-74-
1751503
Exhibit 10.19
LOAN AGREEMENT
BY AND AMONG
U.S. BANK NATIONAL ASSOCIATION,
XXXXXXX, INC.
AND
XXXXXXX PROPERTIES, INC.
MARCH 12, 2002
TABLE OF CONTENTS
SECTION 1. DEFINITIONS 1
1.01 Definitions 1
1.02 Continuance of an Event of Default 19
1.03 Accounting Terms and Determinations 19
SECTION 2. LOANS AND LETTERS OF CREDIT 19
2.01 Revolving Credit Commitment 19
2.02 Term Loan Commitment 21
2.03 Letter of Credit Commitment 22
2.04 Method of Borrowing 24
2.05 Notes 25
2.06 Duration of Interest Periods and Selection of Interest Rates
25
2.07 Interest Rates 26
2.08 Computation of Interest 27
2.09 Fees 27
2.10 Method of Making Interest and Other Payments; Application of
Payments 28
2.11 Prepayments 28
2.12 General Provisions as to Payments 29
2.13 Funding Losses 29
2.14 Basis for Determining Interest Rate Inadequate or Unfair 29
2.15 Illegality 30
2.16 Increased Cost 30
2.17 Prime Loans Substituted for Affected LIBOR Loans 31
2.18 Capital Adequacy 31
2.19 Survival of Indemnities 31
2.20 Discretion of Lender as to Manner of Funding 31
2.21 Taxes 31
SECTION 3. PRECONDITIONS TO LOANS AND LETTERS OF CREDIT 32
3.01 Initial Loan or Letter of Credit 32
3.02 All Revolving Credit Loans 37
3.03 All Term Loan Advances 37
3.04 All Letters of Credit 38
SECTION 4. REPRESENTATIONS AND WARRANTIES 38
4.01 Existence and Power 39
4.02 Authorization 39
4.03 Binding Effect 39
4.04 Financial Statements 39
4.05 Litigation 40
4.06 Pension and Welfare Plans 40
4.07 Tax Returns and Payment 40
4.08 Subsidiaries 40
4.09 Compliance With Other Instruments; None Burdensome 41
4.10 Other Debt, Guarantees and Capitalized Leases 41
4.11 Labor Matters 41
4.12 Title to Property 42
4.13 Regulation U 42
4.14 Multi-Employer Pension Plan Amendments Act of 1980 42
4.15 Investment Company Act of 1940; Public Utility Holding Company
Act of 1935 42
4.16 Patents, Trademarks, Copyrights, Licenses, Etc 42
4.17 Environmental and Safety and Health Matters 42
4.18 Investments 43
4.19 No Default 43
4.20 Government Contracts 43
4.21 Purchase and Other Commitments and Outstanding Bids 43
4.22 Disclosure 43
SECTION 5. COVENANTS 44
5.01 Affirmative Covenants of Borrower 44
(a) Information 44
(b) Payment of Indebtedness 45
(c) Books and Records, Consultations and Inspections46
(d) Payment of Taxes 46
(e) Payment of Claims 46
(f) Existence 46
(g) Maintenance of Property 47
(h) Compliance with Laws, Regulations, Etc 47
(i) Environmental Matters 47
(j) ERISA Compliance 47
(k) Notices 48
(l) Insurance 49
(m) Further Assurances 49
(n) Accountant 49
(o) Financial Covenants 49
(p) Subsidiaries 50
(q) Landlord Consents 50
5.02 Negative Covenants of Borrower 50
(a) Limitation on Indebtedness 50
(b) Limitation on Liens 51
(c) Consolidation, Merger, Sale of Property, Etc. 51
(d) Sale and Leaseback Transactions 51
(e) Sale or Discount of Accounts 51
(f) Transactions with Affiliates 51
(g) Changes in Nature of Business 52
(h) Fiscal Year 52
(i) Stock Redemptions and Distributions 52
(j) Pension Plans 52
(k) Subordinated Indebtedness 52
(l) Restricted Investments, Acquisitions 52
(m) Subsidiaries 52
(n) Limitations on Restrictive Agreements 52
5.03 Use of Proceeds 53
SECTION 6. EVENTS OF DEFAULT 53
SECTION 7. GENERAL 57
7.01 No Waiver 57
7.02 Right of Set-Off 57
7.03 Cost and Expenses 58
7.04 Environmental Indemnity 58
7.05 General Indemnity 58
7.06 Authority to Act 59
7.07 Notices 59
7.08 Consent to Jurisdiction; Waiver of Jury Trial 59
7.09 Governing Law 60
7.10 Amendments and Waivers 60
7.11 References; Headings for Convenience 60
7.12 Successors and Assigns 60
7.13 NO ORAL AGREEMENTS; ENTIRE AGREEMENT 60
7.14 Severability 61
7.15 Counterparts 61
7.16 Resurrection of the Borrower's Obligations 61
7.17 Resurrection of the XxXxxxx Properties' Obligations 61
7.18 Independence of Covenants 61
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of the
12th day of March, 2002, by and among XXXXXXX, INC., a Delaware corporation (the
"Company"), XXXXXXX PROPERTIES, INC., a Missouri corporation ("XxXxxxx
Properties"), and U.S. BANK NATIONAL ASSOCIATION ("Lender").
WITNESSETH:
WHEREAS, (a) the Company has applied for a revolving credit facility from
Lender consisting of revolving credit loans and letters of credit in an
aggregate principal amount of up to $15,000,000.00 and (b) XxXxxxx Properties
has applied to Lender for a term loan from Lender in the principal amount of up
to $6,400,000.00; and
WHEREAS, Lender is willing to make said revolving credit facility available
to the Company and to make said term loan available to XxXxxxx Properties 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, the Company, XxXxxxx Properties 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):
Account Debtor shall mean any Person who is and/or may become obligated to
the Company and/or XxXxxxx/STC, Inc. under or on account of any of the Accounts.
Accounts shall mean all trade accounts receivable of each of the Company
and XxXxxxx/STC, Inc. arising out of the bona fide sale of goods and/or
performance of services in the ordinary course of such Person's business which
have been invoiced by such Person.
Acquisition shall mean any transaction or series of related transactions,
consummated on or after the date of this Agreement, by which the Company 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.
Adjusted Prime Rate shall mean the Prime Rate plus the Applicable Prime
Margin. The Adjusted Prime Rate shall be adjusted automatically on and as of the
effective date of any change in the Prime Rate and/or the Applicable Prime
Margin.
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 the Company 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 the Company 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 the Company or any
Subsidiary or (d) who is a director, officer or manager of the Company or any
Subsidiary. 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.
Applicable Commitment Fee Rate, Applicable LIBOR Margin, Applicable Prime
Margin and Applicable Letter of Credit Commitment Fee Rate shall mean the per
annum rate shown in the applicable column below based on the applicable
Consolidated Debt to Consolidated EBITDA Ratio:
If the Applicable Applicable
Consolidated Commitment Applicable Applicable Letter of
Debt to Fee Rate is LIBOR Margin Prime Margin Credit
Consolidated is is Commitment
EBITDA Ratio Fee Rate is
is, then
2.5 to 1.0 0.35% 2.50% 0.75% 2.50%
2.0 to 1.0 but
< 2.5 to 1.0 0.25% 1.75% 0.25% 1.75%
1.5 to 1.0 but
< 2.0 to 1.0 0.20% 1.50% 0.00% 1.50%
< 1.5 to 1.0 0.20% 0.75% -0.25% 0.75%
The determination of the Applicable Commitment Fee Rate, the Applicable LIBOR
Margin, the Applicable Prime Margin and the Applicable Letter of Credit
Commitment Fee Rate as of any date shall be based on the Consolidated Debt to
Consolidated EBITDA Ratio as of the end of the most recently ended fiscal
quarter of the Company for which financial statements of the Company and its
Subsidiaries have been delivered to the Lender pursuant to Section 5.01(a), and
shall be effective for purposes of determining the Applicable Commitment Fee
Rate, the Applicable LIBOR Margin, the Applicable Prime Margin and the
Applicable Letter of Credit Commitment Fee Rate from and after the first day of
the first month immediately following the date on which delivery of such
financial statements is required until the first day of the first month
immediately following the next such date on which delivery of such financial
statements of the Company and its Subsidiaries is so required. For example, the
Consolidated Debt to Consolidated EBITDA Ratio as of the end of the fiscal
quarter of the Company ending March 31, 2002, will be determined from the
financial statements of the Company and its Subsidiaries as of and for the
fiscal quarter of the Company ending March 31, 2002 (which are required to be
delivered to the Lender on or before May 15, 2002), and will be used in
determining the Applicable Commitment Fee Rate, the Applicable LIBOR Margin, the
Applicable Prime Margin and the Applicable Letter of Credit Commitment Fee Rate
from and after June 1, 2002. Notwithstanding the foregoing, during the period
commencing on the date of this Agreement and ending May 31, 2002, (a) Applicable
Commitment Fee Rate shall mean 0.20% per annum, (b) Applicable LIBOR Margin
shall mean 0.75% per annum, (c) Applicable Prime Margin shall mean -0.25% per
annum and (d) Applicable Letter of Credit Commitment Fee Rate shall mean 0.75%
per annum.
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 (including, without
limitation, 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, the Company, XxXxxxx Properties, any other Obligor or any
other Person and whether in bankruptcy or otherwise) in any way or respect
relating to this Agreement, any other Transaction Document, the Company, XxXxxxx
Properties, any other Obligor, any Subsidiary and/or any Collateral, (e) to
protect, collect, lease, sell, take possession of or liquidate any Collateral,
(f) to attempt to enforce any security interest in or other Lien upon any
Collateral or to give any advice with respect to such enforcement and/or (g) to
enforce any of the rights or remedies of Lender to collect any of the Company's
Obligations and/or any Guarantee thereof and/or any of the XxXxxxx Properties'
Obligations and/or any Guarantee thereof.
Borrowing Base shall mean, as of the date of any determination thereof, the
sum of:
(a) Eighty Percent (80%) of the face amount of the Eligible Accounts
of each of the Company and XxXxxxx/STC, Inc. as of such date (less maximum
discounts, credits and allowances which may be taken by or granted to
Account Debtors in connection therewith and/or adjustments for reserves
and allowances deemed appropriate by Lender in its good faith discretion);
plus
(b) the lesser of (i) Forty Percent (40%) of the Eligible Inventory
of each of the Company and XxXxxxx/STC, Inc. as of such date, valued at
the lower of cost or market in accordance with GAAP or (ii)
$10,500,000.00.
Notwithstanding any provision contained in this definition of "Borrowing
Base" to the contrary, Lender may at any time and from time to time, in its sole
and absolute discretion, loan to the Company more than the above stated
percentage of Eligible Accounts and/or more than the above stated percentage of
the value of Eligible Inventory, without notice to the Company; provided,
however, that no such over-advance shall establish a custom or course of dealing
or entitle the Company to any subsequent over-advance under the same or
different circumstances.
Borrowing Base Certificate shall have the meaning ascribed thereto in
Section 2.01(b).
Business Day shall mean any day except a Saturday, Sunday or legal holiday
observed by Lender.
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.
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. 9601 et seq., and as the same may from
time to time be further amended.
Change of Control Event shall mean the beneficial ownership or acquisition
by any Person or group of Persons who are Affiliates (in any transaction or
series of related transactions) of (a) more than Fifty Percent (50%) of the
Voting Stock of the Company, (b) the power to elect, appoint or cause the
election or appointment of at least a majority of the members of the Board of
Directors of the Company or (c) all or substantially all of the assets and
Properties of the Company.
Code shall mean the Internal Revenue Code of 1986, 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 the Code
shall be construed to also refer to any successor sections.
Collateral shall mean any Property of the Company, XxXxxxx Properties
and/or any other Obligor which now or at any time hereafter secures the payment
or performance of any of the Company's Obligations and/or any Guarantee thereof
and/or any of the XxXxxxx Properties' Obligations and/or any Guarantee thereof.
Company Guaranty shall mean that certain Guaranty dated as of the date
hereof and executed by the Company in favor of Lender with respect to the
indebtedness of XxXxxxx Properties to Lender, as the same may from time to time
be amended, modified, extended, renewed or restated.
Company'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 the Company to Lender evidenced by or arising under or in
respect of this Agreement, the Revolving Credit Note, any other Transaction
Document and/or any other agreement, document or instrument heretofore, now or
hereafter executed and delivered by the Company to Lender, 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 any and all costs of collection and/or Attorneys' Fees from time
to time incurred in connection therewith.
Company Patent, Trademark and License Security Agreement shall mean that
certain Patent, Trademark and License Security Agreement dated as of the date
hereof and executed by the Company in favor of Lender, as the same may from time
to time be amended, modified, extended, renewed or restated.
Company Security Agreement shall mean that certain Security Agreement dated
as of the date hereof and executed by the Company in favor of Lender, as the
same may from time to time be amended, modified, extended, renewed or restated.
Consolidated Debt shall mean, as of the date of any determination thereof,
all Debt of the Company and its Subsidiaries (other than any Subordinated
Indebtedness of the Company) as of such date, determined on a consolidated basis
and in accordance with GAAP.
Consolidated Debt to Consolidated EBITDA Ratio shall mean, as of the last
day of any fiscal quarter of the Company, the ratio of (a) Consolidated Debt as
of such day to (b) Consolidated EBITDA for the four (4) consecutive fiscal
quarter period of the Company 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 the Company and its Subsidiaries
during such period (whether paid or deferred), plus (iii) all depreciation and
amortization expenses of the Company 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 plus (vi) any non-cash charge required to be made by
the Company during such period for impairment of goodwill under U.S. Financial
Accounting Standard Number 142 entitled "Goodwill and Other Intangible Assets"
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 Interest Coverage Ratio shall mean, for the period in
question, the ratio of (a) the sum of (i) Consolidated EBITDA during such period
minus (ii) the aggregate amount of all Capital Expenditures made by, and the
aggregate amount of Capitalized Lease Obligations incurred by, the Company and
its Subsidiaries during such period to (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 the Company and its
Subsidiaries (including, without limitation, all commissions, discounts and/or
related amortization and other fees and charges owed by the Company and its
Subsidiaries with respect to letters of credit, the net costs associated with
interest swap obligations of the Company 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
the Company and its Subsidiaries for the period in question, determined on a
consolidated basis and in accordance with GAAP.
Consolidated Net Worth shall mean, as of the date of any determination
thereof, the amount of the capital stock accounts (net of treasury stock, at
cost) of the Company and its Subsidiaries as of such date plus (or minus in the
case of a deficit) the surplus and retained earnings of the Company and its
Subsidiaries as of such date, all determined on a consolidated basis and in
accordance with GAAP.
Consolidated Tangible Net Worth shall mean, as of the date of any
determination thereof, the sum of (a) Consolidated Net Worth as of such date
minus (b) the book value of all Intangible Assets of the Company and its
Subsidiaries as of such date, all 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.
Deed of Trust shall mean that certain Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing dated as of the date hereof
and executed by XxXxxxx Properties in favor of Tarquad Corporation as trustee
for Lender, as the same may from time to time be amended, modified, extended,
renewed or restated.
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.
Eligible Accounts shall mean all Accounts of each of the Company and
XxXxxxx/STC, Inc. other than: (a) Accounts which remain unpaid for more than
ninety (90) days after their invoice dates and Accounts which are not due and
payable within ninety (90) days after their invoice dates; (b) Accounts owing by
a single Account Debtor, including a currently scheduled Account, if Twenty-Five
Percent (25%) or more of the balance owing by said Account Debtor upon said
Accounts is ineligible pursuant to clause (a) above; (c) Accounts with respect
to which the Account Debtor is a shareholder, member or partner of the Company
and/or XxXxxxx/STC, Inc. or an Affiliate; (d) Accounts with respect to which
payment by the Account Debtor is or may be conditional and Accounts commonly
known as xxxx and hold Accounts or Accounts of a similar or like arrangement;
(e) Accounts with respect to which the Account Debtor is not a resident or
citizen of or otherwise located in the continental United States of America,
unless such Accounts are backed in full by an irrevocable letter of credit in
form and substance satisfactory to Lender issued by a domestic commercial bank
acceptable to Lender; (f) Accounts with respect to which the Account Debtor is
the United States of America, any state of the United States or any other
governmental body or any department, agency or instrumentality of any of the
foregoing, unless such Accounts are duly assigned to Lender in accordance with
all applicable governmental and regulatory rules and regulations (including,
without limitation, the Federal Assignment of Claims Act of 1940, as amended, if
applicable) so that Lender is recognized by the Account Debtor to have all of
the rights of an assignee of such Accounts; (g) Accounts with respect to which
the Company or XxXxxxx/STC, Inc., as the case may be, is or may become liable to
the Account Debtor for goods sold or services rendered by such Account Debtor to
the Company or XxXxxxx/STC, Inc., as the case may be, but only to the extent of
the then aggregate liability of the Company or XxXxxxx/STC, Inc., as the case
may be, to such Account Debtor (i.e. the excess of the aggregate face amount of
Accounts of such Account Debtor over the aggregate liability of the Company or
XxXxxxx/STC, Inc., as the case may be, to such Account Debtor shall constitute
an Eligible Account unless otherwise excepted under this definition of Eligible
Accounts); (h) Accounts with respect to which the goods giving rise thereto
have not been shipped and delivered to and accepted as satisfactory by the
Account Debtor thereof or with respect to which the services performed giving
rise thereto have not been completed and accepted as satisfactory by the Account
Debtor thereof; (i) Accounts which are not invoiced (and dated as of such date)
and sent to the Account Debtor thereof concurrently with or not later than five
(5) days after the shipment and delivery to said Account Debtor of the goods
giving rise thereto or the performance of the services giving rise thereto;
(j) Accounts with respect to which possession and/or control of the goods sold
giving rise thereto is held, maintained or retained by the Company or
XxXxxxx/STC, Inc., as the case may be (or by any agent or custodian of the
Company or XxXxxxx/STC, Inc., as the case may be) for the account of or subject
to further and/or future direction from the Account Debtor thereof; (k) Accounts
arising from a consignment sale, a "sale on approval" or a "sale or return";
(l) Accounts as to which Lender, at any time or times hereafter, determines, in
good faith, that the prospects of payment or performance by the Account Debtor
is or will be impaired in any material respect; (m) Accounts of an Account
Debtor to the extent, but only to the extent, that the same exceed a credit
limit determined by Lender in its good faith discretion, at any time or times
hereafter; (n) Accounts which are subject to any dispute, offset, counterclaim,
discount (except for prompt payment discounts that do not exceed Two Percent
(2%) of the invoice amount) or other claim or defense on the part of the Account
Debtor or to any claim on the part of the Account Debtor contesting or denying
liability under such Account; (o) Accounts with respect to which the Account
Debtor is located in the State of New Jersey, the State of Minnesota or the
State of West Virginia; provided, however, that such restriction shall not apply
if the Company or XxXxxxx/STC, Inc., as the case may be, (i) has filed and has
effective (A) in respect of Account Debtors located in the State of New Jersey,
a Notice of Business Activities Report with the State of New Jersey Division of
Taxation for the then current year, (B) in respect of Account Debtors located in
the State of Minnesota, a Minnesota Business Activity Report with the Minnesota
Department of Revenue for the then current year or (C) in respect of Account
Debtors located in the State of West Virginia, a West Virginia Business Activity
Report with the West Virginia Department of Tax and Revenue for the then current
year, as applicable, or (ii) is otherwise exempt from such reporting
requirements under the laws of such State(s); and (p) Accounts which are not
subject to a first priority perfected security interest and lien in favor of
Lender.
Eligible Inventory shall mean all Inventory of each of the Company and
XxXxxxx/STC, Inc. which consists of raw materials, work-in-process or finished
goods (specifically excluding any Inventory of the Company which consists of
packaging materials and/or shipping materials) other than: (a) any Inventory
which is obsolete; (b) any Inventory which Lender has in good faith determined,
in accordance with Lender's customary business practices, is unacceptable due to
age, type, category, quality and/or quantity; (c) any Inventory of the Company
which is not located at a location owned by the Company (including, without
limitation, any Inventory in the possession of a warehouseman or processor for
the Company) unless the Company has obtained and delivered to Lender such
landlord waivers, warehousemen waivers, bailee letters, access and non-offset
agreements and/or other agreements, documents or notices as may be required by
Lender with respect to such Inventory; (d) any Inventory of XxXxxxx/STC, Inc.
which is not located at a location owned by XxXxxxx/STC, Inc. (including,
without limitation, any Inventory in the possession of a warehouseman or
processor for XxXxxxx/STC, Inc.) unless XxXxxxx/STC, Inc. has obtained and
delivered to Lender such landlord waivers, warehousemen waivers, bailee letters,
access and non-offset agreements and/or other agreements, documents or notices
as may be required by Lender with respect to such Inventory; (e) any Inventory
which is held by the Company or XxXxxxx/STC, Inc. on a consignment, "sale on
approval" or "sale or return" basis; (f) any Inventory which is held by a third
party on a consignment, "sale on approval" or "sale or return" basis; (g) any
Inventory which is not located in the continental United States of America; (h)
any Inventory of the Company which is not located at the chief executive office
of the Company, one of the locations listed on Exhibit A to the Company Security
Agreement or another location with respect to which the Company has complied
with all of the requirements of Section 2(h) of the Company Security Agreement;
(i) any Inventory of XxXxxxx/STC, Inc. which is not located at the chief
executive office of XxXxxxx/STC, Inc., one of the locations listed on Exhibit A
to the XxXxxxx/STC Security Agreement or another location with respect to which
XxXxxxx/STC, Inc. has complied with all of the requirements of Section 2(h) of
the XxXxxxx/STC Security Agreement; and (j) any Inventory which is not subject
to a first priority perfected security interest and lien in favor of Lender.
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 the Company 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 the Company or any Subsidiary or the operation, construction or
modification of any such Property, including, without limitation, the following:
CERCLA, the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984,
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.
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 the Company 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.
Eurodollar Business Day shall mean any Business Day on which commercial
bank(s) are open for international business (including dealings in dollar
deposits) in London.
Event of Default shall have the meaning ascribed thereto in Section 6.
Existing Subordinated Notes shall mean those certain 7.5% Convertible
Subordinated Notes due June 2003 of the Company in the aggregate outstanding
principal amount of approximately $5,621,000.00 and any extensions or renewals
thereof.
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.
Guarantor Subsidiary shall mean each of XxXxxxx Wireless, Inc., a Missouri
corporation, XxXxxxx/STC, Inc., a Texas corporation and XxXxxxx - OCS, Inc., a
Delaware corporation; and Guarantor Subsidiaries shall mean all of the
foregoing.
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 the Company 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. 1317),
as amended; (b) regulated as a hazardous waste under Section 1004 or Section
3001 of the Federal Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.), as amended; (c)
defined as a hazardous substance under Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601 et
seq.), 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.
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.
