Exhibit 99
SECOND AMENDED AND RESTATED LOAN AGREEMENT
AMONG
LASALLE BANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
▇▇▇▇▇ FARGO BANK, N.A.
AS SYNDICATION AGENT
AND
UMB BANK, NATIONAL ASSOCIATION
AS DOCUMENTATION AGENT
AND
LASALLE BANK NATIONAL ASSOCIATION
AND
THE OTHER LENDERS LISTED ON EXHIBIT 3
AS LENDERS
AND
▇▇▇▇▇▇▇▇ CORPORATION
AS BORROWER
NOVEMBER 30, 2005
TABLE OF CONTENTS
-----------------
1. Effective Date........................................................1
2. Definitions and Rules of Construction.................................1
2.1. Listed Definitions...........................................1
2.2. Other Definitions............................................1
2.3. References to Covered Person.................................1
2.4. References to Required Lenders...............................1
2.5. Accounting Terms.............................................1
2.6. Meaning of Satisfactory......................................2
2.7. ▇▇▇▇▇ Fargo Bank, N.A. Appointment as Syndication Agent......2
2.8. UMB Bank, National Association Appointment as Documentation
Agent........................................................2
2.9. Computation of Time Periods..................................2
2.10. General......................................................2
2.11. Patriot Act Notice...........................................2
2.12. Reaffirmation; Term Loan.....................................3
3. Lenders' Commitments..................................................3
3.1. Revolving Loan Commitments...................................3
3.1.1. Aggregate Amount; Reductions........................3
3.1.2. Increases in Revolving Loan Commitment..............4
3.1.3. Limitation on Revolving Loan Advances...............4
3.1.4. Revolving Notes.....................................5
3.2. Swingline Commitment.........................................5
3.2.1. Swingline Advances..................................5
3.2.2. Limitations on Swingline Advances...................5
3.2.3. Swingline Note......................................5
3.3. Letter of Credit Commitment..................................5
4. Interest..............................................................6
4.1. Interest on Draws on Letters of Credit.......................6
4.2. Interest on the Swingline Loan...............................6
4.3. Interest on Aggregate Loans..................................6
4.4. Adjusted Base Rate...........................................6
4.5. Adjusted LIBOR Rate..........................................7
4.6. Base Rate Revolving Margins and LIBOR Revolving Margins......7
4.7. Interest Periods for LIBOR Loans.............................7
4.8. Time of Accrual..............................................8
4.9. Computation..................................................8
4.10. Rate After Maturity..........................................8
5. Fees..................................................................8
5.1. Revolving Loan Unused Fee....................................8
5.2. Letter of Credit Fee.........................................8
5.3. Letter of Credit Fronting Fee................................9
5.4. Other Letter of Credit Fees..................................9
5.5. Calculation of Fees..........................................9
6. Payments..............................................................9
6.1. Scheduled Payments on Aggregate Revolving Loan and
Swingline Loan...............................................9
6.1.1. Interest............................................9
6.1.2. Principal...........................................9
6.2. Application..................................................9
6.3. Prepayments.................................................10
6.3.1. Voluntary Prepayment...............................10
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6.3.2. Mandatory Prepayments When Over-Advances Exist.....10
6.3.3. Other Mandatory Prepayments........................10
6.4. Reimbursement Obligations of Borrower.......................12
6.5. Manner of Payments and Timing of Application of Payments....13
6.5.1. Payment Requirement................................13
6.5.2. Application of Payments and Proceeds...............13
6.5.3. Interest Calculation...............................13
6.6. Returned Instruments........................................13
6.7. Compelled Return of Payments or Proceeds....................13
6.8. Due Dates Not on Business Days..............................14
7. Procedure for Obtaining Advances and Letters of Credit...............14
7.1. Initial Advances............................................14
7.2. Subsequent Revolving Loan Advances..........................14
7.2.1. Borrower Requests..................................14
7.2.2. Revolving Loan Advances to Repay the
Swingline Loan.....................................14
7.2.3. Administrative Agent's Right to Make Other
Revolving Loan Advances............................15
7.3. Letters of Credit...........................................15
7.4. Fundings....................................................15
7.4.1. Advances...........................................15
7.4.2. Draws on Letters of Credit.........................16
7.4.3. All Fundings Ratable...............................16
7.5. Administrative Agent's Availability Assumption..............16
7.6. Disbursement................................................17
7.7. Restrictions on Advances....................................17
7.8. Restriction on Number of LIBOR Loans........................18
7.9. Each Advance Request and Letter of Credit Request a
Certification...............................................18
7.10. Requirements for Every Advance Request......................18
7.11. Conversion..................................................18
7.12. Requirements for Every Letter of Credit Request.............18
7.13. Exoneration of Administrative Agent and Lenders.............18
7.14. Payments to Other Creditors.................................19
8. Conditions of Lending................................................19
8.1. Conditions to Initial Advance...............................19
8.1.1. Listed Documents and Other Items...................19
8.1.2. Financial Condition; Projections...................19
8.1.3. No Default.........................................19
8.1.4. Representations and Warranties.....................19
8.1.5. No Material Adverse Change.........................20
8.1.6. Pending Material Proceedings.......................20
8.1.7. Administrative Agent Fee Letter....................20
8.1.8. Payment of Fees and Expenses.......................20
8.1.9. Insurance..........................................20
8.1.10. Real Estate Collateral.............................20
8.1.11. Closing Certificate................................20
8.1.12. Other Items........................................20
8.2. Conditions to Subsequent Advances...........................21
8.2.1. General Conditions.................................21
8.2.2. Representations and Warranties.....................21
8.2.3. No Prohibitions....................................21
8.2.4. No Default.........................................21
8.2.5. Perfection of Security Interests...................21
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9. Conditions to Issuance of Letters of Credit..........................21
9.1. Letter of Credit Application/Reimbursement Agreement........21
9.2. No Prohibitions.............................................21
9.3. Representations and Warranties..............................22
9.4. No Default..................................................22
9.5. Other Conditions............................................22
9.6. Perfection of Security Interests............................22
10. Representations and Warranties.......................................22
10.1. Organization and Existence..................................22
10.2. Authorization...............................................22
10.3. Due Execution...............................................22
10.4. Enforceability of Obligations...............................23
10.5. Burdensome Obligations......................................23
10.6. Legal Restraints............................................23
10.7. Labor Contracts and Disputes................................23
10.8. No Material Proceedings.....................................23
10.9. Material Licenses...........................................23
10.10. Compliance with Material Laws...............................23
10.10.1. Investigations Regarding Hazardous Materials.......23
10.10.2. Notices and Reports Regarding Hazardous Materials..23
10.10.3. Hazardous Materials on Real Property...............24
10.11. Prior Transactions..........................................24
10.12. Solvency....................................................24
10.13. Projections.................................................24
10.14. Financial Statements........................................24
10.15. No Change in Condition......................................24
10.16. No Defaults.................................................24
10.17. Investments.................................................25
10.18. Indebtedness................................................25
10.19. Indirect Obligations........................................25
10.20. Tax Liabilities; Governmental Charges.......................25
10.21. Pension Benefit Plans.......................................25
10.21.1. Prohibited Transactions............................25
10.21.2. Claims.............................................25
10.21.3. Reporting and Disclosure Requirements..............25
10.21.4. Accumulated Funding Deficiency.....................25
10.21.5. Multi-employer Plan................................26
10.22. Welfare Benefit Plans.......................................26
10.23. Retiree Benefits............................................26
10.24. State of Property...........................................26
10.25. Negative Pledges............................................26
10.26. Affiliates; Subsidiaries....................................26
10.27. Margin Stock................................................26
10.28. Securities Matters..........................................27
10.29. Investment Company Act, Etc.................................27
10.30. No Material Misstatements or Omissions......................27
10.31. Encumbrances................................................27
10.32. Filings.....................................................27
10.33. No Improper Payment or Influence............................27
10.34. Foreign Enemies and Regulations.............................28
10.35. Real Property...............................................28
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10.36. State of Collateral and Other Property......................28
10.36.1. Accounts...........................................28
10.36.2. Inventory..........................................29
10.36.3. Equipment..........................................29
10.36.4. Intellectual Property..............................29
10.36.5. Documents, Instruments and Chattel Paper...........30
10.37. Chief Place of Business; Locations of Collateral............30
10.38. Security Documents..........................................30
10.39. Eligibility of Collateral...................................30
11. Modification and Survival of Representations.........................30
12. Affirmative Covenants................................................31
12.1. Use of Proceeds.............................................31
12.2. Corporate Existence.........................................31
12.3. Maintenance of Property and Leases..........................31
12.4. Insurance...................................................31
12.5. Payment of Taxes and Other Obligations......................32
12.6. Compliance With Laws........................................32
12.7. Termination of Pension Benefit Plan.........................33
12.8. Notice to Administrative Agent of Material Events...........33
12.9. Borrowing Officer...........................................34
12.10. Accounting System; Tracing of Proceeds......................34
12.11. Financial Statements........................................35
12.11.1. Annual Financial Statements........................35
12.11.2. Quarterly Financial Statements.....................35
12.11.3. Monthly Compliance Certificate.....................35
12.12. Other Financial Information.................................35
12.12.1. Stockholder Reports................................35
12.12.2. Pension Benefit Plan Reports.......................36
12.12.3. Tax Returns........................................36
12.13. Annual Projections..........................................36
12.14. Other Information...........................................36
12.15. Access to Officers and Auditors.............................36
12.16. Acquisition Documents.......................................36
12.17. Further Assurances..........................................36
12.18. Covered Persons.............................................36
12.19. Guarantees..................................................37
12.20. Appraisals of Equipment.....................................37
12.21. Life Insurance..............................................37
12.22. Maintenance of Security Interests of Security Documents.....37
12.22.1. Preservation and Perfection of Security Interests..37
12.22.2. Collateral Held by Warehouseman, Bailee, etc.......38
12.22.3. Compliance With Terms of Security Documents........38
12.23. Appraisals of Collateral....................................38
12.24. Review of Accounts and Inventory............................38
12.25. Exams by Administrative Agent...............................38
12.26. Lockbox.....................................................39
12.27. Asset Coverage..............................................39
12.28. Delayed Sites...............................................39
13. Negative Covenants...................................................39
13.1. Investments.................................................39
13.2. Indebtedness................................................40
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13.3. Indirect Obligations........................................41
13.4. Security Interests..........................................41
13.5. Acquisitions................................................42
13.6. Disposal of Property........................................43
13.7. Stock Dividends; Distributions/Redemptions..................43
13.8. Change of Control...........................................44
13.9. Amendment to Charter Documents..............................44
13.10. Capital Structure; Equity Securities........................44
13.11. Change of Business..........................................44
13.12. Conflicting Agreements......................................44
13.13. Sale and Leaseback Transactions.............................44
13.14. Fiscal Year.................................................44
13.15. Transactions Having a Material Adverse Effect on Covered
Person......................................................45
13.16. Transactions with Affiliates................................45
13.17. Prepayment..................................................45
13.18. Bailments; Consignments; Warehousing........................45
13.19. Subsidiaries................................................45
13.20. Dormant Subsidiaries........................................45
14. Financial Covenants..................................................46
14.1. Special Definitions.........................................46
14.2. Minimum Fixed Charge Coverage...............................47
14.3. Maximum Ratio of Funded Indebtedness to EBITDA..............47
14.4. Minimum Net Worth...........................................48
14.5. Asset Coverage Ratio........................................48
15. Default..............................................................48
15.1. Events of Default...........................................48
15.1.1. Failure to Pay Principal or Interest...............48
15.1.2. Failure to Pay Amounts Owed to Other Persons.......48
15.1.3. Representations or Warranties......................48
15.1.4. Certain Covenants..................................49
15.1.5. Other Covenants....................................49
15.1.6. Acceleration of Other Indebtedness.................49
15.1.7. Default of Other Indebtedness......................49
15.1.8. Bankruptcy; Insolvency; Etc........................49
15.1.9. Judgments; Attachment; Settlement; Etc.............49
15.1.10. Pension Benefit Plan Termination, Etc..............49
15.1.11. Liquidation or Dissolution.........................50
15.1.12. Seizure of Assets..................................50
15.1.13. Racketeering Proceeding............................50
15.1.14. Loss to Assets.....................................50
15.1.15. Guaranty; Guarantor................................50
15.1.16. Loan Documents; Security Interests.................50
15.1.17. Loss to Collateral.................................51
15.2. Cross Default...............................................51
15.3. Rights and Remedies.........................................51
15.3.1. Termination of Commitments.........................51
15.3.2. Acceleration.......................................51
15.3.3. Right of Setoff....................................51
15.3.4. Rights Generally...................................51
15.3.5. Joint and Several..................................52
15.3.6. Notice to Account Debtors..........................52
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15.3.7. Entry Upon Premises and Access to Information......52
15.3.8. Completion of Uncompleted Inventory Items..........52
15.3.9. Borrower's Obligations.............................53
15.3.10. Miscellaneous......................................53
15.3.11. Secured Party Rights...............................53
15.4. Application of Funds........................................53
15.5. Limitation of Liability; Waiver; Notice.....................54
16. Administrative Agent and Lenders.....................................54
16.1. Appointment, Powers, and Immunities.........................54
16.2. Reliance by Administrative Agent............................55
16.3. Employment of Agents and Counsel............................55
16.4. Defaults....................................................55
16.5. Rights as Lender............................................56
16.6. Indemnification.............................................56
16.7. Notification of Lenders.....................................56
16.8. Non-Reliance on Agent and Other Lenders.....................56
16.9. Resignation.................................................57
16.10. Collections and Distributions to Lenders by Administrative
Agent.......................................................57
17. Change in Circumstances..............................................58
17.1. Compensation for Increased Costs and Reduced Returns........58
17.1.1. Law Changes or Tax Impositions.....................58
17.1.2. Capital Adequacy...................................58
17.1.3. Notice to Borrower.................................59
17.2. Market Failure..............................................59
17.3. Illegality..................................................59
17.4. Compensation................................................59
17.5. Treatment of Affected Loans.................................60
17.6. Taxes.......................................................60
17.6.1. Gross-Up...........................................61
17.6.2. Lenders' Undertakings..............................61
17.6.3. Survival of Borrower's Obligations.................62
17.7. Usury.......................................................62
18. General..............................................................62
18.1. Lenders' Right to Cure......................................62
18.2. Rights Not Exclusive........................................63
18.3. Survival of Agreements......................................63
18.4. Assignments.................................................63
18.4.1. Permitted Assignments..............................63
18.4.2. Consequences and Effect of Assignments.............64
18.4.3. Agreements Upon Assignment.........................64
18.4.4. Register...........................................64
18.4.5. Notice to Borrower of Assignment...................65
18.4.6. Assignment to Federal Reserve Bank.................65
18.5. Sale of Participations......................................65
18.6. Information; Confidentiality................................66
18.7. Payment of Expenses.........................................66
18.8. General Indemnity...........................................67
18.9. Letters of Credit...........................................67
18.10. Changes in Accounting Principles............................68
18.11. Loan Records................................................68
18.12. Other Security and Guaranties...............................68
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18.13. Loan Obligations Payable in Dollars.........................69
18.14. Disclosures.................................................69
19. Miscellaneous........................................................69
19.1. Notices.....................................................69
19.2. Amendments and Modifications; Waivers and Consents..........69
19.2.3. ...................................................70
19.3. Rights Cumulative...........................................71
19.4. Recitals....................................................71
19.5. Successors and Assigns......................................71
19.6. Severability................................................71
19.7. Counterparts................................................72
19.8. Governing Law; No Third Party Rights........................72
19.9. Counterpart Facsimile Execution.............................72
19.10. Reproductions as Evidence...................................72
19.11. Effect of Merger of Bank....................................72
19.12. Negotiated Transaction......................................72
19.13. CHOICE OF FORUM.............................................73
19.14. SERVICE OF PROCESS..........................................73
19.15. WAIVER OF JURY TRIAL........................................73
19.16. Incorporation By Reference..................................74
19.17. Statutory Notice - Insurance................................74
19.18. Statutory Notice - Oral Commitments.........................74
20. Security and Guaranties..............................................75
20.1. Security Agreements.........................................75
20.2. Mortgages...................................................75
20.3. Additional Subsidiaries; Guaranties.........................75
21. Power of Attorney....................................................76
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
In consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged,
▇▇▇▇▇▇▇▇ Corporation, a Missouri corporation (Borrower) and LaSalle Bank
National Association (LaSalle), as Administrative Agent, and LaSalle and the
other lenders listed on Exhibit 3 to this Agreement, as Lenders, agree as
follows:
RECITALS
A. The Borrower, Administrative Agent, LaSalle and the lenders
named therein or party thereto from time to time (the "Existing Lenders"),
entered into an Amended and Restated Loan Agreement dated as of January 27,
2005 (as amended from time to time, the "Existing Loan Agreement").
B. The Borrower, Administrative Agent and the Lenders desire to,
and have agreed to, amend and restate the Existing Loan Agreement into this
Agreement, and this Agreement is not a novation of the Existing Loan
Agreement.
C. As a condition to the execution and delivery of this Agreement,
the Administrative Agent, the Existing Lenders and the Lenders have executed
a Master Assignment and Acceptance Agreement, as acknowledged by the
Borrower, of even date herewith, which such Master Assignment and Acceptance
Agreement is effective simultaneously with the effectiveness of this
Agreement.
1. EFFECTIVE DATE. This Agreement is effective November 30, 2005.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.1. LISTED DEFINITIONS. Capitalized words defined in
the Glossary attached hereto as Exhibit 2.1 shall have such defined
meanings wherever used in this Agreement and the other Loan
Documents. The inclusion of a defined term in the Glossary that is
not used elsewhere in this Agreement or in the other Loan Documents
shall not affect the interpretation or construction of this
Agreement or the other Loan Documents.
2.2. OTHER DEFINITIONS. If a capitalized word in this
Agreement is not defined in the Glossary, it shall have such
meaning as defined elsewhere herein, or if not defined elsewhere
herein, the meaning defined in the UCC. Terms are italicized in
this Agreement where they are defined.
2.3. REFERENCES TO COVERED PERSON. The words Covered
Person, a Covered Person, any Covered Person, each Covered Person
and every Covered Person refer to Borrower and each of its now
existing or later acquired, created or organized Subsidiaries
(including, without limitation, all direct and indirect
Subsidiaries of Borrower and all Guarantors) separately. The words
Covered Persons refers to Borrower and its now existing or later
acquired, created or organized Subsidiaries collectively.
2.4. REFERENCES TO REQUIRED LENDERS. The words Required
Lenders means any one or more Lenders whose shares of Lenders'
Exposure at the relevant time aggregate at least 55.000000000%.
2.5. ACCOUNTING TERMS. Unless the context otherwise
requires, accounting terms herein that are not defined herein shall
be determined under GAAP. All financial measurements contemplated
hereunder respecting Borrower shall be made and calculated for
Borrower and all
of its now existing or later acquired, created or organized
Subsidiaries, if any, on a consolidated and consolidating basis in
accordance with GAAP unless expressly provided otherwise herein.
2.6. MEANING OF SATISFACTORY. Whenever herein a document
or matter is required to be satisfactory to Administrative Agent or
satisfactory to Lenders or satisfactory to Required Lenders, unless
expressly stated otherwise such document must be satisfactory to
Administrative Agent, Lenders or Required Lenders (as applicable)
in both form and substance, and unless expressly stated otherwise
Administrative Agent, Lenders or Required Lenders (as applicable)
shall have the commercially reasonable discretion to determine
whether the document or matter is satisfactory.
2.7. ▇▇▇▇▇ FARGO BANK, N.A. APPOINTMENT AS SYNDICATION
AGENT. ▇▇▇▇▇ Fargo Bank, N.A. is given the title "Syndication
Agent" under the Loan Agreement and Loan Documents. Nothing
contained in the foregoing sentence, shall give ▇▇▇▇▇ Fargo Bank,
N.A. any additional rights or obligations under the Loan Agreement
or the Loan Documents.
2.8. UMB BANK, NATIONAL ASSOCIATION APPOINTMENT AS
DOCUMENTATION AGENT. UMB Bank, National Association is given the
title "Documentation Agent" under the Loan Agreement and Loan
Documents. Nothing contained in the foregoing sentence, shall give
UMB Bank, National Association any additional rights or obligations
under the Loan Agreement or the Loan Documents.
2.9. COMPUTATION OF TIME PERIODS. In computing or defining
periods of time from a specified date to a later specified date,
and in computing the accrual of interest or fees, the word from
shall mean from and including and the words to and until shall each
mean to but excluding. Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days
are expressly prescribed, and references in this Agreement to
months and years are to calendar months and calendar years unless
otherwise specified.
2.10. GENERAL. Unless the context of this Agreement
clearly requires otherwise: (i) references to the plural include
the singular and vice versa; (ii) references to any Person include
such Person's successors and assigns but, if applicable, only if
such successors and assigns are permitted by this Agreement; (iii)
references to one gender include all genders; (iv) including is not
limiting; (v) or has the inclusive meaning represented by the
phrase and/or; (vi) the words hereof, herein, hereby, hereunder and
similar terms in this Agreement refer to this Agreement as a whole,
including its Exhibits, and not to any particular provision of this
Agreement; (vii) the word Section or section and Page or page refer
to a section or page, respectively, of, and the word Exhibit refers
to an Exhibit to, this Agreement unless it expressly refers to
something else; (viii) reference to any agreement, document, or
instrument (including this Agreement and any other Loan Document or
other agreement, document or instrument defined herein), means such
agreement, document, or instrument as amended, modified, restated
or replaced and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof, and includes
all attachments thereto and documents incorporated therein, if any;
and (ix) general and specific references to any Law means such Law
as amended, modified, codified or reenacted, in whole or in part,
and in effect from time to time. Section captions and the Table of
Contents are for convenience only and shall not affect the
interpretation or construction of this Agreement or the other Loan
Documents.
2.11. PATRIOT ACT NOTICE. Administrative Agent, each
Lender and LaSalle (for itself and not on behalf of any other
party) hereby notifies the Borrower and each other Covered Person
that, pursuant to the requirements of the USA Patriot Act, Title
III of Pub. L. 107-56, signed into law October 26, 2001 (the
"Act"), it is required to obtain, verify and record information
that
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identifies the Borrower and each other Covered Person, which
information includes the name and address of the Borrower and each
other Covered Person and other information that will allow
Administrative Agent, such Lender or LaSalle, as applicable, to
identify the Borrower and each other Covered Person in accordance
with the Act.
2.12. REAFFIRMATION; TERM LOAN. The Agreement dated July
29, 2005, by and among the Borrower, the Administrative Agent and
the Lenders remains in effect (the "Existing Consent"). Borrower
hereby unconditionally reaffirms, acknowledges and confirms that
(i) Borrower has no defenses to its obligations under the Existing
Loan Agreement, the Existing Consent, this Agreement and the other
Loan Documents, (ii) Borrower has no claim against Administrative
Agent, any Existing Lender or any Lender arising from or in
connection with the Existing Loan Agreement, the Existing Consent,
this Agreement or the other Loan Documents and any and all such
claims are waived, released and discharged (the foregoing is not
intended to waive any manifest errors in the Administrative Agent's
or any Lender's records with respect to the Loan Obligations), and
(iii) each of the Documents are hereby reaffirmed without
qualification and are and remain in full force and effect
constitute the legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their terms, except
to the extent that the enforceability thereof against such Borrower
may be limited by bankruptcy, insolvency or other laws affecting
the enforceability of creditors rights generally or by equity
principles of general application. The Term Loan (as defined in the
Existing Loan Agreement) was fully funded and simultaneously with
the Revolving Advance being made on the Effective Date will be
fully repaid.
3. LENDERS' COMMITMENTS. Subject to the terms and conditions
hereof, and in reliance upon the Representations and Warranties, Lenders
make the following commitments to Borrower:
3.1. REVOLVING LOAN COMMITMENTS.
3.1.1. AGGREGATE AMOUNT; REDUCTIONS. Subject to
the limitations in Section 3.1.3 and elsewhere herein,
each Lender commits to make available to Borrower, from
the Effective Date to the Revolving Loan Maturity Date,
such Lender's pro-rata share (as listed on Exhibit 3
hereto) of an Aggregate Revolving Loan Commitment of One
Hundred Fifty Million Dollars ($150,000,000), by funding
such Lender's pro-rata share of Revolving Loan Advances
made from time to time by Administrative Agent as provided
herein. Subject to the limitations in Section 3.1.3 and
elsewhere herein, payments and prepayments that are
applied to reduce the Aggregate Revolving Loan may be
re-borrowed through Revolving Loan Advances. Borrower may
reduce the amount of the Aggregate Revolving Loan
Commitment in whole multiples of $1,000,000 at any time
and from time to time, but only if (i) Borrower gives
Administrative Agent written notice of Borrower's
intention to make such reduction at least three (3)
Business Days prior to the effective date of the
reduction, and (ii) Borrower makes on the effective date
of the reduction any payment on the Aggregate Revolving
Loan required hereunder as a consequence of the reduction,
including, principal, interest and LIBOR breakage fees (if
any). Any such reduction of the amount of the Aggregate
Revolving Loan Commitment, whether scheduled or voluntary,
shall be permanent. Each Lender's initial Revolving Loan
Commitment is its pro-rata share of the Aggregate
Revolving Loan Commitment. Upon any reduction of the
Aggregate Revolving Loan Commitment, each Lender's
Revolving Loan Commitment will automatically reduce by
such Lender's pro-rata share of the reduction of the
Aggregate Revolving Loan Commitment.
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3.1.2. INCREASES IN REVOLVING LOAN COMMITMENT.
The Company may, at its option at any time and from time
to time on or before the fourth annual anniversary of the
Effective Date, seek to increase the Aggregate Revolving
Loan Commitment by up to an aggregate amount not exceeding
Twenty-Five Million Dollars ($25,000,000) (resulting in
maximum Revolving Commitment of One Hundred Seventy-Five
Million Dollars ($175,000,000)) upon written notice to the
Administrative Agent, which notice shall specify the
amount of any such incremental increase (which shall not
be less than $10,000,000) and shall be delivered at a time
when no Default or Event of Default has occurred and is
continuing. The Administrative Agent, subject to the
consent of the Borrower, which shall not be unreasonably
withheld or delayed, may allocate, as it determines in
Administrative Agent's sole discretion, the incremental
increase in the Revolving Loan Commitment on either a
ratable basis to the Lenders (which may be declined by any
Lender in its sole discretion) or on a non pro-rata basis
to one or more Lenders (which may be declined by any
Lender in its sole discretion) and/or to other banks or
entities reasonably acceptable to the Administrative Agent
and the Borrower which have expressed a desire to accept
the increase in its Revolving Loan Commitment. The
Administrative Agent will then notify each existing and
potentially new Lender of such revised allocations of the
Aggregate Revolving Loan Commitment, including the desired
increase. No increase in the Aggregate Revolving Loan
Commitment shall become effective until each of the
existing or new Lenders extending such incremental
increase in its Revolving Loan Commitment and the Borrower
shall have delivered to the Administrative Agent one or
more documents, notes, opinions, and other agreements in
form reasonably satisfactory to the Administrative Agent
pursuant to which any such existing Lender states, inter
alia, the amount of its Revolving Loan Commitment
increase, any such new Lender states its Revolving Loan
Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder, the Borrower
accepts such new Revolving Loan Commitments, and Borrower
certifies that no Default or Event of Default has occurred
and is continuing. After giving effect to such increase in
the Aggregate Revolving Loan Commitment, all Loans and all
such other credit exposure shall be held ratably by the
Lenders in proportion to their respective Revolving Loan
Commitments, as revised to accommodate the increase in the
Revolving Loan Commitment. Upon any increase in the
Aggregate Revolving Loan Commitment pursuant to this
Section, the Borrower shall pay Administrative Agent for
the ratable benefit of only the Lenders (including any new
Lender) whose Revolving Loan Commitments are increased an
upfront fee in an amount equal to what is mutually agreed
to among the Borrower, the Lenders whose Revolving Loan
Commitments are increased and the Administrative Agent.
Upon any such increase, Exhibit 3 shall be deemed to be
amended to reflect such increase and the Administrative
Agent shall promptly deliver a copy of the revised Exhibit
3 to each Lender and the Borrower.
3.1.3. LIMITATION ON REVOLVING LOAN ADVANCES. No
Revolving Loan Advance will be made which would result in
the Aggregate Revolving Loan exceeding the Maximum
Available Amount and no Revolving Loan Advance will be
made on or after the Revolving Loan Maturity Date. Lenders
may, however, in their absolute discretion make such
Revolving Loan Advances, but shall not be deemed by doing
so to have increased the Maximum Available Amount and
shall not be obligated to make any such Revolving Loan
Advances thereafter. At any time that there is an existing
Event of Default, the Aggregate Revolving Loan Commitment
may be canceled as provided in Section 15.3. The Maximum
Available Amount on any date shall be a Dollar amount
equal to (i) the Aggregate Revolving Loan Commitment,
minus (ii) the sum of (a) the Letter of Credit Exposure on
such date (except to the extent that a Revolving Loan
4
Advance will be used immediately to reimburse Letter of
Credit Issuer for unreimbursed draws on a Letter of
Credit), and (b) the Swingline Loan.
3.1.4. REVOLVING NOTES. The obligation of
Borrower to repay each Lender's Revolving Loan shall be
evidenced by a promissory note payable to the order of
such Lender in a maximum principal amount equal to the
amount of its Revolving Loan Commitment and otherwise in
form and substance satisfactory to Administrative Agent.
3.2. SWINGLINE COMMITMENT.
3.2.1. SWINGLINE ADVANCES. In order to reduce the
frequency of fundings of Revolving Loan Advances by
Lenders, but subject to the limitations in Section 3.2.2
and elsewhere herein, Administrative Agent may in its
absolute discretion make Swingline Advances to Borrower
from time to time from the Effective Date to the Revolving
Loan Maturity Date. Subject to the limitations in Section
3.2.2 and elsewhere herein, payments and prepayments that
are applied to reduce the Swingline Loan may be
re-borrowed through Swingline Advances. Administrative
Agent may terminate the foregoing Swingline Commitment at
any time in its absolute discretion.
3.2.2. LIMITATIONS ON SWINGLINE ADVANCES.
Administrative Agent shall not be obligated to make any
particular Swingline Advance, the making of any particular
Swingline Advance at any particular time being absolutely
discretionary. At anytime Administrative Agent may choose
to suspend Swingline Advances and treat all subsequent
requests for an Advance as Revolving Loan Advances. In any
event, no Swingline Advance will be made on or after the
Revolving Loan Maturity Date, and no Swingline Advance
will be made which would result in the Swingline Loan
exceeding the Maximum Swingline Amount. No Swingline
Advance will be made which would result in the Swingline
Loan plus the Lender acting as Administrative Agent's
Revolving Loans and such Lender's pro-rata share of the
Letter of Credit Exposure exceeding such Lender's
Revolving Loan Commitment; provided, however,
Administrative Agent may, in its absolute discretion make
such Swingline Advances, but shall not be deemed by doing
so to have increased the Maximum Swingline Amount and
shall not be obligated to make any such Swingline Advance
thereafter; and provided further, however, that after
making a requested Swingline Loan, the sum of the
Swingline Lender's pro rata share of the Aggregate
Revolving Loan and all outstanding Swingline Loans, may
exceed the Swingline Lender's pro rata share of the
Revolving Commitment. The Maximum Swingline Amount on any
date shall be a Dollar amount equal to the lesser of (i)
$5,000,000 or (ii) an amount equal to (a) the Aggregate
Revolving Loan Commitment, minus (b) the sum of (i) the
Letter of Credit Exposure and (ii) the Aggregate Revolving
Loan immediately prior to the making of such Swingline
Advance.
3.2.3. SWINGLINE NOTE. The obligation of Borrower
to repay the Swingline Loan shall be evidenced by a
promissory note payable to the order of Administrative
Agent in a maximum principal amount of $5,000,000 and
otherwise in form and substance satisfactory to
Administrative Agent.
3.3. LETTER OF CREDIT COMMITMENT.
3.3.1. The Borrower shall execute and deliver to
the Letter of Credit Issuer the Master Letter of Credit
Agreement from time to time in effect. Letter of Credit
Issuer commits to issue standby letters of credit and
commercial (documentary) letters of credit for the account
of Borrower from time to time from the Effective Date to
the Revolving
5
Loan Maturity Date, but only if the Letter of Credit
Exposure will not as a result of such issuance exceed the
lesser of (i) Thirty-Five Million Dollars and Zero Cents
($35,000,000) and (ii) an amount equal to the difference
between (a) the Aggregate Revolving Loan Commitment, and
(b) the Aggregate Revolving Loan plus the Swingline Loan.
The expiration date of any Letter of Credit will be a
Business Day that will be no more than one (1) year from
the date of issuance but in no event shall such date be
later than the date which is twenty-five days prior to the
Revolving Loan Maturity Date; provided, however, that the
expiration date for a Letter of Credit may be later than
the date that is twenty-five (25) days prior to the
Revolving Loan Maturity Date if Letter of Credit Issuer
consents to such issuance and Borrower provides to Letter
of Credit Issuer cash collateral satisfactory to Letter of
Credit Issuer as security for Borrower's obligation to
reimburse Letter of Credit Issuer for all draws
thereunder. In the event of a direct and irreconcilable
conflict between the terms of this Agreement and the terms
of the documents executed by Borrower in connection with
the issuance of any Letter of Credit including, without
limitation, any letter of credit application, Master
Letter of Credit Agreement or reimbursement agreement, the
terms of this Agreement will control.
3.3.2. Immediately upon the issuance by Letter of
Credit Issuer of a Letter of Credit in accordance with the
terms and conditions of this Agreement, Letter of Credit
Issuer shall be deemed to have sold and transferred to
each other Lender, and such other Lender shall be deemed
to have purchased and received from Letter of Credit
Issuer, a pro-rata undivided interest and participation in
such Letter of Credit, the reimbursement obligation of
Borrower with respect thereto, and any guaranty thereof or
collateral therefor. Such other Lender's pro-rata
undivided interest shall be the same as its pro-rata share
of the Aggregate Revolving Loan Commitment.
4. INTEREST.
4.1. INTEREST ON DRAWS ON LETTERS OF CREDIT. The
unreimbursed amount of each draw on a Letter of Credit shall bear
interest at a rate per annum equal to the Adjusted Base Rate
applicable to Revolving Loans.
4.2. INTEREST ON THE SWINGLINE LOAN. The entire Swingline
Loan shall be a Base Rate Loan and shall bear interest at the
Adjusted Base Rate.
4.3. INTEREST ON AGGREGATE LOANS. Borrower may, as
provided in Section 7, designate the whole of an Advance or any
part of an Advance (other than, in either case, a Swingline
Advance) to be either a Base Rate Advance or a LIBOR Advance;
provided, however, during the existence of an Existing Default,
Borrower may not designate an Advance or part of an Advance as a
LIBOR Advance. Each Base Rate Advance when made will become a Base
Rate Loan, which shall bear interest at the Adjusted Base Rate.
Each LIBOR Advance when made will become a LIBOR Loan, which shall
bear interest at the Adjusted LIBOR Rate. Borrower may also, as
provided herein, convert some or all of a Base Rate Loan into a
LIBOR Loan and some or all of a LIBOR Loan into a Base Rate Loan.
For each LIBOR Loan, Borrower shall select an Interest Period as
provided in Section 4.7. A LIBOR Loan shall bear interest at the
Adjusted LIBOR Rate throughout the applicable Interest Period
designated by Borrower.
4.4. ADJUSTED BASE RATE. The Adjusted Base Rate for any
Base Rate Loan which is a Revolving Loan or a Swingline Loan shall
be the Base Rate plus the applicable Base Rate Revolving Margin
determined from the table in Section 4.6.
6
4.5. ADJUSTED LIBOR RATE. The Adjusted LIBOR Rate for any
LIBOR Loan which is a Revolving Loan shall be the LIBOR Rate plus
the applicable LIBOR Revolving Margin determined from the table in
Section 4.6.
