Exhibit 10.1
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CREDIT AGREEMENT
DATED AS OF NOVEMBER 19, 2004
among
ENNIS, INC.,
as the Company
EACH OF THE OTHER CO-BORROWERS PARTY HERETO,
as Co-Borrowers
THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent,
and
COMPASS BANK AND JPMORGAN CHASE BANK, N.A.,
as Co-Syndication Agents
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LASALLE BANK NATIONAL ASSOCIATION,
as Arranger
SECTION 1 DEFINITIONS 1
1.1 Definitions 1
1.2 Other Interpretive Provisions 19
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION
AND LETTER OF CREDIT PROCEDURES 20
2.1 Commitments 20
2.1.1 Revolving Loan Commitment 20
2.1.2 Increase in Revolving Commitment 20
2.1.3 Term Loan Commitment 21
2.1.4 L/C Commitment 21
2.2 Loan Procedures 21
2.2.1 Various Types of Loans 21
2.2.2 Borrowing Procedures 21
2.2.3 Conversion and Continuation Procedures 22
2.2.4 Swing Line Facility 23
2.3 Letter of Credit Procedures 25
2.3.1 L/C Applications 25
2.3.2 Participations in Letters of Credit 25
2.3.3 Reimbursement Obligations 26
2.3.4 Funding by Lenders to Issuing Lender 26
2.4 Commitments Several 27
2.5 Certain Conditions 27
2.6 Appointment of the Parent as Agent for
Co-Borrowers; Reliance by Administrative Agent 27
SECTION 3 EVIDENCING OF LOANS 28
3.1 Notes 28
3.2 Recordkeeping 28
SECTION 4 INTEREST 28
4.1 Interest Rates 28
4.2 Interest Payment Dates 28
4.3 Setting and Notice of LIBOR Rates 29
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4.4 Computation of Interest 29
SECTION 5 FEES 29
5.1 Non-Use Fee 29
5.2 Letter of Credit Fees 29
5.3 Administrative Agent's Fees 30
SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING
COMMITMENT; PREPAYMENTS 30
6.1 Reduction or Termination of the Revolving
Commitment 30
6.1.1 Voluntary Reduction or Termination
of theRevolving Commitment 30
6.1.2 INTENTIONALLY OMITTED 30
6.1.3 All Reductions of the Revolving
Commitment 30
6.2 Prepayments 30
6.2.1 Voluntary Prepayments 30
6.2.2 Mandatory Prepayments 30
6.3 Manner of Prepayments 31
6.3.1 All Prepayments 31
6.4 Repayments 32
6.4.1 Revolving Loans 32
6.4.2 Term Loans 32
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES 32
7.1 Making of Payments 32
7.2 Application of Certain Payments 32
7.3 Due Date Extension 32
7.4 Setoff 33
7.5 Proration of Payments 33
7.6 Taxes 33
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR
LOANS 35
8.1 Increased Costs 35
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8.2 Basis for Determining Interest Rate Inadequate or
Unfair 36
8.3 Changes in Law Rendering LIBOR Loans Unlawful 36
8.4 Funding Losses 37
8.5 Right of Lenders to Fund through Other Offices 37
8.6 Discretion of Lenders as to Manner of Funding 37
8.7 Mitigation of Circumstances; Replacement of
Lenders 37
8.8 Conclusiveness of Statements; Survival of
Provisions 38
SECTION 9 REPRESENTATIONS AND WARRANTIES 38
9.1 Organization 38
9.2 Authorization; No Conflict 38
9.3 Validity and Binding Nature 39
9.4 Financial Condition 39
9.5 No Material Adverse Change 39
9.6 Litigation and Contingent Liabilities 39
9.7 Ownership of Properties; Liens 39
9.8 Equity Ownership; Subsidiaries 39
9.9 Pension Plans 40
9.10 Investment Company Act 41
9.11 Public Utility Holding Company Act 41
9.12 Regulations T, U and X 41
9.13 Taxes 41
9.14 Solvency, etc 41
9.15 Environmental Matters 41
9.16 Insurance 42
9.17 Real Property 42
9.18 Information 42
9.19 Intellectual Property 43
9.20 Burdensome Obligations 43
9.21 Labor Matters 43
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9.22 No Default 43
9.23 Related Agreements, etc 43
SECTION 10 AFFIRMATIVE COVENANTS 44
10.1 Reports, Certificates and Other Information 44
10.1.1 Annual Report 44
10.1.2 Interim Reports 44
10.1.3 Compliance Certificates 44
10.1.4 Reports to the SEC and to Shareholders 45
10.1.5 Notice of Default, Litigation and ERISA
Matters 45
10.1.6 Management Reports 46
10.1.7 Projections 46
10.1.8 Subordinated Debt and Related
Transaction Notices 46
10.1.9 Other Information 46
10.2 Books, Records and Inspections 46
10.3 Maintenance of Property; Insurance 47
10.4 Compliance with Laws; Payment of Taxes and
Liabilities 48
10.5 Maintenance of Existence, etc 48
10.6 Use of Proceeds 48
10.7 Employee Benefit Plans 49
10.8 Environmental Matters 49
10.9 Further Assurances 49
SECTION 11 NEGATIVE COVENANTS 50
11.1 Debt 50
11.2 Liens 51
11.3 Operating Leases 52
11.4 Restricted Payments 52
11.5 Mergers, Consolidations, Sales 52
11.6 Modification of Organizational Documents;
Factoring Facility 54
11.7 Transactions with Affiliates 54
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11.8 Unconditional Purchase Obligations 54
11.9 Inconsistent Agreements 54
11.10 Business Activities 54
11.11 Investments 55
11.12 Restriction of Amendments to Certain Documents 55
11.13 Fiscal Year 55
11.14 Financial Covenants 55
11.14.1 Fixed Charge Coverage Ratio 55
11.14.2 Total Funded Debt to EBITDA Ratio 56
11.14.3 Minimum Net Worth 56
11.15 Cancellation of Debt 56
11.16 Contingent Liabilities 56
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC 56
12.1 Initial Credit Extension 56
12.1.1 Notes 57
12.1.2 Authorization Documents 57
12.1.3 Consents, etc 57
12.1.4 Letter of Direction 57
12.1.5 Security Agreement 57
12.1.6 Perfection Certificate 57
12.1.7 Real Estate Documents 57
12.1.8 Opinions of Counsel 58
12.1.9 Insurance 58
12.1.10 Copies of Documents 58
12.1.11 Payment of Fees 58
12.1.12 Solvency Certificate 59
12.1.13 Pro Forma; Financial Statements 59
12.1.14 Environmental Reports 59
12.1.15 Search Results; Lien Terminations 59
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12.1.16 Filings, Registrations and Recordings 59
12.1.17 Closing Certificate, Consents
and Permits 59
12.1.18 Account Control Agreements 60
12.1.19 Other 60
12.2 Conditions 60
12.2.1 Compliance with Warranties,
No Default, etc. 60
12.2.2 Confirmatory Certificate 60
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT 60
13.1 Events of Default 60
13.1.1 Non-Payment of the Loans, etc 61
13.1.2 Non-Payment of Other Debt 61
13.1.3 Other Material Obligations 61
13.1.4 Bankruptcy, Insolvency, etc 61
13.1.5 Non-Compliance with Loan Documents 61
13.1.6 Representations; Warranties 61
13.1.7 Pension Plans 62
13.1.8 Judgments 62
13.1.9 Invalidity of Collateral Documents, etc 62
13.1.10 Invalidity of Subordination
Provisions, etc. 62
13.1.11 Change of Control 62
13.2 Effect of Event of Default 62
SECTION 14 THE AGENTS 63
14.1 Appointment and Authorization 63
14.2 Issuing Lender 63
14.3 Delegation of Duties 63
14.4 Exculpation of Administrative Agent 64
14.5 Reliance by Administrative Agent 64
14.6 Notice of Default 65
14.7 Credit Decision 65
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14.8 Indemnification 65
14.9 Administrative Agent in Individual Capacity 66
14.10 Successor Administrative Agent 66
14.11 Collateral Matters 67
14.12 Administrative Agent May File Proofs of Claim 67
14.13 Other Agents; Arrangers and Managers 68
14.14 Relationship Among Lenders 68
14.15 Benefit of Article 68
SECTION 15 GENERAL 68
15.1 Waiver; Amendments 68
15.2 Confirmations 69
15.3 Notices 69
15.4 Computations 69
15.5 Costs, Expenses and Taxes 70
15.6 Assignments; Participations 70
15.6.1 Assignments 70
15.6.2 Participations 71
15.7 Register 72
15.8 Governing Law 72
15.9 Confidentiality 72
15.10 Severability 73
15.11 Nature of Remedies 73
15.12 Entire Agreement 74
15.13 Counterparts 74
15.14 Successors and Assigns 74
15.15 Captions 74
15.16 Customer Identification - USA Patriot Act Notice 74
15.17 Indemnification by the Company 74
15.18 Nonliability of Lenders 75
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15.19 Forum Selection and Consent to Jurisdiction 76
15.20 Waiver of Jury Trial 77
SECTION 16 CROSS-GUARANTY 77
16.1 Cross-Guaranty 77
16.2 Waivers by Co-Borrowers 77
16.3 Benefit of Guaranty 78
16.4 Waiver of Subrogation, Etc 78
16.5 Election of Remedies 78
16.6 Limitation 78
16.7 Contribution with Respect to Guaranty
Obligations 79
16.8 Liability Cumulative 80
16.9 Stay of Acceleration 80
16.10 Benefit to Co-Borrowers 80
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ANNEXES
ANNEX A Lenders and Pro Rata Shares
ANNEX B Addresses for Notices
SCHEDULES
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Subsidiaries
SCHEDULE 9.16 Insurance
SCHEDULE 9.17 Real Property
SCHEDULE 9.21 Labor Matters
SCHEDULE 11.1 Existing Debt
SCHEDULE 11.2 Existing Liens
SCHEDULE 11.11 Investments
SCHEDULE 12.1 Debt to be Repaid
EXHIBITS
EXHIBIT A-1 Form of Term Note
EXHIBIT A-2 Form of Revolving Note
EXHIBIT A-3 Form of Swing Line Note
EXHIBIT B Form of Compliance Certificate (Section
10.1.3)
EXHIBIT C Form of Assignment Agreement (Section 15.6.1)
EXHIBIT D Form of Notice of Borrowing (Section 2.2.2)
EXHIBIT E Form of Notice of Conversion/Continuation
(Section 2.2.3)
CREDIT AGREEMENT
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THIS CREDIT AGREEMENT dated as of November 19, 2004 (this
"Agreement") is entered into among ENNIS, INC. (the "Parent"),
EACH OF THE PARTIES LISTED UNDER THE HEADING CO-BORROWERS ON THE
SIGNATURE PAGES HERETO (individually with the Parent referred to
herein as a "Co-Borrower" and collectively with the Parent
called, the "Company"), the financial institutions that are or
may from time to time become parties hereto (together with their
respective successors and assigns, the "Lenders") LASALLE BANK
NATIONAL ASSOCIATION (in its individual capacity, "LaSalle"), as
administrative agent for the Lenders, JPMorgan Chase Bank, N.A.
and Compass Bank, as co-syndication agent (the "Syndication
Agents") and LASALLE BANK NATIONAL ASSOCIATION, as documentation
agent (the "Documentation Agent").
The Lenders have agreed to make available to the Company
term loans and a revolving credit facility (which includes
letters of credit) upon the terms and conditions set forth
herein.
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
1.1 Definitions. When used herein the following terms
shall have the following meanings:
Account Debtor is defined in the Security Agreement.
Account or Accounts is defined in the UCC.
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of all or substantially all of any
business or division of a Person, (b) the acquisition of in
excess of 50% of the Capital Securities of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another
Person (other than a Person that is already a Subsidiary).
Administrative Agent means LaSalle in its capacity as
administrative agent for the Lenders hereunder and any successor
thereto in such capacity.
Affected Loan - see Section 8.3.
Affiliate of any Person means (a) any other Person which,
directly or indirectly, controls or is controlled by or is under
common control with such Person, (b) any officer or director of
such Person and (c) with respect to any Lender, any entity
administered or managed by such Lender or an Affiliate or
investment advisor thereof and which is engaged in making,
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purchasing, holding or otherwise investing in commercial loans.
A Person shall be deemed to be "controlled by" any other Person
if such Person possesses, directly or indirectly, power to vote
10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managers
or power to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise. Unless
expressly stated otherwise herein, neither the Administrative
Agent nor any Lender shall be deemed an Affiliate of any Loan
Party.
Agent Fee Letter means the Fee letter dated as of June 22,
2004 between the Parent and the Administrative Agent.
Aggregate Revolving Commitment means $100,000,000, as
reduced from time to time pursuant to Section 6.1.
Aggregate Term Commitment means $50,000,000; provided that
after the Closing Date, the "Aggregate Term Commitment" shall be
$0.
Agreement - see the Preamble.
Allocable Amount - see Section 16.7(b).
Applicable Margin means, for any day, the rate per annum set
forth below opposite the level (the "Level") then in effect, it
being understood that the Applicable Margin for (i) LIBOR Loans
shall be the percentage set forth under the column "LIBOR
Margin", (ii) Base Rate Loans shall be the percentage set forth
under the column "Base Rate Margin", (iii) the Non-Use Fee Rate
shall be the percentage set forth under the column "Non-Use Fee
Rate" and (iv) the L/C Fee shall be the percentage set forth
under the column "L/C Fee Rate":
Base
Total Funded Debt LIBOR Rate Non-Use L/C Fee
Level to EBITDA Ratio Margin Margin Fee Rate Rate
- ----- ----------------- ------ ------ -------- ----
I Greater than or
equal to 2.00:1 1.75% 0.50% 0.40% 1.75%
II Greater than or
equal to 1.50:1 but
less than 2.00:1 1.50% 0.25% 0.35% 1.50%
III Greater than or
equal to 1.00:1 but
less than 1.50:1 1.25% 0% 0.30% 1.25%
IV Greater than or
equal to 0.50:1 but
less than 1.00:1 1.00% 0% 0.25% 1.00%
V Less than 0.50:1 0.75% 0% 0.20% 0.75%
The LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate
and the L/C Fee Rate shall be adjusted, to the extent applicable,
on the fifth (5th) Business Day after the Company provides or is
required to provide the annual and quarterly financial statements
and other
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information pursuant Section 10.1.1 or 10.1.2, as applicable, and
the related Compliance Certificate, pursuant to Section 10.1.3.
Notwithstanding anything contained in this paragraph to the
contrary, (a) if the Company fails to deliver the such financial
statements and Compliance Certificate within ten (10) Business
Days of the date required under the provisions of Section 10.1.1,
10.1.2 and 10.1.3, the LIBOR Margin, the Base Rate Margin, the
Non-Use Fee Rate and the L/C Fee Rate shall be based upon Level I
above beginning on the 10th Business Day after the date such
financial statements and Compliance Certificate were required to
be delivered until the fifth (5th) Business Day after such
financial statements and Compliance Certificate are actually
delivered, whereupon the Applicable Margin shall be determined by
the then current Level; (b) no reduction to any Applicable
Margin shall become effective at any time when an Event of
Default or Unmatured Event of Default has occurred and is
continuing; and (c) the initial Applicable Margin on the Closing
Date shall be based on Level II until the date on which the
financial statements and Compliance Certificate are required to
be delivered for the Fiscal Quarter ending May 31, 2005.
Asset Disposition means the sale, lease, assignment or other
transfer for value (each, a "Disposition") by any Loan Party to
any Person (other than a Loan Party) of any asset or right of
such Loan Party (including, the loss, destruction or damage of
any thereof or any actual or threatened (in writing to any Loan
Party) condemnation, confiscation, requisition, seizure or taking
thereof) other than (a) the Disposition of any asset which is to
be replaced, and is in fact replaced, within 180 days with
another asset performing the same or a similar function, (b) the
sale or lease of inventory in the ordinary course of business and
(c) the Disposition of any assets in any Fiscal Year for
aggregate consideration, which in the aggregate for all other
Dispositions under this clause (c) during such Fiscal Year, does
not exceed $1,000,000.
Assignee - see Section 15.6.1.
Assignment Agreement - see Section 15.6.1.
Attorney Costs means, with respect to any Person, all
reasonable fees and charges of any legal counsel to such Person
and all court costs and similar legal expenses.
Bank Product Agreements means those certain cash management
service agreements entered into from time to time between any
Loan Party and a Lender or its Affiliates in connection with any
of the Bank Products.
Bank Product Obligations means all obligations, liabilities,
contingent reimbursement obligations, fees, and expenses owing by
the Loan Parties to any Lender or its Affiliates pursuant to or
evidenced by the Bank Product Agreements and irrespective of
whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising, and including all such amounts that a Loan
Party is obligated to reimburse to the Administrative Agent or
any Lender as a result of the Administrative Agent or such Lender
purchasing participations or executing indemnities or
reimbursement obligations with respect to the Bank Products
provided to the Loan Parties pursuant to the Bank Product
Agreements.
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Bank Products means any service or facility (but excluding
the Loans and the Letters of Credit) extended to any Loan Party
by any Lender or its Affiliates including: (a) credit cards, (b)
credit card processing services, (c) debit cards, (d) purchase
cards, (e) ACH Transactions, (f) cash management, including
controlled disbursement accounts or services, or (g) Hedging
Agreements.
Base Rate means at any time the greater of (a) the Federal
Funds Rate plus 0.5% and (b) the Prime Rate.
Base Rate Loan means any Loan which bears interest at or by
reference to the Base Rate.
Base Rate Margin - see the definition of Applicable Margin.
