment all appropriate and proper repairs, renewals, replacements, additions and improvements thereto.
The Borrowers and their Subsidiaries will pay all material taxes, assessments and other governmental charges imposed upon them or any of their properties or assets or in respect of any of their franchises, business, income or profits before any penalty or interest accrues thereon, and all material claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payable and which by law have or might become a Lien upon any of their properties or assets except where such taxes, assessments or governmental charges are being contested in good faith by appropriate proceedings and adequate reserves have been set aside. The Borrowers shall not change their Fiscal Year without prior written notice to the Lender.
7.4.2. Evidence of Insurance. Copies of insurance policies or the related certificates shall be delivered to the Lender upon the Lender's request. |
Upon reasonable notice if no Event of Default or Default shall exist and be continuing, or at any time with or without notice after the occurrence and during the continuation of an Event of Default or Default, the Borrowers and each Subsidiary of the Borrowers will allow representatives of the Lender to visit it at any reasonable time during normal business hours and inspect any of the properties of the Borrowers or such Subsidiary, as the case may be, to examine the books of account and other records and files of such Person, to make copies thereof and to discuss the affairs, business, finances and accounts of such Person with its personnel and accountants.
Upon receipt of a written notice of loss, theft, destruction or mutilation of the Note (and, if requested by the Borrowers, of a letter of indemnity from the Lender or its successors or assigns) and upon surrender for cancellation such Note if mutilated (in which event no indemnity shall be requested), the Borrowers shall execute and deliver a new Note of like tenor in lieu of such lost, stolen, destroyed or mutilated Note.
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The Borrowers and each Subsidiary of the Borrowers shall exercise any and all voting or similar rights which it holds in any Person in a manner consistent with adherence to the provisions of this Agreement and the other Loan Documents.
Proceeds of the Loans shall be used by the Borrowers only for the following purposes: to finance working capital, Acquisitions permitted hereunder and general corporate purposes.
The Borrowers and their Subsidiaries will take such action from time to time as shall be necessary to ensure that each of the Borrowers' Subsidiaries is, directly or indirectly, a wholly-owned Subsidiary of the Borrowers. Without limiting the generality of the foregoing, neither of the Borrowers nor any of their Subsidiaries shall sell, transfer or otherwise dispose of any shares of stock of any Subsidiary owned by it, nor permit any such Subsidiary to issue any shares of stock of any class whatsoever to any Person (other than to the Borrowers or another Subsidiary of the Borrowers) if any of the foregoing actions would result in there being Subsidiaries of the Borrowers that are not wholly owned by the Borrowers. Dutch Valley Food Company, LLC, Weis Transportation, LLC and WMK Financing, Inc. are each a wholly-owned Subsidiary of Xxxx Markets, Inc.
The Borrowers and each Subsidiary thereof shall maintain, preserve, protect and, when necessary, renew all service marks, copyrights, trademarks, trade names and other rights held by any of them and all agreements to which any of them are parties including, without limitation, agreements with suppliers and with customers, which are necessary to conduct the Permitted Businesses except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
The Borrowers and each of their Subsidiaries shall continue to operate, without interruption within their control, the Permitted Business. They shall conduct no business other than the Permitted Business.
Either prior to or after a Default or an Event of Default, upon the reasonable request of the Lender, the Borrowers and each Subsidiary of the Borrowers will duly execute and deliver or cause to be duly executed and delivered, to the Lender such further instruments and do or cause to be done such further acts as may be necessary or proper in the reasonable opinion of the Lender to carry out more effectively the provisions and purposes of this Agreement and the other Loan Documents.
During such time as the Loan shall remain unpaid (other than contingent indemnification obligations) and/or any Obligations of the Borrowers under this Agreement, whether of payment or performance, shall remain unfulfilled (other than contingent indemnification obligations),
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Borrowers shall maintain their primary deposit accounts, cash management accounts and treasury services with the Lender.
The Borrowers and each of their Subsidiaries shall comply with the following covenants so long as any Loan or any other amounts due under the Loan Documents remain unpaid (other than contingent indemnification obligations) or the Lenders have a commitment to lend hereunder.