Intangible Assets shall mean all patents, trademarks, service marks,
copyrights, trade names, goodwill (including any amounts, however designated,
representing the cost of acquisition of business and investments in excess of
the book value thereof), unamortized debt discount and expense, unamortized
deferred charges, deferred research and development costs, any write-up of asset
value after the date of this Agreement, non-competition covenants, signing
bonuses, prepaid expenses and other forms of prepaid assets, deferred taxes,
loans, advances and/or other amounts due from shareholders, directors, officers,
managers and/or employees, intercompany accounts, investments in and receivables
due from affiliates, deposits for insurance, utilities and the like and any
other assets treated as intangible assets under GAAP.
Interest Period shall mean:
(a) with respect to each Revolving Credit LIBOR Loan:
(i) initially, the period commencing on the date of such Loan
and ending 1, 2, 3 or 6 months thereafter, as the Company may elect
in the applicable Notice of Borrowing; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Revolving
Credit LIBOR Loan and ending 1, 2, 3 or 6 months thereafter, as the
Company may elect pursuant to Section 2.06(a);
provided that:
(iii) subject to clauses (iv) and (v) below, any Interest
Period which would otherwise end on a day which is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar
Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
immediately preceding Eurodollar Business Day;
(iv) subject to clause (v) below, any Interest Period which
begins on the last Eurodollar Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(v) no Interest Period shall extend beyond the last day of the
Revolving Credit Period; and
(b) with respect to each Term LIBOR Loan:
(i) initially, the period commencing on the date selected by
XxXxxxx Properties in the applicable Interest Rate Selection Notice
and ending 1, 2, 3 or 6 months thereafter, as XxXxxxx Properties may
elect in the applicable Interest Rate Selection Notice; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Term LIBOR
Loan and ending 1, 2, 3 or 6 months thereafter, as XxXxxxx Properties
may elect in the applicable Interest Rate Selection Notice;
provided that:
(iii) no Interest Period for a Term LIBOR Loan shall extend
beyond a date on which XxXxxxx Properties is required to make a
scheduled payment of principal on the Term Loan unless the sum of (A)
the aggregate principal amount of outstanding Term Prime Loans plus
(B) the aggregate principal amount of outstanding Term LIBOR Loans
with Interest Periods expiring on or before the date such scheduled
principal payment is due equals or exceeds the aggregate principal
amount to be paid on the Term Loan on such principal payment date;
(iv) subject to clauses (v) and (vi) below, any Interest Period
which would otherwise end on a day which is not a Eurodollar Business
Day shall be extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the immediately
preceding Eurodollar Business Day;
(v) subject to clause (vi) below, any Interest Period which
begins on the last Eurodollar Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(vi) no Interest Period shall extend beyond the maturity date of
the Term Loan.
Interest Rate Selection Notice shall have the meaning ascribed thereto in
Section 2.06(b).
Inventory shall mean all goods owned by the Company or XxXxxxx/STC, Inc.
and held for sale or lease in the ordinary course of such Person's business.
Investment shall mean any investment (including, without limitation, any
loan or advance) by the Company or any Subsidiary in or to any Person, whether
payment therefor is made in cash or capital stock or other equity interests of
the Company 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, capital contribution, equity or profit sharing interest, extension
of credit on terms other than those normal in the ordinary course of business or
otherwise.
XxXxxxx - OCS Patent, Trademark and License Security Agreement shall mean
that certain Patent, Trademark and License Security Agreement dated as of the
date hereof and executed by XxXxxxx - OCS, Inc. in favor of Lender, as the same
may from time to time be amended, modified, extended, renewed or restated.
XxXxxxx - OCS Security Agreement shall mean that certain Security Agreement
dated as of the date hereof and executed by XxXxxxx - OCS, Inc. in favor of
Lender, as the same may from time to time be amended, modified, extended,
renewed or restated.
XxXxxxx Properties' 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 XxXxxxx Properties to Lender evidenced by or arising under or in
respect of this Agreement, the Term Loan Note, any other Transaction Document
and/or any other agreement, document or instrument heretofore, now or hereafter
executed and delivered by XxXxxxx Properties to Lender, 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 any and all costs of collection and/or Attorneys' Fees from time
to time incurred in connection therewith.
XxXxxxx/STC Patent, Trademark and License Security Agreement shall mean
that certain Patent, Trademark and License Security Agreement dated as of the
date hereof and executed by XxXxxxx/STC, Inc. in favor of Lender, as the same
may from time to time be amended, modified, extended, renewed or restated.
XxXxxxx/STC Security Agreement shall mean that certain Security Agreement
dated as of the date hereof and executed by XxXxxxx/STC, Inc. in favor of
Lender, as the same may from time to time be amended, modified, extended,
renewed or restated.
XxXxxxx Wireless Patent, Trademark and License Security Agreement shall
mean that certain Patent, Trademark and License Security Agreement dated as of
the date hereof and executed by XxXxxxx Wireless, Inc. in favor of Lender, as
the same may from time to time be amended, modified, extended, renewed or
restated.
XxXxxxx Wireless Security Agreement shall mean that certain Security
Agreement dated as of the date hereof and executed by XxXxxxx Wireless, Inc. in
favor of Lender, as the same may from time to time be amended, modified,
extended, renewed or restated.
Lender's Revolving Credit Commitment shall mean, subject to reduction as
set forth in Section 2.01(e), the sum of $15,000,000.00.
Letter of Credit and Letters of Credit shall have the respective meanings
ascribed thereto in Section 2.03(a).
Letter of Credit Application shall mean an application and agreement for
irrevocable standby letter of credit in the form of Exhibit E attached hereto
and incorporated herein by reference (or such other form as may then be Lender's
standard form of application and agreement for irrevocable standby letter of
credit) or an application and agreement for irrevocable commercial letter of
credit in the form of Exhibit F attached hereto and incorporated herein by
reference (or such other form as may then be Lender's standard form of
application and agreement for irrevocable commercial letter of credit), as the
case may be, in either case executed by the Company, as applicant and account
party, and delivered to Lender pursuant to Section 2.03, as the same may from
time to time be amended, modified, extended, renewed or restated.
Letter of Credit Commitment Fee shall have the meaning ascribed thereto in
Section 2.03(d).
Letter of Credit Issuance Fee shall have the meaning ascribed thereto in
Section 2.03(d).
Letter of Credit Negotiation Fee shall have the meaning ascribed thereto in
Section 2.03(d).
Letter of Credit Request shall have the meaning ascribed thereto in Section
2.03(a).
LIBOR Base Rate shall mean, with respect to the applicable Interest Period,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available or
(b) if the LIBOR Index Rate is not available, the average (rounded upward, if
necessary, to the next higher 1/10,000 of 1%) of the respective rates per annum
of interest at which deposits in U.S. Dollars are offered to Lender in the
London interbank market by two (2) Eurodollar dealers of recognized standing,
selected by Lender in its sole discretion, at or about 11:00 a.m. (London time)
on the date two (2) Eurodollar Business Days before the first day of such
Interest Period, for delivery on the first day of the applicable Interest Period
for a number of days comparable to the number of days in such Interest Period
and in an amount approximately equal to the principal amount of the LIBOR Loan
to which such Interest Period is to apply.
LIBOR Index Rate shall mean, with respect to the applicable Interest
Period, a rate per annum (rounded upwards, if necessary, to the next higher
1/10,000 of 1%) equal to the British Bankers' Association interest settlement
rates for U.S. Dollar deposits for such Interest Period as of 11:00 a.m. (London
time) on the day two (2) Eurodollar Business Days before the first day of such
Interest Period as published by Bloomberg Financial Services, Dow Xxxxx Market
Service, Telerate, Reuters or any other service from time to time used by
Lender.
LIBOR Loan shall mean any Loan or portion of any Loan bearing interest
based on the LIBOR Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate divided
by (ii) one minus the applicable LIBOR Reserve Percentage plus (b) the
Applicable LIBOR Margin. The LIBOR Rate shall be adjusted automatically on and
as of the effective date of any change in the LIBOR Reserve Percentage and/or
the Applicable LIBOR Margin.
LIBOR Reserve Percentage shall mean for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by The Board of
Governors of the Federal Reserve System (or any successor), for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental, emergency, special or marginal reserves) with respect to
"Eurocurrency liabilities" as defined in Regulation D or with respect to any
other category of liabilities which includes deposits by reference to which the
interest rate on LIBOR Loans is determined, whether or not Lender has any
Eurocurrency liabilities subject to such reserve requirement at such time.
LIBOR Loans shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without the benefit of any
credits for proration, exceptions or offsets which may be available from time to
time to Lender. The LIBOR Rate shall be adjusted automatically on and as of the
effective date of any change in the LIBOR Reserve Percentage.
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 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, leases and other title exceptions and
encumbrances affecting Property.
Loan shall mean each Revolving Credit Loan and the Term Loan and Loans
shall mean any or all of the foregoing.
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 the Company, XxXxxxx Properties, any other
Obligor and/or any Subsidiary, (b) material impairment of the ability of the
Company, XxXxxxx Properties and/or any other Obligor to perform any of its
obligations under this Agreement, any 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, any 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 the Company,
any Subsidiary or any ERISA Affiliate or to which the Company, any Subsidiary or
any ERISA Affiliate has contributed in the past or currently contributes.
Notes shall mean the Revolving Credit Note and the Term Loan Note.
Notice of Borrowing shall have the meaning ascribed thereto in Section
2.04.
Obligor shall mean the Company, XxXxxxx Properties, each Guarantor
Subsidiary and each other Person who is or shall at any time hereafter become
primarily or secondarily liable on any of the Company's Obligations and/or any
of the XxXxxxx Properties' Obligations or who grants Lender a Lien upon any of
the Property of such Person as security for any of the Company's Obligations
and/or any Guarantee thereof and/or any of the XxXxxxx Properties' 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 2.21.
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 the Company, 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 the Company;
(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 the Company 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 Company 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 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 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.
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 Loan shall mean any Loan or any portion of any Loan bearing interest
based on the Adjusted Prime Rate.
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). The Company 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.
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, the Company 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. 6901 et seq., and any future amendments.
Regulation D shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as from time to time amended.
Regulatory Change shall have the meaning ascribed thereto in Section 2.16.
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.
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 the Company to any Guarantor Subsidiary;
(b) loans and/or advances by any Subsidiary to the Company which are
subordinated in writing to the payment of the Company's Obligations in
form and substance satisfactory to Lender;
(c) 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);
(d) Investments in readily marketable commercial paper which, at the
time of acquisition thereof by the Company or any Subsidiary, is rated A-1
or better by S&P and P-1 or better by Xxxxx'x 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
Xxxxx'x;
(e) 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);
(f) 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);
(g) 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; and
(h) in addition to any such loans and advances 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), loans or advances in the usual and ordinary course of
business to officers and/or employees of the Company or a Subsidiary for
business expenses in the aggregate principal amount of up to $200,000.00
at any one time outstanding.
Revolving Credit LIBOR Loan shall mean any Revolving Credit Loan bearing
interest based on the LIBOR Rate.
Revolving Credit Loan and Revolving Credit Loans shall have the respective
meanings ascribed thereto in Section 2.01(a).
Revolving Credit Note shall have the meaning ascribed thereto in Section
2.05(a).
Revolving Credit Period shall mean the period commencing on the date of
this Agreement and ending September 30, 2004; provided, however, that the
Revolving Credit Period shall end on the date the Lender's Revolving Credit
Commitment is terminated pursuant to Section 6 or otherwise.
Revolving Credit Prime Loan shall mean any Revolving Credit Loan bearing
interest based on the Adjusted Prime Rate.
S&P shall mean Standard and Poor's Ratings Group.
Stock Pledge Agreement shall mean that certain Stock Pledge Agreement dated
as of the date hereof and executed by the Company 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 the Company
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 the Company's Obligations in form and substance satisfactory to Lender,
including, without limitation, the Existing Subordinated Notes.
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 the Company or any Subsidiary.
Subsidiary Guaranty shall mean that certain Guaranty dated as of the date
hereof and executed by the Guarantor Subsidiaries in favor of Lender with
respect to the indebtedness of the Company to Lender, as the same may from time
to time be amended, modified, extended, renewed or restated.
Swap Documents shall mean that certain ISDA Master Agreement dated as of
the date hereof by and between XxXxxxx Properties and Lender, together with any
and all schedules, confirmations and other agreements, documents and instruments
from time to time executed by the parties in connection therewith, each as the
same may from time to time be amended, modified, extended, renewed or restated.
Taxes shall have the meaning ascribed thereto in Section 2.21.
Term LIBOR Loan shall mean any portion of any Term Loan bearing interest
based on the LIBOR Rate.
Term Loan shall have the meaning ascribed thereto in Section 2.02.
Term Loan Advance Notice shall have the meaning ascribed thereto in Section
2.02.
Term Loan Advance Period shall have the meaning ascribed thereto in Section
2.02.
Term Loan Note shall have the meaning ascribed thereto in Section 2.05(b).
Term Prime Loan shall mean any portion of any Term Loan bearing interest
based on the Adjusted Prime Rate.
Total Revolving Credit Outstandings shall mean, as of any date, the sum of
(a) the aggregate principal amount of all Revolving Credit Loans outstanding as
of such date, plus (b) the aggregate undrawn face amount of all Letters of
Credit outstanding as of such date plus all unreimbursed drawings with respect
thereto.
Transaction Documents shall mean this Agreement, the Notes, the Letter of
Credit Applications, the Company Guaranty, the Subsidiary Guaranty, the Company
Security Agreement, the Company Patent, Trademark and License Security
Agreement, the Stock Pledge Agreement, the Deed of Trust, the XxXxxxx - OCS
Security Agreement, the XxXxxxx - OCS Patent, Trademark and License Security
Agreement, the XxXxxxx/STC Security Agreement, the XxXxxxx/STC Patent, Trademark
and License Security Agreement, the XxXxxxx Wireless Security Agreement, the
XxXxxxx Wireless Patent Trademark and License Security Agreement, the Swap
Documents 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
Letters of Credit issued hereunder, any of the Company's Obligations, any
Guarantee of any of the Company's Obligations, any of the XxXxxxx Properties'
Obligations and/or any Guarantee of any of the XxXxxxx Properties Obligations,
and executed by or on behalf of the Company, XxXxxxx Properties and/or any other
Obligor, including, without limitation, any agreement, document or instrument
heretofore, now or hereafter executed by the Company and/or XxXxxxx Properties
with or in favor of Lender providing for any interest rate swap, interest rate
cap or other interest rate hedge, all as the same may from time to time be
amended, modified, extended, renewed or restated.
Unused Availability shall mean, as of any date, the sum of (a) the lesser
of (i) the amount of Lender's Revolving Credit Commitment as of such date or
(ii) the Borrowing Base as of such date minus (b) the Total Revolving Credit
Outstandings as of such date.
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 the Company, 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 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 the Company's independent
certified public accountants and by Lender) with the most recent audited
financial statements of the Company delivered to Lender.
SECTION 2. LOANS AND LETTERS OF CREDIT.
2.01 Revolving Credit Commitment.
(a) 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, during
the Revolving Credit Period, Lender agrees to make such loans to the Company
(individually, a "Revolving Credit Loan" and collectively, the "Revolving Credit
Loans") as the Company may from time to time request pursuant to Section 2.04.
Each Revolving Credit Loan under this Section 2.01(a) which is a Revolving
Credit Prime Loan shall be for an aggregate principal amount of at least
$100,000.00 or any larger multiple of $25,000.00. Each Revolving Credit Loan
under this Section 2.01(a) which is a Revolving Credit LIBOR Loan shall be for
an aggregate principal amount of at least $500,000.00 or any larger multiple of
$100,000.00. The aggregate principal amount of Revolving Credit Loans which
Lender shall be required to have outstanding under this Agreement as of any date
shall not exceed the sum of (i) the lesser of (A) the amount of Lender's
Revolving Credit Commitment as of such date or (B) the Borrowing Base as of such
date minus (ii) the aggregate undrawn face amount of all Letters of Credit
outstanding as of such date plus all unreimbursed drawings with respect thereto.
In no event shall the Total Revolving Credit Outstandings as of any date exceed
the lesser of (i) the amount of Lender's Revolving Credit Commitment as of such
date or (ii) the Borrowing Base as of such date. Within the foregoing limits,
the Company may borrow under this Section 2.01(a), prepay under Section 2.11 and
reborrow at any time during the Revolving Credit Period under this Section
2.01(a). All Revolving Credit Loans not paid prior to the last day of the
Revolving Credit Period, together with all accrued and unpaid interest thereon
and all fees and other amounts owing by the Company to Lender with respect
thereto, shall be due and payable on the last day of the Revolving Credit
Period.
(b) The Company shall deliver to Lender on the date of execution of this
Agreement (with respect to the fiscal month of Borrower ended on February 24,
2002) and by the fifteenth (15th) day of each calendar month hereafter
commencing April 15, 2002 (or at such other intervals as Lender shall require
from time to time), a borrowing base certificate in the form of Exhibit A
attached hereto and incorporated herein by reference (or in such other form as
Lender shall require from time to time) (each, a "Borrowing Base Certificate")
(together with such supporting information as Lender may reasonably request in
connection therewith) setting forth:
(i) the Borrowing Base and its components as of the end of the
immediately preceding calendar month;
(ii) the aggregate principal amount of all Revolving Credit Loans
outstanding as of the end of the immediately preceding calendar month;
(iii) the aggregate undrawn face amount of all Letters of Credit
outstanding as of the end of the immediately preceding calendar month plus
all unreimbursed drawings with respect thereto; and
(iv) the difference, if any, between the Borrowing Base and the sum
of the Total Revolving Credit Outstandings as of the end of the
immediately preceding calendar month.
The Borrowing Base shown in such Borrowing Base Certificate (subject to
adjustment for collections of Accounts received by Lender since the date of such
Borrowing Base Certificate) shall be and remain the Borrowing Base hereunder
until the next Borrowing Base Certificate is delivered to Lender, at which time
the Borrowing Base shall be the amount shown in such subsequent Borrowing Base
Certificate. Each Borrowing Base Certificate shall be certified as to truth and
accuracy by the President or the chief financial officer of the Company.
(c) If the Total Revolving Credit Outstandings on any date are greater
than the Borrowing Base on such date, the Company shall be automatically
required (without demand or notice of any kind by Lender, all of which are
hereby expressly waived by the Company) to immediately repay the Revolving
Credit Loans and/or surrender for cancellation the outstanding Letters of
Credit, in either case in an amount sufficient to reduce the amount of the Total
Revolving Credit Outstandings to an amount equal to or less than the amount of
the Borrowing Base.
(d) If the amount of Lender's Revolving Credit Commitment on any date is
less than the Total Revolving Credit Outstandings on such date, whether as a
result of the Company's election to decrease the amount of Lender's Revolving
Credit Commitment pursuant to Section 2.01(e) or otherwise, the Company shall be
automatically required (without demand or notice of any kind by Lender, all of
which are hereby expressly waived by the Company) to immediately repay the
Revolving Credit Loans and/or surrender for cancellation the outstanding Letters
of Credit, in either case in an amount sufficient to reduce the amount of the
Total Revolving Credit Outstandings to an amount equal to or less than the
amount of Lender's Revolving Credit Commitment.
(e) The Company may, upon five (5) Business Days' prior written notice to
Lender, terminate entirely at any time, or reduce from time to time by an
aggregate amount of $1,000,000.00 or any larger multiple of $500,000.00 the
unused portions of Lender's Revolving Credit Commitment; provided, however, that
(i) at no time shall the amount of Lender's Revolving Credit Commitment be
reduced to a figure less than the Total Revolving Credit Outstandings, (ii) at
no time shall the amount of Lender's Revolving Credit Commitment be reduced to a
figure greater than zero but less than $1,000,000.00 and (iii) any such
termination or reduction shall be permanent and the Company shall have no right
to thereafter reinstate or increase, as the case may be, Lender's Revolving
Credit Commitment. If (i) the Revolving Credit Commitments have been terminated
in full, (ii) no Letters of Credit shall remain outstanding, (iii) all of the
Company's Obligations have been indefeasibly paid in full in cash and (iv) all
of the XxXxxxx Properties' Obligations have been indefeasibly paid in full in
cash, then this Agreement shall terminate.
2.02 Term 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 XxXxxxx Properties in the aggregate principal
amount of up to $6,400,000.00 (the "Term Loan"). The Term Loan may be funded in
multiple advances from time to time during the period commencing on the date of
this Agreement and ending October 31, 2002 (the "Term Loan Advance Period");
provided, however, that the maximum aggregate principal amount of all advances
on the Term Loan shall not exceed $6,400,000.00. No advances may be made on the
Term Loan after the last day of the Term Loan Advance Period. No principal
repaid during the term of the Term Loan may be reborrowed. The Term Loan shall
mature on October 31, 2009 (on which date all unpaid principal and all accrued
and unpaid interest shall become due and payable). Principal on the Term Loan
Note shall be due and payable in eighty-four (84) consecutive monthly
installments as follows: eighty-three (83) consecutive monthly installments each
in an amount equal to one three-hundredth (1/300th) of the outstanding principal
balance of the Term Loan on October 31, 2002, due and payable on the first (1st)
day of each month commencing December 1, 2002, with the eighty-fourth (84) and
final installment in the amount of the then outstanding and unpaid principal
balance of the Term Loan due and payable on October 31, 2009. All principal
payments and prepayments on the Term Loan shall, unless otherwise directed by
XxXxxxx Properties in writing at or prior to the time of such payment or
prepayment, be applied first to that portion of the Term Loan, if any, accruing
interest based on the Adjusted Prime Rate and then to those portions of the Term
Loan, if any, accruing interest based on the LIBOR Rate (and among those
portions of the Term Loan, if any, accruing interest based on the LIBOR Rate,
being applied to the Interest Periods in the order of their respective
expiration dates (i.e. earliest expiration date first)).
Subject to the terms and conditions set forth in this Agreement, Lender
will make advances on the Term Loan at any time and from time to time during the
Term Loan Advance Period, upon timely prior written notice ("Term Loan Advance
Notice") from XxXxxxx Properties to Lender specifying (a) the desired amount of
the advance and (b) the date on which the proceeds of such advance are to be
made available to XxXxxxx Properties, which must be a Business Day. Such Term
Loan Advance Notice shall be in the form of the notice attached hereto as
Exhibit H and shall be accompanied by supporting documentation acceptable to
Lender evidencing XxXxxxx Properties' intended use of such funds for the
purposes set forth in Section 5.03 of this Agreement. Each Term Loan Advance
Notice must be received by Lender at least three (3) Business Days before the
date on which the applicable advance is to be made. Subject to the terms and
conditions of this Agreement, provided that Lender has received the Term Loan
Advance Notice, Lender shall (unless Lender determines that any applicable
condition specified in Section 3 has not been satisfied) make the applicable
advance to XxXxxxx Properties by crediting the amount of such advance to a
demand deposit account of XxXxxxx Properties at Lender specified by XxXxxxx
Properties (or such other account mutually agreed upon in writing between Lender
and XxXxxxx Properties) not later than 4:00 p.m. (St. Louis time) on the
Business Day specified in said Term Loan Advance Notice.