BSA - see Section 10.4.
Business Day means any day on which LaSalle is open for
commercial banking business in Chicago, Illinois and, in the case
of a Business Day which relates to a LIBOR Loan, on which
dealings are carried on in the London interbank eurodollar
market.
Capital Expenditures means all expenditures which, in
accordance with GAAP, would be required to be capitalized and
shown on the consolidated balance sheet of the Company, including
expenditures in respect of Capital Leases, but excluding
expenditures made in connection with the replacement,
substitution or restoration of assets to the extent financed (a)
from insurance proceeds (or other similar recoveries) paid on
account of the loss of or damage to the assets being replaced or
restored or (b) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being
replaced.
Capital Lease means, with respect to any Person, any lease
of (or other agreement conveying the right to use) any real or
personal property by such Person that, in conformity with GAAP,
is accounted for as a capital lease on the balance sheet of such
Person.
Capital Securities means, with respect to any Person, all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's
capital, whether now outstanding or issued or acquired after the
Closing Date, including common shares, preferred shares,
membership interests in a limited liability company, limited or
general partnership interests in a partnership, interests in a
trust, interests in other unincorporated organizations or any
other equivalent of such ownership interest.
Cash Collateralize means to deliver cash collateral to the
Administrative Agent, to be held as cash collateral for
outstanding Letters of Credit, pursuant to documentation
satisfactory to the Administrative Agent. Derivatives of such
term have corresponding meanings.
Cash Equivalent Investment means, at any time, (a) any
evidence of Debt, maturing not more than one year after such
time, issued or guaranteed by the United States Government or any
agency thereof, (b) commercial paper, maturing not more than one
year from the date of issue, or
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corporate demand notes, in each case (unless issued by a Lender
or its holding company) rated at least A-l by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc.
or P-l by Moody's Investors Service, Inc., (c) any certificate of
deposit, time deposit or banker's acceptance, maturing not more
than one year after such time, or any overnight Federal Funds
transaction that is issued or sold by any Lender or its holding
company (or by a commercial banking institution that is a member
of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000), (d)
any repurchase agreement entered into with any Lender (or
commercial banking institution of the nature referred to in
clause (c)) which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (c) above and (ii) has a market value at the
time such repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Lender (or other
commercial banking institution) thereunder and (e) money market
accounts or mutual funds which invest exclusively in assets
satisfying the foregoing requirements, and (f) other short term
liquid investments approved in writing by the Administrative
Agent.
Centrum means Centrum Acquisition, Inc., a Delaware
corporation.
Change of Control means the occurrence of any of the
following events: (a) any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of
1934) shall acquire beneficial ownership (within the meaning of
Rule 13d-3 promulgated under such Act) of more than 50% of the
outstanding securities (on a fully diluted basis and taking into
account any securities or contract rights exercisable,
exchangeable or convertible into equity securities) of the
Company having voting rights in the election of directors under
normal circumstances; (b) a majority of the members of the Board
of Directors of the Company shall cease to be Continuing Members;
or (c) the Company shall cease to, directly or indirectly, own
and control 100% of each class of the outstanding Capital
Securities of each Co-Borrower and of each other Subsidiary. For
purposes of the foregoing, "Continuing Member" means a member of
the Board of Directors of the Company who either (i) was a member
of the Company's Board of Directors on the day before the Closing
Date and has been such continuously thereafter or (ii) became a
member of such Board of Directors after the day before the
Closing Date and whose election or nomination for election was
approved by a vote of the majority of the Continuing Members then
members of the Company's Board of Directors.
Closing Date - see Section 12.1.
Co-Borrower - see the Preamble.
Code means the Internal Revenue Code of 1986.
Collateral Access Agreement means an agreement in form and
substance reasonably satisfactory to the Administrative Agent
pursuant to which a mortgagee or lessor of real property on which
collateral is stored or otherwise located, or a warehouseman,
processor or other bailee of Inventory or other property owned by
any Loan Party, acknowledges the Liens of the Administrative
Agent and waives any Liens held by such Person on such property,
and, in the
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case of any such agreement with a mortgagee or lessor, permits
the Administrative Agent reasonable access to and use of such
real property following the occurrence and during the continuance
of an Event of Default to assemble, complete and sell any
collateral stored or otherwise located thereon.
Collateral Documents means, collectively, the Security
Agreement, each Mortgage, each Collateral Access Agreement, each
Perfection Certificate, each control agreement and any other
agreement or instrument pursuant to which the Company, any
Subsidiary or any other Person grants or purports to grant
collateral to the Administrative Agent for the benefit of the
Lenders or otherwise relates to such collateral.
Commitment means, as to any Lender, such Lender's commitment
to make Loans, and to issue or participate in Letters of Credit,
under this Agreement. The initial amount of each Lender's
commitment to make Loans is set forth on Annex A. Each Lender's
commitment to make Term Loans is described herein as its "Term
Commitment" and each Lender's commitment to make Revolving Loans
is described herein as its "Revolving Commitment".
Company - see the Preamble.
Compliance Certificate means a Compliance Certificate in
substantially the form of Exhibit B.
Computation Period means each period of four consecutive
Fiscal Quarters ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Company
and its Subsidiaries for any period, the net income (or loss) of
the Company and its Subsidiaries for such period, excluding any
gains from Asset Dispositions, any extraordinary gains and any
gains from discontinued operations.
Contingent Liability means, with respect to any Person, each
obligation and liability of such Person and all such obligations
and liabilities of such Person incurred pursuant to any
agreement, undertaking or arrangement by which such Person: (a)
guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a
creditor against loss) the indebtedness, dividend, obligation or
other liability of any other Person in any manner (other than by
endorsement of instruments in the course of collection),
including any indebtedness, dividend or other obligation which
may be issued or incurred at some future time; (b) guarantees the
payment of dividends or other distributions upon the Capital
Securities of any other Person; (c) undertakes or agrees (whether
contingently or otherwise): (i) to purchase, repurchase, or
otherwise acquire any indebtedness, obligation or liability of
any other Person or any property or assets constituting security
therefor, (ii) to advance or provide funds for the payment or
discharge of any indebtedness, obligation or liability of any
other Person (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, working capital or
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other financial condition of any other Person, or (iii) to make
payment to any other Person other than for value received; (d)
agrees to lease property or to purchase securities, property or
services from such other Person with the purpose or intent of
assuring the owner of such indebtedness or obligation of the
ability of such other Person to make payment of the indebtedness
or obligation; (e) to induce the issuance of, or in connection
with the issuance of, any letter of credit for the benefit of
such other Person; or (f) undertakes or agrees otherwise to
assure a creditor against loss. The amount of any Contingent
Liability shall (subject to any limitation set forth herein) be
deemed to be the outstanding principal amount (or maximum
permitted principal amount, if larger) of the indebtedness,
obligation or other liability guaranteed or supported thereby.
Controlled Group means all members of a controlled group of
corporations, all members of a controlled group of trades or
businesses (whether or not incorporated) under common control and
all members of an affiliated service group which, together with
the Company or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code or Section 4001 of ERISA.
Debt of any Person means, without duplication, (a) all
indebtedness of such Person (excluding trade accounts payable in
the ordinary course of business and accrued expenses arising in
the ordinary course of business), (b) all borrowed money of such
Person, whether or not evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person as lessee
under Capital Leases which have been or should be recorded as
liabilities on a balance sheet of such Person in accordance with
GAAP, (d) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts
payable in the ordinary course of business and accrued expenses
arising in the ordinary course of business), (e) all indebtedness
secured by a Lien on the property of such Person, whether or not
such indebtedness shall have been assumed by such Person;
provided that if such Person has not assumed or otherwise become
liable for such indebtedness, such indebtedness shall be measured
at the fair market value of such property securing such
indebtedness at the time of determination, (f) all obligations,
contingent or otherwise, with respect to the face amount of all
letters of credit (whether or not drawn), bankers' acceptances
and similar obligations issued for the account of such Person
(including the Letters of Credit), (g) all Hedging Obligations of
such Person, (h) all guarantees of indebtedness of any Person,
and (i) all Debt of any partnership of which such Person is a
general partner.
Debt to be Repaid means Debt listed on Schedule 12.1.
Designated Proceeds - see Section 6.2.2(a).
Dollar and the sign "$" mean lawful money of the United
States of America.
EBITDA means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining such
Consolidated Net Income, Interest Expense, income tax expense,
depreciation and amortization for such period.
7
Environmental Claims means all claims, however asserted, by
any governmental, regulatory or judicial authority or other
Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release or injury to
the environment.
Environmental Laws means all present or future federal,
state or local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with all
administrative or judicial orders, consent agreements, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any governmental authority, in each case
relating to any matter arising out of or relating to public
health and safety, or pollution or protection of the environment
or workplace, including any of the foregoing relating to the
presence, use, production, generation, handling, transport,
treatment, storage, disposal, distribution, discharge, emission,
release, threatened release, control or cleanup of any Hazardous
Substance.
ERISA means the Employee Retirement Income Security Act of
1974.
Event of Default means any of the events described in
Section 13.1.
Excess Cash Flow means, for any period, the remainder of (a)
EBITDA for such period, minus (b) the sum, without duplication,
of (i) scheduled repayments of principal of the Term Loans made
during such period, plus (ii) voluntary prepayments of the Term
Loans made pursuant to Section 6.2.1 during such period, plus
(iii) cash payments made in such period with respect to Capital
Expenditures, plus (iv) all income taxes paid in cash by the Loan
Parties during such period, plus (v) cash Interest Expense of the
Loan Parties during such period.
Excluded Taxes means taxes based upon, or measured by, the
Lender's or Administrative Agent's (or a branch of the Lender's
or Administrative Agent's) overall net income, overall net
receipts, or overall net profits (including franchise taxes
imposed in lieu of such taxes), but only to the extent such taxes
are imposed by a taxing authority (a) in a jurisdiction in which
such Lender or Administrative Agent is organized, (b) in a
jurisdiction which the Lender's or Administrative Agent's
principal office is located, or (c) in a jurisdiction in which
such Lender's or Administrative Agent's lending office (or
branch) in respect of which payments under this Agreement are
made is located.
Factoring Facility means those certain arrangements pursuant
to (a) that certain Second Amended and Restated Collection Date
Factoring Agreement, dated September 30, 2001, between the CIT
Group/Commercial Services, Inc. and A and G, Inc. (b) that
certain Assignment of Monies Due Under Factoring Agreement dated
September 30, 2001 between Suntrust Bank and
A and G, Inc.; and (c) and that certain Factoring Agreement dated
November 27, 2001 between UPS Capital Global Trade Finance
Corporation and A and G, Inc.
Federal Funds Rate means, for any day, a fluctuating
interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a
8
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the
Administrative Agent. The Administrative Agent's determination
of such rate shall be binding and conclusive absent manifest
error.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company and its
Subsidiaries, which period shall be the 12-month period ending on
February 28th (or February 29th, in the case of a leap year) of
each year. References to a Fiscal Year with a number
corresponding to any calendar year (e.g., "Fiscal Year 2004")
refer to the Fiscal Year ending on February 28th of such calendar
year (or February 29th, in the case of a leap year).
Fixed Charge Coverage Ratio means, for any Computation
Period, the ratio of (a) the total for such period of EBITDA
minus the sum of income taxes paid in cash by the Loan Parties
and all unfinanced Capital Expenditures to (b) the sum for such
period of (i) cash Interest Expense plus (ii) required payments
of principal of Funded Debt (including the Term Loans but
excluding the Revolving Loans) plus (iii) an amount equal to the
advances, dividends and distributions (other than distributions
on non-redeemable equity securities of the Parent) made by the
Parent to holders of its Capital Securities.
FRB means the Board of Governors of the Federal Reserve
System or any successor thereto.
Funded Debt means, as to any Person, all Debt of such Person
that matures more than one year from the date of its creation (or
is renewable or extendible, at the option of such Person, to a
date more than one year from such date).
GAAP means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the
U.S. accounting profession) and the Securities and Exchange
Commission, which are applicable to the circumstances as of the
date of determination.
Group - see Section 2.2.1.
Guarantor Payment - see Section 16.7(a).
Hazardous Substances means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation,
dielectric fluid containing levels of polychlorinated biphenyls,
radon gas and mold; and (b) any chemicals, materials, pollutant
or substances defined as or included in the definition of
"hazardous substances", "hazardous waste", "hazardous materials",
"extremely hazardous substances", "restricted hazardous waste",
"toxic substances", "toxic pollutants",
9
"contaminants", "pollutants" or words of similar import, under
any applicable Environmental Law; and (c) any other chemical,
material or substance, the exposure to, or release of which is
prohibited, limited or regulated by any governmental authority
pursuant to any Environmental Law, or for which any duty or
standard of care is imposed pursuant to any Environmental Law.
Hedging Agreement means any interest rate, currency or
commodity swap agreement, cap agreement or collar agreement, and
any other agreement or arrangement designed to protect a Person
against fluctuations in interest rates, currency exchange rates
or commodity prices.
Hedging Obligation means, with respect to any Person, any
liability of such Person under any Hedging Agreement. The amount
of any Person's obligation in respect of any Hedging Obligation
shall be deemed to be the incremental obligation that would be
reflected in the financial statements of such Person in
accordance with GAAP.
Indemnified Liabilities - see Section 15.17.
Interest Expense means for any period the consolidated
interest expense of the Company and its Subsidiaries for such
period (including all imputed interest on Capital Leases).
Interest Period means, as to any LIBOR Loan, the period
commencing on the date such Loan is borrowed or continued as, or
converted into, a LIBOR Loan and ending on the date one, two,
three or six months thereafter as selected by the Company
pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided
that:
(a) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period
shall be extended to the following Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding
Business Day;
(b) any Interest Period that begins 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;
(c) the Company may not select any Interest
Period for a Revolving Loan which would extend beyond
the scheduled Termination Date; and
(d) the Company may not select any Interest
Period for a Term Loan if, after giving effect to such
selection, the aggregate principal amount of all Term
Loans having Interest Periods ending after any date on
which an installment of the Term Loans is scheduled to
be repaid would exceed the aggregate principal amount
of the Term Loans scheduled to be outstanding after
giving effect to such repayment.
10
Inventory is defined in the Security Agreement.
Investment means, with respect to any Person, any investment
in another Person, whether by acquisition of any debt or Capital
Security, by making any loan or advance, by becoming obligated
with respect to a Contingent Liability in respect of obligations
of such other Person (other than travel and similar advances to
employees in the ordinary course of business) or by making an
Acquisition.
Issuing Lender means LaSalle, in its capacity as the issuer
of Letters of Credit hereunder, or any Affiliate of LaSalle that
may from time to time issue Letters of Credit, and their
successors and assigns in such capacity.
LaSalle - see the Preamble.
L/C Application means, with respect to any request for the
issuance of a Letter of Credit, a letter of credit application in
the form being used by the Issuing Lender at the time of such
request for the type of letter of credit requested.
L/C Fee Rate - see the definition of Applicable Margin.
Lender - see the Preamble. References to the "Lenders"
shall include the Issuing Lender; for purposes of clarification
only, to the extent that LaSalle (or any successor Issuing
Lender) may have any rights or obligations in addition to those
of the other Lenders due to its status as Issuing Lender, its
status as such will be specifically referenced. In addition to
the foregoing, for the purpose of identifying the Persons
entitled to share in the Collateral and the proceeds thereof
under, and in accordance with the provisions of, this Agreement
and the Collateral Documents, the term "Lender" shall include
Affiliates of a Lender providing a Bank Product.
Lender Party - see Section 15.17.
Letter of Credit - see Section 2.1.4.
LIBOR Loan means any Loan which bears interest at a rate
determined by reference to the LIBOR Rate.
LIBOR Margin - see the definition of Applicable Margin.
LIBOR Office means with respect to any Lender the office or
offices of such Lender which shall be making or maintaining the
LIBOR Loans of such Lender hereunder. A LIBOR Office of any
Lender may be, at the option of such Lender, either a domestic or
foreign office.
LIBOR Rate means a rate of interest equal to (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
11
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
reasonable 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.
Lien means, with respect to any Person, any interest granted
by such Person in any real or personal property, asset or other
right owned or being purchased or acquired by such Person
(including an interest in respect of a Capital Lease) which
secures payment or performance of any obligation and shall
include any mortgage, lien, encumbrance, title retention lien,
charge or other security interest of any kind, whether arising by
contract, as a matter of law, by judicial process or otherwise.
Loan Documents means this Agreement, the Notes, the Letters
of Credit, the Master Letter of Credit Agreement, the L/C
Applications, the Agent Fee Letter, the Collateral Documents, and
all documents, instruments and agreements delivered in connection
with the foregoing.
Loan Party means the Company and each Subsidiary.
Loan or Loans means, as the context may require, Revolving
Loans, Term Loans and/or Swing Line Loans.
Mandatory Prepayment Event - see Section 6.2.2(a).
Margin Stock means any "margin stock" as defined in
Regulation U.
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 Issuing Lender at such time.
Material means, with respect to any Loan Party, at the time
of determination that either the assets of such Loan Party
comprised more than 5% of the assets of the Loan Parties taken as
a whole or the contribution of such Loan Party to EBITDA,
determined as of the most recently ended four Fiscal Quarter
period, was 5% or more of EBITDA for such period.