(a) obligations under the Line of Credit (which may result in an increase of the Commitment, as provided in Section 2.2.2(a)(iv)); |
(c) Indebtedness with respect to bonds or security deposits provided to utilities with respect to utilities services provided to Borrowers and their Subsidiaries in the ordinary course of business; |
(d) Indebtedness incurred as a result of endorsements for collections or deposits in the ordinary course of business; |
(e) Indebtedness in connection with the financing of insurance premiums in the ordinary course of business; |
(f) Indebtedness for bank overdrafts or returned items incurred in the ordinary course of business; |
(g) Indebtedness set forth on Schedule 4.1.16; and |
(h) other Indebtedness of the Borrowers and their Subsidiaries in an aggregate principal amount not to exceed $40,000,000 of Indebtedness at any time outstanding. |
8.1.2. No Default. No Indebtedness may be incurred by the Borrowers or any Subsidiary thereof unless immediately before and after giving effect to the incurrence of such Indebtedness, no Event of Default shall have occurred and be continuing. |
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(f) Liens in favor of collecting banks arising by operation of law under Section 4-210 of the UCC or, with respect to collecting banks located in the State of New York, under Section 4-208 of the UCC; |
(g) Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods in the ordinary course of business; |
(h) Liens on property acquired in an Acquisition permitted by Section 8.3(c) so long as such Lien only attaches to such property (and any replacements of such Liens applicable solely to such property), provided, that such Lien shall not have been incurred in contemplation of such Acquisition and such Lien secures Indebtedness permitted under clause (h) of subsection 8.1.1; |
(i) Liens arising by operation of law or contract on insurance policies and proceeds thereof to secure premiums payable thereunder; |
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(j) Liens incurred by any Loan Party or its Subsidiaries consisting of good faith deposits required in connection with any Investment permitted under Section 8.3, prepayments and security deposits in connection with leases, subleases, licenses, sublicenses, use and occupancy agreements, utility services and similar transactions entered into by the applicable Loan Party or Subsidiary of a Loan Party in the ordinary course of business and not required as a result of any breach of any agreement or default in payment of any obligation; |
(k) Liens on property, and only such property, which is the subject of an unconsummated asset purchase agreement in connection with an asset disposition permitted hereunder, which Liens arise solely under Article 2 of the UCC and secure the obligation of a Loan Party or any Subsidiary of a Loan Party under such agreement; |
(m) other Liens not otherwise permitted by clauses (a) through (l) above securing Indebtedness permitted pursuant to Section 8.1.1 above and in an amount not to exceed $1,000,000 in the aggregate at any time outstanding. |
8.2.2. Limitation on Negative Pledge. The Borrowers shall not permit or suffer to exist any negative pledge covenant or agreement similar to that contained in Section 8.2.1 of this Agreement, restricting the rights of the Borrowers for the benefit of any Person other than the Lender. |
Absent the prior written consent of the Lender (such consent not to be unreasonably withheld, conditioned or delayed), neither the Borrowers nor any Subsidiary of the Borrowers shall directly or indirectly, make or permit to exist or enter into any agreement or make any Investment or make any Acquisition, except:
(d) Investments by any Loan Party in any other Loan Party; |
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(e) Investments received as the non-cash portion of consideration received in connection with transactions permitted pursuant to Section 8.3(c); |
(f) Investments acquired in connection with the settlement of delinquent accounts in the ordinary course of business or in connection with the bankruptcy or reorganization of suppliers or customers; |
(g) Investments consisting of notes receivables of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; |
(h) (i) bank deposits and Investments in securities accounts in the ordinary course of business, (ii) accounts receivables owing if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (iii) endorsement of negotiable instruments held for collection in the ordinary course of business, and (iv) lease, utility, pledges and other similar deposits in the ordinary course of business; |
(i) Capital Expenditures; |
(j) loans or advances to employees, directors and officers in the ordinary course of business; and |
(k) other Investments not to exceed $1,000,000 in the aggregate at any time outstanding. |
Neither the Borrowers nor any Subsidiary thereof, on the one hand, will, directly or indirectly, engage in any transaction with any Affiliate of the Borrowers or of any Subsidiary, (but exclusive of the Borrowers or any Subsidiary, itself), on the other hand, on terms that are less favorable to the Borrowers or such Subsidiary, as the case may be, than those which might be obtained at the time from Persons which are not affiliated other than:
(a) any issuances of awards or grants of equity securities, stock options, and stock ownership plans, or loans or advances to employees, officers or directors relating to the purchase of shares of stock of the Loan Parties pursuant to employee stock purchase plans or agreements; and |
(b) loans or advances to employees of Loan Parties for travel, entertainment and relocation expenses and other ordinary business purposes in the ordinary course of business. |
Neither the Borrowers nor any Subsidiary of the Borrowers will, absent the Lender's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), directly or indirectly: (a) consolidate with or merge into any other Person other than another Loan Party; (b) sell, lease, abandon or otherwise transfer or dispose of any substantial
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amount of its assets or property, or sell, lease, abandon or otherwise transfer or dispose of any of its assets or property of any nature except in each case in the ordinary course of its business or to another Loan Party; or (c) enter into any agreement to do any transaction prohibited by the terms of this Section 8.5, in each case other than:
(i) transfers of property subject to casualty or condemnation proceeding (including in lieu thereof); |
(ii) the abandonment of intellectual property rights which, in the reasonable good faith determination of the Borrowers, are no longer used or useful to the business of any Loan Party and its Subsidiaries; and |
(iii) issuances and sales of stock by the Loan Parties and their Subsidiaries to the extent not prohibited hereunder. |
Neither the Borrowers nor any Subsidiary of the Borrowers shall (a) enter into any management agreement with any Person that gives such Person the right to manage any business owned by the Borrowers or such Subsidiary, (b) directly or indirectly pay or accrue to an entity any sum or property for fees for management or similar services rendered in connection with the operation of a business, or (c) undergo a Change in Control.
Neither the Borrowers nor any Subsidiary of the Borrowers will directly or indirectly, take or permit to be taken any action which would result in the Loans or the carrying out of any of the other transactions contemplated by this Agreement, being violative of Regulation U (12 C.F.R. 221, as amended) or of Regulation T (12 C.F.R. 220, as amended) or of Regulation X (12 C.F.R. 224, as amended) or any other regulation of the Board of Governors of the Federal Reserve System.
Neither the Borrowers nor any Subsidiary of the Borrowers will enter into any agreements which provide for, or otherwise place any restriction, directly or indirectly, on (a) the right or ability of the Borrowers or any such Subsidiary to create or suffer to exist any Liens (other than Permitted Liens) or (b) the right or ability of any such Subsidiary to pay dividends or make other payments to the Borrowers or other Subsidiaries of the Borrowers.
Neither the Borrowers nor any Subsidiary of the Borrowers shall (a) use or permit any Person to use any of the real property owned or occupied by the Borrowers or any such Subsidiary for the purposes of treating, producing, handling, transferring, processing, transporting, disposing, storing or otherwise causing or threatening a Release of Hazardous Substances, in violation of any Environmental Laws, (b) cause or knowingly permit to exist as the result of an intentional or unintentional action or omission on the part of the Borrowers or
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any such Subsidiary or any other Person who occupies any real property owned or occupied by the Borrowers or any such Subsidiary, a Release from, about, under or on any real property owned or occupied by Borrowers or such Subsidiary of any Hazardous Substance except in the normal course of the Permitted Business activities of the Borrowers or applicable Subsidiary and in full compliance with all Environmental Law, or (c) cause, contribute to or become potentially liable for a Release or threat of a Release of Hazardous Substances at any site or property listed or proposed for listing on the National Priorities List under CERCLA, or the Comprehensive Environmental Response, Compensation and Liability Information System List or on any similar state or foreign list of sites targeted for or requiring investigation or Remedial Action.
Each of the Borrowers and the Subsidiaries thereof will not, and will not permit any of its ERISA Affiliates or any employees of Borrowers, the Subsidiaries thereof or any ERISA Affiliate who are fiduciaries with respect to an employee benefit plan as defined in Section 3(3) of ERISA to, take any of the following actions or permit any of the following events to occur if such action or event could cause the Borrowers, any Subsidiary thereof or any ERISA Affiliates of any of the foregoing to be liable for any material tax, penalty, or other liability:
(e) withdraw from any Multiemployer Plan, if such withdrawal would result in the imposition of a material Withdrawal Liability; or |
As used in this Section, "material" shall mean an amount in excess of $2,000,000.
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The Borrowers shall not, absent the Lender's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), sell, transfer, or otherwise dispose of, any real or personal property to any Person and thereafter directly or indirectly lease back such property (each a "Sale-Leaseback"), other than Sale-Leasebacks in an amount not to exceed $30,000,000 in the aggregate at any time outstanding.