XxXxxxx Properties hereby irrevocably authorizes Lender to rely on
telephonic, telegraphic, telecopy, telex or written instructions of any
individual identifying himself or herself as one of the individuals listed on
Schedule 2.04 attached hereto (or any other individual from time to time
authorized to act on behalf of XxXxxxx Properties pursuant to a resolution
adopted by the Board of Directors of XxXxxxx Properties and certified by the
Secretary of XxXxxxx Properties and delivered to Lender) with respect to any
request to make an advance on the Term Loan or a repayment under this Agreement,
and on any signature which Lender believes to be genuine, and XxXxxxx Properties
shall be bound thereby in the same manner as if such individual were actually
authorized or such signature were genuine. XxXxxxx Properties also hereby
agrees to defend and indemnify Lender and hold Lender harmless from and against
any and all claims, demands, damages, liabilities, losses and reasonable costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) relating to or arising out of or in connection with the acceptance of
instructions for making advances on the Term Loan or repayments under this
Agreement.
2.03 Letter of Credit Commitment.
(a) Subject to the terms and conditions of this Agreement and so long as
no Default or Event of Default has occurred and is continuing, during the
Revolving Credit Period, Lender hereby agrees to issue irrevocable commercial
and/or standby letters of credit for the account of the Company (individually, a
"Letter of Credit" and collectively, the "Letters of Credit") in an amount and
for the term specifically requested by the Company by notice in writing to
Lender in the form of Exhibit D attached hereto and incorporated herein by
reference (a "Letter of Credit Request") at least three (3) Business Days prior
to the requested issuance thereof; provided, however, that:
(i) the Company shall have executed and delivered to Lender a Letter
of Credit Application with respect to such Letter of Credit;
(ii) the term of any such Letter of Credit shall not extend beyond the
earlier of (A) the date one (1) year after the date of issuance thereof or
(B) the last day of the Revolving Credit Period;
(iii) any Letter of Credit may only be utilized to guaranty the
payment of obligations of the Company or a Subsidiary to third parties;
(iv) the Total Revolving Credit Outstandings shall not as of any date
exceed the lesser of (A) the amount of the Lender's Revolving Credit
Commitment as of such date or (B) the Borrowing Base as of such date;
(v) the sum of the aggregate undrawn face amount of all outstanding
Letters of Credit plus all unreimbursed drawings with respect thereto shall
not as of any date exceed the lesser of (A) the lesser of (1) the amount of
Lender's Revolving Credit Commitment as of such date or (2) the Borrowing
Base as of such date or (B) $7,000,000.00; and
(vi) the text of any such Letter of Credit is provided to Lender no
less than three (3) Business Days prior to the requested issuance date,
which text must be acceptable to Lender in its sole and absolute
discretion.
(b) The payment of drafts under each Letter of Credit shall be made in
accordance with the terms thereof and, in that connection, Lender shall be
entitled to honor any drafts and accept any documents presented to it by the
beneficiary of such Letter of Credit in accordance with the terms of such Letter
of Credit and the related Letter of Credit Application and believed in good
faith by Lender to be genuine. Lender shall not have any duty to inquire as to
the accuracy or authenticity of any draft or other drawing document that may be
presented to it other than the duties contemplated by the applicable Letter of
Credit Application.
(c) In the event of any payment by Lender of a draft presented under a
Letter of Credit, the Company agrees to pay to Lender in immediately available
funds at the time of such drawing an amount equal to the sum of such drawing
plus Lender's customary negotiation, processing and other fees related thereto.
The Company hereby authorizes Lender to charge or cause to be charged one or
more of the Company's bank accounts at Lender to the extent there are balances
of immediately available funds therein, in an aggregate amount equal to the sum
of such drawing plus Lender's customary negotiation, processing and other fees
related thereto, and the Company agrees to pay the amount of any such drawing
(and/or Lender's customary negotiation, processing and other fees related
thereto) not so charged prior to the close of business of Lender on the day of
such drawing. In the event any payment under a Letter of Credit is made by
Lender prior to receipt of payment from the Company, such payment by Lender
shall constitute a request by the Company for a Revolving Credit Prime Loan
under Section 2.01(a) above (and Lender shall have the right to make such
Revolving Credit Prime Loan to the Company regardless of whether any Default or
Event of Default under this Agreement has occurred and is continuing and
regardless of whether such Revolving Credit Prime Loan would otherwise be
permitted under the requirements of Sections 2.01 of this Agreement) and the
proceeds of such Revolving Credit Prime Loan shall be paid directly to Lender
and applied by Lender to the payment of any amounts owed by the Company to
Lender under this Section 2.03.
(d) The Company hereby further agrees to pay to the order of Lender:
(i) with respect to each Letter of Credit which is a standby Letter
of Credit, a nonrefundable issuance fee in the amount of $125.00 and with
respect to each Letter of Credit which is a commercial Letter of Credit, a
nonrefundable issuance fee in the amount of $50.00 (the "Letter of Credit
Issuance Fees"), which Letter of Credit Issuance Fees shall be due and
payable on the date of issuance of each such Letter of Credit;
(ii) with respect to each Letter of Credit which is a standby Letter
of Credit, a nonrefundable commitment fee at a rate per annum equal to (A)
so long as no Event of Default has occurred and is continuing, the
Applicable Letter of Credit Commitment Fee Rate (calculated on an actual
day, 365/366-day year basis) and (B) so long as any Event of Default has
occurred and is continuing, Three Percent (3%) over and above the
Applicable Letter of Credit Commitment Fee Rate (calculated on an actual
day, 365/366-day year basis), on the undrawn face amount of each such
Letter of Credit ("Letter of Credit Commitment Fees"), which Letter of
Credit Commitment Fees shall be due and payable quarterly in arrears on the
first (1st) day of each January, April, July and October during the
Revolving Credit Period and on the last day of the Revolving Credit Period;
and
(iii) with respect to each Letter of Credit which is a commercial
Letter of Credit, a nonrefundable negotiation fee in an amount equal to (A)
so long as no Event of Default has occurred and is continuing, Three-
Eighths of One Percent (3/8%) and (B) so long as any Event of Default has
occurred and is continuing, Three and Three-Eighths Percent (3-3/8%), of
the amount of each draw on each such Letter of Credit, with a minimum fee
of $85.00 per draw ("Letter of Credit Negotiation Fee"), which Letter of
Credit Negotiation Fee shall be due and payable on the date of each draw of
each such Letter of Credit; and
(iv) with respect to each Letter of Credit, such other fees (other
than additional issuance fees, additional commitment fees and/or additional
negotiation fees) as may be charged by Lender from time to time in
accordance with Lender's published schedule of fees in effect from time to
time, which fees shall be due and payable on demand by Lender.
(e) Notwithstanding any provision contained in this Agreement to the
contrary, if any Letters of Credit remain outstanding on the last day of the
Revolving Credit Period, the Company shall, on or before 12:00 noon (St. Louis
time) on the last day of the Revolving Credit Period, (a) surrender the
originals of the applicable Letter(s) or Credit to Lender for cancellation or
(b) provide Lender with cash collateral (or other collateral acceptable to
Lender in its sole and absolute discretion) in an amount at least equal to the
aggregate undrawn face amount of all outstanding Letter(s) of Credit plus all
unreimbursed drawings with respect thereto and execute and deliver to Lender
such agreements as Lender may require to grant Lender a first priority perfected
security interest in such cash or other collateral. Any such cash collateral
received by Lender pursuant to this Section 2.03(e) shall be held by Lender in a
separate account at U.S. Bank National Association appropriately designated as
cash collateral accounts in relation to this Agreement and the Letters of Credit
and retained by Lender as collateral security for the payment of the Company's
Obligations. Cash amounts delivered to Lender pursuant to the foregoing
requirements of this Section 2.03(e) shall be invested, at the request and for
the account of the Company in investments of a type and nature and with a term
acceptable to Lender. Such amounts, including in the case of cash amounts
invested in the manner set forth above, shall not be used by Lender to pay any
amounts drawn or paid under or pursuant to any Letter of Credit, but may be
applied to reimburse Lender for drawings or payments under or pursuant to such
Letters of Credit which Lender has paid, or if no such reimbursement is required
to the payment of such of the other the Company's Obligations as Lender shall
determine. Any amounts remaining in any cash collateral account established
pursuant to this Section 2.03(e) after the payment in full of all of the
Company's Obligations and the expiration or cancellation of all of the Letters
of Credit shall be returned to the Company (after deduction of Lender's
reasonable expenses, if any).
2.04 Method of Borrowing Revolving Credit Loans.
(a) The Company shall give Lender oral or written notice (a "Notice of
Borrowing") by 2:00 p.m. (St. Louis time) on the Business Day of each Revolving
Credit Prime Loan to be made to the Company, and by 2:00 p.m. (St. Louis time)
at least three (3) Eurodollar Business Days before each Revolving Credit LIBOR
Loan to be made to the Company, specifying:
(i) the date of such Revolving Credit Loan, which shall be a
Business Day during the Revolving Credit Period in the case of a Revolving
Credit Prime Loan and a Eurodollar Business Day during the Revolving
Credit Period in the case of a Revolving Credit LIBOR Loan,
(ii) the aggregate principal amount of such Revolving Credit Loan,
(iii) whether such Revolving Credit Loan is to be a Revolving
Credit Prime Loan or a Revolving Credit LIBOR Loan, and
(iv) in the case of a Revolving Credit LIBOR Loan, the duration of
the initial Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
(b) A Notice of Borrowing shall not be revocable by the Company.
(c) Subject to the terms and conditions of this Agreement, provided that
Lender has received the Notice of Borrowing, Lender shall (unless Lender
determines that any applicable condition specified in Section 3 has not been
satisfied) make the applicable Revolving Credit Loan to the Company by crediting
the amount of such Revolving Credit Loan to a demand deposit account of the
Company at Lender specified by the Company (or such other account mutually
agreed upon in writing between Lender and the Company) not later than 4:00 p.m.
(St. Louis time) on the Business Day specified in said Notice of Borrowing.
(d) If Lender makes a new Revolving Credit Loan under this Agreement on a
day on which the Company is required to or has elected to repay all or any part
of an outstanding Revolving Credit Loan, Lender shall apply the proceeds of its
new Revolving Credit Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by Lender to the Company as provided in Section
2.04(c), or remitted by the Company to Lender as provided in Section 2.12, as
the case may be.
(e) The Company hereby irrevocably authorizes Lender to rely on
telephonic, telegraphic, telecopy, telex or written instructions of any
individual identifying himself or herself as one of the individuals listed on
Schedule 2.04 attached hereto (or any other individual from time to time
authorized to act on behalf of the Company pursuant to a resolution adopted by
the Board of Directors of the Company and certified by the Secretary of the
Company and delivered to Lender) with respect to any request to make a Revolving
Credit Loan or a repayment under this Agreement, and on any signature which
Lender believes to be genuine, and the Company shall be bound thereby in the
same manner as if such individual were actually authorized or such signature
were genuine. the Company also hereby agrees to defend and indemnify Lender and
hold Lender harmless from and against any and all claims, demands, damages,
liabilities, losses and reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) relating to or arising out
of or in connection with the acceptance of instructions for making Revolving
Credit Loans or repayments under this Agreement.
2.05 Notes.
(a) The Revolving Credit Loans of Lender to the Company shall be evidenced
by a Revolving Credit Note of the Company payable to the order of Lender in a
principal amount equal to the maximum amount of Lender's Revolving Credit
Commitment, which Revolving Credit Note shall be in substantially the form of
Exhibit B 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 "Revolving Credit Note").
(b) The Term Loan of Lender to XxXxxxx Properties shall be evidenced by a
Term Loan Promissory Note of XxXxxxx Properties payable to the order of Lender
in the principal amount of up to $6,400,000.00, which Term Loan Promissory Note
shall be in substantially the form of Exhibit C 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 "Term Loan Note").
(c) Lender shall record in its books and records the date, amount, type
and Interest Period (if any) of each Loan made by it to the Company and/or
XxXxxxx Properties and the date and amount of each payment of principal and/or
interest made by the Company and/or XxXxxxx Properties with respect thereto;
provided, however, that the obligation of the Company and XxXxxxx Properties to
repay each Loan made to it by Lender under this Agreement 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 each of
the Company and XxXxxxx Properties shall be admissible in evidence in any action
or proceeding and shall constitute prima facie proof of the items therein set
forth.
2.06 Duration of Interest Periods and Selection of Interest Rates.
(a) The duration of the initial Interest Period for each Revolving Credit
LIBOR Loan shall be as specified in the applicable Notice of Borrowing. The
Company shall elect the duration of each subsequent Interest Period applicable
to such Revolving Credit LIBOR Loan and the interest rate to be applicable
during such subsequent Interest Period (and the Company shall have the option
(i) in the case of any Revolving Credit Prime Loan, to elect that such Revolving
Credit Loan become a Revolving Credit LIBOR Loan and the Interest Period to be
applicable thereto, and (ii) in the case of any Revolving Credit LIBOR Loan, to
elect that such Revolving Credit Loan become a Revolving Credit Prime Loan), by
giving notice of such election to Lender by 2:00 p.m. (St. Louis time) on the
Business Day of, in the case of the election of the Prime Rate, and by 2:00 p.m.
(St. Louis time) at least three (3) Eurodollar Business Days before, in the case
of the election of the LIBOR Rate, the end of the immediately preceding Interest
Period applicable thereto, if any; provided, however, that notwithstanding the
foregoing, in addition to and without limiting the rights and remedies of Lender
under Section 6 of this Agreement, so long as any Default or Event of Default
under this Agreement has occurred and is continuing, the Company shall not be
permitted to renew any Revolving Credit LIBOR Loan as a Revolving Credit LIBOR
Loan or to convert any Revolving Credit Prime Loan into a Revolving Credit LIBOR
Loan. If Lender does not receive a notice of election for a Revolving Credit
Loan pursuant to this Section 2.06(a) within the applicable time limits
specified herein, the Company shall be deemed to have elected to pay such
Revolving Credit Loan in whole pursuant to Section 2.11 on the last day of the
current Interest Period with respect thereto and to reborrow the principal
amount of such Revolving Credit Loan on such date as a Revolving Credit Prime
Loan.
(b) The Term Loan shall bear interest on the outstanding principal amount
thereof at a rate per annum equal to the Adjusted Prime Rate. So long as no
Default or Event of Default under this Agreement has occurred and is continuing,
XxXxxxx Properties may from time to time fix the interest rate on all or any
portion of the Term Loan in an amount not less than $500,000.00 or any larger
multiple of $100,000.00 at the LIBOR Rate for the Interest Period selected by
XxXxxxx Properties (subject to the definition of Interest Period). If XxXxxxx
Properties elects to have any portion of the Term Loan bear interest at the
LIBOR Rate, XxXxxxx Properties shall give oral or written notice (an "Interest
Rate Selection Notice") to Lender by 2:00 p.m. (St. Louis time) at least three
(3) Eurodollar Business Days before any date (which must be a Eurodollar
Business Day) upon which XxXxxxx Properties desires to fix the interest rate on
any portion of the Term Loan, which Interest Rate Selection Notice shall specify
the portion of the Term Loan which is to bear interest at the LIBOR Rate and the
initial Interest Period applicable thereto. XxXxxxx Properties may not revoke
or rescind any Interest Rate Selection Notice. Unless XxXxxxx Properties shall
have otherwise notified Lender in accordance with this Section 2.06(b), upon the
expiration of any Interest Period, the applicable Term LIBOR Loan shall
automatically convert to a Term Prime Loan upon the expiration of such Interest
Period.
(c) The Company and XxXxxxx Properties, on a combined basis, may not have
outstanding and Lender shall not be obligated to make more than six (6) LIBOR
Loans at any one time.
2.07 Interest Rates.
(a) So long as no Event of Default has occurred and is continuing, each
Revolving Credit Prime Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Revolving Credit Prime Loan is
made until it becomes due, at a rate per annum equal to the Adjusted Prime Rate.
So long as any Event of Default has occurred and is continuing, each Revolving
Credit Prime Loan shall bear interest on the outstanding principal amount
thereof, for each day from the date such Revolving Credit Prime Loan is made
until it becomes due, at a rate per annum equal to Three Percent (3%) over and
above the Adjusted Prime Rate. Such interest shall be payable monthly in
arrears on the first (1st) day of each month commencing on the first such date
after such Revolving Credit Prime Loan is made, and at the maturity of the
Revolving Credit Note (whether by reason of acceleration or otherwise). From
and after the maturity of the Revolving Credit Note, whether by reason of
acceleration or otherwise, each Revolving Credit Prime Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to Three
Percent (3%) over and above the Adjusted Prime Rate.
(b) So long as no Event of Default has occurred and is continuing, each
Revolving Credit LIBOR Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period applicable thereto at a rate per annum
equal to the applicable LIBOR Rate. So long as any Event of Default has
occurred and is continuing, each Revolving Credit LIBOR Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period applicable
thereto at a rate per annum equal to Three Percent (3%) over and above the
applicable LIBOR Rate. Interest shall be payable for each Interest Period on
the last day thereof, unless the duration of such Interest Period exceeds three
(3) months, in which case such interest shall be payable at the end of the first
three (3) months of such Interest Period and on the last day of such Interest
Period, and at the maturity of the Revolving Credit Note (whether by reason of
acceleration or otherwise). From and after the maturity of the Revolving Credit
Note, whether by reason of acceleration or otherwise, each Revolving Credit
LIBOR Loan shall bear interest, payable on demand, for each day until paid, at a
rate per annum equal to Three Percent (3%) over and above the higher of (i) the
LIBOR Rate for the immediately preceding Interest Period applicable to such
Revolving Credit LIBOR Loan or (ii) the Adjusted Prime Rate.
(c) So long as no Event of Default has occurred and is continuing, each
Term Prime Loan shall bear interest on the outstanding principal amount thereof
for each day until paid at a rate per annum equal to the Adjusted Prime Rate.
So long as any Event of Default has occurred and is continuing, each Term Prime
Loan shall bear interest on the outstanding principal amount thereof for each
day until paid at a rate per annum equal to Three Percent (3%) over and above
the Adjusted Prime Rate. Such interest shall be payable monthly in arrears on
the first (1st) day of each month commencing April 1, 2002, and at the maturity
of the Term Loan Note (whether by reason of acceleration or otherwise). From
and after the maturity of the Term Loan Note, whether by reason of acceleration
or otherwise, each Term Prime Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to Three Percent (3%) over and
above the Adjusted Prime Rate.
(d) So long as no Event of Default has occurred and is continuing, each
Term LIBOR Loan shall bear interest on the outstanding principal amount thereof
for each Interest Period applicable thereto at a rate per annum equal to the
applicable LIBOR Rate. So long as any Event of Default has occurred and is
continuing, each Term LIBOR Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period applicable thereto at a rate
per annum equal to Three Percent (3%) over and above the applicable LIBOR Rate.
Interest shall be payable for each Interest Period on the last day thereof,
unless the duration of such Interest Period exceeds three (3) months, in which
case such interest shall be payable at the end of the first three (3) months of
such Interest Period and on the last day of such Interest Period, and at the
maturity of the Term Loan Note (whether by reason of acceleration or otherwise).
From and after the maturity of the Term Loan Note, whether by reason of
acceleration or otherwise, each Term LIBOR Loan shall bear interest, payable on
demand, for each day until paid, at a rate per annum equal to Three Percent (3%)
over and above the higher of (i) the LIBOR Rate for the immediately preceding
Interest Period applicable to such Term LIBOR Loan or (ii) the Adjusted Prime
Rate.
(e) Lender shall determine each interest rate applicable to the Loans
under this Agreement and its determination thereof shall be conclusive in the
absence of demonstrable error.
2.08 Computation of Interest. Interest on Prime Loans hereunder shall be
computed on the basis of a year of 365/366 days and paid for the actual number
of days elapsed (including the first day but excluding the last day). Interest
on LIBOR Loans shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed, calculated as to each Interest Period from
and including the first day thereof to but excluding the last day thereof.
2.09 Fees.
(a) From and including the date of this Agreement to but excluding the
last day of the Revolving Credit Period, the Company shall pay a nonrefundable
commitment fee on the unused portion of Lender's Revolving Credit Commitment
(determined by subtracting the Total Revolving Credit Outstandings from the
amount of Lender's Revolving Credit Commitment) at the Applicable Commitment Fee
Rate. Said commitment fee shall be (i) calculated on a daily basis, (ii)
payable quarterly in arrears on the first (1st) day of each January, April, July
and October during the Revolving Credit Period commencing April 1, 2002, and on
the last day of the Revolving Credit Period and (iii) calculated on an actual
day, 365/366-day year basis.
(b) If the Company fails to make any payment of any principal of or
interest on any Revolving Credit 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, the Company shall pay Lender on
demand with respect to each such late payment a late fee in an amount equal to
the greater of $100.00 or Five Percent (5%) of the amount of each such late
payment.
(c) If XxXxxxx Properties fails to make any payment of any principal of or
interest on the Term 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, XxXxxxx Properties shall pay Lender on
demand with respect to each such late payment a late fee in an amount equal to
the greater of $100.00 or Five Percent (5%) of the amount of each such late
payment.
2.10 Method of Making Interest and Other Payments; Application of Payments.
Lender may, at its option, deem interest, fees and other amounts payable by the
Company under this Agreement and the other Transaction Documents (other than the
principal balance of the Revolving Credit Loans) to be paid by causing a
Revolving Credit Prime Loan to be made to the Company in such amount(s).
2.11 Prepayments.
(a) The Company may, upon notice to Lender specifying that it is paying
the Revolving Credit Prime Loans, pay without penalty or premium the Revolving
Credit Prime Loans in whole at any time or in part from time to time, by paying
the principal amount to be paid.
(b) The Company may, upon at least three (3) Eurodollar Business Day's
notice to Lender specifying that it is paying the Revolving Credit LIBOR Loans,
pay the Revolving Credit LIBOR Loans to which a given Interest Period applies,
in whole, or in part in amounts aggregating $100,000.00 or any larger multiple
of $100,000.00, by paying the principal amount to be paid together with all
accrued and unpaid interest thereon to and including the date of payment and any
funding losses and other amounts payable under Section 2.13; provided, however,
that in no event may the Company make a partial payment of Revolving Credit
LIBOR Loans which results in the total outstanding Revolving Credit LIBOR Loans
with respect to which a given Interest Period applies being greater than $0.00
but less than $500,000.00.
(c) XxXxxxx Properties may, upon at least three (3) Eurodollar Business
Day's prior notice to Lender, prepay all at any time or any portion from time to
time of the unpaid principal balance of the Term Loan prior to maturity provided
that: (i) contemporaneously with each such prepayment XxXxxxx Properties shall
pay all accrued and unpaid interest on the portion of the Term Loan being
prepaid to and including the date of prepayment; (ii) partial prepayments shall
be applied to the installments of principal of the Term Loan in the inverse
order of their stated maturities; (iii) partial prepayments shall be in an
aggregate amount of at least $100,000.00 or any larger multiple of $100,000.00;
(iv) in no event may XxXxxxx Properties make any prepayment on any Term LIBOR
Loan which results in the remaining portion of the Term LIBOR Loan with respect
to which a given Interest Period applies being greater than $0.00 but less than
$500,000.00; and (v) if XxXxxxx Properties is making a prepayment on a Term
LIBOR Loan, XxXxxxx Properties shall pay Lender the funding losses and other
amounts, if any, required under Section 2.13.