Material Adverse Effect means (a) a material adverse change
in, or a material adverse effect upon, the financial condition,
operations, assets, business, properties or prospects of the
12
Loan Parties taken as a whole, (b) a material impairment of the
ability of any Material Loan Party to perform any of the
Obligations under any Loan Document (provided that, if an
incident, or series of incidents, affects more than one Loan
Party with assets that in the aggregate comprise more than 15% of
the assets of the Loan Parties taken as a whole or the
contribution of such Loan Parties to EBITDA, determined as of the
most recently ended four Fiscal Quarter period, was 15% or more
of EBITDA for such period, all such Loan Parties shall be
determined to be Material for the purposes of this definition of
Material Adverse Effect) or (c) a material adverse effect upon
any substantial portion of the collateral under the Collateral
Documents or upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document.
Mortgage means a mortgage, deed of trust, leasehold mortgage
or similar instrument granting the Administrative Agent a Lien on
real property of any Loan Party.
Multiemployer Pension Plan means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the Company or
any other member of the Controlled Group may have any liability.
Net Cash Proceeds means:
(a) with respect to any Asset Disposition, the aggregate
cash proceeds (including cash proceeds received
pursuant to policies of insurance or by way of deferred
payment of principal pursuant to a note, installment
receivable or otherwise, but only as and when received)
received by any Loan Party pursuant to such Asset
Disposition net of (i) the direct costs relating to
such sale, transfer or other disposition (including
sales commissions and legal, accounting and investment
banking fees), (ii) taxes paid or reasonably estimated
by the Company to be payable as a result thereof (after
taking into account any available tax credits or
deductions and any tax sharing arrangements) and (iii)
amounts required to be applied to the repayment of any
Debt secured by a Lien on the asset subject to such
Asset Disposition (other than the Loans);
(b) with respect to any issuance of Capital Securities, the
aggregate cash proceeds received by any Loan Party
pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and
underwriters' commissions); and
(c) with respect to any issuance of Debt, the aggregate
cash proceeds received by any Loan Party pursuant to
such issuance, net of the direct costs of such issuance
(including up-front, underwriters' and placement fees).
Non-U.S. Participant - see Section 7.6(d).
Non-Use Fee Rate - see the definition of Applicable Margin.
13
Note means any promissory note substantially in the form of
Exhibit A-1, Exhibit A-2, Exhibit A-3, as applicable.
Notice of Borrowing - see Section 2.2.2.
Notice of Conversion/Continuation - see Section 2.2.3.
Obligations means all obligations (monetary (including post-
petition interest, allowed or not) or otherwise) of any Loan
Party under this Agreement and any other Loan Document including
Attorney Costs and any reimbursement obligations of each Loan
Party in respect of Letters of Credit and surety bonds, all
Hedging Obligations permitted hereunder which are owed to any
Lender or its Affiliate, and all Bank Product Obligations, all in
each case howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing,
or due or to become due.
OFAC - see Section 10.4.
Operating Lease means any lease of (or other agreement
conveying the right to use) any real or personal property by any
Loan Party, as lessee, other than any Capital Lease.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Parent - see the Preamble.
Participant - see Section 15.6.2.
Pension Plan means a "pension plan", as such term is defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA
or the minimum funding standards of ERISA (other than a
Multiemployer Pension Plan), and as to which the Company or any
member of the Controlled Group may have any liability, including
any liability by reason of having been a substantial employer
within the meaning of Section 4063 of ERISA at any time during
the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
Perfection Certificate means a perfection certificate
executed and delivered to the Administrative Agent by a Loan
Party.
Permitted Lien means a Lien expressly permitted hereunder
pursuant to Section 11.2.
Person means any natural person, corporation, partnership,
trust, limited liability company, association, governmental
authority or unit, or any other entity, whether acting in an
individual, fiduciary or other capacity.
Prime Rate means, for any day, the rate of interest in
effect for such day as publicly announced from time to time by
the Administrative Agent as its prime rate (whether or not such
14
rate is actually charged by the Administrative Agent), which is
not intended to be the Administrative Agent's lowest or most
favorable rate of interest at any one time. Any change in the
Prime Rate announced by the Administrative Agent shall take
effect at the opening of business on the day specified in the
public announcement of such change; provided that the
Administrative Agent shall not be obligated to give notice of any
change in the Prime Rate.
Pro Rata Share means:
(a) with respect to a Lender's obligation to make Revolving
Loans, participate in Letters of Credit, reimburse the
Issuing Lender, and receive payments of principal,
interest, fees, costs, and expenses with respect
thereto, (x) prior to the Aggregate Revolving
Commitment being terminated or reduced to zero, the
percentage obtained by dividing (i) such Lender's
Revolving Commitment, by (ii) the Aggregate Revolving
Commitment and (y) from and after the time the
Aggregate Revolving Commitment has been terminated or
reduced to zero, the percentage obtained by dividing
(i) the aggregate unpaid principal amount of such
Lender's Revolving Outstandings (after settlement and
repayment of all Swing Line Loans by the Lenders) by
(ii) the aggregate unpaid principal amount of all
Revolving Outstandings;
(b) with respect to a Lender's obligation to make a Term
Loan and receive payments of interest, fees, and
principal with respect thereto, (x) prior to the making
of the Term Loans, the percentage obtained by dividing
(i) such Lender's Term Commitment, by (ii) the
Aggregate Term Commitment, and (y) from and after the
making of the Term Loans, the percentage obtained by
dividing (i) the principal amount of such Lender's Term
Loan by (ii) the principal amount of all Term Loans of
all Lenders; and
(c) with respect to all other matters as to a particular
Lender, the percentage obtained by dividing (i) such
Lender's Revolving Commitment plus such Lender's Term
Commitment, by (ii) the Aggregate Revolving Commitment
plus the Aggregate Term Commitment; provided that in
the event the Commitments have been terminated or
reduced to zero, Pro Rata Share shall be the percentage
obtained by dividing (A) the principal amount of such
Lender's Revolving Outstandings (after settlement and
repayment of all Swing Line Loans by the Lenders) plus
the unpaid principal amount of such Lender's Term Loan
by (B) the principal amount of all outstanding
Revolving Outstandings plus the unpaid principal amount
of all Term Loans of all Lenders.
Refunded Swing Line Loan - see Section 2.2.4(c).
Regulation D means Regulation D of the FRB.
15
Regulation T means Regulation T of the FRB.
Regulation U means Regulation U of the FRB.
Regulation X means Regulation X of the FRB.
Related Agreements means (i) the Agreement and Plan of
Merger, dated as of June 25, 2004, by and among the Parent, its
wholly-owned subsidiary, Midlothian Holdings LLC, a Delaware
limited liability company ("Merger Sub") and Centrum Acquisition,
Inc., a Delaware corporation (the "Target"), as amended by the
First Amendment to Agreement and Plan of Merger, dated as of
August 23, 2004, among the Parent, Merger Sub and the Target,
(ii) the Indemnity Agreement dated as of June 25, 2004 by and
among Laurence Ashkin, Roger Brown, John McLinden, Arthur Slaven,
Merger Sub and the Parent, (iii) the First Amendment Agreement
dated as of June 25, 2004 by and among Amin Amdani, an individual
and resident of the State of Nevada, Ayes Amin Amdani, an
individual and wife of Amin Amdani, Rauf Gajiani, and individual
and resident of the State of Nevada, the Target, the Parent and
the Merger Sub; (iv) Stock Pledge and Escrow Agreement, dated as
of the date hereof, by and among the Parent, Midlothian, Laurence
Ashkin, Roger Brown, John McLinden and Arthur Slaven and JPMorgan
Chase Bank, N.A., as escrow agent, and (v) Escrow Agreement,
dated as of the date hereof, by and among the Parent, Merger Sub,
the Target, Amin Amdani, Ayesha Amin Amndani and Rauf Gajiani and
JPMorgan Chase Bank, N.A., as escrow agent.
Related Transactions means the transactions contemplated by
the Related Agreements.
Replacement Lender - see Section 8.7(b).
Reportable Event means a reportable event as defined in
Section 4043 of ERISA and the regulations issued thereunder as to
which the PBGC has not waived the notification requirement of
Section 4043(a), or the failure of a Pension Plan to meet the
minimum funding standards of Section 412 of the Code (without
regard to whether the Pension Plan is a plan described in Section
4021(a)(2) of ERISA) or under Section 302 of ERISA.
Required Lenders means, at any time, Lenders whose Pro Rata
Shares are equal to or in excess of 51% as determined pursuant to
clause (c) of the definition of Pro Rata Share.
Revolving Commitment - see the definition of Commitment.
Revolving Loan - see Section 2.1.1.
Revolving Outstandings means, at any time, the sum of (a)
the aggregate principal amount of all outstanding Revolving
Loans, plus (b) the Stated Amount of all Letters of Credit.
SEC means the Securities and Exchange Commission or any
other governmental authority succeeding to any of the principal
functions thereof.
16
Security Agreement means the Security Agreement dated as of
the date hereof executed and delivered by the Loan Parties,
together with any joinders thereto and any other collateral
security agreement executed by a Loan Party, in each case in form
and substance satisfactory to the Administrative Agent.
Senior Officer means, with respect to any Loan Party, any of
the chief executive officer, the chief financial officer, the
chief operating officer or the treasurer of such Loan Party.
Stated Amount means, with respect to any Letter of Credit at
any date of determination, (a) the maximum aggregate amount
available for drawing thereunder under any and all circumstances
plus (b) the aggregate amount of all unreimbursed payments and
disbursements under such Letter of Credit.
Subordinated Debt means any unsecured Debt of the Company
which has subordination terms, covenants, pricing and other terms
which have been approved in writing by the Required Lenders.
Subordinated Debt Documents means all documents and
instruments relating to Subordinated Debt and all amendments and
modifications thereof approved by the Administrative Agent.
Subordination Agreements means all subordination agreements
executed by a holder of Subordinated Debt in favor of the
Administrative Agent and the Lenders from time to time after the
Closing Date.
Subsidiary means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which
such Person owns, directly or indirectly, such number of
outstanding Capital Securities as have more than 50% of the
ordinary voting power for the election of directors or other
managers of such corporation, partnership, limited liability
company or other entity. Unless the context otherwise requires,
each reference to Subsidiaries herein shall be a reference to
Subsidiaries of the Company.
Swing Line Availability means the lesser of (a) the Swing
Line Commitment Amount and (b) the Revolving Loan Commitment
(less Revolving Outstandings at such time).
Swing Line Commitment Amount means $20,000,000 as reduced
from time to time pursuant to Section 6.1, which commitment
constitutes a subfacility of the Revolving Commitment of the
Swing Line Lender.
Swing Line Lender means LaSalle.
Swing Line Loan - see Section 2.2.4.
17
Taxes means any and all present and future taxes, duties,
levies, imposts, deductions, assessments, charges or
withholdings, and any and all liabilities (including interest and
penalties and other additions to taxes) with respect to the
foregoing, but excluding Excluded Taxes.
Term Commitment - see the definition of Commitment.
Term Loan Commitment means $50,000,000.
Term Loans - see Section 2.1.3.
Termination Date means the earlier to occur of (a) November
19, 2009 or (b) such other date on which the Commitments
terminate pursuant to Section 6 or 13.
Termination Event means, with respect to a Pension Plan that
is subject to Title IV of ERISA, (a) a Reportable Event, (b) the
withdrawal of Company or any other member of the Controlled Group
from such Pension Plan during a plan year in which Company or any
other member of the Controlled Group was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4068(f) of ERISA, (c) the termination of such
Pension Plan, the filing of a notice of intent to terminate the
Pension Plan or the treatment of an amendment of such Pension
Plan as a termination under Section 4041 of ERISA, (d) the
institution by the PBGC of proceedings to terminate such Pension
Plan or (e) any event or condition that might constitute grounds
under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Pension Plan.
Total Funded Debt means all Debt of the Company and its
Subsidiaries, determined on a consolidated basis, excluding,
without duplication, (a) contingent obligations in respect of
Contingent Liabilities (except to the extent constituting
Contingent Liabilities in respect of Debt of a Person other than
any Loan Party), (b) Hedging Obligations and (c) Debt of the
Company to Subsidiaries and Debt of Subsidiaries to the Company
or to other Subsidiaries.
Total Funded Debt to EBITDA Ratio means, as of the last day
of any Fiscal Quarter, the ratio of (a) Total Funded Debt as of
such day to (b) EBITDA for the Computation Period ending on such
day.
Total Plan Liability means, at any time, the present value
of all vested and unvested accrued benefits under all Pension
Plans, determined as of the then most recent valuation date for
each Pension Plan, using PBGC actuarial assumptions for single
employer plan terminations.
Type - see Section 2.2.1.
UCC is defined in the Security Agreement.
Unfunded Liability means the amount (if any) by which the
actuarial present value of projected benefits over periods of
employee service (applying an actuarial cost method) under all
Pension Plans exceeds the actuarial value of all assets allocable
to those benefits, all determined
18
as of the then most recent valuation date for each Pension Plan,
using PBGC actuarial assumptions for single employer plan
terminations.
Unmatured Event of Default means any event that, if it
continues uncured, will, with lapse of time or notice or both,
constitute an Event of Default.
Withholding Certificate - see Section 7.6(d).
Wholly-Owned Subsidiary means, as to any Person, a
Subsidiary all of the Capital Securities of which (except
directors' qualifying Capital Securities) are at the time
directly or indirectly owned by such Person and/or another Wholly-
Owned Subsidiary of such Person.
1.2 Other Interpretive Provisions. (1) The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms.
(a) Section, Annex, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(b) The term "including" is not limiting and means
"including without limitation."
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement and the other
Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, supplements
and other modifications thereto, but only to the extent such
amendments, restatements, supplements and other modifications are
not prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation shall be construed as
including all statutory and regulatory provisions amending,
replacing, supplementing or interpreting such statute or
regulation.
(e) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and each shall be performed in
accordance with its terms.
(f) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to
the Administrative Agent, the Company, the Lenders and the other
parties thereto and are the products of all parties.
Accordingly, they shall not be construed against the
Administrative Agent or the Lenders merely because of the
Administrative Agent's or Lenders' involvement in their
preparation.
19
SECTION 2 COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION
AND LETTER OF CREDIT PROCEDURES.
2.1 Commitments. On and subject to the terms and
conditions of this Agreement, each of the Lenders, severally and
for itself alone, agrees to make loans to, and to issue or
participate in letters of credit for the account of, the Company
as follows:
2.1.1 Revolving Loan Commitment. Each Lender with a
Revolving Commitment agrees to make loans on a revolving basis
("Revolving Loans") from time to time until the Termination Date
in such Lender's Pro Rata Share of such aggregate amounts as the
Company may request from all Lenders; provided that the Revolving
Outstandings will not at any time exceed the Aggregate Revolving
Commitment (less the amount of any Swing Line Loans outstanding
at such time)
2.1.2 Increase in Revolving Commitment. The Company may, at
its option any time before the Termination Date, on no more than
three occasions, seek to increase the Revolving Commitment by up
to an aggregate amount not exceeding $50,000,000 (resulting in
maximum Revolving Commitment of $150,000,000) 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) sought by the Company and shall be delivered at
a time when no Unmatured Event of Default or Event of Default has
occurred and is continuing. The Administrative Agent, subject to
the consent of the Company, which shall not be unreasonably
withheld, may allocate the incremental increase (which may be
declined by any Lender (including in its sole discretion)) in the
Revolving Commitment on either a ratable basis to the Lenders or
on a non pro-rata basis to one or more Lenders and/or to other
banks or entities reasonably acceptable to the Administrative
Agent and the Company which have expressed a desire to accept the
increase in Revolving Commitment. The Administrative Agent will
then notify each existing and potentially new Lender of such
revised allocations of the Revolving Commitment, including the
desired increase. No increase in the Revolving Commitment shall
become effective until each of the existing or new Lenders
extending such incremental Revolving Commitment and the Company
shall have delivered to the Administrative Agent a document in
form reasonably satisfactory to the Administrative Agent pursuant
to which any such existing Lender states the amount of its
Revolving Commitment increase, any such new Lender states its
Revolving Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder, and the Company
accepts such new Commitments. After giving effect to such
increase in Revolving Commitment, all Loans and all such other
credit exposure shall be held ratably by the Lenders in
proportion to their respective Commitments, as revised to reflect
the increase in the Revolving Commitment. Upon any increase in
Revolving Commitment pursuant to this Section, the Company shall
pay Administrative Agent for the ratable benefit of only the
Lenders (including any new Lender) whose Revolving Commitment are
increased an upfront fee in an amount equal to what is mutually
agreed to among the Company, the Lenders whose Revolving
Commitments are increased and the Administrative Agent.
Administrative Agent will use its best efforts to arrange the
increase in Revolving Commitment sought by Company but is
20
under no obligation to consummate any such increase. Company will
cooperate with Administrative Agent in such efforts.
2.1.3 Term Loan Commitment. Each Lender with a Term
Commitment agrees to make a loan to the Company (each such loan,
a "Term Loan") on the Closing Date in such Lender's Pro Rata
Share of the Aggregate Term Commitment. The Commitments of the
Lenders to make Term Loans shall expire immediately following the
funding of the Term Loans on the Closing Date.
2.1.4 L/C Commitment. Subject to Section 2.3.1, the Issuing
Lender agrees to issue letters of credit, in each case containing
such terms and conditions as are permitted by this Agreement and
are reasonably satisfactory to the Issuing Lender (each, a
"Letter of Credit"), at the request of and for the account of the
Company from time to time before the scheduled Termination Date
and, as more fully set forth in Section 2.3.2, each Lender agrees
to purchase a participation in each such Letter of Credit;
provided that (a) the aggregate Stated Amount of all Letters of
Credit shall not at any time exceed $15,000,000 and (b) the
Revolving Outstandings shall not at any time exceed the Aggregate
Revolving Commitment (less the amount of any Swing Line Loans
outstanding at such time).