Neither the Borrowers nor any Subsidiary shall engage in any business other than a Permitted Business.
"Event of Default" wherever used herein means any one of the following events (whatever the reason for such Event of Default, whether it shall be voluntary or involuntary and whether it shall be by action or inaction, by operation of law, pursuant to a court order or any rule or regulation of any administrative or governmental instrumentality otherwise):
agreement or instrument and shall not have been waived pursuant thereto or which are being contested in good faith by appropriate proceedings; or |
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and interest accrued and premium, if any, thereon and any unpaid accrued Unused Fees and all other amounts payable hereunder and under the other Loan Documents, to be immediately due and payable by the Borrowers and/or may terminate the Commitment. Such principal and interest, premium, fees and other amounts shall thereupon become and be immediately due and payable, without presentation, demand, protest, notice of protest or other notice of dishonor or other notice of any kind, all of which are hereby expressly waived by the Borrowers. In the event of any such acceleration, the Lender (acting directly or through the appointment of one or more trustees or agents of Lender's choosing) may proceed to protect and enforce its rights under the Loan Documents in any manner or order it deems expedient without regard to any equitable principles of marshalling or otherwise. |
The Borrowers:
Xxxx Markets, Inc.
Dutch Valley Food Company, LLC
West Transportation, LLC
WMK Financing, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Fax: 000.000.00000
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Email: xxxxxx@xxxxxxxxxxx.xxx
Attention: Xxxxx X. Xxxxx, Senior Vice President, Chief Financial Officer and Treasurer
with a copy to:
Xxxxxx Xxxxxxxx LLP
Hercules Plaza, Suite 5100
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Fax - 000.000.0000
Email - xxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxx, Esquire
Lender:
Xxxxx Fargo Bank, N.A.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Fax: 000.000.0000
Email: xxxx.x.xxxxxxx@xxxxxxxxxx.xxx
Attention: Xxxx Xxxxxxx, Vice President
with a copy to:
Barley Xxxxxx LLP
00 Xxxxx Xxxxx Xxxxxx, 0xx Xx.
X.X. Xxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxxxxxxx@xxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxxxx, Esquire
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All representations and warranties of the Borrowers and other Loan Parties contained in the Loan Documents shall survive the making of the Loans and shall not be waived by the execution and delivery of this Agreement, any investigation by the Lender, the making of the Loans, or payment in full of the Loans.
No failure or delay on the part of the Lender in exercising any right, power or privilege under any or all of the Loan Documents and no course of dealing between the Borrowers and/or and the Lender shall operate as a waiver of any such right, power or privilege; nor shall any single or partial exercise of any right, power or privilege under the Loan Documents preclude any other or further exercise of any such right, power or privilege or the exercise of any other right, power or privilege. The rights and remedies expressly provided in the Loan Documents are cumulative and not exclusive of any rights or remedies which Lender would otherwise have. No notice to or demand on the Borrowers or any other Loan Party in any case shall entitle the Borrowers or any other Loan Party to any other or further notice or demand in similar or other circumstances or shall constitute a waiver of the right of the Lender to take any other or further action in any circumstances without notice or demand.
participant had no such transfer occurred, (iv) each such participation shall be of a constant, and not a varying, percentage of all the Lender's interests, rights and obligations under this Agreement, (v) such participant shall agree to be bound by the provisions of this Agreement and the other Loan Documents, and (vi) the Borrowers shall continue to deal solely and directly with the Lender in connection with the Lender's rights and obligations under this Agreement, and the Lender shall retain the sole right and responsibility vis-a-vis the Borrowers to enforce the obligations of the Borrowers relating to the Loans including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement. |
The descriptive headings of the several sections of this Agreement are inserted for convenience only and shall not affect the meaning or construction of any of the provisions of this Agreement.
This Agreement and the rights and obligations of the parties under this Agreement and under the Loan Documents shall be construed in accordance with and shall be governed by the laws of the Commonwealth of Pennsylvania.
Except as otherwise provided herein, whenever any payment to be made under the Loan Documents shall become due and payable on a day which is not a Business Day, such payment may be made on the next succeeding Business Day and such extension of time shall in such case be included in computing interest on such payment.
The Loan Documents and any notice or communication under the Loan Documents may be executed in one or more counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. Delivery via electronic communications pursuant to Section 10.1(b) above of a photocopy, telecopy portable document format (PDF) electronic data version of an executed counterpart of a signature page to any Loan Document shall be effective as delivery of a manually executed counterpart of such Loan Document.
