LOAN AGREEMENT
BY AND BETWEEN
U.S. BANK NATIONAL ASSOCIATION
AND
XXXXXXXX ADVISORS, INC.
March 15, 2004
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.......................................................1
1.01 Definitions.................................................1
1.02 Continuance of an Event of Default.........................13
1.03 Accounting Terms and Determinations........................13
SECTION 2. LOAN.............................................................13
2.01 Loan Commitment............................................13
2.02 Note.......................................................13
2.03 Interest Rates.............................................14
2.04 Computation of Interest....................................14
2.05 Fees.......................................................14
2.06 Application of Payments....................................14
2.07 Prepayments................................................14
2.08 General Provisions as to Payments..........................15
2.09 Capital Adequacy...........................................15
2.10 Survival of Indemnities....................................16
2.11 Taxes......................................................16
SECTION 3. PRECONDITIONS TO LOAN CLOSING....................................16
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................18
4.01 Existence and Power........................................18
4.02 Authorization..............................................18
4.03 Binding Effect.............................................19
4.04 Financial Statements.......................................19
4.05 Litigation.................................................19
4.06 Pension and Welfare Plans..................................19
4.07 Tax Returns and Payment....................................20
4.08 Subsidiaries...............................................20
4.09 Compliance With Other Instruments; None Burdensome.........20
4.10 Other Debt, Guarantees and Capitalized Leases..............21
4.11 Labor Matters..............................................21
4.12 Title to Property..........................................21
4.13 Regulation U...............................................21
4.14 Multi-Employer Pension Plan Amendments Act of 1980.........21
4.15 Investment Company Act; Public Utility Holding
Company Act of 1935..........,,,,,,,,,,,...................21
4.16 Patents, Trademarks, Copyrights, Licenses, Etc.............21
4.17 Environmental and Safety and Health Matters................21
4.18 Investments................................................22
4.19 No Default.................................................22
4.20 Government Contracts.......................................22
4.21 [RESERVED].................................................22
4.22 Xxxxxxxx Advisory Agreements...............................22
4.23 Disclosure.................................................23
SECTION 5. COVENANTS........................................................23
5.01 Affirmative Covenants of Borrower..........................23
(a) Information.......................................23
(b) Payment of Indebtedness...........................24
(c) Books and Records, Consultations and Inspections..25
(d) Payment of Taxes..................................25
(e) Payment of Claims.................................25
(f) Existence.........................................25
(g) Maintenance of Property...........................26
(h) Compliance with Laws, Regulations, Etc............26
(i) Environmental Matters.............................26
(j) ERISA Compliance..................................26
(k) Notices...........................................27
(l) Insurance.........................................28
(m) Further Assurances................................28
(n) Accountant........................................28
(o) Financial Covenants...............................28
(p) Subsidiaries......................................29
5.02 Negative Covenants of Borrower.............................30
(a) Limitation on Indebtedness........................30
(b) Limitation on Liens...............................30
(c) Consolidation, Merger, Sale of Property, Etc......31
(d) Sale and Leaseback Transactions...................31
(e) Sale or Discount of Accounts......................31
(f) Transactions with Affiliates......................31
(g) Changes in Nature of Business.....................31
(h) Fiscal Year.......................................31
(i) Stock Redemptions and Distributions...............31
(j) Pension Plans.....................................31
(k) Subordinated Indebtedness.........................32
(l) Restricted Investments, Acquisitions..............32
(m) Subsidiaries......................................32
(n) Limitations on Restrictive Agreements.............32
5.03 Use of Proceeds............................................32
SECTION 6. EVENTS OF DEFAULT................................................32
SECTION 7. GENERAL..........................................................35
7.01 No Waiver..................................................35
7.02 Right of Set-Off...........................................35
7.03 Cost and Expenses..........................................35
7.04 Environmental Indemnity....................................36
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7.05 General Indemnity..........................................36
7.06 Authority to Act...........................................36
7.07 Notices....................................................37
7.08 Consent to Jurisdiction; Waiver of Jury Trial..............37
7.09 Governing Law..............................................37
7.10 Amendments and Waivers.....................................37
7.11 References; Headings for Convenience.......................37
7.12 Successors and Assigns.....................................38
7.13 Notice Required byss.432.045 R.S. Mo.; Entire Agreement.....38
7.14 Severability...............................................38
7.15 Counterparts...............................................38
7.16 Resurrection of Borrower's Obligations.....................38
7.17 Independence of Covenants..................................38
7.18 Subsidiary Reference.......................................38
7.19 Compliance with Usury Laws.................................39
Schedules
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4.05 Litigation
4.10 Other Debt, Guarantees and Capitalized Leases
4.12 Existing Liens
4.16 Patents, Trademarks, Copyrights and Licenses
4.17 Environmental and Health and Safety Matters
4.18 Existing Investments
4.22 Xxxxxxxx Advisory Agreements
5.02(n) Restrictive Agreements
Exhibits
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A Form of Note
B Form of Certificate
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LOAN AGREEMENT
--------------
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
March 15, 2004, by and between XXXXXXXX ADVISORS, INC., a California corporation
("Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
("Lender"), and has reference to the following facts and circumstances:
A. Borrower has applied for a term loan from Lender in the original
principal amount not to exceed the lesser of $10,000,000.00, or the Xxxxxxx
Acquisition Purchase Price (defined below).
B. Lender is willing to make said term loan available to Borrower
upon, and subject to, the terms, provisions and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby mutually covenant and agree as follows:
SECTION 1. DEFINITIONS.
-----------------------
1.01 Definitions. In addition to the terms defined elsewhere in this
Agreement or in any Exhibit or Schedule hereto, when used in this Agreement, the
following terms shall have the following meanings (such meanings shall be
equally applicable to the singular and plural forms of the terms used, as the
context requires):
Accounts shall mean all trade accounts receivable of Borrower arising
out of the bona fide sale of goods and/or performance of services in the
ordinary course of Borrower's business which have been invoiced by Borrower.
Acquisition shall mean any transaction or series of related
transactions, consummated on or after the date of this Agreement, by which
Borrower or any Subsidiary directly or indirectly (a) acquires all or
substantially all of the assets comprising one or more business units of any
other Person, whether through purchase of assets, merger or otherwise or (b)
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least (i) a majority (in number of votes) of the stock and/or
other securities of a corporation having ordinary voting power for the election
of directors (other than stock and/or other securities having such power only by
reason of the happening of a contingency), (ii) a majority (by percentage of
voting power) of the outstanding partnership interests of a partnership, (iii) a
majority (by percentage of voting power) of the outstanding membership interests
of a limited liability company or (iv) a majority of the ownership interests in
any organization or entity other than a corporation, partnership or limited
liability company.
Affiliate shall mean any Person (a) which directly or indirectly
through one or more intermediaries controls, is controlled by or is under common
control with Borrower or any Subsidiary, (b) which directly or indirectly
through one or more intermediaries beneficially owns or holds or has the power
to direct the voting power of Five Percent (5%) or more of any class of capital
stock or other equity interests of Borrower or any Subsidiary, (c) which has
Five Percent (5%) or more of any class of its capital stock or other equity
interests beneficially owned or held, directly or indirectly, by Borrower or any
Subsidiary or (d) who is a director, officer, manager or employee of Borrower or
any Subsidiary; provided, however, that no investment company registered under
the Investment Company Act shall be
an Affiliate of any Person except if such Person beneficially owns or holds or
has the power to direct the voting power of more than Fifty Percent (50%) or
more of any class of capital stock or other equity interests of such investment
company; and provided further that ownership interests owned or held by any
investment company registered under the Investment Company Act shall not be
considered when determining whether a Person is an Affiliate of another Person.
For purposes of this definition, "control" shall mean the power to direct the
management and policies of a Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
Attorneys' Fees shall mean the reasonable fees (and costs, charges and
expenses related thereto) of the attorneys (and all paralegals, accountants and
other staff employed by such attorneys) employed by Lender (excluding attorneys
and paralegals who are employees of Lender or any Affiliate of Lender) from time
to time (a) in connection with the negotiation, preparation, execution,
delivery, amendment, modification, extension, renewal, administration and/or
enforcement of this Agreement and/or any other Transaction Document, (b) in
connection with the preparation, negotiation or execution of any waiver or
consent with respect to this Agreement and/or any other Transaction Document,
(c) in connection with any Default or Event of Default under this Agreement, (d)
to represent Lender in any litigation, contest, dispute, suit or proceeding, or
to commence, defend or intervene in any litigation, contest, dispute, suit or
proceeding, or to file any petition, complaint, answer, motion or other pleading
or to take any other action in or with respect to any litigation, contest,
dispute, suit or proceeding (whether instituted by Lender, Borrower or any other
Person and whether in bankruptcy or otherwise) in any way or respect relating to
this Agreement, any other Transaction Document, Borrower, any other Obligor, any
Subsidiary, any Collateral and/or any Third Party Collateral, (e) during a
Default or Event of Default, to protect, collect, lease, sell, take possession
of or liquidate any Collateral or any Third Party Collateral, (f) during a
Default or Event of Default, to attempt to enforce any security interest in or
other Lien upon any Collateral or any Third Party Collateral or to give any
advice with respect to such enforcement and/or (g) during a Default or Event of
Default, to enforce any of the rights or remedies of Lender to collect any of
Borrower's Obligations and/or any Guarantee thereof; provided, that such
Attorneys' Fees shall be determined on the basis of rates then generally
applicable to the attorneys (and all paralegals, accountants and other staff
employed by such attorneys) employed by Lender, which may be higher than the
rates such attorneys (and all paralegals, accountants and other staff employed
by such attorneys) charge Lender in certain matters.
Borrower's Obligations shall mean any and all present and future
indebtedness (principal, interest, fees, collection costs and expenses, and
other amounts), liabilities and obligations (including, without limitation,
guaranty obligations, letter of credit reimbursement obligations and indemnity
obligations) of Borrower to Lender evidenced by or arising under or in respect
of this Agreement, the Note, any other Transaction Document and/or any other
agreement, document or instrument heretofore, now or hereafter executed and
delivered by Borrower to Lender in connection with this Agreement, the Note, any
other Transaction Document, in each case whether now existing or hereafter
arising, absolute or contingent, joint and/or several, secured or unsecured,
direct or indirect, expressed or implied in law, contractual or tortious,
liquidated or unliquidated, at law or in equity, or otherwise, and whether
created directly or acquired by Lender by assignment or otherwise, and to the
extent provided herein,any and all costs of collection and/or Attorneys' Fees
from time to time incurred in connection therewith.
Business Day shall mean any day except a Saturday, Sunday or legal
holiday observed by Lender.
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Capital Expenditure shall mean any expenditure to purchase or otherwise
acquire a fixed asset (other than a Capitalized Lease Obligation) which, in
accordance with GAAP, is required to be capitalized on the balance sheet of the
Person making the same.
Capital Transaction shall mean any issuance by Borrower or any
Subsidiary of (a) shares of its capital stock, membership interests, or other
ownership interests, (b) any shares of its capital stock, membership interests,
or other ownership interests, pursuant to the exercise of options or warrants,
(excluding shares of capital stock issued pursuant to Borrower's existing stock
option plans that allow option grants to any employees and/or directors of
Borrower or any of its Subsidiaries or Affiliates, provided that any such stock
option plans may not be amended without consent of Lender if such amendment
would have a Material Adverse Effect), or (c) any shares of its capital stock,
membership interests, or other ownership interests pursuant the conversion of
any debt securities to equity.
Capitalized Lease shall mean any lease of Property, whether real and/or
personal, by a Person as lessee which in accordance with GAAP is required to be
capitalized on the balance sheet of such Person.
Capitalized Lease Obligations of any Person shall mean, as of the date
of any determination thereof, the amount at which the aggregate rental
obligations due and to become due under all Capitalized Leases under which such
Person is a lessee would be reflected as a liability on a balance sheet of such
Person in accordance with GAAP.
CERCLA shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ss.ss.9601 et seq., and as the same
may from time to time be further amended.
Change of Control Event shall mean each and every issue, sale, transfer
or other disposition, directly or indirectly, of shares of capital stock of
Borrower which, after giving effect thereto, results in either: (a) Xxxx X.
Xxxxxxxx, his spouse, lineal descendants, spouses of his lineal descendants, his
estate, or any trust established primarily for his benefit and/or charitable
purposes, legally or beneficially owning or controlling in the aggregate less
than Twenty Five Percent (25%) (by number of votes) of the Voting Stock of
Borrower; or (b) the Principal Shareholders legally or beneficially owning or
controlling in the aggregate less than Thirty Percent (30%) (by number of votes)
of the Voting Stock of Borrower, in each case excluding the effects of dilution
due to the exercise of stock options issued under stock option plans allowed by
this Agreement.
Code shall mean the Internal Revenue Code of 1986, 26 U.S.C. ss.1, et
seq., as amended, and any successor statute of similar import, together with the
regulations and rules promulgated thereunder, in each case as in effect from
time to time. References to sections of the Code shall be construed to also
refer to any successor sections.
Collateral shall mean any Property of Borrower which now or at any time
hereafter secures the payment or performance of any of Borrower's Obligations,
excluding the Xxxxxxxx Advisory Agreements, but including any payments due
thereunder and any proceeds thereof.
Consolidated Debt shall mean, as of the date of any determination
thereof, all Debt of Borrower and its Subsidiaries as of such date, determined
on a consolidated basis and in accordance with GAAP.
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Consolidated Debt to Consolidated EBITDA Ratio shall mean, as of the
last day of any fiscal quarter of Borrower, the ratio of (a) Consolidated Debt
as of such day to (b) Consolidated EBITDA for the four (4) consecutive fiscal
quarter period of Borrower ending on such day.
Consolidated EBITDA shall mean, for the period in question, the sum of
(a) Consolidated Net Income during such period plus (b) to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense during such period, plus (ii) all provisions for any federal,
state, local and/or foreign income taxes made by Borrower and its Subsidiaries
during such period (whether paid or deferred), plus (iii) all depreciation and
amortization expenses of Borrower and its Subsidiaries during such period, plus
(iv) any extraordinary losses during such period plus (v) any losses from the
sale or other disposition of Property other than in the ordinary course of
business during such period minus (c) to the extent added in determining such
Consolidated Net Income, the sum of (i) any extraordinary gains during such
period plus (ii) any gains from the sale or other disposition of Property other
than in the ordinary course of business during such period, all determined on a
consolidated basis and in accordance with GAAP.
Consolidated Fixed Charge Coverage Ratio shall mean, for the period in
question, the ratio of: (a) Consolidated EBITDA during such period minus the sum
of Borrower's and its Subsidiaries' (i) Capital Expenditures, (ii) income taxes
paid or payable, and (iii) Distributions; to (b) Consolidated Fixed Charges
during such period, all determined on a consolidated basis and in accordance
with GAAP.
Consolidated Fixed Charges shall mean, for the period in question, the
sum of (a) the aggregate amount of all principal payments required to be made by
Borrower and its Subsidiaries on all Debt during such period (including the
principal portion of payments in respect of Capitalized Leases), plus (b)
Consolidated Interest Expense during such period, all determined on a
consolidated basis and in accordance with GAAP.