2.2 Loan Procedures.
2.2.1 Various Types of Loans. Each Revolving Loan shall be,
and each Term Loan may be, divided into tranches which are,
either a Base Rate Loan or a LIBOR Loan (each a "type" of Loan),
as the Company shall specify in the related notice of borrowing
or conversion pursuant to Section 2.2.2 or 2.2.3. LIBOR Loans
having the same Interest Period which expire on the same day are
sometimes called a "Group" or collectively "Groups". Base Rate
Loans and LIBOR Loans may be outstanding at the same time,
provided that not more than five (5) different Groups of LIBOR
Loans shall be outstanding at any one time. All borrowings,
conversions and repayments of Revolving Loans shall be effected
so that each Lender will have a ratable share (according to its
Pro Rata Share) of all types and Groups of Loans.
2.2.2 Borrowing Procedures. The Company shall give written
notice (each such written notice, a "Notice of Borrowing")
substantially in the form of Exhibit D or telephonic notice
(followed immediately by a Notice of Borrowing) to the
Administrative Agent of each proposed borrowing not later than
(a) in the case of a Base Rate borrowing, 11:00 A.M., Chicago
time, on the proposed date of such borrowing, and (b) in the case
of a LIBOR borrowing, 11:00 A.M., Chicago time, at least three
Business Days prior to the proposed date of such borrowing. Each
such notice shall be effective upon receipt by the Administrative
Agent, shall be irrevocable, and shall specify the date, amount
and type of borrowing and, in the case of a LIBOR borrowing, the
initial Interest Period therefor. Promptly upon receipt of such
notice, the Administrative Agent shall advise each Lender
thereof. Not later than 1:00 P.M., Chicago time, on the date of
a proposed borrowing, each Lender shall provide the
Administrative Agent at the office specified by the
Administrative Agent with immediately available funds covering
such Lender's Pro Rata Share of such borrowing and, so long as
the Administrative Agent has not
21
received written notice that the conditions precedent set forth
in Section 12 with respect to such borrowing have not been
satisfied, the Administrative Agent shall pay over the funds
received by the Administrative Agent to the Company on the
requested borrowing date. Each borrowing shall be on a Business
Day. Each Base Rate borrowing shall be in an aggregate amount of
at least $1,000,000 and an integral multiple of $1,000,000, and
each LIBOR borrowing shall be in an aggregate amount of at least
$5,000,000 and an integral multiple of at least $1,000,000.
2.2.3 Conversion and Continuation Procedures. (a) Subject
to Section 2.2.1, the Company may, upon irrevocable written
notice to the Administrative Agent in accordance with clause (b)
below:
(A) elect, as of any Business Day, to convert any
Loans (or any part thereof in an aggregate amount of not less
than $5,000,000 or a higher integral multiple of $1,000,000) into
Loans of the other type; or
(B) elect, as of the last day of the applicable
Interest Period, to continue any LIBOR Loans having Interest
Periods expiring on such day (or any part thereof in an aggregate
amount of not less than $5,000,000 or a higher integral multiple
of $1,000,000) for a new Interest Period;
provided that after giving effect to any prepayment, conversion
or continuation, the aggregate principal amount of each Group of
LIBOR Loans shall be at least $5,000,000 and an integral multiple
of $1,000,000.
(b) The Company shall give written notice (each such
written notice, a "Notice of Conversion/Continuation")
substantially in the form of Exhibit E or telephonic notice
(followed immediately by a Notice of Conversion/Continuation) to
the Administrative Agent of each proposed conversion or
continuation not later than (i) in the case of conversion into
Base Rate Loans, 11:00 A.M., Chicago time, on the proposed date
of such conversion and (ii) in the case of conversion into or
continuation of LIBOR Loans, 11:00 A.M., Chicago time, at least
three Business Days prior to the proposed date of such conversion
or continuation, specifying in each case:
(A) the proposed date of conversion or continuation;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the type of Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversion into, or continuation
of, LIBOR Loans, the duration of the requested Interest Period
therefor.
(c) If upon the expiration of any Interest Period
applicable to LIBOR Loans, the Company has failed to select
timely a new Interest Period to be applicable to such LIBOR
Loans,
22
the Company shall be deemed to have elected to convert such LIBOR
Loans into Base Rate Loans effective on the last day of such
Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a notice of conversion or continuation
pursuant to this Section 2.2.3 or, if no timely notice is
provided by the Company, of the details of any automatic
conversion.
(e) Any conversion of a LIBOR Loan on a day other than the
last day of an Interest Period therefor shall be subject to
Section 8.4.
2.2.4 Swing Line Facility.
(a) The Administrative Agent shall notify the Swing Line
Lender upon the Administrative Agent's receipt of any Notice of
Borrowing. Subject to the terms and conditions hereof, the Swing
Line Lender may, in its sole discretion, make available from time
to time until the Termination Date advances (each, a "Swing Line
Loan") in accordance with any such notice, notwithstanding that
after making a requested Swing Line Loan, the sum of the Swing
Line Lender's Pro Rata Share of the Revolving Outstanding and all
outstanding Swing Line Loans, may exceed the Swing Line Lender's
Pro Rata Share of the Revolving Commitment. The provisions of
this Section 2.2.4 shall not relieve Lenders of their obligations
to make Revolving Loans under Section 2.1.1; provided that if the
Swing Line Lender makes a Swing Line Loan pursuant to any such
notice, such Swing Line Loan shall be in lieu of any Revolving
Loan that otherwise may be made by the Lenders pursuant to such
notice. The aggregate amount of Swing Line Loans outstanding
shall not exceed at any time the Swing Line Availability. Until
the Termination Date, the Company may from time to time borrow,
repay and reborrow under this Section 2.2.4. Each Swing Line
Loan shall be made pursuant to a Notice of Borrowing delivered by
the Company to the Administrative Agent in accordance with
Section 2.2.2. Any such notice must be given no later than 12:00
p.m., Chicago time, on the Business Day of the proposed Swing
Line Loan. Unless the Swing Line Lender has received at least
one Business Day's prior written notice from the Required Lenders
instructing it not to make a Swing Line Loan, the Swing Line
Lender shall, notwithstanding the failure of any condition
precedent set forth in Section 12.2, be entitled to fund that
Swing Line Loan, and to have such Lender make Revolving Loans in
accordance with Section 2.2.4(c) or purchase participating
interests in accordance with Section 2.2.4(d). Notwithstanding
any other provision of this Agreement or the other Loan
Documents, each Swing Line Loan shall constitute a Base Rate
Loan. The Company shall repay the aggregate outstanding
principal amount of each Swing Line Loan upon demand therefor by
the Administrative Agent.
(b) The entire unpaid balance of each Swing Line Loan and
all other noncontingent Obligations shall be immediately due and
payable in full in immediately available funds on the Termination
Date if not sooner paid in full.
(c) The Swing Line Lender, at any time and from time to
time no less frequently than once weekly, shall on behalf of the
Company (and the Company hereby irrevocably authorizes the Swing
Line Lender to so act on its behalf) request each Lender with a
Revolving
23
Commitment (including the Swing Line Lender) to make a Revolving
Loan to the Company (which shall be a Base Rate Loan) in an
amount equal to that Lender's Pro Rata Share of the principal
amount of all Swing Line Loans (the "Refunded Swing Line Loan")
outstanding on the date such notice is given that were made in
conformity with Section 2.2.4(a). Unless any of the events
described in Section 13.1.4 has occurred (in which event the
procedures of Section 2.2.4(d) shall apply) and regardless of
whether the conditions precedent set forth in this Agreement to
the making of a Revolving Loan are then satisfied, each Lender
shall disburse directly to the Administrative Agent, its Pro Rata
Share on behalf of the Swing Line Lender, prior to 2:00 P.M.,
Chicago time, in immediately available funds on the date that
notice is given (provided that such notice is given by 2:00 P.M.,
Chicago time, on such date). The proceeds of those Revolving
Loans shall be immediately paid to the Swing Line Lender and
applied to repay the Refunded Swing Line Loan.
(d) If, prior to refunding a Swing Line Loan with a
Revolving Loan pursuant to Section 2.2.4(c), one of the events
described in Section 13.1.4 has occurred, then, subject to the
provisions of Section 2.2.4(e) below, each Lender shall, on the
date such Revolving Loan was to have been made for the benefit of
the Company, purchase from the Swing Line Lender an undivided
participation interest in the Swing Line Loan that were made in
conformity with Section 2.2.4(a) in an amount equal to its Pro
Rata Share of such Swing Line Loan. Upon request, each Lender
shall promptly transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation interest.
(e) Each Lender's obligation to make Revolving Loans in
accordance with Section 2.2.4(c) and to purchase participation
interests in accordance with Section 2.2.4(d) shall be absolute
and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender may have against the Swing Line
Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Unmatured
Event of Default or Event of Default; (iii) any inability of the
Company to satisfy the conditions precedent to borrowing set
forth in this Agreement at any time or (iv) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If and to the extent any Lender
shall not have made such amount available to the Administrative
Agent or the Swing Line Lender, as applicable, by 2:00 P.M.,
Chicago time, the amount required pursuant to Sections 2.2.4(c)
or 2.2.4(d), as the case may be, on the Business Day on which
such Lender receives notice from the Administrative Agent of such
payment or disbursement (it being understood that any such notice
received after noon, Chicago time, on any Business Day shall be
deemed to have been received on the next following Business Day),
such Lender agrees to pay interest on such amount to the
Administrative Agent for the Swing Line Lender's account
forthwith on demand, for each day from the date such amount was
to have been delivered to the Administrative Agent to the date
such amount is paid, at a rate per annum equal to (a) for the
first three days after demand, the Federal Funds Rate from time
to time in effect and (b) thereafter, the Base Rate from time to
time in effect.
24
2.3 Letter of Credit Procedures.
2.3.1 L/C Applications. The Company shall execute and
deliver to the Issuing Lender the Master Letter of Credit
Agreement from time to time in effect. The Company shall give
notice to the Administrative Agent and the Issuing Lender of the
proposed issuance of each Letter of Credit on a Business Day
which is at least three Business Days (or such lesser number of
days as the Administrative Agent and the Issuing Lender shall
agree in any particular instance in their sole discretion) prior
to the proposed date of issuance of such Letter of Credit. Each
such notice shall be accompanied by an L/C Application, duly
executed by the Company and in all respects satisfactory to the
Administrative Agent and the Issuing Lender, together with such
other documentation as the Administrative Agent or the Issuing
Lender may request in support thereof, it being understood that
each L/C Application shall specify, among other things, the date
on which the proposed Letter of Credit is to be issued, the
expiration date of such Letter of Credit (which shall not be
later than 25 days prior to the scheduled Termination Date
(unless such Letter of Credit is Cash Collateralized)) and
whether such Letter of Credit is to be transferable in whole or
in part. Any Letter of Credit outstanding after the scheduled
Termination Date which is Cash Collateralized for the benefit of
the Issuing Lender shall be the sole responsibility of the
Issuing Lender. So long as the Issuing Lender has not received
written notice that the conditions precedent set forth in Section
12 with respect to the issuance of such Letter of Credit have not
been satisfied, the Issuing Lender shall issue such Letter of
Credit on the requested issuance date. The Issuing Lender shall
promptly advise the Administrative Agent of the issuance of each
Letter of Credit and of any amendment thereto, extension thereof
or event or circumstance changing the amount available for
drawing thereunder. In the event of any inconsistency between
the terms of the Master Letter of Credit Agreement, any L/C
Application and the terms of this Agreement, the terms of this
Agreement shall control.
2.3.2 Participations in Letters of Credit. Concurrently
with the issuance of each Letter of Credit, the Issuing Lender
shall be deemed to have sold and transferred to each Lender with
a Revolving Loan Commitment, and each such Lender shall be deemed
irrevocably and unconditionally to have purchased and received
from the Issuing Lender, without recourse or warranty, an
undivided interest and participation, to the extent of such
Lender's Pro Rata Share, in such Letter of Credit and the
Company's reimbursement obligations with respect thereto. If the
Company does not pay any reimbursement obligation when due, the
Company shall be deemed to have immediately requested that the
Lenders make a Revolving Loan which is a Base Rate Loan in a
principal amount equal to such reimbursement obligations. The
Administrative Agent shall promptly notify such Lenders of such
deemed request and, without the necessity of compliance with the
requirements of Section 2.2.2, 12.2 or otherwise such Lender
shall make available to the Administrative Agent its Pro Rata
Share of such Loan. The proceeds of such Loan shall be paid over
by the Administrative Agent to the Issuing Lender for the account
of the Company in satisfaction of such reimbursement obligations.
For the purposes of this Agreement, the unparticipated portion of
each Letter of Credit shall be deemed to be the Issuing Lender's
"participation" therein. The Issuing Lender hereby agrees, upon
request of the Administrative Agent or any Lender, to deliver to
the Administrative Agent or such Lender a list of all
25
outstanding Letters of Credit issued by the Issuing Lender,
together with such information related thereto as the
Administrative Agent or such Lender may reasonably request.
2.3.3 Reimbursement Obligations. (a) The Company hereby
unconditionally and irrevocably agrees to reimburse the Issuing
Lender for each payment or disbursement made by the Issuing
Lender under any Letter of Credit honoring any demand for payment
made by the beneficiary thereunder, in each case on the date that
such payment or disbursement is made. Any amount not reimbursed
on the date of such payment or disbursement shall bear interest
from the date of such payment or disbursement to the date that
the Issuing Lender is reimbursed by the Company therefor, payable
on demand, at a rate per annum equal to the Base Rate from time
to time in effect plus the Base Rate Margin from time to time in
effect plus, beginning on the third Business Day after receipt of
notice from the Issuing Lender of such payment or disbursement,
2%. The Issuing Lender shall notify the Company and the
Administrative Agent whenever any demand for payment is made
under any Letter of Credit by the beneficiary thereunder;
provided that the failure of the Issuing Lender to so notify the
Company or the Administrative Agent shall not affect the rights
of the Issuing Lender or the Lenders in any manner whatsoever.
(b) The Company's reimbursement obligations hereunder
shall be irrevocable and unconditional under all circumstances,
including (a) any lack of validity or enforceability of any
Letter of Credit, this Agreement or any other Loan Document, (b)
the existence of any claim, set-off, defense or other right which
any Loan Party may have at any time against a beneficiary named
in a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Lender, any Lender or any other
Person, whether in connection with any Letter of Credit, this
Agreement, any other Loan Document, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between any Loan Party and the beneficiary named in
any Letter of Credit), (c) the validity, sufficiency or
genuineness of any document which the Issuing Lender has
determined complies on its face with the terms of the applicable
Letter of Credit, even if such document should later prove to
have been forged, fraudulent, invalid or insufficient in any
respect or any statement therein shall have been untrue or
inaccurate in any respect, or (d) the surrender or impairment of
any security for the performance or observance of any of the
terms hereof. Without limiting the foregoing, no action or
omission whatsoever by the Administrative Agent or any Lender
(excluding any Lender in its capacity as the Issuing Lender)
under or in connection with any Letter of Credit or any related
matters shall result in any liability of the Administrative Agent
or any Lender to the Company, or relieve the Company of any of
its obligations hereunder to any such Person.
2.3.4 Funding by Lenders to Issuing Lender. If the Issuing
Lender makes any payment or disbursement under any Letter of
Credit issued in accordance with the terms hereof and (a) the
Company has not reimbursed the Issuing Lender in full for such
payment or disbursement by 11:00 A.M., Chicago time, on the date
of such payment or disbursement, (b) a Revolving Loan may not be
made in accordance with Section 2.3.2 or (c) any reimbursement
received by the Issuing Lender from the Company is or must be
returned or rescinded upon or during any bankruptcy or
reorganization of the Company or otherwise, each other Lender
with a
26
Revolving Loan Commitment shall be obligated to pay to the
Administrative Agent for the account of the Issuing Lender, in
full or partial payment of the purchase price of its
participation in such Letter of Credit, its Pro Rata Share of
such payment or disbursement (but no such payment shall diminish
the obligations of the Company under Section 2.3.3), and, upon
notice from the Issuing Lender, the Administrative Agent shall
promptly notify each other Lender thereof. Each other Lender
irrevocably and unconditionally agrees to so pay to the
Administrative Agent in immediately available funds for the
Issuing Lender's account the amount of such other Lender's Pro
Rata Share of such payment or disbursement. If and to the extent
any Lender shall not have made such amount available to the
Administrative Agent by 2:00 P.M., Chicago time, on the Business
Day on which such Lender receives notice from the Administrative
Agent of such payment or disbursement (it being understood that
any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the next
following Business Day), such Lender agrees to pay interest on
such amount to the Administrative Agent for the Issuing Lender's
account forthwith on demand, for each day from the date such
amount was to have been delivered to the Administrative Agent to
the date such amount is paid, at a rate per annum equal to (a)
for the first three days after demand, the Federal Funds Rate
from time to time in effect and (b) thereafter, the Base Rate
from time to time in effect. Any Lender's failure to make
available to the Administrative Agent its Pro Rata Share of any
such payment or disbursement shall not relieve any other Lender
of its obligation hereunder to make available to the
Administrative Agent such other Lender's Pro Rata Share of such
payment, but no Lender shall be responsible for the failure of
any other Lender to make available to the Administrative Agent
such other Lender's Pro Rata Share of any such payment or
disbursement.
2.4 Commitments Several. The failure of any Lender to make
a requested Loan on any date shall not relieve any other Lender
of its obligation (if any) to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender
to make any Loan to be made by such other Lender.
2.5 Certain Conditions. Except as otherwise provided in
Sections 2.2.4 and 2.3.4 of this Agreement, no Lender shall have
an obligation to make any Loan, or to permit the continuation of
or any conversion into any LIBOR Loan, and the Issuing Lender
shall not have any obligation to issue any Letter of Credit, if
an Event of Default or Unmatured Event of Default exists.