(d) A notice of prepayment from the Company and/or XxXxxxx Properties may
not be revoked.
2.12 General Provisions as to Payments. Each of the Company and XxXxxxx
Properties shall make each payment of principal of, and interest on, the Loans
and of fees and all other amounts payable by the Company and/or XxXxxxx
Properties under this Agreement, not later than 2:00 p.m. (St. Louis time) on
the date when due and payable, in Federal or other funds immediately available
in St. Louis, Missouri, to Lender at its address referred to in Section 7.07.
All payments received by Lender after 2:00 p.m. (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.
2.13 Funding Losses. Notwithstanding any provision contained in this
Agreement to the contrary, if (a) the Company or XxXxxxx Properties shall make
any payment of principal with respect to any LIBOR Loan on any day other than
the last day of the Interest Period applicable thereto, whether as a result of a
scheduled payment, a voluntary prepayment, a mandatory prepayment, maturity,
acceleration or otherwise, (b) any LIBOR Loan is converted to a Prime Loan
pursuant to Section 2.14, Section 2.15 or Section 2.16 on any day other than the
last day of the Interest Period applicable thereto or (c), the Company or
XxXxxxx Properties fails to borrow or pay any LIBOR Loan after notice has been
given to by the Company to Lender in accordance with Section 2.04, 2.06, 2.11 or
otherwise, contemporaneously with each such payment, conversion or failure to
borrow or pay, the Company or XxXxxxx Properties, as the case may be, shall
reimburse Lender on demand for any resulting losses and expenses incurred by
Lender, including, without limitation, any losses incurred in obtaining,
liquidating or employing deposits from third parties and any loss of margin for
the period after any such payment, conversion or failure to borrow, provided
that Lender shall have delivered to the Company or XxXxxxx Properties, as the
case may be, a certificate as to the amount of such losses and expenses, which
certificate shall be conclusive in the absence of demonstrable error.
2.14 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to any Interest Period:
(a) deposits in dollars (in the applicable amounts) are not being
offered to Lender in the relevant market for such Interest Period, or
(b) Lender determines that the LIBOR Rate as determined pursuant to
the definition thereof will not adequately and fairly reflect the cost to
Lender of maintaining or funding the LIBOR Loans for such Interest Period,
Lender shall forthwith give notice thereof to the Company and XxXxxxx Properties
which notice shall set forth in detail the basis for such notice, whereupon
until Lender notifies the Company and XxXxxxx Properties that the circumstances
giving rise to such suspension no longer exist, (i) the LIBOR Rate shall not be
available to the Company or XxXxxxx Properties as an interest rate option on any
Loans, (ii) all of the then outstanding Revolving Credit LIBOR Loans shall
automatically convert to Revolving Credit Prime Loans on the last day of the
then current Interest Period applicable to each such Revolving Credit LIBOR Loan
and (iii) all of the then outstanding Term LIBOR Loans shall automatically
convert to Term Prime Loans on the last day of the then current Interest Period
applicable to each such Term LIBOR Loan. Interest accrued on each such LIBOR
Loan prior to any such conversion shall be due and payable on the date of such
conversion together with any funding losses and other amounts due under Section
2.13.
2.15 Illegality. If, after the date of this Agreement, the adoption of any
applicable law, rule or regulation, 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
(whether or not having the force of law) of any such governmental or regulatory
authority, central bank or comparable agency shall make it unlawful or
impossible for Lender to make, maintain or fund LIBOR Loans to the Company
and/or XxXxxxx Properties, Lender shall forthwith give notice thereof to the
Company and XxXxxxx Properties. Upon receipt of such notice, each of the
Company and XxXxxxx Properties shall convert all of its then outstanding LIBOR
Loans on either (a) the last day of the then current Interest Period applicable
to such LIBOR Loan if Lender may lawfully continue to maintain and fund such
LIBOR Loan to such day or (b) immediately if Lender may not lawfully continue to
fund and maintain such LIBOR Loan to such day, to a Prime Loan of the same type
(i.e., a Revolving Credit Prime Loan or a Term Prime Loan) in an equal principal
amount. Interest accrued on each such LIBOR Loan prior to any such conversion
shall be due and payable on the date of such conversion together with any
funding losses and other amounts due under Section 2.13.
2.16 Increased Cost.
(a) If (i) Regulation D or (ii) after the date hereof, the adoption of any
applicable law, rule or regulation, 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
(whether or not having the force of law) of any such governmental or regulatory
authority, central bank or comparable agency (a "Regulatory Change"):
(A) shall subject Lender to any tax, duty or other charge with
respect to the LIBOR Loans, the Notes or its obligation to make LIBOR
Loans, or shall change the basis of taxation of payments to Lender of the
principal of or interest on the LIBOR Loans or any other amounts due under
this Agreement in respect of the LIBOR Loans or its obligation to make
LIBOR Loans (except for taxes on or changes in the rate of tax on the
overall net income of Lender); or
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System), special deposit, capital or similar requirement
against assets of, deposits with or for the account of, or credit extended
or committed to be extended by, Lender or shall, with respect to Lender
impose, modify or deem applicable any other condition affecting the LIBOR
Loans, the Notes or Lender's obligation to make LIBOR Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose a cost on or increase the cost to) Lender of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by Lender under this Agreement or under any of the Notes
with respect thereto, by an amount deemed by Lender to be material, and if
Lender is not otherwise fully compensated for such increase in cost or reduction
in amount received or receivable by virtue of the inclusion of the reference to
"LIBOR Reserve Percentage" in the calculation of the LIBOR Rate, then upon
notice by Lender to the Company and XxXxxxx Properties, which notice shall set
forth Lender's supporting calculations and the details of the Regulatory Change,
each of the Company and XxXxxxx Properties shall pay Lender, as additional
interest, such additional amount or amounts as will compensate Lender for such
increased cost or reduction. The determination by Lender under this Section of
the additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of demonstrable error. In determining such amount or amounts,
Lender may use any reasonable averaging and attribution methods.
(b) If Lender demands compensation under Section 2.16(a) above, the
Company and/or XxXxxxx Properties may at any time, upon at least three (3)
Eurodollar Business Day's prior notice to Lender, convert its then outstanding
LIBOR Loans to Prime Loans of the same type (i.e., a Revolving Credit Prime Loan
or a Term Prime Loan) in an equal principal amount. Interest accrued on each
such LIBOR Loan prior to any such conversion shall be due and payable on the
date of such conversion together with any funding losses and other amounts due
under Section 2.13 and this Section 2.16.
2.17 Prime Loans Substituted for Affected LIBOR Loans. If notice has been
given by Lender pursuant to Sections 2.14 or 2.15 or by the Company and/or
XxXxxxx Properties pursuant to Section 2.16 requiring LIBOR Loans to be repaid
or converted to Prime Loans, then, unless and until Lender notifies the Company
and XxXxxxx Properties that the circumstances giving rise to such repayment or
conversion no longer apply, all Loans which would otherwise be made by Lender to
the Company or XxXxxxx Properties as LIBOR Loans shall be made instead as Prime
Loans. Lender shall promptly notify the Company and XxXxxxx Properties if and
when the circumstances giving rise to such repayment or conversion no longer
apply.
2.18 Capital Adequacy. If, after the date of this Agreement, Lender shall
have determined in good faith that the adoption 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 each of the Company and XxXxxxx Properties shall pay to Lender upon
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 demonstrable error. In determining such
amount or amounts, Lender may use any reasonable averaging and attribution
methods.
2.19 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, Sections 2.13, 2.14,
2.15, 2.16 and 2.18 hereof, shall survive the payment of the Notes, the other
Company's Obligations and the other XxXxxxx Properties' Obligations and the
termination of this Agreement until the expiration of all applicable statute of
limitation periods.
2.20 Discretion of Lender as to Manner of Funding. Notwithstanding any
provision contained in this Agreement to the contrary, Lender shall be entitled
to fund and maintain its funding of all or any part of the LIBOR Loans in any
manner it elects, it being understood, however, that for purposes of this
Agreement all determinations hereunder (including, without limitation, the
determination of Lender's funding losses and expenses under Section 2.13) shall
be made as if Lender had actually funded and maintained each LIBOR Loan through
the purchase of deposits having a maturity corresponding to the maturity of the
applicable Interest Period relating to the applicable LIBOR Loan and bearing an
interest rate equal to the applicable LIBOR Base Rate.
2.21 Taxes.
(a) Any and all payments by each of the Company and XxXxxxx Properties to
or for the account of Lender under or in respect of this Agreement, any 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, by the jurisdiction under the
laws of which the Lender is organized or any political subdivision thereof (all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Company or XxXxxxx Properties shall be required by law to deduct any Taxes from
or in respect of any sum payable by it to Lender under or in respect of this
Agreement, any 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
2.21(a)) Lender receives an amount equal to the sum it would have received had
no such deduction of Taxes been made, (ii) the Company or XxXxxxx Properties, as
the case may be, shall make such deductions, (iii) the Company or XxXxxxx
Properties, as the case may be, shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law
and (iv) the Company or XxXxxxx Properties, as the case may be, 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, each of the Company and XxXxxxx Properties 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
by it under or in respect of this Agreement, any Note and/or any other
Transaction Document or from the execution or delivery of, or otherwise with
respect to, this Agreement, any Note and/or any other Transaction Document
(hereinafter referred to as "Other Taxes").
(c) Each of the Company and XxXxxxx Properties hereby 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 2.21), 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.
(d) The provisions of this Section 2.21 shall survive any expiration or
termination of this Agreement and the payment of the Notes, the other Company's
Obligations and the other XxXxxxx Properties' Obligations until the expiration
of all applicable statute of limitation periods.
SECTION 3. PRECONDITIONS TO LOANS AND LETTERS OF CREDIT.
3.01 Initial Loan or Letter of Credit. Notwithstanding any provision
contained in this Agreement to the contrary, Lender shall have no obligation to
make the initial Loan under this Agreement or to issue the initial Letter of
Credit under this Agreement unless Lender shall have first received:
(a) this Agreement, duly executed by the Company and XxXxxxx
Properties;
(b) the Revolving Credit Note, duly executed by the Company;
(c) the Term Loan Note, duly executed by the Company;
(d) the Company Security Agreement (which must be in form and
substance satisfactory to Lender) and such Uniform Commercial Code
financing statements and other documents as Lender may require in
connection therewith, each duly executed by the Company;
(e) the Company Patent, Trademark and License Security Agreement
(which must be in form and substance satisfactory to Lender) and such
Uniform Commercial Code financing statements and other documents as Lender
may require in connection therewith, each duly executed by the Company;
(f) the Stock Pledge Agreement (which must be in form and substance
satisfactory to Lender) and such Uniform Commercial Code financing
statements, original stock certificates, stock powers and other documents
as Lender may require in connection therewith, each duly executed by the
Company;
(g) the Deed of Trust (which must be in form and substance
satisfactory to Lender) and such Uniform Commercial Code financing
statements and other documents as Lender may require in connection
therewith, each duly executed by XxXxxxx Properties;;
(e) a title commitment for an ALTA Loan Policy (Form 1970) for the
real property covered by the Deed of Trust in an amount acceptable to
Lender, with no exceptions unless previously approved by Lender and with
such affirmative coverages as Lender shall require, including, without
limitation, a zoning endorsement, a comprehensive endorsement (CLTA Form
100), a future advance endorsement, a tie-in endorsement, a survey
endorsement, an access endorsement and a last dollar endorsement;
(f) copies of all recorded plats and title exceptions affecting the
real property covered by the Deed of Trust;
(g) a survey of the real property covered by the Deed of Trust
satisfying title insurer and ALTA minimum standard detail requirements
including improvements, utilities, easements, rights-of-way, restrictions
and building lines, adjacent streets and flood plain certification;
(h) an appraisal of the real property covered by the Deed of Trust
showing a fair market value for such real property of at least
$7,600,000.00;
(i) a Phase I environmental assessment of the real property covered
by the Deed of Trust in form and substance satisfactory to Lender;
(j) the Company Guaranty (which must be in form and substance
satisfactory to Lender), duly executed by the Company;
(k) the Subsidiary Guaranty (which must be in form and substance
satisfactory to Lender), duly executed by the Guarantor Subsidiaries;
(l) the XxXxxxx - OCS Security Agreement (which must be in form and
substance satisfactory to Lender) and such Uniform Commercial Code
financing statements and other documents as Lender may require in
connection therewith, each duly executed by XxXxxxx - OCS, Inc.;
(m) the XxXxxxx - OCS Patent, Trademark and License Security
Agreement (which must be in form and substance satisfactory to Lender) and
such Uniform Commercial Code financing statements and other documents as
Lender may require in connection therewith, each duly executed by XxXxxxx -
OCS, Inc.;
(n) the XxXxxxx/STC Security Agreement (which must be in form and
substance satisfactory to Lender) and such Uniform Commercial Code
financing statements and other documents as Lender may require in
connection therewith, each duly executed by XxXxxxx/STC, Inc.;
(o) the XxXxxxx/STC Patent, Trademark and License Security Agreement
(which must be in form and substance satisfactory to Lender) and such
Uniform Commercial Code financing statements and other documents as Lender
may require in connection therewith, each duly executed by XxXxxxx/STC,
Inc.;
(p) the XxXxxxx Wireless Security Agreement (which must be in form
and substance satisfactory to Lender) and such Uniform Commercial Code
financing statements and other documents as Lender may require in
connection therewith, each duly executed by XxXxxxx Wireless, Inc.;
(q) the XxXxxxx Wireless Patent, Trademark and License Security
Agreement (which must be in form and substance satisfactory to Lender) and
such Uniform Commercial Code financing statements and other documents as
Lender may require in connection therewith, each duly executed by XxXxxxx
Wireless, Inc.;
(r) a copy of resolutions of the Board of Directors of the Company,
duly adopted, which authorize the execution, delivery and performance of
the Transaction Documents executed by the Company, certified by the
Secretary of the Company;
(s) a copy of resolutions of the Board of Directors of XxXxxxx
Properties, duly adopted, which authorize the execution, delivery and
performance of the Transaction Documents executed by XxXxxxx Properties,
certified by the Secretary of XxXxxxx Properties;
(t) a copy of resolutions of the Board of Directors of XxXxxxx - OCS,
Inc., duly adopted, which authorize the execution, delivery and performance
of the Transaction Documents executed by XxXxxxx - OCS, Inc., certified by
the Secretary of XxXxxxx - OCS, Inc.;
(u) a copy of resolutions of the Board of Directors of XxXxxxx/STC,
Inc., duly adopted, which authorize the execution, delivery and performance
of the Transaction Documents executed by XxXxxxx/STC, Inc., certified by
the Secretary of XxXxxxx/STC, Inc.;
(v) a copy of resolutions of the Board of Directors of XxXxxxx
Wireless, Inc., duly adopted, which authorize the execution, delivery and
performance of the Transaction Documents executed by XxXxxxx Wireless,
Inc., certified by the Secretary of XxXxxxx Wireless, Inc.;
(w) a copy of the Certificate or Articles of Incorporation of the
Company, including any amendments thereto, certified by the Secretary of
State of the State of Delaware;
(x) a copy of the Certificate or Articles of Incorporation of XxXxxxx
Properties, including any amendments thereto, certified by the Secretary of
State of the State of Missouri;
(y) a copy of the Certificate or Articles of Incorporation of XxXxxxx
- OCS, Inc., including any amendments thereto, certified by the Secretary
of State of the State of Delaware;
(z) a copy of the Certificate or Articles of Incorporation of
XxXxxxx/STC, Inc., including any amendments thereto, certified by the
Secretary of State of the State of Texas;
(aa) a copy of the Certificate or Articles of Incorporation of XxXxxxx
Wireless, Inc., including any amendments thereto, certified by the
Secretary of State of the State of Missouri;
(bb) a copy of the By-Laws of the Company, including any amendments
thereto, certified by the Secretary of the Company;
(cc) a copy of the By-Laws of XxXxxxx Properties, including any
amendments thereto, certified by the Secretary of XxXxxxx Properties;
(dd) a copy of the By-Laws of XxXxxxx - OCS, Inc., including any
amendments thereto, certified by the Secretary of XxXxxxx - OCS, Inc.;
(ee) a copy of the By-Laws of XxXxxxx/STC, Inc., including any
amendments thereto, certified by the Secretary of XxXxxxx/STC, Inc.;
(ff) a copy of the By-Laws of XxXxxxx Wireless, Inc., including any
amendments thereto, certified by the Secretary of XxXxxxx Wireless, Inc.;
(gg) an incumbency certificate, executed by the Secretary of the
Company, which shall identify by name and title and bear the signatures of
all of the officers of the Company executing any of the Transaction
Documents;
(hh) an incumbency certificate, executed by the Secretary of XxXxxxx
Properties, which shall identify by name and title and bear the signatures
of all of the officers of XxXxxxx Properties executing any of the
Transaction Documents;
(ii) an incumbency certificate, executed by the Secretary of XxXxxxx -
OCS, Inc., which shall identify by name and title and bear the signatures
of all of the officers of XxXxxxx - OCS, Inc. executing any of the
Transaction Documents;
(jj) an incumbency certificate, executed by the Secretary of
XxXxxxx/STC, Inc., which shall identify by name and title and bear the
signatures of all of the officers of XxXxxxx/STC, Inc. executing any of the
Transaction Documents;
(kk) an incumbency certificate, executed by the Secretary of XxXxxxx
Wireless, Inc., which shall identify by name and title and bear the
signatures of all of the officers of XxXxxxx Wireless, Inc. executing any
of the Transaction Documents;
(ll) certificates of corporate good standing of the Company issued by
the Secretaries of States of the States of Delaware, Missouri, Oklahoma and
Arkansas;
(mm) a certificate of corporate good standing of XxXxxxx Properties
issued by the Secretary of State of the State of Missouri;
(nn) certificates of corporate good standing of XxXxxxx - OCS, Inc.
issued by the Secretaries of States of the State of Delaware, Missouri and
Kansas;
(oo) certificates of corporate good standing of XxXxxxx/STC, Inc.
issued by the Secretaries of States of the States of Texas and Missouri;
(pp) a certificate of corporate good standing of XxXxxxx Wireless,
Inc. issued by the Secretary of State of the State of Missouri;
(qq) an opinion of counsel of Suelthaus & Xxxxx, P.C., outside counsel
to the Company, XxXxxxx Properties and the Guarantor Subsidiaries, in form
and substance satisfactory to Lender and Lender's counsel;
(rr) the initial Borrowing Base Certificate required by Section
2.01(c);
(ss) the Notice of Borrowing required by Section 2.04;
(tt) evidence of the proper filing of UCC-1 Financing Statements
perfecting first priority security interests in favor of Lender in all of
the Collateral;
(uu) UCC-3 Termination Statements for all UCC-1 Financing Statements
filed of record against the Company, XxXxxxx Properties and/or any
Guarantor Subsidiary other than UCC-1 Financing Statements relating to
Permitted Liens;
(vv) 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 insurance company;
(ww) copies of all financial statements and other Exhibits and
Schedules required by this Agreement and the other Transaction Documents;
(xx) a letter of direction from the Company with respect to the
disbursement of the proceeds of the initial Revolving Credit Loan(s) under
this Agreement;
(yy) a letter of direction from XxXxxxx Properties with respect to the
disbursement of the proceeds of the initial portion of the Term Loan under
this Agreement;
(zz) such mortgagee, bailee, landlord or warehousemen's waivers as
Lender may deem necessary regarding locations at which any Collateral is or
will be stored or otherwise located;
(aaa) pay-off letters from Bank of America, N.A. in form and
substance satisfactory to Lender;
(bbb) 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 the Company and/or XxXxxxx Properties on or prior to the date of
disbursement of the initial Loan under this Agreement or the date of the
issuance of the initial Letter of Credit under this Agreement 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, and in all cases in
which the waiver is not stated to be permanent Lender may at any time subsequent
thereto insist upon compliance and satisfaction of any such condition as a
condition to any subsequent Loan and/or any subsequent Letter of Credit under
this Agreement and failure to the Company and/or XxXxxxx Properties to comply
with any such condition within five (5) Business Day's written notice from
Lender to the Company and XxXxxxx Properties shall constitute an Event of
Default.
3.02 All Revolving Credit Loans. Notwithstanding any provision contained
in this Agreement to the contrary, Lender shall have no obligation to make any
Revolving Credit Loan under this Agreement unless:
(a) Lender shall have received a current Borrowing Base Certificate
as required by Section 2.01(b);
(b) Lender shall have received a Notice of Borrowing for such
Revolving Credit Loan as required by Section 2.04;
(c) both immediately before and immediately after giving effect to
such Loan, no Default or Event of Default shall have occurred and be
continuing;
(d) no material adverse change in the Properties, assets,
liabilities, business, operations, prospects, income or condition
(financial or otherwise) of the Company, XxXxxxx Properties any other
Obligor and/or any Subsidiary shall have occurred since the date of this
Agreement and be continuing; and
(e) all of the representations and warranties made by the Company,
XxXxxxx Properties and/or any other Obligor in this Agreement and/or in any
other Transaction Document shall be true and correct in all material
respects on and as of the date of such Loan as if made on and as of the
date of such Loan (and for purposes of this Section 3.02(e), the
representations and warranties made by the Company and XxXxxxx Properties
in Section 4.04 shall be deemed to refer to the most recent financial
statements of the Company delivered to Lender pursuant to Section 5.01(a)).
Each request for a Loan by the Company under this Agreement shall be deemed
to be a representation and warranty by the Company on the date of such Loan as
to the facts specified in clauses (c), (d) and (e) of this Section 3.02.
3.03 All Term Loan Advances. Notwithstanding any provision contained in
this Agreement to the contrary, Lender shall have no obligation to make any
advance on the Term Loan under this Agreement unless:
(a) Lender shall have received a Term Loan Advance Notice for such
advance as required by Section 2.02;
(b) both immediately before and immediately after giving effect to
such advance, no Default or Event of Default shall have occurred and be
continuing;
(c) no material adverse change in the Properties, assets,
liabilities, business, operations, prospects, income or condition
(financial or otherwise) of the Company, XxXxxxx Properties any other
Obligor and/or any Subsidiary shall have occurred since the date of this
Agreement and be continuing; and
(d) all of the representations and warranties made by the Company,
XxXxxxx Properties and/or any other Obligor in this Agreement and/or in any
other Transaction Document shall be true and correct in all material
respects on and as of the date of such advance as if made on and as of the
date of such advance (and for purposes of this Section 3.03(d), the
representations and warranties made by the Company and XxXxxxx Properties
in Section 4.04 shall be deemed to refer to the most recent financial
statements of the Company delivered to Lender pursuant to Section 5.01(a)).