Notwithstanding any provision contained in this Agreement or the Note, the total liability of the Borrowers for payment of interest pursuant to this Agreement and the Note shall not exceed the maximum amount of such interest permitted by law to be charged, collected, or received from the Borrowers, and if any payments by the Borrowers include interest in excess of such a maximum amount, each Lender shall apply such excess to the reduction of the unpaid
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principal amount due pursuant to this Agreement and the Note, or if none is due, such excess shall be refunded to the Borrowers.
The Borrowers and each Subsidiary thereof hereby pledge and give to the Lender a lien and security interest for the amount of the Obligations owing to the Lender under the Loan Documents upon and in the balance of any account maintained by the Borrowers or any such Subsidiary with the Lender or any other liability of the Lender to such Subsidiary or the Borrowers. Upon the occurrence of and throughout the period in which there is continuing an Event of Default, in such Lender's sole option, at any time and from time to time, the Borrowers and each Subsidiary thereof hereby authorizes the Lender to apply any such deposit balances now or hereafter in the possession of the Lender and/or a credit in the amount of any such other liability to the payment of the Obligations owing to the Lender under the Loan Documents. The provisions of this Section 10.11 shall not be deemed or construed to limit rights of set-off or liens or similar rights which the Lender may otherwise have by reason of applicable law or otherwise.
Every provision of this Agreement and each of the other Loan Documents is intended to be severable, and if any term or provision of this Agreement or any of the other Loan Documents shall be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby, and any invalidity, illegality or unenforceability in any jurisdiction shall not affect the validity, legality or enforceability of any such term or provision in any other jurisdiction.
It is the intention of the parties hereto that the covenants and obligations of the Borrowers and their Subsidiaries and the rights and remedies of the Lender hereunder and under the other Loan Documents shall not merge with or be extinguished by the entry of judgment hereunder or thereunder, and such covenants, obligations, rights and remedies shall survive any entry of judgment until payment in full of the Loans (other than contingent indemnification obligations). All Obligations under the Loan Documents shall continue to apply with respect to and during the collection of amounts due under the Loan Documents or the proof and allowability of any claim arising under this Agreement or any other Loan Document, whether in bankruptcy or receivership proceedings or otherwise, and in any workout, restructuring or in connection with the protection, preservation, exercise or enforcement of any of the terms of this Agreement or of any rights under this Agreement or under any other Loan Document or in connection with any foreclosure, collection or bankruptcy proceedings. Without limiting the generality of the foregoing, post-judgment interest rate shall be the interest rate provided herein.
Whether or not any fundings are made under this Agreement, the Borrowers shall unconditionally upon demand, pay or reimburse the Lender for, and indemnify and save the
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Lender and its Affiliates, officers, directors, employees, agents, attorneys, shareholders and consultants (collectively, "Indemnitees") harmless against, any and all liabilities, losses, costs, expenses, claims and/or charges (including, without limitation, reasonable and documented, out of pocket fees and disbursements of legal counsel, accountants, investigators and other experts) imposed on, incurred by or asserted against such Indemnitees and arising out of, relating to or connected with: (a) the negotiation, preparation, execution and delivery of the Loan Documents and any waiver, amendment or consent under or with respect to any of the Loan Documents whether or not executed, (b) consulting with respect to any matter in any way arising out of, related to, or connected with, the Loan Documents, including (i) the protection, preservation, exercise or enforcement of any of the rights of the Lender in, under or related to the Loan Documents or (ii) the performance of any of the obligations of the Lender under or related to the Loan Documents, (c) protecting, preserving, exercising or enforcing any of the rights of the Lender in, under or related to the Loan Documents, (d) all transfer, documentary, stamp and similar taxes, and all recording and filing fees and taxes payable in connection with, arising out of, or in any way related to, the execution, delivery and performance of the Loan Documents or the making of the Loans; and (e) commissions or claims by or on behalf of brokers, finders or agents not retained by the Lender provided, however, with respect to liabilities, losses, costs, expenses, claims and/or charges referred to in clauses (a) through (d) above to the extent that they are imposed on, incurred by or asserted against the Lender, the indemnification of such Lender pursuant to this Section 10.14 shall be limited to amounts that accrue after the occurrence of an Event of Default and provided, further, that, unless an Event of Default shall have occurred and be continuing, the Borrowers shall not be responsible for any costs or expenses (including legal fees) in connection with the assignment or participation of any interests by the Lender hereunder.