2.6 Appointment of the Parent as Agent for Co-Borrowers;
Reliance by Administrative Agent. Each Co-Borrower irrevocably
appoints the Parent as its agent hereunder to make requests on
such Co-Borrower's behalf under Section 2 hereof for borrowings
to be made by such Co-Borrower and for Letters of Credit to be
issued for such Co-Borrower's sole or joint account, to select on
such Co-Borrower's behalf the interest rate to be applicable
under Section 2 hereof to Borrowings made by such Co-Borrower and
to take any other action contemplated by the Loan Documents with
respect to credit extended hereunder to such Co-Borrower. The
Administrative Agent and the Lenders shall be entitled to
conclusively presume
27
that any action by the Parent under the Loan Documents is taken
on behalf of any one or more of the relevant Co-Borrowers whether
or not the Parent so indicates.
SECTION 3 EVIDENCING OF LOANS.
3.1 Notes. The Loans of each Lender shall be evidenced by
a Note, with appropriate insertions, payable to the order of such
Lender in a face principal amount equal to the sum of such
Lender's Revolving Commitment plus the principal amount of such
Lender's Term Loan.
3.2 Recordkeeping. The Administrative Agent, on behalf of
each Lender, shall record in its records, the date and amount of
each Loan made by each Lender, each repayment or conversion
thereof and, in the case of each LIBOR Loan, the dates on which
each Interest Period for such Loan shall begin and end. The
aggregate unpaid principal amount so recorded shall be rebuttably
presumptive evidence of the principal amount of the Loans owing
and unpaid. The failure to so record any such amount or any
error in so recording any such amount shall not, however, limit
or otherwise affect the Obligations of the Company hereunder or
under any Note to repay the principal amount of the Loans
hereunder, together with all interest accruing thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest
on the unpaid principal amount of each Loan for the period
commencing on the date of such Loan until such Loan is paid in
full as follows:
(a) at all times while such Loan is a Base Rate Loan, at a
rate per annum equal to the sum of the Base Rate from time to
time in effect plus the Base Rate Margin from time to time in
effect; and
(b) at all times while such Loan is a LIBOR Loan, at a rate
per annum equal to the sum of the LIBOR Rate applicable to each
Interest Period for such Loan plus the LIBOR Margin from time to
time in effect;
provided that at any time an Event of Default exists, unless the
Required Lenders otherwise consent, the interest rate applicable
to each Loan shall be increased by 2% (and, in the case of
Obligations not bearing interest, such Obligations shall bear
interest if not paid when due, from the due date until paid, at
the Base Rate applicable to Revolving Loans plus 2%), provided
further that such increase may thereafter be rescinded by the
Required Lenders, notwithstanding Section 15.1. Notwithstanding
the foregoing, upon the occurrence of an Event of Default under
Section 13.1.1 or 13.1.4, such increase shall occur
automatically.
4.2 Interest Payment Dates. Accrued interest on each Base
Rate Loan shall be payable in arrears on the last day of each
calendar quarter and at maturity. Accrued interest on each LIBOR
Loan shall be payable on the last day of each Interest Period
relating to such Loan (and, in the case of a LIBOR Loan with an
Interest Period in excess of three months, on the three-month
anniversary of the first day of such Interest Period), upon a
prepayment of such
28
Loan, and at maturity. After maturity, and at any time an Event
of Default exists, accrued interest on all Loans shall be payable
on demand.
4.3 Setting and Notice of LIBOR Rates. The applicable
LIBOR Rate for each Interest Period shall be determined by the
Administrative Agent, and notice thereof shall be given by the
Administrative Agent promptly to the Company and each Lender.
Each determination of the applicable LIBOR Rate by the
Administrative Agent shall be conclusive and binding upon the
parties hereto, in the absence of demonstrable error. The
Administrative Agent shall, upon written request of the Company
or any Lender, deliver to the Company or such Lender a statement
showing the computations used by the Administrative Agent in
determining any applicable LIBOR Rate hereunder.
4.4 Computation of Interest. Interest shall be
computed for the actual number of days elapsed on the basis of a
year of 360 days; provided that calculations of interest with
respect to Base Rate Loans shall be for the actual number of days
elapsed on the basis of a year of 365/366 days. The applicable
interest rate for each Base Rate Loan shall change simultaneously
with each change in the Base Rate.
SECTION 5 FEES.
5.1 Non-Use Fee. The Company agrees to pay to the
Administrative Agent for the account of each Lender a non-use
fee, for the period from the Closing Date to the Termination
Date, at the Non-Use Fee Rate in effect from time to time of such
Lender's Pro Rata Share (as adjusted from time to time) of the
unused amount of the Aggregate Revolving Commitment. For
purposes of calculating usage under this Section, the Aggregate
Revolving Commitment shall be deemed used to the extent of
Revolving Outstandings. Such non-use fee shall be payable in
arrears on the last day of each calendar quarter and on the
Termination Date for any period then ending for which such non-
use fee shall not have previously been paid. The non-use fee
shall be computed for the actual number of days elapsed on the
basis of a year of 360 days.
5.2 Letter of Credit Fees. (a) The Company agrees to pay
to the Administrative Agent for the account of each Lender a
letter of credit fee for each Letter of Credit equal to the L/C
Fee Rate in effect from time to time of such Lender's Pro Rata
Share (as adjusted from time to time) of the undrawn amount of
such Letter of Credit (computed for the actual number of days
elapsed on the basis of a year of 360 days); provided that,
unless the Required Lenders otherwise consent, the rate
applicable to each Letter of Credit shall be increased by 2% per
annum at any time that an Event of Default exists. Such letter
of credit fee shall be payable in arrears on the last day of each
calendar quarter and on the Termination Date (or such later date
on which such Letter of Credit expires or is terminated) for the
period from the date of the issuance of each Letter of Credit (or
the last day on which the letter of credit fee was paid with
respect thereto) to the date such payment is due or, if earlier,
the date on which such Letter of Credit expired or was
terminated.
(b) In addition, with respect to each Letter of Credit, the
Company agrees to pay to the Issuing Lender, for its own account,
(i) such fees and expenses as the Issuing Lender
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customarily requires in connection with the issuance,
negotiation, processing and/or administration of letters of
credit in similar situations and (ii) a letter of credit fronting
fee in the amount and at the times agreed to by the Company and
the Issuing Lender.
5.3 Administrative Agent's Fees. The Company agrees to pay
to the Administrative Agent such agent's fees as are mutually
agreed to from time to time by the Company and the Administrative
Agent including the fees set forth in the Agent Fee Letter; it
being understood that letter of credit fees which are described
in Section 5.2 shall be payable on the terms therein
notwithstanding that such fees may be described in the Agent Fee
Letter.
SECTION 6. REDUCTION OR TERMINATION OF THE REVOLVING
COMMITMENT; PREPAYMENTS.
6.1 Reduction or Termination of the Revolving Commitment.
6.1.1 Voluntary Reduction or Termination of the Revolving
Commitment. The Company may from time to time on at least five
Business Days' prior written notice received by the
Administrative Agent (which shall promptly advise each Lender
thereof) permanently reduce the Aggregate Revolving Commitment to
an amount not less than the Revolving Outstandings plus the
outstanding amount of all Swing Line Loans. Any such reduction
shall be in an amount not less than $5,000,000 or a higher
integral multiple of $1,000,000. Concurrently with any reduction
of the Aggregate Revolving Commitment to zero, the Company shall
pay all interest on the Revolving Loans, all non-use fees and all
letter of credit fees and shall Cash Collateralize in full all
obligations arising with respect to the Letters of Credit.
6.1.2 INTENTIONALLY OMITTED.
6.1.3 All Reductions of the Revolving Commitment. All
reductions of the Aggregate Revolving Commitment shall reduce the
Revolving Commitments of the Lenders ratably according to their
respective Pro Rata Shares.
6.2 Prepayments.
6.2.1 Voluntary Prepayments. The Company may from time to
time prepay, without premium or penalty (except as provided in
Section 8.4), the Loans in whole or in part; provided that the
Company shall give the Administrative Agent (which shall promptly
advise each Lender) notice thereof not later than 11:00 A.M.,
Chicago time, on the day of such prepayment (which shall be a
Business Day), specifying the Loans to be prepaid and the date
and amount of prepayment. Any such partial prepayment shall be
in an amount equal to $1,000,000 or a higher integral multiple of
$1,000,000.
6.2.2 Mandatory Prepayments.
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(a) The Company shall make a prepayment of the Term Loan
until paid in full upon the occurrence of any of the following
(each a "Mandatory Prepayment Event") at the following times and
in the following amounts (such applicable amounts being referred
to as "Designated Proceeds"):
(i) Concurrently with the receipt by any Loan Party
of any Net Cash Proceeds from any Asset
Disposition, in an amount equal to 100% of such
Net Cash Proceeds.
(ii) Concurrently with the receipt by any Loan Party
of any Net Cash Proceeds from any issuance of
Capital Securities of any Loan Party (excluding
(x) any issuance of Capital Securities pursuant
to any employee or director option program,
benefit plan or compensation program and (y) any
issuance by a Subsidiary to the Company or
another Subsidiary), in an amount equal to 50%
of such Net Cash Proceeds.
(iii) Concurrently with the receipt by any Loan Party
of any Net Cash Proceeds from any issuance of
any Debt of any Loan Party (excluding Debt
permitted by clauses (a) through (h) of Section
11.1), in an amount equal to 100% of such Net
Cash Proceeds.
(iv) Within 90 days after the end of each Fiscal Year
(commencing with Fiscal Year 2006), in an amount
equal to 50% of Excess Cash Flow for such Fiscal
Year; provided that if the Borrower's ratio of
Total Funded Debt to EBITDA is less than 2.0:1.0
for such Fiscal Year no such prepayment shall be
required.
(b) If on any day on which the Revolving Commitment is
reduced pursuant to Section 6.1 the Revolving Outstandings plus
the outstanding amount of the Swing Line Loan exceeds the
Revolving Commitment, the Company shall immediately prepay
Revolving Loans or Cash Collateralize the outstanding Letters of
Credit, or do a combination of the foregoing, in an amount
sufficient to eliminate such excess.
6.3 Manner of Prepayments.
6.3.1 All Prepayments. Each voluntary partial prepayment
shall be in a principal amount of $1,000,000 or a higher integral
multiple of $1,000,000. Any partial prepayment of a Group of
LIBOR Loans shall be subject to the proviso to Section 2.2.3(a).
Any prepayment of a LIBOR Loan on a day other than the last day
of an Interest Period therefor shall include interest on the
principal amount being repaid and shall be subject to Section
8.4. All prepayments of Term Loans shall be applied pro rata
among the Term Loans according to the principal amounts thereof
and, as to each Term Loan, pro rata to the remaining installments
thereof. Except as otherwise provided by this Agreement, all
principal payments in respect of the Loans (other than the Swing
Line Loans) shall be applied first, to repay outstanding Base
Rate Loans and then to repay outstanding LIBOR Rate Loans in
direct order of Interest Period maturities.
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6.4 Repayments.
6.4.1 Revolving Loans. The Revolving Loans of each Lender
shall be paid in full and the Revolving Commitment shall
terminate on the Termination Date.
6.4.2 Term Loans. The Term Loan of each Lender shall be
paid on the last business day of each calendar quarter (with the
first such payment due March 31, 2005) in quarterly installments
equal to such Lender's Pro Rata Share of $2,500,000. Unless
sooner paid in full, the outstanding principal balance of the
Term Loans shall be paid in full on the Termination Date.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal or
interest on the Notes, and of all fees, shall be made by the
Company to the Administrative Agent in immediately available
funds at the office specified by the Administrative Agent not
later than 12:00 p.m., Chicago time, on the date due; and funds
received after that time shall be deemed to have been received by
the Administrative Agent on the following Business Day. The
Administrative Agent shall promptly remit to each Lender its
share of all such payments received in collected funds by the
Administrative Agent for the account of such Lender. All
payments under Section 8.1 shall be made by the Company directly
to the Lender entitled thereto without setoff, counterclaim or
other defense.
7.2 Application of Certain Payments. So long as no
Unmatured Event of Default or Event of Default has occurred and
is continuing, (a) payments matching specific scheduled payments
then due shall be applied to those scheduled payments and (b)
voluntary and mandatory prepayments shall be applied as set forth
in Sections 6.2 and 6.3. After the occurrence and during the
continuance of an Unmatured Event of Default or Event of Default,
all amounts collected or received by the Administrative Agent or
any Lender as proceeds from the sale of, or other realization
upon, all or any part of the collateral shall be applied as the
Administrative Agent shall determine in its discretion or, in the
absence of a specific determination by the Administrative Agent,
as set forth in the Security Agreement. Concurrently with each
remittance to any Lender of its share of any such payment, the
Administrative Agent shall advise such Lender as to the
application of such payment.
7.3 Due Date Extension. If any payment of principal or
interest with respect to any of the Loans, or of any fees, falls
due on a day which is not a Business Day, then such due date
shall be extended to the immediately following Business Day
(unless, in the case of a LIBOR Loan, such immediately following
Business Day is the first Business Day of a calendar month, in
which case such due date shall be the immediately preceding
Business Day) and, in the case of principal, additional interest
shall accrue and be payable for the period of any such extension.
7.4 Setoff. The Company agrees that the Administrative
Agent and each Lender have all rights of set-off and bankers'
lien provided by applicable law, and in addition thereto, the
Company agrees that at any time any Event of Default exists, the
Administrative Agent and each Lender may apply to the payment of
any Obligations of the Company hereunder, whether or not
32
then due, any and all balances, credits, deposits, accounts or
moneys of the Company then or thereafter with the Administrative
Agent or such Lender.
7.5 Proration of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by
application of offset or otherwise, on account of (a) principal
of or interest on any Loan, but excluding (i) any payment
pursuant to Section 8.7 or 15.6 and (ii) payments of interest on
any Affected Loan or (b) its participation in any Letter of
Credit) in excess of its applicable Pro Rata Share (determined
pursuant to subpart (c) of the definition of Pro Rata Share
herein) of payments and other recoveries obtained by all Lenders
on account of principal of and interest on the Loans (or such
participation) then held by them, then such Lender shall purchase
from the other Lenders such participations in the Loans (or sub-
participations in Letters of Credit) held by them as shall be
necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided
that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and the purchase price restored to
the extent of such recovery.
7.6 Taxes.
(a) All payments made by the Company hereunder or under
any Loan Documents shall be made without setoff, counterclaim, or
other defense. To the extent permitted by applicable law, all
payments hereunder or under the Loan Documents (including any
payment of principal, interest, or fees) to, or for the benefit,
of any person shall be made by the Company free and clear of and
without deduction or withholding for, or account of, any Taxes
now or hereinafter imposed by any taxing authority.
(b) If the Company makes any payment hereunder or under
any Loan Document in respect of which it is required by
applicable law to deduct or withhold any Taxes, the Company shall
increase the payment hereunder or under any such Loan Document
such that after the reduction for the amount of Taxes withheld
(and any taxes withheld or imposed with respect to the additional
payments required under this Section 7.6(b)), the amount paid to
the Lenders or the Administrative Agent equals the amount that
was payable hereunder or under any such Loan Document without
regard to this Section 7.6(b). To the extent the Company
withholds any Taxes on payments hereunder or under any Loan
Document, the Company shall pay the full amount deducted to the
relevant taxing authority within the time allowed for payment
under applicable law and shall deliver to the Administrative
Agent within 30 days after it has made payment to such authority
a receipt issued by such authority (or other evidence
satisfactory to the Administrative Agent) evidencing the payment
of all amounts so required to be deducted or withheld from such
payment.
(c) If any Lender or the Administrative Agent is required
by law to make any payments of any Taxes on or in relation to any
amounts received or receivable hereunder or under any other Loan
Document, or any Tax is assessed against a Lender or the
Administrative Agent with respect to amounts received or
receivable hereunder or under any other Loan
33
Document, the Company will indemnify such Lender or the
Administrative Agent against (i) such Tax (and any reasonable
counsel fees and expenses associated with such Tax) and (ii) any
taxes imposed as a result of the receipt of the payment under
this Section 7.6(c). A certificate prepared in good faith as to
the amount of such payment by such Lender or the Administrative
Agent shall, absent manifest error, be final, conclusive, and
binding on all parties.
(d) (i) To the extent permitted by applicable law, each
Lender that is not a United States person within the meaning of
Code section 7701(a)(30) (a "Non-U.S. Participant") shall deliver
to the Company and the Administrative Agent on or prior to the
Closing Date (or in the case of a Lender that is an Assignee, on
the date of such assignment to such Lender) two accurate and
complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-
8IMY (or any successor or other applicable form prescribed by the
IRS) certifying to such Lender's entitlement to a complete
exemption from, or a reduced rate in, United States withholding
tax on interest payments to be made hereunder or any Loan. If a
Lender that is a Non-U.S. Participant is claiming a complete
exemption from withholding on interest pursuant to Sections
871(h) or 881(c) of the Code, the Lender shall deliver (along
with two accurate and complete original signed copies of IRS Form
W-8BEN) a certificate in form and substance reasonably acceptable
to Administrative Agent (any such certificate, a "Withholding
Certificate"). In addition, each Lender that is a Non-U.S.