Each request for an advance on the Term Loan by XxXxxxx Properties
under this Agreement shall be deemed to be a representation and warranty by
XxXxxxx Properties on the date of such advance as to the facts specified in
clauses (b), (c) and (d) of this Section 3.03.
3.04 All Letters of Credit. Notwithstanding any provision contained in
this Agreement to the contrary, Lender shall have no obligation to issue any
Letter of Credit under this Agreement unless:
(a) Lender shall have received a current Borrowing Base Certificate
as required by Section 2.01(b);
(b) Lender shall have received a Letter of Credit Request for such
Letter of Credit as required by Section 2.03(a);
(c) Lender shall have received a Letter of Credit Application for
such Letter of Credit as required by Section 2.03(a), duly executed by the
Company as account party and applicant;
(d) the Company shall have complied with all of the procedures and
requirements set forth in Section 2.03;
(e) both immediately before and immediately after giving effect to
the issuance of such Letter of Credit, no Default or Event of Default shall
have occurred and be continuing;
(f) no material adverse change in the Properties, assets,
liabilities, business, operations, income or condition (financial or
otherwise) of the Company, XxXxxxx Properties any other Obligor and/or any
Subsidiary shall have occurred since the date of this Agreement and be
continuing;
(g) all of the representations and warranties made by the Company,
XxXxxxx Properties and/or any other Obligor in this Agreement and/or in any
other Transaction Document shall be true and correct in all material
respects on and as of the date of the issuance of such Letter of Credit as
if made on and as of the date of the issuance of such Letter of Credit (and
for purposes of this Section 3.03(g), the representations and warranties
made by the Company and XxXxxxx Properties in Section 4.04 shall be deemed
to refer to the most recent financial statements of the Company delivered
to the Lender pursuant to Section 5.01(a)); and
(h) Lender shall have received such other documents, certificates and
agreements as it may reasonably request.
Each request for the issuance of a Letter of Credit by the Company under
this Agreement shall be deemed to be a representation and warranty by the
Company on the date of the issuance of such Letter of Credit as to the facts
specified in clauses (e), (f) and (g) of this Section 3.03.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each of the Company and XxXxxxx Properties hereby represents and warrants
to Lender that:
4.01 Existence and Power. The Company and each Subsidiary: (a) is duly
incorporated or organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization; (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 could not reasonably be
expected to have a Material Adverse Effect.
4.02 Authorization. The execution, delivery and performance by the Company
of this Agreement, the Revolving Credit Note, the Letter of Credit Applications
and the other Transaction Documents to which it is a party are within the
corporate powers of the Company and have been duly authorized by all necessary
corporate action on the part of the Company. The execution, delivery and
performance by XxXxxxx Properties of this Agreement, the Term Loan Note and the
other Transaction Documents to which it is a party are within the corporate
powers of XxXxxxx Properties and have been duly authorized by all necessary
corporate action on the part of XxXxxxx Properties.
4.03 Binding Effect. This Agreement, the Notes, the Letter of Credit
Applications and the other Transaction Documents to which the Company and/or
XxXxxxx Properties 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 such of the Company and XxXxxxx Properties as are parties thereto
and constitute the legal, valid and binding obligations of such of the Company
and XxXxxxx Properties as are parties thereto 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
Letter of Credit Applications and the other Transaction Documents to which the
Company and/or XxXxxxx Properties 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 such of the Company and XxXxxxx
Properties as are parties thereto 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. The Company has furnished Lender with the
following financial statements, identified by the chief financial officer of the
Company: (a) consolidated and consolidating balance sheets and statements of
income, retained earnings and cash flows of the Company and its Subsidiaries as
of and for the fiscal year ended June 30, 2001, all certified by the Company's
independent certified public accountants, which financial statements have been
prepared in accordance with GAAP consistently applied; and (b) unaudited
consolidated and consolidating balance sheets and statements of income, retained
earnings and cash flows of the Company and its Subsidiaries as of and for the
fiscal quarter ended December 30, 2001, all certified by the chief financial
officer of the Company as being true and correct to the best of his knowledge
and as being prepared in accordance with GAAP consistently applied. The Company
further represents and warrants to Lender that (a) said balance sheets and their
accompanying notes fairly present the condition of the Company and its
Subsidiaries as of the dates thereof, (b) there has been no material adverse
change in the condition or operation, financial or otherwise, of the Company or
any of its Subsidiaries since December 30, 2001, and (c) neither the Company nor
any of its Subsidiaries had any direct or contingent liabilities which were not
disclosed on said financial statements or the notes thereto (to the extent such
disclosure is 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 the Company or
XxXxxxx Properties, threatened against or affecting the Company or any
Subsidiary before any court, arbitrator or any governmental, regulatory or
administrative body, instrumentality, authority, agency or official which, if
determined adversely against the Company or any Subsidiary, could reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is 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 the Company or any Subsidiary.
4.06 Pension and Welfare Plans. Except as set forth on Schedule 4.06
attached hereto, 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; neither the Company nor any
Subsidiary 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 the Company nor any Subsidiary nor any
ERISA Affiliate has entered into an agreement pursuant to Section 4204 of ERISA;
neither the Company nor any Subsidiary nor any ERISA Affiliate has in the past
contributed to or currently contributes to a Multi-Employer Plan; neither the
Company nor any Subsidiary nor any ERISA Affiliate has any withdrawal liability
with respect to a Multi-Employer Plan; no steps have been instituted by the
Company or any Subsidiary 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 the Company or any Subsidiary or any ERISA Affiliate of any
material liability, fine or penalty; and neither the Company nor any Subsidiary
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 the Company and its Subsidiaries delivered by the
Company to Lender, neither the Company nor any Subsidiary nor any ERISA
Affiliate has any liability with respect to any Welfare Plan.
4.07 Tax Returns and Payment. The Company and each Subsidiary 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 the Company or such Subsidiary, as the case may be, and/or upon
their respective Properties, assets, income and franchises which have become due
and payable by the Company or such Subsidiary, as the case may be, except those
wherein the amount, applicability or validity are being contested by the Company
or such Subsidiary, as the case may be, 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 the knowledge of the Company or XxXxxxx Properties, proposed) tax
deficiency against the Company or any Subsidiary which, if determined adversely
against the Company or any Subsidiary, could reasonably be expected to have a
Material Adverse Effect.
4.08 Subsidiaries. The Company has no Subsidiaries other than as
identified on Schedule 4.08 attached hereto, as the same may from time to time
be amended, modified or supplemented as provided herein. Schedule 4.08 attached
hereto correctly sets forth, for each Subsidiary, the number of shares of each
class of capital stock or other equity interests authorized for such Subsidiary,
the number of outstanding and the percentage of the outstanding shares of each
such class owned, directly or indirectly, by the Company or one or more of its
Subsidiaries. All of the issued and outstanding capital stock or other equity
interests of each Subsidiary is duly authorized, validly issued and fully paid
and nonassessable. Except as disclosed on Schedule 4.08 attached hereto,
neither the Company nor any Subsidiary, individually or collectively, owns or
holds, directly or indirectly, any capital stock of or equity interest in any
corporation, partnership, limited liability company or other entity other than
the Company's Subsidiaries. The Company may at any time amend, modify or
supplement Schedule 4.08 by notifying Lender in writing of any changes thereto,
including 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, and thereby the representations and warranties
contained in this Section 4.08 shall be amended accordingly so long as such
amendment, modification or supplement is made within thirty (30) days after the
occurrence of any such changes in the facts stated therein and that such changes
reflect transactions that are permitted under this Agreement.
4.09 Compliance With Other Instruments; None Burdensome. Neither the
Company nor any Subsidiary is 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 the
Company's financial statements heretofore submitted to Lender; none of the
execution and delivery by the Company and/or any Subsidiary 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 the Company or any
Subsidiary, or any of the provisions of the Certificate or Articles of
Incorporation or By-Laws of the Company or any Subsidiary or any of the
provisions of any indenture, agreement, document, instrument or undertaking to
which the Company or any Subsidiary is a party or subject, or by which the
Company or any Subsidiary or any Property of the Company or any Subsidiary 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). 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
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.
4.10 Other Debt, Guarantees and Capitalized Leases. Except as disclosed on
Schedule 4.10 attached hereto, neither the Company nor any Subsidiary is a
borrower, guarantor or obligor with respect to, or a lessee under, any Debt,
Guarantees or Capitalized Leases. The Company may at any time amend, modify or
supplement Schedule 4.10 by notifying Lender in writing of any changes thereto,
and thereby the representations and warranties contained in this Section 4.10
shall be amended accordingly so long as such amendment, modification or
supplement is made within thirty (30) days after the occurrence of any such
changes in the facts stated therein and that such changes reflect transactions
that are permitted under this Agreement.
4.11 Labor Matters. Neither the Company nor any Subsidiary is 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 the Company or any Subsidiary is subject. Hours worked and payments made
to the employees of the Company 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 the Company or any Subsidiary,
or for which any claim may be made against any of them, in respect of wages,
employee health and welfare insurance and/or other benefits have been paid or
accrued as a liability on their respective books.
4.12 Title to Property. The Company and each Subsidiary 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 the Company or such Subsidiary to
conduct its business, and all of such Property is free and clear of all Liens
other than Permitted Liens. The Company and each Subsidiary enjoys peaceful and
undisturbed possession in all material respects under all leases under which it
is operating as a lessee.
4.13 Regulation U. Neither the Company nor XxXxxxx Properties is 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. If
requested by Lender, the Company and XxXxxxx Properties shall furnish to Lender
a statement in conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U.
4.14 Multi-Employer Pension Plan Amendments Act of 1980. The Company and
each Subsidiary is in compliance with the Multi-Employer Pension Plan Amendments
Act of 1980, as amended ("MEPPAA"), and neither the Company nor any Subsidiary
has any liability for pension contributions pursuant to MEPPAA.
4.15 Investment Company Act of 1940; Public Utility Holding Company Act of
1935. Neither the Company nor XxXxxxx Properties is an "investment company" as
that term is defined in, or is otherwise subject to regulation under, the
Investment Company Act of 1940, as amended. Neither the Company nor XxXxxxx
Properties is a "holding company" as that term is defined in, or is 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, neither the Company nor any Subsidiary has any
patents, patent applications, patent rights, trademarks, trademark applications,
trademark rights, copyrights, licenses or other intellectual property which are
material to the business of the Company or any Subsidiary. The Company may at
any time amend, modify or supplement Schedule 4.16 by notifying Lender in
writing of any changes thereto, and thereby the representations and warranties
contained in the first sentence of this Section 4.16 shall be amended
accordingly so long as such amendment, modification or supplement is made within
thirty (30) days after the occurrence of any such changes in the facts stated
therein and that such changes reflect transactions that are permitted under this
Agreement. The Company and each Subsidiary 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 the Company and each
Subsidiary comply with all applicable Environmental Laws and all applicable
Occupational Safety and Health Laws, the violation of or noncompliance with
which could reasonably be expected to have a Material Adverse Effect; (b) none
of the operations of the Company or any Subsidiary 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 the Company or any Subsidiary, could
reasonably be expected to have a Material Adverse Effect; (c) none of the
operations of the Company or any Subsidiary 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 the Company or such Subsidiary, which,
if determined adversely to the Company or any Subsidiary, could reasonably be
expected to have a Material Adverse Effect; (d) neither the Company nor any
Subsidiary has filed any notice 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 the Company or such Subsidiary; and
(e) neither the Company nor any Subsidiary has 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 the Company
or such Subsidiary.
4.18 Investments. Neither the Company nor any Subsidiary has any
Restricted Investments.
4.19 No Default. No Default or Event of Default under this Agreement has
occurred and is continuing. There is no existing default or event of default
under or with respect to any indenture, contract, agreement, lease or other
instrument to which the Company or any Subsidiary is a party or by which any
Property of the Company or any Subsidiary is bound or affected, a default under
which could reasonably be expected to have a Material Adverse Effect. The
Company and each Subsidiary 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 the Company'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 the Company or such Subsidiary, as the case may be.
Neither the Company nor any Subsidiary of the Company is 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. Neither the Company nor any Subsidiary is 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 Purchase and Other Commitments and Outstanding Bids. No material
purchase or other commitment of the Company or any Subsidiary is in excess of
the normal, ordinary and usual requirements of its business, or was made at any
price in excess of the then current market price, or, to the best of the
Company's knowledge, contains terms and conditions more onerous than those usual
and customary in the applicable industry. There is no material outstanding bid,
sales proposal, contract or unfilled order of the Company or any Subsidiary
which (a) will, or could if accepted, require the Company or any Subsidiary to
supply goods or services at a cost to the Company or any Subsidiary in excess of
the revenues to be received therefor or (b) quotes prices which do not include a
markup over reasonably estimated costs consistent with past markups on similar
business based on market conditions current at that time.
4.22 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 the Company or any Subsidiary in connection with the
transactions contemplated 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 the Company and XxXxxxx Properties, there is no fact peculiar to
the Company or any Subsidiary which presently has a Material Adverse Effect or
in the future (so far as the Company and XxXxxxx Properties can now foresee)
could reasonably be expected to have a Material Adverse Effect, which has not
heretofore been disclosed in writing by the Company to Lender.
SECTION 5. COVENANTS.
5.01 Affirmative Covenants of the Company. Each of the Company and XxXxxxx
Properties covenants and agrees that, so long as Lender has any obligation to
make any Loan or to issue any Letter of Credit under this Agreement, any Letter
of Credit remains outstanding, any of the Company's Obligations remain unpaid
and/or any of the XxXxxxx Properties' Obligations remain unpaid:
(a) Information. The Company 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 the Company, consolidated and
consolidating balance sheets of the Company 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 independent certified public
accountants selected by the Company 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
the Company's compliance with the financial covenants contained in Section
5.01(o) of this Agreement;
(ii) as soon as available and in any event within forty-five (45)
days after the end of the first three (3) fiscal quarters of each fiscal
year of the Company, consolidated and consolidating balance sheets of the
Company and its Subsidiaries as of the end of such fiscal quarter and the
related consolidated and consolidating statements of income, retained
earnings and cash flows for such fiscal quarter and for the portion of the
Company's fiscal year ended at the end of such fiscal quarter, setting
forth in each case in comparative form, the figures for the corresponding
fiscal quarter and the corresponding portion of the Company'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 the Company;
(iii) simultaneously with the delivery of each set of financial
statements referred to in Section 5.01(a)(i) and 5.01(a)(ii) above, a
certificate of the President or the chief financial officer of the Company
in the form attached hereto as Exhibit G and incorporated herein by
reference, accompanied by supporting financial work sheets where
appropriate, (A) evidencing the Company's compliance with the financial
covenants contained in Section 5.01(o) 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 the Company is taking or
proposes to take with respect thereto and (C) certifying that all of the
representations and warranties made by the Company, XxXxxxx Properties
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;
(iv) promptly upon receipt thereof, any reports (including, without
limitation, any management letters) submitted to the Company or any
Subsidiary (other than reports previously delivered pursuant to Sections
5.01(a)(i) above) by independent accountants in connection with any
annual, interim or special audit made by them of the books of the Company
or any Subsidiary;
(v) within fifteen (15) days after the end of each fiscal month of
the Company, (A) an accounts trial balance of the Company indicating which
Accounts are up to 30, 30 to 60, 60 to 90 and 90 days or more past the
invoice date and including, if requested by Lender, a listing of the names
and addresses of all applicable Account Debtors, (B) a summary of accounts
payable of the Company showing which accounts payable are current, up to
30, 30 to 60, 60 to 90 and 90 days or more past due and including, if
requested by Lender, a listing of the names and addresses of applicable
creditors and (C) a backlog report for the Company, all in form and detail
reasonably satisfactory to Lender and certified as being true, correct and
complete by the President or the chief financial officer of the Company;
(vi) at such intervals as Lender may request, such information and
reports regarding the Inventory of the Company and each Guarantor
Subsidiary as Lender may from time to time request, all in form and detail
reasonably satisfactory to Lender and certified as being true, correct and
complete by the President or the chief financial officer of the Company;
(vii) as soon as available and in any event no later than ninety
(90) days after the beginning of each fiscal year of the Company,
consolidated and consolidating balance sheet, income statement and cash
flow projections for the Company and its Subsidiaries for such fiscal year
on a month-by-month basis, all in form and detail reasonably acceptable to
Lender; and
(viii) with reasonable promptness, such further information
regarding the business, affairs and financial condition of the Company 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 the Company or any Subsidiary to any
regulatory authority having jurisdiction over Lender, pursuant to any request
therefor.
(b) Payment of Indebtedness. The Company will, and it will cause each
Subsidiary to, (i) pay and discharge any and all Indebtedness payable or
Guaranteed by the Company 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 the Company 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 the Company 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 the
Company 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.
(c) Books and Records; Consultations and Inspections. The Company 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. the Company will, and
it will cause each Subsidiary to, permit Lender (and any Person appointed by
Lender to whom the Company does not reasonably object) to discuss the affairs,
finances and accounts of the Company and each Subsidiary with the officers of
the Company 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. The Company 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. The Company 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. The
Company irrevocably authorizes Lender 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 the Company and each Subsidiary as Lender
may from time to time reasonably request in writing.
(d) Payment of Taxes. The Company 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 the Company 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 the Company 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 the Company 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. The Company will, and it will cause each
Subsidiary to, pay and discharge all trade accounts payable, all normal accruals
and all claims for work, labor or materials which if unpaid could become a Lien
upon any of its Property in accordance with its usual and customary business
practices as in effect on the date of this Agreement (but in no event later than
thirty (30) days after the due date thereof); provided, however, that neither
the Company 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 the Company 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. The Company 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.
(g) Maintenance of Property. The Company 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. The Company will, and it will
cause each Subsidiary to, comply with any and all laws, ordinances and
governmental and regulatory rules and regulations to which the Company 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. The Company will 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 the Company or any Subsidiary or any of
the Properties or facilities owned, leased or operated by the Company or any
Subsidiary which, if determined adversely to the Company 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 the Company 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, the Company shall deliver to Lender the
Company's plan with respect to removal or remediation and the Company 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. The Company 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 the Company, any Subsidiary or any ERISA
Affiliate shall have any Pension Plan, the Company, 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, the Company will not, and it will not cause or permit any Subsidiary
or any ERISA Affiliate to:
(i) permit any Pension Plan maintained by the Company, 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 the Company, 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.
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 the Company, any Subsidiary
or any ERISA Affiliate pursuant to Section 4068 of ERISA, 29 U.S.C.
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 the Company 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 the
Company and its Subsidiaries, has or could reasonably be expected to have a
Material Adverse Effect.
(k) Notices. The Company will notify Lender in writing of any of the
following within three (3) Business Days after any officer of the Company 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 the
Company, 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 the Company, 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;
(iii) the institution of any litigation, arbitration proceeding
or governmental or regulatory proceeding affecting the Company, 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 $100,000.00 (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 $100,000.00) or any form of
equitable relief;
(iv) the entry of any judgment or decree against the Company, any
other Obligor or any Subsidiary;
(v) the occurrence of a Reportable Event with respect to any Pension
Plan; the filing of a notice of intent to terminate a Pension Plan by the
Company, 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 the Company,
any ERISA Affiliate or any Subsidiary from any Multi-Employer Plan; or the
incurrence of any material increase in the contingent liability of the
Company 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 material adverse change in the Properties,
assets, liabilities, business, operations, prospects, income or condition
(financial or otherwise) of the Company, any other Obligor or any
Subsidiary;
(vii) any change in the name of the Company, any other Obligor or
any Subsidiary;
(viii) any proposed opening, closing or other change of any place
of business of the Company, any other Obligor or any Subsidiary;
(ix) any material change in the Company's or any Subsidiary's line(s)
of business;
(x) the occurrence of any Change of Control Event; and
(xi) 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. The Company will, and it will cause each Subsidiary to,
insure all of its Property of the character usually insured by Persons engaged
in the same or similar businesses similarly situated, against loss or damage of
the kind customarily insured against by such Persons, unless higher limits or
coverage are reasonably required in writing by Lender, and carry adequate
liability insurance and other insurance of a kind and in an amount generally
carried by Persons engaged in the same or similar businesses similarly situated,
unless higher limits or coverage are reasonably required in writing by Lender.
All insurance required by this Section 5.01(l) shall be with insurers rated A-XI
or better by A.M. Best Company (or accorded a similar rating by another
nationally or internationally recognized insurance rating agency of similar
standing if A.M. Best Company is not then in the business of rating insurers or
rating foreign insurers) or such other insurers as may from time to time be
reasonably acceptable to Lender. All such insurance may be subject to
reasonable deductible amounts.
(m) Further Assurances. Each of the Company and XxXxxxx Properties will,
and the Company will cause each Subsidiary to, 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. The Company will give Lender prompt notice of any change
of the Company's independent certified public accountants and a statement of the
reasons for such change. The Company shall at all times utilize independent
certified public accountants reasonably acceptable to Lender.
(o) Financial Covenants.
(i) Minimum Consolidated EBITDA. The Company will have a
Consolidated EBITDA of at least $8,500,000.00 during each four (4)
consecutive fiscal quarter period of the Company commencing with the four
(4) consecutive fiscal quarter period of the Company ending April 1, 2002.
(ii) Minimum Consolidated Tangible Net Worth. The Company will all
times have a Consolidated Tangible Net Worth of not less than the sum of
(A) the sum of (1) the Company's Consolidated Tangible Net Worth as of
April 1, 2002, minus (2) $3,000,000.00 plus (B) Seventy-Five Percent (75%)
of Consolidated Net Income (with no deductions for losses) during each
fiscal quarter of the Company ending after April 1, 2002 (such required
increases to be cumulative for each such fiscal quarter) plus (C) One
Hundred Percent (100%) of the net proceeds received by the Company on or
after the date of this Agreement from the issuance of any capital stock of
other equity interests of the Company.
(iii) Maximum Consolidated Debt to Consolidated EBITDA Ratio. The
Company will have a Consolidated Debt to Consolidated EBITDA Ratio of not
more than 3.0 to 1.0 as of the last day of each fiscal quarter of the
Company commencing with the fiscal quarter of the Company ending April 1,
2002.
(iv) Minimum Consolidated Interest Coverage Ratio. The Company will
have a Consolidated Interest Coverage Ratio of at least 3.0 to 1.0 for each
four (4) consecutive fiscal quarter period of the Company commencing with
the four (4) consecutive fiscal quarter period of the Company ending April
1, 2002.
(p) Subsidiaries. If the Company or any Subsidiary creates, forms or
acquires any Subsidiary on or after the date of this Agreement, the Company 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 and (ii)
cause such Subsidiary to (A) guaranty the payment and performance of all of the
Company'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.