Consolidated Interest Expense shall mean, for the period in question,
without duplication, all gross interest expense of Borrower and its Subsidiaries
(including, without limitation, all commissions, discounts and/or related
amortization and other fees and charges owed by Borrower and its Subsidiaries
with respect to letters of credit, the net costs associated with interest swap
obligations of Borrower and its Subsidiaries, capitalized interest expense, the
interest portion of Capitalized Lease Obligations and the interest portion of
any deferred payment obligation) during such period, all determined on a
consolidated basis and in accordance with GAAP.
Consolidated Net Income shall mean the after-tax net income (or loss)
of Borrower and its Subsidiaries for the period in question, determined on a
consolidated basis and in accordance with GAAP.
Debt of any Person shall mean, as of the date of determination thereof,
the sum of (a) all Indebtedness of such Person for borrowed money or which has
been incurred in connection with the purchase or other acquisition of Property
(other than unsecured trade accounts payable incurred in the ordinary course of
business) plus (b) all Capitalized Lease Obligations of such Person plus (c) the
aggregate undrawn face amount of all letters of credit and/or surety bonds
issued for the account and/or upon the application of such Person together with
all unreimbursed drawings with respect thereto plus (d) all Guarantees by such
Person of Debt of others.
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Default shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
Distribution in respect of any corporation or other entity shall mean:
(a) dividends or other distributions (other than stock dividends and stock
splits) on or in respect of any of the capital stock or other equity interests
of such corporation or other entity; and (b) the redemption, repurchase or other
acquisition of any capital stock or other equity interests of such corporation
or other entity or of any warrants, rights or other options to purchase any such
capital stock or other equity interests (excluding the redemption, repurchase or
other acquisition of any capital stock in connection with the exercise of stock
options issued to any employee or director of Borrower or any of its
Subsidiaries or Affiliates pursuant to any existing stock option plan that
allows option grants to any employees, provided, that, any existing stock option
plans relating to said stock options are not amended without Lender's consent if
such amendment would have a Material Adverse Effect).
Environmental Claim shall mean any administrative, regulatory or
judicial action, judgment, order, consent decree, suit, demand, demand letter,
claim, Lien, notice of noncompliance or violation, investigation or other
proceeding arising (a) pursuant to any Environmental Law or governmental or
regulatory approval issued under any such Environmental Law, (b) from the
presence, use, generation, storage, treatment, Release, threatened Release,
disposal, remediation or other existence of any Hazardous Substance, (c) from
any removal, remedial, corrective or other response action pursuant to an
Environmental Law or the order of any governmental or regulatory authority or
agency, (d) from any third party seeking damages, contribution, indemnification,
cost recovery, compensation, injunctive or other relief in connection with a
Hazardous Substance or arising from alleged injury or threat of injury to
health, safety, natural resources or the environment or (e) from any Lien
against any Property owned, leased or operated by Borrower or any Subsidiary in
favor of any governmental or regulatory authority or agency in connection with a
Release, threatened Release or disposal of a Hazardous Substance.
Environmental Law shall mean any Federal, state, local, foreign or
other statute, law, rule, regulation, order, consent decree, judgment, permit,
license, code, covenant, deed restriction, common law, treaty, convention,
ordinance or other requirement relating to public health, safety or the
environment, including, without limitation, those relating to Releases,
discharges or emissions to air, water, land or groundwater, to the withdrawal or
use of groundwater, to the use and handling of polychlorinated biphenyls or
asbestos, to the disposal, treatment, storage or management of hazardous or
solid waste, Hazardous Substances or crude oil, or any fraction thereof, to
exposure to toxic or hazardous materials, to the handling, transportation,
discharge or release of gaseous or liquid Hazardous Substances and any rule,
regulation, order, notice or demand issued pursuant to such law, statute or
ordinance, in each case applicable to any of the Property owned, leased or
operated by Borrower or any Subsidiary or the operation, construction or
modification of any such Property, including, without limitation, the following:
CERCLA, RCRA, the Hazardous Materials Transportation Act, as amended, the
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1976,
the Safe Drinking Water Control Act, the Clean Air Act of 1966, as amended, the
Toxic Substances Control Act of 1976, the Occupational Safety and Health Act of
1970, as amended, the Emergency Planning and Community Right-to-Know Act of
1986, the National Environmental Policy Act of 1975, the Oil Pollution Act of
1990 and any similar or implementing state or local law, and any state or local
statute and any further amendments to these laws providing for financial
responsibility for cleanup or other actions with respect to the Release or
threatened Release of Hazardous Substances or crude oil, or any fraction thereof
and all rules, regulations, guidance documents and publication promulgated
thereunder.
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ERISA shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed to also refer to any successor sections.
ERISA Affiliate shall mean any corporation, trade or business that is,
along with Borrower or any Subsidiary, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
Sections 414(b) and 414(c), respectively, of the Code or Section 4001 of ERISA.
Event of Default shall have the meaning ascribed thereto in Section 6.
GAAP shall mean, at any time, generally accepted accounting principles
at such time in the United States.
Guarantee by any Person shall mean any obligation (other than
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business), contingent or otherwise, of such Person guaranteeing, or in
effect guaranteeing, any Indebtedness, liability, dividend or other obligation
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through an
agreement, contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or obligation or any Property constituting security therefor, (b)
to advance or supply funds (i) for the purchase or payment of such Indebtedness
or obligation, (ii) to maintain working capital or other balance sheet condition
or otherwise to advance or make available funds for the purchase or payment of
such Indebtedness or obligation, (iii) to lease property or to purchase
securities or other property or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation of the ability of the primary
obligor to make payment of the Indebtedness or obligation or (iv) otherwise to
assure the owner of the Indebtedness or obligation of the primary obligor
against loss in respect thereof. For the purposes of all computations made under
this Agreement, a Guarantee in respect of any Indebtedness for borrowed money
shall be deemed to be Indebtedness equal to the then outstanding principal
amount of such Indebtedness for borrowed money which has been guaranteed or such
lesser amount to which the maximum exposure of the guarantor shall have been
specifically limited, and a Guarantee in respect of any other obligation or
liability or any dividend shall be deemed to be Indebtedness equal to the
maximum aggregate amount of such obligation, liability or dividend or such
lesser amount to which the maximum exposure of the guarantor shall have been
specifically limited. Guarantee when used as a verb shall have a correlative
meaning.
Hazardous Substance shall mean any hazardous or toxic material,
substance or waste, pollutant or contaminant which is regulated under any
Environmental Law or any other statute, law, ordinance, rule or regulation of
any Federal, state, local, foreign or other body, instrumentality, agency,
authority or official having jurisdiction over any of the Property owned, leased
or operated by Borrower or any Subsidiary or its use, including, without
limitation, any material, substance or waste which is: (a) defined as a
hazardous substance under Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. ss.ss.1317), as amended; (b) regulated as a hazardous waste under
RCRA, as amended; (c) defined as a hazardous substance under Section 101 of
CERCLA, as amended; or (d) defined or regulated as a hazardous substance or
hazardous waste under any rules or regulations promulgated under any of the
foregoing statutes.
Xxxxxxxx Advisory Agreements shall have the meaning ascribed thereto in
Section 4.22.
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Xxxxxxxx Funds shall mean those investment companies registered under
the Investment Company Act for which Borrower serves as investment advisor, and
which as of the effective date of this Agreement are the: (a) Xxxxxxxx Balanced
Fund; (b) Xxxxxxxx Cornerstone Growth Fund; (c) Xxxxxxxx Cornerstone Value Fund;
(d) Xxxxxxxx Focus 30 Fund; and (e) Xxxxxxxx Total Return Fund.
Highest Lawful Rate shall have the meaning ascribed thereto in Section
7.19.
Indebtedness shall mean, with respect to any Person, without
duplication, all indebtedness, liabilities and obligations of such Person which
in accordance with GAAP are required to be classified upon a balance sheet of
such Person as liabilities of such Person, and in any event shall include all
(a) obligations of such Person for borrowed money or which have been incurred in
connection with the purchase or other acquisition of Property, (b) obligations
secured by any Lien on, or payable out of the proceeds of or production from,
any Property owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligations, (c) indebtedness, liabilities
and obligations of third parties, including joint ventures and partnerships of
which such Person is a venturer or general partner, recourse to which may be had
against such Person, (d) obligations created or arising under any conditional
sale or other title retention agreement with respect to Property acquired by
such Person, notwithstanding the fact that the rights and remedies of the
seller, lender or lessor under such agreement in the event of default are
limited to repossession or sale of such Property, (e) Capitalized Lease
Obligations of such Person, (f) the aggregate undrawn face amount of all letters
of credit and/or surety bonds issued for the account of and/or upon the
application of such Person together with all unreimbursed drawings with respect
thereto and (g) indebtedness, liabilities and obligations of such Person under
Guarantees.
Investment shall mean any investment (including, without limitation,
any loan or advance) by Borrower or any Subsidiary in or to any Person, whether
payment therefor is made in cash or capital stock or other equity interests of
Borrower or any Subsidiary, and whether such investment is by acquisition of
stock or other equity interests or Indebtedness, or by loan, advance, transfer
of Property out of the ordinary course of business, capital contribution, equity
or profit sharing interest, extension of credit on terms other than those normal
in the ordinary course of business or otherwise.
Investment Advisers Act shall mean the Investment Advisers Act of 1940,
15 U.S.C. ss.80b-1, et seq., as amended, and all rules and regulations and rules
promulgated thereunder.
Investment Company Act shall mean the Investment Company Act of 1940,
15 U.S.C. ss.80a-1, et seq., as amended, and all rules and regulations and rules
promulgated thereunder.
Lien shall mean any interest in any Property securing an obligation
owed to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on common law, statute or contract, including, without
limitation, any security interest, mortgage, deed of trust, pledge,
hypothecation, judgment lien or other lien or encumbrance of any kind or nature
whatsoever, any conditional sale or trust receipt, any Capitalized Lease,
consignment or bailment for security purposes and any Capitalized Lease. The
term "Lien" shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, Capitalized Leases and other
title exceptions and encumbrances affecting Property.
Xxxxxxx shall mean Xxxxxxx Asset Management, Inc., a Michigan
corporation.
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Xxxxxxx Acquisition Agreement shall mean the Asset Purchase Agreement
dated September 10, 2003, executed by Borrower, as Buyer, and Xxxxxxx, as
Seller, and all amendments thereto.
Xxxxxxx Acquisition Purchase Price shall mean the "Purchase Price" as
defined in Section 2.2 of the Xxxxxxx Acquisition Agreement.
Xxxxxxx Funds shall mean shall mean the following investment companies
registered under the Investment Company Act for which Xxxxxxx serves as
investment advisor: (a) Xxxxxxx Communications Fund; (b) Xxxxxxx Growth & Income
Fund; (c) Xxxxxxx Large-Cap Growth Fund; (d) Xxxxxxx Market Neutral Fund; and
(e) Xxxxxxx Small-Cap Growth Fund.
Loan shall have the meaning ascribed thereto in Section 2.01.
Material Adverse Effect shall mean (a) a material adverse effect on the
Properties, assets, liabilities, business, operations, prospects, income or
condition (financial or otherwise) of Borrower and all other Obligors and
Subsidiaries, taken as a whole, (b) material impairment of the ability of
Borrower and/or any other Obligor to perform any of its obligations under this
Agreement, the Note and/or any other Transaction Document or (c) material
impairment of the enforceability of the rights of, or benefits available to,
Lender under this Agreement, the Note and/or any other Transaction Document.
Moody's shall mean Xxxxx'x Investors Service, Inc.
Multi-Employer Plan shall mean a "multi-employer plan" as defined in
Section 4001(a)(3) of ERISA which is maintained for employees of Borrower, any
Subsidiary or any ERISA Affiliate or to which Borrower, any Subsidiary or any
ERISA Affiliate has contributed in the past or currently contributes.
Note shall have the meaning ascribed thereto in Section 2.02(a).
Obligor shall mean Borrower and each other Person who is or shall at
any time hereafter become primarily or secondarily liable on any of Borrower's
Obligations or who grants Lender a Lien upon any of the Property of such Person
as security for any of Borrower's Obligations and/or any Guarantee thereof.
Occupational Safety and Health Laws shall mean the Occupational Safety
and Health Act of 1970, as amended, and any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability or standards of conduct concerning employee
health and/or safety, as now or at any time hereafter in effect.
Operating Lease shall mean any lease of Property, whether real and/or
personal, by a Person as lessee which is not a Capitalized Lease.
Operating Lease Expenses shall mean with respect to any Person, for the
period in question, the aggregate amount of rental and other expenses incurred
by such Person in respect of Operating Leases during such period, all determined
in accordance with GAAP.
Other Taxes shall have the meaning ascribed thereto in Section 2.11.
- 8 -
Patent, Trademark and License Security Agreement shall mean the Patent,
Trademark and License Security Agreement dated as of the date hereof and
executed by Borrower in favor of Lender, as the same may from time to time be
amended, modified, extended, renewed or restated.
PBGC shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is established or maintained by Borrower, any
Subsidiary or any ERISA Affiliate, other than a Multi-Employer Plan.
Permitted Liens shall mean any of the following:
(a) Liens in favor of Lender;
(b) Liens on Property of a Subsidiary to secure obligations of
such Subsidiary to Borrower;
(c) Liens for property taxes and assessments or governmental
charges or levies and Liens securing claims or demands of mechanics
and materialmen, provided payment thereof is not at the time required
by Section 5.01(d) and/or 5.01(e);
(d) Liens (other than any Liens imposed by ERISA) incidental
to the conduct of business or the ownership of Properties (including
Liens in connection with worker's compensation, unemployment insurance
and other like laws, warehousemen's and attorneys' liens and statutory
landlords' liens) and Liens to secure the performance of bids, tenders
or trade contracts, or to secure statutory obligations, surety or
appeal bonds or other Liens of like general nature incurred in the
ordinary course of business and not in connection with the borrowing
of money or the purchase or other acquisition of Property; provided in
each case the obligation secured is not overdue or, if overdue, is
being contested in good faith by appropriate actions or proceedings
being diligently conducted and for which adequate reserves in
accordance with GAAP have been set aside;
(e) survey exceptions, easements, reservations, rights of
others for rights-of-way, utilities and other similar purposes and/or
zoning or other restrictions as to the use of real properties, which
are necessary or desirable for the conduct of the activities of
Borrower and its Subsidiaries or which customarily exist on properties
of Persons engaged in similar activities and similarly situated and
which do not in any event materially impair the use of such real
properties in the operation of the business of the Borrower and its
Subsidiaries;
(f) Liens existing as of the date of this Agreement and listed
on Schedule 4.12 attached hereto (without giving effect to any changes
to Schedule 4.12 made after the date of this Agreement);
(g) purchase money Liens granted to a Person financing a
Capital Expenditure permitted by this Agreement so long as (i) the
Lien granted is limited to the specific fixed assets acquired and the
proceeds thereof, (ii) the aggregate principal amount of Debt secured
- 9 -
by the Lien is not more than the acquisition cost of the specific
fixed assets on which the Lien is granted and (iii) the transaction
does not violate any other provision of this Agreement; and
(h) Capitalized Leases permitted by this Agreement and
Operating Leases;
(i) Liens consisting of judgment, judicial or other Liens,
provided that enforcement of such Liens is effectively stayed and the
obligations secured by such Liens do not exceed $500,000 in the
aggregate; and
(j) Liens arising by virtue of statutory or common law
provisions related to bankers' liens, rights of setoff or similar
rights and remedies to deposit accounts other than funds maintained
with a depository institution.