Without limiting the generality of the foregoing, the Borrowers hereby indemnify and agree to defend and hold harmless each Indemnitee from and against any and all claims, actions, causes of action, liabilities, penalties, fines, damages, judgments, losses, suits, expenses, legal or administrative proceedings, interest, reasonable and documented out of pocket costs and expenses (including court costs and attorneys', consultants' and experts' fees) arising out of or in any way relating to: (i) the use, handling, management, production, treatment, processing, storage, transfer, transportation, disposal, Release or threat of Release of any Hazardous Substance by or on behalf of, Borrowers or any Subsidiary thereof; (ii) the presence of Hazardous Substances on, about, beneath or arising from any premises owned or occupied by the Borrowers or any Subsidiary thereof (herein collectively, the "Premises"); (iii) the failure of Borrowers or any of their Subsidiaries or Affiliates or any occupant of any Premises to comply with the Environmental Laws; (iv) Borrowers' breach of any of the representations, warranties and covenants contained herein or in any Loan Documents; (v) Regulatory Actions (as hereinafter defined) and Third Party Claims (as hereinafter defined); or (vi) the imposition or recording of a Lien against any property of Borrowers, their Affiliates and Subsidiaries in connection with any Release at, on or from any Premises or any activities undertaken on or occurring at such property, or arising from such property or pursuant to any Environmental Law. Borrowers' indemnity and defense obligations under this section shall include, without limitation and whether foreseeable or unforeseeable, any and all costs related to any Remedial Action. "Regulatory Action" means any notice of violation, citation, complaint, request for information, order, directive, compliance schedule, notice of claim, consent decree, action, litigation or proceeding brought or instituted by any governmental authority under or in connection with any
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Environmental Law involving the Borrowers any Subsidiary of the Borrowers, or any occupant of any of the Premises or involving any of the Premises or any activities undertaken on or occurring at any Premises. "Third Party Claims" means claims by a party (other than a party to this Agreement and other than Regulatory Actions) based on negligence, trespass, strict liability, nuisance, toxic tort or detriment to human health or welfare due to Hazardous Substances on, about, beneath or arising from any premises of Borrowers, their Affiliates or Subsidiaries or in any way related to any alleged violation of any Environmental Laws or any activities undertaken on or occurring at any premises of Borrowers, their Affiliates or Subsidiaries.
The indemnities contained herein shall survive repayment of the Loans and satisfaction, release, and discharge of the Loan Documents, whether through full payment of the Loans, foreclosure, deed in lieu of foreclosure or otherwise.
The foregoing amounts are in addition to any other amounts which may be due and payable to the Lender under this Agreement. A certification by the Lender hereunder of the amount of liabilities, losses, costs, expenses, claims and/or charges shall be conclusive, absent manifest error. Notwithstanding the foregoing, the Borrowers shall not be required to indemnify any Indemnitee with respect to a claim or liability that arises as the result of the gross negligence or willful misconduct of such Indemnitee.
(a) With respect to any matters which may be heard before a court of competent jurisdiction under paragraph (c) of the preceding Section 10.15), the Borrowers and their Subsidiaries hereby consent to the jurisdiction and venue of the courts of the Commonwealth of Pennsylvania or of any federal court located in such state, waive personal service of any and all process upon it and consents that all such service of process be made by certified or registered mail directed to the Borrowers or such Subsidiaries at the address provided for in Section 10.1 and service so made shall be deemed to be completed upon actual receipt. The Borrowers and their Subsidiaries hereby waive the right to contest the jurisdiction and venue of the courts located in the Commonwealth of Pennsylvania on the ground of inconvenience or otherwise and, further, waive any right to bring any action or proceeding against the Lender in any court outside the Commonwealth of Pennsylvania. The provisions of this Section 10.16 shall not limit or otherwise affect the right of the Lender to institute and conduct an action in any other appropriate manner, jurisdiction or court. |
OTHER PERSON WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. |
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(2) To the Borrowers' actual Knowledge after making due inquiry, neither the Borrower, nor any Controlled Entity has, within the last five years, directly or indirectly offered, promised, given, paid or authorized the offer, promise, giving or payment of anything of value to a Governmental Official or a commercial counterparty for the purposes of: (i) influencing any act, decision or failure to act by such Governmental Official in his or her official capacity or such commercial counterparty, (ii) inducing a Governmental Official to do or omit to do any act in violation of the Governmental Official's lawful duty, or (iii) inducing a Governmental Official or a commercial counterparty to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity; in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage in violation of any applicable law or regulation or which would cause any holder of the Note to be in violation of any law or regulation applicable to such holder; and
(3) No part of the proceeds from the sale of the Note hereunder will be used, directly or indirectly, for any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage. The Borrowers and their Subsidiaries have established procedures and controls which each reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Borrowers and each Controlled Entity is and will continue to be in compliance with all applicable current and future Anti-Corruption Laws.