4.6. BASE RATE REVOLVING MARGINS AND LIBOR REVOLVING
MARGINS.
---------------------------------------------------------------------------------------------------------
IF THE RATIO OF BORROWER'S FUNDED
INDEBTEDNESS TO EBITDA (FOR THE FOUR BASE RATE
FISCAL QUARTER PERIOD OF BORROWER MOST LIBOR REVOLVING REVOLVING UNUSED FEE REFERENCE
RECENTLY ENDED) IS MARGIN MARGIN RATE LEVEL
---------------------------------------------------------------------------------------------------------
greater than or equal to 3.50 to 1.00 2.750% 0.000% 0.375% IV
---------------------------------------------------------------------------------------------------------
greater than or equal to 3.00 to 1.00
but less than 3.50 to 1.00 2.500% 0.000% 0.375% III
---------------------------------------------------------------------------------------------------------
greater than or equal to 2.50 to 1.00
but less than 3.00 to 1.00 2.250% 0.000% 0.250% II
---------------------------------------------------------------------------------------------------------
less than 2.50 to 1.00 2.000% 0.000% 0.250% I
---------------------------------------------------------------------------------------------------------
The increments applicable on the Effective Date shall be those of
Level IV until the third Business Day following the day when
Borrower delivers such Financial Statements (and accompanying
quarterly Compliance Certificate) to Administrative Agent for the
Fiscal Quarter ending closest to April 30, 2006. Thereafter, the
applicable increments shall be re-determined by Administrative
Agent: (A) based on the ratio of Borrower's Funded Indebtedness to
EBITDA for the four fiscal quarter period of Borrower most recently
ended, promptly after each delivery by Borrower to Administrative
Agent of Borrower's Financial Statements (and accompanying
quarterly Compliance Certificate) as required in Section 12.11 and
will become applicable on the third Business Day following the day
when Borrower delivers such Financial Statements (and accompanying
quarterly Compliance Certificate) to Administrative Agent, and (B)
in connection with each Permitted Acquisition described in
13.5(xi), based on the ratio of Borrower's pro forma Funded
Indebtedness to pro forma EBITDA for the four fiscal quarter period
of Borrower most recently ended, after giving effect to each such
Permitted Acquisition, based upon the quarterly Compliance
Certificate as required in Section 13.5(xi) delivered by Borrower
to Administrative Agent, and will become applicable on the closing
of such Permitted Acquisition.
4.7. INTEREST PERIODS FOR LIBOR LOANS. For each LIBOR Loan
Borrower shall select an Interest Period that is either one (1)
month, two (2) months, three (3) months, six (6) months or twelve
(12) months; provided that:
4.7.1. every such Interest Period for a LIBOR
Advance shall commence on the date of the Advance or on
the date of the conversion or continuation of any Loan as
a LIBOR Loan;
4.7.2. if any Interest Period would otherwise
expire on a day of a calendar month which is not a
Business Day, then such Interest Period shall expire on
the next succeeding Business Day in that calendar month;
4.7.3. any Interest Period that begins on the
last 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 Business Day of the calendar month at the
end of such Interest Period;
7
4.7.4. no Interest Period for a LIBOR Loan that
is part of the Aggregate Revolving Loan shall extend
beyond the Revolving Loan Maturity Date; and
4.7.5. there may be only one LIBOR Loan with an
Interest Period of twelve (12) months at any time, and
such LIBOR Loan may not have an aggregate outstanding
amount in excess of $15,000,000.
4.8. TIME OF ACCRUAL. Interest shall accrue on all
principal amounts outstanding from the date when first outstanding
to the date when no longer outstanding. Amounts shall be deemed
outstanding until payments are applied thereto as provided herein.
4.9. COMPUTATION. Interest shall be computed for the
actual days elapsed over a year deemed to consist of 360 days.
Interest rates that are based on the Base Rate shall change
simultaneously with any change in the Base Rate and shall be
effective for the entire day on which such change becomes
effective. The Base Rate will be determined by Administrative Agent
before the initial Advances on the Effective Date and on each
Business Day thereafter when the Base Rate changes.
4.10. RATE AFTER MATURITY. Borrower shall pay interest on
the Aggregate Loans, the Swingline Loan and any Obligations with
respect to Letters of Credit after their Maturity, and, at the
option of Administrative Agent or at the direction of the Required
Lenders, on the Aggregate Loans, the Swingline Loan and on the
other Loan Obligations after the occurrence of an Event of Default,
at a rate per annum of two percent (2%) plus the then-applicable
rates. Past due fees and other amounts past due and owing hereunder
shall bear interest at two percent (2%) above the then-current
Adjusted Base Rate.
5. FEES.
5.1. REVOLVING LOAN UNUSED FEE. Borrower shall pay to
Administrative Agent for the account of Lenders a non-refundable,
recurring Revolving Loan Unused Fee calculated by applying the
daily equivalent of an annual Unused Fee Rate determined pursuant
to the table set forth in Section 4.6 to the Unused Revolving Loan
Commitment on each day during the period from the Effective Date to
the Revolving Loan Maturity Date. The Unused Revolving Loan
Commitment on any day shall be the difference between (i) the
amount of the Aggregate Revolving Loan Commitment and (ii) the sum
of (a) the Aggregate Revolving Loan, and (b) the face amount of all
outstanding Letters of Credit and (c) without duplication of clause
(b), the total of all amounts drawn on the outstanding Letters of
Credit but not reimbursed to the Letter of Credit Issuer by
Borrower as of the close of business on such day, but excluding in
all cases the Swingline Loan. The Revolving Loan Unused Fee shall
be payable quarterly in arrears commencing on the last day of the
first calendar quarter ending after the Effective Date and
continuing on the last day of each calendar quarter thereafter and
on the Revolving Loan Maturity Date. The Unused Fee Rate shall be
determined from the chart in Section 4.6 of this Agreement under
the heading "Unused Fee Rate." The Unused Fee Rate applicable on
the Effective Date shall be Level IV. Thereafter, the Borrower's
ratio of Funded Indebtedness to EBITDA for the four fiscal quarter
period of Borrower most recently ended will be calculated and
applied to determine the applicable Unused Fee Rate in the same
manner used for determination of the applicable Base Rate Revolving
Margin, and LIBOR Revolving Margin as described in Section 4.6.
5.2. LETTER OF CREDIT FEE. Borrower shall pay to
Administrative Agent for the account of Letter of Credit Issuer and
each other Lender with a Revolving Loan Commitment, a
non-refundable recurring Letter of Credit Fee for each Letter of
Credit
8
issued by Letter of Credit Issuer. All Letter of Credit Fees
are to be paid to the Lenders pro-rata in accordance with their
respective pro-rata shares as set forth on Exhibit 3. The Letter of
Credit Fee for any Letter of Credit shall be an amount equal to the
aggregate undrawn amount of such Letter of Credit multiplied by the
LIBOR Revolving Margin in effect on the date such Letter of Credit
is issued and any annual renewal date of each such Letter of
Credit. The Letter of Credit Fee for each Letter of Credit shall be
payable in advance for the remaining portion of the quarter when
issued and quarterly thereafter on the last day of each full
calendar quarter thereafter (or portion thereof for the last
calendar quarter) while such Letter of Credit is outstanding.
5.3. LETTER OF CREDIT FRONTING FEE. Borrower shall pay to
Letter of Credit Issuer (for its own account) a non-refundable,
one-time Fronting Fee equal to .125% of the face amount of each
Letter of Credit issued by Letter of Credit Issuer. The Fronting
Fee due for any Letter of Credit shall be payable in advance on the
issuance date of such Letter of Credit.
5.4. OTHER LETTER OF CREDIT FEES. Borrower shall pay to
Letter of Credit Issuer for its own account such Letter of Credit
Issuer's other customary fees for issuance, amendment, or renewal
of a Letter of Credit and, as Letter of Credit Issuer and Borrower
may agree with respect to each Letter of Credit, and for each
negotiation of a draft drawn under such Letter of Credit.
5.5. CALCULATION OF FEES. All of the foregoing fees and
all other fees payable to Administrative Agent or any Lender that
are based on an annual percentage shall be calculated on the basis
of a year deemed to consist of 360 days and for the actual number
of days elapsed.
6. PAYMENTS.
6.1. SCHEDULED PAYMENTS ON AGGREGATE REVOLVING LOAN AND
SWINGLINE LOAN.
6.1.1. INTEREST. Borrower shall pay interest
accrued on each Base Rate Loan included in the Aggregate
Revolving Loan and on the Swingline Loan quarterly in
arrears beginning on the last day of the first calendar
quarter ending after the Effective Date and continuing on
the last day of each calendar quarter thereafter, and on
the Revolving Loan Maturity Date. Borrower shall pay
interest accrued on each LIBOR Loan included in the
Aggregate Revolving Loan at the end of its Interest Period
and, in addition, for each such LIBOR Loan with an
Interest Period longer than three (3) months, Borrower
shall pay interest accrued thereon quarterly on the same
date of each quarter as the date such LIBOR Loan was made.
Borrower shall pay interest accrued thereon on each day
that would have been the end of an Interest Period with
respect to such LIBOR Loan had successive Interest Periods
of three (3) months' duration been applicable to such
LIBOR Loan. Borrower shall pay interest accrued on each
Revolving Loan and the Swingline Loan after the Revolving
Loan Maturity Date on demand.
6.1.2. PRINCIPAL. Borrower shall repay the entire
amount of the Aggregate Revolving Loan as then outstanding
on November 30, 2010 (the Revolving Loan Maturity Date),
and Borrower shall repay the entire amount of the
Swingline Loan on demand, or if no demand is made, on the
Revolving Loan Maturity Date.
6.2. APPLICATION. Payments shall be paid or applied by the
Administrative Agent (in each case up to the outstanding principal
amount of the applicable Loan) (i) first, to reduce the Swingline
Loan to zero, and then (ii) second, as set forth in Section 16.10.
9
6.3. PREPAYMENTS.
6.3.1. VOLUNTARY PREPAYMENT. Subject to the
limitations in the following sentences, Borrower may
wholly prepay any Base Rate Loan, or LIBOR Loan that is
included in the Aggregate Revolving Loan at any time and
may make a partial prepayment thereon from time to time,
without penalty or premium, but only if (i) Borrower gives
Administrative Agent written notice (which may be mailed,
personally delivered or telecopied as provided in Section
19.1) or telephonic notice (promptly confirmed in writing
in the manner provided in Section 19.1) of Borrower's
intention to make such prepayment at least one Business
Day prior to tendering such prepayment, (ii) the total
amount of such prepayment is a whole multiple of $500,000,
and (iii) Borrower pays any amount that is due under
Section 17.4 as a consequence of the prepayment. Unless
there is an Existing Default, all payments on the
Revolving Loan shall be made first to the outstanding
balance of the Swingline Loan, if any, and then to the
remaining amount of the Aggregate Revolving Loan.
All such voluntary prepayments, unless otherwise expressly
stated in writing by Borrower to Administrative Agent
prior to the making of such prepayment, and subject to the
terms and provisions of this Agreement, will be deemed
made on the Swingline Loan, if any, until it is reduced to
zero, and thereafter to Base Rate Loans included in the
Aggregate Revolving Loan until they are reduced to zero
and then to LIBOR Loans included in the Aggregate
Revolving Loan (and all penalties and premiums due
hereunder in connection therewith) until they are reduced
to zero, and will be applied by Lenders to reduce the
Revolving Loans in accordance with their respective
pro-rata shares of the Aggregate Revolving Loan
Commitment.
6.3.2. MANDATORY PREPAYMENTS WHEN OVER-ADVANCES
EXIST. If at any time the Aggregate Revolving Loan exceeds
the Maximum Available Amount, whether as a result of
optional Revolving Loan Advances by Lenders as
contemplated by Section 3.1.3 or otherwise, Borrower shall
on demand make a payment in the amount of the excess to
Administrative Agent for the account of Administrative
Agent on the Swingline Loan and Lenders on the Aggregate
Revolving Loan. Each such prepayment will be applied by
Administrative Agent and Lenders first to reduce the
Swingline Loan (and consequently each Lenders' risk
participation in such Swingline Loan) until it is reduced
to zero, then to reduce the Base Rate Loans that are
included in the Aggregate Revolving Loan (and consequently
a ratable portion of each Lender's Revolving Loan) until
they are reduced to zero and then to reduce the LIBOR
Loans that are included in the Aggregate Revolving Loan
(and consequently a ratable portion of each Lender's
Revolving Loan). In the case of such a prepayment,
Borrower will pay any accrued interest on the amount
prepaid at the time of such prepayment, and Borrower pays
any amount that is due under Section 17.4 as a consequence
of the prepayment.
6.3.3. OTHER MANDATORY PREPAYMENTS.
6.3.3.1. Proceeds from Sales of Assets
Not in Ordinary Course. If Borrower or any
Covered Person sells any of its assets in a
single transaction or related series of
transactions that are not in the ordinary course
of business, Borrower shall make a payment to
Administrative Agent for the ratable benefit of
the Lenders, to be applied to reduce the Loan
Obligations, in the aggregate amount of the gross
proceeds therefrom less reasonable selling
expenses and the increment in federal, state and
local income taxes, if any,
10
payable as a consequence of any taxable gain from
such sale. Borrower need not make such prepayment,
however, (i) unless the net proceeds from such sale
or sales exceed $2,000,000 in any one fiscal year,
or (ii) from the net proceeds of any such sale of
a capital asset to the extent such net proceeds
are expended or committed in writing to be
expended by Borrower within 180 days of
completion of the sale for replacement of such
asset by another asset of comparable type and
utility. Borrower and Lenders agree that it is
Borrower's normal practice to sell from time to
time certain of its textile service plants and/or
related customer contracts, and such sales are
deemed to be in the ordinary course of business;
provided, however, that any sales of textile
service plants in excess of an aggregate of six
(6) over the term of this (beginning with the
Effective Date) Agreement shall not be deemed to
be in the ordinary course of business. All sales
of Borrower's hospitality business shall be
deemed to be in the ordinary course of business.
Transactions permitted by Section 13.13 are not
subject to this Section.
6.3.3.2. Proceeds from Issuance of
Indebtedness. If after the Execution Date
Borrower or any Covered Person issues any debt or
debt securities, Borrower shall promptly after
such sale make a payment to Administrative Agent
for the ratable benefit of the Lenders, to be
applied to reduce the Loan Obligations, in an
aggregate amount equal to one hundred percent
(100%) of the gross proceeds therefrom less
reasonable brokers' and underwriters' fees and
commissions and other reasonable issuing
expenses.
6.3.3.3. Proceeds from Sale or Issuance
of Securities. If after the Execution Date
Borrower or any Covered Person issues or sells
any equity (except equity issued in connection
with a Permitted Acquisition or equity of a
Subsidiary of Borrower issued to Borrower or
another Subsidiary of Borrower) or equity
securities, or warrants or options therefor
(other than the exercise of warrants or options
issued to management of Borrower pursuant to a
management incentive stock option program or the
issuance and exercise of restricted stock grants
to management and directors (collectively the
Approved Options)), Borrower shall promptly after
such sale make a payment to Administrative Agent
for the ratable benefit of the Lenders, to be
applied to reduce the Loan Obligations, in an
aggregate amount equal to seventy-five percent
(75%) of the gross proceeds therefrom less
reasonable brokers' and underwriters' fees and
commissions and other reasonable issuing
expenses.
6.3.3.4. Insurance/Condemnation
Proceeds. All Insurance/Condemnation Proceeds not
evidencing reimbursement for amounts already
spent by Borrower or any other Covered Person in
excess of $250,000 in the aggregate received by
Borrower and all Covered Persons in any Fiscal
year (but excluding all such
Insurance/Condemnation Proceeds of $25,000 or
less per occurrence), shall be deposited in an
interest bearing account (the "Proceeds Account")
with Administrative Agent in the name of Borrower
promptly upon receipt thereof by Borrower or
Administrative Agent. Within 135 days after such
receipt Borrower shall expend, or commit to
expend, some or all of the funds in the Proceeds
Account for rebuilding, repairing or replacing
the property for which such
Insurance/Condemnation Proceeds were paid;
provided, however, the Borrower and the
Administrative Agent may agree (such agreement
not to be unreasonably withheld by Administrative
Agent, unless a Default or Event of
11
Default shall have occurred and is continuing, in
which case such consent may be withheld in the sole
discretion of the Administrative Agent) that the
Borrower is not required to rebuild, repair or
replace and that such Insurance/Condemnation
Proceeds shall be applied to reduce the Loan
Obligations as set forth in this Agreement; and
provided further, however, if any
Insurance/Condemnation Proceeds represent the
loss or taking of all or substantially all of a
site or location, then the Borrower shall not be
required to (but may in its reasonable business
judgment) rebuild, repair or replace such site or
location and if Borrower decides in its
reasonable business judgment not to rebuild,
repair or replace such Insurance/Condemnation
Proceeds shall be applied to reduce the Loan
Obligations as set forth in this Agreement. All
funds in the Proceeds Account that have not been
so expended or committed to be so expended by the
135th day after receipt shall be distributed by
Administrative Agent to Lenders to be applied in
accordance with this Section 6.3.3. The foregoing
notwithstanding, Administrative Agent shall have
the right to debit the Proceeds Account in the
amount of, and apply the debit amount to pay, any
of the Loan Obligations that are not paid when
due as provided herein or at any time during an
existing Event of Default. Borrower hereby
assigns and grants to Administrative Agent for
the benefit of Lenders a first priority Security
Interest in any such Proceeds Account as security
for payment and performance of the Loan
Obligations. Notwithstanding the foregoing
provisions of this Section, but subject to the
$250,000 threshold in the first sentence of this
Section, and only to the extent Borrower or any
Covered Person has a right to receive any
Insurance/Condemnation Proceeds under any
applicable real estate lease to which it is a
party, any Insurance/Condemnation Proceeds
representing or applicable to a leasehold
location shall be applied to the Loan Obligations
as set forth herein. Unless expressly prohibited
by applicable Law, Administrative Agent is hereby
irrevocably authorized by Borrower to participate
in any proceeding for the condemnation or other
taking of any of Borrower's property and Borrower
from time to time will deliver to Administrative
Agent all instruments reasonably requested by
Administrative Agent to permit such
participation.
Every prepayment under this Section 6.3.3 shall be applied
to reduce the outstanding Swingline Loans, if any, and
then by Lenders to reduce the Revolving Loans (and
consequently the Aggregate Revolving Loan) first to Base
Rate Loans included in the Aggregate Revolving Loan until
they are reduced to zero and then to LIBOR Loans included
in the Aggregate Revolving Loan (and all penalties and
premiums due hereunder in connection therewith) until they
are reduced to zero. Borrower will not be obligated to
make a pre-payment if the making of any such pre-payment
would cause Borrower to break any existing Interest Hedge
Obligation.
6.4. REIMBURSEMENT OBLIGATIONS OF BORROWER. Borrower
hereby unconditionally agrees to immediately pay to Letter of
Credit Issuer on demand at the Letter of Credit Issuer's Applicable
Lending Office all amounts required to pay all drafts drawn under
Letters of Credit issued for the account of such Borrower, all fees
associated with the Letters of Credit, and all reasonable expenses
incurred by Letter of Credit Issuer in connection with such Letters
of Credit and in any event and without demand to remit to Letter of
Credit Issuer (which may be through obtaining Advances if permitted
under Section 3.1.3) sufficient funds to pay all debts and
liabilities arising under any Letter of Credit issued for the
account of such Borrower.
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6.5. MANNER OF PAYMENTS AND TIMING OF APPLICATION OF
PAYMENTS.
6.5.1. PAYMENT REQUIREMENT. Unless expressly
provided to the contrary elsewhere herein, Borrower shall
make each payment on the Loan Obligations to
Administrative Agent for the account of Lenders as
required under the Loan Documents at the Applicable
Lending Office of the Administrative Agent on the date
when due, without deduction, setoff or counterclaim. All
such payments will be distributed by Administrative Agent
to Lenders as provided in Section 16.10 for application to
the Loan Obligations as provided herein.
6.5.2. APPLICATION OF PAYMENTS AND PROCEEDS. All
payments received by Administrative Agent in immediately
available funds at or before 12:00 noon (Local Time) on a
Business Day will be distributed by Administrative Agent
to Lenders as provided in Section 16.10 on the same
Business Day. Such payments received on a day that is not
a Business Day or after 12:00 noon (Local Time) on a
Business Day will be distributed by Administrative Agent
to Lenders as provided in Section 16.10 on the next
Business Day. The amount so distributed to a Lender will
be applied by such Lender to the relevant Loan Obligation
on the Business Day when received.
6.5.3. INTEREST CALCULATION. Section 6.5.2
notwithstanding, for purposes of interest calculation
only, (i) a payment in cash or by wire transfer or direct
debit to an account of Borrower received at or before
12:00 noon (Local Time) on a Business Day shall be deemed
to have been applied to the relevant Loan Obligation on
the Business Day when it is received, and (ii) a payment
in cash or by wire transfer or direct debit to an account
of Borrower received on a day that is not a Business Day
or after 12:00 noon (Local Time) on a Business Day shall
be deemed to have been applied to the relevant Loan
Obligation on the next Business Day. A payment made by
check, draft or other instrument will be applied for
interest purposes in Administrative Agent's commercially
reasonable discretion in a manner consistent with its
customary collection policies.
6.6. RETURNED INSTRUMENTS. If a payment is made by check,
draft or other instrument and the check, draft or other instrument
is returned unpaid, any application of the payment to the Loan
Obligations will be reversed and will be treated as never having
been made.
6.7. COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If
Administrative Agent or any Lender is for any reason compelled to
surrender any payment or any proceeds of the Collateral because
such payment or the application of such proceeds is for any reason
invalidated, declared fraudulent, set aside, or determined to be
void or voidable as a preference, an impermissible setoff, or a
diversion of trust funds, then this Agreement and the Loan
Obligations to which such payment or proceeds was applied or
intended to be applied shall be revived as if such application was
never made; and Borrower shall be liable to pay to Administrative
Agent or such Lender, and shall indemnify Administrative Agent or
such Lender for and hold Administrative Agent or such Lender
harmless from any loss with respect to, the amount of such payment
or proceeds surrendered. This Section shall be effective
notwithstanding any contrary action that Administrative Agent or
such Lender may take in reliance upon its receipt of any such
payment or proceeds. Any such contrary action so taken by
Administrative Agent or such Lender shall be without prejudice to
Administrative Agent's or such Lender's rights under this Agreement
and shall be deemed to have been conditioned upon the application
of such payment or proceeds having become final and indefeasible.
The provisions of this Section shall survive termination of the
Commitments, the expiration of the Letters of Credit and the
indefeasible full payment and satisfaction of all of the Loan
Obligations.
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6.8. DUE DATES NOT ON BUSINESS DAYS. Subject to Section
4.7.2, if any payment required hereunder becomes due on a date that
is not a Business Day, then such due date shall be deemed
automatically extended to the next Business Day (including any
interest accruing during any such extension period).
7. PROCEDURE FOR OBTAINING ADVANCES AND LETTERS OF CREDIT.
7.1. INITIAL ADVANCES. Provided that all conditions
thereto hereunder are satisfied and subject to the limitations
contained herein, Lenders will fund and Administrative Agent will
make the initial Revolving Loan Advance on the Effective Date as
directed by Borrower in a written direction delivered to
Administrative Agent. The manner of disbursement shall be subject
to Administrative Agent's approval.
7.2. SUBSEQUENT REVOLVING LOAN ADVANCES.
7.2.1. BORROWER REQUESTS. Borrower may request
subsequent Revolving Loan Advances at any time, but not
more often than once each Business Day, by submitting a
request therefor to Administrative Agent as provided in
Section 7.10. Administrative Agent may treat every request
for a Revolving Loan Advance that is a Base Rate Advance
as a request for a Swingline Advance to the extent the
requested amount does not exceed the Maximum Swingline
Amount and as a request for a Revolving Loan Advance in
the amount of the excess. Administrative Agent may treat
every request for a Revolving Loan Advance as a request
for a Base Rate Advance if Borrower does not specify that
such Revolving Loan Advance is to be a LIBOR Advance in
Borrower's request for a Revolving Loan Advance. Every
request for a Revolving Loan Advance shall be irrevocable.
A request for a Revolving Loan Advance received by
Administrative Agent on a day that is not a Business Day
or that is received by Administrative Agent after 12:00
noon (Local Time) (or 2:00 p.m. (Local Time) in the case
of a request for a Revolving Loan Advance which will,
subject to the terms of this Agreement, be treated by
Administrative Agent as a request for a Swingline Advance)
on a Business Day shall be treated as having been received
by Administrative Agent prior to 12:00 noon (Local Time)
(or 2:00 p.m. (Local Time) in the case of a request for a
Revolving Loan Advance which will, subject to the terms of
this Agreement, be treated by Administrative Agent as a
request for a Swingline Advance) on the next Business Day.
7.2.2. REVOLVING LOAN ADVANCES TO REPAY THE
SWINGLINE LOAN.
7.2.2.1. Administrative Agent may in its
sole and absolute discretion on any Business Day
give notice to Lenders of the amount of the
Swingline Loan after application of all payments
to be applied thereto as provided elsewhere
herein. Such notice shall be given no later than
1:00 p.m. (Local Time) and may include a demand
that the Swingline Loan be fully paid. If
Administrative Agent demands that the Swingline
Loan be fully paid, then prior to 3:00 p.m.
(Local Time) on such date, Lenders shall remit
funds to Administrative Agent sufficient to
reduce the Swingline Loan to zero. The aggregate
of such remittances shall be treated as a
Revolving Loan Advance and the Aggregate
Revolving Loan increased accordingly. Each such
remittance by a Lender shall be made in
accordance with its pro-rata share of the
Aggregate Revolving Loan Commitment and shall be
made notwithstanding that (i) the amount of the
aggregate of such remittances by Lenders may not
be in the minimum amount for Revolving Loan
Advances otherwise required hereunder,
14
(ii) any conditions to Advances in Section 8 may
not be then satisfied, (iii) there is an Existing
Default, (iv) the aggregate amount of such
remittances by Lenders would result in the
Aggregate Revolving Loan exceeding the Maximum
Available Amount, or (v) such remittances by
Lenders may be made after the Revolving Loan
Maturity Date; provided, however, that in no
event shall any Lender be required to make any
such remittance that would result in the sum of
(a) the Revolving Loan of such Lender, plus (b)
such Lender's pro-rata share of the Letter of
Credit Exposure exceeding such Lender's Revolving
Loan Commitment.
7.2.2.2. If for any reason, including
the commencement of a proceeding in bankruptcy
with respect to Borrower, remittances by Lenders
as provided above cannot be made on the date
otherwise required above, then each Lender shall
be deemed automatically to have purchased from
Administrative Agent as of such date a pro-rata
undivided interest and participation in the
Swingline Loan so as to cause such Lender to
share in the Swingline Loan in accordance with
its pro-rata share of the Aggregate Revolving
Loan Commitment. Each Lender shall remit its
pro-rata share of the Swingline Loan to
Administrative Agent promptly on demand. All
interest payable with respect to such Lender's
pro-rata share of the Swingline Loan shall be for
the account of Administrative Agent to the date
such remittance is made, and shall be for the
account of and remitted by Administrative Agent
to such Lender as a participant from such date.
Further, until such remittance is made, such
Lender shall pay to Administrative Agent, on
demand, interest on such Lender's pro-rata share
of the Swingline Loan at the Federal Funds Rate.
7.2.3. ADMINISTRATIVE AGENT'S RIGHT TO MAKE OTHER
REVOLVING LOAN ADVANCES. At any time if there is an
Existing Default, or if there is no Existing Default if
agreed to by Borrower and Administrative Agent,
Administrative Agent shall have the right to make
Revolving Loan Advances at any time and from time to time
to cause timely payment of any of the Loan Obligations,
and Administrative Agent shall have the right to make
withdrawals from or debits against any accounts of any
Covered Person at Administrative Agent at any time and
from time to time to cause timely payment of any of the
Loan Obligations. Administrative Agent may select the
Advance Date for any such Revolving Loan Advance, but such
Advance Date may only be a Business Day. Administrative
Agent will give notice to Borrower after any such
Revolving Loan Advance is made. Any such Revolving Loan
Advance will be a Base Rate Advance.
7.3. LETTERS OF CREDIT. Borrower may request the issuance
of a Letter of Credit by submitting an issuance request to Letter
of Credit Issuer and executing the reimbursement agreement required
under Section 9.1 no less than five (5) Business Days prior to the
requested issue date for such Letter of Credit, although Letter of
Credit Issuer agrees to use its commercially reasonable efforts to
issue a requested Letter of Credit within three (3) Business Days
of a request from Borrower.
7.4. FUNDINGS.
7.4.1. ADVANCES. Not later than 1:00 p.m. (Local
Time) on each Advance Date for an Advance other than a
Swingline Advance, Administrative Agent shall promptly
notify each Lender of the amount of the Advance to be made
on that Advance Date. Each Lender shall make immediately
available to Administrative Agent by
15
3:00 p.m. (Local Time) on the Advance Date funds consisting
solely of Dollars in the amount of its pro-rata share of such
Advance in accordance with such remittance instructions as
may be given by Administrative Agent to Lenders from time
to time.
7.4.2. DRAWS ON LETTERS OF CREDIT. In the event
that a draw is made on a Letter of Credit and Borrower
does not reimburse the amount of such draw in full to
Letter of Credit Issuer immediately on demand, Letter of
Credit Issuer shall promptly notify Administrative Agent
of such failure. Upon Administrative Agent's receipt of
such notice from Letter of Credit Issuer, Administrative
Agent may notify each Lender thereof and shall have the
right to cause a Revolving Loan Advance to be made,
regardless whether such Revolving Loan Advance would
result in the Aggregate Revolving Loan exceeding the
Maximum Available Amount, by notifying each Lender of the
draw, the amount of the Revolving Loan Advance required to
fund reimbursement of such draw, and the amount of such
Lender's ratable share of such Revolving Loan Advance. The
Advance Date and time for such Revolving Loan Advance
shall not be later than 3:00 p.m. (Local Time) on the
first Business Day following Administrative Agent's
delivery of such notice to Lenders. By no later than such
Advance Date and time, each Lender shall make immediately
available to Administrative Agent funds consisting solely
of Dollars in the amount of its pro-rata share of such
Revolving Loan Advance in accordance with such remittance
instructions as may be given by Administrative Agent to
each Lender from time to time. Each Revolving Loan Advance
made by Administrative Agent pursuant to this Section
7.4.2 shall be deemed to be a Base Rate Advance.
7.4.3. ALL FUNDINGS RATABLE. All fundings of
Advances (other than Swingline Advances) shall be made by
Lenders as provided herein in accordance with their
pro-rata shares of the respective Aggregate Commitments,
as applicable. Except as otherwise expressly provided
herein, a Lender shall not be obligated to fund Revolving
Loan Advances that would result in the sum of (a) such
Lender's Revolving Loan, plus (b) such Lender's pro-rata
share of the Letter of Credit Exposure exceeding its
Revolving Loan Commitment, or make available any more than
its pro-rata share of any Advance.
7.5. ADMINISTRATIVE AGENT'S AVAILABILITY ASSUMPTION.
7.5.1. Unless Administrative Agent has been given
written notice by a Lender prior to an Advance Date that
such Lender does not intend to make immediately available
to Administrative Agent such Lender's pro-rata share of
the Advance which Administrative Agent will be obligated
to make on the Advance Date, Administrative Agent may
assume that such Lender has made the required amount
available to Administrative Agent on the Advance Date and
Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding
amount. If such corresponding amount is not in fact made
immediately available to Administrative Agent by such
Lender on the Advance Date, Administrative Agent shall be
entitled to recover such corresponding amount on demand
from such Lender. If such Lender does not pay such
corresponding amount (or an amount demanded by
Administrative Agent pursuant to Section 7.2.2.1)
immediately upon Administrative Agent's demand therefor,
then Administrative Agent shall promptly notify Borrower
and the other Lenders and Borrower shall immediately pay
such corresponding amount to Administrative Agent.
Administrative Agent shall also be entitled to recover,
either from such defaulting Lender (a Defaulting Lender)
or Borrower, interest on such corresponding amount for
each day from the date such corresponding amount was made
available by Administrative Agent to
16
Borrower to the date such corresponding amount is
recovered by Administrative Agent, at a rate per annum
equal to (i) if paid by such Lender, the cost to
Administrative Agent of funding such amount at the Federal
Funds Rate, or (ii) if paid by Borrower, the applicable
rate for the Advance in question determined from the
request therefor without liability for any amount which
would otherwise be due under Section 17.4 as a consequence
of repayment. Each Lender shall be obligated only to fund
its pro-rata share of an Advance subject to the terms and
conditions hereof, regardless of the failure of another
Lender to fund its pro-rata share thereof. In addition,
the failure of any Lender to pay its pro-rata share of any
such Advance shall cause such Lender to be a Defaulting
Lender and such Defaulting Lender shall, until such amount
is paid to Administrative Agent (with interest at the
Federal Funds Rate), (a) permit Administrative Agent the
unconditional and irrevocable right of setoff against any
amounts (including, without limitation, payments of
principal, interest, and fees, as well as indemnity
payments) received by Administrative Agent hereunder for
the benefit of any such Defaulting Lender, and (b) if such
failure to pay shall continue for a period of two Business
Days, result in any such Defaulting Lender forfeiting any
right to vote on any matter that the Required Lenders or
all Lenders are permitted to vote for hereunder (and the
calculation of Required Lenders shall exclude such
Defaulting Lender's interest in the Lenders' Exposure);
provided, however, once such a failure is cured, then such
Lender shall, subsequent thereto, have all rights
hereunder; provided, further, however, if any Lender shall
fail to make such a payment within the two Business Day
period specified in clause (b) above (other than by reason
of events beyond the reasonable control of such Lender)
four (4) or more times during the term hereof, such Lender
shall permanently forfeit its right to vote hereunder (and
the calculation of Required Lenders shall exclude such
Defaulting Lender's interest in the Lenders' Exposure). If
there is a Defaulting Lender, the Administrative Agent
shall with reasonable promptness request that the other
Lenders fund such Defaulting Lender's portion of the
requested Advances, although the other Lenders shall have
no obligation to do so and may refuse to do so in their
sole discretion.
7.5.2. Unless Administrative Agent has been given
written notice by Borrower prior to the date any payment
to be made by it is due, that it does not intend to remit
such payment, Administrative Agent may assume that the
Borrower has timely remitted such payment and
Administrative Agent may, in reliance upon such
assumption, make available a corresponding amount or
pro-rata portion thereof to the Persons entitled thereto.
If such payment was not in fact remitted to the
Administrative Agent in immediately available funds, then,
each Lender shall immediately on demand repay to
Administrative Agent the corresponding amount or pro-rata
portion thereof made available to such Lender, together
with interest thereon in respect of each day from the date
such amount was made available by Administrative Agent to
such Lender to the date such amount is repaid to
Administrative Agent, at the Federal Funds Rate.
7.6. DISBURSEMENT. Provided that all conditions precedent
herein to a requested Advance or, if applicable, a Swingline
Advance, have been satisfied, Administrative Agent will make the
amount of such requested Advance available to Borrower on the
applicable Advance Date in immediately available funds in Dollars
at Administrative Agent's Applicable Lending Office.
7.7. RESTRICTIONS ON ADVANCES. No Advance will be made
unless it is a whole multiple of $500,000 and not less than
$1,000,000, in the case of a LIBOR Advance, or a whole multiple of
$100,000 and not less than $500,000, in the case of a Base Rate
Advance. No more
17
than one Revolving Loan Advance and no more than one Swingline
Advance will be made on any one day pursuant to a request for a
Revolving Loan Advance. Advances will only be made for the purposes
permitted in Section 12.1. No LIBOR Advance will be made so long as
there is any Existing Default.
7.8. RESTRICTION ON NUMBER OF LIBOR LOANS. No more than
seven (7) LIBOR Loans with different Interest Periods may be
outstanding at any one time.