Person shall mean any individual, sole proprietorship, partnership,
joint venture, limited liability company, trust, unincorporated organization,
association, corporation, institution, entity or government (whether national,
federal, state, county, city, municipal or otherwise, including, without
limitation, any instrumentality, division, agency, body or department thereof).
Prime Rate shall mean the interest rate announced from time to time by
Lender as its "prime rate" (which rate shall fluctuate as and when said prime
rate shall change). Borrower acknowledges that such "prime rate" is a reference
rate and does not necessarily represent the lowest or best rate offered by
Lender to its customers.
Principal Shareholders shall mean and include (a) Xxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxxxx,
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, and Xxxxx Xxxxxx, and any other officers
or directors of Borrower who may now, or in the future, own Voting Stock
of Borrower (b) the spouses, lineal descendants and spouses of the lineal
descendants of the Persons listed in clause (a) above, (c) the estates of the
Persons listed in clauses (a) or (b) above who is an individual and (d) trusts
established primarily for the benefit of one or more of the Persons listed in
clauses (a) or (b) above and/or charitable purposes.
Property shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible. Properties shall
mean the plural of Property. For purposes of this Agreement, Borrower and each
Subsidiary shall be deemed to be the owner of any Property which it has acquired
or holds subject to a conditional sale agreement, financing lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes.
RCRA shall mean the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. ss.ss.6901 et seq., and any future amendments.
Release shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment, including, without limitation, the abandonment or discarding of
barrels, drums, containers, tanks and/or other receptacles containing (or
containing traces of) any Hazardous Substance.
Reportable Event shall have the meaning given to such term in ERISA.
- 10 -
Restricted Investment shall mean any Investment, or any expenditure or
any incurrence of any liability to make any expenditure for an Investment, other
than:
(a) loans and/or advances by any Subsidiary to Borrower, the
payment of which is subordinated in writing to the payment of
Borrower's Obligations in form and substance satisfactory to Lender;
(b) direct obligations of the United States of America or any
instrumentality or agency thereof, the payment of which is
unconditionally guaranteed by the United States of America or any
instrumentality or agency thereof (all of which Investments must
mature within twelve (12) months from the time of acquisition
thereof);
(c) Investments in readily marketable commercial paper which,
at the time of acquisition thereof by Borrower or any Subsidiary, is
rated A-1 or better by S&P and P-1 or better by Moody's and which
matures within 270 days from the date of acquisition thereof, provided
that the issuer of such commercial paper shall, at the time of
acquisition of such commercial paper, have a senior long-term debt
rating of at least A by S&P and Moody's;
(d) negotiable certificates of deposit or negotiable bankers
acceptances issued by Lender or any other bank or trust company
organized under the laws of the United States of America or any state
thereof, which bank or trust company (other than Lender to which such
restrictions shall not apply) is a member of both the Federal Deposit
Insurance Corporation and the Federal Reserve System and has a Thomson
BankWatch Global Issuer Rating of "B" or better (all of which
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(e) repurchase agreements, which shall be collateralized for
at least 102% of face value, issued by Lender or any other bank or
trust company organized under the laws of the United States or any
state thereof, which bank or trust company (other than Lender to which
such restrictions shall not apply) is a member of both the Federal
Deposit Insurance Corporation and the Federal Reserve System and has a
Thomson BankWatch Global Issuer Rating of "B" or better (all of which
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(f) Investments existing as of the date of this Agreement and
listed on Schedule 4.18 attached hereto (without giving effect to any
changes to Schedule 4.18 made after the date of this Agreement), and
any future retained earnings in respect thereof;
(g) Investments incurred in connection with Acquisitions
permitted by this Agreement;
(h) Investments in one or more Subsidiaries permitted by this
Agreement;
(i) cash, cash equivalents and short-term marketable
securities;
(j) extensions of credit in the nature of accounts receivable
or notes receivable in the ordinary course of business;
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(k) shares of any Xxxxxxxx Fund; and
(l) loans or advances in the usual and ordinary course of
business to officers and/or employees of Borrower or a Subsidiary for
business, travel, relocation and entertainment expenses in the
aggregate principal amount of up to $25,000 at any one time
outstanding.
S&P shall mean Standard and Poor's Ratings Group.
SEC shall mean the United States Securities and Exchange Commission.
Security Agreement shall mean that certain Security Agreement dated as
of the date hereof and executed by Borrower in favor of Lender, as the same may
from time to time be amended, modified, extended, renewed or restated.
Subordinated Indebtedness shall mean, as of the date of any
determination thereof, the aggregate principal amount of all Indebtedness of
Borrower outstanding as of such date which is subordinated in writing (either by
its terms or pursuant to a subordination agreement) to the payment and priority
of all of Borrower's Obligations in form and substance satisfactory to Lender.
Subsidiary shall mean any corporation or other entity of which more
than Fifty Percent (50%) of the issued and outstanding capital stock or other
equity interests entitled to vote for the election of directors, managers or
other persons performing similar functions (other than by reason of default in
the payment of dividends or other distributions) is at the time owned directly
or indirectly by Borrower or any Subsidiary provided, however, that no
investment company registered under the Investment Company Act shall be a
Subsidiary of any Person except if such Person beneficially owns or holds or has
the power to direct the voting power of more than Fifty Percent (50%) or more of
any class of capital stock or other equity interests of such investment company;
and provided further that ownership interests owned or held by any investment
company registered under the Investment Company Act shall not be considered when
determining whether a Person is a Subsidiary of another Person.
SYM shall mean SYM Financial Corporation, an Indiana corporation.
SYM Acquisition Agreement shall mean Asset Purchase Agreement dated as
of May 29, 2003, executed by Borrower, as Buyer, and SYM, as Seller, and all
amendments thereto.
Taxes shall have the meaning ascribed thereto in Section 2.21.
Third Party Collateral shall mean any Property of any Obligor other
than Borrower which now or at any time hereafter secure the payment or
performance of any of Borrower's Obligations and/or any Guarantee thereof.
Transaction Documents shall mean this Agreement, the Note, the Security
Agreement, the Patent, Trademark and License Security Agreement, and any and all
other agreements, documents and instruments heretofore, now or hereafter
delivered to Lender with respect to or in connection with or pursuant to this
Agreement, any Loans made hereunder, any of Borrower's Obligations and/or any
Guarantee of any of Borrower's Obligations, and executed by or on behalf of
Borrower and/or any other Obligor, including, without limitation, any agreement,
document or instrument heretofore, now or hereafter executed by Borrower with or
in favor of Lender providing for any interest rate swap, interest rate cap or
- 12 -
other interest rate hedge, all as the same may from time to time be amended,
modified, extended, renewed or restated.
Voting Stock shall mean, with respect to any corporation or other
entity, any shares of stock or other equity interests of such corporation or
other entity whose holders are entitled under ordinary circumstances to vote for
the election of directors (or Persons performing similar functions) of such
corporation or other entity (irrespective of whether at the time stock or other
equity interests of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
Welfare Plan shall mean a "welfare plan" as such term is defined in
Section 3(1) of ERISA, which is established or maintained by Borrower, any
Subsidiary or any ERISA Affiliate, other than a Multi-Employer Plan.
1.02 Continuance of an Event of Default. For purposes of this Agreement
and the other Transaction Documents, an Event of Default shall deemed to be
continuing until it is either cured by Borrower, or waived in writing by Lender
as required by Section 7.10 of this Agreement.
1.03 Accounting Terms and Determinations. Except as otherwise specified
in this Agreement, all accounting terms used in this Agreement shall be
interpreted, all accounting determinations under this Agreement shall be made
and all financial statements required to be delivered under this Agreement shall
be prepared in accordance with GAAP as in effect from time to time, applied on a
basis consistent (except for changes approved by Borrower's independent
certified public accountants) with the most recent audited financial statements
of Borrower delivered to Lender.
SECTION 2. LOAN.
----------------
2.01 Loan Commitment. Subject to the terms and conditions set forth in
this Agreement and so long as no Default or Event of Default has occurred and is
continuing, Lender agrees, on the terms and conditions set forth in this
Agreement, to make a term loan to Borrower on the date of this Agreement in the
original principal amount of the lesser of $10,000,000, or the Xxxxxxx
Acquisition Purchase Price (the "Loan"). The Loan shall mature on March 10, 2009
(on which date all unpaid principal and all accrued and unpaid interest shall
become due and payable). The principal balance of the Note shall be due and
payable in sixty (60) consecutive monthly installments as follows: fifty nine
(59) equal consecutive monthly installments, each in the amount equal to the
Loan amount divided by eighty four (84), due and payable on the tenth (10th) day
of each month commencing April 10, 2004, with the sixtieth (60th) and final
installment in the amount of the then outstanding and unpaid principal balance
of the Loan due and payable on March 10, 2009.
2.02 Note.
(a) The Loan shall be evidenced by the Term Loan Promissory Note of
Borrower, payable to the order of Lender, in the original principal amount of
the Loan, which Term Loan Promissory Note shall be in substantially the form of
Exhibit A attached hereto and incorporated herein by reference (with appropriate
insertions) (as the same may from time to time be amended, modified, extended,
renewed or restated, the "Note").
(b) Lender shall record in its books and records the date and amount of
the Loan and the date and amount of each payment of principal and/or interest
made by Borrower with respect thereto; provided, however, that the obligation of
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Borrower to repay the Loan shall be absolute and unconditional, notwithstanding
any failure of Lender to make any such recordation or any mistake by Lender in
connection with any such recordation. The books and records of Lender showing
the account between Lender and Borrower shall be admissible in evidence in any
action or proceeding.
2.03 Interest Rates.
(a) So long as no Event of Default has occurred and is continuing, the
Loan shall bear interest on the outstanding principal amount thereof for each
day until paid at an annual rate equal to the Prime Rate. So long as any Event
of Default has occurred and is continuing, the Loan shall bear interest on the
outstanding principal amount thereof for each day until paid at an annual rate
equal to Two Percent (2%) over and above the Prime Rate. Interest on the
principal balance of the Loan shall be payable monthly in arrears on the tenth
(10th) day of each month commencing April 10, 2004, and at the maturity of the
Note (whether by reason of acceleration or otherwise). From and after the
maturity of the Note, whether by reason of acceleration or otherwise, the Loan
shall bear interest, payable on demand, for each day until paid at an annual
rate equal to Two Percent (2%) over and above the Prime Rate.
(b) Lender shall determine the interest rate(s) applicable to the Loan
under this Agreement and its determination thereof shall be conclusive in the
absence of manifest error.
2.04 Computation of Interest. Interest on the principal balance of the
Loan shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
2.05 Fees.
(a) Contemporaneously with Lender making the Loan pursuant to this
Agreement, Borrower shall pay Lender a nonrefundable upfront fee in an amount
equal to the product of the Loan and 0.005.
(b) If Borrower fails to make any payment of any principal of or
interest on the Loan within ten (10) days after the date the same shall become
due and payable, whether by reason of maturity, acceleration or otherwise, in
addition to all of the other rights and remedies of Lender under this Agreement
and at law or in equity, Borrower shall pay Lender on demand with respect to
each such late payment a late fee in an amount equal to Five Percent (5%) of the
amount of each such late payment.
2.06 Application of Payments. Solely for the purpose of calculating
interest earned by Lender, payment by or for the account of Borrower shall be
applied by the Lender on account of Borrower's Obligations on the same Business
Day after a deposit of funds is made in the amount of that payment in Lender's
operating account at U.S. Bank National Association or to such other operating
account at such other financial institution as Lender shall designate in writing
in accordance with Section 7.07; provided, however, that deposits received after
12:00 noon. (St. Louis time) shall be deemed to have been received or deposited
on the following Business Day.
- 14 -
2.07 Prepayments.
(a) Borrower may, upon notice to Lender specifying that it is paying
the Loan, pay without penalty or premium the Loan in whole at any time or in
part from time to time, provided that each such prepayment must be in an
aggregate amount of at least $100,000 or any larger multiple of $50,000.
(b) In addition to the regularly scheduled principal payments of the
Loan under Section 2.01, and any voluntary prepayments made by Borrower under
Section 2.07(a), Borrower hereby covenants and agrees to pay to Lender: (i)
within ten (10) days after receipt thereof, all of the net cash proceeds
received by Borrower or any Subsidiary from any Capital Transaction; (ii) within
ten (10) days after receipt thereof, all of the net cash proceeds received by
Borrower or any Subsidiary from the issuance of any Subordinated Indebtedness
subsequent to the date of this Agreement, excluding all proceeds of Debt between
Borrower and a Subsidiary or between two Subsidiaries; and (iii) within sixty
(60) days after receipt thereof, all of the net cash proceeds received by
Borrower or any Subsidiary from the sale or other disposition of any Property
(other than proceeds used or committed to be used to acquire replacement
Property), to the extent the aggregate amount of such proceeds received by
Borrower and Subsidiaries on a combined basis during any fiscal year exceeds the
sum of $250,000.
(c) All prepayments made pursuant to this Section 2.07 shall be applied
to the remaining installments of principal of the Loan in the inverse order of
their stated maturities until the Loan is paid in full.
2.08 General Provisions as to Payments. Borrower shall make each
payment of principal of, and interest on, the Loan and of fees and all other
amounts payable by Borrower under this Agreement, not later than 12:00 noon (St.
Louis time) on the date when due and payable, in federal or other funds
immediately available to Lender at its address referred to in Section 7.07. All
payments received by Lender after 12:00 noon (St. Louis time) shall be deemed to
have been received by Lender on the next succeeding Business Day. Whenever any
payment of principal of, or interest on, the Loans or of fees shall be due on a
day which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon, at the then
applicable rate, shall be payable for such extended time.
2.09 Capital Adequacy. If, after the date of this Agreement, Lender
shall have determined in good faith that the adoption after the date of this
Agreement of any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental or regulatory authority, central bank
or comparable agency charged with the interpretation or administration thereof,
or compliance by Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or will have the effect of reducing the rate of return on
Lender's capital in respect of its obligations under this Agreement to a level
below that which Lender could have achieved but for such adoption, change or
compliance (taking into consideration Lender's policies with respect to capital
adequacy), then from time to time to the extent not already reflected in the
Prime Rate Borrower shall pay to Lender after demand such additional amount or
amounts as will compensate Lender for such reduction. All determinations made in
good faith by Lender of the additional amount or amounts required to compensate
Lender in respect of the foregoing shall be conclusive in the absence of
manifest error. In determining such amount or amounts, Lender may use any
reasonable averaging and attribution methods. Lender's claim for reimbursement
or compensation under this Section 2.09 shall be in writing and shall set forth
in reasonable detail Lender's calculation of the amount payable to Lender
hereunder. Notwithstanding the foregoing, Lender may not seek compensation or
reimburesement for amounts attributable to the period more than one (1) year
prior to the date of demand.
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2.10 Survival of Indemnities. All indemnities and all provisions
relating to reimbursement to Lender of amounts sufficient to protect the yield
to Lender with respect to the Loans, including, without limitation, Section
2.09, shall survive the payment of the Note and the other Borrower's Obligations
and the termination of this Agreement; provided, howwever, that Borrower shall
have no such indemnity obligations unless a demand is made within one (1) year
after the date upon which Lender's right to reimbursement arises.