(q) Landlord Consents. The Company will obtain and deliver to Lender, on
or before May 12, 2002, landlord's consents and waivers of lien in form and
substance reasonably satisfactory to Lender with respect to each of the
locations listed on Exhibit A to the Company Security Agreement which is leased
by the Company, each of the locations listed on Exhibit A to the XxXxxxx/STC
Security Agreement which is leased by XxXxxxx/STC, Inc. and each of the
locations listed on Exhibit A to the XxXxxxx - OCS Security Agreement which is
leased by XxXxxxx - OCS, Inc., each duly executed by the applicable landlord.
5.02 Negative Covenants of the Company. Each of the Company and XxXxxxx
Properties covenants and agrees that, so long as Lender has any obligation to
make any Loan and/or to issue any Letter of Credit under this Agreement, any
Letter of Credit remains outstanding, any of the Company's Obligations remain
unpaid and/or any of the XxXxxxx Properties' Obligations remain unpaid, unless
the prior written consent of Lender is obtained:
(a) Limitation on Indebtedness. The Company will not, and it will not
cause or permit any Subsidiary to, incur or be obligated on any Indebtedness,
either directly or indirectly, by way of Guarantee, suretyship or otherwise,
other than:
(i) the Company's Obligations;
(ii) unsecured trade accounts payable and other normal accruals
incurred in the ordinary course of business which are not more than thirty
(30) days past due (provided, however, that neither the Company 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 the
Company 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) Subordinated Indebtedness;
(v) purchase money Indebtedness incurred solely to finance Capital
Expenditures;
(vi) Capitalized Lease Obligations; and
(vii) other Indebtedness not otherwise permitted by this Section
5.02(a) in an amount not to exceed $25,000.00 in the aggregate at any one
time outstanding for the Company and all of its Subsidiaries on a combined
basis.
(b) Limitation on Liens. The Company 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.
(c) Consolidation, Merger, Sale of Property, Etc.
(i) The Company 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.
(ii) The Company will not, and will not cause or permit any
Subsidiary to, (A) sell, assign, lease, transfer, abandon or otherwise
dispose of any of its Property (including, without limitation, any shares
of capital stock or other equity interests of a Subsidiary owned by the
Company or another Subsidiary) or (B) issue, sell or otherwise dispose of
any shares of capital stock or other equity interests of any Subsidiary,
except for (1) sales of Inventory in the ordinary course of business
(which does not include a transfer of Inventory in partial or total
satisfaction of any Indebtedness), (2) sales of fixed assets (other than
real estate) which are obsolete, worn-out or otherwise not used or useable
in the ordinary course of its business, so long as the net proceeds
thereof are used within ninety (90) days after the date of the sale solely
to purchase replacement fixed assets or assets of comparable quality or to
pay or prepay (y) in the case of asset sales by the Company, Debt secured
by any Permitted Lien encumbering the assets being sold or the Company's
Obligations and (z) in the case of asset sales by a Subsidiary, Debt of
such Subsidiary and (3) other sales of fixed assets (other than real
estate) which are not used or useable in the ordinary course of its
business, so long as the gross sale proceeds from all such asset sales by
the Company and all of its Subsidiaries on a combined basis does not
exceed $100,000.00 in the aggregate in any fiscal year of the Company.
(d) Sale and Leaseback Transactions. The Company will not, and it will
not cause or permit any Subsidiary to, enter into any arrangement, directly or
indirectly, whereby the Company or such Subsidiary shall in one or more related
transactions sell, transfer or otherwise dispose of any Property owned by the
Company 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. The Company 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 notes or
accounts receivable or chattel paper.
(f) Transactions with Affiliates. The Company 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 the Company's or such Subsidiary's business
and upon fair and reasonable terms no less favorable to the Company 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. The Company 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 the Company and
its Subsidiaries, considered as a whole, would be substantially changed from the
general nature of the business engaged in by the Company and its Subsidiaries as
of the date of this Agreement.
(h) Fiscal Year. The Company will not, and it will not cause or permit
any Subsidiary to, change its fiscal year.
(i) Stock Redemptions and Distributions. The Company 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
the Company or the capital stock or other equity interests of such Subsidiary,
as the case may be, provided, however, that each wholly-owned Subsidiary shall
be permitted to declare and pay cash dividends on their respective capital stock
or other equity interests to the Company.
(j) Pension Plans. The Company 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 might constitute grounds for the PBGC to institute
proceedings to have such Pension Plan terminated or a trustee appointed to
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 the Company, any Subsidiary or any ERISA
Affiliate of any material liability, fine or penalty.
(k) Subordinated Indebtedness. The Company 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. The Company will not amend, modify or otherwise
change any agreement, document or instrument evidencing, securing, guaranteeing
the payment of or otherwise relating to any of its Subordinated Indebtedness
(including, without limitation, any of the Existing Subordinated Notes);
provided, however, that the Company may extend the maturity date of any or all
of the Existing Subordinated Notes upon notice to, but without the prior written
consent of, Lender.
(l) Restricted Investments; Acquisitions. The Company will not, and it
will not cause or permit any Subsidiary to, directly or indirectly, make any
Restricted Investments. The Company will not, and it will not cause or permit
any Subsidiary to, directly or indirectly, make any Acquisitions.
(m) Subsidiaries. The Company will not, and it will not cause or permit
any Subsidiary to, create, form or acquire any Subsidiary.
(n) Limitations on Restrictive Agreements. The Company 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 the Company
or such Subsidiary, as the case may be, to (a) pay dividends or make other
distributions or prepay any Indebtedness owed to the Company and/or any
Subsidiary, (b) make loans or advances to the Company and/or any Subsidiary, (c)
transfer any of its Properties to the Company and/or any Subsidiary (other than
with respect to Property subject to Liens permitted by clauses (g) or (h) of the
definition of 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 Liens permitted by
clauses (g) or (h) of the definition of 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(o) 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. The Company covenants and agrees that (a) the
proceeds of the Revolving Credit Loans will be used solely to pay off the
existing indebtedness of the Company to Bank of America, N.A. and for the
working capital and general corporate purposes of the Company, (b) no part of
the proceeds of any Revolving Credit Loan will be used in violation of any
applicable law, rule or regulation and (c) no part of the proceeds of any
Revolving Credit 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. XxXxxxx Properties covenants and agrees that (a) the
proceeds of the Term Loan will be used solely to pay off the existing
indebtedness of XxXxxxx Properties to Bank of America, N.A. and to make
improvements to the real property covered by the Deed of Trust, (b) no part of
the proceeds of the Term Loan will be used in violation of any applicable law,
rule or regulation and (c) no part of the proceeds of the Term 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 The Company shall fail to pay any of the Company's Obligations as and
when the same shall become due and payable, whether by reason of demand,
maturity, acceleration or otherwise;
6.02 XxXxxxx Properties shall fail to pay any of the XxXxxxx Properties'
Obligations as and when the same shall become due and payable, whether by reason
of demand, maturity, acceleration or otherwise;
6.03 Any representation or warranty made by the Company, XxXxxxx Properties
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
or effected;
6.04 The Company and/or XxXxxxx Properties shall fail to perform or observe
any term, covenant or provision contained in Section 2.01(b), Section 2.01(c),
Section 2.01(d), Section 2.03(e), Section 5.01(a), 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 5.01(q), Section 5.02 or Section 5.03;
6.05 The Company and/or XxXxxxx Properties' 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, 6.03 or 6.04 above) and any such
failure shall remain unremedied for thirty (30) days after the earlier of
(a) written notice of default is given to the Company and XxXxxxx Properties by
Lender or (b) any officer of the Company and/or XxXxxxx Properties obtaining
actual knowledge of such default;
6.06 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 the Company, XxXxxxx
Properties and/or any other Obligor, or if the transactions completed hereunder
or thereunder shall be contested by the Company, XxXxxxx Properties and/or any
other Obligor or if the Company, XxXxxxx Properties and/or any other Obligor
shall deny that it has any further liability or obligation hereunder or
thereunder;
6.07 The Company, XxXxxxx Properties, 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;
6.08 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 the Company, XxXxxxx Properties, any other Obligor or any
Subsidiary, or of a substantial part of the Property of the Company, XxXxxxx
Properties, 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 the Company, XxXxxxx
Properties, any other Obligor or any Subsidiary or of a substantial part of the
Property of the Company, XxXxxxx Properties, any other Obligor or any Subsidiary
or (c) the winding-up or liquidation of the Company, XxXxxxx Properties, 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;
6.09 Any Letter of Credit Application 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 of any
Letter of Credit Application shall be contested or denied by the Company, or if
the Company shall deny that it has any further liability or obligation under any
Letter of Credit Application or if the Company shall fail to comply with or
observe any of the terms, provisions or conditions contained in any Letter of
Credit Application;
6.10 The Company Guaranty 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 of the Company
Guaranty shall be contested or denied by the Company, or if the Company shall
deny that it has any further liability or obligation under the Company Guaranty
or if the Company shall fail to comply with or observe any of the terms,
provisions or conditions contained in the Company Guaranty;
6.11 The Subsidiary Guaranty 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 of the Subsidiary
Guaranty shall be contested or denied by any Guarantor Subsidiary, or if any
Guarantor Subsidiary shall deny that it has any further liability or obligation
under the Subsidiary Guaranty or if any Guarantor Subsidiary shall fail to
comply with or observe any of the terms, provisions or conditions contained in
the Subsidiary Guaranty;
6.12 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the Company Security Agreement;
6.13 The Company Patent, Trademark and License Security Agreement 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 of the Company Patent, Trademark and License Security
Agreement shall be contested or denied by the Company, or if the Company shall
deny that it has any further liability or obligation under the Company Patent,
Trademark and License Security Agreement or if the Company shall fail to comply
with or observe any of the terms, provisions or conditions contained in the
Company Patent, Trademark and License Security Agreement;
6.14 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the Stock Pledge Agreement;
6.15 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the Deed of Trust;
6.16 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the XxXxxxx Wireless Security Agreement;
6.17 The XxXxxxx Wireless Patent, Trademark and License Security Agreement
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 of the XxXxxxx Wireless Patent, Trademark and License
Security Agreement shall be contested or denied by XxXxxxx Wireless, Inc., or if
XxXxxxx Wireless, Inc. shall deny that it has any further liability or
obligation under the XxXxxxx Wireless Patent, Trademark and License Security
Agreement or if XxXxxxx Wireless, Inc. shall fail to comply with or observe any
of the terms, provisions or conditions contained in the XxXxxxx Wireless Patent,
Trademark and License Security Agreement;
6.18 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the XxXxxxx/STC Security Agreement;
6.19 The XxXxxxx/STC Patent, Trademark and License Security Agreement 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 of the XxXxxxx/STC Patent, Trademark and License
Security Agreement shall be contested or denied by XxXxxxx/STC, Inc., or if
XxXxxxx/STC, Inc. shall deny that it has any further liability or obligation
under the XxXxxxx/STC Patent, Trademark and License Security Agreement or if
XxXxxxx/STC, Inc. shall fail to comply with or observe any of the terms,
provisions or conditions contained in the XxXxxxx/STC Patent, Trademark and
License Security Agreement;
6.20 Any "Event of Default" (as defined therein) shall occur under or
within the meaning of the XxXxxxx - OCS Security Agreement;
6.21 The XxXxxxx - OCS Patent, Trademark and License Security Agreement
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 of the XxXxxxx - OCS Patent, Trademark and License
Security Agreement shall be contested or denied by XxXxxxx - OCS, Inc., or if
XxXxxxx - OCS, Inc. shall deny that it has any further liability or obligation
under the XxXxxxx - OCS Patent, Trademark and License Security Agreement or if
XxXxxxx - OCS, Inc. shall fail to comply with or observe any of the terms,
provisions or conditions contained in the XxXxxxx - OCS Patent, Trademark and
License Security Agreement;
6.22 Any of the Swap Documents 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 of any of the Swap
Documents shall be contested or denied by XxXxxxx Properties, or if XxXxxxx
Properties shall deny that it has any further liability or obligation under any
of the Swap Documents or if XxXxxxx Properties shall fail to comply with or
observe any of the terms, provisions or conditions contained in any of the Swap
Documents;
6.23 The Company, XxXxxxx Properties, 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 the Company, XxXxxxx Properties, 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);
6.24 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 the Company,
XxXxxxx Properties, any other Obligor or any Subsidiary (other than the
Company's Obligations and the XxXxxxx Properties' Obligations) having an
aggregate outstanding principal balance in excess of $25,000.00 which is not
cured or waived in writing within any applicable cure or grace period (if any);
6.25 The occurrence of any default or event of default under or within the
meaning of any agreement providing the Company, XxXxxxx Properties, any other
Obligor or any Subsidiary with any interest rate swap, interest rate cap or
other interest rate hedge;
6.26 The Company, XxXxxxx Properties, 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 the Company, XxXxxxx
Properties, such other Obligor or such Subsidiary, as the case may be, within
thirty (30) days after the entry of such judgment;
6.27 The occurrence of a Reportable Event with respect to any Pension Plan;
the filing of a notice of intent to terminate a Pension Plan by the Company, 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 the Company, any ERISA Affiliate or any Subsidiary
from any Multi-Employer Plan; or the incurrence of any material increase in the
contingent liability of the Company 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;
6.28 The institution by the Company, any ERISA Affiliate or any Subsidiary
of steps to terminate any Pension Plan if, in order to effectuate such
termination, the Company, 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 $25,000.00;
or the institution by the PBGC of steps to terminate any Pension Plan; or
6.29 The occurrence of any Change of Control Event;
THEN, and in each such event (other than an event described in Sections
6.07 or 6.08), Lender may declare that its obligation to make Loans and to issue
Letters of Credit under this Agreement has terminated, whereupon such obligation
of Lender shall be immediately and forthwith terminated, and Lender may further
declare the entire outstanding principal balance of and all accrued and unpaid
interest on the Notes, all of the other Company's Obligations and all of the
other XxXxxxx Properties' Obligations to be forthwith due and payable, whereupon
all of the unpaid principal balance of and all accrued and unpaid interest on
the Notes, all of such other Company's Obligations and all of such other XxXxxxx
Properties' 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 the Company and XxXxxxx Properties, 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 6.07 or 6.08, Lender's obligation
to make Loans and to issue Letters of Credit under this Agreement shall
automatically terminate and the entire outstanding principal balance of and all
accrued and unpaid interest on the Notes, all of the other Company's Obligations
and all of the other XxXxxxx Properties' Obligation 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 the Company and
XxXxxxx Properties, 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. If any Event of Default has occurred and is continuing, in addition to
all of Lender's other rights and remedies under this Agreement and the other
Transaction Documents and at law or in equity, Lender shall have the right, in
its sole and absolute discretion, to (a) reduce the amount of the Lender's
Revolving Credit Commitment, (b) create reserves and/or allowances against
Unused Availability, Eligible Accounts and/or Eligible Inventory and/or (c)
reduce the advance rates against Eligible Accounts and/or Eligible Inventory set
forth in the definition of the Borrowing Base.
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 the Company or XxXxxxx Properties (any such notice being
expressly waived by the Company and XxXxxxx Properties) and to the fullest
extent permitted by law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by Lender and
any and all other indebtedness at any time owing by Lender to or for the credit
or account of the Company and/or XxXxxxx Properties against any and all of (a)
in the case of the Company, the Company's Obligations and (b) in the case of
XxXxxxx Properties, the XxXxxxx Properties' 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 the Company or XxXxxxx Properties,
as the case may be, 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 (a) impair
the right of Lender to exercise any right of set-off or counterclaim it may have
against the Company and to apply the amount subject to such exercise to the
payment of indebtedness of the Company unrelated to this Agreement or the other
Transaction Documents or (b) impair the right of Lender to exercise any right of
set-off or counterclaim it may have against XxXxxxx Properties and to apply the
amount subject to such exercise to the payment of indebtedness of XxXxxxx
Properties unrelated to this Agreement or the other Transaction Documents.
7.03 Cost and Expenses. The Company and XxXxxxx Properties hereby jointly
and severally agree, whether or not any Loan is made under this Agreement and/or
any Letter of Credit is issued under this Agreement, to pay Lender upon demand
for (a) all out-of-pocket costs and expenses (other than 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 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 (iii) any Default or Event of Default, (d) if an Event of Default
occurs, all 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 and (e) all other Attorneys' Fees
incurred by Lender relating to or arising out of or in connection with this
Agreement and/or any other Transaction Document. The Company and XxXxxxx
Properties further jointly and severally agree 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 the Company and XxXxxxx Properties under
this Section 7.03 shall survive the satisfaction and payment of the Company's
Obligations and the XxXxxxx Properties' Obligations and the termination of this
Agreement.
7.04 Environmental Indemnity. The Company and XxXxxxx Properties hereby
jointly and severally agree 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 reasonable attorneys' fees and expenses) 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 the Company 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 the Company 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 the
Company's Obligations and the XxXxxxx Properties' 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, the Company and XxXxxxx Properties hereby jointly and severally
agree to defend, indemnify, pay and hold Lender and any holder(s) of the Notes,
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 the Company, XxXxxxx Properties and/or any other
Obligor in connection herewith or therewith, the statements contained in any
commitment letters delivered by Lender, Lender's agreement to make Loans and/or
issue Letters of Credit under this Agreement or the use or intended use of the
proceeds of any Loan or of any Letter of Credit under this Agreement
(collectively, the "indemnified liabilities"); provided that neither the Company
nor XxXxxxx Properties shall have any 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, the Company
and XxXxxxx Properties 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 the Company's Obligations and the
XxXxxxx Properties' 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 the Company
pursuant hereto, regardless of whether such notice or instruction was in fact
delivered by a person authorized to act on behalf of the Company, and the
Company 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. 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 XxXxxxx Properties
pursuant hereto, regardless of whether such notice or instruction was in fact
delivered by a person authorized to act on behalf of XxXxxxx Properties, and
XxXxxxx Properties 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. EACH OF THE COMPANY AND
XXXXXXX PROPERTIES HEREBY IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY MISSOURI STATE COURT SITTING IN THE CITY OR 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 THE COMPANY OR XXXXXXX
PROPERTIES 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 THE
COMPANY OR XXXXXXX PROPERTIES MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT
OR SUBSEQUENT DOMICILES. EACH OF THE COMPANY AND XXXXXXX PROPERTIES AUTHORIZES
THE SERVICE OF PROCESS UPON IT BY REGISTERED MAIL SENT TO IT AT ITS ADDRESS
REFERENCED IN SECTION 7.07. THE COMPANY, XXXXXXX PROPERTIES AND LENDER HEREBY
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH
THE COMPANY 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 the Company, XxXxxxx Properties and Lender. Any Event of Default under
this Agreement may be waived by Lender if, but only if, such waiver is in
writing and is signed by Lender.
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", "B", "C", "D", "E", "F",
"G" and "H" refer to annexed Exhibits "A", "B", "C", "D", "E", "F", "G" and "H"
which are hereby incorporated herein by reference and all references herein to
Schedules 2.04, 4.05, 4.06, 4.08, 4.10, 4.12, 4.16, 4.17, 4.18, 4.23 and 5.02(o)
refer to annexed Schedules 2.04, 4.05, 4.06, 4.08, 4.10, 4.12, 4.16, 4.17, 4.18,
4.23 and 5.02(o) 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 the Company, XxXxxxx Properties and
Lender and their respective successors and assigns, except that neither the
Company nor XxXxxxx Properties may assign or otherwise transfer any of its
rights or delegate any of its obligations under this Agreement.
7.13 NO ORAL AGREEMENTS; ENTIRE AGREEMENT. ORAL AGREEMENTS OR COMMITMENTS
TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT,
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO
PROTECT THE COMPANY, XXXXXXX PROPERTIES AND LENDER FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS REACHED BY THE COMPANY, XXXXXXX PROPERTIES AND
LENDER COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION DOCUMENTS ARE A
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS AMONG THE COMPANY, XXXXXXX
PROPERTIES AND LENDER, EXCEPT AS THE COMPANY, XXXXXXX PROPERTIES AND LENDER MAY
LATER AGREE IN WRITING TO MODIFY THEM. 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 the Company's Obligations. To the extent that Lender
receives any payment on account of any of the Company'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, the Company's Obligations or part thereof intended to be
satisfied and any and all Liens upon or pertaining to any Property of the
Company and/or any other Obligor and theretofore created and/or existing in
favor of Lender as security for the payment of such Company's Obligations and/or
any Guarantee thereof 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 the
Company's Obligations.
7.17 Resurrection of the XxXxxxx Properties' Obligations. To the extent
that Lender receives any payment on account of any of the XxXxxxx Properties'
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, the XxXxxxx Properties' Obligations
or part thereof intended to be satisfied and any and all Liens upon or
pertaining to any Property of XxXxxxx Properties and/or any other Obligor and
theretofore created and/or existing in favor of Lender as security for the
payment of such XxXxxxx Properties' 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 the XxXxxxx Properties Obligations.
7.18 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.
IN WITNESS WHEREOF, the Company, XxXxxxx Properties and Lender have
executed this Loan Agreement as of the 12th day of March 2002.
XXXXXXX, INC.
By s/Xxxxxx X. Xxxxxxxxxx
Title: Vice President & CFO
Address:
0000X Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
XXXXXXX PROPERTIES, INC.
By s/Xxxxxx X. Xxxxxxxxxx
Title: Vice President
Address:
0000X Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By s/Xxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxxx Xxxxxx
First Floor, Bank Lobby
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Commercial Lending Department
Telecopy No.: (000) 000-0000
SCHEDULE 2.04
Authorized Individuals of XxXxxxx, Inc.
Xxxxx X. XxXxxxx
Xxxxxx X. Xxxxxxxxxx
Authorized Individuals of XxXxxxx Properties, Inc.
Xxxxx X. XxXxxxx
Xxxxxx X. Xxxxxxxxxx
SCHEDULE 4.05
Litigation
NONE
SCHEDULE 4.06
Pension and Welfare Plans
The Management Retirement Savings Plan of XxXxxxx, Inc., a deferred compensation
plan for a select group of management and highly-compensated employees, is not
qualified under Section 401 of the Internal Revenue Code.
SCHEDULE 4.08
Subsidiaries
Issued and
Class Authorized Outstanding
XxXxxxx/STC, Inc. Common 30,000 100
XxXxxxx Properties, Inc. Common 30,000 100
XxXxxxx Wireless, Inc. Common 30,000 100
XxXxxxx - OCS, Inc. Common 1,600,000 1,220,000
All of the foregoing are wholly-owned subsidiaries of XxXxxxx, Inc.