The Borrowers will not and will not permit any Controlled Entity (a) to become (including by virtue of being owned or controlled by
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a Blocked Person), own or control a Blocked Person or any Person that is the target of sanctions imposed by the United Nations or by the European Union, or (b) directly or indirectly to have any investment in or engage in any dealing or transaction (including, without limitation, any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (i) would cause any purchaser or holder to be in violation of any law or regulation applicable to such holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions, or (c) to engage, nor shall any Affiliate of either engage, in any activity that could subject such Person or any purchaser or holder to sanctions under CISADA or any similar law or regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions.
hold security from any other Borrower for the payment of Indebtedness incurred under the Line of Credit extended under this Agreement, and exchange, enforce, waive, subordinate or release any such security; (iii) apply such security and direct the order or manner of sale thereof, including without limitation, a non-judicial sale permitted by the terms of the controlling security agreement, mortgage, or deed of trust, as Lender in its discretion may determine; (iv) release or substitute any one or more of the endorsers or any guarantors of any facility hereunder, or any other party obligated thereon; and (v) apply payments received by Lender from any other Borrower to indebtedness of such other Borrower to Lender other than to the Line of Credit extended under this Agreement. |
disposing of, any such security; or (vii) any modification of the Indebtedness of any other Borrower for the Line of Credit extended under this Agreement, including without limitation the renewal, extension, acceleration or other change in time for payment of, or other change in the terms of, the indebtedness of any Borrower for the Line of Credit extended under this Agreement, including increase or decrease of the rate of interest thereon. |
(k) Notwithstanding any other provisions set forth herein, each Borrower agrees that whenever an Officer's Compliance Certificate is required or permitted to be submitted to the Lender under the terms of this Agreement, such Officer's Compliance Certificate may be prepared, executed and submitted to the Lender by the chief financial officer or other authorized officer of Xxxx Markets, Inc. on behalf of (and to be binding upon) each and all of the Borrowers and the Lender agrees to accept as properly executed the submission of a Certificate executed solely by such officer on behalf of all of the Borrowers. |
[THREE SIGNATURE PAGES FOLLOW]
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[PAGE 58 INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Revolving Credit Agreement to be duly executed by their respective, duly authorized officers as of the date first above written.
BORROWER:
XXXX MARKETS, INC.
By: _________________________
Name:Xxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer and Treasurer
BORROWER:
DUTCH VALLEY FOOD COMPANY, LLC
By: __________________________
Name:Xxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer and Treasurer
BORROWER:
WEIS TRANSPORTATION, LLC
By: ____________________________
Name:Xxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer and Treasurer
[Borrower signature page one of two to Revolving Credit Agreement between Xxxx Markets, Inc., Dutch Valley Food Company, LLC, Weis Transportation, LLC and WMK Financing, Inc. and Xxxxx Fargo Bank, National Association dated effective September 1, 2016.]
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BORROWER:
WMK FINANCING, INC.
By: __________________________
Name:Xxxx X. Xxxxx
Title: President, Treasurer and Secretary
[Borrower signature page two of two to Revolving Credit Agreement between Xxxx Markets, Inc., Dutch Valley Food Company, LLC, Weis Transportation, LLC and WMK Financing, Inc. and Xxxxx Fargo Bank, National Association dated effective September 1, 2016.]
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LENDER:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: __________________________
Name:Xxxx Xxxxxxx
Title:Vice President
[Lender signature page one of one to Revolving Credit Agreement between Xxxx Markets, Inc., Dutch Valley Food Company, LLC, Weis Transportation, LLC and WMK Financing, Inc. and Xxxxx Fargo Bank, National Association dated effective September 1, 2016.]
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