2.11 Taxes.
(a) Any and all payments by Borrower to or for the account of Lender
under or in respect of this Agreement, the Note and/or any other Transaction
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of Lender, taxes imposed on or measured by its net income, and franchise taxes
imposed on it (all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable by Borrower to Lender under or in respect of this Agreement, the
Note and/or any other Transaction Document, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.11(a))
Lender receives an amount equal to the sum it would have received had no such
deduction of Taxes been made, (ii) Borrower shall make such deductions, (iii)
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) Borrower shall
furnish to Lender, at its address referred to in Section 7.07, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes and any other excise or property taxes, or charges or similar
levies which arise from any payment made under or in respect of this Agreement,
the Note and/or any other Transaction Document or from the execution or delivery
of, or otherwise with respect to, this Agreement, the Note and/or any other
Transaction Document (hereinafter referred to as "Other Taxes").
(c) Borrower agrees to indemnify Lender for the full amount of Taxes or
Other Taxes, respectively (including, without limitation, any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section 2.11), paid by Lender and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within fifteen (15) days from the date Lender makes demand
therefor, accompanied by a certificate of Lender setting forth in reasonable
detail its computation of the amount or amounts to be paid to it hereunder;
provided, however, that no indemnification for any Taxes or Other Taxes shall be
owed if such amounts have already been paid by Borrower as a result of an
increase in the amounts otherwise payable hereunder pursuant to Section
2.11(a)(i).
(d) The provisions of this Section 2.11 shall survive any expiration or
termination of this Agreement and the payment of the Note and the other
Borrower's Obligations.
SECTION 3. PRECONDITIONS TO LOAN CLOSING.
----------------------------------------
Notwithstanding any provision contained in this Agreement to the
contrary, Lender shall have no obligation to provide the Loan to Borrower unless
Lender shall have first received:
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(a) this Agreement and the Note, each duly executed by
Borrower;
(b) the Security Agreement (which must be in form and
substance satisfactory to Lender) duly executed by Borrower, and such
Article 9 Certificates, Uniform Commercial Code financing statements
and other documents as Lender may reasonably require in connection
therewith;
(c) the Patent, Trademark and License Security Agreement
(which must be in form and substance satisfactory to Lender) duly
executed by Borrower, and such Article 9 Certificates, Uniform
Commercial Code financing statements and other documents as Lender may
require in connection therewith;
(d) a copy of resolutions of the Board of Directors of
Borrower, duly adopted, which authorize the execution, delivery and
performance of this Agreement, the Note and the other Transaction
Documents executed by Borrower, certified by the Secretary of Borrower;
(e) a copy of the Certificate of Incorporation of Borrower,
including any amendments thereto, certified by the Secretary of State
of the State of California;
(f) a copy of the By-Laws of Borrower, including any
amendments thereto, certified by the Secretary of Borrower;
(h) the Certificate of Secretary, executed by the Secretary of
Borrower;
(i) a certificate of corporate good standing of Borrower
issued by the California Secretary of State;
(j) an opinion of counsel of Xxxxx & Xxxxxxx, outside counsel
to Borrower, and in form and substance satisfactory to Lender and
Lender's counsel;
(k) UCC, tax lien, and judgment search results from the
California Secretary of State;
(l) evidence of the proper filing of UCC Financing
Statement(s) perfecting first priority security interests in favor of
Lender in all of the Collateral (except for Permitted Liens);
(m) UCC Financing Statement Amendment(s) terminating all UCC
Financing Statements filed of record against Borrower other than UCC
Financing Statements relating to Permitted Liens;
(n) evidence satisfactory to Lender of the insurance required
by this Agreement and the other Transaction Documents together with
loss payable endorsements in form and substance satisfactory to Lender,
duly executed by the applicable insurance company(ies);
(o) copies of all financial statements and other Exhibits and
Schedules required by this Agreement and the other Transaction
Documents;
- 17 -
(p) copies of the Xxxxxxxx Advisory Agreements and all
documents relating to the Xxxxxxxx Funds and the Xxxxxxx Funds as
requested by Lender;
(q) (i) a fully executed copy of the Xxxxxxx Acquisition
Agreement, (ii) a certificate, executed by an officer of Borrower,
stating that all conditions precedent to the consummation of the
transaction described in the Xxxxxxx Acquisition Agreement have been
fulfilled (except for payment of the Xxxxxxx Acquisition Purchase
Price), and (iii) a certificate, executed by U.S. Bancorp Fund
Services, LLC, certifying the aggregate value of the net assets of the
applicable Xxxxxxx Funds used to determine the Xxxxxxx Acquisition
Purchase Price or the relevant portion thereof, at the close of
business on the Business Day immediately preceding the date of any
advance under this Agreement;
(r) copies of all proxy statements, prospectuses and related
documents issued in connection with the shareholder approvals of the
transaction described in the Xxxxxxx Acquisition Agreement;
(s) a fully executed copy of the SYM Acquisition Agreement,
and evidence satisfactory to Lender that Borrower will satisfy all
contractual obligations thereunder, in an amount not to exceed
$527,911.64 no later than September 30, 2004;
(t) a letter of direction from Borrower with respect to the
disbursement of the proceeds of the Loan; and
(u) such other agreements, documents, instruments and
certificates as Lender may reasonably request.
Any one or more of the conditions set forth above which have not been satisfied
by Borrower on or prior to the date of disbursement of the Loan shall not be
deemed permanently waived by Lender unless Lender shall waive the same in a
writing which expressly states that the waiver is permanent.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
------------------------------------------
Borrower hereby represents and warrants to Lender on the date hereof
that:
4.01 Existence and Power. Borrower: (a) is duly incorporated or
organized, validly existing and in good standing under the laws of the State of
California; (b) has all requisite corporate or other powers required to carry on
its business as now conducted; (c) has all requisite governmental and regulatory
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except such licenses, authorizations, consents and
approvals the failure to have could not reasonably be expected to have a
Material Adverse Effect; and (d) is qualified to transact business as a foreign
entity in, and is in good standing under the laws of, all states in which it is
required by applicable law to maintain such qualification and good standing
except for those states in which the failure to qualify or maintain good
standing would not have a Material Adverse Effect. Borrower is registered with
the SEC as an investment adviser under the Investment Advisers Act.
4.02 Authorization. The execution, delivery and performance by Borrower
of this Agreement, the Note, and the other Transaction Documents to which
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Borrower is a party are within the corporate powers of Borrower and have been
duly authorized by all necessary corporate action on the part of Borrower.
4.03 Binding Effect. This Agreement, the Note, and the other
Transaction Documents to which Borrower is a party and which have been executed
contemporaneously with or prior to the execution of this Agreement have been
duly executed and delivered by Borrower and constitute the legal, valid and
binding obligations of Borrower enforceable in accordance with their respective
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and (b)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the other Transaction
Documents to which Borrower is a party which were not executed contemporaneously
with or prior to the execution of this Agreement, when executed and delivered in
accordance with this Agreement, will constitute the legal, valid and binding
obligations of Borrower enforceable in accordance with their respective terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.04 Financial Statements. Borrower has furnished Lender with the
following financial statements, identified by the Chief Executive Officer or
Chief Financial Officer of Borrower: (a) consolidated balance sheets and
statements of income, retained earnings and cash flows of Borrower and its
Subsidiaries as of and for the fiscal years ended September 30, 2001, September
30, 2002, and September 30, 2003, all certified by Borrower's independent
certified public accountants, which financial statements have been prepared in
accordance with GAAP consistently applied; (b) Borrower's most recently filed
Form 10KSB, for the fiscal year ended September 30, 2003; (c) Borrower's most
recently filed Form 10QSB, for the fiscal quarter ended December 31, 2003; (d)
Borrower's most recently filed Form ADV, dated December 15, 2003; and (e)
unaudited consolidated and consolidating balance sheets and statements of
income, retained earnings and cash flows of Borrower and its Subsidiaries as of
and for the fiscal quarter ended December 31, 2003. Borrower further represents
and warrants to Lender that (a) said balance sheets and their accompanying notes
fairly present the condition of Borrower and its Subsidiaries as of the dates
thereof and have been prepared in accordance with GAAP (except for the absence
of footnotes and subject to year-end adjustments), (b) there has been no change
in the condition or operation, financial or otherwise, of Borrower since
September 30, 2003 which had a Material Adverse Effect, and (c) Borrower does
not have any direct or contingent liabilities which were not disclosed on said
financial statements or the notes thereto (unless such disclosure is not
required by GAAP).
4.05 Litigation. Except as disclosed on Schedule 4.05 attached hereto,
there is no action or proceeding pending or, to the knowledge of Borrower,
threatened against or affecting Borrower before any court, arbitrator or any
governmental, regulatory or administrative body, instrumentality, authority,
agency or official which, if determined adversely against Borrower, could
reasonably be expected to have a Material Adverse Effect. Borrower is not in
default with respect to any order, writ, injunction, decision or decree of any
court, arbitrator or any governmental, regulatory or administrative body,
instrumentality, authority, agency or official, a default under which could
reasonably be expected to have a Material Adverse Effect. There are no
outstanding judgments against Borrower.
4.06 Pension and Welfare Plans. Each Pension Plan and Welfare Plan
complies in all material respects with ERISA and all other applicable statutes
and governmental and regulatory rules and regulations; no Reportable Event has
occurred and is continuing with respect to any Pension Plan;
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neither Borrower nor any ERISA Affiliate has withdrawn from any Multi-Employer
Plan in a "complete withdrawal" or a "partial withdrawal" as defined in Sections
4203 or 4205 of ERISA, respectively; neither Borrower nor any ERISA Affiliate
has entered into an agreement pursuant to Section 4204 of ERISA; neither
Borrower nor any ERISA Affiliate has in the past contributed to or currently
contributes to a Multi-Employer Plan; neither Borrower nor any ERISA Affiliate
has any withdrawal liability with respect to a Multi-Employer Plan; no steps
have been instituted by Borrower or any ERISA Affiliate to terminate any Pension
Plan; no condition exists or event or transaction has occurred in connection
with any Pension Plan, Multi-Employer Plan or Welfare Plan which could result in
the incurrence by Borrower or any ERISA Affiliate of any material liability,
fine or penalty; and neither Borrower nor any ERISA Affiliate is a "contributing
sponsor" as defined in Section 4001(a)(13) of ERISA of a "single-employer plan"
as defined in Section 4001(a)(15) of ERISA which has two or more contributing
sponsors at least two of whom are not under common control. Except as disclosed
on the consolidated financial statements of Borrower and its Subsidiaries
delivered by Borrower to Lender, neither Borrower nor any ERISA Affiliate has
any liability with respect to any Welfare Plan.
4.07 Tax Returns and Payment. Borrower has filed all federal, state,
local, foreign and other income and other tax returns which are required to be
filed and has paid all taxes which have become due pursuant to such returns and
all other taxes, assessments, fees and other governmental charges upon Borrower
and/or upon its Properties, assets, income and franchises which have become due
and payable by Borrower, except those wherein the amount, applicability or
validity are being contested by Borrower, by appropriate proceedings being
diligently conducted in good faith and in respect of which adequate reserves in
accordance with GAAP have been established. There is no asserted or assessed (or
to Borrower's knowledge, proposed) tax deficiency against Borrower which, if
determined adversely against Borrower, could reasonably be expected to have a
Material Adverse Effect.
4.08 Subsidiaries. Borrower has no Subsidiaries.
4.09 Compliance With Other Instruments; None Burdensome. Borrower is
not a party to any contract or agreement or subject to any charter or other
corporate or other restriction which could reasonably be expected to have a
Material Adverse Effect and which is not disclosed on Borrower's financial
statements heretofore submitted to Lender; none of the execution and delivery by
Borrower of the Transaction Documents, the consummation of the transactions
therein contemplated or the compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on Borrower, or any of the provisions of the Certificate or Articles of
Incorporation or By-Laws of Borrower or any of the provisions of any indenture,
agreement, document, instrument or undertaking to which Borrower is a party or
subject, or by which Borrower or any Property of Borrower is bound, or conflict
with or constitute a default thereunder or result in the creation or imposition
of any Lien pursuant to the terms of any such indenture, agreement, document,
instrument or undertaking (other than in favor of Lender pursuant to the
Transaction Documents). Except for the filing of this Agreement with the SEC, no
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by, any governmental, regulatory,
administrative or public body or authority, or any subdivision thereof, or any
other Person is required to be made or obtained by Borrower to authorize, or is
required in connection with, the execution, delivery or performance of, or the
legality, validity, binding effect or enforceability of, any of the Transaction
Documents.
- 20 -
4.10 Other Debt, Guarantees and Capitalized Leases. Except as disclosed
on Schedule 4.10 attached hereto, Borrower is not a borrower, guarantor or
obligor with respect to, or a lessee under, any Debt, Guarantees or Capitalized
Leases.
4.11 Labor Matters. Borrower is not a party to any labor dispute which
could reasonably be expected to have a Material Adverse Effect. There are no
strikes or walkouts relating to any labor contract to which Borrower is subject.
Hours worked and payments made to the employees of Borrower and its Subsidiaries
have not been in violation of (a) the Fair Labor Standards Act or (b) any other
applicable law dealing with such matters, the violation of which could
reasonably be expected to have a Material Adverse Effect. All payments due from
Borrower, or for which any claim may be made against Borrower, in respect of
wages, employee health and welfare insurance and/or other benefits have been
paid or accrued as a liability on its books.
4.12 Title to Property. Borrower is the sole and absolute owner of, or
has the legal right to use and occupy, all Property it claims to own or which is
necessary for Borrower to own to conduct its business, and all of such Property
is free and clear of all Liens other than Permitted Liens. Borrower enjoys
peaceful and undisturbed possession in all material respects under all material
leases under which it is operating as a lessee.
4.13 Regulation U. Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of The
Board of Governors of the Federal Reserve System, as amended) and no part of the
proceeds of any Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately (a) to purchase or carry margin stock or
to extend credit to others for the purpose of purchasing or carrying margin
stock, or to refund or repay indebtedness originally incurred for such purpose
or (b) for any purpose which entails a violation of, or which is inconsistent
with, the provisions of any of the Regulations of The Board of Governors of the
Federal Reserve System, including, without limitation, Regulations U, T or X
thereof, as amended.
4.14 Multi-Employer Pension Plan Amendments Act of 1980. Borrower is in
compliance with the Multi-Employer Pension Plan Amendments Act of 1980, as
amended ("MEPPAA"), and Borrower does not have any liability for pension
contributions pursuant to MEPPAA.
4.15 Investment Company Act; Public Utility Holding Company Act of
1935. Borrower is not an "investment company" as that term is defined in, and is
not otherwise subject to regulation under, the Investment Company Act. Borrower
is not a "holding company" as that term is defined in, and is not otherwise
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended.
4.16 Patents, Trademarks, Copyrights, Licenses, Etc. Except as
disclosed on Schedule 4.16 attached hereto, Borrower does not own any patents,
patent applications, patent rights, trademarks, trademark applications,
trademark rights, copyrights, licenses or other intellectual property which are
material to the business of Borrower. Borrower possesses all necessary patents,
patent rights, trademarks, trademark rights, trade names, trade name rights,
copyrights, licenses and other intellectual property to conduct its business
without conflict with any patent, patent right, trademark, trademark right,
trade name, copyright, license or other intellectual property of any other
Person.