Participant agrees that from time to time after the Closing
Date, (or in the case of a Lender that is an Assignee, after the
date of the assignment to such Lender), when a lapse in time (or
change in circumstances occurs) renders the prior certificates
hereunder obsolete or inaccurate in any material respect, such
Lender shall, to the extent permitted under applicable law,
deliver to the Company and the Administrative Agent two new and
accurate and complete original signed copies of an IRS Form W-
8BEN, W-8ECI, or W-8IMY (or any successor or other applicable
forms prescribed by the IRS), and if applicable, a new
Withholding Certificate, to confirm or establish the entitlement
of such Lender or the Administrative Agent to an exemption from,
or reduction in, United States withholding tax on interest
payments to be made hereunder or any Loan.
(ii) Each Lender that is not a Non-U.S. Participant (other
than any such Lender which is taxed as a corporation for U.S.
federal income tax purposes) shall provide two properly completed
and duly executed copies of IRS Form W-9 (or any successor or
other applicable form) to the Company and the Administrative
Agent certifying that such Lender is exempt from United States
backup withholding tax. To the extent that a form provided
pursuant to this Section 7.6(d)(ii) is rendered obsolete or
inaccurate in any material respects as result of change in
circumstances with respect to the status of a Lender, such Lender
shall, to the extent permitted by applicable law, deliver to the
Company and the Administrative Agent revised forms necessary to
confirm or establish the entitlement to such Lender's or Agent's
exemption from United States backup withholding tax.
(iii) The Company shall not be required to pay additional
amounts to a Lender, or indemnify any Lender, under this Section
7.6 to the extent that such obligations would not have arisen but
for the failure of such Lender to comply with Section 7.6(d).
34
(iv) Each Lender agrees to indemnify the Administrative
Agent and hold the Administrative Agent harmless for the full
amount of any and all present or future Taxes and related
liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes imposed by any jurisdiction on amounts
payable to the Administrative Agent under this Section 7.6) which
are imposed on or with respect to principal, interest or fees
payable to such Lender hereunder and which are not paid by the
Company pursuant to this Section 7.6, whether or not such Taxes
or related liabilities were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the
Administrative Agent makes written demand therefor.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR
LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the
adoption of, or any change in, any applicable law, rule or
regulation, or any change in the interpretation or administration
of any applicable law, rule or regulation by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Lender with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable
agency: (i) shall impose, modify or deem applicable any reserve
(including any reserve imposed by the FRB, but excluding any
reserve included in the determination of the LIBOR Rate pursuant
to Section 4), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by any Lender; or (ii) shall impose on any Lender any
other condition affecting its LIBOR Loans, its Note or its
obligation to make LIBOR Loans; and the result of anything
described in clauses (i) and (ii) above is to increase the cost
to (or to impose a cost on) such Lender (or any LIBOR Office of
such Lender) of making or maintaining any LIBOR Loan, or to
reduce the amount of any sum received or receivable by such
Lender (or its LIBOR Office) under this Agreement or under its
Note with respect thereto, then upon demand by such Lender (which
demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the
Administrative Agent), the Company shall pay directly to such
Lender such additional amount as will compensate such Lender for
such increased cost or such reduction, so long as such amounts
have accrued on or after the day which is 180 days prior to the
date on which such Lender first made demand therefor.
(b) If any Lender shall reasonably determine that any
change in, or the adoption or phase-in of, any applicable law,
rule or regulation regarding capital adequacy, or any change in
the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or the compliance by
any Lender or any Person controlling such Lender with any request
or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on such Lender's or such controlling Person's
capital as a consequence of such Lender's obligations hereunder
or under any Letter of Credit to a level below that which such
Lender or such controlling Person could have achieved but for
such change, adoption, phase-in or compliance (taking into
consideration such Lender's or such controlling Person's policies
with respect to capital
35
adequacy) by an amount deemed by such Lender or such controlling
Person to be material, then from time to time, upon demand by
such Lender (which demand shall be accompanied by a statement
setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail, a copy of which shall be
furnished to the Administrative Agent), the Company shall pay to
such Lender such additional amount as will compensate such Lender
or such controlling Person for such reduction so long as such
amounts have accrued on or after the day which is 180 days prior
to the date on which such Lender first made demand therefor.
8.2 Basis for Determining Interest Rate Inadequate or
Unfair. If
(a) the Administrative Agent reasonably determines (which
determination shall be binding and conclusive on the Company)
that by reason of circumstances affecting the interbank LIBOR
market adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate; or
(b) the Required Lenders advise the Administrative Agent
that the LIBOR Rate as determined by the Administrative Agent
will not adequately and fairly reflect the cost to such Lenders
of maintaining or funding LIBOR Loans for such Interest Period
(taking into account any amount to which such Lenders may be
entitled under Section 8.1) or that the making or funding of
LIBOR Loans has become impracticable as a result of an event
occurring after the date of this Agreement which in the opinion
of such Lenders materially affects such Loans;
then the Administrative Agent shall promptly notify the other
parties thereof and, so long as such circumstances shall
continue, (i) no Lender shall be under any obligation to make or
convert any Base Rate Loans into LIBOR Loans and (ii) on the last
day of the current Interest Period for each LIBOR Loan, such Loan
shall, unless then repaid in full, automatically convert to a
Base Rate Loan.
8.3 Changes in Law Rendering LIBOR Loans Unlawful. If any
change in, or the adoption of any new, law or regulation, or any
change in the interpretation of any applicable law or regulation
by any governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith
judgment of any Lender cause a substantial question as to whether
it is) unlawful for any Lender to make, maintain or fund LIBOR
Loans, then such Lender shall promptly notify each of the other
parties hereto and, so long as such circumstances shall continue,
(a) such Lender shall have no obligation to make or convert any
Base Rate Loan into a LIBOR Loan (but shall make Base Rate Loans
concurrently with the making of or conversion of Base Rate Loans
into LIBOR Loans by the Lenders which are not so affected, in
each case in an amount equal to the amount of LIBOR Loans which
would be made or converted into by such Lender at such time in
the absence of such circumstances) and (b) on the last day of the
current Interest Period for each LIBOR Loan of such Lender (or,
in any event, on such earlier date as may be required by the
relevant law, regulation or interpretation), such LIBOR Loan
shall, unless then repaid in full, automatically convert to a
Base Rate Loan. Each Base Rate Loan made by a Lender which, but
for the circumstances described in the foregoing sentence, would
be a LIBOR Loan (an "Affected Loan") shall remain outstanding for
the period
36
corresponding to the Group of LIBOR Loans of which such Affected
Loan would be a part absent such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon
demand by any Lender (which demand shall be accompanied by a
statement setting forth the basis for the amount being claimed, a
copy of which shall be furnished to the Administrative Agent),
the Company will indemnify such Lender against any net loss or
expense which such Lender may sustain or incur (including any net
loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender
to fund or maintain any LIBOR Loan), as reasonably determined by
such Lender, as a result of (a) any payment, prepayment or
conversion of any LIBOR Loan of such Lender on a date other than
the last day of an Interest Period for such Loan (including any
conversion pursuant to Section 8.3) or (b) any failure of the
Company to borrow, convert or continue any Loan on a date
specified therefor in a notice of borrowing, conversion or
continuation pursuant to this Agreement. For this purpose, all
notices to the Administrative Agent pursuant to this Agreement
shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each
Lender may, if it so elects, fulfill its commitment as to any
LIBOR Loan by causing a foreign branch or Affiliate of such
Lender to make such Loan; provided that in such event for the
purposes of this Agreement such Loan shall be deemed to have been
made by such Lender and the obligation of the Company to repay
such Loan shall nevertheless be to such Lender and shall be
deemed held by it, to the extent of such Loan, for the account of
such branch or Affiliate.
8.6 Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary,
each Lender shall be entitled to fund and maintain its funding of
all or any part of its Loans in any manner it sees fit, it being
understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Lender had
actually funded and maintained each LIBOR Loan during each
Interest Period for such Loan through the purchase of deposits
having a maturity corresponding to such Interest Period and
bearing an interest rate equal to the LIBOR Rate for such
Interest Period.
8.7 Mitigation of Circumstances; Replacement of Lenders.
(a) Each Lender shall promptly notify the Company and the
Administrative Agent of any event of which it has knowledge which
will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender's sole judgment,
otherwise disadvantageous to such Lender) to mitigate or avoid,
(i) any obligation by the Company to pay any amount pursuant to
Section 7.6 or 8.1 or (ii) the occurrence of any circumstances
described in Section 8.2 or 8.3 (and, if any Lender has given
notice of any such event described in clause (i) or (ii) above
and thereafter such event ceases to exist, such Lender shall
promptly so notify the Company and the Administrative Agent).
Without limiting the foregoing, each Lender will designate a
different funding office if such designation will avoid (or
reduce the cost to the Company of) any event described in clause
(i) or (ii) above and such designation will not, in such Lender's
sole judgment, be otherwise disadvantageous to such Lender.
37
(b) If the Company becomes obligated to pay additional
amounts to any Lender pursuant to Section 7.6 or 8.1, or any
Lender gives notice of the occurrence of any circumstances
described in Section 8.2 or 8.3, the Company may designate
another bank which is acceptable to the Administrative Agent and
the Issuing Lender in their reasonable discretion (such other
bank being called a "Replacement Lender") to purchase the Loans
of such Lender and such Lender's rights hereunder, without
recourse to or warranty by, or expense to, such Lender, for a
purchase price equal to the outstanding principal amount of the
Loans payable to such Lender plus any accrued but unpaid interest
on such Loans and all accrued but unpaid fees owed to such Lender
and any other amounts payable to such Lender under this
Agreement, and to assume all the obligations of such Lender
hereunder, and, upon such purchase and assumption (pursuant to an
Assignment Agreement), such Lender shall no longer be a party
hereto or have any rights hereunder (other than rights with
respect to indemnities and similar rights applicable to such
Lender prior to the date of such purchase and assumption) and
shall be relieved from all obligations to the Company hereunder,
and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
8.8 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section
8.1, 8.2, 8.3 or 8.4 shall be conclusive absent demonstrable
error. Lenders may use reasonable averaging and attribution
methods in determining compensation under Sections 8.1 and 8.4,
and the provisions of such Sections shall survive repayment of
the Obligations, cancellation of any Notes, expiration or
termination of the Letters of Credit and termination of this
Agreement.
SECTION 9 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to induce the Lenders to make Loans and
issue and participate in Letters of Credit hereunder, the Company
represents and warrants to the Administrative Agent and the
Lenders that, both before and after giving effect to the Related
Transactions:
9.1 Organization. Each Loan Party is validly existing and
in good standing under the laws of its jurisdiction of
organization; and each Loan Party is duly qualified to do
business in each jurisdiction where, because of the nature of its
activities or properties, such qualification is required, except
for such jurisdictions where the failure to so qualify would not
have a Material Adverse Effect.
9.2 Authorization; No Conflict. Each Loan Party is duly
authorized to execute and deliver each Loan Document to which it
is a party, the Company is duly authorized to borrow monies
hereunder and each Loan Party is duly authorized to perform its
Obligations under each Loan Document to which it is a party. The
execution, delivery and performance by each Loan Party of each
Loan Document to which it is a party, and the borrowings by the
Company hereunder, do not and will not (a) require any consent or
approval of any governmental agency or authority (other than any
consent or approval which has been obtained and is in full force
and effect), (b) conflict with (i) any provision of law, (ii) the
charter, by-laws or other organizational
38
documents of any Loan Party or (iii) any agreement, indenture,
instrument or other document, or any judgment, order or decree,
which is binding upon any Loan Party or any of their respective
properties or (c) require, or result in, the creation or
imposition of any Lien on any asset of any Loan Party (other than
Liens in favor of the Administrative Agent created pursuant to
the Collateral Documents).
9.3 Validity and Binding Nature. Each of this Agreement
and each other Loan Document to which any Loan Party is a party
is the legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting the
enforceability of creditors' rights generally and to general
principles of equity.
9.4 Financial Condition. The audited consolidated
financial statements of the Company and its Subsidiaries as at
February 29, 2004 and the unaudited consolidated financial
statements of the Company and the Subsidiaries as at August 31,
2004, copies of each of which have been delivered to each Lender,
were prepared in accordance with GAAP (subject, in the case of
such unaudited statements, to the absence of footnotes and to
normal year-end adjustments) and present fairly the consolidated
financial condition of the Company and its Subsidiaries as at
such dates and the results of their operations for the periods
then ended.
9.5 No Material Adverse Change. Since February 29, 2004,
there has been no material adverse change in the financial
condition, operations, assets, business, properties or prospects
of the Loan Parties taken as a whole.
9.6 Litigation and Contingent Liabilities. No litigation
(including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the
Company's knowledge, threatened against any Loan Party which
might reasonably be expected to have a Material Adverse Effect,
except as set forth in Schedule 9.6. Other than any liability
incident to such litigation or proceedings, no Loan Party has any
material contingent liabilities not listed on Schedule 9.6 or
permitted by Section 11.1.
9.7 Ownership of Properties; Liens. Each Loan Party owns
good and, in the case of real property, marketable title to all
of its properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and
clear of all Liens, charges and claims (including infringement
claims with respect to patents, trademarks, service marks,
copyrights and the like) except as permitted by Section 11.2.
9.8 Equity Ownership; Subsidiaries. All issued and
outstanding Capital Securities of each Loan Party are duly
authorized and validly issued, fully paid, non-assessable, and
free and clear of all Liens other than those in favor of the
Administrative Agent, and such securities were issued in
compliance with all applicable state and federal laws concerning
the issuance of securities. Schedule 9.8 sets forth the
authorized Capital Securities of each Loan Party as of the
Closing Date. All of the issued and outstanding Capital
Securities of the Company are owned as set forth on Schedule 9.8
as of the Closing Date, and all of the issued and outstanding
Capital
39
Securities of each Wholly-Owned Subsidiary is, directly or
indirectly, owned by the Company. As of the Closing Date, except
as set forth on Schedule 9.8, there are no pre-emptive or other
outstanding rights, options, warrants, conversion rights or other
similar agreements or understandings for the purchase or
acquisition of any Capital Securities of any Loan Party.
9.9 Pension Plans. (a) The Unfunded Liability of all
Pension Plans does not in the aggregate exceed twenty percent of
the Total Plan Liability for all such Pension Plans. Each
Pension Plan complies in all material respects with all
applicable requirements of law and regulations. No contribution
failure under Section 412 of the Code, Section 302 of ERISA or
the terms of any Pension Plan has occurred with respect to any
Pension Plan, sufficient to give rise to a Lien under Section
302(f) of ERISA, or otherwise to have a Material Adverse Effect.
There are no pending or, to the knowledge of Company, threatened,
claims, actions, investigations or lawsuits against any Pension
Plan, any fiduciary of any Pension Plan, or Company or other any
member of the Controlled Group with respect to a Pension Plan or
a Multiemployer Pension Plan which could reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any
other member of the Controlled Group has engaged in any
prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) in connection with any Pension Plan or
Multiemployer Pension Plan which would subject that Person to any
material liability. Within the past five years, neither the
Company nor any other member of the Controlled Group has engaged
in a transaction which resulted in a Pension Plan with an
Unfunded Liability being transferred out of the Controlled Group,
which could reasonably be expected to have a Material Adverse
Effect. No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan, which could
reasonably be expected to have a Material Adverse Effect.
(b) All contributions (if any) have been made to any
Multiemployer Pension Plan that are required to be made by the
Company or any other member of the Controlled Group under the
terms of the plan or of any collective bargaining agreement or by
applicable law; neither the Company nor any other member of the
Controlled Group has withdrawn or partially withdrawn from any
Multiemployer Pension Plan, incurred any withdrawal liability
with respect to any such plan or received notice of any claim or
demand for withdrawal liability or partial withdrawal liability
from any such plan, and no condition has occurred which, if
continued, could result in a withdrawal or partial withdrawal
from any such plan; and neither the Company nor any other member
of the Controlled Group has received any notice that any
Multiemployer Pension Plan is in reorganization, that increased
contributions may be required to avoid a reduction in plan
benefits or the imposition of any excise tax, that any such plan
is or has been funded at a rate less than that required under
Section 412 of the Code, that any such plan is or may be
terminated, or that any such plan is or may become insolvent.
9.10 Investment Company Act. No Loan Party is an
"investment company" or a company "controlled" by an "investment
company" or a "subsidiary" of an "investment company," within the
meaning of the Investment Company Act of 1940.
40
9.11 Public Utility Holding Company Act. No Loan Party is a
"holding company", or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935.
9.12 Regulations T, U and X. The Company is not engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock. No use of the proceeds of the Loans
hereunder shall be in violation of Regulations T, U or X.
9.13 Taxes. Each Loan Party has timely filed all tax
returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges due and payable with
respect to such return, except any such taxes or charges which
are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books. The Loan Parties
have made adequate reserves on their books and records in
accordance with GAAP for all taxes that have accrued but which
are not yet due and payable. No Loan Party has participated in
any transaction that relates to a year of the taxpayer (which is
still open under the applicable statute of limitations) which is
a "reportable transaction" within the meaning of Treasury
Regulation Section 1.6011-4(b)(2) (irrespective of the date when
the transaction was entered into).
9.14 Solvency, etc. On the Closing Date, and immediately
prior to and after giving effect to the issuance of each Letter
of Credit and each borrowing hereunder and the use of the
proceeds thereof, with respect to each Loan Party, individually,
(a) the fair value of its assets is greater than the amount of
its liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities
evaluated in accordance with GAAP, (b) the present fair saleable
value of its assets is not less than the amount that will be
required to pay the probable liability on its debts as they
become absolute and matured, (c) it is able to realize upon its
assets and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature
in the normal course of business, (d) it does not intend to, and
does not believe that it will, incur debts or liabilities beyond
its ability to pay as such debts and liabilities mature and (e)
it is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which its property
would constitute unreasonably small capital.