7.9. EACH ADVANCE REQUEST AND LETTER OF CREDIT REQUEST A
CERTIFICATION. Each submittal of a request for an Advance and each
submittal of a request for the issuance of a Letter of Credit by a
Borrowing Officer shall constitute a certification by Borrower that
(i) there is no Existing Default, (ii) all conditions precedent
hereunder to the making of the requested Advance or issuance of the
requested Letter of Credit have been satisfied, and (iii) the
Representations and Warranties are then true, with such exceptions
as have been disclosed to Lenders in writing by Borrower or a
Guarantor from time to time and are satisfactory to Lenders, and
will be true on the Advance Date or issuance date, as applicable,
as if then made with such exceptions.
7.10. REQUIREMENTS FOR EVERY ADVANCE REQUEST. Only a
request (which shall be in writing, or oral and confirmed in
writing within one Business Day, in the form attached hereto as
Exhibit 7.10 and mailed, personally delivered or telecopied as
provided in Section 19.1) from a Borrowing Officer to
Administrative Agent that specifies the amount of the Advance to be
made, the Advance Date for the requested Advance, the portion of
the Advance which is requested to be a LIBOR Advance and the
portion of the Advance which is requested to be a Base Rate
Advance, and the Interest Period to be applicable to the LIBOR Loan
that will result from a requested LIBOR Advance, shall be treated
as a request for an Advance. No Advance Date for any requested
Advance may be other than a Business Day. A request for a LIBOR
Advance must be given prior to 12:00 noon, Local Time, at least
three (3) Business Days prior to the Advance Date for such LIBOR
Advance. A request for a Base Rate Advance must be given prior to
12:00 noon, Local Time, on the Advance Date for such Base Rate
Advance.
7.11. CONVERSION. Each LIBOR Loan shall automatically
renew for the Interest Period specified in the initial notice
received from the Borrower by the Administrative Agent pursuant to
this Agreement at the then current LIBOR Rate unless the Borrower,
pursuant to a subsequent notice received by the Administrative
Agent, shall elect a different Interest Period or the conversion of
all or a portion of such LIBOR Loan to a Base Rate Loan.
7.12. REQUIREMENTS FOR EVERY LETTER OF CREDIT REQUEST.
Only a written request (which may be mailed, personally delivered
or telecopied as provided in Section 19.1) from a Borrowing Officer
to Administrative Agent or an electronic initiation over an online
service provided by Letter of Credit Issuer that specifies the
amount, requested expiry date (which shall be a Business Day and in
no event later than twenty-five (25) days before the Revolving Loan
Maturity Date) and beneficiary of the requested Letter of Credit
and other information necessary for its issuance shall be treated
as a request for issuance of a Letter of Credit.
7.13. EXONERATION OF ADMINISTRATIVE AGENT AND LENDERS.
Neither Administrative Agent nor any Lender shall incur any
liability to Borrower for treating a request that meets the express
requirements of Section 7.10 or Section 7.12 as a request for an
Advance or issuance of a Letter of Credit, as applicable, if
Administrative Agent believes in good faith that the Person making
the request is a Borrowing Officer or if, in the case of a request
for a Letter of Credit, it is electronically initiated. Neither
Administrative Agent nor any Lender shall incur any liability to
Borrower for failing to treat any such request as a request for an
Advance or issuance of a Letter
18
of Credit, as applicable, if Administrative Agent believes in good
faith that the Person making the request is not a Borrowing
Officer.
7.14. PAYMENTS TO OTHER CREDITORS. If Administrative Agent
becomes obligated to reimburse or pay to any creditor of Borrower
any amount in order to (i) obtain a release of such creditor's
Security Interest in any of the Collateral, or (ii) otherwise
satisfy an Obligation of Borrower to such creditor to the extent
intended to be but not indefeasibly satisfied by the initial
Advances, then Administrative Agent shall have the right to make
Revolving Loan Advances for that purpose and, if there is no
Existing Default, Administrative Agent shall use its reasonable
efforts to provide prior notice to Borrower before making any such
payment (but Administrative Agent shall have no liability to
Borrower or any other Obligor for failure to give such notice to
Borrower unless such failure was willful). Administrative Agent may
select the Advance Date for any such Advance, but such Advance Date
may only be a Business Day. Administrative Agent will give notice
to Borrower after any such Revolving Loan Advance is made. Any such
Revolving Loan Advance initially will be a Base Rate Advance.
8. CONDITIONS OF LENDING.
8.1. CONDITIONS TO INITIAL ADVANCE. Lenders will have no
obligation to fund the initial Revolving Loan Advance or any
subsequent Revolving Loan Advance unless:
8.1.1. LISTED DOCUMENTS AND OTHER ITEMS.
Administrative Agent shall have received on or before the
Effective Date all of the documents and other items listed
or described in Exhibit 8.1.1 hereto as being conditions
to the initial Revolving Loan Advances as being delivered
or executed on or before the Execution Date, with each
being satisfactory to Administrative Agent and the Lenders
and (as applicable) duly executed and (also as applicable)
sealed, attested, acknowledged, certified, or
authenticated.
8.1.2. FINANCIAL CONDITION; PROJECTIONS. Lenders
shall (A) have received (i) audited consolidated financial
statements for the Borrower for the fiscal years ended in
January 2002, January 2003, January 2004, and January
2005, and (ii) unaudited interim consolidated financial
statements for the Borrower for each quarterly period
ended after the latest fiscal year referred to in clause
(i) above, and such financial statements shall not, in the
judgment of the Lenders, disclose any material adverse
change in the consolidated financial position of the
Borrower from what was reflected in the financial
statements previously furnished to the Lenders, and (B)
have determined to their satisfaction that the proforma
balance sheet previously provided to Administrative Agent
and proforma financial statements for the fiscal years
2005, 2006 and 2007 as furnished to Administrative Agent
and Lenders, and other information furnished to
Administrative Agent and Lenders by Borrower (i) for the
periods ended on or before the Effective Date, fairly and
accurately reflect the business and financial condition of
Borrower, its cash flows and the results of its operations
for such periods, and (ii) for the periods that will end
after the Effective Date, fairly and accurately forecast
the business and financial condition of Borrower, its cash
flows, and the results of its operations for such periods.
8.1.3. NO DEFAULT. There shall be no Existing
Default and no Default or Event of Default will occur as a
result of such Advance being requested or made or the
application of the proceeds thereof.
8.1.4. REPRESENTATIONS AND WARRANTIES. The
Representations and Warranties shall be true and correct.
19
8.1.5. NO MATERIAL ADVERSE CHANGE. Since January
31, 2005, there shall not have been any change which has
or is reasonably likely to have a Material Adverse Effect
on any Covered Person.
8.1.6. PENDING MATERIAL PROCEEDINGS. There shall
be no pending Material Proceedings.
8.1.7. ADMINISTRATIVE AGENT FEE LETTER. The fee
letter between Borrower and Administrative Agent shall
have been fully executed and delivered to Administrative
Agent.
8.1.8. PAYMENT OF FEES AND EXPENSES. Borrower
shall have paid and reimbursed to Lenders all fees, costs
and expenses that are payable or reimbursable to Lenders
hereunder on or before the Effective Date.
8.1.9. INSURANCE. Administrative Agent shall be
satisfied with the insurance maintained by Borrower
(including the insurance carrier, the types of insurance
maintained, and the levels of insurance maintained).
8.1.10. REAL ESTATE COLLATERAL. With respect to
each parcel of the Real Estate Collateral, Administrative
Agent shall have received (i) a title insurance commitment
issued by a title insurance company satisfactory to
Administrative Agent, and with all exceptions documents,
(ii) a commitment by a title insurance company
satisfactory to Administrative Agent to issue a title
insurance policy, with such endorsements as may be
required by the Administrative Agent showing no Security
Interests or Encumbrances other than Encumbrances
acceptable to the Administrative Agent and on such other
terms and conditions as reasonably required by
Administrative Agent, (iii) a current ALTA survey in form
and substance satisfactory to Administrative Agent, (iv) a
flood letter showing such parcel does not lie in a flood
plain or if it does evidence of flood insurance
satisfactory to Administrative Agent, (v) environmental
reports satisfactory to Administrative Agent (which such
reports may also include Phase II reports if required by
Administrative Agent), (vi) a written appraisal performed
by an MAI certified appraiser selected by Administrative
Agent, (vii) a duly executed and recordable Mortgage, and
(viii) such other documents, opinions, certificates,
agreements, title and lien searches, and other matters as
may be requested by Administrative Agent or the Required
Lenders; provided, however, only the number of Delayed
Sites necessary to meet the Asset Coverage covenant set
forth in Section 14.5 must meet the foregoing requirements
on or before January 27, 2006. At the closing of the
Delayed Sites or on January 27, 2005, whichever occurs
first, Borrower shall provide a Compliance Certificate for
the Asset Coverage covenant set forth in Section 14.5
showing compliance with such covenant.
8.1.11. CLOSING CERTIFICATE. A closing
certificate (on the Effective Date) certifying as to the
completion of the conditions to closing, including without
limitation, the matters in Sections 8.1.3 and 8.1.4.
8.1.12. OTHER ITEMS. Administrative Agent shall
have received such other consents, approvals, opinions,
certificates, documents or information as it reasonably
deems necessary. The Lenders shall be satisfied with the
capitalization and corporate structure of Borrower and its
Subsidiaries.
20
8.2. CONDITIONS TO SUBSEQUENT ADVANCES. Lenders will have
no obligation to fund any Advance after the initial Revolving Loan
Advance unless:
8.2.1. GENERAL CONDITIONS. All of the conditions
to the initial Advances in Section 8.1 (except the
condition in Section 8.1.4 and Section 8.1.9) shall have
been and shall remain satisfied.
8.2.2. REPRESENTATIONS AND WARRANTIES. The
Representations and Warranties are then true, with such
exceptions as have been disclosed to Lenders in writing by
Borrower or any Guarantor from time to time and are
satisfactory to Lenders, and will be true as of the time
of such Advance, as if then made with such exceptions.
8.2.3. NO PROHIBITIONS. No order, judgment or
decree of any Governmental Authority shall exist which
purports by its terms to enjoin or restrain Administrative
Agent or any Lender from making the requested Advance, and
no Law or request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over Administrative Agent or any Lender shall
exist which prohibits, or requests that Administrative
Agent or any Lender refrain from, the making of loans
generally or Administrative Agent or any Lender in
particular, or imposes upon Administrative Agent or any
Lender with respect to such Advance any restriction or
reserve or capital requirement (for which Administrative
Agent or any Lender is not otherwise compensable by
Borrower hereunder).
8.2.4. NO DEFAULT. There shall be no Existing
Default and no Default or Event of Default will occur as a
result of such Advance being requested or made or the
application of the proceeds thereof.
8.2.5. PERFECTION OF SECURITY INTERESTS. Every
Security Interest required to be granted by Borrower to
Administrative Agent under the Loan Documents shall have
been perfected and shall be, except as otherwise
satisfactory to Lenders, a first priority Security
Interest.
9. CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. As conditions
precedent to the issuance of any Letter of Credit:
9.1. LETTER OF CREDIT APPLICATION/REIMBURSEMENT AGREEMENT.
Borrower shall have executed and delivered to Letter of Credit
Issuer one or more Master Letter of Credit Agreements, a letter of
credit application(s) and reimbursement agreement(s) each in form
and substance satisfactory to Letter of Credit Issuer under which
Borrower further evidences its obligation to reimburse to Letter of
Credit Issuer on demand the amount of each draw on such Letter of
Credit as provided in Section 6.4, together with interest from the
date of the draw at the rate provided in Section 4.1 and (without
duplication) all reasonable expenses incurred by Letter of Credit
Issuer in connection with such Letter of Credit. In the event of a
direct and irreconcilable conflict between the terms of this
Agreement and the terms of the documents executed by Borrower in
connection with the issuance of any Letter of Credit including,
without limitation, any letter of credit application, master letter
of credit agreement or reimbursement agreement, the terms of this
Agreement will control.
9.2. NO PROHIBITIONS. No order, judgment or decree of any
Governmental Authority shall exist which purports by its terms to
enjoin or restrain Letter of Credit Issuer or any other Lender from
issuing such Letter of Credit, and no Law or request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over Letter of Credit
21
Issuer or any other Lender shall exist which prohibits, or requests
that Letter of Credit Issuer or any other Lender refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular, or imposes upon Letter of Credit Issuer or any other
Lender with respect to such Letter of Credit any restriction or
reserve or capital requirement (for which Letter of Credit Issuer
or any other Lender is not otherwise compensable by Borrower
hereunder).
9.3. REPRESENTATIONS AND WARRANTIES. The Representations
and Warranties are then true, with such exceptions as have been
disclosed to Lenders in writing by Borrower or such Guarantor from
time to time and are satisfactory to Lenders, and will be true as
of the time of the issuance of such Letter of Credit, as if then
made with no exceptions.
9.4. NO DEFAULT. There shall be no Existing Default and
no Default or Event of Default is reasonably likely to occur as a
result of such Letter of Credit being issued or a draw thereon
being made or paid.
9.5. OTHER CONDITIONS. All of the conditions to the
initial Advances in Section 8.1 (except the condition in Section
8.1.4 and Section 8.1.9) shall have been and shall remain
satisfied.
9.6. PERFECTION OF SECURITY INTERESTS. Every Security
Interest required to be granted by Borrower to Administrative Agent
under the Loan Documents shall have been perfected and shall be,
except as otherwise satisfactory to Lenders, a first priority
Security Interest.
10. REPRESENTATIONS AND WARRANTIES. Except as otherwise described
in the Disclosure Schedule attached hereto as Exhibit 10, Borrower
represents and warrants to Administrative Agent, Lenders, and Letter of
Credit Issuer, on its behalf and on behalf of each Covered Person, as
follows:
10.1. ORGANIZATION AND EXISTENCE. Each Covered Person is
duly organized and existing in good standing under the Laws of the
state of its organization, is duly qualified to do business and is
in good standing in every state where the nature or extent of its
business or properties require it to be qualified to do business,
except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect on any Covered Person.
Each Covered Person has the power and authority to own its
properties and carry on its business as now being conducted. With
respect to each Covered Person, the following information is fully,
accurately and completely set forth on section 10.1 of the
Disclosure Schedule: (i) the full and exact legal name of each
Covered Person, (ii) state of organization/formation of such
Covered Person, (iii) the tax identification number (FEIN or social
security number, as appropriate) of each Covered Person, and (iv)
the charter number (if available) of each Covered Person.
10.2. AUTHORIZATION. Each Covered Person is duly
authorized to execute and perform every Loan Document to which such
Covered Person is a party, and Borrower is duly authorized to
borrow hereunder, and this Agreement and the other Loan Documents
have been duly authorized by all requisite corporate or membership
action (in the case of limited liability companies) of each Covered
Person. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any
other Person, is required in connection with Borrower's execution,
delivery or performance of this Agreement and the other Loan
Documents, except for those already duly obtained.
10.3. DUE EXECUTION. Every Loan Document to which a
Covered Person is a party has been executed on behalf of such
Covered Person by a Person duly authorized to do so.
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10.4. ENFORCEABILITY OF OBLIGATIONS. Each of the Loan
Documents to which a Covered Person is a party constitutes the
legal, valid and binding obligation of such Covered Person,
enforceable against such Covered Person in accordance with its
terms, except to the extent that the enforceability thereof against
such Covered Person may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Laws affecting creditors'
rights generally or by equitable principles of general application.
10.5. BURDENSOME OBLIGATIONS. No Covered Person is a party
to or bound by any Contract, including, without limitation, any
Contract that would prohibit the granting of a Security Interest on
its assets or require that if a Security Interest is granted that
it be pari passu with any other Person's Security Interest in such
assets, or is subject to any provision in the Charter Documents of
such Covered Person which would, if performed by such Covered
Person, result in a Default or Event of Default either immediately
or upon the elapsing of time.
10.6. LEGAL RESTRAINTS. The execution and performance of
any Loan Document by a Covered Person will not violate or
constitute a default under the Charter Documents of such Covered
Person, any Material Agreement of such Covered Person, or any
Material Law, and will not, except as expressly contemplated or
permitted in this Agreement, result in any Security Interest being
imposed on any of such Covered Person's property.
10.7. LABOR CONTRACTS AND DISPUTES. There is no pending
or, to Borrower's knowledge, threatened, strike, work stoppage,
unfair labor practice claim or other labor dispute against or
affecting any Covered Person or its employees which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.8. NO MATERIAL PROCEEDINGS. There are no Material
Proceedings pending or, to the best knowledge of Borrower,
threatened, against any Covered Person.
10.9. MATERIAL LICENSES. All Material Licenses have been
obtained or exist for each Covered Person.
10.10. COMPLIANCE WITH MATERIAL LAWS. The operations and
employee compensation practices of every Covered Person comply in
all material respects with, and are not subject to any judicial or
administrative complaint, investigation, order or proceeding
alleging the violation of, any and all applicable Environmental
Laws which are Material Laws and Employment Laws which are Material
Laws.
10.10.1. INVESTIGATIONS REGARDING HAZARDOUS
MATERIALS. Except as disclosed in the environmental
reports listed on section 10.10 of the Disclosure
Schedule, none of the operations of any Covered Person
are, or in the past six years have been, the subject of
investigation by any Governmental Authority regarding the
improper transportation, storage, disposal, generation or
release into the environment of any Hazardous Material,
the results of which have or are reasonably likely to have
a Material Adverse Effect on such Covered Person.
10.10.2. NOTICES AND REPORTS REGARDING HAZARDOUS
MATERIALS. No notice or report under any Environmental Law
indicating a past or present spill or release into the
environment of any Hazardous Material, the result of which
has been or is reasonably likely to have a Material
Adverse Effect on such Covered Person, has been filed
within the past five (5) years, or is currently required
to be filed, by any Covered Person.
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10.10.3. HAZARDOUS MATERIALS ON REAL PROPERTY.
Except as disclosed in the environmental reports listed on
section 10.10 of the Disclosure Schedule, no Covered
Person has at any time transported, stored, disposed of,
generated or released any Hazardous Material on the
surface, below the surface, or within the boundaries of
any real property owned or operated by such Covered Person
or any improvements thereon which could reasonably be
likely to have a Material Adverse Effect. Except as
disclosed in the environmental reports listed on section
10.10 of the Disclosure Schedule, Borrower has no
knowledge of any Hazardous Material on the surface, below
the surface, or within the boundaries of any real property
owned or operated by any Covered Person or any
improvements thereon which could reasonably be likely to
have a Material Adverse Effect. No property of any Covered
Person is subject to a Security Interest in favor of any
Governmental Authority for any liability under any
Environmental Law or damages arising from or costs
incurred by such Governmental Authority in response to a
spill or release of Hazardous Material into the
environment.
10.11. PRIOR TRANSACTIONS. From and after the Effective
Date, except for Permitted Acquisitions, no Covered Person has been
a party to any merger or consolidation, or acquired all or
substantially all of the assets of any Person, or acquired any of
its property outside of the ordinary course of business.
10.12. SOLVENCY. Borrower is Solvent prior to and after
giving effect to, any fundings of any Advance on the Effective
Date. Borrower is Solvent at the time of each request for an
Advance and immediately after the funding of each such Advance.
10.13. PROJECTIONS. The projections of Borrower's year end
financial condition, results of operations, and cash flow for the
periods through the end of the 2007 fiscal year, a copy of which
have been delivered to Administrative Agent and each Lender,
represent Borrower's good faith best estimate of Borrower's future
financial performance for the periods set forth therein. Such
projections have been prepared consistent with GAAP on the basis of
the assumptions set forth therein, which Borrower believes are fair
and reasonable in light of current and reasonably foreseeable
business conditions.
10.14. FINANCIAL STATEMENTS. The Financial Statements are
complete and correct in all material respects, have been prepared
in accordance with GAAP (except the non year-end Financial
Statements do not contain footnotes and remain subject to normal
year end adjustments), and fairly reflect the financial condition,
results of operations and cash flows of the Persons covered thereby
as of the dates and for the periods stated therein, subject in the
case of interim Financial Statements to normal year-end adjustments
made in accordance with GAAP.
10.15. NO CHANGE IN CONDITION. Since the date of the
Financial Statements delivered to Administrative Agent and Lenders
as required herein, there has been no change which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.16. NO DEFAULTS. No Covered Person has breached or
violated or has defaulted under any Material Agreement, or has
defaulted with respect to any Material Obligation of such Covered
Person. No Default has occurred which is continuing and no Event of
Default has occurred. After giving effect to any asset disposition
or sale leaseback permitted by this Agreement, no Default or Event
of Default shall occur as a result of any such asset disposition or
sale leaseback, and no Default or Event of Default shall be
reasonably likely to occur as a result of any such asset
disposition or sale leaseback.
24
10.17. INVESTMENTS. No Covered Person has any Investments
in other Persons except existing Permitted Investments.
10.18. INDEBTEDNESS. No Covered Person has any
Indebtedness except existing Permitted Indebtedness.
10.19. INDIRECT OBLIGATIONS. No Covered Person has any
Indirect Obligations except existing Permitted Indirect
Obligations.
10.20. TAX LIABILITIES; GOVERNMENTAL CHARGES. Each Covered
Person has filed or caused to be filed all tax reports and returns
required to be filed by it with any Governmental Authority, except
where extensions have been properly obtained. Each Covered Person
has paid or made adequate provision for payment of all Taxes of
such Covered Person, except Taxes which are being diligently
contested in good faith by appropriate proceedings and as to which
such Covered Person has established adequate reserves in conformity
with GAAP. No Security Interest for any such Taxes has been filed
and no claims are being asserted with respect to any such Taxes
which, if adversely determined, has or is reasonably likely to have
a Material Adverse Effect on such Covered Person. There are no
material unresolved issues concerning any liability of a Covered
Person for any Taxes which, if adversely determined, will have or
is reasonably likely to have a Material Adverse Effect on such
Covered Person.
10.21. PENSION BENEFIT PLANS. All Pension Benefit Plans
maintained by each Covered Person or an ERISA Affiliate of such
Covered Person qualify under Section 401 of the Code and are in
compliance with the provisions of ERISA to the extent ERISA is
applicable and all other Material Laws. Except with respect to
events or occurrences which do not have and are not reasonably
likely to have a Material Adverse Effect on any Covered Person, and
to the extent ERISA is applicable to any such Pension Benefit
Plans:
10.21.1. PROHIBITED TRANSACTIONS. None of such
Pension Benefit Plans has participated in, engaged in or
been a party to any non-exempt PROHIBITED TRANSACTION as
defined in ERISA or the Code, and no officer, director or
employee of such Covered Person or of an ERISA Affiliate
of such Covered Person has committed a breach of any of
the responsibilities or obligations imposed upon
fiduciaries by Title I of ERISA.
10.21.2. CLAIMS. There are no claims, pending or
threatened, involving any such Pension Benefit Plan by a
current or former employee (or beneficiary thereof) of
such Covered Person or ERISA Affiliate of such Covered
Person, nor is there any reasonable basis to anticipate
any claims involving any such Pension Benefit Plan which
would likely be successfully maintained against such
Covered Person or such ERISA Affiliate.
10.21.3. REPORTING AND DISCLOSURE REQUIREMENTS.
There are no violations of any reporting or disclosure
requirements with respect to any such Pension Benefit Plan
and none of such Pension Benefit Plans has violated any
applicable Law, including ERISA and the Code.
10.21.4. ACCUMULATED FUNDING DEFICIENCY. No such
Pension Benefit Plan has (i) incurred an accumulated
funding deficiency (within the meaning of Section 412(a)
of the Code), whether or not waived; (ii) been a Pension
Benefit Plan with respect to which a Reportable Event (to
the extent that the reporting of such events to the PBGC
within thirty days of the occurrence has not been waived)
has occurred and is continuing; or (iii) been a Pension
Benefit Plan with respect to which there exist conditions
or events
25
which have occurred that present a significant risk of
termination of such Pension Benefit Plan by the PBGC.
10.21.5. MULTI-EMPLOYER PLAN. No Covered Person
or ERISA Affiliate of such Covered Person has received
notice that any such Multi-employer Plan is in
reorganization or has been terminated within the meaning
of Title IV of ERISA, and no such Multi-employer Plan is
reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
10.22. WELFARE BENEFIT PLANS. No Covered Person or ERISA
Affiliate of any Covered Person maintains a Welfare Benefit Plan
that has a liability which, if enforced or collected, has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person. Each Covered Person and each ERISA Affiliate of any Covered
Person has complied in all material respects with the applicable
requirements of Section 4980B of the Code pertaining to
continuation coverage as mandated by COBRA.
10.23. RETIREE BENEFITS. No Covered Person or ERISA
Affiliate of such Covered Person has an obligation to provide any
Person with any medical, life insurance, or similar benefit
following such Person's retirement or termination of employment (or
to such Person's beneficiary subsequent to such Person's death)
which has or is reasonably likely to have a Material Adverse Effect
on any Covered Person.
10.24. STATE OF PROPERTY. Each Covered Person has good and
marketable or merchantable title to all real, personal property and
intangible property purported to be owned by it or reflected in the
Initial Financial Statements, except for personal property sold in
the ordinary course of business after the date of the Initial
Financial Statements, and all such real and personal property is in
good working order and condition, except for normal wear and tear.
Borrower owns all Intellectual Property (including, without
limitation, patents, trademarks, and copyrights) reasonably
necessary for the operation of its business.
10.25. NEGATIVE PLEDGES. Except as set forth in this
Agreement, no Covered Person is a party to or bound by any Contract
which prohibits the creation or existence of any Security Interest
upon or assignment or conveyance of any of its assets.
10.26. AFFILIATES; SUBSIDIARIES. Borrower has no
Subsidiaries (direct or indirect), except for those Subsidiaries
listed in section 10.26 of the Disclosure Schedule (which lists all
Guarantors and all Dormant Subsidiaries), which may be updated by
Borrower from time to time without the consent of Required Lenders
so long as any such new Subsidiary executes a joinder agreement to
the Guaranty and such security agreements and documents as may be
required by the Administrative Agent in its reasonable discretion
and delivers such opinions and certificates as may be required by
the Administrative Agent in its reasonable discretion. None of the
Dormant Subsidiaries holds any assets of any kind or nature other
than the equity of any other Dormant Subsidiary, or has or will
incur any liabilities, obligations or Indebtedness of any kind
other than incidental corporate maintenance items and incidental
franchise tax liabilities related its corporate existence and other
than liabilities of the Dormant Subsidiaries under leases assigned
to Healthcare Uniform Company, Inc. and for which Healthcare
Uniform Company, Inc. is primarily liable. Other than the
Subsidiaries who are Guarantors and other than the Dormant
Subsidiaries, Borrower has no Subsidiaries (direct or indirect).
Except as provided above, none of the Dormant Subsidiaries has any
existing Indirect Obligation or Indebtedness.
10.27. MARGIN STOCK. No Covered Person is engaged or will
engage, principally or as one of its important activities, in the
business of extending credit for the purpose of PURCHASING
26
or CARRYING MARGIN STOCK (within the meaning of Regulation U), and no
part of the proceeds of any Advance will be used to purchase or
carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any
purpose which violates, or which would be inconsistent with, the
provisions of Regulation U. None of the transactions contemplated
by this Agreement, any of the other Loan Documents, or any of the
Acquisition Documents will violate Regulations T, U or X of the
FRB.
10.28. SECURITIES MATTERS. No proceeds of any Advance will
be used to acquire any security in any transaction which is subject
to Sections 13 and 14 of the Securities Exchange Act of 1934.
10.29. INVESTMENT COMPANY ACT, ETC. No Covered Person is
an INVESTMENT COMPANY registered or required to be registered under
the Investment Company Act of 1940, or a company CONTROLLED (within
the meaning of such Investment Company Act) by such an INVESTMENT
COMPANY or an AFFILIATED PERSON of, or PROMOTER or PRINCIPAL
UNDERWRITER for, an INVESTMENT COMPANY, as such terms are defined
in the Investment Company Act of 1940. No Covered Person is subject
to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or any other Law
limiting or regulating its ability to incur Indebtedness for money
borrowed.
10.30. NO MATERIAL MISSTATEMENTS OR OMISSIONS. Neither the
Loan Documents, any of the Financial Statements nor any statement,
list, certificate or other information furnished or to be furnished
by Borrower or any other Covered Person to Administrative Agent or
Lenders in connection with the Loan Documents or any of the
transactions contemplated thereby contains any untrue statement of
a material fact, or omits to state a material fact necessary to
make the statements therein not misleading. Borrower has disclosed
to Administrative Agent and Lenders everything regarding the
business, operations, property, financial condition, or business
prospects or itself and every Covered Person that has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person.
10.31. ENCUMBRANCES. None of the real property purported
to be owned by a Covered Person is subject to any Encumbrances
except existing Permitted Encumbrances.
10.32. FILINGS. All registration statements, reports,
proxy statements and other documents, if any, required to be filed
by any Covered Person with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, and the Securities Exchange
Act of 1934, have been filed, and such filings are complete and
accurate in all material respects and contain no untrue statements
of material fact or omit to state any material facts required to be
stated therein or necessary in order to make the statements therein
not misleading.
10.33. NO IMPROPER PAYMENT OR INFLUENCE. Neither Borrower
nor any other Covered Person has directly or indirectly paid or
delivered any fee, commission or other money or property, or
engaged in any lobbying, influencing or other behavior, however
characterized, to any agent, government official, regulatory body,
governmental agency or other Person, in the United States or any
other country, related to the business or operations of the
Borrower or any other Covered Person, that the Borrower and each
other Covered Person knows or has reason to believe to have been
illegal under any federal, state, or local law of the United States
or any other country having jurisdiction, or to have been for the
purpose of, and to have had the effect of, inducing or encouraging
the breach by the recipient thereof of any legal duties, whether as
an employee or otherwise to another Person.
27
10.34. FOREIGN ENEMIES AND REGULATIONS. The use of the
proceeds of the Loans and use of the Letters of Credit as
contemplated by this Agreement will not violate (A) any regulations
promulgated or administered by the Office of Foreign Assets
Control, United States Department of the Treasury, including
without limitation, the Foreign Assets Control Regulations, the
Transaction Control Regulations, the Cuban Assets Control
Regulations, the Foreign Funds Control Regulations, the Iranian
Assets Control Regulations, the Nicaraguan Trade Control
Regulations, the South African Transaction Regulations, the Iranian
Transactions Regulations, the Iraqi Sanctions Regulations, the
Soviet Gold Coin Regulations, the Panamanian Transaction
Regulations or the Libyan Sanctions Regulations of the United
States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as
amended, (B) the Trading with the Enemy Act, as amended, (C)
Executive Orders 8389, 9095, 9193, 12543 (Libya), 12544 (Libya),
12722 or 12724 (Iraq), 12775 or 12779 (Haiti), or 12959 (Iran), as
amended, of the President of the United States or (D) any rule,
regulation or executive order issued or promulgated pursuant to the
laws or regulations described in the foregoing clauses (A)-(C).
10.35. REAL PROPERTY. Section 10.35 of the Disclosure
Schedule contains a correct and complete list of (i) the street
addresses and a general description of all real property owned by
each Covered Person other than the Dormant Subsidiaries, and (ii) a
list of all leases and subleases of real property by each Covered
Person other than the Dormant Subsidiaries, with respect to such
Covered Person identified for each as the lessee, sublessee,
lessor, or sublessor, as is the case, together with the street
addresses and a general description of the real property involved
and the names of the other parties to such leases and subleases.
Each of such leases and subleases is valid and enforceable in
accordance with its terms and is in full force and effect, and no
default by any party to any such lease or sublease exists.
10.36. STATE OF COLLATERAL AND OTHER PROPERTY. Each
Covered Person has good and marketable or merchantable title to all
real and personal property purported to be owned by it or reflected
in the Financial Statements, except for personal property sold in
the ordinary course of business after the date of such Financial
Statements or personal property subject to Capital Leases. There
are no Security Interests on any of the property purported to be
owned by any Covered Person, including the Collateral, except
existing Permitted Security Interests. Each tangible item of
Personal Property Collateral purported to be owned by a Covered
Person is in good operating condition and repair and is suitable
for the use to which it is customarily put by its owner. Without
limiting the generality of the foregoing:
10.36.1. ACCOUNTS. With respect to each Account
scheduled, listed or referred to in reports submitted by
any Covered Person to Administrative Agent pursuant to the
Loan Documents, except as disclosed therein: (i) the
Account arose from a bona fide transaction completed in
accordance with the terms of any documents pertaining to
such transaction; (ii) the Account is not evidenced by a
judgment and there is no material dispute respecting it;
(iii) the amount of the Account as shown on the applicable
Covered Person's books and records and all invoices and
statements which may be delivered to Administrative Agent
with respect thereto are actually and absolutely owing to
the applicable Covered Person and are not in any way
contingent; (iv) there are no setoffs, counterclaims or
disputes existing or asserted with respect to the Account
and the applicable Covered Person has not made any
agreement with any Account Debtor for any deduction
therefrom except a discount or allowance allowed by the
applicable Covered Person in the ordinary course of its
business for prompt payment; (v) Borrower has no knowledge
of any facts, events or occurrences which in any way
impair the validity or enforcement of the Account or tend
to reduce the amount payable thereunder as shown on the
applicable Covered Person's books and records and all
invoices and statements
28
delivered to Administrative Agent with respect thereto;
(vi) the Account is assignable; (vii) the Account arose in
the ordinary course of the applicable Covered Person's
business; (viii) to Borrower's knowledge, the Account
Debtor with respect to the Account has the capacity to
contract; (ix) the services furnished and/or goods sold
giving rise to the Account are not subject to any Security
Interest except the first priority, perfected Security
Interest granted to Administrative Agent for the benefit
of Lenders and except the Permitted Security Interests;
and (x) to Borrower's knowledge, there are no proceedings
or actions which are threatened or pending against the
Account Debtor with respect to the Account.
10.36.2. INVENTORY. With respect to Inventory
scheduled, listed or referred to in any certificate,
schedule, list or report given by any Covered Person,
except as disclosed therein: (i) the applicable Covered
Person has good and merchantable title to such Inventory
subject to no Security Interest whatsoever except for the
first priority, perfected Security Interest granted to
Administrative Agent for the benefit of Lenders and except
for existing Permitted Security Interests; (ii) such
Inventory is of good and merchantable quality, free from
any material defects; (iii) such Inventory is not subject
to any licensing, patent, royalty, trademark, trade name
or copyright agreements with any third parties; and (iv)
the completion of manufacture and sale or other
disposition of such Inventory by Administrative Agent or
Lenders following an Event of Default shall not require
the consent of any Person and shall not constitute a
breach or default under any contract or agreement to which
any Covered Person is a party or to which the Inventory is
subject.
10.36.3. EQUIPMENT. With respect to each Covered
Person's Equipment: (i) such Covered Person has good and
marketable title thereto; (ii) none of such Equipment is
subject to any Security Interests except for the first
priority, perfected Security Interest granted to
Administrative Agent for the benefit of Lenders pursuant
hereto and except for Permitted Security Interests; and
(iii) all such Equipment is in good operating condition
and repair, ordinary wear and tear alone excepted, and is
suitable for the uses to which customarily put in the
conduct of such Covered Person's business. No Equipment
used in the conduct of such Covered Person's business is
leased, except for non-material items of office equipment,
computer equipment and vehicles or except as otherwise
permitted by this Agreement.
10.36.4. INTELLECTUAL PROPERTY. With respect to
the Intellectual Property of the Covered Persons: (i)
section 10.36.4 of the Disclosure Schedule contains a
complete and correct list of all of each Covered Person's
Intellectual Property; (ii) the Covered Person listed on
the Disclosure Schedule as the owner thereof owns all
right, title and interest in, under and to such
Intellectual Property, subject to no licenses or any
interest therein or other agreements relating thereto,
except for the Security Agreement; (iii) none of such
Intellectual Property is subject to any pending or, to
such Covered Person's knowledge, threatened challenge
which could reasonably be likely to have a Material
Adverse Effect; (iv) to Borrower's knowledge, such Covered
Person has not committed any patent, trademark, trade
name, service ▇▇▇▇ or copyright infringement, and the
present conduct of such Covered Person's business does not
infringe any patents, trademarks, trade name rights,
service marks, copyrights, publication rights, trade
secrets or other proprietary rights of any Person which
could reasonably be likely to have a Material Adverse
Effect; and (v) there are no claims or demands of any
Person pertaining to, or any proceedings which are pending
or, to the knowledge of such Covered Person, threatened,
which challenge such Covered Person's rights in respect of
any proprietary or confidential
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information or trade secrets used in the conduct of such
Covered Person's business which could reasonably be likely
to have a Material Adverse Effect.