SCHEDULE 4.10
Other Debt, Guarantees and Capitalized Leases
[See Attached]
SCHEDULE 4.12
Existing Liens
NONE
SCHEDULE 4.16
Patents, Trademarks, Copyrights and Licenses
Patents Pending
Serial/Patent No. Description
09/329,428 MIN Reuse and Auto Commissioning
09/347,168 Use of Control and SMS Transport for Periodic
High Volume Data Sessions
09/769,537 Web Based Vehicle Tracking and User
On-Board Status System
09/769,567 Web Based Vehicle Tracking System with
Assist Button
09/769,566 Web Based Vehicle Travel Messaging System
09/744,170 Web Based Vehicle Information System
2366273 Methods and Apparatus for Light Outage
Detection (Canadian Filing)
2343688 Methods and Apparatus for Light Outage
Detection (Canadian Filing)
60/300,348 Pipe-to-Soil Testing Apparatus and Methods
(Provisional, to be formally filed 3/2002)
09/658,755 Fuel System
9-335204 Method of and System for Communication
Between Points Along a Fluid Flow (Japan)
PCT/US00/24678 Fuel System (PCT)
Patents Issued
Serial/Patent No. Description
6222446 Light Performance Monitoring Device
0000000 Xxxxxxx Xxxxx Xxxxxxxx Vehicle Violation
Detector
09/800,808 Methods and Apparatus for Light Outage
Detection
5790369 Power Transfer Device for a Utilities
Distribution Pedestal
5991602 Method of and System for Communication
Between Points Along a Fluid Flow
DES 391,233 Utilities Distribution Pedestal
DES 399,204 Weatherproof Radio Enclosure
Trademarks
Reg. No. Serial No. Description
0916585 75396299 XxXxxxx, Inc. (stylized)
72308416 XxXxxxx
0925365 72366531 LBI (stylized)
Service Marks
Reg. No. Serial No. Description
2470628 75979963 XxXxxxx, Inc.
SCHEDULE 4.17
Environmental and Health and Safety Matters
NONE
SCHEDULE 4.18
Existing Investments
* 640,008 Common Shares of Xxxxxxx Abbey, Ltd. Held by XxXxxxx, Inc.
* 1 Common Share of Archway Insurance, Ltd. Held by XxXxxxx, Inc.
* $600,000 demand loan from XxXxxxx, Inc. to Xxxxxx XxXxxxx Xx.
SCHEDULE 5.02(o)
Restrictive Agreements
NONE
EXHIBIT A
Borrowing Base Certificate
This Borrowing Base Certificate is delivered pursuant to Section 2.01(b) of
that certain Loan Agreement dated as of March 12, 2002, by and among XxXxxxx,
Inc., a Delaware corporation (the "Company"), XxXxxxx Properties, Inc., a
Missouri corporation ("XxXxxxx Properties"), and U.S. Bank National Association
("Lender"), as the same may from time to time be amended, modified, extended,
renewed or restated (the "Loan Agreement"). All capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Loan Agreement.
The Company hereby represents and warrants to Lender that the following
information is true, correct and complete as of , 20 :
1. Total Accounts of the Company $
2. Ineligible Accounts of the Company:
(a) Over 90 Days from Invoice Date $
(b) 25% Cross-Aging $
(c) Affiliate Accounts $
(d) Foreign Accounts $
(e) Government Accounts $
(f) Contra Accounts (Net) $
(g) Other $
(h) Total Ineligible Accounts [Sum of Items 2(a) through
2(g)] $
3. Eligible Accounts of the Company [Sum of Item 1 minus Item 2(h)]
$
4. 80% of face amount of Eligible Accounts of the Company $
5. Total Accounts of XxXxxxx/STC, Inc. $
6. Ineligible Accounts of XxXxxxx/STC, Inc.:
(a) Over 90 Days from Invoice Date $
(b) 25% Cross-Aging $
(c) Affiliate Accounts $
(d) Foreign Accounts $
(e) Government Accounts $
(f) Contra Accounts (Net) $
(g) Other $
(h) Total Ineligible Accounts [Sum of Items 6(a) through
6(g)] $
7. Eligible Accounts of XxXxxxx/STC, Inc. [Sum of Item 4 minus
Item 6(h)] $
8. 80% of face amount of Eligible Accounts of XxXxxxx/STC, Inc.
$
9. Total Inventory of the Company, valued at the lower of cost or
market in accordance with GAAP $
10. Ineligible Inventory of the Company, valued at the lower of
cost or market in accordance with GAAP
(a) Obsolete Inventory $
(b) Other $
(c) Total Ineligible Inventory [Sum of Items 10(a) and 10(b)] $
11. Eligible Inventory of the Company [Item 9 minus Item 10(c)] $
12. 40% of Eligible Inventory of the Company, valued at the lower of
cost or market in accordance with GAAP $
13. Total Inventory of XxXxxxx/STC, Inc., valued at the lower of cost or
market in accordance with GAAP $
14. Ineligible Inventory of XxXxxxx/STC, Inc., valued at the lower of
cost or market in accordance with GAAP
(a) Obsolete Inventory $
(b) Other $
(c) Total Ineligible Inventory [Sum of Items 14(a) and 14(b)] $
15. Eligible Inventory of XxXxxxx/STC, Inc. [Item 13 minus Item 14(c)]
$
16 40% of Eligible Inventory of XxXxxxx/STC, Inc., valued at the
lower of cost or market in accordance with GAAP $
17. Borrowing Base [Sum of (a) Item 4 plus (b) Item 8 plus (c) the
lesser of (i) the sum of Item 12 plus Item 16 or (ii) $10,500,000.00]
$
18. Amount of Lender's Revolving Credit Commitment $
19. Borrower's Maximum Revolving Credit Availability
[Lesser of Item 17 or Item 18] $
20. Aggregate principal amount of outstanding Revolving Credit Loans $
21. Aggregate undrawn face amount of outstanding Letters of
Credit plus all unreimbursed drawings with respect thereto
$
22. Unused Availability [Item 19 minus Item 20 minus Item 21]
[Negative amount requires mandatory repayment] $
If Item 22 above is negative, this Certificate is accompanied by the
mandatory repayment required by Section 2.01(c) of the Loan Agreement.
This Borrowing Base Certificate is dated as of the day of
_______________, 20 .
XXXXXXX, INC.
By
Title:
EXHIBIT B
REVOLVING CREDIT NOTE
$15,000,000.00 St. Louis, Missouri
March 12, 2002
FOR VALUE RECEIVED, on the last day of the Revolving Credit Period, the
undersigned, XXXXXXX, INC., a Delaware corporation ("the Company"), hereby
promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION ("Lender"), the
principal sum of Fifteen Million Dollars ($15,000,000.00), or such lesser sum as
may then constitute the aggregate unpaid principal amount of all Revolving
Credit Loans made by Lender to the Company pursuant to the Loan Agreement. The
aggregate principal amount of Revolving Credit Loans which Lender shall be
committed to have outstanding under this Note at any one time shall not exceed
Fifteen Million Dollars ($15,000,000.00), which amount may be borrowed, paid,
reborrowed and repaid, in whole or in part, subject to the terms and conditions
of this Note and of the Loan Agreement.
the Company further promises to pay to the order of Lender interest on each
Revolving Credit Loan under this Note at the rate or rates and on the dates set
forth in the Loan Agreement.
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.
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 000 Xxxxxx
Xxxxxx, First Floor, Bank Lobby, Xx. Xxxxx, Xxxxxxxx 00000, or at such other
place as Lender may from time to time designate in writing.
Lender shall record in its books and records the date, amount, type and
Interest Period (if any) of each Revolving Credit Loan made by it to the Company
and the date and amount of each payment of principal and/or interest made by the
Company with respect thereto; provided, however, that the obligation of the
Company to repay each Revolving Credit Loan made by Lender to the Company under
this Note 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 the Company shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof of the items therein set
forth.
The Company 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 Revolving Credit Note referred to in, and is subject to
the terms of, that certain Loan Agreement dated as of the date hereof by and
among the Company, XxXxxxx Properties, Inc. and Lender, as the same may from
time to time be amended, modified, extended, renewed or restated (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. All capitalized terms used and not otherwise
defined in this Note shall have the respective meanings ascribed to them in the
Loan Agreement.
This Note is secured by, among other things, the Company Security
Agreement, the Company Patent, Trademark and License Security Agreement and the
Stock Pledge Agreement, to which Company Security Agreement, Company Patent,
Trademark and License Security Agreement and Stock Pledge 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 Lender's obligation to make additional Revolving Credit Loans
under this Note may be terminated in the manner and with the effect as provided
in the Loan Agreement and 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 Company Security
Agreement, the Company Patent, Trademark and License Security Agreement and/or
the Stock Pledge 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, the Company 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,
reasonable attorneys' fees and expenses (whether or not litigation shall be
commenced in aid thereof). All parties hereto severally waive presentment for
payment, demand for payment, protest, notice of protest and notice of dishonor.
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).
XXXXXXX, INC.
By
Title:
EXHIBIT C
TERM LOAN PROMISSORY NOTE
$6,400,000.00 St. Louis, Missouri
March 12, 2002
FOR VALUE RECEIVED, the undersigned, XXXXXXX PROPERTIES, INC., a Missouri
corporation ("XxXxxxx Properties"), hereby promises to pay to the order of U.S.
BANK NATIONAL ASSOCIATION ("Lender"), the principal sum of Six Million Four
Hundred Thousand Dollars ($6,400,000.00), or such lesser sum as may be advanced
hereunder, in eight-four (84) consecutive monthly installments as follows:
eighty-three (83) consecutive monthly installments each in an amount equal to
one three-hundredth (1/300th) of the outstanding principal balance of this Note
on October 31, 2002, due and payable on the first (1st) day of each month
commencing December 1, 2002, with the eighty-fourth (84) and final installment
in the amount of the then outstanding and unpaid principal balance of this Note
due and payable on October 31, 2009.
XxXxxxx Properties 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.
This Note may be funded in multiple advances from time to time during the
Term Loan Advance Period; provided, however, that the maximum aggregate
principal amount of all advances under this Note shall not exceed Six Million
Four Hundred Thousand Dollars ($6,400,000.00). No advances may be made under
this Note after the last day of the Term Loan Advance period. No principal
repaid during the term of this Note may be reborrowed.
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.
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 000 Xxxxxx
Xxxxxx, First Floor, Bank Lobby, Xx. Xxxxx, Xxxxxxxx 00000, or at such other
place as Lender may from time to time designate in writing.
XxXxxxx Properties 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 Term Loan Note referred to in, and is subject to the terms
of, that certain Loan Agreement dated as of the date hereof by and among
XxXxxxx, Inc., XxXxxxx Properties and Lender, as the same may from time to time
be amended, modified, extended, renewed or restated (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. All capitalized terms used and not otherwise defined in this Note
shall have the respective meanings ascribed to them in the Loan Agreement.
This Note is secured by, among other things, the Deed of Trust, to which
Deed of Trust 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 Lender's obligation (if any) to make additional advances on the
Term Loan under this Note may be terminated in the manner and with the effect as
provided in the Loan Agreement and 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 Deed of Trust, 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, XxXxxxx Properties 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, reasonable attorneys' fees
and expenses (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).
XXXXXXX PROPERTIES, INC.
By
Title:
EXHIBIT D
Letter of Credit Request
[Date]
U.S. Bank National Association
000 Xxxxxx Xxxxxx
First Floor, Bank Lobby
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Commercial Lending Department
Ladies and Gentlemen:
Reference is hereby made to that certain Loan Agreement dated as of March
12, 2002, by and among XxXxxxx, Inc., a Delaware corporation (the "Company"),
XxXxxxx Properties, Inc., a Missouri corporation ("XxXxxxx Properties") and U.S.
Bank National Association ("Lender"), as the same may from time to time be
amended, modified, extended, renewed or restated (the "Loan Agreement"). All
capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Loan Agreement.
Pursuant to Section 2.03 of the Loan Agreement, the Company hereby requests
that Lender issue an irrevocable [standby] [commercial] Letter of Credit in the
original face amount of $ for the account of the Company
and for the benefit of upon the terms and conditions set
forth in the attached Application and Agreement for Irrevocable [Standby]
[Commercial] Letter of Credit.
The Company hereby represents and warrants to Lender that (a) all of the
representations and warranties made by the Company, XxXxxxx Properties 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 hereof as if
made on and as of the date hereof and (b) no Default or Event of Default has
occurred and is continuing and that no Default or Event of Default will result
from the issuance of the Letter of Credit requested hereby.
Very truly yours,
XXXXXXX, INC.
By
Title:
EXHIBIT E
[Attach Form of Standby Letter of Credit Application]
EXHIBIT F
[Attach Form of Commercial Letter of Credit Application]
EXHIBIT G
[Date]
U.S. Bank National Association
000 Xxxxxx Xxxxxx
First Floor, Bank Lobby
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Commercial Lending Department
Ladies and Gentlemen:
Reference is hereby made to that certain Loan Agreement dated as of March
12, 2002, by and among XxXxxxx, Inc., a Delaware corporation (the "Company"),
XxXxxxx Properties, Inc., a Missouri corporation ("XxXxxxx Properties") 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.
The Company hereby certifies to Lender that as of the date hereof:
(a) except as set forth below, all of the representations and warranties
made by the Company, XxXxxxx Properties 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 the Company 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 the Company's
compliance with the financial covenants set forth in Section 5.01(o) of the Loan
Agreement as of , 20 , in each case calculated in accordance with the
Loan Agreement.
Very truly yours,
XXXXXXX, INC.
By
Title:
SCHEDULE 1
Financial Covenant Information
as of , 20
A. MINIMUM CONSOLIDATED EBITDA
(for the four consecutive fiscal quarter period of Borrower ended
, 20 )
1. Consolidated Net Income $
2. Consolidated Interest Expense $
3. Consolidated income tax expense $
4. Consolidated depreciation and amortization expense
$
5. Extraordinary losses $
6. Losses from the sale or other disposition of Property other than in the
ordinary course of business $
7. Non-cash charge required for impairment of goodwill under FASB 142
$
8. Extraordinary gains $
9. Gains from the sale or other disposition of Property other than in the
ordinary course of business $
10. Consolidated EBITDA [Sum of Line A.1 plus Line A.2 plus Line A.3
plus Line A.4 plus Line A.5 plus Line A.6 plus Line A.7 minus
Line A.8 minus Line A.9] $
11. Minimum Consolidated EBITDA required by Section 5.01(o)(i)
$8,500,000.00
B. MINIMUM CONSOLIDATED TANGIBLE NET WORTH
(as of , 20 )
1. Consolidated Tangible Net Worth as of April 1, 2002 $
2. 75% of Consolidated Net Income (with no deductions for losses) during
each fiscal quarter of the Company ended after April 1, 2002 (such
required increases to be cumulative for each such fiscal quarter)
$
3. 100% of the net proceeds received by the Company on or after March 12,
2002, from the issuance of any capital stock of other equity interests
of the Company $
4. Minimum Consolidated Net Worth required by Section 5.01(o)(ii) [Sum of
Line B.1 minus $3,000,000.00 plus Line B.2 plus Line B.3]
$
5. Actual Consolidated Net Worth $
C. MAXIMUM CONSOLIDATED DEBT TO CONSOLIDATED EBITDA RATIO
(as of , 20 )
1. Consolidated Debt (excludes Subordinated Indebtedness) $
2. Consolidated EBITDA [Line A.10 above) $
3. Consolidated Debt to Consolidated EBITDA Ratio (Line C.1 divided by
Line C.2] to 1.0
4. Maximum Consolidated Debt to Consolidated EBITDA Ratio permitted by
Section 5.01(o)(iii) 3.0 to 1.0
D. MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO
(for the four consecutive fiscal quarter period of Borrower ended
, 20 )
1. Consolidated EBITDA [Line A.10 above] $
2. Capital Expenditures $
3. Capitalized Lease Obligations $
4. Consolidated Interest Expense $
5. Consolidated Interest Coverage Ratio [Sum of (Line D.1 minus Line D.2
minus Line D.3) divided by Line D.4]
to 1.0
6. Minimum Consolidated Interest Coverage Ratio required by Section
5.01(o)(iv) 3.0 to 1.0
EXHIBIT H
[Date]
U.S. Bank National Association
000 Xxxxxx Xxxxxx
First Floor, Bank Lobby
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Commercial Lending Department
Ladies and Gentlemen:
Reference is hereby made to that certain Loan Agreement dated as of March
12, 2002, by and among XxXxxxx, Inc., a Delaware corporation (the "Company"),
XxXxxxx Properties, Inc., a Missouri corporation ("XxXxxxx Properties") 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.
XxXxxxx Properties desires to borrow on , 20 , an additional
advance on the Term Loan in the principal amount of $ pursuant to the
Agreement. Accordingly, XxXxxxx Properties requests that Lender make available
to XxXxxxx Properties said amount on said date. The supporting documentation
evidencing XxXxxxx Properties' intended use of such funds is attached to this
letter.
XxXxxxx Properties hereby represents and warrants to Lender that (a) all of
the representations and warranties made by the Company, XxXxxxx Properties
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
hereof as if made on and as of the date hereof and (b) no Default or Event of
Default has occurred and is continuing and that no Default or Event of Default
will result from the advance on the Term Loan requested hereby.
Very truly yours,
XXXXXXX PROPERTIES, INC.
By
Title:
STOCK PLEDGE AGREEMENT
Reference is hereby made to that certain Loan Agreement dated as of March
12, 2002, by and among XxXxxxx, Inc., a Delaware corporation ("Pledgor"),
XxXxxxx Properties, Inc., a Missouri corporation, and U.S. Bank National
Association, as the same may from time to time be amended, modified, extended,
renewed or restated (the "Loan Agreement"; all capitalized terms used and not
otherwise defined in this Agreement shall have the respective meanings ascribed
to them in the Loan Agreement).
As collateral security for the payment of (a) any and all of the present
and future Company's Obligations, (b) 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 and indemnity obligations) of Pledgor to Secured Party evidenced by
or arising under or in respect of this Agreement and/or any other Transaction
Document, (c) any and all other 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 Pledgor to Secured Party
of every kind and character, now existing or hereafter arising, absolute or
contingent, joint or several or joint and several, otherwise secured or
unsecured, due or not due, direct or indirect, expressed or implied in law,
contractual or tortious, liquidated or unliquidated, at law or in equity, or
otherwise, and whether heretofore, now or hereafter incurred or given by Pledgor
as principal, surety, endorser, guarantor or otherwise, and whether created
directly or acquired by Secured Party by assignment or otherwise and (d) any and
all costs of collection, legal expenses and reasonable attorneys' fees and
expenses incurred by Secured Party upon the occurrence of any default or event
of default under this Agreement, in collecting or enforcing payment of any such
indebtedness, liabilities or obligations or in preserving, protecting or
realizing on the Collateral hereunder or in representing Secured Party in
connection with bankruptcy or insolvency proceedings relating to or affecting
this Agreement (hereinafter collectively referred to as the "Secured
Obligations") (hereinafter collectively referred to as the "Secured
Obligations"), Pledgor hereby pledges and delivers to Secured Party and grants
to Secured Party a security interest in, a lien upon and a right of set-off as
to all of Pledgor's now owned and/or hereafter acquired right, title and
interest in, to and under the following: (a) all of the shares of capital stock
or other equity interests of each of XxXxxxx Properties, Inc., a Missouri
corporation, XxXxxxx Wireless, Inc., a Missouri corporation, XxXxxxx/STC, Inc.,
a Texas corporation and XxXxxxx - OCS, Inc., a Delaware corporation (hereinafter
individually referred to as a "Subsidiary" and collectively referred to as the
"Subsidiaries") now owned or hereafter acquired by Pledgor (collectively, the
"Pledged Shares") and any certificates representing the Pledged Shares, and all
dividends, cash, instruments, stock, securities and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares, (b) all other rights appurtenant to the
property described in clause (a) above (including, without limitation, voting
rights) and (c) all cash and noncash proceeds of any and all of the foregoing
(collectively, the "Collateral"). Contemporaneously with the execution of this
Agreement with respect to the Pledged Shares owned by Pledgor as of the date of
this Agreement, and promptly after the acquisition by Pledgor of any additional
Pledged Shares, Pledgor will deliver to Secured Party any certificates
representing such Pledged Shares together with proper instruments of assignment
duly executed in blank by Pledgor.
Pledgor hereby covenants and agrees that (a) with respect to all shares of
any class of capital stock or other equity interests of each Subsidiary pledged
to Secured Party contemporaneously with the execution of or pursuant to this
Agreement or at any time hereafter, if any stock dividends, stock splits,
reclassifications, adjustments or other changes are made in the capital
structure of such Subsidiary (whether as a result of a reorganization,
recapitalization, share split up, merger, transfer, consolidation or otherwise),
all new, additional or substituted securities issued with respect to or in
exchange for any of such shares by reason of any such change shall be subject to
Secured Party's security interest and lien and immediately delivered to Secured
Party, which shall hold such shares or securities so issued as additional
Collateral, (b) if any warrants, options or other rights now or hereafter exist
with respect to any of the Pledged Shares or any of the other Collateral,
Pledgor has and hereafter shall immediately so advise Secured Party of the
existence of such warrants, options and rights, all such warrants, options and
rights shall be subject to Secured Party's security interest and lien and all
stock or securities issued pursuant to the exercise of any such warrant, option
or right shall be subject to Secured Party's security interest and lien and
immediately delivered to Secured Party, which shall hold such shares or
securities as additional Collateral, (c) Pledgor shall immediately pledge and
deliver to Secured Party any and all shares of any class of capital stock or
other equity interests of each Subsidiary now owned or hereafter acquired by
Pledgor together with proper instruments of assignment duly executed in blank by
Pledgor and (d) Pledgor will not, without the prior written consent of Secured
Party, (i) sell, assign or otherwise transfer or pledge any of the Pledged
Shares or any of the other Collateral, (ii) create or permit any Lien or
encumbrance upon, or any security interest in, any of the Pledged Shares or any
of the other Collateral (other than Permitted Liens) or (iii) grant any option
or right with respect to any of the Pledged Shares or any of the other
Collateral.