9.15 Environmental Matters. The on-going operations of each
Loan Party comply in all respects with all Environmental Laws,
except such non-compliance which could not (if enforced in
accordance with applicable law) reasonably be expected to result,
either individually or in the aggregate, in a Material Adverse
Effect. Each Loan Party has obtained, and maintained in good
standing, all licenses, permits, authorizations, registrations
and other approvals required under any Environmental Law and
required for their respective ordinary course operations, and for
their reasonably anticipated future operations, and each Loan
Party is in compliance with all terms and conditions thereof,
except where the failure to do so could not reasonably be
expected to result in material liability to any Loan Party and
could not reasonably be expected to result, either individually
or in the aggregate, in a Material Adverse Effect. No Loan Party
or any of its
41
properties or operations is subject to, or reasonably anticipates
the issuance of, any written order from or agreement with any
Federal, state or local governmental authority, nor subject to
any judicial or docketed administrative or other proceeding,
respecting any Environmental Law, Environmental Claim or
Hazardous Substance. There are no Hazardous Substances or other
conditions or circumstances existing with respect to any
property, arising from operations prior to the Closing Date, or
relating to any waste disposal, of any Loan Party that would
reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. No Loan Party has any
underground storage tanks that are not properly registered or
permitted under applicable Environmental Laws or that at any time
have released, leaked, disposed of or otherwise discharged
Hazardous Substances.
9.16 Insurance. Set forth on Schedule 9.16 is a complete
and accurate summary of the property and casualty insurance
program of the Loan Parties as of the Closing Date (including the
names of all insurers, policy numbers, expiration dates, amounts
and types of coverage, annual premiums, exclusions, deductibles,
self-insured retention, and a description in reasonable detail of
any self-insurance program, retrospective rating plan, fronting
arrangement or other risk assumption arrangement involving any
Loan Party). Each Loan Party and its properties are insured with
financially sound and reputable insurance companies which are not
Affiliates of the Loan Parties, in such amounts, with such
deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar
properties in localities where such Loan Parties operate.
9.17 Real Property. Set forth on Schedule 9.17 is a
complete and accurate list, as of the Closing Date, of the
address of all real property owned or leased by any Loan Party,
together with, in the case of leased property, the name and
mailing address of the lessor of such property.
9.18 Information. All information heretofore or
contemporaneously herewith furnished in writing by any Loan Party
to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement and the transactions contemplated
hereby is, and all written information hereafter furnished by or
on behalf of any Loan Party to the Administrative Agent or any
Lender pursuant hereto or in connection herewith will be, true
and accurate in every material respect on the date as of which
such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any
material fact necessary to make such information not misleading
in light of the circumstances under which it was made; it being
hereby acknowledged by the Administrative Agent and the Lenders
that any projections and forecasts provided by the Company are
based on good faith estimates and assumptions believed by the
Company to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the
period or periods covered by any such projections and forecasts
may differ from projected or forecasted results.
9.19 Intellectual Property. Each Loan Party owns and
possesses or has a license or other right to use all patents,
patent rights, trademarks, trademark rights, trade names, trade
name rights, service marks, service mark rights and copyrights as
are necessary for the conduct of the
42
businesses of the Loan Parties, without any infringement upon
rights of others which could reasonably be expected to have a
Material Adverse Effect.
9.20 Burdensome Obligations. No Loan Party is a party to
any agreement or contract or subject to any restriction contained
in its organizational documents which could reasonably be
expected to have a Material Adverse Effect.
9.21 Labor Matters. Except as set forth on Schedule 9.21,
no Loan Party is subject to any labor or collective bargaining
agreement. There are no existing or threatened strikes, lockouts
or other labor disputes involving any Loan Party that singly or
in the aggregate could reasonably be expected to have a Material
Adverse Effect. Hours worked by and payment made to employees of
the Loan Parties are not in violation of the Fair Labor Standards
Act or any other applicable law, rule or regulation dealing with
such matters.
9.22 No Default. No Event of Default or Unmatured Event of
Default exists or would result from the incurrence by any Loan
Party of any Debt hereunder or under any other Loan Document.
9.23 Related Agreements, etc. (a) The Company has heretofore
furnished the Administrative Agent a true and correct copy of the
Related Agreements.
(b) Each Loan Party and, to the Company's knowledge, each
other party to the Related Agreements, has duly taken all
necessary corporate, partnership or other organizational action
to authorize the execution, delivery and performance of the
Related Agreements and the consummation of transactions
contemplated thereby.
(c) The Related Transactions will comply with all
applicable legal requirements, and all necessary governmental,
regulatory, creditor, shareholder, partner and other material
consents, approvals and exemptions required to be obtained by the
Loan Parties and, to the Company's knowledge, each other party to
the Related Agreements in connection with the Related
Transactions will be, prior to consummation of the Related
Transactions, duly obtained and will be in full force and effect.
As of the date of the Related Agreements, all applicable waiting
periods with respect to the Related Transactions will have
expired without any action being taken by any competent
governmental authority which restrains, prevents or imposes
material adverse conditions upon the consummation of the Related
Transactions.
(d) The execution and delivery of the Related Agreements
did not, and the consummation of the Related Transactions will
not, violate any statute or regulation of the United States
(including any securities law) or of any state or other
applicable jurisdiction, or any order, judgment or decree of any
court or governmental body binding on any Loan Party or, to the
Company's knowledge, any other party to the Related Agreements,
or result in a breach of, or constitute a default under, any
material agreement, indenture, instrument or other document, or
any judgment, order or decree, to which any Loan Party is a party
or by which any Loan Party is bound or, to the Company's
knowledge, to which any other party to the Related Agreements is
a party or by which any such party is bound.
43
(e) No statement or representation made in the Related
Agreements by any Loan Party or, to the Company's knowledge, any
other Person, contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading.
SECTION 10 AFFIRMATIVE COVENANTS.
Until the expiration or termination of the Commitments and
thereafter until all Obligations hereunder and under the other
Loan Documents are paid in full and all Letters of Credit have
been terminated, the Company agrees that, unless at any time the
Required Lenders shall otherwise expressly consent in writing, it
will:
10.1 Reports, Certificates and Other Information. Furnish
to the Administrative Agent and each Lender:
10.1.1 Annual Report. Promptly when available and in any
event within 90 days after the close of each Fiscal Year: (a) a
copy of the annual audit report of the Company and its
Subsidiaries for such Fiscal Year, including therein consolidated
balance sheets and statements of earnings and cash flows of the
Company and its Subsidiaries as at the end of such Fiscal Year,
certified without adverse reference to going concern value and
without qualification by independent auditors of recognized
standing selected by the Company and reasonably acceptable to the
Administrative Agent, together with a comparison with the budget
for such Fiscal Year and a comparison with the previous Fiscal
Year; and (b) a consolidating balance sheet of the Company and
its Subsidiaries as of the end of such Fiscal Year and
consolidating statement of earnings and cash flows for the
Company and its Subsidiaries for such Fiscal Year, certified by a
Senior Officer of the Company.
10.1.2 Interim Reports. Promptly when available and in
any event within 45 days after the end of each Fiscal Quarter
(except the last Fiscal Quarter of each Fiscal Year),
consolidated and consolidating balance sheets of the Company and
its Subsidiaries as of the end of such Fiscal Quarter, together
with consolidated and consolidating statements of earnings and
cash flows for such Fiscal Quarter and for the period beginning
with the first day of such Fiscal Year and ending on the last day
of such Fiscal Quarter, together with a comparison with the
corresponding period of the previous Fiscal Year and a comparison
with the budget for such period of the current Fiscal Year,
certified by a Senior Officer of the Company.
10.1.3 Compliance Certificates. Contemporaneously with
the furnishing of a copy of each annual audit report pursuant to
Section 10.1.1 and each set of quarterly statements pursuant to
Section 10.1.2, a duly completed compliance certificate in the
form of Exhibit B, with appropriate insertions, dated the date of
such annual report or such quarterly statements and signed by a
Senior Officer of the Company, containing (i) a computation of
each of the financial ratios and restrictions set forth in
Section 11.14 and to the effect that such officer has not become
aware of any Event of Default or Unmatured Event of Default that
has occurred and is continuing or, if there is any such event,
describing it and the steps, if any, being taken to cure it
44
and (ii) a written statement of the Company's management setting
forth a discussion of the Company's financial condition, changes
in financial condition and results of operations.
10.1.4 Reports to the SEC and to Shareholders. Promptly
upon the filing or sending thereof, copies of all regular,
periodic or special reports of any Loan Party filed with the SEC;
copies of all registration statements of any Loan Party filed
with the SEC (other than on Form S-8); and copies of all proxy
statements or other communications made to security holders
generally.
10.1.5 Notice of Default, Litigation and ERISA Matters.
Promptly upon becoming aware of any of the following, written
notice describing the same and the steps being taken by the
Company or the Subsidiary affected thereby with respect thereto:
(a) the occurrence of an Event of Default or an
Unmatured Event of Default;
(b) any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the
Company to the Lenders which has been instituted or, to the
knowledge of the Company, is threatened against any Loan
Party or to which any of the properties of any thereof is
subject which might reasonably be expected to have a
Material Adverse Effect;
(c) the institution of any steps by any member of the
Controlled Group or any other Person to terminate any
Pension Plan, or the failure of any member of the Controlled
Group to make a required contribution to any Pension Plan
(if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA) or to any Multiemployer Pension
Plan, or the taking of any action with respect to a Pension
Plan which could result in the requirement that the Company
furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any
Pension Plan or Multiemployer Pension Plan which could
result in the incurrence by any member of the Controlled
Group of any material liability, fine or penalty (including
any claim or demand for withdrawal liability or partial
withdrawal from any Multiemployer Pension Plan), or any
material increase in the contingent liability of the Company
with respect to any post-retirement welfare benefit plan or
other employee benefit plan of the Company or another member
of the Controlled Group, or any notice that any
Multiemployer Pension Plan is in reorganization, that
increased contributions may be required to avoid a reduction
in plan benefits or the imposition of an excise tax, that
any such plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan
is or may be terminated, or that any such plan is or may
become insolvent;
(d) any cancellation or material change in any
insurance maintained by any Loan Party; or
(e) any other event (including (i) any violation of
any Environmental Law or the assertion of any Environmental
Claim or (ii) the enactment or effectiveness of any
45
law, rule or regulation) which might reasonably be expected
to have a Material Adverse Effect.
10.1.6 Management Reports. Promptly upon receipt
thereof, copies of all detailed financial and management reports
submitted to the Company by independent auditors in connection
with each annual or interim audit made by such auditors of the
books of the Company.
10.1.7 Projections. As soon as practicable, and in any
event not later than 30 days after the commencement of each
Fiscal Year, financial projections for the Company and its
Subsidiaries for such Fiscal Year (including quarterly operating
and cash flow budgets and, if requested by the Administrative
Agent, monthly operating and cash flow budgets) prepared in a
manner consistent with the projections delivered by the Company
to the Lenders prior to the Closing Date or otherwise in a manner
reasonably satisfactory to the Administrative Agent, accompanied
by a certificate of a Senior Officer of the Company on behalf of
the Company to the effect that (a) such projections were prepared
by the Company in good faith, (b) the Company has a reasonable
basis for the assumptions contained in such projections and (c)
such projections have been prepared in accordance with such
assumptions.
10.1.8 Subordinated Debt and Related Transaction Notices.
Promptly following receipt, copies of any notices (including
notices of default or acceleration) received from any holder or
trustee of, under or with respect to any Subordinated Debt or in
connection with the Related Transactions.
10.1.9 Other Information. Promptly from time to time,
such other information concerning the Loan Parties as any Lender
or the Administrative Agent may reasonably request.
10.2 Books, Records and Inspections. Keep, and cause each
other Loan Party to keep, its books and records in accordance
with sound business practices sufficient to allow the preparation
of financial statements in accordance with GAAP; permit, and
cause each other Loan Party to permit, any Lender or the
Administrative Agent or any representative thereof to inspect the
properties and operations of the Loan Parties; and permit, and
cause each other Loan Party to permit, at any reasonable time and
with reasonable notice (or at any time without notice if an Event
of Default exists), any Lender or the Administrative Agent or any
representative thereof to visit any or all of its offices, to
discuss its financial matters with its officers and its
independent auditors (and the Company hereby authorizes such
independent auditors to discuss such financial matters with any
Lender or the Administrative Agent or any representative
thereof), and to examine (and, at the expense of the Loan
Parties, photocopy extracts from) any of its books or other
records; and permit, and cause each other Loan Party to permit,
the Administrative Agent and its representatives to inspect the
Inventory and other tangible assets of the Loan Parties, to
perform appraisals of the equipment of the Loan Parties, and to
inspect, audit, check and make copies of and extracts from the
books, records, computer data, computer programs, journals,
orders, receipts, correspondence and other data relating to
Inventory, Accounts and any other collateral. All such
inspections or audits by the Administrative Agent shall be at the
Company's
46
expense; provided that so long as no Event of Default or
Unmatured Event of Default shall have occurred and be continuing
(i) there shall be no more than one (1) such inspection or audit
per Fiscal Year and (ii) the maximum expense for which the
Company shall be responsible shall be $25,000.
10.3 Maintenance of Property; Insurance. (a) Keep, and
cause each other Loan Party to keep, all property useful and
necessary in the business of the Loan Parties in good working
order and condition, ordinary wear and tear excepted.
(b) Maintain, and cause each other Loan Party to maintain,
with responsible insurance companies, such insurance coverage as
may be required by any law or governmental regulation or court
decree or order applicable to it and such other insurance, to
such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated, but which
shall insure against all risks and liabilities of the type
identified on Schedule 9.16 and shall have insured amounts no
less than, and deductibles no higher than, those set forth on
such schedule; and, upon request of the Administrative Agent or
any Lender, furnish to the Administrative Agent or such Lender a
certificate setting forth in reasonable detail the nature and
extent of all insurance maintained by the Loan Parties. The
Company shall cause each issuer of an insurance policy to provide
the Administrative Agent with an endorsement (i) showing the
Administrative Agent as loss payee with respect to each policy of
property or casualty insurance and naming the Administrative
Agent and each Lender as an additional insured with respect to
each policy of liability insurance, (ii) providing that 30 days'
notice will be given to the Administrative Agent prior to any
cancellation of, material reduction or change in coverage
provided by or other material modification to such policy and
(iii) reasonably acceptable in all other respects to the
Administrative Agent. The Company shall execute and deliver to
the Administrative Agent a collateral assignment, in form and
substance satisfactory to the Administrative Agent, of each
business interruption insurance policy maintained by the Company.
(c) UNLESS THE COMPANY PROVIDES THE ADMINISTRATIVE
AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS
AGREEMENT, THE ADMINISTRATIVE AGENT MAY PURCHASE INSURANCE AT THE
COMPANY'S EXPENSE TO PROTECT THE ADMINISTRATIVE AGENT'S AND THE
LENDERS' INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY, BUT
NEED NOT, PROTECT ANY LOAN PARTY'S INTERESTS. THE COVERAGE THAT
THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY CLAIM THAT IS
MADE AGAINST ANY LOAN PARTY IN CONNECTION WITH THE COLLATERAL.
THE COMPANY MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE
ADMINISTRATIVE AGENT, BUT ONLY AFTER PROVIDING THE ADMINISTRATIVE
AGENT WITH EVIDENCE THAT THE COMPANY HAS OBTAINED INSURANCE AS
REQUIRED BY THIS AGREEMENT. IF THE ADMINISTRATIVE AGENT
PURCHASES INSURANCE FOR THE COLLATERAL, THE COMPANY WILL BE
RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST
AND ANY OTHER CHARGES THAT MAY BE IMPOSED
47
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 THE PRINCIPAL AMOUNT OF THE LOANS
OWING HEREUNDER. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE
COST OF THE INSURANCE THE LOAN PARTIES MAY BE ABLE TO OBTAIN ON
THEIR OWN.
10.4 Compliance with Laws; Payment of Taxes and Liabilities.
(a) Comply, and cause each other Loan Party to comply, in all
material respects with all applicable laws, rules, regulations,
decrees, orders, judgments, licenses and permits, except where
failure to comply could not reasonably be expected to have a
Material Adverse Effect; (b) without limiting clause (a) above,
ensure, and cause each other Loan Party to ensure, that no person
who owns a controlling interest in or otherwise controls a Loan
Party is or shall be (i) 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 (ii) 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, (c) without
limiting clause (a) above, comply, and cause each other Loan
Party to comply, with all applicable Bank Secrecy Act ("BSA") and
anti-money laundering laws and regulations and (d) pay, and cause
each other Loan Party to pay, prior to delinquency, all taxes and
other governmental charges against it or any collateral, as well
as claims of any kind which, if unpaid, could become a Lien on
any of its property; provided that the foregoing shall not
require any Loan Party to pay any such tax or charge so long as
it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate
reserves with respect thereto in accordance with GAAP and, in the
case of a claim which could become a Lien on any collateral, such
contest proceedings shall stay the foreclosure of such Lien or
the sale of any portion of the collateral to satisfy such claim.
10.5 Maintenance of Existence, etc. Maintain and preserve,
and (subject to Section 11.5) cause each other Loan Party to
maintain and preserve, (a) its existence and good standing in the
jurisdiction of its organization and (b) its qualification to do
business and good standing in each jurisdiction where the nature
of its business makes such qualification necessary (other than
such jurisdictions in which the failure to be qualified or in
good standing could not reasonably be expected to have a Material
Adverse Effect).