10.36.5. DOCUMENTS, INSTRUMENTS AND CHATTEL
PAPER. All documents, instruments and chattel paper
describing, evidencing or constituting Collateral, and all
signatures and endorsements thereon, are complete, valid,
and genuine, and all goods evidenced by such documents,
instruments and chattel paper are owned by a Covered
Person free and clear of all Security Interests other than
Permitted Security Interests.
10.37. CHIEF PLACE OF BUSINESS; LOCATIONS OF COLLATERAL.
10.37.1. The only chief executive office and the
principal places of business of each Covered Person are
located at the places listed and so identified in section
10.37.1 of the Disclosure Schedule;
10.37.2. The books and records of each Covered
Person, and all of such Covered Person's chattel paper and
all records of Accounts, are located only at the places
listed and so identified in section 10.37.2 of the
Disclosure Schedule; and
10.37.3. All of the Collateral (except for
Inventory which is in transit and real property and as
permitted by Section 13.18 of this Agreement) is located
only at the places listed and so identified in section
10.37.3 of the Disclosure Schedule; no Covered Person has
an office or place of business other than as identified in
section 10.37.3 of the Disclosure Schedule.
10.38. SECURITY DOCUMENTS. Each Security Agreement is
effective to grant to Administrative Agent for the benefit of
Lenders an enforceable Security Interest in the Personal Property
Collateral described therein. Upon appropriate filing (as to all
Personal Property Collateral in which a Security Interest may be
perfected under the applicable state's UCC by filing a financing
statement) or Administrative Agent's taking possession (as to items
of the Personal Property Collateral of which a secured party must
take possession in order to perfect a Security Interest under the
applicable state's UCC), Administrative Agent will have a fully
perfected first priority Security Interest in the Personal Property
Collateral described in each Security Agreement, subject only to
Permitted Security Interests affecting such Personal Property
Collateral. Each Mortgage is effective to grant to Administrative
Agent for the benefit of Lenders a legal, valid and enforceable
mortgage lien on the Real Estate Collateral described therein. Upon
proper recording thereof and payment of recording fees and taxes,
if any, Administrative Agent will have for the benefit of Lenders a
fully perfected first priority Security Interest on such Real
Estate Collateral subject only to Permitted Security Interests
affecting such Real Estate Collateral.
10.39. ELIGIBILITY OF COLLATERAL. Each Account, item of
Equipment, or item of Inventory which Borrower, expressly or by
implication, requests Administrative Agent to classify as an
Eligible Account, Eligible Equipment, or as Eligible Inventory,
respectively, will, as of the time when such request is made,
conform in all respects to the requirements of such classification
set forth in the respective definitions of Eligible Accounts,
Eligible Equipment, and Eligible Inventory herein.
11. MODIFICATION AND SURVIVAL OF REPRESENTATIONS. Except as
specifically noted herein, Borrower may at any time after the initial
Advances are made propose to Lenders in writing to modify the
representations and warranties in Section 10, the representations and
warranties in any other Loan Document and any other representation or
warranty made in any certificate, report, opinion or other
30
document delivered by Borrower pursuant to the Loan Documents. If the proposed
modifications are satisfactory to Required Lenders as evidenced by their
written assent thereto, then such representations and warranties shall be
deemed and treated as so modified, but only as of the date of Borrower's
written modification proposal. If such proposed modifications are not
satisfactory to Required Lenders, then such proposed modifications shall not
be deemed or treated as modifying such representations and warranties. All
such representations and warranties, as made or deemed made as of a
particular time, shall survive execution of each of the Loan Documents and
the making of every Advance, and may be relied upon by Administrative Agent
and Lenders as being true and correct as of the date when made or deemed
made until all of the Loan Obligations are fully and indefeasibly paid, no
Letters of Credit are outstanding and the Letter of Credit Exposure is
irreversibly zero.
12. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that,
while any of the Commitments remains in effect and until all of the Loan
Obligations are fully and indefeasibly paid, no Letters of Credit are
outstanding and the Letter of Credit Exposure is irreversibly zero, Borrower
shall do, or cause to be done by each of the other Covered Persons, as
applicable, the following:
12.1. USE OF PROCEEDS. The proceeds of Revolving Loan
Advances and Swingline Advances shall be used by the Company solely
to (i) provide for the working capital and Capital Expenditures
requirements of the Company and its Subsidiaries, payment of
dividends permitted hereunder, and general corporate purposes of
the Company and its Subsidiaries, and (ii) to finance Permitted
Acquisitions.
12.2. CORPORATE EXISTENCE. Each Covered Person shall
maintain its existence in good standing and shall maintain in good
standing its right to transact business in those states in which it
is now or hereafter doing business, except where the failure to so
qualify will not have and will not be reasonably likely to have a
Material Adverse Effect on any Covered Person. Each Covered Person
shall obtain and maintain all Material Licenses for such Covered
Person.
12.3. MAINTENANCE OF PROPERTY AND LEASES. Each Covered
Person shall maintain in good condition and working order, and
repair and replace as required, all buildings, Equipment,
machinery, fixtures and other real and personal property owned or
leased by it whose useful economic life has not elapsed and which
is reasonably necessary for the ordinary conduct of the business of
such Covered Person. All of each Covered Person's inventory shall
be produced in accordance with the Federal Fair Labor Standards Act
of 1938 and all rules, regulations, and orders thereunder. No
Covered Person shall permit any of its Equipment or other property
to become a fixture to any real property not owned by any Covered
Person.
12.4. INSURANCE. Each Covered Person shall at all times
keep insured or cause to be kept insured, in insurance companies
having a rating of at least "A-" by Best's Rating Service, all
property owned by it of a character usually insured by others
carrying on businesses similar to that of such Covered Person in
such manner and to such extent and covering such risks as such
properties are usually insured subject to deductibles and
self-insured retention levels consistent with past practices. Each
Covered Person also shall carry business interruption insurance in
such amounts, in such manner and to such extent and covering such
risks as such businesses are usually insured subject to deductibles
and self-insured retention levels consistent with past practices.
Each Covered Person shall at all times carry insurance, in
insurance companies having a rating of at least "A-" by Best's
Rating Service, against liability on account of damage to persons
or property (including product liability insurance and insurance
required under all Laws pertaining to workers' compensation) and
covering all other liabilities common to such Covered Person's
business, in such manner and to such extent as such coverage is
usually carried by others conducting businesses similar to that of
such Covered Person subject to deductibles and self-
31
insured retention levels consistent with past practices. All liability
policies of insurance maintained hereunder shall name
Administrative Agent as an additional insured for the benefit of
Lenders; all policies of property insurance maintained hereunder
shall reflect Administrative Agent's interest therein as a
mortgagee for the benefit of the Lenders under a standard New York
or Union mortgagee clause. Administrative Agent is authorized, but
not obligated, as the attorney-in-fact for Borrower and for the
benefit of Lenders, (i) prior to the occurrence of an Event of
Default, with Borrower's consent (which consent shall not be
unreasonably withheld), and upon the occurrence of an Event of
Default, without Borrower's consent, to adjust and compromise
proceeds payable under such policies of insurance, (ii) prior to
the occurrence of an Event of Default, with Borrower's consent
(which consent shall not be unreasonably withheld), and upon the
occurrence of an Event of Default, without Borrower's consent, to
collect, receive and give receipts for such proceeds in the name of
Borrower, Administrative Agent and Lenders, and (iii) prior to the
occurrence of an Event of Default, with Borrower's consent (which
consent shall not be unreasonably withheld), and upon the
occurrence of an Event of Default, without Borrower's consent, to
endorse Borrower's name upon any instrument in payment thereof.
Such power granted to Administrative Agent shall be deemed coupled
with an interest and shall be irrevocable. All such policies of
insurance maintained hereunder shall contain a clause providing
that such policies may not be canceled, without 30 days prior
written notice to Administrative Agent. Borrower shall upon request
of Administrative Agent at any time furnish to Administrative Agent
updated evidence of insurance (in the form required as a condition
to Administrative Agent's lending hereunder) for such insurance.
Notwithstanding the foregoing, if the Best's Rating Service rating
of any insurance carrier(s) of the Borrower or any other Covered
Person falls below "A-," then such event shall not be an Event of
Default if, within 270 days of such downgrading, Borrower shall put
in place insurance meeting the requirements of this Section with
replacement insurance carrier(s) with a Best's Rating Service
rating of at least "A-."
12.5. PAYMENT OF TAXES AND OTHER OBLIGATIONS. Each Covered
Person shall promptly pay and discharge or cause to be paid and
discharged, as and when due, any and all income taxes, federal or
otherwise, lawfully assessed and imposed upon it, and any and all
lawful taxes, rates, levies, and assessments whatsoever upon its
properties and every part thereof, or upon the income or profits
therefrom and all claims of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons for labor,
materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of
its property; provided, however, that a Covered Person may
diligently contest in good faith by appropriate proceedings the
validity of any such taxes, rates, levies, or assessments, provided
such Covered Person has established adequate reserves therefor in
conformity with GAAP on the books of such Covered Person, and no
Security Interest, other than a Permitted Security Interest,
results from such non-payment.
12.6. COMPLIANCE WITH LAWS. Each Covered Person shall
comply with all Material Laws. Without limiting the foregoing, each
Covered Person shall (i) ensure, and cause each other Covered
Person to ensure, that no person who owns a controlling interest in
or otherwise controls Borrower or a Covered Person is or shall be
(A) listed on the Specially Designated Nationals and Blocked Person
List maintained by the Office of Foreign Assets Control ("OFAC"),
Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive
Order or regulation or (B) a person designated under Section 1(b),
(c) or (d) of Executive Order No. 13224 (September 23, 2001), any
related enabling legislation or any other similar Executive Orders,
and (ii) comply, and cause each other Covered Person to comply,
with all applicable Bank Secrecy Act ("BSA") and anti-money
laundering laws and regulations. The foregoing notwithstanding,
each Covered Person that has delivered a Mortgage to Administrative
Agent will comply with all Laws, including Environmental Laws and
fire and building codes of
32
federal, state and local authorities applicable to the Collateral
described in such Mortgage; except such as are being diligently
contested by such Covered Person in good faith by appropriate
proceedings; provided, however, that if the amount at issue in any
such contest exceeds $500,000, unless Administrative Agent waives
such requirement in Administrative Agent's sole discretion,
Borrower shall promptly deposit with Administrative Agent cash
collateral which in Administrative Agent's judgment must be
adequate to pay and discharge each such contested item in full,
together with all legal fees and costs that might be incurred by
Administrative Agent (which legal fees and costs Borrower hereby
agrees to pay or to cause such Covered Person to pay). Further,
each Covered Person that has delivered a Mortgage to Administrative
Agent will comply with all requirements of every board of fire
underwriters or similar body whose requirements apply to similar
property in the area where any of the Collateral described in such
Mortgage is located.
12.7. TERMINATION OF PENSION BENEFIT PLAN. No Covered
Person or ERISA Affiliate of such Covered Person shall terminate or
amend any Pension Benefit Plan maintained by such Covered Person or
such ERISA Affiliate if such termination or amendment would result
in any liability to such Covered Person or such ERISA Affiliate
under ERISA or any increase in current liability for the plan year
for which such Covered Person or such ERISA Affiliate is required
to provide security to such Pension Benefit Plan under the Code,
which such liability could reasonably be expected to have a
Material Adverse Effect on such Covered Person.
12.8. NOTICE TO ADMINISTRATIVE AGENT OF MATERIAL EVENTS.
Borrower shall, promptly upon any Responsible Officer of Borrower
obtaining knowledge or notice thereof, give notice to
Administrative Agent of (i) any breach of any of the covenants in
Section 12, 13, or 14; (ii) any Default or Event of Default; (iii)
the commencement of any Material Proceeding; and (iv) any loss of
or damage to any assets of a Covered Person or the commencement of
any proceeding for the condemnation or other taking of any of the
assets of a Covered Person, if insurance and/or condemnation
proceeds in excess of $1,000,000 are likely to be payable as a
consequence of such loss, damage or proceeding, or if such loss,
damage or proceeding has or is reasonably likely to have a Material
Adverse Effect on such Covered Person. In addition,
12.8.1. Borrower shall furnish to Administrative
Agent from time to time all information which
Administrative Agent reasonably requests with respect to
the status of any Material Proceeding.
12.8.2. Borrower shall furnish to Administrative
Agent from time to time all information which
Administrative Agent requests with respect to any Pension
Benefit Plan established by a Covered Person or an ERISA
Affiliate of any Covered Person.
12.8.3. Borrower shall promptly deliver to
Administrative Agent notice of any default or event of
default, or the occurrence of any event which would with
the passage of time, giving of notice or otherwise,
constitute a default or event of default with respect to
any of the Permitted Indebtedness which is in an amount
which exceeds $500,000.
12.8.4. Borrower shall promptly deliver notice to
Administrative Agent of the assertion by the holder of any
capital stock, membership interest, or any other equity
interest in a Covered Person or any Indebtedness of a
Covered Person in the outstanding principal amount in
excess of $500,000 that a default exists with respect
thereto or that such Covered Person is not in compliance
with the terms thereof, or of the threat or commencement
by such holder of any enforcement action because of such
asserted default or noncompliance (including any general
shareholder suits).
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12.8.5. Borrower shall, promptly after becoming
aware thereof, deliver notice to Administrative Agent of
any pending or threatened strike, work stoppage, unfair
labor practice claim or other labor dispute affecting a
Covered Person which has or is reasonably likely to have a
Material Adverse Effect on any Covered Person.
12.8.6. Borrower shall promptly deliver notice to
Administrative Agent of any change in the name, state of
organization, or form of organization of any Covered
Person.
12.8.7. Borrower shall, promptly after becoming
aware thereof, deliver notice to Administrative Agent of
any event that has or is reasonably likely to have a
Material Adverse Effect on any Covered Person.
12.8.8. Borrower shall, promptly after becoming
aware thereof, deliver notice to Administrative Agent of
an actual or alleged violation of any Material Law
applicable to a Covered Person or the property of a
Covered Person.
12.8.9. Borrower shall notify Administrative
Agent promptly in writing of any fact or condition of
which Borrower is aware which materially and adversely
affects the value of its assets taken as a whole.
12.8.10. Borrower shall notify Administrative
Agent promptly in writing of any Security Interest of the
type described in Sections 13.4.1 or 13.4.4 or of any
contest of any Law of the type described in Section 12.6.
12.8.11. Borrower shall notify Administrative
Agent promptly in writing of any fact or condition of
which Borrower is aware which materially adversely affects
the value of the Collateral taken as a whole, or any
adverse fact or condition or the occurrence of any event
which causes loss or depreciation in the value of any
material item of the Collateral other than ordinary
depreciation, wear and tear, and the amount of such loss
or depreciation. Borrower shall provide such additional
information to Administrative Agent regarding the amount
of any loss or depreciation in value of the Collateral as
Administrative Agent may request from time to time.
Borrower shall also provide other reports and information,
in form and detail satisfactory to Administrative Agent,
and documents as Administrative Agent may reasonably
request from time to time concerning the Collateral.
12.9. BORROWING OFFICER. Borrower shall keep on file with
Administrative Agent at all times an appropriate instrument naming
each Borrowing Officer.
12.10. ACCOUNTING SYSTEM; TRACING OF PROCEEDS. Each
Covered Person shall maintain a system of accounting established
and administered in accordance with GAAP. Each Covered Person shall
maintain detailed and accurate records of all transfers of any
proceeds of the Loans from Borrower to such Covered Person.
Borrower shall maintain detailed and accurate records of proceeds
of the Loans and transfers of proceeds of the Loans (i) received by
it from the Lenders, (ii) transferred from it to any other Covered
Person, and (iii) received by it from another Covered Person.
Borrower agrees that (a) the business operations of Borrower and
each Covered Person are interrelated and complement one another,
and such entities have a common business purpose and common
management, and (b) the proceeds of Advances hereunder will benefit
Borrower and each Covered Person, severally and jointly, regardless
of which Borrower requests or receives part or all of any Advance.
34
12.11. FINANCIAL STATEMENTS. Borrower shall deliver to
Administrative Agent for each Lender:
12.11.1. ANNUAL FINANCIAL STATEMENTS. Within 95
days after the close of each fiscal year of Borrower,
year-end consolidated financial statements of Borrower and
its Subsidiaries, containing a balance sheet, income
statement, statement of cash flows and an audit report
without qualification by an independent certified public
accounting firm selected by Borrower and satisfactory to
Administrative Agent, and accompanied by (i) a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower, (ii) the management letter and report on
internal controls delivered by such independent certified
public accounting firm in connection with their audit, if
any, and (iii) if requested by Administrative Agent, any
summary prepared by such independent certified public
accounting firm of the adjustments proposed by the members
of its audit team.
12.11.2. QUARTERLY FINANCIAL STATEMENTS. Within
50 days after the end of each fiscal quarter, unaudited
consolidated financial statements of Borrower for each of
the fiscal quarters not covered by the latest year-end
financial statements, in each case containing a balance
sheet, income statement, and statement of cash flows; and
in connection with the delivery of such Financial
Statements at the end of each fiscal quarter, a Compliance
Certificate of the Chief Financial Officer or Treasurer of
Borrower.
Each Compliance Certificate shall be in the form of
Exhibit 12.11, shall contain detailed calculations of the
financial measurements referred to in Section 14 for the
relevant periods, and shall contain statements by the
signing officer to the effect that, except as explained in
reasonable detail in such Compliance Certificate, (i) the
attached Financial Statements are complete and correct in
all material respects (subject, in the case of Financial
Statements other than annual, to normal year-end audit
adjustments) and have been prepared in accordance with
GAAP applied consistently throughout the periods covered
thereby and with prior periods (except as disclosed
therein) (ii) all of the Representations and Warranties
are true and correct as of the date such certification is
given as if made on such date, and (iii) there is no
Existing Default. If any Compliance Certificate delivered
to Administrative Agent discloses that a representation or
warranty is not true and correct, or that there is an
Existing Default that has not been waived in writing by
Required Lenders, such Compliance Certificate shall state
what action Borrower has taken or proposes to take with
respect thereto.
12.11.3. MONTHLY COMPLIANCE CERTIFICATE. Within
30 days after the end of each fiscal month, a Compliance
Certificate, with respect to only Section 14.5 hereof,
signed by the Chief Financial Officer or Treasurer of
Borrower and shall contain statements by the signing
officer to the effect that, except as explained in
reasonable detail in such Compliance Certificate, (i) all
of the Representations and Warranties are true and correct
as of the date such certification is given as if made on
such date, and (ii) there is no Existing Default.
12.12. OTHER FINANCIAL INFORMATION. Borrower shall also
deliver the following to Administrative Agent:
12.12.1. STOCKHOLDER REPORTS. Upon the reasonable
request of Administrative Agent, copies of any proxy
statements, financial statements and reports which
Borrower makes available to its stockholders, members or
partners.
35
12.12.2. PENSION BENEFIT PLAN REPORTS. Promptly
upon the reasonable request of Administrative Agent at any
time or from time to time, a copy of each annual report or
other filing or notice filed with respect to each Pension
Benefit Plan of a Covered Person or an ERISA Affiliate of
a Covered Person.
12.12.3. TAX RETURNS. Promptly upon the
reasonable request of Administrative Agent at any time or
from time to time, a copy of each federal, state, or local
tax return or report filed by Borrower.
12.13. ANNUAL PROJECTIONS. Within 60 days after the first
day of each fiscal year of Borrower, projected balance sheets,
statements of income and expense, and statements of cash flows for
Borrower and every other Covered Person as of the end of and for
each fiscal quarter of such fiscal year and on an annual basis for
the next two succeeding fiscal years, in such detail as
Administrative Agent may reasonably require.
12.14. OTHER INFORMATION. Promptly upon the reasonable
request of Administrative Agent, Borrower shall promptly deliver to
Administrative Agent such other information about the business,
operations, revenues, financial condition, property, or business
prospects of Borrower and every other Covered Person as
Administrative Agent may, from time to time, reasonably request.
12.15. ACCESS TO OFFICERS AND AUDITORS. Each Covered
Person shall, within five Business Days of a request from a Lender
or Administrative Agent, permit any Lender and Administrative Agent
and each of their representatives and agents to discuss the
business, operations, revenues, financial condition, property, or
business prospects of such Covered Person with its officers,
employees, accountants and independent auditors as often as
Administrative Agent may request in its reasonable discretion, and
such Covered Person shall direct such officers, employees,
accountants and independent auditors to cooperate with
Administrative Agent, Lenders, and their representatives and
agents, and make full disclosure to Administrative Agent, Lenders,
and their representatives and agents, of those matters that they
may deem relevant to the continuing ability of Borrower timely to
pay and perform the Loan Obligations.
12.16. ACQUISITION DOCUMENTS. Borrower shall fully perform
all of its material obligations under all Acquisition Documents,
and shall enforce all of its rights and remedies thereunder as it
deems appropriate in its reasonable business judgment; provided,
however, that Borrower shall not take any action or fail to take
any action which would result in a waiver or other loss of any
material right or remedy of Borrower thereunder.
12.17. FURTHER ASSURANCES. Borrower shall execute and
deliver, or cause to be executed and delivered, to Administrative
Agent such documents and agreements, and shall take or cause to be
taken such actions, as Administrative Agent may from time to time
reasonably request to carry out the terms and conditions of this
Agreement and the other Loan Documents. Without limiting the
foregoing, in the event all or any portion of the Real Estate
Collateral is condemned, Borrower shall fully cooperate with
Administrative Agent and shall execute such documents and provide
such surveys and other information as may be necessary for
Administrative Agent to obtain a new or updated title insurance
policy.
12.18. COVERED PERSONS. Borrower shall cause each other
Covered Person to comply with each of the terms and provisions of
this Agreement and the other Loan Documents, and Borrower
acknowledges and agrees that failure of Borrower or any Covered
Persons to comply with the terms of this Agreement and the other
Loan Documents, shall be a Default hereunder and thereunder.
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12.19. GUARANTEES. Upon the request of the Administrative
Agent or the Required Lenders, Borrower shall cause any
Subsidiaries of Borrower to execute a Guaranty of all of the Loan
Obligations in form and substance reasonably satisfactory to
Administrative Agent and to provide such authorizing resolutions,
certificates of incumbency and other corporate documents as may be
reasonably requested by Administrative Agent in connection
therewith.
12.20. APPRAISALS OF EQUIPMENT. Administrative Agent or
Persons authorized by and acting on behalf of Administrative Agent,
as often as Administrative Agent may deem necessary, may perform or
have performed on its behalf an appraisal of Borrower's Equipment
by an appraiser reasonably acceptable to Administrative Agent and
prepared on a basis reasonably satisfactory to Administrative
Agent. While there is an Existing Default, Borrower shall reimburse
Administrative Agent for all costs and reasonable expenses actually
incurred by it in conducting or having conducted each such
appraisal plus Administrative Agent's other actual out-of-pocket
costs and expenses incurred in connection therewith, and appraisals
conducted during such Existing Default shall not count towards the
appraisals described in the next sentence. While there is no
Existing Default, Borrower shall reimburse Administrative Agent for
all costs and reasonable expenses actually incurred by it in
conducting or having conducted one appraisal in each year plus
Administrative Agent's other actual out-of-pocket costs and
expenses. Each Covered Person shall cooperate with Administrative
Agent and such Persons in the conduct of such appraisals and shall
deliver to Administrative Agent or such Persons any documents or
instruments necessary for Administrative Agent or such Persons to
perform such appraisals. Notwithstanding the foregoing, Borrower
shall pay for the initial appraisal examination conducted by
Administrative Agent prior to the Effective Date.
12.21. LIFE INSURANCE. Borrower shall pay all premiums and
other amounts due under the Life Insurance Policies. At all times
while any Indebtedness permitted by Section 13.2.7 is outstanding,
Borrower shall at all times keep the Life Insurance Policies
relating to such Indebtedness in full force and effect, except with
respect to any such Life Insurance Policies with respect to which
the insured person under such policy has died.
12.22. MAINTENANCE OF SECURITY INTERESTS OF SECURITY
DOCUMENTS.
12.22.1. PRESERVATION AND PERFECTION OF SECURITY
INTERESTS. Borrower shall promptly, upon the reasonable
request of Administrative Agent and at Borrower's expense,
execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter file or
record in the appropriate governmental office, any
document or instrument supplementing or confirming the
Security Documents or otherwise deemed necessary by
Administrative Agent to create, preserve or perfect any
Security Interest purported to be created by the Security
Documents or to fully consummate the transactions
contemplated by the Loan Documents. The foregoing actions
by Borrower shall include (i) filing financing or
continuation statements, and amendments thereof, in form
and substance satisfactory to Administrative Agent; (ii)
delivering to Administrative Agent the originals of all
instruments, documents and chattel paper, and all other
Collateral of which Administrative Agent determines it
should have physical possession in order to perfect and
protect Administrative Agent's Security Interest for the
benefit of Lenders therein, duly endorsed or assigned to
Administrative Agent without restriction; (iii) delivering
to Administrative Agent warehouse receipts covering any
portion of the Collateral located in warehouses and for
which warehouse receipts are issued; (iv) while an Event
of Default has occurred and is continuing, transferring
Inventory to warehouses designated by Administrative
Agent; (v) delivering to Administrative Agent all letters
of credit on which Borrower is named beneficiary;
37
(vi) placing a durable notice of the existence of
Administrative Agent's Security Interest for the benefit
of Lenders, acceptable to Administrative Agent, upon such
items of the Collateral as are designated by
Administrative Agent; and (vii) placing a notice of the
existence of Administrative Agent's Security Interest for
the benefit of Lenders, acceptable to Administrative
Agent, upon those writings evidencing the Collateral and
the books and records of Borrower pertaining to the
Collateral, as designated by Administrative Agent.
12.22.2. COLLATERAL HELD BY WAREHOUSEMAN, BAILEE,
ETC. Subject to Section 13.18, if any Collateral is at any
time in the possession or control of a warehouseman,
bailee or any of Borrower's or any Covered Person's agents
or processors, then Borrower shall notify Administrative
Agent thereof and shall notify such Person of
Administrative Agent's Security Interest for the benefit
of Lenders in such Collateral and, upon Administrative
Agent's request, instruct such Person to hold all such
Collateral for Administrative Agent's account subject to
Administrative Agent's instructions. Subject to Section
13.18, if at any time any Collateral is located on any
premises that are not owned by a Covered Person, then
Borrower shall obtain or cause to be obtained written
waivers, in form and substance satisfactory to
Administrative Agent, of all present and future Security
Interests to which the owner or lessor or any mortgagee of
such premises may be entitled to assert against the
Collateral.
12.22.3. COMPLIANCE WITH TERMS OF SECURITY
DOCUMENTS. Each Covered Person shall comply with all of
the terms, conditions and covenants in the Security
Documents to which such Covered Person is a party.
12.23. APPRAISALS OF COLLATERAL. Upon Administrative
Agent's request at any time if there is an Existing Default,
Borrower shall promptly reimburse Administrative Agent for the cost
of any appraisals of the Collateral performed during the
continuance of an Existing Default, as Administrative Agent may
specify, prepared on a basis satisfactory to Administrative Agent
and from appraisers chosen by and acceptable to Administrative
Agent.
12.24. REVIEW OF ACCOUNTS AND INVENTORY. Not less often
than annually, and promptly at Administrative Agent's reasonable
request if there is an Existing Default, Borrower shall conduct
(and shall cause each other Covered Person to conduct) a review of
its Accounts, bad debt reserves, and collection histories of
Account Debtors and promptly following such review provide
Administrative Agent with a report of such review in form and
detail satisfactory to Administrative Agent.
12.25. EXAMS BY ADMINISTRATIVE AGENT. Administrative Agent
or Persons authorized by and acting on behalf of Administrative
Agent may at any time during normal business hours examine the
books and records and inspect any of the property of each Covered
Person from time to time upon reasonable notice to such Covered
Person, and in the course thereof may make copies or abstracts of
such books and records and discuss the affairs, finances and books
and records of such Covered Person with its accountants,
independent auditors (and the Borrower hereby authorizes such
independent auditors to discuss such financial matters with
Administrative Agent or any representative thereof), officers and
employees. Each Covered Person shall cooperate with Administrative
Agent and such Persons in the conduct of such examinations and
shall deliver to Administrative Agent any instrument necessary for
Administrative Agent to obtain records from any service bureau
maintaining records for such Covered Person. Borrower shall
reimburse Administrative Agent for all reasonable costs and
expenses incurred by it in
38
conducting each examination. Notwithstanding the foregoing, in the
absence of an Existing Default, Administrative Agent shall be
limited to one such reimbursed exam per fiscal year.
12.26. LOCKBOX. Any lockboxes opened or created by
Borrower or any Subsidiary after July 20, 2005, shall be opened and
maintained at one or more of the Lenders.
12.27. ASSET COVERAGE. Borrower shall promptly, upon the
reasonable request of Administrative Agent (without waiving any
Default or Event of Default by making such request or accepting any
additional assets) and at Borrower's expense, deliver or cause to
be delivered additional assets of the type and nature contained in
the definition of Asset Coverage and reasonably acceptable to
Administrative Agent and the Required Lenders as may be necessary
from time to time to remain in compliance with Section 14.5.
12.28. DELAYED SITES. On or before January 27, 2006,
Borrower shall cause the number of the Delayed Sites necessary to
be in compliance with the Asset Coverage covenant set forth in
Section 14.5 to meet, as determined by Administrative Agent in its
reasonable discretion, each of the requirements set forth in
Section 8.1.10. At the closing of the Delayed Sites or on January
27, 2005, whichever occurs first, Borrower shall provide a
Compliance Certificate for the Asset Coverage covenant set forth in
Section 14.5 showing compliance with such covenant.
13. NEGATIVE COVENANTS. Borrower covenants and agrees that,
while any of the Commitments remain in effect and until all of the Loan
Obligations are fully and indefeasibly paid, no Letters of Credit are
outstanding and the Letter of Credit Exposure is zero, Borrower shall not,
directly or indirectly, do any of the following, or permit any Covered
Person to do any of the following:
13.1. INVESTMENTS. Make any Investments in any other
Person except the following:
13.1.1. Investments in (i) interest-bearing
United States government obligations; (ii) certificates of
deposit issued by any Lender; (iii) prime commercial paper
rated A1 or better by Standard and Poor's Corporation or
Prime P1 or better by ▇▇▇▇▇'▇ Investor Service, Inc.; (iv)
agreements involving the sale to a Covered Person of
United States government securities and their guarantied
repurchase the next Business Day by a commercial bank
chartered under the Laws of the United States or any state
thereof which has capital and surplus of not less than
$500,000,000; or (v) certificates of deposit issued by and
time deposits which do not extend more than 364 days or
money market accounts, with any commercial bank chartered
under the Laws of the United States or any state thereof
which has capital and surplus of not less than
$500,000,000.
13.1.2. Accounts arising in the ordinary course
of business and payable in accordance with Borrower's
customary trade terms.
13.1.3. Any Investments that are Permitted
Acquisitions.
13.1.4. Investments existing on the Execution
Date and disclosed in section 10.17 of the Disclosure
Schedule.
13.1.5. Notes or equity interests received by a
Covered Person in settlement of Indebtedness of other
Persons to such Covered Person that was incurred in the
ordinary course of such Covered Person's business.
13.1.6. Investments by any Covered Person in any
other Covered Person.
39
13.1.7. Loans to members of Borrower's management
to finance the exercise of Approved Options and the
payment of income taxes in connection therewith in a net
aggregate cash amount not exceeding $250,000.
13.2. INDEBTEDNESS. Create, incur, assume, or allow to
exist any Indebtedness of any kind or description, except the
following:
13.2.1. Indebtedness to trade creditors incurred
in the ordinary course of business, to the extent that it
is not overdue past the original due date by more than 60
days (unless such Indebtedness is being contested in good
faith by such Covered Person and adequate reserves under
GAAP have been made).
13.2.2. The Loan Obligations.
13.2.3. Indebtedness secured by Permitted
Security Interests.
13.2.4. Indebtedness under Capital Leases up to
$7,500,000 in original capitalized cost outstanding at any
time in the aggregate.
13.2.5. Indebtedness up to $3,000,000 in the
aggregate outstanding at any time secured by Security
Interests permitted under Section 13.4.5.
13.2.6. Unsecured Indebtedness up to $4,000,000
in the aggregate principal amount outstanding at any time.
13.2.7. Indebtedness up to the cash value of the
Life Insurance Policies.
13.2.8. If there is no Existing Default and no
Default or Event of Default would reasonably be likely to
result from the incurrence of the following Indebtedness,
subject to the other terms and conditions of this
Agreement (including, without limitation, Section 6.3.3.2)
and if modifications to this Agreement due to the
incurrence of such Indebtedness are made as the
Administrative Agent and the Required Lenders may
reasonably require, unsecured Indebtedness (pari passu
with the Loan Obligations), on terms and conditions
reasonably satisfactory to Administrative Agent and the
Required Lenders, and which shall be subject to an
intercreditor agreement(s) reasonably acceptable to the
Administrative Agent.
13.2.9. Non-interest bearing Indebtedness up to
$5,000,000 in the aggregate outstanding at any time owing
to a Seller which is (A) incurred in connection with a
Permitted Acquisition, (B) incurred as a deferred purchase
price payment for the assets being purchased by Borrower
pursuant to such Permitted Acquisition, (C) due and
payable in full no later than one year following the
closing date of the Permitted Acquisition, and (D) not
secured by a Security Interest on any asset of Borrower or
any other Covered Person (although Borrower may, in its
discretion, provide a Letter of Credit to such seller to
secure the Indebtedness described in this Section 13.2.9).
13.2.10. Indebtedness incurred to finance the
premiums for Borrower's or any other Covered Person's
property, casualty and workers' compensation insurance
policies and the Person who finances such premiums may
have a prior claim to any refunds and unearned premiums
with regards to the premiums such Person has financed, but
which such claims shall be subject to and junior in all
respects to Administrative Agent's rights as loss payee,
mortgagee and additional insured under such policies.
40
13.3. INDIRECT OBLIGATIONS. Create, incur, assume or allow
to exist any Indirect Obligations except Indirect Obligations
existing on the Execution Date and disclosed on section 10.9 of the
Disclosure Schedule and Indirect Obligations of a Covered Person
with respect to the Permitted Indebtedness of any other Covered
Person. Except for liabilities under the leases described in
Section 10.26, no Dormant Subsidiary shall create, incur or allow
to exist any Indirect Obligation or Indebtedness.
13.4. SECURITY INTERESTS. Create, incur, assume or allow
to exist any Security Interest upon all or any part of its
property, real or personal, now owned or hereafter acquired, except
the following:
13.4.1. Security Interests for taxes, penalties,
assessments or governmental charges not delinquent or
being diligently contested in good faith and by
appropriate proceedings and for which adequate book
reserves in accordance with GAAP are maintained; provided,
further, however, that if the amount of any such tax,
penalty, assessment, or charge exceeds $500,000, unless
Administrative Agent waives such requirement in
Administrative Agent's sole discretion, Borrower shall
promptly deposit with Administrative Agent cash collateral
which in Administrative Agent's judgment must be adequate
to pay and discharge any such item in full, together with
all legal fees and costs that might be incurred by
Administrative Agent (which legal fees and costs Borrower
hereby agrees to pay).
13.4.2. Security Interests arising out of
deposits in connection with workers' compensation
insurance, unemployment insurance, old age pensions, or
other social security or retirement benefits legislation.
13.4.3. Deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment
of money), leases, statutory obligations, surety and
appeal bonds, and other obligations of like nature arising
in the ordinary course of business.