4.17 Environmental and Safety and Health Matters. Except as disclosed
on Schedule 4.17 attached hereto: (a) the operations of Borrower comply with all
applicable Environmental Laws and all applicable Occupational Safety and Health
- 21 -
Laws, the violation or noncompliance with which could reasonably be expected to
have a Material Adverse Effect; (b) none of the operations of Borrower are
subject to any Environmental Claim or any judicial, governmental, regulatory or
administrative proceeding alleging the violation of any Occupational Safety and
Health Law, which, if determined adversely against Borrower, could reasonably be
expected to have a Material Adverse Effect; (c) none of the operations of
Borrower is the subject of any Federal or state investigation evaluating whether
any remedial action is needed to respond to any Release of Hazardous Substances
or any unsafe or unhealthful condition at any premises owned, leased or operated
by Borrower, which, if determined adversely to Borrower, could reasonably be
expected to have a Material Adverse Effect; (d) Borrower has not filed any
notice which reasonably could be expected to have a Material Adverse Effect
under any Environmental Law or Occupational Safety and Health Law indicating or
reporting (i) any past or present spillage, leakage or Release into the
environment of, or treatment, storage or disposal of, any Hazardous Substance or
(ii) any unsafe or unhealthful condition at any premises owned, leased or
operated by Borrower; and (e) Borrower does not have any material contingent
liability in connection with (i) any spillage, disposal or Release into the
environment of, or otherwise with respect to, any Hazardous Substances or (ii)
any unsafe or unhealthful condition at any premises owned, leased or operated by
Borrower.
4.18 Investments. Borrower does not have any Restricted
Investments.
4.19 No Default. No Default or Event of Default under this Agreement
has occurred and is continuing. There is no "Event of Default" of Borrower under
the Xxxxxxxx Advisory Agreements, the Xxxxxxx Acquisition Agreement, or the SYM
Acquisition Agreement. There is no existing default or event of default under or
with respect to any other indenture, contract, agreement, lease or other
instrument to which Borrower is a party or by which any Property of Borrower is
bound or affected, a default under which could reasonably be expected to have a
Material Adverse Effect. Borrower has and is in full compliance with and in good
standing with respect to all governmental and/or regulatory permits, licenses,
certificates, consents and franchises necessary to continue to conduct its
business as previously conducted by it and to own or lease and operate its
Properties as now owned or leased by it, the failure to have or noncompliance
with which could reasonably be expected to have a Material Adverse Effect, and,
to the best of Borrower's knowledge, none of said permits, certificates,
consents or franchises contain any term, provision, condition or limitation more
burdensome than such as are generally applicable to Persons engaged in the same
or similar business as Borrower. Borrower is not in violation of any applicable
statute, law, rule, regulation or ordinance of the United States of America, of
any state, city, town, municipality, county or of any other jurisdiction, or of
any agency thereof, a violation of which could reasonably be expected to have a
Material Adverse Effect.
4.20 Government Contracts. Borrower is not a party to or bound by any
supply or purchase agreements with the federal government or any state or local
government or any agency thereof, the termination or cancellation of which could
reasonably be expected to have a Material Adverse Effect.
4.21 [RESERVED].
4.22 Xxxxxxxx Advisory Agreements. All of the agreements between
Borrower and those investment companies registered under the Investment Company
Act for which Borrower serves as investment advisor (collectively, as the same
may be amended or restated from time to time, or any time, the "Xxxxxxxx
Advisory Agreements") are described in Schedule 4.22 attached hereto. None of
the Xxxxxxxx Advisory Agreements have been terminated; Borrower is in material
- 22 -
compliance with all of the Xxxxxxxx Advisory Agreements; and no material events
of default of Borrower exist under any of the Xxxxxxxx Advisory Agreements.
4.23 Disclosure. Neither this Agreement nor any of the Exhibits or
Schedules hereto nor any certificate or other data furnished to Lender in
writing by or on behalf of Borrower required to be provided by this Agreement
contains any untrue or incorrect statement of a material fact or omits to state
a material fact necessary to make the statements contained herein or therein not
misleading. To the best knowledge of Borrower, there is no fact peculiar to
Borrower which presently has a Material Adverse Effect or in the future (so far
as Borrower can now foresee) could reasonably be expected to have a Material
Adverse Effect, which has not heretofore been disclosed in writing by Borrower
to Lender.
SECTION 5. COVENANTS.
---------------------
5.01 Affirmative Covenants of Borrower. Borrower covenants and agrees
that, so long as any of Borrower's Obligations remain unpaid:
(a) Information. Borrower will deliver to Lender:
(i) as soon as available and in any event within ninety (90)
days after the end of each fiscal year of Borrower, consolidated and
consolidating balance sheets of Borrower and its Subsidiaries as of
the end of such fiscal year and the related consolidated and
consolidating statements of income, retained earnings and cash flows
for such fiscal year, setting forth in each case, in comparative form,
the figures for the previous fiscal year, all such financial
statements to be prepared in accordance with GAAP consistently applied
and reported on by and accompanied by the unqualified opinion of
Xxxxxxx & Brinkner LLP, or other independent certified public
accountants selected by Borrower and reasonably acceptable to Lender,
together with (A) a certificate from such accountants to the effect
that, in making the examination necessary for the signing of such
annual audit report, such accountants have not become aware of any
Default or Event of Default that has occurred and is continuing, or,
if such accountants have become aware of any such event, describing it
and the steps, if any, being taken to cure it and (B) the computations
of such accountants evidencing Borrower's compliance with the
financial covenants contained in Sections 5.01(o) and 5.02(i) of this
Agreement;
(ii) as soon as available and in any event within thirty (30)
days after the end of each fiscal month of each fiscal year of
Borrower, consolidated and consolidating balance sheets of Borrower
and its Subsidiaries as of the end of such fiscal month and the
related consolidated and consolidating statements of income, retained
earnings and cash flows for such fiscal month and for the portion of
Borrower's fiscal year ended at the end of such fiscal month, setting
forth in each case in comparative form, the figures for the
corresponding fiscal month and the corresponding portion of Borrower's
previous fiscal year, all in reasonable detail and satisfactory in
form to Lender and certified (subject to normal year-end adjustments
and footnote disclosures) as to fairness of presentation, GAAP and
consistency by the President or the chief financial officer of
Borrower;
(iii) within fifteen (15) days after filing with the SEC,
notification that a Form 10QSB, Form 10KSB or Form ADV, or any
successor SEC filing, as applicable, has been filed with the SEC;
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(iv) simultaneously with the delivery of each set of financial
statements or notice referred to in Section 5.01(a)(i), 5.01(a)(ii),
and 5.01(a)(iii), a certificate of the Chief Executive Officer or
Chief Financial Officer of Borrower in the form attached hereto as
Exhibit B and incorporated herein by reference, accompanied by
supporting financial work sheets where appropriate, (A) evidencing
Borrower's compliance with the financial covenants contained in
Sections 5.01(o) and 5.02(i) of this Agreement, (B) stating whether
there exists on the date of such certificate any Default or Event of
Default and, if any Default or Event of Default then exists, setting
forth the details thereof and the action which Borrower is taking or
proposes to take with respect thereto and (C) certifying that all of
the representations and warranties made by Borrower and/or any other
Obligor in this Agreement and/or in any other Transaction Document are
true and correct in all material respects on and as of the date of
such certificate as if made on and as of the date of such certificate;
(v) promptly upon receipt thereof from its independent
accountants in connection with any annual, interim or special audit
made by them of the books of Borrower or any Subsidiary, any written
reports that Borrower is required to disclose to its Audit Committee
to Borrower or any Subsidiary (other than reports previously
delivered);
(vi) as soon as available and in any event at least thirty
(30) days before the beginning of each fiscal year of Borrower,
consolidated and consolidating balance sheet, income statement and
cash flow projections for Borrower and its Subsidiaries for such
fiscal year on a month-by-month basis, all in form and detail
reasonably acceptable to Lender; and
(vii) with reasonable promptness, such further information
regarding the business, affairs and financial condition of Borrower or
any Subsidiary as Lender may from time to time reasonably request.
Lender is hereby authorized to deliver a copy of any financial statement or
other information made available by Borrower or any Subsidiary to any regulatory
authority having jurisdiction over Lender, pursuant to any request therefor.
(b) Payment of Indebtedness. Borrower will, and it will cause each
Subsidiary to, (i) pay and discharge any and all Indebtedness payable or
Guaranteed by Borrower or such Subsidiary, as the case may be, and any interest
or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) in accordance with the agreement,
document or instrument relating to such Indebtedness or Guarantee; provided,
however, that neither Borrower nor any Subsidiary shall be required to pay any
such Indebtedness which does not constitute Debt the payment of which is being
contested in good faith and by appropriate proceedings being diligently
conducted and for which adequate reserves in accordance with GAAP have been
provided, except that Borrower or such Subsidiary, as the case may be, shall pay
or cause to be paid all such Indebtedness forthwith upon the commencement of
proceedings to foreclose any Lien which is attached as security therefor, unless
such foreclosure is stayed by the filing of an appropriate bond in a manner
reasonably satisfactory to Lender and (ii) faithfully perform, observe and
discharge all covenants, conditions and obligations which are imposed upon
Borrower or such Subsidiary, as the case may be, by any and all agreements,
documents, instruments and indentures evidencing, securing or otherwise relating
to such Indebtedness or Guarantee.
- 24 -
(c) Books and Records; Consultations and Inspections. Borrower will,
and it will cause each Subsidiary to, maintain books and records sufficient to
permit the preparation of financial statements in accordance with GAAP and in
which true, correct and complete entries shall be made of all dealings and
transactions in relation to its business and activities. Borrower will, and it
will cause each Subsidiary to, permit Lender (and any Person appointed by Lender
to whom Borrower does not reasonably object) to discuss the affairs, finances
and accounts of Borrower and each Subsidiary with the designated officers of
Borrower and each Subsidiary and their independent public accountants, all at
such reasonable times and as often as Lender may from time to time reasonably
request. Borrower will also permit, and will cause each Subsidiary to permit,
inspection of its Properties, books and records by the Lender during normal
business hours and at other reasonable times. Borrower will reimburse Lender
upon demand for all reasonable costs and expenses incurred by Lender in
connection with any such inspection conducted by Lender while any Default or
Event of Default under this Agreement has occurred and is continuing. Borrower
irrevocably authorizes Lender while any Default or Event of Default under this
Agreement has occurred and is continuing to communicate directly with its
independent public accountants and irrevocably authorizes and directs such
accountants to disclose to Lender any and all information with respect to the
business and financial condition of Borrower and each Subsidiary as Lender may
from time to time reasonably request in writing.
(d) Payment of Taxes. Borrower will, and it will cause each Subsidiary
to, duly file all federal, state and local income tax returns and all other tax
returns and reports of Borrower or such Subsidiary, as the case may be, which
are required to be filed and duly pay and discharge promptly all taxes,
assessments and other governmental charges imposed upon it or any of its
Property; provided, however, that neither Borrower nor any Subsidiary shall be
required to pay any such tax, assessment or other governmental charge the
payment of which is being contested in good faith and by appropriate proceedings
being diligently conducted and for which adequate reserves in accordance with
GAAP have been provided, except that Borrower or such Subsidiary, as the case
may be, shall pay or cause to be paid all such taxes, assessments and
governmental charges forthwith upon the commencement of proceedings to foreclose
any Lien which is attached as security therefor, unless such foreclosure is
stayed by the filing of an appropriate bond in a manner reasonably satisfactory
to Lender.
(e) Payment of Claims. Borrower will, and it will cause each Subsidiary
to, promptly pay and discharge (i) all trade accounts payable and normal
accruals in accordance with its usual and customary business practices and (ii)
all claims for work, labor or materials which if unpaid could become a Lien upon
any of its Property; provided, however, that neither Borrower nor any Subsidiary
shall be required to pay any such trade account payable, accrual or claim the
payment of which is being contested in good faith and by appropriate proceedings
being diligently conducted and for which adequate reserves in accordance with
GAAP have been provided, except that Borrower or such Subsidiary, as the case
may be, shall pay or cause to be paid all such trade accounts payable, accruals
and claims forthwith upon the commencement of proceedings to foreclose any Lien
which is attached as security therefor, unless such foreclosure is stayed by the
filing of an appropriate bond in a manner reasonably satisfactory to Lender.
(f) Existence. Borrower will, and it will cause each Subsidiary to, do
all things necessary to (i) preserve and keep in full force and effect at all
times its corporate or other existence and all permits, licenses, franchises and
other rights material to its business and (ii) be duly qualified to do business
and be in good standing in all jurisdictions where the nature of its business or
its ownership of Property requires such qualification except for those
jurisdictions in which the failure to qualify or be in good standing could not
reasonably be expected to have a Material Adverse Effect.
- 25 -
(g) Maintenance of Property. Borrower will, and it will cause each
Subsidiary to, at all times, preserve and maintain all of the Property used or
useful in the conduct of its business in good condition, working order and
repair, ordinary wear and tear excepted.
(h) Compliance with Laws, Regulations, Etc. Borrower will, and it will
cause each Subsidiary to, comply with any and all laws, ordinances and
governmental and regulatory rules and regulations to which Borrower or such
Subsidiary, as the case may be, is subject (including, without limitation, all
Occupational Safety and Health Laws and all Environmental Laws) and obtain any
and all licenses, permits, franchises and other governmental and regulatory
authorizations necessary to the ownership of its Properties or to the conduct of
its business, which violation or failure to obtain could reasonably be expected
to have a Material Adverse Effect.
(i) Environmental Matters. Borrower shall give Lender prompt written
notice of (i) any Environmental Claim or any other action or investigation with
respect to the existence or potential existence of any Hazardous Substances
instituted or threatened with respect to Borrower or any Subsidiary or any of
the Properties or facilities owned, leased or operated by Borrower or any
Subsidiary which, if determined adversely to Borrower or any Subsidiary, could
reasonably be expected to have a Material Adverse Effect and (ii) any condition
or occurrence on any of the Properties or facilities owned, leased or operated
by Borrower or any Subsidiary which constitutes a violation of any Environmental
Laws or which gives rise to a reporting obligation or requires removal or
remediation under any Environmental Laws. Within thirty (30) days after the
giving of any such notice, Borrower shall deliver to Lender Borrower's plan with
respect to removal or remediation and Borrower agrees to take all action which
is reasonably necessary in connection with such action, investigation, condition
or occurrence in accordance with such plan with due diligence and to complete
such removal or remediation as promptly as possible and in all events within the
time required by any Environmental Laws or any other applicable law, rule or
regulation. Borrower shall promptly provide Lender with copies of all
documentation relating thereto, and such other information with respect to
environmental matters as Lender may request from time to time.