Pledgor hereby represents and warrants to Secured Party that:
(a) Pledgor is the sole legal, beneficial and record owner of all of
the Collateral and none of the Collateral is or will be subject to any
security interests, Liens, encumbrances, charges, claims, warrants,
options, proxies, restrictions on transfer, resale or other disposition,
restrictions on voting rights, preferences and/or other preferential
arrangements of any kind or nature whatsoever (except Permitted Liens);
(b) the Pledged Shares have been duly authorized and validly issued
by the applicable Subsidiary and are fully paid and non-assessable;
(c) Pledgor has all requisite corporate right, power and authority to
(i) pledge, assign, grant a security interest in, transfer and deliver the
Collateral to Secured Party in the manner hereby done or contemplated and
(ii) execute, deliver and perform all of its obligations under this
Agreement;
(d) this Agreement has been duly authorized, executed and delivered
by Pledgor and constitutes the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms, except
as such enforceability may be limited by (i) bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(e) no consent, approval, authorization or other order of any
governmental or regulatory body, instrumentality, authority, agency or
official or any other Person is or will be required for (i) the execution,
delivery and/or performance of this Agreement by Pledgor or the delivery by
Pledgor of the Collateral to Secured Party as provided in this Agreement or
(ii) the exercise by Secured Party of the voting or other rights provided
for in this Agreement or of the remedies in respect of the Collateral
pursuant to this Agreement;
(f) the execution, delivery and performance by Pledgor of this
Agreement do not and will not (i) violate any provision of the Certificate
of Incorporation or By-Laws of Pledgor or of any law, rule, regulation
(including, without limitation, Regulations U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Pledgor, (ii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
agreement, document or instrument to which Pledgor is a party or by which
Pledgor or any of its property or assets may be bound or affected or
(iii) result in or require the creation or imposition of any mortgage, deed
of trust, pledge, Lien, security interest or other charge or encumbrance of
any nature upon or with respect to any of the property or assets of Pledgor
(other than in favor of Secured Party as provided for in this Agreement);
(g) upon the execution of this Agreement, Secured Party will have a
valid and enforceable security interest in the Collateral. Upon the filing
of a Uniform Commercial Code financing statement with the Delaware
Secretary of State naming Pledgor, as debtor, and Secured Party, as secured
party, and describing the Collateral, Secured Party's security interest in
the Collateral will be perfected;
(h) the authorized capital of XxXxxxx Properties, Inc. consists
solely of Thirty Thousand (30,000) shares of common stock, $1.00 par value
per share. As of the date of this Agreement, there are One Hundred (100)
shares of common stock of XxXxxxx Properties, Inc. issued and outstanding,
all of which are owned legally, beneficially and of record by Pledgor. As
of the date of this Agreement, there are no warrants or options, or any
agreements to issue any warrants or options, outstanding with respect to
any class of capital stock or other equity interests of XxXxxxx Properties,
Inc.;
(i) the authorized capital of XxXxxxx Wireless, Inc. consists solely
of Thirty Thousand (30,000) shares of common stock, $1.00 par value per
share. As of the date of this Agreement, there are One Hundred (100) shares
of common stock of XxXxxxx Wireless, Inc. issued and outstanding, all of
which are owned legally, beneficially and of record by Pledgor. As of the
date of this Agreement, there are no warrants or options, or any agreements
to issue any warrants or options, outstanding with respect to any class of
capital stock or other equity interests of XxXxxxx Wireless, Inc.;
(j) the authorized capital of XxXxxxx/STC, Inc. consists solely of
Thirty Thousand (30,000) shares of common stock, $1.00 par value per share.
As of the date of this Agreement, there are One Hundred (100) shares of
common stock of XxXxxxx/STC, Inc. issued and outstanding, all of which are
owned legally, beneficially and of record by Pledgor. As of the date of
this Agreement, there are no warrants or options, or any agreements to
issue any warrants or options, outstanding with respect to any class of
capital stock or other equity interests of XxXxxxx/STC, Inc.;
(k) the authorized capital of XxXxxxx - OCS, Inc. consists solely of
One Million Six Hundred Thousand (1,600,000) shares of common stock, $0.001
par value per share. As of the date of this Agreement, there are One
Million Two Hundred Twenty Thousand (1,220,000) shares of common stock of
XxXxxxx - OCS, Inc. issued and outstanding, all of which are owned legally,
beneficially and of record by Pledgor. As of the date of this Agreement,
there are no warrants or options, or any agreements to issue any warrants
or options, outstanding with respect to any class of capital stock or other
equity interests of XxXxxxx - OCS, Inc.; and
(l) the Pledgor is a Delaware corporation and its exact legal name is
"XxXxxxx, Inc." and its organizational identification number in the State
of Delaware is 0672724; and the Pledgor's chief executive office is located
at the address set forth below the Pledgor's signature on the signature
page(s) of this Agreement.
Pledgor hereby covenants and agrees that:
(a) it will do, make, execute and deliver such further and other
assignments, transfers, deeds, security agreements and other agreements,
documents and/or instruments as may be required by Secured Party to
establish in favor of Secured Party the security interests and liens
intended to be created by this Agreement and to accomplish the intention of
this Agreement;
(b) without the prior written consent of Secured Party, it will not
cause or permit any Subsidiary to (i) authorize or issue any new types,
varieties or classes of capital stock or other equity interests or any
bonds or debentures, subordinated or otherwise, or any stock warrants or
options, (ii) authorize or issue any additional shares of any existing
class of capital stock or other equity interests or (iii) declare any stock
dividends or stock splits or take any other action which could, directly or
indirectly, decrease Pledgor's ownership interest in such Subsidiary;
(c) without the prior written consent of Secured Party, (i) it will
not cause or permit any Subsidiary to amend or otherwise change its
Certificate or Articles of Incorporation or By-Laws in any manner which
could affect any of the voting or other rights of any of the shares of
capital stock or other equity interests of such Subsidiary and (ii) it will
not take any other action which could, directly or indirectly, affect the
voting rights of Pledgor with respect to any shares of capital stock or
other equity interests of any Subsidiary now owned or hereafter acquired by
Pledgor; and
(d) it will not change the location of its chief executive office
unless (i) such new chief executive office is located within the
continental United States of America, (ii) it gives Secured Party thirty
(30) days prior written notice of the same and (iii) prior to making any
such change, it executes and/or obtains and delivers to Secured Party any
and all additional financing statements and/or other filings and/or
amendments thereto and other agreements, documents or notices as may be
required in good faith by Secured Party; and it will not change its name,
jurisdiction of incorporation or organizational identification number
without the prior written consent of Secured Party.
So long as no Event of Default under this Agreement has occurred and is
continuing:
(a) Pledgor will be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares or any part thereof for any
purpose not inconsistent with the terms of this Agreement; provided, however,
that, without the prior written consent of Secured Party (i) Pledgor will not
exercise or refrain from exercising any such right if such action could
reasonably be expected to have an adverse effect on the value of the Pledged
Shares or any part thereof and (ii) Pledgor will not exercise or refrain from
exercising any such right in a manner which would authorize or effect (A) the
dissolution, winding up or liquidation, in whole or in part, of any Subsidiary,
(B) the consolidation or merger of any Subsidiary with any corporation or other
entity (other than consolidations and/or mergers expressly permitted by the Loan
Agreement), (C) the sale, disposition or encumbrance of all or substantially all
of the property or assets of any Subsidiary, (D) any change in the authorized
capital of any Subsidiary, (E) the issuance of any additional shares of any
class of capital stock or other equity interests of any Subsidiary or (F) the
alteration of the voting rights with respect to any class of capital stock or
other equity interests of any Subsidiary; and
(b) Pledgor will be entitled to collect and use for its own purposes
all cash dividends (except cash dividends paid or payable in respect of the
total or partial liquidation of any Subsidiary) paid on the Pledged Shares
so long as (i) the declaration and payment of such dividends is expressly
permitted by the Loan Agreement and (ii) such dividends are first used by
Pledgor to pay any of the Secured Obligations which are then due and
payable; provided, however, that until actually paid, all rights to all
dividends on any of the Pledged Shares shall remain subject to the security
interest created by this Agreement. All dividends (other than cash
dividends governed by the immediately preceding sentence) and all other
distributions in respect of any of the Pledged Shares or any of the other
Collateral, whenever paid or made, shall be delivered to Secured Party and
held by it subject to the security interest and lien created by this
Agreement.
Secured Party shall have no duties or obligations with respect to the
Collateral except that while the Collateral is in Secured Party's possession,
Secured Party's obligation with respect to the same shall be limited to
preserving the physical condition of the same.
If any one or more of the following events ("Events of Default") shall
occur and be continuing: (a) Pledgor shall fail to make any payment of any
principal of, interest on or other amount due with respect to any of the Secured
Obligations as and when the same shall become due and payable, whether by reason
of demand, maturity, acceleration or otherwise; (b) Pledgor shall fail to
perform or observe any term, provision, covenant or agreement contained in this
Agreement and any such failure shall remain unremedied for ten (10) days after
the earlier of (i) written notice of default is given to Pledgor by Secured
Party or (ii) any officer of Pledgor obtaining actual knowledge of such default;
(c) any representation or warranty made by Pledgor in this Agreement shall prove
to be untrue or incorrect in any material respect; (d) if the shares of capital
stock and/or other equity interests of XxXxxxx Properties, Inc. then pledged by
Pledgor to Secured Party pursuant to this Agreement shall at any time constitute
less than One Hundred Percent (100%) of the then issued and outstanding shares
of each class of capital stock or other equity interests of XxXxxxx Properties,
Inc.; (e) if the shares of capital stock and/or other equity interests of
XxXxxxx Wireless, Inc. then pledged by Pledgor to Secured Party pursuant to this
Agreement shall at any time constitute less than One Hundred Percent (100%) of
the then issued and outstanding shares of each class of capital stock or other
equity interests of XxXxxxx Wireless, Inc.; (f) if the shares of capital stock
and/or other equity interests of XxXxxxx/STC, Inc. then pledged by Pledgor to
Secured Party pursuant to this Agreement shall at any time constitute less than
One Hundred Percent (100%) of the then issued and outstanding shares of each
class of capital stock or other equity interests of XxXxxxx STC, Inc.; (g) if
the shares of capital stock and/or other equity interests of XxXxxxx - OCS, Inc.
then pledged by Pledgor to Secured Party pursuant to this Agreement shall at any
time constitute less than One Hundred Percent (100%) of the then issued and
outstanding shares of each class of capital stock or other equity interests of
XxXxxxx - OCS, Inc.; (h) this Agreement 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 of this
Agreement shall be contested or denied by Pledgor or if Pledgor shall deny that
it has any further liability or obligation under this Agreement; (i) the
occurrence and continuance of any "Event of Default" (as defined therein) under
or within the meaning of the Loan Agreement; or (j) any default or event of
default shall occur under or within the meaning of any other agreement, document
or instrument heretofore, now or hereafter executed by Pledgor with or in favor
of Secured Party which is not cured or waived within any applicable cure or
grace period (if any); then (1) Secured Party shall have the right to exercise
all voting rights with respect to the Collateral, (2) Secured Party shall have
the right to sell or cause to be sold any Collateral, (3) Secured Party shall
have the right to have any or all of the Collateral transferred to or registered
in the name of Secured Party, or its nominee or nominees, and thereafter to
exercise all rights with respect thereto as the absolute owner thereof, without
notice or liability to Pledgor, except to account for money or property actually
received by Secured Party, (4) Secured Party shall have the right to, in Secured
Party's name, or in the name of Pledgor, demand, xxx for, collect and receive
money, securities and/or other property which may at any time be payable or
receivable on account of or in exchange for any of the Collateral, or make any
compromise or settlement that Secured Party considers desirable with respect
thereto or renew or extend the time of payment or otherwise modify the terms of
any obligation included in the Collateral; provided, however, that it is
expressly agreed that Secured Party shall not be obligated to take any step to
preserve rights against prior parties on any of the Collateral, and that
reasonable care of the Collateral shall not include the taking of any such step
and (5) Secured Party shall have the right to exercise any or all of the rights
and remedies of a secured party under the Uniform Commercial Code of the State
of Missouri, as from time to time amended (the "Missouri UCC"), or any other
applicable law. Any sale of Collateral may be made without demand of
performance and any requirement of the Missouri UCC or any other applicable law
for reasonable notice to Pledgor shall be met if such notice is mailed, postage
prepaid, to Pledgor at its address as it appears herein or as last shown on the
records of Secured Party at least ten (10) days before the time of sale,
disposition or other event giving rise to the notice. In case of a public sale,
notice published by Secured Party for ten (10) days in a newspaper of general
circulation in the City or County where the sale is to be held shall be
sufficient. The proceeds of any sale, or sales, of Collateral shall be applied
by Secured Party in the following order: (a) to expenses, including reasonable
attorneys' fees and expenses, arising from the enforcement of any of the
provisions of this Agreement, or of the Secured Obligations or of any actual or
attempted sale; (b) to the payment or the reduction of any or all of the Secured
Obligations in such order and manner as Secured Party, in its discretion, may
elect; and (c) to the payment of any surplus remaining after payment of the
amounts mentioned, to Pledgor or to whomsoever may be lawfully entitled thereto.
If any deficiency arises upon any such sale or sales Pledgor agrees to pay the
amount of such deficiency promptly upon demand with interest. Notwithstanding
that Secured Party may continue to hold the Collateral and regardless of the
value thereof, Pledgor shall be and remain liable for the payment in full of the
principal of and interest on any balance of the Secured Obligations and expenses
at any time unpaid.
Pledgor recognizes that Secured Party may be unable to effect a public sale
of the Collateral by reason of the lack of a ready market for the Collateral, of
the limited number of potential buyers of the Collateral or of certain
prohibitions contained in the Securities Act of 1933, state securities laws and
other applicable laws, and that Secured Party may be compelled to resort to one
or more private sales thereof to a restricted group of purchasers. Pledgor
agrees that any such private sales may be at prices and other terms less
favorable to the seller than if sold at public sales and that such private sales
shall not solely by reason thereof be deemed not to have been made in a
commercially reasonable manner. Secured Party shall be under no obligation under
this Agreement or otherwise (except as provided by applicable law) to delay a
sale of any of the Collateral for the period of time necessary to permit the
registration of such securities for public sale under the Securities Act of 1933
and applicable state securities laws. Any such sale of all or a portion of the
Collateral may be for cash or on credit or for future delivery and may be
conducted at a private sale where Secured Party (to the extent permitted by
applicable law) or any other person or entity may be the purchaser of all or
part of the Collateral so sold. Secured Party shall not incur any liability as a
result of the sale of any of the Collateral, or any part thereof, at any private
sale which complies with the requirements of this paragraph. Pledgor hereby
waives, to the extent permitted by applicable law, any claims against Secured
Party arising by reason of the fact that the price at which any of the
Collateral, or any part thereof, may have been sold at such private sale was
less than the price that might have been obtained at a public sale, even if
Secured Party accepts the first offer deemed by Secured Party in good faith to
be commercially reasonable under the circumstances and does not offer any of the
Collateral to more than one offeree.
Pledgor agrees that it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or redemption
law now or hereafter in force in order to prevent or delay the enforcement of
this Agreement, or the absolute sale of the whole or any part of the Collateral
or the possession thereof by any purchaser at any sale under this Agreement, and
Pledgor hereby waives the benefit of all such laws to the extent it lawfully may
do so. Pledgor agrees that it will not interfere with the valid exercise by
Secured Party of any right, power and/or remedy of Secured Party provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise.
Under no circumstances shall Secured Party be deemed to assume any
responsibility for or obligation or duty with respect to any or all of the
Collateral of any nature or kind or any matter or proceeding arising out of or
relating thereto, other than (a) to exercise reasonable care in the physical
custody of the Collateral which is in its possession and (b) if an Event of
Default under this Agreement shall have occurred and be continuing, to act in a
commercially reasonable manner in exercising its rights and remedies with
respect to the Collateral. Subject to the foregoing, Secured Party shall not be
required to take any action of any kind to collect, preserve or protect its or
Pledgor's rights in any of the Collateral.
At any time, whether prior to or after the occurrence of an Event of
Default under this Agreement, Secured Party may, at its option, but shall not be
obligated to, surrender or deliver, without further liability on the part of
Secured Party to account therefor, all or any part of the Collateral to or upon
the written order of Pledgor, permit substitutions therefor or additions
thereto, and accept the receipt of Pledgor for any Collateral, or proceeds
thereof, which receipt shall be a full and complete discharge of Secured Party
with respect to the Collateral so delivered and proceeds so paid.
The rights and powers of Secured Party under this Agreement (a) are
cumulative and do not exclude any other right which Secured Party may have
independent of this Agreement and (b) may be exercised or not exercised at the
discretion of Secured Party (i) without regard to any rights of Pledgor,
(ii) without forfeiture or waiver because of any delay in the exercising
thereof, (iii) without imposing any liability on Secured Party for so exercising
or failing to exercise and (iv) in the event of a single or partial exercise
thereof, without precluding further exercise thereof. No delay or omission on
the part of Secured Party in exercising any right or remedy under this Agreement
shall operate as a waiver of such right or remedy or of any other right or
remedy under this Agreement and no waiver shall be construed as a bar to or
waiver of any right or remedy in the future. The rights and powers of Secured
Party under this Agreement shall inure to the benefit of its successors and
permitted assigns. Any and all liabilities and obligations of Pledgor under
this Agreement shall be binding upon the successors and permitted assigns of
Pledgor. Pledgor may not assign, transfer or delegate any of its rights,
obligations or duties under this Agreement without the prior written consent of
Secured Party.
Pledgor agrees to do such further acts and things and to execute and
deliver such additional conveyances, assignments, agreements and instruments as
Secured Party may at any time reasonably request in connection with the
administration or enforcement of this Agreement or related to the Collateral or
any part thereof or in order to better assure and confirm to Secured Party its
rights, powers and remedies under this Agreement. Pledgor hereby makes,
constitutes and appoints Secured Party the true and lawful agent and
attorney-in-fact of Pledgor with full power of substitution to, if an Event of
Default has occurred and is continuing or if Pledgor fails to do so upon the
demand of Secured Party, execute, endorse and deliver such agreements, documents
and instruments and to take such other action in the name and on behalf of
Pledgor as may be necessary or appropriate to carry out the intent of this
Agreement, including, without limitation, the grant of the security interests
and liens granted under this Agreement, and to perfect and protect the security
interests and liens granted to Secured Party in respect of the Collateral and
Secured Party's rights created under this Agreement, which power of attorney is
irrevocable during the term of this Agreement. Pledgor hereby consents and
agrees that the issuers of or obligors in respect of the Collateral or any
registrar or transfer agent for any of the Collateral shall be entitled to
accept the provisions of this Agreement as conclusive evidence of the right of
Secured Party to effect any transfer pursuant to this Agreement, notwithstanding
any other notice or direction or the contrary heretofore, now or hereafter given
by Pledgor or any other Person (unless consented to in writing by Secured Party)
to any such issuers or obligors or to any such registrar or transfer agent.
Except as otherwise specified in this Agreement, any notice, request,
demand, consent 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, if
to Pledgor at the address or telecopy number of Pledgor listed on the signature
page(s) of this Agreement, or if to Secured Party at 000 Xxxxxx Xxxxxx, First
Floor, Bank Lobby, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Commercial Lending
Department, Telecopy No. (000) 000-0000, or at such other address or telecopy
number as either party may designate as its address or telecopy number 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.
It is the intention of the parties hereto that this Agreement is entered
into pursuant to the provisions of the Missouri UCC. Any applicable provisions
of the Missouri UCC, not specifically included in this Agreement, shall be
deemed a part of this Agreement in the same manner as if set forth herein at
length; and any provisions of this Agreement that might in any manner be in
conflict with any provision of the Missouri UCC shall be deemed to be modified
so as not to be inconsistent with the Missouri UCC. In all respects this
Agreement and all transactions under this Agreement, and all the rights of the
parties, shall be governed as to validity, construction, enforcement and in all
other respects by the substantive laws of the State of Missouri (without
reference to conflict of law principles); provided, however, that the
perfection, the effect of the perfection or non-perfection and the priority of
the security interests and liens created by this Agreement shall in all respects
be governed, construed, applied and enforced in accordance with the substantive
laws of the applicable jurisdiction. To the extent any provision of this
Agreement is not enforceable under applicable law, such provision shall be
deemed null and void and shall have no effect on the remaining portions of this
Agreement.
This Agreement shall continue in full force and effect and the security
interests and liens granted hereby and all of the representations, warranties,
covenants and agreements of Pledgor under this Agreement and all of the terms,
conditions and provisions of this Agreement relating thereto shall continue to
be fully operative until such time as (a) all of the Secured Obligations shall
have been fully, finally and indefeasibly paid in cash, (b) no Letters of Credit
shall remain outstanding, (c) there shall be no remaining commitment or
obligation of Secured Party to advance funds, make loans, issue letters of
credit or extend credit to or for the account of Pledgor under the Loan
Agreement or any of the other Transaction Documents or otherwise, (d) the Loan
Agreement shall have expired or been terminated in accordance with its terms and
(e) the Company Guaranty shall have been terminated in accordance with its
terms. At such time as (a) all of the Secured Obligations shall have been fully,
finally and indefeasibly paid in cash, (b) no Letters of Credit shall remain
outstanding, (c) there shall be no remaining commitment or obligation of Secured
Party to advance funds, make loans, issue letters of credit or extend credit to
or for the account of Pledgor under the Loan Agreement or any of the other
Transaction Documents or otherwise, (d) the Loan Agreement shall have expired or
been terminated in accordance with its terms and (e) the Company Guaranty shall
have expired or been terminated in accordance with its terms, Secured Party
will, upon the written request of and at the expense of Pledgor, terminate this
Agreement and return to Pledgor any Collateral then in the possession of Secured
Party. If claim is ever made on Secured Party for repayment or recovery of any
amount or amounts received by Secured Party in payment or on account of any of
the Secured Obligations (including payment under a guaranty or from application
of collateral) and Secured Party repays all or part of said amount by reason of
(a) any judgment, decree or order of any court or administrative body having
jurisdiction over Secured Party or any property of Secured Party or (b) any
settlement or compromise of any such claim effected by Secured Party with any
such claimant (including, without limitation, Pledgor), then and in such event
Pledgor agrees that any such judgment, decree, order, settlement or compromise
shall be binding on Pledgor, notwithstanding any cancellation of any note,
guaranty or other instrument or agreement evidencing such Secured Obligations or
of this Agreement, and this Agreement shall continue to be effective or be
reinstated, as the case may be, and shall secure the payment of the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by Secured Party. This Agreement shall continue to be effective
or be reinstated, as the case may be, if (a) at any time any payment of any of
the Secured Obligations is rescinded or must otherwise be returned by Secured
Party upon the insolvency, bankruptcy or reorganization of Pledgor or otherwise,
all as though such payment had not been made or (b) this Agreement is released
in consideration of a payment of money or transfer of property or grant of a
security interest by Pledgor or any other Person and such payment, transfer or
grant is rescinded or must otherwise be returned by Secured Party upon the
insolvency, bankruptcy or reorganization of such Person or otherwise, all as
though such payment, transfer or grant had not been made.
PLEDGOR HEREBY IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY MISSOURI STATE COURT SITTING IN THE CITY OR COUNTY OF ST. LOUIS, MISSOURI OR
ANY UNITED STATES OF AMERICA COURT SITTING IN THE EASTERN DISTRICT OF MISSOURI,
EASTERN DIVISION, AS SECURED PARTY MAY ELECT, IN ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, (B) AGREES THAT ALL CLAIMS IN
RESPECT TO ANY 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 PLEDGOR 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 PLEDGOR MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT
DOMICILES. PLEDGOR (AND BY ITS ACCEPTANCE HEREOF, SECURED PARTY) HEREBY
IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH
PLEDGOR AND SECURED PARTY ARE PARTIES RELATING TO OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
IN THE EVENT ANY OF THE SECURED OBLIGATIONS ARE PAYABLE UPON DEMAND,
NEITHER THIS AGREEMENT NOR ANYTHING CONTAINED HEREIN SHALL BE DEEMED TO ALTER OR
IMPINGE UPON THE DEMAND CHARACTER OF SUCH SECURED OBLIGATIONS.
IN WITNESS WHEREOF, Pledgor has executed this Stock Pledge Agreement as of
the 12th day of March, 2002.
XXXXXXX, INC. (Pledgor)
By
Title:
Address of Chief Executive Office:
0000X Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