13.4.4. Security Interests imposed by any Law,
such as mechanics', workmen's, materialmen's, landlords',
carriers', or other like Security Interests arising in the
ordinary course of business which secure payment of
obligations which are not past due or which are being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP are maintained on Borrower's books; provided,
further, however, that if the amount of any such Security
Interest exceeds $500,000, unless Administrative Agent
waives such requirement in Administrative Agent's sole
discretion, Borrower shall promptly deposit with
Administrative Agent cash collateral which in
Administrative Agent's judgment must be adequate to pay
and discharge any such item in full, together with all
legal fees and costs that might be incurred by
Administrative Agent (which legal fees and costs Borrower
hereby agrees to pay).
13.4.5. Purchase money Security Interests
securing payment of the purchase price of capital assets
the amount of which otherwise permitted under Section
13.2.5 in an aggregate principal amount outstanding at any
one time that does not exceed $3,000,000, which such
Security Interests only secure the assets purchased with
the proceeds of such Indebtedness.
13.4.6. Security Interests on assets subject to
Capital Leases to the extent permitted by Section 13.2.4.
41
13.4.7. Security Interests in favor of the issuer
of the Life Insurance Policies on the cash value of the
Life Insurance Policies to secure the Indebtedness
permitted by Section 13.2.7 to such issuer of the Life
Insurance Policies to the extent of such Indebtedness.
13.4.8. Security Interests in favor of the
Administrative Agent to secure the Loan Obligations.
13.4.9. Security Interests securing the
Indebtedness permitted by Section 13.2.10.
At no time shall Borrower or any Covered Person allow to exist on or against
its assets any financing statements, mortgages or similar documents, except
as permitted in Section 13.4.5, 13.4.6, 13.4.8 and 13.4.9.
13.5. ACQUISITIONS. Acquire stock, membership interests,
or any other equity interest in a Person, or acquire all or
substantially all of the assets of a Person (including without
limitation assets comprising all or substantially all of an
unincorporated business unit or division of any Person), except for
Permitted Acquisitions. Permitted Acquisition means an acquisition
of the stock, membership interests, or any other equity interest in
a Person, or the acquisition of some or all or substantially all of
the assets of a Person (including without limitation assets
comprising all or substantially all of an unincorporated business
unit or division of any Person), which satisfies each of the
following conditions: (i) the Borrower or a Guarantor is the
Acquiring Company (and if the Covered Person making the acquisition
is not a party to the Guaranty, it will execute a joinder to the
Guaranty or execute a new Guaranty, in each case in form and
substance reasonably acceptable to Administrative Agent), (ii) the
Borrower or a Guarantor is the Surviving Company, (iii) the Target
Company is in a substantially similar line of business as Borrower
or a Guarantor, (iv) except for Permitted Acquisitions (including,
without limitation, Small Permitted Acquisition) with an aggregate
gross purchase price of less than $5,000,000 in each Loan Year (to
which this clause (iv) shall not apply), Target Company has an
EBITDA (provided, however, that with respect to the purchase of
assets of less than an entire Target Company, EBITDA will be
calculated on a proforma basis prepared in good faith based on
reasonable assumptions) in excess of zero Dollars for the twelve
month period ended on the last day of the calendar month most
recently ended prior to the date such acquisition is consummated,
(v) there is no Existing Default, no Default or Event of Default
has occurred and is continuing, and no Default or Event of Default
will occur or is reasonably likely to occur as a result of or due
to such acquisition, (vi) the Maximum Available Amount exceeds the
Aggregate Revolving Loan by at least $10,000,000 after giving
effect to such acquisition, (vii) the purchase price (including
without limitation any deferred purchase price, seller notes,
assumed Indebtedness, or similar items) together with all expenses
incurred in connection with such acquisition does not exceed
$25,000,000 in the aggregate for all Permitted Acquisitions
(including, without limitation, acquisitions with negative EBITDA
and Small Permitted Acquisitions) from and after the Effective
Date, (viii) simultaneously with the closing of such acquisition,
the Target Company or the Surviving Company, as the case may be,
executes and delivers to Administrative Agent, if requested by the
Administrative Agent, a joinder agreement satisfactory to
Administrative Agent in which such Target Company or Surviving
Company becomes a Guarantor under the Guaranty, (ix) prior to the
closing of such acquisition, a Responsible Officer of Borrower
delivers to Administrative Agent a certificate on behalf of
Borrower certifying that such acquisition is a Permitted
Acquisition; (x) such acquisition is friendly, rather than hostile,
in nature, and (xi) except for any Permitted Acquisition with a
gross purchase price of less than $2,000,000 including without
limitation any deferred purchase price, seller notes, assumed
Indebtedness, or similar items (a
42
"Small Permitted Acquisition"), Borrower has, no less than 15 days
prior to making such acquisition, prepared and furnished to
Administrative Agent (and Administrative Agent shall use its
reasonable efforts to promptly provide such information to each
Lender) (A) the proforma financial statements described below for
the Target Company (if such acquisition is structured as a purchase
of equity) or the Surviving Company (if such acquisition is
structured as a purchase of assets or a merger), demonstrating to
the satisfaction of Administrative Agent that the Target Company,
all Surviving Companies, and Borrower, as the case may be, will be
Solvent upon consummation of such acquisition and upon the passage
of time thereafter, and that none of the covenants in Section 14
will be violated as a consequence of such acquisition or with the
passage of time thereafter, (B) a proforma Compliance Certificate
showing compliance with Section 14 of this Agreement, after giving
effect to such Permitted Acquisition, and (C) copies of the audited
financial statements (if available, or unaudited financial
statements if no audited financial statements exist) for the Target
Company for the three fiscal years most recently ended (if
available) and for each of the completed fiscal quarters in the
then current fiscal year. The proforma financial statements
referred to in clause (xi) shall contain consolidated balance
sheets, income statements, statements of cash flows and such other
reports and disclosures of Borrower as well as the Target Company
(if such Permitted Acquisition is structured as a purchase of
equity) or the Surviving Company (if such Permitted Acquisition is
structured as a purchase of assets or a merger) and shall cover
such forecast periods, as Administrative Agent may in its
reasonable discretion require. Borrower shall provide written
notice to Administrative Agent promptly after the closing of each
Small Permitted Acquisition.
13.6. DISPOSAL OF PROPERTY. Sell, transfer, exchange,
lease, or otherwise dispose of any of its assets except (i) sales
of inventory in the ordinary course of business or other sales in
the ordinary course of business as contemplated by Section 6.3.3.1,
(ii) the sale or disposition of obsolete or unused assets, and
(iii) sales or dispositions up to $2,000,000 in the aggregate
during each Fiscal Year unless the net proceeds therefrom are
applied as required by Section 6.3.3.1. Transactions permitted by
Section 13.13 are not subject to this Section.
13.7. STOCK DIVIDENDS; DISTRIBUTIONS/REDEMPTIONS.
13.7.1. While there is an Existing Default or a
Default or Event of Default would reasonably be likely to
result from the making of a Stock Dividend, or while there
is a reasonable likelihood of a change in control of the
Borrower which would not be permitted by this Agreement,
directly or indirectly declare or make, or incur any
liability to make, any Stock Dividend to any Person, other
than from one Covered Person to another.
13.7.2. Make or consummate any Redemption/
Distribution (of the type described in clause (i) of such
definition) of the Borrower's common stock except any
Redemption/ Distribution (of the type described in clause
(i) of such definition) of the Borrower's common stock:
(A) up to $10,000,000 in the aggregate during the term of
this Agreement, and (B) if, at the time of any such
Redemption/Distribution, there is no Existing Default and
no Default or Event of Default would reasonably be likely
to result from the consummation of any such
Redemption/Distribution. Make or consummate any
Redemption/Distribution (of the type described in clauses
(ii) or (iii) of such definition) of any class of the
Borrower's stock or debt securities unless otherwise
expressly permitted by this Agreement.
13.7.3. For purposes of this Section, a Stock
Dividend means any cash dividend or payment to
shareholders. For purposes of this Section, a
43
Redemption/Distribution means and includes, with respect
to a Covered Person, (i) any acquisition or redemption of
any outstanding stock, membership interests or other
equity interest of such Covered Person, (ii) any
retirement or prepayment of debt securities before their
regularly scheduled maturity dates, and (iii) any loan or
advance to a shareholder or partner (other than loans made
to assist in the exercise of Approved Options).
13.8. CHANGE OF CONTROL. (A) (i) With respect to Borrower,
merge or consolidate with or into another Person, except in
connection with a Permitted Acquisition, the Borrower may merge
with a Target Company so long as it is the Surviving Company, and
(ii) with respect to any other Covered Person (other than Borrower,
which is addressed in clause (i)), merge or consolidate with or
into another Person except another Covered Person, and except in
connection with a Permitted Acquisition, a Covered Person (other
than Borrower, which is addressed in clause (i)) may merge with a
Target Company so long as the Surviving Company either is or
becomes a Guarantor; or (B) with respect to Borrower (i) permit any
Person or Group to become the record or beneficial owner, directly
or indirectly, on a fully diluted basis, of securities representing
25% or more of the voting power of Borrower's then outstanding
securities having the power to vote or 25% or more of Borrower's
then outstanding capital stock, or to acquire the power to elect a
majority of the Board of Directors of Borrower, or (ii) permit any
Person or Group other than Borrower to own, directly or indirectly,
any capital stock of Borrower's Subsidiaries (except, with regards
to foreign Subsidiaries, director/officer qualifying shares).
13.9. AMENDMENT TO CHARTER DOCUMENTS. Change its state of
incorporation or formation or otherwise amend, modify, supplement,
restate, replace, or change any of its Charter Documents, except to
the extent such change could not reasonably be expected to
adversely affect Administrative Agent or any Lender.
13.10. CAPITAL STRUCTURE; EQUITY SECURITIES. Make any
change in the capital structure of any Covered Person which has or
is reasonably likely to have a Material Adverse Effect on any
Covered Person; or issue or create any stock, membership interest,
or other equity interest (or class or series thereof), or
non-equity interest that is convertible into stock, membership
interests or other equity interest (or class or series thereof), in
any Covered Person, except stock, membership interests, or other
equity interests (or class or series thereof) that are subordinated
in right of payment to all the Loan Obligations in a manner
satisfactory to Administrative Agent and if Borrower complies with
the other terms and conditions of this Agreement (including,
without limitation, Section 6.3.3.3).
13.11. CHANGE OF BUSINESS. Engage in any business other
than substantially as conducted on the Effective Date.
13.12. CONFLICTING AGREEMENTS. Enter into any agreement,
that would, if fully complied with by it, result in a Default or
Event of Default either immediately or upon the elapsing of time.
13.13. SALE AND LEASEBACK TRANSACTIONS. Except for
transactions up to $8,000,000 in the aggregate during the term
hereof, enter into any agreement or arrangement with any Person
providing for any Covered Person to lease or rent property that
Borrower has or will sell or otherwise transfer to such Person.
13.14. FISCAL YEAR. Change its fiscal year.
44
13.15. TRANSACTIONS HAVING A MATERIAL ADVERSE EFFECT ON
COVERED PERSON. Enter into any transaction which has or is
reasonably likely to have a Material Adverse Effect on any Covered
Person; or enter into any transaction, or take or contemplate
taking any other action, or omit or contemplate omitting to take
any action, which any Responsible Officer knows, or reasonably
should know is likely to cause a Default or Event of Default
hereunder.
13.16. TRANSACTIONS WITH AFFILIATES. Enter into or be a
party to any transaction or arrangement, including the purchase,
sale or exchange of property of any kind or the rendering of any
service, with any Affiliate (other than a Covered Person), or make
any loans or advances to any Affiliate (other than to a Covered
Person and otherwise permitted hereunder), except that each Covered
Person may engage in such transactions in the ordinary course of
business and pursuant to the reasonable requirements of its
business and on fair and reasonable terms substantially as
favorable to it as those which it could obtain in a comparable
arm's-length transaction with a non-Affiliate. No Covered Person
may pay any management or other similar fees to any Affiliate that
is not a Covered Person.
13.17. PREPAYMENT. Make any nonscheduled prepayment on any
Indebtedness (other than the Loan Obligations) if there is an
Existing Default or a Default or Event of Default is reasonably
likely to occur as a result of any such payment.
13.18. BAILMENTS; CONSIGNMENTS; WAREHOUSING. Other than
ordinary course of business storage at customers of no more than
thirty (30) consecutive days for any item of Inventory, store any
Inventory in excess of $250,000 in the aggregate with a bailee,
warehouseman, consignee or pursuant to an express or implied
agreement establishing a bailment or consignment of Inventory or
similar arrangement, unless Administrative Agent has received a
written acknowledgment satisfactory to Administrative Agent from
the third party involved which acknowledges the prior perfected
Security Interest of Administrative Agent for the benefit of
Lenders in such Inventory, provided, however, no landlord consent
shall be required from the landlord of the Hempstead New York
locations (although none of the Borrower's assets located at the
Hempstead New York locations shall be included in the definition of
Asset Coverage). Other than Inventory, store any Collateral in
excess of $250,000 in the aggregate with a bailee, warehouseman,
consignee or pursuant to an express or implied agreement
establishing a bailment or consignment or similar arrangement,
unless Administrative Agent has received a written acknowledgment
satisfactory to Administrative Agent from the third party involved
which acknowledges the prior perfected Security Interest of
Administrative Agent for the benefit of Lenders in such Collateral.
13.19. SUBSIDIARIES. Organize, create or acquire any
Subsidiary unless it is part of a Permitted Acquisition or Borrower
has obtained the prior written consent of Administrative Agent
thereto (which consent shall not be unreasonably withheld) and
contemporaneously with the organization, creation or acquisition of
such Subsidiary, the applicable Covered Person and such Subsidiary
executes and delivers to Administrative Agent for the benefit of
Lenders the following additional documents: an unlimited guaranty
of the Loan Obligations by such Subsidiary, a pledge of the capital
stock or membership interests of such Covered Person in such
Subsidiary, and other Security Documents requested by
Administrative Agent so as to grant Administrative Agent, for the
benefit of the Lenders, a perfected, first priority security
interest in all real and personal property of such Subsidiary.
13.20. DORMANT SUBSIDIARIES. Allow or permit any Dormant
Subsidiary to, and no Dormant Subsidiary shall (i) have or hold any
assets of any kind or nature other than the equity interests of any
other Dormant Subsidiary, and (ii) have or incur any liabilities,
obligations or
45
Indebtedness of any kind other than incidental corporate
maintenance items and incidental franchise tax liabilities related
its corporate existence and other than liabilities under leases
assigned to Healthcare Uniform Company, Inc. and for which
Healthcare Uniform Company, Inc. is primarily liable. Allow or
permit any transfer of any assets or liabilities to any Dormant
Subsidiary.
14. FINANCIAL COVENANTS.
14.1. SPECIAL DEFINITIONS. As used in this Section 14 and
elsewhere herein, the following capitalized terms have the
following meanings:
Asset Coverage means (i) 85% of the total outstanding principal
balance of all of Borrowers' Eligible Accounts, plus (ii) the
----
lesser of (A) 25% of the Book Value of all Eligible Inventory and
(B) Ten Million Dollars ($10,000,000), plus (iii) without
----
duplication (A) 80% of the appraised orderly liquidation value of
all Eligible Equipment (including Eligible Equipment acquired in a
Permitted Acquisition), or (B) with respect to any new Eligible
Equipment acquired after the date of Administrative Agent's most
recent appraisal of Eligible Equipment 80% of the original invoice
cost (excluding soft costs) of such new Eligible Equipment (until
the next appraisal) or (C) with respect to any Eligible Equipment
acquired in a Permitted Acquisition, 80% of the book value of such
Eligible Equipment for a period of up to the earlier to occur of
the date such Eligible Equipment acquired in a Permitted
Acquisition is subject to an appraisal acceptable to Administrative
Agent or 180 days following the closing of the Permitted
Acquisition, plus (iv) 75% multiplied by the net result of (A) the
appraised value of the Real Estate Collateral as such value is
determined by an appraisal acceptable to Administrative Agent,
provided, however, with respect to the Delayed Sites, until the
earlier to occur of January 27, 2006 or the date the requirements
set forth in Section 8.1.10 are met to the reasonable satisfaction
of the Administrative Agent so as to cause the Asset Coverage
covenant set forth in Section 14.5 to be met, the net amount of all
the Delayed Sites for purposes of this clause (iv) shall be deemed
to be $15,181,898, provided further, however, on January 27, 2006
such $15,181,898 amount shall be the appraised value of the Delayed
Sites, if any, meeting the requirements of Section 8.1.10 as
reasonably determined by Administrative Agent, minus (B) $2,975,000
and minus (C) such other amounts as the Administrative Agent may
deem reasonably necessary due to environmental conditions or
perceived environmental conditions at the Delayed Sites. Once (i)
any item of Eligible Equipment is included in "Asset Coverage" the
value of such Eligible Equipment shall be reduced based on a
straight seven (7) year amortization schedule, and (ii) any parcel
of the Real Estate Collateral is included in "Asset Coverage" the
value of such Real Estate Collateral (based on the most recent
appraisal of such Real Estate Collateral prepared by or on behalf
of Administrative Agent) shall be reduced based on a straight
twenty (20) year amortization schedule.
EBITDA means, with respect to any fiscal period of Borrower, the
consolidated Net Income of the Borrower and its Subsidiaries for
such fiscal period, as determined in accordance with GAAP and
reported on the Financial Statements for such period, plus, only to
----
the extent deducted from Net Income in accordance with GAAP (i)
without duplication, the sum of (A) Interest Expense in such
period, (B) income tax expense accrued for in such period, (C)
amortization of goodwill and other intangible assets and
depreciation expense taken or accrued for in such period, (D) any
extraordinary non-cash loss in such period whether incurred or
accrued for, (E) any losses from discontinued operations, and (F)
non-cash charges for the impairment or disposal of long lived
assets, goodwill, and other intangible assets, minus (ii) the sum
-----
of, without duplication, (A) any extraordinary income/gain in such
period whether incurred or accrued for, and (B) any income from
discontinued operations. In addition, for purposes of the
calculations in Sections 4.6, 5.1,
46
14 and the definition of Applicable Margin, the following amounts
will be added to EBITDA: (i) for the Borrower's fiscal quarter
ending on or most recently before April 30, 2005, $478,000, and
(ii) for the Borrower's fiscal quarter ending on or most recently
before July 31, 2005, $2,348,000.
Fixed Charges means, for any period of calculation, the sum of (i)
Interest Expense, (ii) the sum of all scheduled principal payments
on long term Indebtedness of Borrower (including other
interest-bearing Indebtedness and Capital Leases) but excluding
Indebtedness permitted by Section 13.2.7 of this Agreement, (iii)
federal, state and local income taxes paid, (iv) Stock Dividends
and Redemptions/Distributions paid or accrued for, without
duplication, and (v) actual Capital Expenditures not financed with
interest bearing Indebtedness.
Funded Indebtedness means the result of (i) outstanding principal
balance of the Loan Obligations and other Indebtedness for borrowed
money (including, without limitation, the Indebtedness permitted by
Section 13.2.10), plus (ii) the Letter of Credit Exposure, plus
(iii) the initial capitalized cost of assets subject to Capital
Leases at the time of calculation, less (iv) if there is no
Indebtedness outstanding as permitted by Section 13.2.7 of this
Agreement, cash in excess of $500,000, as shown on the balance
sheet for the most recent fiscal quarter ended. The foregoing shall
exclude the outstanding principal amount of the Indebtedness
permitted by Section 13.2.7 of this Agreement.
Interest Expense means for any period of calculation, all interest,
whether paid in cash or accrued as a liability, but without
duplication, on Indebtedness of Borrower during such period,
including, without limitation, on Indebtedness permitted by Section
13.2.7 of this Agreement.
Upon completion of a Permitted Acquisition (except for Small
Permitted Acquisitions), the Target shall be included in each of
these covenants contained in this Section 14 on a pro-forma basis,
including for periods prior to the completion of any such Permitted
Acquisition.
All other capitalized terms used in this Section 14 shall have
their meanings and shall be determined under GAAP. All of the
financial covenants contained in this Section 14 shall be
calculated on a consolidated basis for the Borrower and all of its
Subsidiaries.
14.2. MINIMUM FIXED CHARGE COVERAGE. Borrower shall cause
the ratio of EBITDA for the most recently ended four fiscal
quarters to Fixed Charges for the most recently ended four fiscal
quarters, for the fiscal quarters ended on the dates specified
below, calculated as of the last day of each such fiscal quarter,
to not be less than the ratio specified for such period:
============================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR MINIMUM FIXED CHARGE COVERAGE RATIO
MOST RECENTLY BEFORE THE FOLLOWING DATES:
--------------------------------------------------------------------------------------------
January 31, 2006, April 30, 2006 and July 31, 2006 1.05:1.00
--------------------------------------------------------------------------------------------
October 31, 2006, and each January 31, April 30, 1.15:1.00
July 31 and October 31 thereafter
--------------------------------------------------------------------------------------------
14.3. MAXIMUM RATIO OF FUNDED INDEBTEDNESS TO EBITDA.
Borrower shall cause the ratio of Funded Indebtedness to EBITDA for
the most recently ended four fiscal quarters, for the fiscal
quarters ended on the dates specified below, calculated as of the
last day of each such fiscal quarter, to not be greater than the
ratio specified for such period:
============================================================================================
FOUR FISCAL QUARTER PERIOD ENDED ON OR MAXIMUM RATIO OF FUNDED INDEBTEDNESS
MOST RECENTLY BEFORE THE FOLLOWING DATES: TO EBITDA
--------------------------------------------------------------------------------------------
January 31, 2006, and each April 30, July 31, 4.00:1.00
October 31 and January 31 thereafter through and
including October 31, 2009
--------------------------------------------------------------------------------------------
January 31, 2010, April 30, 2010, July 31, 2010 and 3.50:1.00
October 31, 2010
--------------------------------------------------------------------------------------------
47
14.4. MINIMUM NET WORTH. For each completed fiscal quarter
of Borrower after the date of the Agreement, Borrower's Net Worth
as of the last day of such fiscal quarter shall not be less than
(i) $120,919,582, and (ii) as of any other fiscal quarter end after
October 31, 2005, an amount of not less than the sum of (x) Fifty
Percent (50%) of Net Income during the fiscal quarter then-ended
plus (y) the minimum Net Worth required as of the prior fiscal
quarter after taking into account clause (x) above for such prior
fiscal quarter, which is cumulative from and including the fiscal
quarter ending on or most recently after October 31, 2005, plus (z)
90% of the net proceeds of any issuance of equity or equity
securities in the Borrower issued after the Effective Date. If Net
Income is a negative number for any fiscal quarter (e.g. a loss),
such amount shall not reduce Borrower's Net Worth for that fiscal
quarter, and shall be disregarded for all future Net Worth
calculations so that any such negative number shall not reduce the
minimum Net Worth required hereunder for any subsequent fiscal
quarter.
14.5. ASSET COVERAGE RATIO. Borrower shall cause the ratio
of (A) Asset Coverage to (B) the sum of the outstanding principal
amount of the Loan Obligations and the face amount of the Letters
of Credit, for the most recently ended fiscal month, calculated as
of the last day of each such fiscal month, to not be less than 1.00
to 1.00
15. DEFAULT.
15.1. EVENTS OF DEFAULT. Any one or more of the following
shall constitute an event of default (an Event of Default) under
this Agreement:
15.1.1. FAILURE TO PAY PRINCIPAL OR INTEREST.
Failure of Borrower to pay any principal of the Loans or
interest accrued thereon when due, or failure of Borrower
to pay any of the other Loan Obligations on or within
three (3) days of becoming due.
15.1.2. FAILURE TO PAY AMOUNTS OWED TO OTHER
PERSONS. Failure of any Covered Person (i) to make any
payment due on Indebtedness for borrowed money of such
Covered Person over $500,000 to Persons (other than
Lenders under the Loan Documents), or to make any payment
due on any Capital Lease where the original capitalized
cost of the property subject to any such Capital Lease was
over $500,000, which in either case continues unwaived
beyond any applicable grace period specified in the
documents evidencing such Indebtedness, or (ii) to pay any
other Indebtedness (other than Indebtedness described in
clause (i)) over $500,000 in the aggregate if the holder
of such Indebtedness commences any legal action against
such Covered Person; provided, however, that the foregoing
Events of Default alone described in clauses (i) and (ii)
shall not constitute an Event of Default to the extent
such Indebtedness is being contested in good faith by such
Covered Person and such Covered Person makes adequate
reserves therefor under GAAP.
15.1.3. REPRESENTATIONS OR WARRANTIES. Any of the
Representations and Warranties is discovered to have been
false in any material respect when made.
48
15.1.4. CERTAIN COVENANTS. Failure of any Covered
Person to comply with the covenants in Sections 12.1,
12.4, 12.11, 12.15, 12.28, 13, or 14.
15.1.5. OTHER COVENANTS. Failure of any Covered
Person to comply with of any of the terms or provisions of
the Agreement or any of the other Loan Documents
applicable to it (other than a failure which constitutes
an immediate Event of Default hereunder, or for which some
other grace period is specified in any other Section of
this 15.1) which is not remedied or waived in writing by
Administrative Agent within 20 days after the initial
occurrence of such failure.
15.1.6. ACCELERATION OF OTHER INDEBTEDNESS. Any
Obligation (other than a Loan Obligation) of a Covered
Person for the repayment of $500,000 or more of borrowed
money becomes or is declared to be due and payable or
required to be prepaid (other than by an originally
scheduled prepayment) prior to the original maturity
thereof.
15.1.7. DEFAULT OF OTHER INDEBTEDNESS. The
occurrence of any default or event of default under any
agreement to which a Covered Person is a party (other than
the Loan Documents), which default or event of default
continues unwaived beyond any applicable grace period
provided therein and has or is reasonably likely to have a
Material Adverse Effect.
15.1.8. BANKRUPTCY; INSOLVENCY; ETC. A Covered
Person (i) fails to pay, or admits in writing its
inability to pay, its debts generally as they become due,
or otherwise becomes insolvent (however evidenced); (ii)
makes an assignment for the benefit of creditors; (iii)
files a petition in bankruptcy, is adjudicated insolvent
or bankrupt, petitions or applies to any tribunal for any
receiver or any trustee of such Covered Person or any
substantial part of its property; (iv) commences any
proceeding relating to such Covered Person under any
reorganization, arrangement, readjustment of debt,
dissolution or liquidation Law of any jurisdiction,
whether now or hereafter in effect; (v) has commenced
against it any such proceeding which remains undismissed
for a period of 60 days, or by any act indicates its
consent to, approval of, or acquiescence in any such
proceeding or the appointment of any receiver of or any
trustee for it or of any substantial part of its property,
or allows any such receivership or trusteeship to continue
undischarged for a period of 60 days; or (vi) takes any
action to authorize any of the foregoing.
15.1.9. JUDGMENTS; ATTACHMENT; SETTLEMENT; ETC.
Any one or more judgments or orders is entered against a
Covered Person or any attachment or other levy is made
against the property of a Covered Person with respect to a
claim or claims involving in the aggregate liabilities
(not paid or fully covered by insurance, less the amount
of reasonable deductibles in effect on the Execution Date)
in excess of $500,000 and such judgment or order becomes
final and non-appealable or if timely appealed is not
fully bonded and collection thereof stayed pending the
appeal.
15.1.10. PENSION BENEFIT PLAN TERMINATION, ETC.
Any Pension Benefit Plan termination by the PBGC or the
appointment by the appropriate United States District
Court of a trustee to administer any Pension Benefit Plan
or to liquidate any Pension Benefit Plan; or any event
which constitutes grounds either for the termination of
any Pension Benefit Plan by PBGC or for the appointment by
the appropriate United States District Court of a trustee
to administer or liquidate any Pension Benefit Plan shall
have occurred and be continuing for thirty (30) days after
Borrower has notice of any such event; or any voluntary
termination of any Pension Benefit Plan which is a DEFINED
49
BENEFIT PENSION PLAN as defined in Section 3(35) of ERISA
while such defined benefit pension plan has an ACCUMULATED
FUNDING DEFICIENCY, unless Administrative Agent has been
notified of such intent to voluntarily terminate such plan
and Required Lenders have given their consent and agreed
that such event shall not constitute a Default; or the
plan administrator of any Pension Benefit Plan applies
under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(1) of the Code
and Required Lenders determine that the substantial
business hardship upon which the application for such
waiver is based could subject any Covered Person or ERISA
Affiliate of any Covered Person to a liability in excess
of $500,000 which is not reserved for in accordance with
GAAP.
15.1.11. LIQUIDATION OR DISSOLUTION. A Covered
Person files a certificate of dissolution under applicable
state Law or is liquidated or dissolved or suspends or
terminates the operation of its business, or has commenced
against it any action or proceeding for its liquidation or
dissolution or the winding up of its business, or takes
any corporate action in furtherance thereof, except in
connection with the consolidation of such a Covered Person
and its assets with another Covered Person and its assets.
15.1.12. SEIZURE OF ASSETS. All or any material
part of the property of any Covered Person is
nationalized, expropriated, seized or otherwise
appropriated, or custody or control of such property or of
any Covered Person shall be assumed by any Governmental
Authority or any court of competent jurisdiction at the
instance of any Governmental Authority, unless the same is
being contested in good faith by proper proceedings
diligently pursued and a stay of enforcement is in effect.
15.1.13. RACKETEERING PROCEEDING. There is filed
against any Covered Person any civil or criminal action,
suit or proceeding under any federal or state racketeering
statute (including, without limitation, the Racketeer
Influenced and Corrupt Organization Act of 1970), which
action, suit or proceeding is not dismissed within 60 days
and could result in the confiscation or forfeiture of any
material portion of its assets.
15.1.14. LOSS TO ASSETS. Any loss, theft, damage
or destruction of any item or items of its assets occurs
which either (i) has or is reasonably likely to have a
Material Adverse Effect on any other Covered Person or
(ii) materially and adversely affects the operation of
Borrower's business and is not covered by insurance as
required herein.
15.1.15. GUARANTY; GUARANTOR. Any Guaranty ceases
to be in full force and effect or any action is taken to
discontinue or assert the invalidity or unenforceability
of any Guaranty or any Guarantor fails to comply with any
of the terms or provisions of any Guaranty, or any
representation or warranty of any Guarantor therein is
false, or any Guarantor denies that it has any further
liability under any Guaranty or gives notice to Lender to
such effect. Failure of any Subsidiary of Borrower (other
than the Dormant Subsidiaries) to have guarantied all of
the Loan Obligations, or the failure of any Subsidiary of
Borrower (other than the Dormant Subsidiaries) to have
granted a lien and Security Interest on all of its
personal property and such of its real property as is
required by Administrative Agent in favor of
Administrative Agent.
15.1.16. LOAN DOCUMENTS; SECURITY INTERESTS. For
any reason other than the failure of Administrative Agent
to take any action available to it to maintain perfection
of the Security Interests created in favor of
Administrative Agent for the benefit of Lenders pursuant
to the Loan Documents, any Loan Document ceases to be in
full force and effect or any Security Interest with
respect to any portion of the Collateral intended to be
50
secured thereby ceases to be, or is not, valid, perfected
and prior to all other Security Interests (other than the
Permitted Security Interests) or is terminated, revoked or
declared void or invalid.
15.1.17. LOSS TO COLLATERAL. Any loss, theft,
damage or destruction of any item or items of Collateral
occurs which either (i) has or is reasonably likely to
have a Material Adverse Effect or (ii) materially and
adversely affects the operation of Borrower's and the
Covered Person's business and is not covered by insurance
as required herein.
15.2. CROSS DEFAULT. An Event of Default under this
Agreement will automatically and immediately constitute a default
under all other Loan Documents without regard to any requirement
therein for the giving of notice or the passing of time.
15.3. RIGHTS AND REMEDIES.
15.3.1. TERMINATION OF COMMITMENTS. Upon an Event
of Default described in Section 15.1.8, the Commitments
shall be deemed canceled. Upon any other Event of Default,
and at any time thereafter, Required Lenders may cancel
the Commitments. Such cancellation may be, in either case,
without presentment, demand or notice of any kind, which
Borrower expressly waives.
15.3.2. ACCELERATION. Upon an Event of Default
described in Section 15.1.8, all of the outstanding Loan
Obligations shall automatically become immediately due and
payable. Upon any other Event of Default, and at any time
thereafter, Required Lenders may declare all of the
outstanding Loan Obligations immediately due and payable.
Such acceleration may be, in either case, without
presentment, demand or notice of any kind, which Borrower
expressly waives.
15.3.3. RIGHT OF SETOFF. Upon the occurrence and
during the continuation of an Event of Default, each
Lender is hereby authorized, without notice to Borrower or
any other Covered Person (any such notice being expressly
waived by Borrower and each other Covered Person), to the
fullest extent permitted by law, to set off and apply
against the Loan Obligations or Guarantied Obligations
(used as such term is defined in each of the Guaranties)
any and all deposits (general or special, time or demand,
provisional or final) at any time held, or any other
Indebtedness at any time owing by such Lender (or its
Affiliate) to or for the credit or the account of Borrower
or such other Covered Person, irrespective of whether or
not such Lender shall have made any demand under this
Agreement or the Notes or any Guaranty and although such
Loan Obligations or Guarantied Obligations may be
unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such
Lender may otherwise have. All amounts received by each
Lender on account of the Loan Obligations or Guarantied
Obligations pursuant to this Section shall be paid over
promptly to Administrative Agent for distribution to
Lenders as provided in this Agreement and shall be applied
as provided in this Agreement.
15.3.4. RIGHTS GENERALLY. Upon the occurrence and
during the continuation of an Event of Default and
acceleration of the Loan Obligations as provided herein,
and at any time and from time to time thereafter,
Administrative Agent and Lenders may exercise any or all
of its rights they may have under the Loan Documents or
otherwise available in equity or under any other
applicable Law.
51
15.3.5. JOINT AND SEVERAL. Each Obligation and
liability to the Letter of Credit Issuer, Administrative
Agent and each Lender of Borrower and Guarantors,
including, without limitation, the Loan Obligations, are
the joint and several obligations of Borrower and
Guarantors, and Administrative Agent may proceed directly
against Borrower, any Guarantor, all of the foregoing, or
any one of the foregoing or any combination of the
foregoing, without first proceeding against Borrower, or
without joining all Persons liable or potentially liable
for any portion of the Loan Obligations in one action.
15.3.6. NOTICE TO ACCOUNT DEBTORS. Upon the
occurrence and during the continuance of any Event of
Default, Administrative Agent may or if the Required
Lenders direct, without prior notice to Borrower, notify
any or all Account Debtors that the Accounts have been
assigned to Administrative Agent for the benefit of
Lenders and that Administrative Agent has a Security
Interest therein for the benefit of Lenders, and
Administrative Agent may direct, or Borrower, at
Administrative Agent's request, shall direct and cause
each Covered Person, any or all Account Debtors to make
all payments upon the Accounts directly to Administrative
Agent for the benefit of Lenders.
15.3.7. ENTRY UPON PREMISES AND ACCESS TO
INFORMATION. Upon the occurrence and during the
continuance of any Event of Default, and at any time
thereafter: Administrative Agent may (i) enter upon each
of the premises leased or owned by Borrower or any other
Covered Person where Collateral is located (or is believed
to be located) without any obligation to pay rent to
Borrower or any other Covered Person, or any other place
or places where Collateral is believed to be located, (ii)
render Collateral usable or saleable, (iii) remove
Collateral therefrom to the premises of Administrative
Agent or any agent of Administrative Agent for such time
as Administrative Agent may desire in order effectively to
collect or liquidate Collateral, (iv) take possession of,
and make copies and abstracts of, Borrower's and each
Covered Person's original books and records, obtain access
to Borrower's and each other Covered Person's data
processing equipment, computer hardware and software
relating to any of the Collateral and use all of the
foregoing and the information contained therein in any
manner Administrative Agent deems appropriate in
connection with the exercise of Administrative Agent's
rights, and (v) notify postal authorities to change the
address for delivery of Borrower's and each Covered
Person's mail to an address designated by Administrative
Agent and to receive, open and process all mail addressed
to Borrower and each Covered Person.