(j) ERISA Compliance. If Borrower, any Subsidiary or any ERISA
Affiliate shall have any Pension Plan, Borrower, such Subsidiary or such ERISA
Affiliate, as the case may be, shall comply with all requirements of ERISA
relating to such Pension Plan. Without limiting the generality of the foregoing,
Borrower will not, and it will not cause or permit any Subsidiary or any ERISA
Affiliate to: (i) permit any Pension Plan maintained by Borrower, any Subsidiary
or any ERISA Affiliate to engage in any nonexempt "prohibited transaction," as
such term is defined in Section 4975 of the Code; (ii) permit any Pension Plan
maintained by Borrower, any Subsidiary or any ERISA Affiliate to incur any
"accumulated funding deficiency", as such term is defined in Section 302 of
ERISA, 29 U.S.C. ss. 1082, whether or not waived; (iii) terminate any Pension
Plan in a manner which could result in the imposition of a Lien on any Property
of Borrower, any Subsidiary or any ERISA Affiliate pursuant to Section 4068 of
ERISA, 29 U.S.C. ss. 1368; or (iv) take any action which would constitute a
complete or partial withdrawal from a Multi-Employer Plan within the meaning of
Sections 4203 or 4205 of Title IV of ERISA. Notwithstanding any provision
contained in this Section 5.01(j) to the contrary, an act by Borrower or any
Subsidiary shall not be deemed to constitute a violation of this Section 5.01(j)
unless the Lender determines in good faith that said action, individually or
cumulatively with other acts of Borrower and its Subsidiaries, has or could
reasonably be expected to have a Material Adverse Effect.
- 26 -
(k) Notices. Borrower will notify Lender in writing of any of the
following within three (3) Business Days after Borrower's Chief Executive
Officer or Chief Financial Officer has actual knowledge thereof, describing the
same and, if applicable, the steps being taken by the Person(s) affected with
respect thereto:
(i) the occurrence of any Default or Event of Default;
(ii) the occurrence of any default or event of default by
Borrower, any other Obligor or any Subsidiary under any note,
indenture, loan agreement, mortgage, deed of trust, security
agreement, lease or other similar agreement, document or instrument to
which Borrower, any other Obligor or any Subsidiary, as the case may
be, is a party or by which it is bound or to which it is subject and
which relates to Indebtedness in excess of $100,000;
(iii) the institution of any litigation, arbitration
proceeding or governmental or regulatory proceeding against Borrower,
any other Obligor or any Subsidiary, whether or not considered to be
covered by insurance, in which the prayer or claim for relief seeks
recovery of an amount in excess of $100,000 (or, if no dollar amount
is specified in the prayer or claim for relief, in which there is a
reasonable likelihood of recovery of an amount in excess of $100,000)
or any form of equitable relief which could reasonably be expected to
have a Material Adverse Effect;
(iv) the entry of any judgment or decree against Borrower, any
other Obligor or any Subsidiary in excess of $100,000, or which grants
equitable relief which could reasonably be expected to have a Material
Adverse Effect;
(v) the occurrence of a Reportable Event with respect to any
Pension Plan of Borrower; the filing of a notice of intent to
terminate a Pension Plan by Borrower, any ERISA Affiliate or any
Subsidiary; the institution of proceedings to terminate a Pension Plan
of Borrower by the PBGC or any other Person; the withdrawal in a
"complete withdrawal" or a "partial withdrawal" as defined in Sections
4203 and 4205, respectively, of ERISA by Borrower, any ERISA Affiliate
or any Subsidiary from any Multi-Employer Plan; or the incurrence of
any material increase in the contingent liability of Borrower or any
Subsidiary with respect to any "employee welfare benefit plan" as
defined in Section 3(1) of ERISA which covers retired employees and
their beneficiaries;
(vi) the occurrence of any change in the Properties, assets,
liabilities, business, operations, prospects, income or condition
(financial or otherwise) of Borrower, any other Obligor or any
Subsidiary that could reasonably be anticipated to have a Material
Adverse Effect;
(vii) any change in the name of Borrower, any other Obligor or
any Subsidiary;
(viii) any proposed opening, closing or other change of any
place of business of Borrower, any other Obligor or any Subsidiary
that could reasonably be anticipated to have a Material Adverse
Effect;
(ix) any change in Borrower's or any Subsidiary's line(s) of
business that could reasonably be anticipated to have a Material
Adverse Effect;
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(x) the occurrence of any Change of Control Event;
(xi) receipt of a notice of termination of any Xxxxxxxx
Advisory Agreement; and
(xii) any notices required to be provided pursuant to other
provisions of this Agreement and notice of the occurrence of such
other events as Lender may from time to time reasonably specify.
(l) Insurance. Borrower will continue to, and it will cause each
Subsidiary to, insure all of its Property in the manner such Property is
currently insured; subject to Lender's review and approval of Borrower's current
insurance companies, policies, coverages, premiums and related matters. All such
insurance may be subject to reasonable deductible amounts.
Notice Required by ss.427.120(3) R.S. Mo. "Unless you provide evidence of the
insurance coverage required by your agreement with us, we may purchase insurance
at your expense to protect our interests in your collateral. This insurance may,
but need not, protect your interests. The coverage that we purchase may not pay
any claim that you make or any claim that is made against you in connection with
the collateral. You may later cancel any insurance purchased by us, but only
after providing evidence that you have obtained insurance as required by our
agreement. If we purchase insurance for the collateral, you will be responsible
for the costs of that insurance, including the insurance premium, interest and
any other charges we may impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to your total outstanding
balance or obligation. The costs of the insurance may be more than the cost of
insurance you may be able to obtain on your own."
(m) Further Assurances. Borrower will execute and deliver to Lender, at
any time and from time to time, any and all further agreements, documents and
instruments, and take any and all further actions which may be required under
applicable law, or which Lender may from time to time reasonably request, in
order to effectuate the transactions contemplated by this Agreement and the
other Transaction Documents.
(n) Accountant. Borrower will give Lender prompt notice of any change
of Borrower's independent certified public accountants and a statement of the
reasons for such change. Borrower shall at all times utilize independent
certified public accountants reasonably acceptable to Lender.
(o) Financial Covenants.
(i) Minimum Consolidated EBITDA. Borrower will have a
Consolidated EBITDA at or above the levels, and for the fiscal periods
of Borrower, as follows:
Fiscal Period Consolidated EBITDA
---------------------------------------- -------------------------------
3 months ending 6/30/04 $900,000
6 months ending 9/30/04 $1,800,000
9 months ending 12/31/04 $2,800,000
12 months ending 3/31 & 6/30/05 $3,800,000
12 months ending 9/30 & 12/31/05, &
3/31 & 6/30/06 $4,000,000
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12 months ending 9/30 & 12/31/06, &
3/31 & 6/30/07 $4,400,000
12 months ending 9/30/07 and each
quarter end thereafter $4,900,000
(ii) Minimum Consolidated Fixed Charge Coverage Ratio.
Borrower will have a Consolidated Fixed Charge Coverage Ratio at or
above the levels, and for the fiscal periods of Borrower, as follows:
Fiscal Period Fixed Charge Coverage Ratio
---------------------------------------- -------------------------------
3 months ending 6/30/04 1.30 to 1.00
6 months ending 9/30/04 1.30 to 1.00
9 months ending 12/31/04 1.30 to 1.00
12 months ending 3/31 & 6/30/05 1.30 to 1.00
12 months ending 9/30/05 and each
quarter end thereafter 1.40 to 1.00
(iii) Maximum Consolidated Debt to Consolidated EBITDA Ratio.
Borrower will have a Consolidated Debt to Consolidated EBITDA Ratio of
not more than the levels, and for the fiscal periods of Borrower, as
follows:
Fiscal Period Consolidated Debt to
Consolidated EBITDA Ratio
---------------------------------------- -------------------------------
3 months ending 6/30/04 (annualized) 2.25 to 1.00
6 months ending 9/30/04 (annualized) 2.25 to 1.00
9 months ending 12/31/04 (annualized) 2.00 to 1.00
12 months ending 3/31 & 6/30/05 2.00 to 1.00
12 months ending 9/30 & 12/31/05, &
3/31 & 6/30/06 1.75 to 1.00
12 months ending 9/30/06 and each
quarter end thereafter 1.50 to 1.00
(p) Subsidiaries. If Borrower or any Subsidiary creates, forms or
acquires any Subsidiary on or after the date of this Agreement, Borrower or such
Subsidiary, as the case may be, will, contemporaneously with the creation,
formation or acquisition of such Subsidiary, (i) grant Lender a first priority
perfected security interest in and lien on all of the issued and outstanding
shares of capital stock or other equity interests of such Subsidiary owned by
Borrower or one of its Subsidiaries and (ii) cause such Subsidiary to (A)
guaranty the payment and performance of all of Borrower's Obligations and (B)
secure said guaranty with a first priority perfected security interest in and
lien on all of the accounts, inventory, documents, instruments, chattel paper,
general intangibles, goods, machinery, equipment, investment property, other
tangible and intangible personal property, real property and books and records
of such Subsidiary and the proceeds thereof, all pursuant to documentation
(including, without limitation, an amendment to this Agreement if requested by
Lender) in form and substance reasonably satisfactory to Lender. Borrower shall
notify Lender in writing of any formation, acquisition, merger or liquidation of
any Subsidiary, or any change in the capitalization of any Subsidiary, in each
case, in accordance with the terms of this Agreement.
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5.02 Negative Covenants of Borrower. Borrower covenants and agrees
that, so long as Borrower's Obligations remain unpaid, unless the prior written
consent of Lender is obtained:
(a) Limitation on Indebtedness. Borrower will not, and it will not
cause or permit any Subsidiary to, incur or be obligated on any Indebtedness
(including any Subordinated Indebtedness), either directly or indirectly, by way
of Guarantee, suretyship or otherwise, other than:
(i) Borrower's Obligations;
(ii) unsecured trade accounts payable and other normal
accruals incurred in the ordinary course of business (provided,
however, that neither Borrower nor any Subsidiary shall be required to
pay any such account payable or other accrual the payment of which is
being contested in good faith and by appropriate proceedings being
diligently conducted and for which adequate reserves in accordance
with GAAP have been provided, except that Borrower or such Subsidiary,
as the case may be, shall pay or cause to be paid all such accounts
payable and accruals forthwith upon the commencement of proceedings to
foreclose any Lien which is attached as security therefor, unless such
foreclosure is stayed by the filing of an appropriate bond in a manner
reasonably satisfactory to Lender);
(iii) Indebtedness existing as of the date of this Agreement
and listed on Schedule 4.10 attached hereto (without giving effect to
any changes to Schedule 4.10 made after the date of this Agreement);
(iv) purchase money Indebtedness incurred solely to finance
Capital Expenditures and Capitalized Leases permitted by this
Agreement;
(v) Capitalized Lease Obligations permitted by this Agreement;
(vi) Subordinated Indebtedness;
(vii) deferred Indebtedness incurred in connection with
Acquisitions permitted by this Agreement;
(viii) other Indebtedness not otherwise permitted by this
Section 5.02(a) in an amount not to exceed $500,000 in the aggregate
at any one time outstanding for Borrower and all of its Subsidiaries
on a combined basis;
(ix) any Indebtedness incurred as a result of the amendment,
refinancing or replacement of any of the foregoing, provided that the
amounts of such Indebtedness are not increased as the result of such
amendment, refinancing or replacement without Lender's prior written
consent, unless such increase is permitted under this Agreement.
(b) Limitation on Liens. Borrower will not, and will not cause or
permit any Subsidiary to, create, incur or assume, or suffer to be incurred or
to exist, any Lien on any of its Property, whether now owned or hereafter
acquired, or upon any income or profits therefrom, except for Permitted Liens.
- 30 -
(c) Consolidation, Merger, Sale of Property, Etc Borrower will not, and
it will not cause or permit any Subsidiary to, directly or indirectly merge or
consolidate with or into any other Person or permit any other Person to merge
into or with or consolidate with it; provided, however, that any Subsidiary may
directly or indirectly merge or consolidate with or into Borrower or another
Subsidiary and provided further that Borrower may directly or indirectly merger
or consolidate with or into a Subsidiary in a transaction in which Borrower's
then-existing shareholders own the same percentage of the interest in surviving
entity as they owned in Borrower immediately prior to such transaction.
(d) Sale and Leaseback Transactions. Borrower will not, and it will not
cause or permit any Subsidiary to, enter into any arrangement, directly or
indirectly, whereby Borrower or such Subsidiary shall in one or more related
transactions sell, transfer or otherwise dispose of any Property owned by
Borrower or such Subsidiary to any Person and then rent or lease, as lessee,
such Property or any part thereof for a period or periods which in the aggregate
would exceed twelve (12) months from the date of commencement of the lease term.
(e) Sale or Discount of Accounts. Borrower will not, and it will not
cause or permit any Subsidiary to, sell or discount (other than prompt payment
discounts granted in the ordinary course of business) any of its Accounts or
notes receivable or chattel paper, except as required by the Xxxxxxxx Advisory
Agreements.
(f) Transactions with Affiliates. Borrower will not, and it will not
cause or permit any Subsidiary to, enter into or be a party to any transaction
or arrangement with any Affiliate (including, without limitation, the purchase
from, sale to or exchange of Property with, or the rendering of any service by
or for, any Affiliate), except in the ordinary course of business and pursuant
to the reasonable requirements of Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to Borrower or such Subsidiary
than would be obtained in a comparable arm's-length transaction with a Person
not an Affiliate.
(g) Changes in Nature of Business. Borrower will not, and it will not
cause or permit any Subsidiary to, engage in any business if, as a result, the
general nature of the business which would then be engaged in by Borrower and
its Subsidiaries, considered as a whole, would be substantially changed from the
general nature of the business engaged in by Borrower as of the date of this
Agreement.
(h) Fiscal Year. Borrower will not, and it will not cause or permit any
Subsidiary to, change its fiscal year.
(i) Stock Redemptions and Distributions. Borrower will not, and it will
not cause or permit any Subsidiary to, declare or incur any liability to make
any Distribution in respect of the capital stock or other equity interests of
Borrower or the capital stock or other equity interests of such Subsidiary, as
the case may be, provided, however, that so long as no Default or Event of
Default has occurred and is continuing or would be created thereby, Borrower may
distribute cash, redeem, repurchase or acquire capital stock or other equity
interests of Borrower or any Subsidiary, or issue any warrants, rights or other
options to purchase any such capital stock or other equity interests, in an
aggregate amount of up to $50,000 during each fiscal year of Borrower.
(j) Pension Plans. Borrower will not, and it will not cause or permit
any Subsidiary to, (a) permit any condition to exist in connection with any
Pension Plan which would constitute grounds for the PBGC to institute
proceedings to have such Pension Plan terminated or a trustee appointed to
- 31 -
administer such Pension Plan or (b) engage in, or permit to exist or occur, any
other condition, event or transaction with respect to any Pension Plan which
could result in the incurrence by Borrower, any Subsidiary or any ERISA
Affiliate of any material liability, fine or penalty.
(k) Subordinated Indebtedness. Borrower will not make any payment of
principal, interest or other amount on or with respect to any of its
Subordinated Indebtedness to the extent prohibited by the subordination
provisions governing the same.
(l) Restricted Investments; Acquisitions. Borrower will not, and it
will not cause or permit any Subsidiary to, directly or indirectly, make any
Restricted Investments. Borrower will not, and it will not cause or permit any
Subsidiary to, directly or indirectly, make any Acquisitions.
(m) Subsidiaries. Borrower will not, and it will not cause or permit
any Subsidiary to, create, form or acquire any Subsidiary.