15.3.8. COMPLETION OF UNCOMPLETED INVENTORY
ITEMS. Upon the occurrence and during the continuance of
any Event of Default, Administrative Agent may request
that Borrower, and Borrower shall and shall cause each
other Covered Person upon such request, to use its best
efforts to obtain the consent of its and any other Covered
Person's customers to the completion (before or after
foreclosure by Administrative Agent of its security
interest therein) of the processing and/or shipping of all
uncompleted Inventory items that Borrower or any other
Covered Person was processing and/or shipping for such
customers pursuant to contracts or accepted purchase
orders, and the commitment by such customers to purchase
such items upon their completion as provided in the
relevant contracts or accepted purchase orders. Borrower
and each other Covered Person shall, as an uncompensated
agent for Lenders, complete or cause to be completed the
processing and/or shipping of all such items as provided
in the relevant contracts or accepted purchase orders if
Administrative Agent so directs.
52
15.3.9. BORROWER'S OBLIGATIONS. Upon the
occurrence and during the continuance of any Event of
Default, Borrower shall and shall cause each other Covered
Person to, if Administrative Agent so requests, assemble
all the movable tangible Collateral and make it available
to Administrative Agent at a place or places to be
designated by Administrative Agent in its discretion.
15.3.10. MISCELLANEOUS. Upon the occurrence and
during the continuance of any Event of Default,
Administrative Agent and/or the Lenders may exercise any
other rights and remedies available to Administrative
Agent and/or the Lenders under the Loan Documents or
otherwise available to Administrative Agent and/or the
Lenders at law or in equity.
15.3.11. SECURED PARTY RIGHTS. Upon the
occurrence and during the continuance of any Event of
Default:
15.3.11.1. Administrative Agent and/or
the Lenders may exercise any or all of its rights
under the Security Documents as a secured party
under the UCC and any other applicable Law; and
15.3.11.2. Administrative Agent may sell
or otherwise dispose of any or all of the
Collateral at public or private sale in a
commercially reasonable manner, which sale
Administrative Agent may postpone from time to
time by announcement at the time and place of
sale stated in the notice of sale or by
announcement at any adjourned sale without being
required to give a new notice of sale, all as
Administrative Agent deems advisable, for cash or
credit. Administrative Agent or any Lender may
become the purchaser at any such sale if
permissible under applicable Law, and
Administrative Agent or such Lender may, in lieu
of actual payment of the purchase price, setoff
the amount thereof against Borrower's obligations
owing to Administrative Agent or Lender, and
Borrower agrees that Administrative Agent or such
Lender has no obligation to preserve rights to
Collateral against prior parties or to marshal
any Collateral for the benefit of any Person.
In connection with the advertising for sale, further
processing, shipping, selling, or otherwise realizing upon
any of the Collateral, to the extent Administrative Agent
has not foreclosed upon its Security Interest in the
following, Administrative Agent may use and is hereby
granted a license to use, without charge or liability to
Administrative Agent or Lenders therefor, any of
Borrower's or any other Covered Person's labels, trade
names, trademarks, trade secrets, service marks, patents,
patent applications, licenses, certificates of authority,
advertising materials, or any of Borrower's or any other
Covered Person's other properties or interests in
properties of similar nature, to the extent that such use
thereof is not prohibited by agreements under which
Borrower or such other Covered Person has rights therein,
and all of Borrower's and each other Covered Person's
rights under license, franchise and similar agreements
shall inure to Lenders' benefit.
15.4. APPLICATION OF FUNDS. Any funds received by Lenders
or Administrative Agent for the benefit of Lenders with respect to
any Loan Obligation after its Maturity, including proceeds of
Collateral, shall be applied as follows: (i) first, to reimburse
Lenders pro-rata for any amounts due to Lenders under Section 18.8;
(ii) second, to reimburse to Administrative Agent all unreimbursed
costs and expenses paid or incurred by Administrative Agent that
are payable or reimbursable by Borrower hereunder; (iii) third, to
reimburse to Lenders pro-rata all unreimbursed costs and expenses
paid or incurred by Lenders (including costs and expenses
53
incurred by Administrative Agent as a Lender that are not
reimbursable as provided in the preceding clause) that are payable
or reimbursable by Borrower hereunder; (iv) fourth, to the payment
of accrued and unpaid fees due hereunder and all other amounts due
hereunder (other than the Loans and interest accrued thereon); (v)
fifth, to the payment of the Loans of each of the Lenders and
interest accrued thereon (which payments shall be pro rata to each
of the Lenders in accordance with the amount of the Loans
outstanding) and to the payment (pari passu with the foregoing) of
any Rate Hedging Obligations and cash collateral to the Letter of
Credit Issuer as collateral for the Letter of Credit Exposure; and
(vi) sixth, to the payment of the other Loan Obligations. Any
remaining amounts shall be applied to payment of all the
Obligations to Administrative Agent. Any further remaining amounts
shall be paid to Borrower or such other Persons as shall be legally
entitled thereto. Except as expressly provided otherwise herein,
Lenders may apply and reverse and reapply, payments and proceeds of
the Collateral to the Loan Obligations in such order and manner as
Lenders determine in their absolute discretion.
15.5. LIMITATION OF LIABILITY; WAIVER; NOTICE.
Administrative Agent and Lenders shall not be liable to Borrower as
a result of any commercially reasonable possession, repossession,
collection or sale by Administrative Agent of Collateral; and
Borrower hereby waives all rights of redemption from any such sale
and the benefit of all valuation, appraisal and exemption Laws. If
Administrative Agent seeks to take possession of any of the
Collateral by replevin or other court process, Borrower hereby
irrevocably waives (i) the posting of any bonds, surety and
security relating thereto required by any statute, court rule or
otherwise as an incident to such possession, (ii) any demand for
possession of the Collateral prior to the commencement of any suit
or action to recover possession thereof, (iii) any requirement that
Administrative Agent retain possession and not dispose of any
Collateral until after trial or final judgment, and (iv) to the
extent permitted by applicable Law, all rights to notice and
hearing prior to the exercise by Administrative Agent of
Administrative Agent's right to repossess the Collateral without
judicial process or to replevy, attach or levy upon the Collateral
without notice or hearing. Administrative Agent shall have no
obligation to preserve rights to the Collateral or to ▇▇▇▇▇▇▇▇ any
Collateral for the benefit of any Person. Any notice of intended
action required to be given by Administrative Agent (including
notice of a public or private sale of Collateral), if given as
provided in this Agreement at least 10 days prior to such proposed
action, shall be effective and constitute reasonable and fair
notice to Borrower.
16. ADMINISTRATIVE AGENT AND LENDERS.
16.1. APPOINTMENT, POWERS, AND IMMUNITIES. LaSalle is
hereby appointed Administrative Agent hereunder and under each of
the other Loan Documents. Each Lender hereby irrevocably appoints
and authorizes Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and
discretion as are specifically delegated to Administrative Agent by
the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto.
Administrative Agent (which term as used in this sentence and in
Section 16.5 and the first sentence of Section 16.6 hereof shall
include its affiliates and its own and its affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement
and shall not be a trustee or fiduciary for any Lender; (b) shall
not be responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any
Loan Document, or any other document referred to or provided for
therein or for any failure by any Covered Person or any other
Person to perform any of its obligations thereunder or the validity
or priority
54
of any Security Interest in any Collateral or the sufficiency or
value of any Collateral; (c) shall not be responsible for or have
any duty to ascertain, inquire into, or verify the performance or
observance of any covenants or agreements by any Covered Person or
the satisfaction of any condition or to inspect the property
(including the books and records) of any Covered Person or any of
its Subsidiaries or affiliates; (d) shall not be required to
initiate or conduct any litigation or collection proceedings under
any Loan Document; and (e) shall not be responsible for any action
taken or omitted to be taken by it under or in connection with any
Loan Document, except for its own gross negligence or willful
misconduct. Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care.
16.2. RELIANCE BY ADMINISTRATIVE AGENT. Administrative
Agent shall be entitled to rely upon any certification, notice,
instrument, writing, or other communication (including, without
limitation, any thereof by telephone or telecopy) believed by it to
be genuine and correct and to have been signed, sent or made by or
on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Covered
Person), independent accountants, and other experts selected by
Administrative Agent. Administrative Agent may deem and treat the
payee of any Note as the holder thereof for all purposes hereof
unless and until Administrative Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 18.4
hereof. As to any matters not expressly provided for by this
Agreement, Administrative Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting
or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that Administrative Agent shall not be
required to take any action that exposes Administrative Agent to
personal liability or that is contrary to any Loan Document or
applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such
action.
16.3. EMPLOYMENT OF AGENTS AND COUNSEL. Administrative
Agent may execute any of its duties hereunder by or through
employees, agents, and attorneys-in-fact and shall not be liable to
any Lender, except with respect to money or securities received by
it or such agents or attorneys-in-fact, for the default or
misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Administrative Agent shall be entitled to
advice of counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder and shall not be liable to
any Lender for acting or failing to act based as advised by such
counsel, except where doing so violates an express obligation of
Administrative Agent under the Loan Documents.
16.4. DEFAULTS. Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default or Event
of Default unless Administrative Agent has received written notice
from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a Notice of Default. In the
event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent
shall give notice thereof to the Lenders. Administrative Agent
shall (subject to Section 16.2 hereof) take such action with
respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders, provided that, unless and until
Administrative Agent shall have received such directions,
Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best
interest of the Lenders.
55
16.5. RIGHTS AS LENDER. With respect to its Commitment and
the Loans made by it, LaSalle (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not acting as
Administrative Agent, and the term Lender or Lenders shall, unless
the context otherwise indicates, include Administrative Agent in
its individual capacity. LaSalle (and any successor acting as
Administrative Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money
to, make investments in, provide services to, and generally engage
in any kind of lending, trust, or other business with any Covered
Person or any of its Subsidiaries or Affiliates as if it were not
acting as Administrative Agent, and LaSalle (and any successor
acting as Administrative Agent) and its Affiliates may accept fees
and other consideration from any Covered Person or any of its
Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to
Lenders. The Lenders acknowledge that, pursuant to such activities,
Administrative Agent or its Affiliates may receive information
regarding Borrower or its Affiliates (including information that
may be subject to confidentiality obligations in favor of Borrower
or such Affiliates) and acknowledge that Administrative Agent shall
be under no obligation to provide such information to the Lenders.
16.6. INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, Lenders agree to reimburse and
indemnify Administrative Agent upon demand (to the extent not
reimbursed under Section 18.7, but without limiting the obligations
of Borrower under Section 18.7) ratably in accordance with their
respective Commitments, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against Administrative Agent (including by any
Lender) in any way relating to or arising out of any Loan Document
or the transactions contemplated thereby or any action taken or
omitted by Administrative Agent under any Loan Document; provided
that no Lender shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct
of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse Administrative Agent
promptly upon demand for its ratable share of any costs or expenses
payable by Borrower under Section 18.7, to the extent that
Administrative Agent is not promptly reimbursed for such costs and
expenses by Borrower. The agreements contained in this Section
shall survive payment in full of the Loans and all other amounts
payable under this Agreement.
16.7. NOTIFICATION OF LENDERS. Each Lender agrees to use
its good faith efforts, upon becoming aware of anything which has
or is reasonably likely to have a Material Adverse Effect on any
Covered Person, to promptly notify Administrative Agent thereof.
Administrative Agent shall promptly deliver to each Lender copies
of every written notice, demand, report (including any financial
report), or other writing which Administrative Agent gives to or
receives from Borrower and which itself (a) constitutes, or which
contains information about, something that has or is reasonably
likely to have a Material Adverse Effect on any Covered Person, or
(b) is otherwise delivered to Administrative Agent by Borrower
pursuant to the Loan Documents and is deemed material information
by Administrative Agent in its sole discretion. Administrative
Agent and its directors, officers, agents, and employees shall have
no liability to any Lender for failure to deliver any such item to
such Lender unless the failure constitutes gross negligence or
willful misconduct.
16.8. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
acknowledges that Administrative Agent has not made any
representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any review of the
affairs of Borrower and its
56
Affiliates, shall be deemed to constitute any representation or
warranty by Administrative Agent to any Lender. Each Lender agrees
that it has, independently and without reliance on Administrative
Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Covered Persons and their Subsidiaries and decision
to enter into this Agreement and that it will, independently and
without reliance upon Administrative Agent or any other Lender, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents.
Except for notices, reports, and other documents and information
expressly required to be furnished to Lenders by Administrative
Agent hereunder, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or
business of any Covered Person or any of its Subsidiaries or
Affiliates that may come into the possession of Administrative
Agent or any of its Affiliates.
16.9. RESIGNATION. Administrative Agent may resign at any
time by giving notice thereof to the Lenders and Borrower. Upon any
such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent which appointment shall be
subject to the consent (which consent will not be unreasonably
withheld or delayed) of Borrower so long as there is no Existing
Default. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of
America having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor, such successor shall
thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. If no successor has
accepted appointment as Administrative Agent within thirty (30)
days after the date on which Administrative Agent first attempts to
appoint a successor Administrative Agent, the resigning
Administrative Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor which accepts such
appointment. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section
16.9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
16.10. COLLECTIONS AND DISTRIBUTIONS TO LENDERS BY
ADMINISTRATIVE AGENT. Except as otherwise provided in this
Agreement, all payments of interest, fees, principal and other
amounts received by Administrative Agent for the account of Lenders
shall be distributed by Administrative Agent to Lenders in
accordance with their pro-rata shares of the outstanding Loan
Obligations at the time of such distribution (or entirely to
Administrative Agent in the case of payments of interest, fees or
principal with respect to the Swingline Loan) on the same Business
Day when received, unless received after 12:00 noon (Local Time) in
which case they shall be so distributed by 12:00 noon (Local Time)
on the next Business Day. All amounts received by any Lender on
account of the Loan Obligations, including amounts received by way
of setoff, shall be paid over promptly to Administrative Agent for
distribution to Lenders as provided above in this Section. Such
distributions shall be made according to instructions that each
Lender may give to Administrative Agent from time to time. Unless
there is an Existing Default (in which case the Lenders may apply
payments as they determine in their discretion), and except for
mandatory prepayments described in Section 6.3.3 and unless
otherwise directed by Borrower, payments
57
received shall be applied (after application to the Swingline Loan
to reduce it to zero), first to reduce any Base Rate Loans included
in the Aggregate Revolving Loan owing to each Lender, and then to
any LIBOR Loans included in the Aggregate Revolving Loan owing to
each Lender.
17. CHANGE IN CIRCUMSTANCES.
17.1. COMPENSATION FOR INCREASED COSTS AND REDUCED
RETURNS.
17.1.1. LAW CHANGES OR TAX IMPOSITIONS. If, after
the Effective Date, the adoption of any applicable Law or
any change in any applicable Law or any change in the
interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any
such Governmental Authority, central bank, or comparable
agency:
17.1.1.1. subjects such Lender (or its
Applicable Lending Office) to any Tax with
respect to any LIBOR Loans or its obligation to
make LIBOR Loans, or change the basis of taxation
of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement
in respect of any LIBOR Loans (other than Taxes
imposed on the overall net income of such Lender
by the jurisdiction in which such Lender has its
principal office or such Applicable Lending
Office);
17.1.1.2. imposes, modifies, or deems
applicable any reserve, special deposit,
assessment or similar requirement (other than the
reserve requirement utilized in the determination
of the LIBOR Rate) relating to any extensions of
credit or other assets of, or any deposits with
or other liabilities or commitments of, such
Lender (or its Applicable Lending Office),
including the Commitment of such Lender
hereunder; or
17.1.1.3. imposes on such Lender (or its
Applicable Lending Office) or on the United
States market for certificates of deposit or the
London Interbank market any other condition
affecting this Agreement, its Commitments or its
Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the
cost to such Lender (or its Applicable Lending Office) of
making, converting into, continuing, or maintaining any
Loans or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under this
Agreement or any of its Notes with respect to any Loans,
then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests
compensation by Borrower under this Section 17.1.1,
Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such
Lender to make or continue Loans of the type with respect
to which such compensation is requested, or to convert
Loans of any other type into Loans of such type, until the
event or condition giving rise to such request ceases to
be in effect (in which case the provisions of Section 17.5
shall be applicable); provided, however, that such
suspension shall not affect the right of such Lender to
receive the compensation so requested.
17.1.2. CAPITAL ADEQUACY. If, after the Effective
Date, any Lender shall have determined that the adoption
of any applicable Law regarding capital adequacy or any
change therein or in the interpretation or administration
thereof by any governmental
58
authority, central bank, or comparable agency charged with
the interpretation or administration thereof, or any
request or directive regarding capital adequacy (whether
or not having the force of law) of any such governmental
authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender's obligations
hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration
its policies with respect to capital adequacy), then from
time to time upon demand Borrower shall pay to such Lender
such additional amount or amounts as will compensate such
Lender for such reduction.
17.1.3. NOTICE TO BORROWER. Each Lender shall
promptly notify Borrower and Administrative Agent of any
event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation
pursuant to this Section 17.1 and will designate a
different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 17.1 shall furnish to
Borrower and Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender
may use any reasonable averaging and attribution methods.
17.2. MARKET FAILURE. If on or prior to the first day of
any Interest Period for any LIBOR Loan:
17.2.1. Administrative Agent determines (which
determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR
Rate for such Interest Period; or
17.2.2. the Required Lenders determine (which
determination shall be conclusive) and notify
Administrative Agent that the LIBOR Rate will not
adequately and fairly reflect the cost to the Lenders of
funding LIBOR Loans for such Interest Period;
then Administrative Agent shall give Borrower prompt notice
thereof, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional LIBOR
Loans, continue LIBOR Loans, or to convert LIBOR Loans and Borrower
shall, on the last day(s) of the then current Interest Period(s)
for the outstanding LIBOR Loans either prepay such Loans or convert
such Loans into Base Rate Loans in accordance with the terms of
this Agreement.
17.3. ILLEGALITY. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to make, maintain, or fund
LIBOR Loans hereunder, then such Lender shall promptly notify
Borrower thereof and such Lender's obligation to make, continue
LIBOR Loans or convert Base Rate Loans into LIBOR Loans shall be
suspended until such time as such Lender may again make, maintain,
and fund LIBOR Loans (in which case the provisions of Section 17.5
shall be applicable).
17.4. COMPENSATION. Upon the request of any Lender,
Borrower shall pay to such Lender such amount or amounts as shall
be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
59
17.4.1. any payment, prepayment, or conversion of
a LIBOR Loan for any reason (including, without
limitation, the acceleration of the Loans pursuant to the
terms hereof) on a date other than the last day of the
Interest Period for such LIBOR Loan; or
17.4.2. any failure by Borrower for any reason to
borrow, convert, continue, or prepay a LIBOR Loan on the
date for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this
Agreement.
If a Lender claims compensation under this Section 17.4, such
Lender shall furnish a certificate to Borrower that states the
amount to be paid to it hereunder and includes a description of the
method used by such Lender in calculating such amount. Borrower
shall have the burden of proving that the amount of any such
compensation calculated by a Lender is not correct. Any
compensation payable by Borrower to a Lender under this Section
17.4 shall be payable without regard to whether such Lender has
funded its pro-rata share of any LIBOR Advance or LIBOR Loan
through the purchase of deposits in an amount or of a maturity
corresponding to the deposits used as a reference in determining
the LIBOR Rate.
17.5. TREATMENT OF AFFECTED LOANS. If the obligation of
any Lender to make a LIBOR Loan or to continue any LIBOR Loans, or
to convert any Base Rate Loan into a LIBOR Loan shall be suspended
pursuant to Section 17.1, 17.2, or 17.3 (such Loans being herein
called Affected Loans), such Lender's Affected Loans shall be
automatically and immediately converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for Affected
Loans (or, in the case of a conversion required by Section 17.3, on
such earlier date as such Lender may specify to Borrower with a
copy to Administrative Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified in
Section 17.1, 17.2, or 17.3 that gave rise to such conversion no
longer exist:
17.5.1. to the extent that such Lender's Affected
Loans have been so converted, all payments and prepayments
of principal that would otherwise be applied to such
Lender's Affected Loans shall continue to be made and
applied as provided for herein; and
17.5.2. all Loans that would otherwise be made or
continued by such Lender as LIBOR Loans shall be made or
continued instead as Base Rate Loans, and all Loans of
such Lender that would otherwise be converted into LIBOR
Loans shall be converted instead into (or shall remain as)
Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to
Administrative Agent) that the circumstances specified in Section
17.1, 17.2, or 17.3 hereof that gave rise to the conversion of such
Lender's Affected Loans pursuant to this Section 17.5 no longer
exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the type of
the Affected Loans made by other Lenders are outstanding, such
Lender's Base Rate Loans shall be automatically converted, on the
first day(s) of the next succeeding Interest Period(s) for such
outstanding Loans of the type of the Affected Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Loans of the type of the Affected Loans and by
such Lender are held pro rata (as to principal amounts, type of
interest, and Interest Periods) in accordance with their respective
Commitments.
17.6. TAXES.
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17.6.1. GROSS-UP. Any and all payments by
Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any other Loan
Document shall be made free and clear of and without
deduction for any and all Taxes, whether imposed now or in
the future, excluding, in the case of each Lender and the
Administrative Agent, Taxes imposed on its income, and
franchise Taxes imposed on it, by the jurisdiction under
the Laws of which such Lender (or its Applicable Lending
Office) or the Administrative Agent (as the case may be)
is organized or any political subdivision thereof. If
Borrower is required by Law to deduct any Taxes from or in
respect of any sum payable under this Agreement or any
other Loan Document to any Lender or the Administrative
Agent, (i) the sum payable will be increased as necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under
this Section 17.6) such Lender or the Administrative Agent
receives an amount equal to the sum it would have received
had no such deductions been made, (ii) Borrower shall make
such deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable Law, and (iv)
Borrower shall furnish to Administrative Agent, at its
address referred to herein, the original or a certified
copy of a receipt evidencing payment thereof (and
Administrative Agent shall use its reasonable efforts to
deliver promptly copy of such receipt to each Lender). In
addition, Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise
from any payment made under this Agreement or any other
Loan Document or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other
Loan Document (hereinafter referred to as Impositions).
Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and
Impositions (including, without limitation, any Taxes or
Impositions imposed or asserted by any jurisdiction on
amounts payable under this Section 17.6) paid by such
Lender or the Administrative Agent (as the case may be)
and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
Within 30 days after the date of any payment of Taxes,
Borrower shall furnish to Administrative Agent the
original or a certified copy of the receipt evidencing
such payment (and Administrative Agent shall use its
reasonable efforts to deliver promptly copy of such
receipt to each Lender).
17.6.2. LENDERS' UNDERTAKINGS.
17.6.2.1. Each Lender organized under
the Laws of a jurisdiction outside the United
States, on or prior to the date of its execution
and delivery of this Agreement in the case of
each Lender listed on the signature pages hereof
and on or prior to the date on which it becomes a
Lender in the case of each other Lender, and from
time to time thereafter if requested in writing
by Borrower or Administrative Agent (but only so
long as such Lender remains lawfully able to do
so), shall provide Borrower and Administrative
Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to
benefits under an income tax treaty to which the
United States is a party which reduces the rate
of withholding Tax on payments of interest or
certifying that the income receivable pursuant to
this Agreement is effectively connected with the
conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or
W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and
(iii) any other form or certificate required by
any Governmental Authority (including any
certificate required by Sections 871(h)
61
and 881(c) of the Internal Revenue Code), certifying
that such Lender is entitled to an exemption from
or a reduced rate of Tax on payments pursuant to
this Agreement or any of the other Loan
Documents. For any period with respect to which a
Lender has failed to provide Borrower and
Administrative Agent with the appropriate form
pursuant to this Section 17.6.2 (unless such
failure is due to a change in treaty or Law
occurring subsequent to the date on which a form
originally was required to be provided), such
Lender shall not be entitled to indemnification
under Section 17.6.1 with respect to Taxes
imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding
tax, become subject to Taxes because of its
failure to deliver a form required hereunder,
Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to
recover such Taxes.
17.6.2.2. If Borrower is required to pay
additional amounts to or for the account of any
Lender or Administrative Agent pursuant to
Section 17.1, then such Lender or the
Administrative Agent will agree to use reasonable
efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or
reduce any such additional payment which may
thereafter accrue if such change, in the judgment
of such Lender or the Administrative Agent, as
the case may be, is not otherwise disadvantageous
to such Lender or the Administrative Agent, as
the case may be.
17.6.3. SURVIVAL OF BORROWER'S OBLIGATIONS.
Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements and obligations of
Borrower contained in this Section 17.6 shall survive the
termination of the Commitments, the expiration of the
Letters of Credit, the indefeasible full payment and
satisfaction of all of the Loan Obligations.
17.7. USURY. Notwithstanding any provisions to the
contrary in Section 4 or elsewhere in any of the Loan Documents,
Borrower shall not be obligated to pay interest at a rate which
exceeds the maximum rate permitted by Law. If, but for this Section
17.7, Borrower would be deemed obligated to pay interest at a rate
which exceeds the maximum rate permitted by Law, or if any of the
Loan Obligations is paid or becomes payable before its originally
scheduled Maturity and as a result Borrower has paid or would be
obligated to pay interest at such an excessive rate, then (i)
Borrower shall not be obligated to pay interest to the extent it
exceeds the interest that would be payable at the maximum rate
permitted by Law; (ii) if the outstanding Loan Obligations have not
been accelerated as provided in Section 15.3.2, any such excess
interest that has been paid by Borrower shall be refunded; (iii) if
the outstanding Loan Obligations have been accelerated as provided
in Section 15.3.2, any such excess that has been paid by Borrower
shall be applied to the Loan Obligations as provided in Section
15.4; and (iv) the effective rate of interest shall be deemed
automatically reduced to the maximum rate permitted by Law.
18. GENERAL.
18.1. LENDERS' RIGHT TO CURE. Administrative Agent may,
and Required Lenders may, from time to time, in their absolute
discretion, for Borrower's account and at Borrower's expense, make
a Revolving Loan Advance in any amount, or do any act required of
Borrower hereunder or requested by Administrative Agent or Required
Lenders to preserve, protect, maintain or enforce the Loan
Obligations, the Collateral or Administrative Agent's Security
Interests therein for the benefit of Lenders, which Borrower is
required to pay or do, but fails to
62
pay or do, including payment of any judgment against Borrower,
insurance premium, taxes or assessments, warehouse charge,
finishing or processing charge, landlord's claim, and any other
Security Interest upon or with respect to the Collateral or any of
its other assets. All payments that Administrative Agent or Lenders
make pursuant to this Section and all out-of-pocket costs and
expenses that Administrative Agent or Lenders pay or incur in
connection with any action taken by them hereunder shall be a part
of the Loan Obligations. Any payment made or other action taken by
Administrative Agent or Lenders pursuant to this Section shall be
without prejudice to any right to assert an Event of Default
hereunder and to pursue Administrative Agent or Lenders' other
rights and remedies with respect thereto. All payments that Lenders
make pursuant to this Section and all out-of-pocket costs and
expenses that Administrative Agent or Lenders pay or incur in
connection with any action taken by them hereunder shall be a part
of the Loan Obligations, the repayment of which shall be secured by
the Collateral.
18.2. RIGHTS NOT EXCLUSIVE. Every right granted to
Administrative Agent and Lenders hereunder or under any other Loan
Document or allowed to it at law or in equity shall be deemed
cumulative and may be exercised from time to time.
18.3. SURVIVAL OF AGREEMENTS. All covenants and agreements
made herein and in the other Loan Documents shall survive the
execution and delivery of this Agreement, the Notes and other Loan
Documents and the making of every Advance. All agreements,
obligations and liabilities of Borrower under this Agreement
concerning the payment of money to Administrative Agent and
Lenders, including Borrower's obligations under Sections 18.7 and
18.8, but excluding the obligation to repay the Loans and interest
accrued thereon, shall survive the repayment in full of the Loans
and interest accrued thereon, whether or not indefeasible, the
return of the Notes to Borrower, the termination of the Commitments
and the expiration of all Letters of Credit.
18.4. ASSIGNMENTS.
18.4.1. PERMITTED ASSIGNMENTS. At any time after
the Execution Date, any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a
portion of the Notes payable to it, its Commitments and
its Loans), provided that the terms of assignment satisfy
the following requirements:
18.4.1.1. Administrative Agent shall
have accepted the assignment, which acceptance
shall not be unreasonably withheld.
18.4.1.2. Each such assignment shall be
of a constant, and not a varying, percentage of
all of the assigning Lender's rights and
obligations under this Agreement.
18.4.1.3. The assigning Lender shall
execute an Assignment and Acceptance in the form
attached hereto as Exhibit 18.4.1 together with
any Note subject to an assignment and a
processing fee of $3,500.
18.4.1.4. The minimum Commitment which
shall be assigned (which shall include the
applicable portion of the assigning Lender's
Revolving Loan Commitment and Letter of Credit
Commitment (and in the case of Administrative
Agent, the Swingline Commitment)) is $5,000,000
or such lesser amount which constitutes such
Lender's entire Commitment; provided, however,
that no such minimum shall apply between a Lender
and its Affiliates, or
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between one Lender and another Lender or an
assignment of all of a Lender's rights and
obligations under this Agreement.
18.4.1.5. The assignee shall have an
office located in the United States and is
otherwise an Eligible Assignee.
18.4.1.6. If there is no Existing
Default as of the date of such assignment,
Borrower shall have consented to the assignment,
which consent shall not be unreasonably withheld
or delayed.
18.4.2. CONSEQUENCES AND EFFECT OF ASSIGNMENTS.
From and after the effective date specified in any
Assignment and Acceptance, the assignee shall be deemed
and treated as a party to this Agreement and, to the
extent that rights and obligations hereunder and under the
Notes held by the assignor have been assigned or
negotiated to the assignee pursuant to such Assignment and
Acceptance, to have the rights and obligations of a Lender
hereunder as fully as if such assignee had been named as a
Lender in this Agreement and of a holder of such Notes,
and the assignor shall, to the extent that rights and
obligations hereunder or under such Notes have been
assigned or negotiated by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from
its future obligations under this Agreement. If the
assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to
Borrower and Administrative Agent certification as to the
exemption from deduction or withholding of Taxes in
accordance with Section 17.6.
18.4.3. AGREEMENTS UPON ASSIGNMENT. By executing
and delivering an Assignment and Acceptance, the assignor
thereunder and the assignee confirm to and agree with each
other and the other parties hereto substantially as
follows: (i) the assignment made under such Assignment and
Acceptance is made under such Assignment and Acceptance
without recourse; (ii) such assignor makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of any Covered
Person or the performance or observance by any Covered
Person of any of its Loan Obligations; (iii) such assignee
confirms that it has received a copy of this Agreement,
together with copies of the Financial Statements and such
other Loan Documents and other documents and information
as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and
without reliance upon Administrative Agent, such assignor,
or any other Lender, and based on such documents and
information as it deems appropriate at the time, continue
to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints
and authorizes Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to
Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a
Lender and a holder of a Note.
18.4.4. REGISTER. Administrative Agent shall
maintain at its address referred to herein a copy of each
Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and
addresses of the Lenders and the Commitment of and
principal amount of Loans owing to, each Lender from time
to time (the Register). The entries in the Register shall
be conclusive and binding for all
64
purposes, absent manifest error, and Borrower,
Administrative Agent and Lenders may treat each Person
whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice. Upon its receipt of an Assignment
and Acceptance executed by the parties thereto, together
with any Note subject to such assignment and payment of
the processing fee, Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 18.4.1 hereto, (i)
accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
18.4.5. NOTICE TO BORROWER OF ASSIGNMENT. Upon
its receipt of an Assignment and Acceptance executed by an
assigning Lender, if Administrative Agent accepts the
assignment contemplated thereby, Administrative Agent
shall give prompt notice thereof to Borrower. Borrower
shall execute and deliver replacement Notes to the
assignor and assignee as requested by Administrative Agent
and necessary to give effect to the assignment. If
Borrower fails or refuses to execute and deliver such
replacement Notes, Administrative Agent may, as agent and
attorney-in-fact for Borrower, execute and deliver such
replacement Notes on behalf of Borrower. Borrower hereby
appoints Administrative Agent as its agent and
attorney-in-fact for such purpose and acknowledges that
such power is coupled with an interest and therefore
irrevocable. Administrative Agent shall not have any
liability to Borrower or anyone else, including any
Lender, as a consequence of exercising such power in any
instance.
18.4.6. ASSIGNMENT TO FEDERAL RESERVE BANK.
Notwithstanding any other provision set forth in this
Agreement, without consent of Borrower or Administrative
Agent, any Lender may at any time assign and pledge all or
any portion of its Loans and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
18.5. SALE OF PARTICIPATIONS. Each Lender may sell
participations to one or more Persons (other than Borrower or an
Affiliate of Borrower) in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitment and its Loans); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield
protection provisions contained in Section 17 and the right of
setoff contained in Section 15.3.3, (iv) the amount of the
participation shall be in a minimum amount of $5,000,000 or such
lesser amount which constitutes such Lender's entire Commitment,
provided, however, that no such minimum amount shall apply to
participations between any of Lenders or between any Lender and any
of its Affiliates; and (v) Borrower, the other Lenders and
Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the
sole right to enforce the obligations of Borrower relating to its
Loans, its Notes and its funding of Advances and to approve any
amendment, modification, or waiver of any provision of this
Agreement, provided, however, that the approval of a participant of
a Lender may be required only for amendments, modifications, or
waivers that (a) forgive the amount of principal of the Loans, (b)
reduce the LIBOR Revolving Margin or the Base Rate Revolving
Margin, or reduce the Revolving Loan Unused Fee, or (c) extend the
Revolving Loan Maturity Date. The Lender selling a participation
shall, within two (2) Business Days of its effectiveness, provide
written notice of such event to
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the Administrative Agent. Notwithstanding the foregoing provisions
of this Section, the sale of any such participations which require
Borrower to file a registration statement with the SEC or under the
securities Laws of any state shall not be permitted.
18.6. INFORMATION; CONFIDENTIALITY. Administrative Agent
and each Lender agrees that it will not disclose to third Persons
any information that it obtains about Borrower or its operations or
finances that are designated by Borrower in writing as confidential
or that Borrower has advised Administrative Agent and Lenders in
writing constitutes non-public information. Administrative Agent
and Lenders may, however, disclose such information to each other,
to assignees and participants (including prospective assignees and
participants) and to all of their respective officers, attorneys,
auditors, accountants, bank examiners, agents and representatives
who have a need to know such information in connection with the
administration, interpretation or enforcement of the Loan Documents
or the lending and collection activity contemplated therein or to
the extent required by Law or a Governmental Authority.
Administrative Agent and Lenders shall advise such Persons that
such information is to be treated as confidential. Administrative
Agent and any Lender may also disclose such information in any
documents that it files in any legal proceeding to pursue, enforce
or preserve its rights under the Loan Documents to the extent that
its counsel advises in writing that such disclosure is reasonably
necessary. Administrative Agent's and Lenders' non-disclosure
obligation shall not apply to any information that (i) is disclosed
to Administrative Agent or any Lender by a third Person not
affiliated with or employed by Borrower who does not have a
commensurate duty of non-disclosure, or (ii) becomes publicly known
other than as a result of disclosure by Administrative Agent or a
Lender.
18.7. PAYMENT OF EXPENSES. Borrower agrees to pay or
reimburse to Administrative Agent all of Administrative Agent's
out-of-pocket costs incurred in connection with Administrative
Agent's due diligence review before execution of the Loan
Documents; the negotiation and preparation of proposals, a
commitment letter and the Loan Documents; the syndication of the
Loans; the administration of this Agreement, the Loan Documents and
the Loans; the perfection of Administrative Agent's Security
Interests in the Collateral; title insurance, surveys,
environmental reports and appraisals; the protection, disposition,
or foreclosure of any Security Interest on or with respect to any
Collateral; the cost of searches for Security Interests existing
against Covered Persons; recording and filing fees; the
interpretation of any of the Loan Documents; any amendment of or
supplementation to any of the Loan Documents; and any waiver,
consent, enforcement, or forbearance with respect to any Default or
Event of Default. Borrower agrees to pay or reimburse to
Administrative Agent and each Lender all of Administrative Agent's
and such Lender's out-of-pocket costs incurred in connection with
the enforcement of such Lender's rights and remedies under the Loan
Documents after the occurrence and during the continuation of an
Event of Default. Administrative Agent's out-of-pocket costs may
include but are not limited to the following, to the extent they
are actually paid or incurred by Administrative Agent: title
insurance fees and premiums; the cost of searches for Security
Interests existing against Covered Persons; recording and filing
fees; appraisal fees; environmental consultant fees; litigation
costs; and all attorneys' and paralegals' expenses and reasonable
fees. Each Lender's out-of-pocket costs may include but are not
limited to the following, to the extent they are actually paid or
incurred by a Lender: litigation costs and all attorneys' and
paralegals' expenses and reasonable fees. Attorneys' and
paralegals' expenses may include but are not limited to filing
charges; telephone, data transmission, facsimile and other
communication costs; courier and other delivery charges; and
photocopying charges. Litigation costs may include but are not
limited to filing fees, deposition costs, expert witness fees,
expenses of service of process, and other such costs paid or
incurred in any administrative, arbitration, or court proceedings
involving a Lender and any Covered Person, including
66
proceedings under the Federal Bankruptcy Code. All costs which
Borrower is obligated to pay or reimburse Administrative Agent or
the Lenders are Loan Obligations payable to Administrative Agent or
Lender, as applicable, and are payable on demand by Administrative
Agent or such Lender.
18.8. GENERAL INDEMNITY.
18.8.1. Borrower agrees to indemnify and hold
harmless Administrative Agent, the Letter of Credit
Issuer, and each Lender and each of their Affiliates and
their respective officers, directors, employees, agents,
and advisors (each, an Indemnified Party) from and against
any and all claims, damages, losses, liabilities, costs,
and expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, the
Acquisition Documents, any of the transactions
contemplated herein or therein or the actual or proposed
use of the proceeds of the Loans, or the manufacture,
storage, transportation, release or disposal of any
Hazardous Material on, from, over or affecting any of its
assets or any of the assets, properties, or operations of
any Covered Person or any predecessor in interest,
directly or indirectly, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a
final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding
to which the indemnity in this Section 18.8 applies, such
indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. Borrower
agrees not to assert any claim against Administrative
Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of
liability, for special, indirect, consequential, or
punitive damages arising out of or otherwise relating to
the Loan Documents, the Acquisition Documents, any of the
transactions contemplated herein or therein or the actual
or proposed use of the proceeds of the Loans. Borrower
shall pay, indemnify and hold harmless the Indemnified
Parties for, from and against, and shall promptly
reimburse the Indemnified Parties for, any and all claims,
damages, liabilities, losses, costs and expenses
(including reasonable attorneys' fees and expenses and
amounts paid in settlement) incurred, paid or sustained by
the Indemnified Parties, arising out of or relating to the
Acquisition Documents.
18.8.2. The obligations of Borrower under this
Section 18.8 shall survive the termination of the
Commitments, the expiration of the Letters of Credit, and
the indefeasible full payment and satisfaction of all of
the Loan Obligations.
18.8.3. To the extent that any of the indemnities
required from Borrower under this Section are
unenforceable because they violate any Law or public
policy, Borrower shall pay the maximum amount which it is
permitted to pay under applicable Law.
18.9. LETTERS OF CREDIT. Borrower assumes all risks of the
acts or omissions of any beneficiary of any of the Letters of
Credit. Neither Administrative Agent nor any of its directors,
67
officers, employees, agents, or representatives shall be liable or
responsible for: (a) the use which may be made of any of the
Letters of Credit or for any acts or omissions of beneficiary in
connection therewith; (b) the validity, sufficiency or genuineness
of documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by
Administrative Agent against presentation of documents which, on
their face, appear to comply with the terms of any Letter of Credit
but which in fact do not; or (d) any other circumstances whatsoever
in making or failing to make payment under any Letter of Credit in
connection with which Administrative Agent would, pursuant to the
Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500
(as amended from time to time), be absolved from liability. In
furtherance and not in limitation of the foregoing, Letter of
Credit Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
18.10. CHANGES IN ACCOUNTING PRINCIPLES. If any Covered
Person, at the end of its fiscal year and with the concurrence of
its independent certified public accountants, changes the method of
valuing the inventory of such Covered Person, or if any other
changes in accounting principles from those used in the preparation
of any of the Financial Statements are required by or result from
the promulgation of principles, rules, regulations, guidelines,
pronouncements or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or
successors thereto or bodies with similar functions), and any of
such changes result in a change in the method of calculation of, or
affect the results of such calculation of, any of the financial
covenants, standards or terms found herein, then the parties hereto
agree to enter into and diligently pursue negotiations in order to
amend such financial covenants, standards or terms so as to
equitably reflect such changes, with the desired result that the
criteria for evaluating the financial condition and results of
operations of such Covered Person shall be the same after such
changes as if such changes had not been made; provided, however,
that until such changes are made, all financial covenants herein
and all the provisions hereof which contemplate financial
calculation hereunder shall remain in full force and effect.
18.11. LOAN RECORDS. The date and amount of all Advances
to Borrower and payments of amounts due from Borrower under the
Loan Documents will be recorded in the records that Administrative
Agent normally maintains for such types of transactions. The
failure to record, or any error in recording, any of the foregoing
shall not, however, affect the obligation of Borrower to repay the
Loans and other amounts payable under the Loan Documents. Borrower
shall have the burden of proving that such records are not correct.
Borrower agrees that Administrative Agent's and any Lender's books
and records showing the Loan Obligations and the transactions
pursuant to this Agreement shall be admissible in any action or
proceeding arising therefrom, and shall constitute prima facie
proof thereof, irrespective of whether any Loan Obligation is also
evidenced by a promissory note or other instrument. Administrative
Agent will provide to Borrower a monthly statement of Advances,
payments, and other transactions pursuant to this Agreement. Such
statement shall be deemed correct, accurate and binding on Borrower
and an account stated (except for reversals and reapplications of
payments as provided in Section 6.7 and corrections of errors
discovered by Administrative Agent or a Lender), unless Borrower
notifies Administrative Agent in writing to the contrary within 30
days after such statement is rendered. In the event a timely
written notice of objections is given by Borrower, only the items
to which exception is expressly made will be considered to be
disputed by Borrower.
18.12. OTHER SECURITY AND GUARANTIES. Administrative Agent
or any Lender may, in each case for the benefit of all of the
Lenders, without notice or demand and without affecting Borrower's
obligations hereunder, from time to time: (a) take from any Person
(other than
68
Borrower) and hold collateral for the payment of all or any part of
the Loan Obligations and exchange, enforce and release such
collateral or any part thereof; and (b) accept and hold any
endorsement or guaranty of payment of all or any part of the Loan
Obligations and release or substitute any such endorser or
guarantor, or any Person (other than Borrower) who has given any
Security Interest in any other collateral as security for the
payment of all or any part of the Loan Obligations, or any other
Person (other than Borrower) in any way obligated to pay all or any
part of the Loan Obligations.
18.13. LOAN OBLIGATIONS PAYABLE IN DOLLARS. All Loan
Obligations that are payable in Dollars under the terms of the Loan
Documents shall be payable only in Dollars. If, however, to obtain
a judgment in any court it is necessary to convert a Loan
Obligation payable in Dollars into another currency, the rate of
exchange used shall be that at which Administrative Agent, using
its customary procedures, could purchase Dollars with such other
currency in New York, New York on the Business Day immediately
preceding the day on which such judgment is rendered. If any sum in
another currency is paid to a Lender or received by a Lender and
applied to a Loan Obligation payable in Dollars, such Loan
Obligation shall be deemed paid and discharged only to the extent
of the amount of Dollars that Administrative Agent, using its
customary procedures, is able to purchase in New York, New York
with such sum on the Business Day immediately following receipt
thereof. Borrower agrees to indemnify each Lender against any loss
in Dollars that it may incur on such Loan Obligation as a result of
such payment or receipt and application to such Loan Obligation.
18.14. DISCLOSURES. Notwithstanding anything herein or the
other Loan Documents to the contrary, Administrative Agent and each
Lender may disclose to any and all Persons, without limitation of
any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to Administrative Agent or such
Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either
case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or
similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby.
19. MISCELLANEOUS.
19.1. NOTICES. All notices, consents, requests and demands
to or upon the respective parties hereto shall be in writing, and
shall be deemed to have been given or made when delivered in person
to those Persons listed on the signature pages hereof or when
deposited in the United States mail, postage prepaid, or the
overnight courier services, when delivered to the overnight courier
service, or in the case of telecopy notice, when sent, verification
received, in each case addressed as set forth on the signature
pages hereof, or such other address as either party may designate
by notice to the other in accordance with the terms of this
Section. No notice given to or demand made on Borrower by
Administrative Agent or any Lender in any instance shall entitle
Borrower to notice or demand in any other instance.
19.2. AMENDMENTS AND MODIFICATIONS; WAIVERS AND CONSENTS.
19.2.1. Unless otherwise provided herein, no
amendment to or modification of any provision of this
Agreement, or of any of the other Loan Documents shall be
effective unless it is in writing and signed by authorized
officers of Borrower and Administrative Agent (if
authorized in writing by the Required Lenders and agreed
to by
69
the Administrative Agent). Unless otherwise provided
herein, no waiver of, or consent to any departure by
Borrower from, the requirements of any provision of this
Agreement or any of the other Loan Documents shall be
effective unless it is in writing and signed by authorized
officers of Required Lenders. Any such amendment,
modification, waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
19.2.2. The foregoing Section 19.2.1
notwithstanding, no such amendment, modification or
consent or waiver shall, unless signed by authorized
officers of Administrative Agent, Borrower and of all
Lenders: (i) reduce or forgive the repayment of principal
of any Advance or the reimbursement of any draw on a
Letter of Credit, (ii) reduce the LIBOR Revolving Margin
or the Base Rate Revolving Margin, or reduce the Revolving
Loan Unused Fee, except for periodic readjustments in
accordance with this Agreement, (iii) extend the Revolving
Loan Maturity Date, (iv) change the provisions of Section
16 to the detriment of any Lender, (v) change the
definition of Required Lenders herein, (vi) change the
provisions of this Section 19.2.2, (vii) change any
provisions of this Agreement requiring ratable
distributions to Lenders, and (viii) release a Guarantor
from the Guaranty.
19.2.3.
19.2.3.1. Subject to Section 19.2.3.3
below, Administrative Agent may, either before or
after an Event of Default, but only with the
consent or authorization of all Lenders, granted
or withheld in their absolute discretion,
exchange, waive or release its Security Interests
in any of the Collateral in an amount equal to or
in excess of an aggregate fair market value of
$2,500,000 in any calendar year or permit
Borrower to substitute any personal property for
any of the Personal Property Collateral in an
amount equal to or in excess of an aggregate fair
market value of $2,500,000 in any calendar year
in all cases without affecting the Loan
Obligations or Administrative Agent's right to
take any other action with respect to any other
Collateral.
19.2.3.2. Administrative Agent may, in
its absolute discretion and without the consent
of any Lender, exchange, waive or release its
Security Interests in any of the Personal
Property Collateral having an aggregate fair
market value of less than $2,500,000 in any
calendar year in all cases without affecting the
Loan Obligations or Administrative Agent's right
to take any other action with respect to any
other Collateral. In addition, with regards to
the Edison, New Jersey Real Estate Collateral
location, Administrative Agent is authorized to
release it's Security Interest on the portion of
such location that may be condemned by applicable
Governmental Authorities if the net proceeds of
such condemnation are promptly turned over to the
Administrative Agent for application to the Loan
Obligations and the amount of such condemnation
proceeds shall not count towards the basket set
forth in this Section 19.2.3.2.
19.2.3.3. Notwithstanding the terms of
Section 19.2.3.1 and Section 19.2.3.2,
Administrative Agent may, in its absolute
discretion and without the consent of any Lender,
release its Security Interests in any of the Real
Estate Collateral if and only if (i)
simultaneously with such release, Administrative
Agent receives a first priority Security Interest
in one or more parcels of replacement real
property owned by Borrower or a Covered Person,
70
(ii) each such parcels of replacement real
property owned by Borrower or a Covered Person
complies with the requirements of Section 8.1.10
(as such compliance is determined by
Administrative Agent in its absolute discretion)
and such other requirements or matters as may be
reasonably requested by Administrative Agent,
(ii) there is no Existing Default and no Default
or Event of Default would reasonably be likely to
occur as a result of such release and
substitution, and (iii) Borrower has delivered a
compliance certificate showing compliance with
Section 14.5 after giving effect to the
transactions contemplated by this Section
19.2.3.3 pro-forma for the most recently
completed fiscal month.
19.2.3.4. Notwithstanding the terms of
Section 19.2.3.1, Section 19.2.3.2, and Section
19.2.3.3, Administrative Agent may, in its
absolute discretion and without the consent of
any Lender, upon the indefeasible payment in full
of all of the Loan Obligations, the expiration or
termination of all Letters of Credit and
reduction of the Letter of Credit Exposure to
zero, and the termination of the Commitments,
release its Security Interests in all the
Collateral.
19.2.4. In addition, the foregoing provisions of
Sections 19.2.1 and 19.2.2 notwithstanding, the Dollar
amount of the Aggregate Revolving Loan Commitment
(including, without limitation, any increase effected
pursuant to Section 3.1.2) may not be increased without
the consent of any Lender participating in such increase,
Administrative Agent and, if Section 18.4.1.6 is
applicable, the Borrower.
19.2.5. No failure by Administrative Agent or any
Lender to exercise, and no delay by Administrative Agent
or any Lender in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Administrative
Agent or any Lender of any right, remedy, power or
privilege hereunder preclude any other exercise thereof,
or the exercise of any other right, remedy, power or
privilege existing under any Law or otherwise.
19.3. RIGHTS CUMULATIVE. Each of the rights and remedies
of Administrative Agent and Lenders under this Agreement shall be
in addition to all of its other rights and remedies under
applicable Law, and nothing in this Agreement shall be construed as
limiting any such rights or remedies.
19.4. RECITALS. The Recitals to this Agreement are
substantive in nature and are a part of this Agreement.
19.5. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and all
future holders of the Notes and their respective successors and
assigns, except that Borrower may not assign, delegate or transfer
any of its rights or obligations under this Agreement without the
prior written consent of Administrative Agent and all Lenders. With
respect to Borrower's successors and assigns, such successors and
assigns shall include any receiver, trustee or debtor-in-possession
of or for Borrower.
19.6. SEVERABILITY. Any provision of this Agreement which
is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or lack of authorization without
invalidating the remaining provisions hereof or affecting the
validity, enforceability or legality of such provision in any other
jurisdiction unless the ineffectiveness of such provision would
result in such a
71
material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
19.7. COUNTERPARTS. This Agreement may be executed by the
parties hereto on any number of separate counterparts, and all such
counterparts taken together shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one counterpart
signed by the party to be charged.
19.8. GOVERNING LAW; NO THIRD PARTY RIGHTS. This
Agreement, the Notes and the other Loan Documents and the rights
and obligations of the parties hereunder and thereunder shall be
governed by and construed and interpreted in accordance with the
internal Laws of the State of Illinois applicable to contracts made
and to be performed wholly within such state, without regard to
choice or conflicts of law principles; except that the provisions
of the Loan Documents pertaining to the creation or perfection of
Security Interests or the enforcement of rights of Administrative
Agent and Lenders in Collateral located in a State other than the
State of Illinois shall be governed by the Laws of such State. This
Agreement is solely for the benefit of the parties hereto and their
respective successors and assigns, and no other Person shall have
any right, benefit, priority or interest under, or because of the
existence of, this Agreement.
19.9. COUNTERPART FACSIMILE EXECUTION. For purposes of
this Agreement, a document (or signature page thereto) signed and
transmitted by facsimile machine or telecopier is to be treated as
an original document. The signature of any Person thereon, for
purposes hereof, is to be considered as an original signature, and
the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At
the request of any party hereto, any facsimile or telecopy document
is to be re-executed in original form by the Persons who executed
the facsimile or telecopy document. No party hereto may raise the
use of a facsimile machine or telecopier or the fact that any
signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this
Agreement or any amendment or other document executed in compliance
with this Section.
19.10. REPRODUCTIONS AS EVIDENCE. This Agreement and the
other Loan Documents, including but not limited to (a) consents,
waivers, amendments, and modifications which may hereafter be
executed, and (b) financial statements, certificates and other
information previously or hereafter furnished to Administrative
Agent or any Lender, may be reproduced by Administrative Agent or
such Lender by any photographic, photostatic, microfilm, microcard,
miniature photographic, computer imaging or other similar process
and Administrative Agent or such Lender may destroy any original
document so reproduced. Any such reproduction shall be admissible
in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the
regular course of business of Administrative Agent or such Lender)
and any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
19.11. EFFECT OF MERGER OF BANK. Effective immediately
upon the merger of Administrative Agent or a Lender with or into
another financial institution, all references to Administrative
Agent or such Lender under every Loan Document shall be deemed to
be references to the surviving institution. If the surviving
institution does not have a "Prime Rate," references in the Loan
Documents to Prime Rate shall be deemed to be references to the
reference rate (however it is designated) established from time to
time by the surviving institution that is most similar to the Prime
Rate.
19.12. NEGOTIATED TRANSACTION. Borrower, Administrative
Agent and each Lender represent each to the others that in the
negotiation and drafting of this Agreement and the other
72
Loan Documents they have been represented by and have relied upon the
advice of counsel of their choice. Borrower and Administrative
Agent affirm that their counsel have both had substantial roles in
the drafting and negotiation of this Agreement and each Lender
affirms that its counsel has participated in the drafting and
negotiation of this Agreement; therefore, this Agreement will be
deemed drafted by all of Borrower, Administrative Agent and
Lenders, and the rule of construction to the effect that any
ambiguities are to be resolved against the drafter will not be
employed in the interpretation of this Agreement.
19.13. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN
THE NEXT SENTENCE, BORROWER, ADMINISTRATIVE AGENT, AND EACH LENDER
HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURT OF
THE NORTHERN DISTRICT OF ILLINOIS AND THE STATE COURTS OF ILLINOIS
LOCATED IN ▇▇▇▇ COUNTY AND WAIVES ANY OBJECTION BASED ON VENUE OR
FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN,
AND AGREES THAT ANY DISPUTE CONCERNING THE RELATIONSHIP BETWEEN
ADMINISTRATIVE AGENT, LENDERS, AND BORROWER OR THE CONDUCT OF ANY
OF THEM IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE
HEARD ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE
FOREGOING: (1) ADMINISTRATIVE AGENT OR ANY LENDER SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS
PROPERTY IN ANY COURTS OF ANY OTHER JURISDICTION ADMINISTRATIVE
AGENT OR ANY LENDER DEEM NECESSARY OR APPROPRIATE IN ORDER TO
REALIZE ON THE COLLATERAL, REAL ESTATE OR OTHER SECURITY FOR THE
LOAN OBLIGATIONS, AND (2) EACH OF THE PARTIES HERETO ACKNOWLEDGES
THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS.
19.14. SERVICE OF PROCESS. BORROWER HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO BORROWER AT ITS ADDRESS SET FORTH ON THE
SIGNATURE PAGES HEREOF, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED
IN THE U.S. MAILS; OR AT ADMINISTRATIVE AGENT'S OR ANY LENDER'S
OPTION, BY SERVICE UPON CT CORPORATION, WHICH BORROWER IRREVOCABLY
APPOINTS AS BORROWER'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE
OF PROCESS WITHIN THE STATE OF ILLINOIS. ADMINISTRATIVE AGENT OR
SUCH LENDER SHALL PROMPTLY FORWARD BY REGISTERED MAIL ANY PROCESS
SO SERVED UPON SAID AGENT TO BORROWER AT ITS ADDRESS ON THE
SIGNATURE PAGES HEREOF. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
19.15. WAIVER OF JURY TRIAL. BORROWER, ADMINISTRATIVE
AGENT, AND EACH LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR (2) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
73
PARTIES HERETO OR EITHER OF THEM IN RESPECT OF THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWER,
ADMINISTRATIVE AGENT, AND EACH LENDER AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY AND THAT EITHER MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
19.16. INCORPORATION BY REFERENCE. All of the terms of the
other Loan Documents are incorporated in and made a part of this
Agreement by this reference.
19.17. STATUTORY NOTICE - INSURANCE. The following notice
is given pursuant to Section 10 of the Collateral Protection Act
set forth in Chapter 815 Section 180/1 of the Illinois Compiled
Statutes (1996); nothing contained in such notice shall be deemed
to limit or modify the terms of the Loan Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY
YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE
TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE
MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE
AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY LATER CANCEL
ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING EVIDENCE
THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF
WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE
FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE
PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE
INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR
OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
19.18. STATUTORY NOTICE - ORAL COMMITMENTS. Nothing
contained in the following notice shall be deemed to limit or
modify the terms of the Loan Documents:
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, REGARDLESS OF THE
LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO
THE CREDIT AGREEMENT. TO PROTECT COMPANY (BORROWER) AND THE BANK
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
THE COMPANY (BORROWER) AND THE BANK (CREDITOR) REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY
LATER AGREE IN WRITING TO MODIFY IT.
74
Borrower acknowledges that there are no other agreements between
Administrative Agent, Lenders, and Borrower, oral or written,
concerning the subject matter of the Loan Documents, and that all
prior agreements concerning the same subject matter, including any
proposal or commitment letter, are merged into the Loan Documents
and thereby extinguished.
20. SECURITY AND GUARANTIES. As security for the payment and
performance of the Loan Obligations, and also as security for the payment
and performance of all Obligations to Administrative Agent, Borrower shall
execute and deliver, or cause to be executed and delivered, to
Administrative Agent the following documents, each satisfactory to Lenders:
20.1. SECURITY AGREEMENTS. Security agreements granting
to Administrative Agent for the benefit of Lenders a first priority
Security Interest under the UCC in all of the Goods, Equipment,
Accounts, Inventory, Instruments, Documents, Chattel Paper,
Securities, General Intangibles, including Intellectual Property,
and other personal property of each Covered Person and every
Subsidiary of each Covered Person, whether now owned or hereafter
acquired, and all proceeds thereof, subject only to Permitted
Security Interests affecting such property.
20.2. MORTGAGES. Mortgages, leasehold mortgages, deeds of
trust, leasehold deeds of trust, or landlord consents, as required
by Administrative Agent (i) granting to Administrative Agent for
the benefit of Lenders a first priority Security Interest in such
real property and fixtures owned by each Covered Person and all
improvements thereon and any appurtenant easements and rights and
all income and proceeds thereof so that the Asset Coverage Ratio is
met at all times, and (ii) assigning to Administrative Agent for
the benefit of Lenders all of the grantor's rights, title, and
interest in, to, and under all leases affecting any part of the
Real Estate Collateral and all income and proceeds thereof, which
Security Interests shall be subject only to existing Permitted
Security Interests affecting such property. If any Covered Person
acquires or leases any real property (except for leases of office
space or leases of temporary storage space to the extent not
otherwise prohibited herein) after the Execution Date, Borrower
shall notify Administrative Agent thereof and shall deliver or
cause to be delivered to Administrative Agent for the benefit of
Lenders a deed of trust, mortgage, leasehold deed of trust,
leasehold mortgage, or landlord consent as required by
Administrative Agent, on each parcel of such real property promptly
upon request by Administrative Agent.
20.3. ADDITIONAL SUBSIDIARIES; GUARANTIES. As further
security for the payment and performance of the Loan Obligations,
each Subsidiary, other than a Dormant Subsidiary, of any Covered
Person, including any Subsidiary of any Covered Person that is
acquired or organized after July 29, 2005, shall (i) execute and
deliver or cause to be executed and delivered by the applicable
Covered Person, an addendum to a Security Agreement granting to
Administrative Agent for the benefit of Lenders a first priority
Security Interest in all of the voting capital stock, securities,
membership interests or other equity interests, as applicable (and
all options and warrants therefor), of any such later acquired or
organized Subsidiary, now or hereafter issued and outstanding, and
all proceeds thereof, and (ii) execute and delivery, or cause to be
executed and delivered to Administrative Agent, by every now
existing and hereafter later acquired or organized Subsidiary of
any Covered Person (which may only be acquired or organized if
permitted elsewhere in this Agreement) an unconditional guaranty of
the Loan Obligations or, at the option of Administrative Agent in
Administrative Agent's absolute discretion, a joinder agreement in
which such Subsidiary becomes a Borrower under this Agreement and
assumes primary, joint and several liability for the Loan
Obligations, and a Security Agreement (as described in Section 8.2)
and other appropriate security documents, each in form satisfactory
to Lenders.
75
21. POWER OF ATTORNEY. Borrower hereby authorizes Administrative
Agent and irrevocably appoints Administrative Agent (acting by any of its
officers) as such Borrower's agent and attorney-in-fact (which appointment
is coupled with an interest and is therefore irrevocable) to do any of the
following, and hereby consents and authorizes any of the following, until
all of the Loan Obligations are fully and indefeasibly paid and satisfied,
there are no Letters of Credit outstanding and the Letter of Credit Exposure
is irreversibly zero, and the Commitments are terminated:
21.1. At any time while there is an Existing Default, (i)
demand payment of any Account; (ii) enforce payment of any Account
by legal proceedings or otherwise; (iii) exercise all of such
Borrower's rights and remedies in proceedings brought to collect
any Account; (iv) sell or assign any Account upon such terms, for
such amount and at such time or times as Administrative Agent deems
advisable; (v) settle, adjust, compromise, extend or renew any
Account; (vi) discharge and release any Account; (vii) prepare,
file and sign such Borrower's name on any proof of claim in
bankruptcy or other similar documents against an Account Debtor;
(viii) notify the postal authorities of any change of the address
for delivery of such Borrower's mail to any address designated by
Administrative Agent, and open and process all mail addressed to
such Borrower; (ix) endorse such Borrower's name on any
verification of Accounts and notices thereof to Account Debtors;
(x) make one or more Revolving Loan Advances to pay the costs and
expenses of any of the foregoing; (xi) take control in any manner
of any item of payment or proceeds of any Account; (xii) have
access to any lockbox or postal box into which such Borrower's mail
is deposited; (xiii) endorse such Borrower's name upon any items of
payment and deposit the same in the Cash Collateral Account and
apply the proceeds thereof to the Loan Obligations as provided
herein; (xiv) endorse such Borrower's name upon any chattel paper,
document, instrument, invoice, or similar document or agreement
relating to any Account or other item of the Collateral; and (xv)
do anything that Administrative Agent deems necessary in its
reasonable discretion to assure that the Loan Obligations are fully
and indefeasibly paid and satisfied.
21.2. At any time, file any financing statement or
amendments thereto deemed necessary or appropriate by
Administrative Agent to assure the perfection or continued
perfection of Administrative Agent's Security Interests in the
Collateral for the benefit of Lenders.
The foregoing power of attorney and authorization shall be deemed
automatically revoked upon the indefeasible payment in full of all of the
Loan Obligations, the expiration or termination of all Letters of Credit and
reduction of the Letter of Credit Exposure to zero, and the termination of
the Commitments.
[SIGNATURE PAGES FOLLOW]
76
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the Execution Date.
▇▇▇▇▇▇▇▇ CORPORATION, A MISSOURI CORPORATION, AS BORROWER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
▇▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{SIGNATURE PAGES CONTINUE}
Signature Page 1 of 6
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
NOTICE ADDRESS :
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
APPLICABLE LENDING OFFICE :
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{SIGNATURE PAGES CONTINUE}
Signature Page 2 of 6
UMB BANK, NATIONAL ASSOCIATION, A LENDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Title: Executive Vice President
-----------------------------------------------
NOTICE ADDRESS :
UMB Bank, National Association
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
APPLICABLE LENDING OFFICE :
UMB Bank, National Association
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{SIGNATURE PAGES CONTINUE}
Signature Page 3 of 6
▇▇▇▇▇ FARGO BANK, N.A., A LENDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
NOTICE ADDRESS :
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
APPLICABLE LENDING OFFICE :
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{SIGNATURE PAGES CONTINUE}
Signature Page 4 of 6
NATIONAL CITY BANK OF THE MIDWEST, A LENDER
By: /s/ ▇. ▇▇▇▇▇▇ Tzinberg
--------------------------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
NOTICE ADDRESS :
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
APPLICABLE LENDING OFFICE :
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{SIGNATURE PAGES CONTINUE}
Signature Page 5 of 6
REGIONS BANK, FORMERLY KNOWN AS UNION PLANTERS BANK, N.A., A LENDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Title: Vice President
-----------------------------------------------
NOTICE ADDRESS :
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
APPLICABLE LENDING OFFICE :
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
{END OF SIGNATURE PAGES}
Signature Page 6 of 6
EXHIBIT 2.1
GLOSSARY
ACCOUNT - as to any Person, the right of such Person to payment for goods
sold or leased or for services rendered by such Person.
ACCOUNT DEBTOR - the obligor on any Account.
ACQUIRING COMPANY - the Person obligated to pay or provide the consideration
payable in connection with a Permitted Acquisition upon the consummation
thereof.
ACQUISITION DOCUMENTS - in the case of any Permitted Acquisition, the
documents to which Borrower or any other Covered Person is a party and under
which such Permitted Acquisition is contemplated, and all of the foregoing
at any time after a Permitted Acquisition has occurred.
ADJUSTED BASE RATE - is defined in Section 4.4.
ADJUSTED LIBOR RATE - is defined in Section 4.5.
ADMINISTRATIVE AGENT - LaSalle in its capacity as Administrative Agent under
this Agreement, and its successors and assigns in such capacity.
ADVANCE - a Revolving Loan Advance or a Swingline Advance.
ADVANCE DATE - the date on which an Advance is requested by Borrower to be
made, or is otherwise contemplated or intended to be made, as provided
herein.
AFFILIATE - with respect to any Person, (a) any other Person who is a
partner, director, officer, stockholder, member, partner or other equity
holder of such Person; and (b) any other Person which, directly or
indirectly, through one or more intermediaries, is in control of, is
controlled by or is under common control with such Person, and any partner,
director, officer or stockholder, member, partner or other equity holder of
such other Person described. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has
the power, directly or indirectly, either to (i) vote twenty percent (20%)
or more of the securities, membership interests or other equity interest
having the power to vote in an election of directors or managers of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
AGGREGATE COMMITMENT - the Aggregate Revolving Loan Commitment.
AGGREGATE LOAN - the Aggregate Revolving Loan.
AGGREGATE REVOLVING LOAN - the from time to time outstanding principal
balance of all Revolving Loan Advances.
AGGREGATE REVOLVING LOAN COMMITMENT - the aggregate commitments of Lenders
as stated in Section 3.1.1 to fund Revolving Loan Advances, as it may be
changed as provided herein.
APPLICABLE LENDING OFFICE - means, for Administrative Agent and each Lender
and for each Loan, the Applicable Lending Office of Administrative Agent or
such Lender (or of an Affiliate of such Lender) designated for such Loan on
the signature pages hereof or such other office of such Lender (or an
Affiliate of Administrative Agent or such Lender) as Administrative Agent or
such Lender may from time to time specify to Administrative Agent (in the
case of another Lender) and Borrower by written notice in accordance with
the terms hereof as the office by which its Loans are to be made and
maintained.
APPROVED OPTION - is defined in Section 6.3.3.3.
i
BASE RATE - for any day, the rate per annum equal to the higher of (a) the
Federal Funds Rate (as such rate may fluctuate from time to time as provided
for herein) for such day plus .50% and (b) the Prime Rate (as such rate may
fluctuate from time to time as provided for herein) for such day. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate. The interest rate so designated from time to time as the
Base Rate by Administrative Agent is a reference rate and does not
necessarily represent the lowest or best rate charged to any customer of
Administrative Agent or any other Lender.
BASE RATE ADVANCE - an Advance that will become a Base Rate Loan.
BASE RATE REVOLVING MARGIN - is specified in Section 4.6.
BASE RATE LOAN - any portion of a Loan on which interest accrues at the Base
Rate.
BORROWER - as defined in the introductory paragraph to this Agreement.
BORROWING OFFICER - each officer of Borrower who is authorized to submit a
request for an Advance or the issuance of a Letter of Credit on behalf of
Borrower.
BUSINESS DAY - a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the Laws of
either the United States or the State of Illinois, and when used in
connection with LIBOR Loans, also a day other than any day on which dealings
in U.S. Dollar deposits are not carried on in the London interbank market.
CAPITAL EXPENDITURES -- means all expenditures (including Capitalized Lease
obligations) which, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the Borrower, but
excluding expenditures made in connection with the replacement, substitution
or restoration of assets to the extent financed from Insurance/Condemnation
Proceeds.
CAPITAL LEASE - any lease that has been or should be capitalized under GAAP.
CHARTER DOCUMENTS - the articles or certificate of incorporation and bylaws
of a corporation; the certificate of limited partnership and partnership
agreement of a limited partnership; the partnership agreement of a general
partnership; the articles of organization and operating agreement of a
limited liability company; or the indenture of a trust.
COBRA - the Consolidated Omnibus Budget Reconciliation Act.
CODE - the Internal Revenue Code of 1986 and all regulations thereunder of
the IRS.
COLLATERAL - all Real Estate Collateral, all Personal Property Collateral
and any other property (real or personal) in which Administrative Agent or a
Lender has a Security Interest to secure payment or performance of all or
any of the Loan Obligations and all proceeds and products thereof.
COMMITMENT - the Revolving Loan Commitment of a Lender, the Swingline
Commitment of Administrative Agent or the Letter of Credit Commitment of
Letter of Credit Issuer.
COMMONLY CONTROLLED ENTITY - a Person which is under common control with
another Person within the meaning of Section 414(b) or (c) of the Code.
CONTRACT - any contract, note, bond, indenture, deed, mortgage, deed of
trust, security agreement, pledge, hypothecation agreement, assignment, or
other agreement or undertaking, or any security.
COVERED PERSON - defined in Section 2.3.
DEFAULT - any of the events listed in Section 15.1 of this Agreement,
without giving effect to any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any other condition, event
or act.
ii
DEFAULT RATE - the rate of interest payable on each Loan after its Maturity
and in certain other circumstances as provided in Section 4.10.
DELAYED SITES -- means each of the following locations: (i) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (ii) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (v) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, (vi) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (vii) ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (viii) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, and (ix) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇.
DISCLOSURE SCHEDULE - the disclosure schedule of Borrower attached hereto as
Exhibit 10.
DOLLARS and the sign $ - lawful money of the United States.
DORMANT SUBSIDIARIES - means those Subsidiaries identified as such on
section 10.26 to the Disclosure Schedule.
DEFAULTING LENDER - is defined in Section 7.5.1.
EBITDA - is defined in Section 14.1.
EFFECTIVE DATE - the date when this Agreement is effective as provided in
Section 1.