(n) Limitations on Restrictive Agreements. Borrower will not, and it
will not cause or permit any Subsidiary to, enter into, or permit to exist, any
agreement with any Person which prohibits or limits the ability of Borrower or
such Subsidiary, as the case may be, to (a) pay dividends or make other
Distributions or prepay any Indebtedness owed to Borrower and/or any Subsidiary,
(b) make loans or advances to Borrower and/or any Subsidiary, (c) transfer any
of its Properties to Borrower and/or any Subsidiary (other than with respect to
Property subject to Permitted Liens) or (d) create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired (other than with respect to Property subject to Permitted
Liens); provided that the foregoing shall not apply to restrictions in effect on
the date of this Agreement contained in agreements governing Debt outstanding on
the date of this Agreement and listed on Schedule 5.02(n) attached hereto and,
if such Debt is renewed, extended or refinanced, restrictions in the agreements
governing the renewed, extended or refinanced Debt (and successive renewals,
extensions and refinancings thereof) if such restrictions are no more
restrictive in any material respect than those contained in the agreements
governing the Debt being renewed, extended or refinanced.
5.03 Use of Proceeds. Borrower covenants and agrees that (a) the
proceeds of the Loan will be used solely to finance the Xxxxxxx Acquisition
Purchase Price and the costs and fees related to the transactions contemplated
by the Xxxxxxx Acquisition Agreement, (b) no part of the proceeds of the Loan
will be used in violation of any applicable law, rule or regulation and (c) no
part of the proceeds of the Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately (i) to purchase or carry
margin stock or to extend credit to others for the purpose of purchasing or
carrying margin stock, or to refund or repay indebtedness originally incurred
for such purpose or (ii) for any purpose which entails a violation of, or which
is inconsistent with, the provisions of any of the Regulations of The Board of
Governors of the Federal Reserve System, including, without limitation,
Regulations U, T or X thereof, as amended.
SECTION 6. EVENTS OF DEFAULT.
-----------------------------
If any of the following (each of the following herein sometimes called
an "Event of Default") shall occur and be continuing:
6.01 Borrower shall fail to pay any of Borrower's Obligations within
two (2) days of the date when become due and payable, whether by reason of
demand, maturity, acceleration or otherwise;
- 32 -
6.02 Any representation or warranty made by Borrower and/or any other
Obligor in this Agreement, in any other Transaction Document or in any
certificate, agreement, instrument or statement furnished or made or delivered
pursuant hereto or thereto or in connection herewith or therewith, shall prove
to have been untrue or incorrect in any material respect when made;
6.03 Borrower shall fail to perform or observe any term, covenant or
provision contained in Section 2.07(b), Section 2.09, Section 2.11, Section
5.01(c), Section 5.01(f), Section 5.01(k), Section 5.01(l), Section 5.01(m),
Section 5.01(o), Section 5.01(p), Section 5.02, or Section 5.03;
6.04 Borrower shall fail to perform or observe any other term, covenant
or provision contained in this Agreement (other than those specified in Sections
6.01, 6.02 or 6.03 above) and any such failure shall remain unremedied for
thirty (30) days after the earlier of (a) written notice of default is given to
Borrower by Lender or (b) the Chief Executive Officer or Chief Financial Officer
of Borrower obtaining actual knowledge of such default;
6.05 This Agreement or any other Transaction Document shall at any time
for any reason cease to be in full force and effect or shall be declared to be
null and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by Borrower and/or any other
Obligor, or if the transactions completed hereunder or thereunder shall be
contested by Borrower and/or any other Obligor or if Borrower and/or any other
Obligor shall deny that it has any further liability or obligation hereunder or
thereunder;
6.06 Borrower, any other Obligor or any Subsidiary shall (a)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other federal, state or foreign
bankruptcy, insolvency, receivership, liquidation or similar law, (b) consent to
the institution of, or fail to contravene in a timely and appropriate manner,
any such proceeding or the filing of any such petition, (c) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator or similar
official of itself or of a substantial part of its Property, (d) file an answer
admitting the material allegations of a petition filed against itself in any
such proceeding, (e) make a general assignment for the benefit of creditors, (f)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (g) take any corporate or other action for the purpose of
effecting any of the foregoing;
6.07 An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (a) relief
in respect of Borrower, any other Obligor or any Subsidiary, or of a substantial
part of the Property of Borrower, any other Obligor or any Subsidiary, under
Title 11 of the United States Code or any other federal, state or foreign
bankruptcy, insolvency, receivership, liquidation or similar law, (b) the
appointment of a receiver, trustee, custodian, sequestrator or similar official
of Borrower, any other Obligor or any Subsidiary or of a substantial part of the
Property of Borrower, any other Obligor or any Subsidiary or (c) the winding-up
or liquidation of Borrower, any other Obligor or any Subsidiary; and such
proceeding or petition shall continue undismissed for thirty (30) consecutive
days or an order or decree approving or ordering any of the foregoing shall
continue unstayed and in effect for thirty (30) consecutive days;
6.08 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the Security Agreement or the Patent, Trademark and
License Security Agreement;
- 33 -
6.09 Borrower, any other Obligor or any Subsidiary shall be declared by
Lender to be in default on, or pursuant to the terms of, (a) any other present
or future obligation to, or agreement with or in favor of, Lender, including,
without limitation, any other loan, line of credit, revolving credit, guaranty
or letter of credit reimbursement obligation or (b) any other present or future
agreement, document or instrument purporting to grant Lender a Lien upon any
Property of Borrower, such other Obligor or such Subsidiary, as the case may be,
and any such default shall not be cured or waived in writing within any
applicable cure or grace period (if any);
6.10 The occurrence of any default or event of default under or within
the meaning of any agreement, document or instrument evidencing, securing,
guaranteeing the payment of or otherwise relating to any Debt of Borrower, any
other Obligor or any Subsidiary (other than Borrower's Obligations) having an
aggregate outstanding principal balance in excess of $100,000 which is not cured
or waived in writing within any applicable cure or grace period (if any);
6.11 Borrower, any other Obligor or any Subsidiary shall have a
judgment entered against it by a court having jurisdiction in the premises and
such judgment shall not be appealed in good faith (and execution of such
judgment stayed during such appeal) or satisfied by Borrower, such other Obligor
or such Subsidiary, as the case may be, within thirty (30) days after the entry
of such judgment;
6.12 The occurrence of a Reportable Event with respect to any Pension
Plan of Borrower; the filing of a notice of intent to terminate a Pension Plan
by Borrower, any ERISA Affiliate or any Subsidiary; the institution of
proceedings to terminate a Pension Plan by the PBGC or any other Person; the
withdrawal in a "complete withdrawal" or a "partial withdrawal" as defined in
Sections 4203 and 4205, respectively, of ERISA by Borrower, any ERISA Affiliate
or any Subsidiary from any Multi-Employer Plan; or the incurrence of any
material increase in the contingent liability of Borrower or any Subsidiary with
respect to any "employee welfare benefit plan" as defined in Section 3(1) of
ERISA which covers retired employees and their beneficiaries;
6.13 The institution by Borrower, any ERISA Affiliate or any Subsidiary
of steps to terminate any Pension Plan if, in order to effectuate such
termination, Borrower, such ERISA Affiliate or such Subsidiary, as the case may
be, would be required to make a contribution to such Pension Plan, or would
incur a liability or obligation to such Pension Plan, in excess of $100,000; or
the institution by the PBGC of steps to terminate any Pension Plan; or
6.14 Any of the Xxxxxxxx Advisory Agreements shall at any time for any
reason be terminated by Borrower or any other party thereto, cease to be in full
force and effect, or shall be declared to be null and void by a court of
competent jurisdiction, or if the validity or enforceability thereof shall be
contested or denied by Borrower or any other party thereto;
6.15 Borrower ceases to be registered with the SEC as an investment
adviser under the Investment Advisers Act, or the SEC (or any other applicable
regulatory authority) initiates proceedings to terminate Borrower's status as a
registered investment adviser under the Investment Advisers Act; or
6.16 The occurrence of any Change of Control Event;
THEN, and in each such event (other than an event described in Sections 6.06 or
6.07), Lender may declare the entire outstanding principal balance of and all
accrued and unpaid interest on the Note and all of the other Borrower's
Obligations to be forthwith due and payable, whereupon all of the unpaid
- 34 -
principal balance of and all accrued and unpaid interest on the Note and all of
such other Borrower's Obligations shall become and be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Borrower, and Lender may exercise any
and all other rights and remedies which it may have under any other Transaction
Document or at law or in equity; provided, however, that upon the occurrence of
any event described in Sections 6.06 or 6.07, the entire outstanding principal
balance of and all accrued and unpaid interest on the Note and all of the other
Borrower's Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by Borrower, and Lender may exercise any and all
other rights and remedies which it may have under any other Transaction Document
or at law or in equity.
SECTION 7. GENERAL.
-------------------
7.01 No Waiver. No failure or delay by Lender in exercising any right,
remedy, power or privilege under this Agreement or under any other Transaction
Document shall operate as a waiver thereof; nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights and remedies provided
in this Agreement and in the other Transaction Documents are cumulative and not
exclusive of any rights and/or remedies provided by law. Nothing contained in
this Agreement shall in any way affect the right of Lender to exercise any
statutory or common law right of banker's lien or set-off.
7.02 Right of Set-Off. Upon the occurrence and during the continuance
of any Event of Default, Lender is hereby authorized at any time and from time
to time, without notice to Borrower (any such notice being expressly waived by
Borrower) and to the fullest extent permitted by law, to set-off and apply (a)
any and all deposits (general or special, time or demand, provisional or final)
at any time held by Lender, (b) any and all other indebtedness at any time owing
by Lender to or for the credit or account of Borrower, and (c) any and all
management and shareholder servicing fees due Borrower from the Xxxxxxxx Funds,
including such payments made by U.S. Bancorp Fund Services, LLC, against any and
all of Borrower's Obligations irrespective of whether or not Lender shall have
made any demand under this Agreement or under any other Transaction Document and
although such obligations may be contingent or unmatured. Lender agrees to
promptly notify Borrower after any such set-off and application made by Lender,
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of Lender under this
Section 7.02 are in addition to any other rights and remedies (including,
without limitation, other rights of set-off) which Lender may have. Nothing
contained in this Agreement or any other Transaction Document shall impair the
right of Lender to exercise any right of set-off or counterclaim it may have
against Borrower and to apply the amount subject to such exercise to the payment
of indebtedness of Borrower unrelated to this Agreement or the other Transaction
Documents.
7.03 Cost and Expenses. Borrower agrees, whether or not any Loan is
made under this Agreement, to pay Lender upon demand for (a) all reasonable
out-of-pocket costs and expenses and all Attorneys' Fees incurred by Lender in
connection with the preparation, documentation, negotiation and/or execution of
this Agreement and the other Transaction Documents, (b) all recording, filing
and search fees and expenses incurred by Lender in connection with this
Agreement and the other Transaction Documents, (c) all reasonable out-of-pocket
costs and expenses and all Attorneys' Fees incurred by Lender in connection with
the (i) the preparation, documentation, negotiation and execution of any
amendment, modification, extension, renewal or restatement of this Agreement
and/or any other Transaction Document, (ii) the preparation of any waiver or
consent under this Agreement and/or under any other Transaction Document or
- 35 -
(iii) any Default or Event of Default, and (d) if an Event of Default occurs,
all reasonable out-of-pocket costs and expenses and all Attorneys' Fees incurred
by Lender in connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom. Borrower further agrees to pay or
reimburse Lender for any stamp or other taxes which may be payable with respect
to the execution, delivery, recording and/or filing of this Agreement and/or any
other Transaction Document. All of the obligations of Borrower under this
Section 7.03 shall survive the satisfaction and payment of Borrower's
Obligations and the termination of this Agreement.
7.04 Environmental Indemnity. Borrower hereby agrees to defend and
indemnify Lender and hold Lender harmless from and against any and all losses,
liabilities, damages, injuries, claims, costs and expenses of any and every kind
whatsoever (including, without limitation, court costs and Attorneys' Fees)
which at any time or from time to time may be paid, incurred or suffered by, or
asserted against, Lender for, with respect to or as a direct or indirect result
of the violation by Borrower or any Subsidiary of any Environmental Laws; or
with respect to, or as a direct or indirect result of the presence on or under,
or the Release from, properties owned, leased or operated by Borrower and/or any
Subsidiary in the conduct of their respective businesses into or upon any land,
the atmosphere or any watercourse, body of water or wetland, of any Hazardous
Substances or any other hazardous or toxic waste, substance or constituent or
other substance (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under the
Environmental Laws); and the provisions of and undertakings and indemnification
set out in this Section 7.04 shall survive the satisfaction and payment of
Borrower's Obligations and the termination of this Agreement.
7.05 General Indemnity. In addition to the payment of expenses pursuant
to Section 7.03, whether or not the transactions contemplated hereby shall be
consummated, Borrower hereby agrees to defend, indemnify, pay and hold Lender
and any holder(s) of the Note, and the officers, directors, employees, agents
and affiliates of Lender and such holder(s) (collectively, the "Indemnitees")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be designated a
party thereto), that may be imposed on, incurred by or asserted against the
Indemnitees, in any manner relating to or arising out of this Agreement, any
other Transaction Document and/or any other agreement, document or instrument
heretofore, now or hereafter executed and delivered by Borrower and/or any other
Obligor in connection herewith or therewith, Lender's agreement to make Loans
under this Agreement or the use or intended use of the proceeds of any Loan
under this Agreement (collectively, the "indemnified liabilities"); provided
that Borrower shall have no obligation to an Indemnitee hereunder with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of that Indemnitee as determined by a court of competent jurisdiction
in a final nonappealable order. To the extent that the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, Borrower shall contribute
the maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them. The provisions of the undertakings and
indemnification set out in this Section 7.05 shall survive satisfaction and
payment of Borrower's Obligations and the termination of this Agreement.
7.06 Authority to Act. Lender shall be entitled to act on any notices
and instructions (telephonic or written) believed by Lender in good faith to
have been sent or delivered by any person authorized to act on behalf of
Borrower pursuant hereto, regardless of whether such notice or instruction was
- 36 -
in fact delivered by a person authorized to act on behalf of Borrower, and
Borrower hereby agrees to defend and indemnify Lender and hold Lender harmless
from and against any and all losses, costs and expenses, if any, ensuing from
any such action.
7.07 Notices. Except as otherwise specifically set forth in this
Agreement, each notice, request, demand, consent, confirmation or other
communication under this Agreement shall be in writing and delivered in person
or sent by telecopy, recognized overnight courier or registered or certified
mail, return receipt requested and postage prepaid, to the applicable party at
its address or telecopy number set forth on the signature page(s) of this
Agreement, or at such other address or telecopy number as any party hereto may
designate as its address for communications under this Agreement by notice so
given. Such notices shall be deemed effective on the day on which delivered or
sent if delivered in person or sent by telecopy (with answerback confirmation
received), on the first (1st) Business Day after the day on which sent, if sent
by recognized overnight courier or on the third (3rd) Business Day after the day
on which mailed, if sent by registered or certified mail, except that notices to
Lender under Section 2 shall not be effective unless and until actually received
by Lender.
7.08 Consent to Jurisdiction; Waiver of Jury Trial. BORROWER HEREBY
IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY MISSOURI STATE
COURT SITTING IN THE COUNTY OF ST. LOUIS, MISSOURI OR ANY UNITED STATES OF
AMERICA COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION, AS
LENDER MAY ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, (B) AGREES THAT ALL CLAIMS
IN RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN ANY
OF SUCH COURTS, (C) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, (D) WAIVES ANY CLAIM
THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM AND (E) WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION
WHICH BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT
DOMICILES. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY
REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS REFERENCED IN SECTION 7.07.