ELIGIBLE ACCOUNT - means an Account owing to the Borrower or any Guarantor
which meets each of the following requirements:
(a) it arises from the sale or lease of goods or the rendering of
services which have been fully performed by the Borrower or any
Guarantor; and if it arises from the sale or lease of goods, (i)
such goods comply with such Account Debtor's specifications (if
any) and have been delivered to such Account Debtor and (ii) the
Borrower or any Guarantor has possession of, or if requested by the
Administrative Agent has delivered to the Administrative Agent,
delivery receipts evidencing such delivery;
(b) it (i) is subject to a perfected, first priority Lien in favor
of the Administrative Agent and (ii) is not subject to any other
assignment, claim or Security Interest;
(c) it is a valid, legally enforceable and unconditional obligation
of the Account Debtor with respect thereto and is not subject to
the fulfillment of any condition whatsoever (but if any such
Account is subject to any counterclaim, credit, allowance,
discount, rebate or adjustment by the Account Debtor with respect
thereto, then the amount of such Account, subject to all other
eligibility criteria set fort in definition, less any counterclaim,
credit, allowance, discount, rebate or adjustment by the Account
Debtor with respect thereto),
(d) it is not subject to any claim by such Account Debtor denying
liability thereunder in whole or in part and the Account Debtor has
not refused to accept and/or has not returned or offered to return
any of the goods or services which are the subject of such Account;
(e) there is no bankruptcy, insolvency or liquidation proceeding
pending by or against the Account Debtor with respect thereto;
(f) the Account Debtor with respect thereto is a resident or
citizen of, and is located within, the United States, unless the
sale of goods or services giving rise to such Account is on letter
of credit, banker's acceptance or other credit support terms
reasonably satisfactory to the Administrative Agent;
iii
(g) it is not an Account arising from a "sale on approval," "sale
or return," "consignment" or "▇▇▇▇ and hold" or subject to any
other repurchase or return agreement;
(h) it is not an Account with respect to which possession and/or
control of the goods sold giving rise thereto is held, maintained
or retained by the Borrower or any Guarantor (or by any agent or
custodian of the Borrower or any Guarantor) for the account of or
subject to further and/or future direction from the Account Debtor
with respect thereto;
(i) it arises in the ordinary course of business of the Borrower or
any Guarantor;
(j) if the Account Debtor is the United States or any department,
agency or instrumentality thereof, the Borrower or any Guarantor
has assigned its right to payment of such Account to the
Administrative Agent pursuant to the Assignment of Claims Act of
1940, and evidence (satisfactory to the Administrative Agent) of
such assignment has been delivered to the Administrative Agent,
provided, however, up to $500,000 in the aggregate of such Accounts
may be Eligible Accounts (subject to the other eligibility criteria
contained herein) without complying with the Assignment of Claims
Act of 1940;
(k) if the Borrower or any Guarantor maintains a credit limit for
an Account Debtor, the aggregate dollar amount of Accounts due from
such Account Debtor, including such Account, does not exceed such
credit limit and if such Account does exceed such credit limit,
subject to the other eligibility criteria contained in this
definition, only the amount in excess of such credit limit shall be
ineligible;
(l) if the Account is evidenced by chattel paper or an instrument,
the originals of such chattel paper or instrument shall have been
endorsed and/or assigned and delivered to the Administrative Agent
or, in the case of electronic chattel paper, shall be in the
control of the Administrative Agent, in each case in a manner
satisfactory to the Administrative Agent;
(m) such Account is evidenced by an invoice delivered to the
related Account Debtor and is not more than (i) 60 days past the
due date thereof or (ii) 90 days past the original invoice date
thereof, in each case according to the original terms of sale;
(n) it is not an Account with respect to an Account Debtor that is
located in any jurisdiction which has adopted a statute or other
requirement with respect to which any Person that obtains business
from within such jurisdiction must file a notice of business
activities report or make any other required filings in a timely
manner in order to enforce its claims in such jurisdiction's courts
unless (i) such notice of business activities report has been duly
and timely filed or the Borrower or any Guarantor is exempt from
filing such report and has provided the Administrative Agent with
satisfactory evidence of such exemption or (ii) the failure to make
such filings may be cured retroactively by the Borrower or any
Guarantor for a nominal fee;
(o) the Account Debtor with respect thereto is not the Borrower or
an Affiliate of the Company;
(p) it is not owed by an Account Debtor with respect to which 25%
or more of the aggregate amount of outstanding Accounts owed at
such time by such Account Debtor is classified as ineligible under
clause (m) of this definition;
----------
(q) if the aggregate amount of all Accounts owed by the Account
Debtor thereon exceeds 25% of the aggregate amount of all Accounts
at such time, then all Accounts owed by such Account Debtor in
excess of such amount shall be deemed ineligible; and
iv
(r) it is otherwise not unacceptable to the Administrative Agent in
its reasonable discretion for any other reason.
An Account which is at any time an Eligible Account, but which subsequently
fails to meet any of the foregoing requirements, shall forthwith cease to be
an Eligible Account. Further, with respect to any Account, if the
Administrative Agent or the Required Lenders at any time hereafter determine
in its or their discretion that the prospect of payment or performance by
the Account Debtor with respect thereto is materially impaired for any
reason whatsoever, such Account shall cease to be an Eligible Account after
notice of such determination is given to the Company.
ELIGIBLE ASSIGNEE - means (i) a Lender; (ii) an Affiliate of a Lender; and
(iii) any other Person approved by Administrative Agent; provided, however,
that neither Borrower, any Covered Person, any Guarantor nor an Affiliate of
Borrower or Guarantor shall qualify as an Eligible Assignee.
ELIGIBLE EQUIPMENT - means Equipment of the Borrower or any Guarantor which
meets each of the following requirements:
(a) it is subject to a perfected, first priority Lien in favor of
the Administrative Agent and is not subject to any other
assignment, claim or Lien;
(b) it is salable and not obsolete or discontinued;
(c) it is in the possession and control of the Borrower or any
Guarantor and it is stored and held in facilities owned by the
Borrower or any Guarantor or, if such facilities are not so owned,
the Administrative Agent is in possession of a landlord consent,
bailee letter or similar agreement reasonably acceptable to
Administrative Agent with respect thereto;
(d) it is not subject to any agreement or license which would
restrict the Administrative Agent's ability to sell or otherwise
dispose of such Equipment;
(e) it is located in the United States or in any territory or
possession of the United States that has adopted Article 9 of the
Uniform Commercial Code;
(f) it is not "in transit" to the Borrower or any Guarantor or held
by the Borrower or any Guarantor on consignment;
(g) it is not identified to any purchase order or contract to the
extent progress or advance payments are received with respect to
such Equipment;
(h) it does not breach any of the representations, warranties or
covenants pertaining to Equipment set forth in the Loan Documents;
and
(i) the Administrative Agent shall not have determined in its
reasonable discretion that it is unacceptable due to age, type,
category, quality, quantity and/or any other reason whatsoever.
Equipment which is at any time Eligible Equipment but which subsequently
fails to meet any of the foregoing requirements shall forthwith cease to be
Eligible Equipment.
ELIGIBLE INVENTORY - means Inventory of the Borrower or any Guarantor which
meets each of the following requirements:
(j) it is subject to a perfected, first priority Lien in favor of
the Administrative Agent and is not subject to any other
assignment, claim or Lien;
v
(k) it is salable and not slow-moving, obsolete or discontinued;
(l) it is in the possession and control of the Borrower or any
Guarantor and it is stored and held in facilities owned by the
Borrower or any Guarantor or, if such facilities are not so owned,
the Administrative Agent is in possession of a landlord consent,
bailee letter or similar agreement reasonably acceptable to
Administrative Agent with respect thereto;
(m) it is not Inventory produced in violation of the Fair Labor
Standards Act and subject to the "hot goods" provisions contained
in Title 29 U.S.C. Section 215;
(n) it is not subject to any agreement or license which would
restrict the Administrative Agent's ability to sell or otherwise
dispose of such Inventory;
(o) it is located in the United States or in any territory or
possession of the United States that has adopted Article 9 of the
Uniform Commercial Code;
(p) it is not "in transit" to the Borrower or any Guarantor or held
by the Borrower or any Guarantor on consignment;
(q) it is not "work-in-progress" Inventory;
(r) it is not supply items or packaging;
(s) it is not identified to any purchase order or contract to the
extent progress or advance payments are received with respect to
such Inventory;
(t) it does not breach any of the representations, warranties or
covenants pertaining to Inventory set forth in the Loan Documents;
and
(u) the Administrative Agent shall not have determined in its
reasonable discretion that it is unacceptable due to age, type,
category, quality, quantity and/or any other reason whatsoever.
Inventory which is at any time Eligible Inventory but which subsequently
fails to meet any of the foregoing requirements shall forthwith cease to be
Eligible Inventory.
EMPLOYMENT LAW - ERISA, the Occupational Safety and Health Act, the Fair
Labor Standards Act, or any other Law pertaining to the terms or conditions
of labor or safety in the workplace or discrimination or sexual harassment
in the workplace.
ENCUMBRANCE - as to any item of real or personal property, any easement,
right-of-way, license, condition, or restrictive covenant, or zoning or
similar restriction, that is not a Security Interest but is enforceable by
any Person other than the record owner of such property.
ENVIRONMENTAL LAW - the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Clean Water Act, the Clean Air Act, or any other federal, state, or local
Law (excluding foreign and international law) pertaining to environmental
quality or remediation of Hazardous Material.
EPA - the United States Environmental Protection Agency.
EQUIPMENT - means all laundry machinery and laundry equipment owned by
Borrower or any Guarantor, other than office equipment, which is subject to
an appraisal acceptable to Administrative Agent, unless such laundry
machinery and laundry equipment was purchased pursuant to a Permitted
Acquisition in which case such laundry machinery and laundry equipment shall
be subject to an appraisal acceptable to Administrative Agent within 180
days from the date of such acquisition.
vi
ERISA - the Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE - as to any Person, any trade or business (irrespective of
whether incorporated) which is a member of a group of which such Person is a
member and thereafter treated as a single employer under 414(b), (c), (m) or
(o) of the Code or applicable Treasury Regulations.
EVENT OF DEFAULT - any of the events listed in Section 15.1 of this
Agreement as to which any requirement for the giving of notice, for the
lapse of time, or both, or for the happening of any further condition, event
or act has been satisfied.
EXECUTION DATE - the date when this Agreement has been executed.
EXISTING DEFAULT - a Default which has occurred and is continuing, or an
Event of Default which has occurred, and which has not been waived in
writing by the Required Lenders, or all of the Lenders if required by
Section 19.2.
FEDERAL FUNDS RATE - for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged
to Administrative Agent (in its individual capacity) on such day on such
transactions as determined by Administrative Agent.
FINANCIAL STATEMENTS - the most recent of the Initial Financial Statements
and the financial statements of Borrower required to be furnished to
Administrative Agent under Section 12.11 of this Agreement.
FIXED CHARGES - is defined in Section 14.1.
FRB - the Board of Governors of the Federal Reserve System and any successor
thereto or to the functions thereof.
FRONTING FEE - the fee payable to Letter of Credit Issuer as required in
Section 5.3.
FUNDED INDEBTEDNESS - is defined in Section 14.1.
GAAP - those generally accepted accounting principles set forth in
Statements of the Financial Accounting Standards Board and in Opinions of
the Accounting Principles Board of the American Institute of Certified
Public Accountants or which have other substantial authoritative support in
the United States and are applicable in the circumstances, as applied on a
consistent basis.
GOVERNMENTAL AUTHORITY - the federal government of the United States; the
government of any foreign country that is recognized by the United States or
is a member of the United Nations; any state of the United States; any local
Government or municipality within the territory or under the jurisdiction of
any of the foregoing; any department, agency, division, or instrumentality
of any of the foregoing; and any court, arbitrator, or board of arbitrators
whose orders or judgments are enforceable by or within the territory of any
of the foregoing.
GROUP - as used in Regulation 13-D issued by the Securities and Exchange
Commission.
GUARANTOR - each of the Persons required under this Agreement to execute and
deliver to Administrative Agent for the benefit of Lenders a guaranty of
part or all of the Loan Obligations. ▇▇▇▇▇▇▇▇ Textile Services, Inc., a New
York corporation, ▇▇▇▇▇▇▇▇ Textile Services, Inc., a California corporation,
Southern Service Company, a California corporation, and Angelica Realty Co.,
a California corporation, The Surgi-Pack Corporation, a Massachusetts
corporation, and Royal Institutional Services,
vii
Inc., a Massachusetts corporation are each Guarantors and have executed an
unlimited Guaranty of all the Loan Obligations.
GUARANTY - each guaranty of part (if acceptable to Administrative Agent) or
all of the Loan Obligations executed and delivered to Administrative Agent
for the benefit of Lenders by any Guarantor.
HAZARDOUS MATERIAL - any hazardous, radioactive, toxic, solid or special
waste, material, substance or constituent thereof, or any other such
substance (as defined under any applicable Law or regulation), including any
asbestos or asbestos containing material. HAZARDOUS MATERIAL does not
include materials or products containing hazardous constituents which are
not considered to be waste under the applicable Environmental Law or which
are considered to be waste but are transported, handled or disposed of in
accordance with the applicable Environmental Law, or asbestos or asbestos
containing material which is not friable.
INDEBTEDNESS - as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii)
to pay the deferred purchase price of property or services; (iii) to make
payments or reimbursements with respect to bank acceptances or to a factor;
(iv) to make payments or reimbursements with respect to letters of credit
whether or not there have been drawings thereunder; (v) with respect to
which there is any Security Interest in any property of such Person; (vi) to
make any payment or contribution to a Multi-Employer Plan; (vii) that is
evidenced by a note, bond, debenture or similar instrument; (viii) under any
conditional sale agreement or title retention agreement; or (ix) to pay
interest or fees with respect to any of the foregoing. INDEBTEDNESS also
includes any other Obligation that either (i) is non-contingent and
liquidated in amount or (ii) should under GAAP be included in liabilities
and not just as a footnote on a balance sheet.
INDIRECT OBLIGATION - as to any Person, (a) any guaranty by such Person of
any Obligation of another Person; (b) any Security Interest in any property
of such Person that secures any Obligation of another Person; (c) any
enforceable contractual requirement that such Person (i) purchase an
Obligation of another Person or any property that is security for such
Obligation, (ii) advance or contribute funds to another Person for the
payment of an Obligation of such other Person or to maintain the working
capital, net worth or solvency of such other Person as required in any
documents evidencing an Obligation of such other Person, (iii) purchase
property, securities or services from another Person for the purpose of
assuring the beneficiary of any Obligation of such other Person that such
other Person has the ability to timely pay or discharge such Obligation,
(iv) grant a Security Interest in any property of such Person to secure any
Obligation of another Person, (v) otherwise assure or hold harmless the
beneficiary of any Obligation of another Person against loss in respect
thereof; (d) any Obligation arising from the endorsement by such Person of
an instrument; (e) any Obligation of such Person as a surety; and (f) any
other contractual requirement enforceable against such Person that has the
same substantive effect as any of the foregoing. The term INDIRECT
OBLIGATION does not, however, include the endorsement by a Person of
instruments for deposit or collection in the ordinary course of business or
the liability of a general partner of a partnership for Obligations of such
partnership. The amount of any Indirect Obligation of a Person shall be
deemed to be the stated or determinable amount of the Obligation in respect
of which such Indirect Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
INITIAL FINANCIAL STATEMENTS - the financial statements (not including the
proforma financial statements) of Borrower referred to in Section 8.1.2.
INSURANCE/CONDEMNATION PROCEEDS - insurance proceeds payable as a
consequence of damage to or destruction of any of the Collateral and
proceeds payable as a consequence of condemnation or sale in lieu of
condemnation of any of the Collateral.
INTELLECTUAL PROPERTY - as to any Person, any domestic or foreign patents or
patent applications of such Person, any inventions made or owned by such
Person upon which either domestic or foreign patent
viii
applications have not yet been filed, any domestic or foreign trade names or
trademarks of such Person, any domestic or foreign trademark registrations
or applications filed by such Person, any domestic or foreign service marks
of such Person, any domestic or foreign service ▇▇▇▇ registrations and
applications by such Person, any domestic or foreign copyrights of such
Person, and any domestic or foreign copyright registrations or applications
by such Person.
INVENTORY - goods owned and held by a Person for sale, lease or resale or
furnished or to be furnished under contracts for services, and raw
materials, goods in process, materials, component parts and supplies used or
consumed, or held for use or consumption in such Person's business.
INTEREST EXPENSE - is defined in Section 14.1.
INTEREST HEDGE OBLIGATION - any obligations of Borrower to Administrative
Agent or any Affiliate of Administrative Agent under an agreement or
agreements between Borrower and Administrative Agent or any Affiliate of
Administrative Agent under which the exposure of Borrower to fluctuations in
interest rates is effectively limited, whether in the form of one or more
interest rate cap, collar, or corridor agreements, interest rate swaps, or
the like, or options therefor.
INTEREST PERIOD - the period during which a particular Adjusted LIBOR Rate
applies to a LIBOR Loan, as selected by Borrower as provided in Section 4.7.
INVESTMENT - (a) a loan or advance of money or property to a Person, (b)
stock, membership interest, or other equity interest in a Person, (c) a debt
instrument issued by a Person, whether or not convertible to stock,
membership interest, or other equity interest in such Person, or (d) any
other interest in or rights with respect to a Person which include, in whole
or in part, a right to share, with or without conditions or restrictions,
some or all of the revenues or net income of such Person.
IRS - the Internal Revenue Service.
LASALLE - LaSalle Bank National Association.
LAW - any statute, rule, regulation, order, judgment, award or decree of any
Governmental Authority.
LENDER - any one of the lenders listed on Exhibit 3 to this Agreement,
including Administrative Agent in its capacity as a lender, or any Person
who takes an assignment from any of such lenders of all or a portion of its
rights and obligations as a lender under this Agreement pursuant to Section
18.4.1 and an Assignment and Acceptance as provided therein.
LENDERS' EXPOSURE - the sum of the Aggregate Revolving Loan Commitment, the
Swingline Loan, and the Letter of Credit Exposure.
LETTER OF CREDIT - any standby or commercial (documentary) letter of credit
issued by Letter of Credit Issuer pursuant to the Letter of Credit
Commitment.
LETTER OF CREDIT COMMITMENT - the commitment of the Letter of Credit Issuer
to issue Letters of Credit as provided in Section 3.3.
LETTER OF CREDIT EXPOSURE - the undrawn amount of all outstanding letters of
credit issued under the Letter of Credit Commitment, plus all amounts drawn
on any and all such letters of credit and not yet reimbursed by Borrower.
LETTER OF CREDIT FEE - the fee payable to Administrative Agent and Lenders
as required in Section 5.2.
LETTER OF CREDIT ISSUER - LaSalle, or any other Lender succeeding to
LaSalle's commitment to issue Letters of Credit pursuant to Section 3.3.
LIBOR ADVANCE - an Advance that will become a LIBOR Loan.
LIBOR REVOLVING MARGIN - is defined in Section 4.5.
ix
LIBOR LOAN - any portion of an Aggregate Loan on which interest accrues at
the Adjusted LIBOR Rate.
LIBOR RATE - for the applicable Interest Period therefor, the interest rate
per annum equal to the quotient of: (a) the per annum rate of interest at
which United States dollar deposits in an amount comparable to the amount of
the relevant LIBOR Loan and for a period equal to the relevant Interest
Period are offered in the London Interbank Eurodollar market at 11:00 A.M.
(London time) two (2) Business Days prior to the commencement of such
Interest Period (or three (3) Business Days prior to the commencement of
such Interest Period if banks in London, England were not open and dealing
in offshore United States dollars on such second preceding Business Day), as
displayed in the Bloomberg Financial Markets system (or other authoritative
source selected by the Administrative Agent in its sole discretion) or, if
the Bloomberg Financial Markets system or another authoritative source is
not available, as the LIBOR Rate is otherwise determined by the
Administrative Agent in its sole and absolute discretion, divided by (b) a
number determined by subtracting from 1.00 the then stated maximum reserve
percentage for determining reserves to be maintained by member banks of the
Federal Reserve System for Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D),
such rate to remain fixed for such Interest Period. The Administrative
Agent's determination of the LIBOR Rate shall be conclusive, absent manifest
error.
LIFE INSURANCE POLICIES - those certain life insurance policies owned by
Borrower on the lives of certain of its present and former employees with a
current aggregate cash value of approximately $30,000,000.
LOAN - a Revolving Loan or a Swingline Loan.
LOAN AGREEMENT - this Agreement.
LOAN DOCUMENTS - this Agreement, each Master Letter of Credit Agreement, the
Notes, the Guaranties, any reimbursement agreement between Borrower and the
Letter of Credit Issuer, and all other agreements, certificates, documents,
instruments and other writings executed from time to time in connection
herewith or related hereto.
LOAN OBLIGATIONS - all of Borrower's Indebtedness owing to Letter of Credit
Issuer, Administrative Agent or Lenders under the Loan Documents, whether as
principal, interest, fees or otherwise, all reimbursement obligations of
Borrower to Letter of Credit Issuer or Lenders with respect to the Letter of
Credit Exposure, all Obligations to Administrative Agent, and all other
obligations and liabilities of Borrower to Administrative Agent or Lenders
under the Loan Documents and all Interest Hedge Obligations (in each case
including all extensions, renewals, modifications, rearrangements,
restructures, replacements and refinancings of the foregoing, whether or not
the same involve modifications to interest rates or other payment terms),
whether now existing or hereafter created, absolute or contingent, direct or
indirect, joint or several, secured or unsecured, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of
law or otherwise, including but not limited to the obligation of Borrower to
repay future advances by Administrative Agent or Lenders hereunder, whether
or not made pursuant to commitment and whether or not presently contemplated
by Borrower, Administrative Agent or Lenders in the Loan Documents.
LOAN YEAR - means a twelve month period beginning on the Effective Date (or
an annual anniversary thereof).
LOCAL TIME - the local time in the city in which Administrative Agent's
address is located, as set forth on the signature page hereto (as changed
from time to time in accordance with the terms hereof).
MARGIN - Base Rate Revolving Margin or LIBOR Revolving Margin.
MASTER LETTER OF CREDIT AGREEMENT --means, at any time, with respect to the
issuance of Letters of Credit, a master letter of credit agreement or
reimbursement agreement in the form, if any, being used by the Letter of
Credit Issuer at such time.
x
MATERIAL ADVERSE EFFECT - as to Borrower or any Covered Person and with
respect to any event or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, investigation or proceeding),
material adverse effect on (i) the business, operations, revenues, financial
condition, property, or business prospects of the Covered Persons taken as a
whole, (ii) the value of its assets taken as a whole or the value of the
Collateral taken as a whole, (iii) the validity or enforceability of the
Loan Documents, (iv) the ability of any Covered Person to timely pay or
perform such Covered Person's Obligations generally as they become due, (v)
in the case of Borrower specifically, the ability of Borrower to pay or
perform any of Borrower's Obligations to Lender, or (vi) in the case of a
Guarantor specifically, the ability of such Guarantor to pay or perform any
of its Obligations under the terms of its Guaranty.
MATERIAL AGREEMENT - as to any Person, any Contract to which such Person is
a party or by which such Person is bound which, if violated or breached, has
or is reasonably likely to have a Material Adverse Effect on such Person,
any Covered Person or any Guarantor, including without limitation all
Acquisition Documents.
MATERIAL LAW - any separately enforceable provision of a Law whose violation
by a Person has or is reasonably likely to have a Material Adverse Effect on
such Person or any Covered Person or any Guarantor.
MATERIAL LICENSE - (i) as to any Covered Person, any license, permit or
consent from a Governmental Authority or other Person and any registration
and filing with a Governmental Authority or other Person which if not
obtained, held or made by such Covered Person has or is reasonably likely to
have a Material Adverse Effect on such Covered Person or any other Covered
Person or any Guarantor, and (ii) as to any Person who is a party to this
Agreement or any of the other Loan Documents, any license, permit or consent
from a Governmental Authority or other Person and any registration or filing
with a Governmental Authority or other Person that is necessary for the
execution or performance by such party, or the validity or enforceability
against such party, of this Agreement or such other Loan Document.
MATERIAL OBLIGATION - as to any Person, an Obligation of such Person which
if not fully and timely paid or performed has or is reasonably likely to
have a Material Adverse Effect on such Person or any Covered Person or any
Guarantor.
MATERIAL PROCEEDING - any litigation, investigation or other proceeding by
or before any Governmental Authority (i) which involves any of the Loan
Documents or any of the transactions contemplated thereby, or involves a
Covered Person or a Guarantor as a party or any property of Covered Person
or a Guarantor, and has or is reasonably likely to have a Material Adverse
Effect on a Covered Person or a Guarantor if adversely determined, (ii) in
which there has been issued an injunction, writ, temporary restraining order
or any other order of any nature which purports to restrain or enjoin the
making of any Advance, the consummation of any other transaction
contemplated by the Loan Documents, or the enforceability of any provision
of any of the Loan Documents, (iii) which involves the actual or alleged
breach or violation by a Covered Person of, or default by a Covered Person
under, any Material Agreement, or (iv) which involves the actual or alleged
violation by a Covered Person or any Guarantor of any Material Law.
MATURITY - as to any Indebtedness, the time when it becomes payable in full,
whether at a regularly scheduled time, because of acceleration or otherwise.
MAXIMUM AVAILABLE AMOUNT - the maximum Dollar amount available for Revolving
Loan Advances on any date as limited in Section 3.1.3, as it may be changed
as provided herein.
MORTGAGE - any deed of trust or mortgage or leasehold deed of trust or
mortgage required or contemplated under this Agreement to be executed and
delivered to Administrative Agent for the benefit of Lenders in form and
substance satisfactory to Administrative Agent.
xi
MULTI-EMPLOYER PLAN - a Pension Benefit Plan which is a multi-employer plan
as defined in Section 4001(a)(3) of ERISA.
NOTE - any Revolving Note or the Swingline Note.
OBLIGATION - as to any Person, any Indebtedness of such Person, any guaranty
by such Person of any Indebtedness of another Person, and any contractual
requirement enforceable against such Person that does not constitute
Indebtedness of such Person or a guaranty by such Person but which would
involve the expenditure of money by such Person if complied with or
enforced.
OBLIGATIONS TO ADMINISTRATIVE AGENT - exclusive of all the Loan Obligations,
all of Borrower's Indebtedness owing to Administrative Agent (whether as
principal, interest, fees or otherwise), all obligations of Borrower under
agreements between Borrower and Administrative Agent under which the
exposure of Borrower to fluctuations in interest rates is effectively
limited, whether in the form of interest rate cap, collar or corridor
agreements, interest rate swaps, or the like, or options therefor, all
Indirect Obligations of Borrower owing to Administrative Agent, all
reimbursement obligations of Borrower to Administrative Agent with respect
to letters of credit, and all other obligations and liabilities of Borrower
to Administrative Agent including all extensions, renewals, modifications,
rearrangements, restructures, replacements and refinancings of the
foregoing, whether or not the same involve modifications to interest rates
or other payment terms), whether now existing or hereafter created, absolute
or contingent, direct or indirect, joint or several, secured or unsecured,
due or not due, contractual or tortious, liquidated or unliquidated, arising
by operation of law or otherwise, or acquired by Administrative Agent
outright, conditionally or as collateral security from another, including
the obligation of Borrower to repay future advances by Administrative Agent,
whether or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Administrative Agent.
PBGC - the Pension Benefit Guaranty Corporation.
PENSION BENEFIT PLAN - any pension or profit-sharing plan which is covered
by Title I of ERISA and all other benefit plans, in each case in respect of
which a Covered Person or a Commonly Controlled Entity of such Covered
Person is an employer as defined in Section 3(5) of ERISA.
PERMITTED ACQUISITIONS - any acquisition by Borrower or a Covered Person of
stock, membership interests, or other equity interests of another Person or
the assets of another Person permitted under Section 13.5.
PERMITTED ENCUMBRANCE - any encumbrance on the Real Estate Collateral that
is listed on a permitted encumbrance exhibit to any Mortgage.
PERMITTED INDEBTEDNESS - Indebtedness that Borrower is permitted under
Section 13.2 to incur, assume, or allow to exist.
PERMITTED INDIRECT OBLIGATIONS - Indirect Obligations that Borrower is
permitted under Section 13.3 to create, incur, assume, or allow to exist.
PERMITTED INVESTMENTS - Investments that Borrower is permitted under Section
13.1 to make in other Persons.
PERMITTED SECURITY INTERESTS - Security Interests that Borrower is permitted
under Section 13.4 to create, incur, assume, or allow to exist.
PERSON - any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental
Authority, or other organization in any form that has the legal capacity to
▇▇▇ or be sued. If the context so implies or requires, the term Person
includes Borrower.
PERSONAL PROPERTY COLLATERAL - all of the Goods, Equipment, Accounts,
Inventory, Instruments, Documents, Chattel Paper, General Intangibles,
Securities and other personal property of Borrower,
xii
whether now owned or hereafter acquired, and all proceeds thereof, in which
Administrative Agent at any time holds a Security Interest for the benefit
of Lenders.
PRIME RATE - on any day, the rate of interest per annum then most recently
established by Administrative Agent as its Prime Rate. Such rate is a
general reference rate of interest, may not be related to any other rate,
and may not be the lowest or best rate actually charged by Administrative
Agent to any customer or a favored rate and may not correspond with future
increases or decreases in interest rates charged by other lenders or market
interest rates in general.
PROFORMA FINANCIAL STATEMENTS - the proforma financial statements referred
to in Section 8.1.2.
REAL ESTATE COLLATERAL - all real property of Borrower or any other Covered
Person, whether now owned or hereafter acquired, including, without
limitation, the Delayed Sites, in which Administrative Agent holds or will
hold a first priority Security Interest to secure the payment or performance
of any of the Loan Obligations as required or contemplated by this
Agreement, and all income therefrom and proceeds thereof.
REDEMPTION/DISTRIBUTION - is defined in Section 13.7.3.
REGULATION D, REGULATION T, REGULATION U and REGULATION X - respectively,
Regulation D issued by the FRB, Regulation T issued by the FRB, Regulation U
issued by the FRB and Regulation X issued by the FRB.
REPORTABLE EVENT - a reportable event as defined in Title IV of ERISA or the
regulations thereunder.
REPRESENTATIONS AND WARRANTIES - the representations and warranties made by
any Covered Person with respect to itself and any other Covered Persons in
Section 10, and the representations and warranties made in any other Loan
Document or certificate, report, opinion or other document delivered by
Borrower, any Guarantor, or any other Covered Person pursuant to the Loan
Documents, as such representations and warranties are modified from time to
time as provided in Section 11.
REQUIRED LENDERS - is defined in Section 2.4.
RESPONSIBLE OFFICER - as to any Person that is not an individual,
partnership, limited liability company or trust, the Chairman of the Board
of Directors, the President, the chief executive officer, the chief
operating officer, the Chief Financial Officer, the Treasurer, any Assistant
to the Treasurer, or any Vice President in charge of a principal business
unit; as to any partnership, any individual who is a general partner thereof
or any individual who has general management or administrative authority
over all or any principal unit of the partnership's business; as to any
limited liability company, any managing member, or manager, any individual
who has general management or administrative authority over all or any
principal unit of the limited liability company's business; and as to any
trust, any individual who is a trustee.
REVOLVING LOAN - any Lender's pro-rata share of the Aggregate Revolving
Loan.
REVOLVING LOAN ADVANCE - an Advance by Administrative Agent that is to be
funded by Lenders under the Aggregate Revolving Loan Commitment.
REVOLVING LOAN COMMITMENT - the commitment of each Lender as stated in
Section 3.1.1 to fund Revolving Loan Advances, as it may be changed as
provided in this Agreement.
REVOLVING LOAN MATURITY DATE - the date when Borrower must repay the amount
of Aggregate Revolving Loan then outstanding as provided in Section 6.1.2.
REVOLVING LOAN UNUSED FEE - the fee described in Section 5.1.
REVOLVING NOTE - any note delivered to a Lender as required by Section 3.1.4
to evidence Borrower's obligation to repay such Lender's Revolving Loan.
xiii
SECURITY AGREEMENT - any security agreement required or contemplated under
this Agreement to be executed and delivered to Administrative Agent for the
benefit of Lenders.
SECURITY DOCUMENTS - all of the documents required or contemplated to be
executed and delivered to Administrative Agent for the benefit of Lenders
under this Agreement, all other documents granting a Security Interest in
any asset of Borrower or any other Person to secure the payment or
performance of any of the Loan Obligations from time to time, including any
similar documents at any time executed and delivered to Administrative Agent
for the benefit of Lenders from time to time, by Borrower, any Covered
Person, or any other Person to secure payment or performance of any of the
Loan Obligations.
SECURITY INTEREST - as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a
Contract, or by operation of law or statute (such as but not limited to a
statutory lien for work or materials), or as a result of a judgment, or
which arises under any form of preferential or title retention agreement or
arrangement (including a conditional sale agreement or a lease) that has
substantially the same economic effect as any of the foregoing; provided
however, that the term "Security Interest" is not intended to include a
notice filing by a lessor regarding ownership of property subject to a true
operating lease so long as such notice filing or any related agreement does
not contain a grant of a lien or security interest and does not cover
property or assets not subject to such true operating lease.
SELLER - any Person who is a party to any Permitted Acquisition other than
Borrower or a Covered Person.
SMALL PERMITTED ACQUISITIONS - is defined in Section 13.5.
SOLVENT - as to any Person, (i) such Person not being "insolvent" within the
meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (the "UFTA") or Section 3 of the Illinois Uniform
Fraudulent Transfer Act set forth in Section 160/3 of the Illinois Compiled
Statutes (1996) (the "Illinois UFTA"), (ii) such Person not having
unreasonably small capital, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the Illinois UFTA,
and (iii) such Person not being unable to pay such Person's debts as they
become due within the meaning of Section 548 of the Bankruptcy Code, Section
4 of the UFTA, or Section 5 of the Illinois UFTA.
STOCK DIVIDEND - is defined in Section 13.7.
SUBSIDIARY - as to any Person, another Person with respect to which more
than 40% of the outstanding shares of stock or other equity interests of
each class having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) is at the time owned by
such Person or by one or more Subsidiaries of such Person.
SURVIVING COMPANY - as applicable, either (i) the Person that will own the
assets to be acquired from a Target Company in a Permitted Acquisition upon
the consummation thereof, or (ii) the survivor of the merger of an Acquiring
Company with the Target Company in a Permitted Acquisition upon the
consummation thereof.
SWINGLINE ADVANCE - an advance by Administrative Agent to Borrower under the
Swingline Commitment.
SWINGLINE COMMITMENT - the commitment of Administrative Agent as stated in
Section 3.2.1 to make Swingline Advances.
SWINGLINE LOAN - the from time to time outstanding principal balance of all
Swingline Advances.
TARGET COMPANY - the Person whose assets or stock, membership interests, or
other equity interests will be acquired in a Permitted Acquisition upon the
consummation thereof, or if applicable, with which an Acquiring Company will
merge in a Permitted Acquisition upon the consummation thereof.
xiv
TAX - as to any Person, any tax, duty, impost, deduction, charges,
withholdings, assessment, fee, or other charge 1evied by a Governmental
Authority (and all liabilities associated therewith) on the income or
property of such Person, including any interest or penalties thereon, and
which is payable by such Person.
THIS AGREEMENT - this document (including every document that is stated
herein to be an appendix, exhibit or schedule hereto, whether or not
physically attached to this document).
UCC - the Uniform Commercial Code as in effect from time to time in the
State of Illinois or such other similar statute as in effect from time to
time in Illinois or any other appropriate jurisdiction.
UNITED STATES - when used in a geographical sense, all the states of the
United States of America and the District of Columbia; and when used in a
legal jurisdictional sense, the government of the country that is the United
States of America.
WAGE AND HOUR LAWS - the ▇▇▇▇▇-▇▇▇▇▇ Act, the Service Contract Act, the
Contract Work Hours & Safety Standards Act and any other federal Law
governing wage compensation or hours of work.
WELFARE BENEFIT PLAN - any plan described by Section 3(1) of ERISA.
xv
EXHIBIT 3
LENDERS' COMMITMENTS AND PRO-RATA SHARES
----------------------------------------------------------------------------------------
REVOLVING
LOAN
LENDER TOTALS COMMITMENT PRO-RATA SHARES
----------------------------------------------------------------------------------------
LaSalle Bank National $47,500,000.00 $47,500,000.00 31.666666667%
Association
----------------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Bank, N.A. $32,500,000.00 $32,500,000.00 21.666666667%
----------------------------------------------------------------------------------------
UMB Bank, National
Association $29,000,000.00 $29,000,000.00 19.333333333%
----------------------------------------------------------------------------------------
National City Bank of
the Midwest $18,000,000.00 $18,000,000.00 12.000000000%
----------------------------------------------------------------------------------------
Regions Bank $23,000,000.00 $23,000,000.00 15.333333333%
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
AGGREGATES $150,000,000.00 $150,000,000.00 100.000000000%
----------------------------------------------------------------------------------------
i