BORROWER AND LENDER HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION IN WHICH BORROWER AND LENDER ARE PARTIES RELATING TO OR
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
TRANSACTION DOCUMENTS.
7.09 Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles).
7.10 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by Borrower and Lender. Any Event of Default under this Agreement may be
waived by Lender or Borrower, as the case may be, if, but only if, such waiver
is in writing and is signed by Lender or Borrower, as the case may be.
7.11 References; Headings for Convenience. Unless otherwise specified
herein, all references herein to Section numbers refer to Section numbers of
this Agreement, all references herein to Exhibits A, and B refer to annexed
Exhibits A and B which are hereby incorporated herein by reference and all
- 37 -
references herein to Schedule(s) refer to the designated annexed Schedule(s)
which are hereby incorporated herein by reference. The Section headings are
furnished for the convenience of the parties and are not to be considered in the
construction or interpretation of this Agreement.
7.12 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns, except that: (a) Borrower may not assign or
otherwise transfer any of its rights or delegate any of its obligations under
this Agreement; and (b) Lender may not assign or otherwise transfer any of its
rights or delegate any of its obligations under this Agreement unless a Default
or Event of Default has occurred and is continuing.
7.13 Notice Required by ss.432.045 R.S. Mo.; Entire Agreement. ORAL
AMENDMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AMENDMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT. This Agreement embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and
understandings (oral or written) relating to the subject matter hereof.
7.14 Severability. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
7.15 Counterparts. This Agreement may be executed in any number of
counterparts (including telecopy counterparts), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.16 Resurrection of Borrower's Obligations. To the extent that Lender
receives any payment on account of any of Borrower's Obligations, and any such
payment(s) or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, subordinated and/or required to be repaid
to a trustee, receiver or any other Person under any bankruptcy act, state or
Federal law, common law or equitable cause, then, to the extent of such
payment(s) received, Borrower's Obligations or part thereof intended to be
satisfied and any and all Liens upon or pertaining to any Property of Borrower
and theretofore created and/or existing in favor of Lender as security for the
payment of such Borrower's Obligations shall be revived and continue in full
force and effect, as if such payment(s) had not been received by Lender and
applied on account of Borrower's Obligations.
7.17 Independence of Covenants. All of the covenants contained in this
Agreement and the other Transaction Documents shall be given independent effect
so that if a particular action, event or condition is prohibited by any one of
such covenants, the fact that it would be permitted by an exception to, or
otherwise be in compliance within the provisions of, another covenant shall not
avoid the occurrence of a Default or Event of Default if such action is taken,
such event occurs or such condition exists.
7.18 Subsidiary Reference. Any reference in this Agreement to a
Subsidiary of Borrower, and any financial definition, ratio, restriction or
other provision of this Agreement which is stated to be
- 38 -
applicable to Borrower and its Subsidiaries or which is to be determined on a
"consolidated" or "consolidating" basis, shall apply only to the extent Borrower
has any Subsidiaries and, where applicable, to the extent any such Subsidiaries
are consolidated with Borrower for financial reporting purposes in accordance
with GAAP.
7.19 Compliance with Usury Laws. It is the intent of Borrower and
Lender in the execution and performance of this Agreement, the Note and the
other Transaction Documents to contract in strict compliance with any and all
applicable usury laws, including conflicts of law concepts, governing the Loans
and the other Borrower's Obligations. In furtherance thereof, Lender and
Borrower stipulate and agree that none of the terms and provisions contained in
this Agreement, the Note or any of the other Transaction Documents shall ever be
construed to create a contract to pay, as consideration for the use, forbearance
or detention of money, interest at a rate in excess of the highest rate
permitted by applicable law (the "Highest Lawful Rate") and that for purposes
hereof "interest" shall include the aggregate of all charges which constitute
interest under such laws that are contracted for, charged or received under this
Agreement, the Note or any of the other Transaction Documents; and in the event
that, notwithstanding the foregoing, under any circumstances the aggregate
amounts taken, reserved, charged, received or paid on the Loans and/or any of
the other Borrower's Obligations include amounts which by applicable law are
deemed interest which would exceed the Highest Lawful Rate, then such excess
shall be deemed to be a mistake and Lender shall credit the same on the
principal balance of the Loans and/or other Borrower's Obligations hereunder (or
if all of Borrower's Obligations shall have been paid in full, refund said
excess to Borrower). In the event of demand for payment of the Note and/or any
of the other Borrower's Obligations by Lender, or in the event of any required
or permitted prepayment, then such consideration that constitutes interest may
never include more than the Highest Lawful Rate and any excess interest, if any,
provided for in this Agreement, the Note or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited against the principal balance of the Loans
and/or other Borrower's Obligations hereunder (or, if all of Borrower's
Obligations shall have been repaid in full, refunded to Borrower). The
provisions of the section shall control over all other provisions of this
Agreement, the Note and/or the other Transaction Documents which may be in
apparent conflict herewith.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as
of the day and year first above written.
(SIGNATURES ON FOLLOWING PAGES)
- 39 -
SIGNATURE PAGE- BORROWER
LOAN AGREEMENT
Borrower:
XXXXXXXX ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx, President
Address: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, President
Telecopy No.: (000) 000-0000
- 40 -
SIGNATURE PAGE- LENDER
LOAN AGREEMENT
Lender:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Vice President
Address: U.S. Bank National Association
One XX Xxxx Xxxxx, 00xx Xxxxx
0xx Xxxxxx & Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Leveraged Finance
Division
Telecopy number: (000) 000-0000
- 41 -
SCHEDULE 4.05
-------------
Litigation
----------
None.
SCHEDULE 4.10
-------------
Other Debt, Guarantees and Capitalized Leases
---------------------------------------------
Promissory Note dated as of September 18, 2003, payable to SYM Financial
Corporation
SCHEDULE 4.12
-------------
Existing Liens
--------------
None.
SCHEDULE 4.16
-------------
Patents, Trademarks, Copyrights and Licenses
--------------------------------------------
License Agreement dated as of April 10, 2000, between Xxxxxx X. Xxxxxxxx
Incorporated and Netfolio, Inc.
SCHEDULE 4.17
-------------
Environmental and Health and Safety Matters
-------------------------------------------
None.
SCHEDULE 4.18
-------------
Existing Investments
--------------------
None.
SCHEDULE 4.22
-------------
Xxxxxxxx Advisory Agreements
----------------------------
1. Restated Management Agreement dated June 30, 2000, executed by Borrower and
Xxxxxxxx Mutual Funds, Inc.
2. Restated Investment Advisory Agreement dated February 28, 2002, executed by
Borrower and The Xxxxxxxx Funds, Inc. (Xxxxxxxx Balanced Fund)
3. Restated Investment Advisory Agreement dated February 28, 2002, executed by
Borrower and The Xxxxxxxx Funds, Inc. (Xxxxxxxx Total Return Fund)
4. Servicing Agreement dated October 1, 2002, executed by Borrower and Xxxxxxxx
Mutual Funds, Inc.
SCHEDULE 5.02(n)
----------------
Restrictive Agreements
----------------------
None.
EXHIBIT A
---------
TERM LOAN PROMISSORY NOTE
-------------------------
$___________ St. Louis, Missouri
March 15, 2004
FOR VALUE RECEIVED, the undersigned, XXXXXXXX ADVISORS, INC., a
California corporation ("Borrower"), hereby promises to pay to the order of U.S.
BANK NATIONAL ASSOCIATION, a national banking association ("Lender"), the
principal sum of _________________________________ Dollars ($ ) in sixty (60)
consecutive monthly installments as follows: fifty nine (59) equal consecutive
monthly installments, in the amount equal to the original principal amount of
this Promissory Note (this "Note") divided by eighty four (84), due and payable
on the tenth (10th) day of each month commencing April 10, 2004, with the
sixtieth (60th) and final installment in the amount of the then outstanding and
unpaid principal balance of this Note due and payable on March 10, 2009.
Borrower further promises to pay to the order of Lender interest on the
unpaid principal balance from time to time outstanding under this Note at the
rate or rates and on the dates set forth in the Loan Agreement (defined below).
All payments received by Lender under this Note shall be allocated
among the principal, interest, fees, collection costs and expenses and other
amounts due under this Note in such order and manner as Lender shall elect. So
long as no Event of Default exists, all payments shall be applied first to
interest, then to reduce the amount of unpaid principal. The amount of interest
accruing under this Note shall be computed on an actual day, 360-day year basis.
All payments of principal, interest, fees and other amounts under this
Note shall be made in lawful currency of the United States in Federal or other
immediately available funds at the office of Lender situated at One XX Xxxx
Xxxxx, 0xx Xxxxxx & Xxxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such
other place as Lender may from time to time designate in writing pursuant to the
Loan Agreement.
Borrower shall have the right to make prepayments on this Note upon the
terms and subject to the conditions contained in the Loan Agreement.
This Note is the Note referred to in, and is subject to the terms of,
the Loan Agreement dated as of the date hereof by and between Borrower and
Lender, as the same may from time to time be amended, modified, extended,
renewed or restated (the "Loan Agreement"; all capitalized terms not otherwise
defined herein shall have the same meanings as ascribed to them in the Loan
Agreement). The Loan Agreement, among other things, contains provisions for
acceleration of the maturity of this Note upon the occurrence of certain stated
events and also for prepayments on account of the principal of this Note and
interest on this Note prior to the maturity of this Note upon the terms and
conditions specified therein.
This Note is secured by, among other things, the Security Agreement and
the Patent, Trademark and License Security Agreement, to which Security
Agreement and Patent, Trademark and License Security Agreement reference is
hereby made for a description of the security and a statement of the terms and
conditions upon which this Note is secured.
If any Event of Default shall occur under or within the meaning of the
Loan Agreement, then the entire outstanding principal balance of this Note and
all accrued and unpaid interest thereon may be declared to be immediately due
and payable in the manner and with the effect as provided in the Loan Agreement.
In the event that any payment of any principal, interest, fees or other
amount due under this Note is not paid when due, whether by reason of demand,
maturity, acceleration or otherwise, and this Note is placed in the hands of an
attorney or attorneys for collection or for foreclosure of the Security
Agreement and/or the Patent, Trademark and License Security Agreement, or if
this Note is placed in the hands of an attorney or attorneys for representation
of Lender in connection with bankruptcy or insolvency proceedings relating to or
affecting this Note, Borrower hereby promises to pay to the order of Lender, in
addition to all other amounts otherwise due on, under or in respect of this
Note, the costs and expenses of such collection, foreclosure and representation,
including, without limitation, Attorneys' Fees (whether or not litigation shall
be commenced in aid thereof). All parties hereto severally waive presentment for
payment, demand for payment, notice of dishonor, protest and notice of protest.
This Note shall be governed by and construed in accordance with the
substantive laws of the State of Missouri (without reference to conflict of law
principles).
(SIGNATURE ON FOLLOWING PAGE)
- 2 -
SIGNATURE PAGE-
TERM LOAN PROMISSORY NOTE
Borrower:
XXXXXXXX ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx, President
- 3 -
EXHIBIT B
---------
[Date]
U.S. Bank National Association
One XX Xxxx Xxxxx, 00xx Xxxxx
0xx Xxxxxx & Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Leveraged Finance Division
Ladies and Gentlemen:
Reference is hereby made to the Loan Agreement dated as of March 15,
2004, by and between Xxxxxxxx Advisors, Inc. ("Borrower") and U.S. Bank National
Association ("Lender"), as the same may from time to time amended, modified,
extended, renewed or restated (the "Loan Agreement"). All capitalized terms used
and not otherwise defined herein (including all capitalized terms used in
Schedule 1 attached hereto) shall have the respective meanings ascribed to them
in the Loan Agreement.
Borrower hereby certifies to Lender that as of the date hereof:
(a) except as set forth below, all of the representations and
warranties made by Borrower and/or any other Obligor in the Loan Agreement
and/or in any other Transaction Document are true and correct in all material
respects on and as of the date of this Certificate as if made on and as of the
date of this Certificate:
Exceptions: ____________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________;
(b) except as set forth below, no Default or Event of Default has
occurred and is continuing:
Exceptions: ____________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________;
(c) the financial statements of Borrower and its Subsidiaries delivered
to you with this letter are true, correct and complete in all material respects
and have been prepared in accordance with GAAP (subject, in the case of any
interim financial statements, to normal year-end adjustments and absence of
footnote disclosures); and
(d) Schedule 1 to this letter is a determination of Borrower's
compliance with the financial covenants set forth in Sections 5.01(o) and
5.02(i) of the Loan Agreement as of ____________, 200__, in each case calculated
in accordance with the Loan Agreement.
Very truly yours,
XXXXXXXX ADVISORS, INC.
By: _____________________________________
Title: __________________________________
- 2 -
SCHEDULE 1
----------
Financial Covenant Information
as of ______________, ________________
A. Minimum Consolidated EBITDA (Section 5.01(o)(i))
(for the [3 months ending 6/30/04] [6 months ending 9/3/04] [9 months
ending 12/31/04] [12 months ending ________________])
1. Consolidated Net Income $___________
2. Consolidated Interest Expense $___________
3. Taxes $___________
4. Depreciation/Amortization $___________
5. Extraordinary Losses $___________
6. Property Losses $___________
7. Subtotal
[A.1 + A.2 + A.3 + A.4 + A.5 + A.6] $___________
8. Extraordinary Gains $___________
9. Property Gains $___________
10. Subtotal
[A.8 + A.9] $___________
11. Consolidated EBITDA
[A.7 - A.10] $_____________
[Minimum Consolidated EBITDA required by Section 5.01(o)(i)- $________]
B. Minimum Consolidated Fixed Charge Coverage Ratio (Section 5.01(o)(ii))
(for the [3 months ending 6/30/04] [6 months ending 9/3/04] [9 months
ending 12/31/04] [12 months ending ______________])
1. Consolidated EBITDA [A.11] $___________
2. Capital Expenditures ($___________)
3. Income Taxes ($___________)
4. Distributions ($___________)
5. Subtotal
[B.1 - B.2 - B.3 - B.4] $___________
6. Scheduled Principal Payments $___________
7. Consolidated Interest Expense $___________
8. Consolidated Fixed Charges
[B.6 + B.7] $___________
9. Consolidated Fixed Charge Coverage Ratio
[B.5 / B.8] _____ to 1.00
- 3 -
[Minimum Consolidated Fixed Charge Coverage Ratio required by
Section 5.01(o)(ii)- _____ to 1.00]
C. Maximum Consolidated Debt to Consolidated EBITDA Ratio (Section
5.01(o)(iii)) (for the [3 months ending 6/30/04] [6 months ending
9/3/04] [9 months ending 12/31/04] [12 months ending ___________])
1. Consolidated Debt $___________
2. Consolidated EBITDA $___________
3. Maximum Consolidated Debt to Consolidated EBITDA Ratio
[C.1 / C.2] _____ to 1.00
[Maximum Consolidated Debt to Consolidated EBITDA Ratio required by
Section 5.01(o)(iii)- _____ to 1.00]
D. Distributions (Section 5.02(i))
(for the fiscal year ending as of ______________, 20__)
Redemptions, repurchases or other acquisitions of
any capital stock or other equity interests $___________
[Maximum redemptions, repurchases or other acquisitions of any capital
stock or other equity interests under Section 5.02(i)- $50,000]
- 4 -