10.6 Use of Proceeds. Use the proceeds of the Loans, and
the Letters of Credit, solely to finance the Related
Transactions, for working capital purposes, for Acquisitions
permitted by Section 11.5, for Capital Expenditures and for other
general business purposes; and not use or permit any proceeds of
any Loan to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of
"purchasing or carrying" any Margin Stock.
10.7 Employee Benefit Plans.
48
(a) Maintain, and cause each other member of the Controlled
Group to maintain, each Pension Plan in substantial compliance
with all applicable requirements of law and regulations.
(b) Make, and cause each other member of the Controlled
Group to make, on a timely basis, all required contributions to
any Multiemployer Pension Plan.
(c) Not, and not permit any other member of the Controlled
Group to (i) seek a waiver of the minimum funding standards of
ERISA, (ii) terminate or withdraw from any Pension Plan or
Multiemployer Pension Plan or (iii) take any other action with
respect to any Pension Plan that would reasonably be expected to
entitle the PBGC to terminate, impose liability in respect of, or
cause a trustee to be appointed to administer, any Pension Plan,
unless the actions or events described in clauses (i), (ii) and
(iii) individually or in the aggregate would not have a Material
Adverse Effect.
10.8 Environmental Matters. If any release or threatened
release or other disposal of Hazardous Substances shall occur or
shall have occurred on any real property or any other assets of
any Loan Party, the Company shall, or shall cause the applicable
Loan Party to, cause the prompt containment and removal of such
Hazardous Substances and the remediation of such real property or
other assets as necessary to comply with all Environmental Laws
and to preserve the value of such real property or other assets.
Without limiting the generality of the foregoing, the Company
shall, and shall cause each other Loan Party to, comply with any
Federal or state judicial or administrative order requiring the
performance at any real property of any Loan Party of activities
in response to the release or threatened release of a Hazardous
Substance. To the extent that the transportation of Hazardous
Substances is permitted by this Agreement, the Company shall, and
shall cause its Subsidiaries to, dispose of such Hazardous
Substances, or of any other wastes, only at licensed disposal
facilities operating in compliance with Environmental Laws.
10.9 Further Assurances. Take, and cause each other Loan
Party to take, such actions as are necessary or as the
Administrative Agent or the Required Lenders may reasonably
request from time to time to ensure that the Obligations of each
Loan Party under the Loan Documents are secured by substantially
all of the assets of the Company and each domestic Subsidiary (as
well as all Capital Securities of each domestic Subsidiary and
65% of all Capital Securities of each direct foreign Subsidiary)
and guaranteed by each domestic Subsidiary (including, upon the
acquisition or creation thereof, any Subsidiary acquired or
created after the Closing Date), in each case as the
Administrative Agent may determine, including (a) the execution
and delivery of guaranties, security agreements, pledge
agreements, mortgages, deeds of trust, financing statements and
other documents, and the filing or recording of any of the
foregoing and (b) the delivery of certificated securities and
other collateral with respect to which perfection is obtained by
possession.
SECTION 11 NEGATIVE COVENANTS
Until the expiration or termination of the Commitments and
thereafter until all Obligations hereunder and under the other
Loan Documents are paid in full and all Letters of
49
Credit have been terminated, the Company agrees that, unless at
any time the Required Lenders shall otherwise expressly consent
in writing, it will:
11.1 Debt. Not, and not permit any other Loan Party to,
create, incur, assume or suffer to exist any Debt, except:
(a) Obligations under this Agreement and the other
Loan Documents;
(b) Debt secured by Liens permitted by Sections
11.2(d) and 11.2(h), and extensions, renewals and
refinancings thereof; provided that the aggregate amount of
all such Debt at any time outstanding shall not exceed
$20,000,000; provided further that the amount of Debt
incurred under this clause (b) (to the extent consisting of
Debt Secured by liens under Section 11.2(h)), under clause
(i) and under clause (j) shall not exceed in the aggregate
$10,000,000 at any one time outstanding;
(c) Debt of the Company to any domestic Wholly-Owned
Subsidiary or Debt of any domestic Wholly-Owned Subsidiary
to the Company or another domestic Wholly-Owned Subsidiary;
provided that such Debt shall be evidenced by a demand note
in form and substance reasonably satisfactory to the
Administrative Agent and pledged and delivered to the
Administrative Agent pursuant to the Collateral Documents as
additional collateral security for the Obligations, and the
obligations under such demand note shall be subordinated to
the Obligations of the Company hereunder in a manner
reasonably satisfactory to the Administrative Agent;
(d) Subordinated Debt;
(e) Hedging Obligations approved by Administrative
Agent and incurred in favor of a Lender or an Affiliate
thereof for bona fide hedging purposes and not for
speculation;
(f) Debt described on Schedule 11.1 and any extension,
renewal or refinancing thereof so long as the principal
amount thereof is not increased;
(g) the Debt to be Repaid (so long as such Debt is
repaid on the Closing Date with the proceeds of the initial
Loans hereunder);
(h) the maximum amount of secured obligations at any
one time outstanding under and pursuant to the Factoring
Facility, not to exceed (i) for the period of one hundred
eighty (180) days from the date hereof, $30,000,000 in the
aggregate, at any one time outstanding, and (ii) at all
times thereafter, $26,000,000 in the aggregate, at any one
time outstanding;
(i) Debt assumed in connection with Acquisitions
permitted under Section 11.5 not to exceed $5,000,000 at any
time outstanding; provided that the aggregate amount of Debt
incurred under clause (b) (to the extent consisting of Debt
secured by
50
liens under Section 11.2(h)), under this clause (i) and
under clause (j) shall not exceed $10,000,000 at any time
outstanding;
(j) Debt consisting of seller financing incurred in
connection with Acquisitions permitted under Section 11.5
not to exceed $5,000,000 at any time outstanding; provided
that the aggregate amount of Debt incurred under clause (b)
(to the extent consisting of Debt secured by liens under
Section 11.2(h)), under clause (i) and under this clause (j)
shall not exceed $10,000,000 at any time outstanding; and
(k) other unsecured Debt, in addition to the Debt
listed above, in an aggregate outstanding amount not at any
time exceeding $15,000,000.
11.2 Liens. Not, and not permit any other Loan Party to,
create or permit to exist any Lien on any of its real or personal
properties, assets or rights of whatsoever nature (whether now
owned or hereafter acquired), except:
(a) Liens for taxes or other governmental charges not
at the time delinquent or thereafter payable without penalty
or being contested in good faith by appropriate proceedings
and, in each case, for which it maintains adequate reserves;
(b) Liens arising in the ordinary course of business
(such as (i) Liens of carriers, warehousemen, mechanics and
materialmen and other similar Liens imposed by law and (ii)
Liens in the form of deposits or pledges incurred in
connection with worker's compensation, unemployment
compensation and other types of social security (excluding
Liens arising under ERISA) or in connection with surety
bonds, bids, performance bonds and similar obligations) for
sums not overdue or being contested in good faith by
appropriate proceedings and not involving any advances or
borrowed money or the deferred purchase price of property or
services and, in each case, for which it maintains adequate
reserves;
(c) Liens described on Schedule 11.2 as of the Closing
Date;
(d) subject to the limitation set forth in Section
11.1(b), (i) Liens arising in connection with Capital Leases
(and attaching only to the property being leased), (ii)
Liens existing on property at the time of the acquisition
thereof by any Loan Party (and not created in contemplation
of such acquisition) and (iii) Liens that constitute
purchase money security interests on any property securing
debt incurred for the purpose of financing all or any part
of the cost of acquiring such property, provided that any
such Lien attaches to such property within 20 days of the
acquisition thereof and attaches solely to the property so
acquired;
(e) attachments, appeal bonds, judgments and other
similar Liens, for sums not exceeding $5,000,000 arising in
connection with court proceedings, provided the execution or
other enforcement of such Liens is effectively stayed and
the claims secured thereby are being actively contested in
good faith and by appropriate proceedings;
51
(f) easements, rights of way, restrictions, minor
defects or irregularities in title and other similar Liens
not interfering in any material respect with the ordinary
conduct of the business of any Loan Party;
(g) Liens arising under the Loan Documents;
(h) Subject to the limitation set forth in Section
11.1(b), Liens existing on assets acquired, or on the assets
of Person acquired, in connection with an Acquisition
permitted by Section 11.5 (and not created in contemplation
of such Acquisition); and
(i) the replacement, extension or renewal of any
Lien permitted by clause (c) above upon or in the same
property subject thereto arising out of the extension,
renewal or replacement of the Debt secured thereby (without
increase in the amount thereof).
11.3 Operating Leases. Not permit the aggregate amount of
all rental payments under Operating Leases made (or scheduled to
be made) by the Loan Parties (on a consolidated basis) to exceed
$11,000,000 in any Fiscal Year.
11.4 Restricted Payments. Not, and not permit any other
Loan Party to, (a) make any distribution to any holders of its
Capital Securities unless both before and after giving effect
thereto no Event of Default or Unmatured Event of Default would
result therefrom (determined, in the case of the financial
covenants under Sections 11.14.1 and 11.14.2, as if such
distribution had been made on the last day of the then-ending or
most recently ended fiscal quarter of the Company), (b) purchase
or redeem any of its Capital Securities, except in connection
with the repurchase of Capital Securities pursuant to and in
accordance with the provisions of any existing employee stock
option or benefit plan, (c) pay any management fees or similar
fees to any of its equityholders or any Affiliate thereof (but
excluding compensation paid to employees who are holders of its
Capital Securities which compensation is reasonable and customary
or has been approved by the Compensation Committee of the Board
of Directors of the Parent), (d) make any redemption, prepayment,
defeasance, repurchase or any other payment in respect of any
Subordinated Debt or (e) set aside funds for any of the
foregoing. Notwithstanding the foregoing, (i) any Subsidiary may
pay dividends or make other distributions to the Company or to a
domestic Wholly-Owned Subsidiary; and (ii) the Company may make
regularly scheduled payments of interest in respect of
Subordinated Debt to the extent permitted under the subordination
provisions thereof.
11.5 Mergers, Consolidations, Sales. Not, and not permit
any other Loan Party to, (a) be a party to any merger or
consolidation, or purchase or otherwise acquire all or
substantially all of the assets or any Capital Securities of any
class of, or any partnership or joint venture interest in, any
other Person, (b) sell, transfer, convey or lease all or any
substantial part of its assets or Capital Securities (including
the sale of Capital Securities of any Subsidiary) except for
sales of inventory in the ordinary course of business, or (c)
sell or assign with or without recourse any receivables, except
for (i) any such merger, consolidation, sale, transfer,
conveyance, lease or assignment of or by any Wholly-Owned
Subsidiary into the Company or into any other domestic Wholly-
Owned Subsidiary; (ii) any such purchase or other acquisition by
the Company or any
52
domestic Wholly-Owned Subsidiary of the assets or Capital
Securities of any Wholly-Owned Subsidiary; and (iii) any
Acquisition by the Company or any domestic Wholly-Owned
Subsidiary where:
(A) the business or division acquired are for use, or
the Person acquired is engaged, in businesses permitted by
Section 11.10 hereof;
(B) immediately before and after giving effect to such
Acquisition, no Event of Default or Unmatured Event of Default
shall exist;
(C) (i) the entire consideration to be paid by the Loan
Parties is comprised of common stock issued by the Parent or (ii)
the aggregate consideration to be paid by the Loan Parties
(including any Debt assumed or issued in connection therewith,
the amount thereof to be calculated in accordance with GAAP, but
not including any common stock issued by the Parent as part of
the consideration thereof, for which the limitations set forth in
this Section 11.5(C) shall not apply) in connection with such
Acquisition (or any series of related Acquisitions) is less than
$15,000,000 and the aggregate of such consideration for all such
Acquisitions (or series of related Acquisitions), including such
Acquisition, during the then ending preceding 12 month period
does not exceed $20,000,000;
(D) immediately after giving effect to such
Acquisition, the Company is in pro forma compliance with all the
financial ratios and restrictions set forth in Section 11.14;
(E) in the case of the Acquisition of any Person, the
Board of Directors of such Person has approved such Acquisition;
(F) reasonably prior to such Acquisition, the
Administrative Agent shall have received complete executed or
conformed copies of each material document, instrument and
agreement to be executed in connection with such Acquisition
together with all lien search reports and, except in connection
with liens which will continue pursuant to applicable exceptions
set forth in clauses (a) through (i) of Section 11.2 lien release
letters and other documents as the Administrative Agent may
require to evidence the termination of Liens on the assets or
business to be acquired;
(G) not less than ten Business Days prior to such
Acquisition, the Administrative Agent shall have received an
acquisition summary with respect to the Person and/or business or
division to be acquired, such summary to include a reasonably
detailed description thereof (including financial information)
and operating results (including financial statements for the
most recent 12 month period for which they are available and as
otherwise available), the terms and conditions, including
economic terms, of the proposed Acquisition, and the Company's
calculation of pro forma EBITDA relating thereto;
(H) the Administrative Agent and Required Lenders shall
have approved the Company's computation of pro forma EBITDA;
53
(I) consents have been obtained in favor of the
Administrative Agent and the Lenders to the collateral assignment
of rights and indemnities under the related acquisition documents
and opinions of counsel for the Loan Parties and (if delivered to
the Loan Party) the selling party in favor of the Administrative
Agent and the Lenders have been delivered; and
(J) the provisions of Section 10.9 have been satisfied.
11.6 Modification of Organizational Documents; Factoring
Facility. Not permit the charter, by-laws or other
organizational documents, or the Factoring Facility of any Loan
Party to be amended or modified in any way which could reasonably
be expected to materially adversely affect the interests of the
Lenders.
11.7 Transactions with Affiliates. Not, and not permit any
other Loan Party to, enter into, or cause, suffer or permit to
exist any transaction, arrangement or contract with any of its
other Affiliates (other than the Loan Parties) which is on terms
which are less favorable than are obtainable from any Person
which is not one of its Affiliates.
11.8 Unconditional Purchase Obligations. Not, and not
permit any other Loan Party to, enter into or be a party to any
contract for the purchase of materials, supplies or other
property or services if such contract requires that payment be
made by it regardless of whether delivery is ever made of such
materials, supplies or other property or services.
11.9 Inconsistent Agreements. Not, and not permit any other
Loan Party to, enter into any agreement containing any provision
which would (a) be violated or breached by any borrowing by the
Company hereunder or by the performance by any Loan Party of any
of its Obligations hereunder or under any other Loan Document,
(b) prohibit any Loan Party from granting to the Administrative
Agent and the Lenders, a Lien on any of its assets or (c) create
or permit to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends
or make other distributions to the Company or any other
Subsidiary, or pay any Debt owed to the Company or any other
Subsidiary, (ii) make loans or advances to any Loan Party or
(iii) transfer any of its assets or properties to any Loan Party,
other than (A) customary restrictions and conditions contained in
agreements relating to the sale of all or a substantial part of
the assets of any Subsidiary pending such sale, provided that
such restrictions and conditions apply only to the Subsidiary to
be sold and such sale is permitted hereunder (B) restrictions or
conditions imposed by any agreement relating to purchase money
Debt, Capital Leases and other secured Debt permitted by this
Agreement if such restrictions or conditions apply only to the
property or assets securing such Debt and (C) customary
provisions in leases and other contracts restricting the
assignment thereof.
11.10 Business Activities. Not, and not permit any
other Loan Party to, engage in any line of business other than
(a) the businesses engaged in on the date hereof, (b) the
printing, forms, and apparel business, (c) lines of business
which are similar or complementary thereto, and (d) lines of
business set forth in the Company's strategic business plan, as
it may be amended from time to time by the Company.
54
11.11 Investments. Not, and not permit any other Loan
Party to, make or permit to exist any Investment in any other
Person, except the following:
(a) contributions by the Company to the capital of any
Wholly-Owned Subsidiary, or by any Subsidiary to the capital
of any other domestic Wholly-Owned Subsidiary, so long as
the recipient of any such capital contribution has
guaranteed the Obligations and such guaranty is secured by a
pledge of all of its Capital Securities and substantially
all of its real and personal property, in each case in
accordance with Section 10.9;
(b) Investments constituting Debt permitted by Section
11.1;
(c) Contingent Liabilities permitted by Section 11.6
or Liens permitted by Section 11.2;
(d) Cash Equivalent Investments;
(e) Investments in securities of Account Debtors
received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such
account debtors;
(f) Investments to consummate Acquisitions permitted
by Section 11.5; and
(g) Investments listed on Schedule 11.11 as of the
Closing Date.
provided that (x) any Investment which when made complies with
the requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such
requirements; (y) no Investment otherwise permitted by clause
(b), (c), or (g) shall be permitted to be made if, immediately
before or after giving effect thereto, any Event of Default or
Unmatured Event of Default exists.
11.12 Restriction of Amendments to Certain Documents.
Not amend or otherwise modify, or waive any rights under, any
documents relating to Subordinated Debt if, in any case, such
amendment, modification or waiver could be adverse to the
interests of the Lenders.
11.13 Fiscal Year. Not change its Fiscal Year.
11.14 Financial Covenants.
11.14.1 Fixed Charge Coverage Ratio. Not permit the Fixed
Charge Coverage Ratio for any Computation Period to be less than,
for any Computation Period ending on or prior to February 28,
2006, 1.35:1.00 and 1.5:1.00 thereafter. For purposes of this
Section 11.14.1, the measurement of EBITDA shall include the pro
form effects of acquisitions (including the acquisition of
Centrum Acquisition, Inc. and Crabar/GBF, Inc.) during the
relevant measurement
55
period as if such acquisition had been consummated at the
beginning of the relevant measurement period.
11.14.2 Total Funded Debt to EBITDA Ratio. Not permit the
Total Funded Debt to EBITDA Ratio as of the last day of any
Computation Period to exceed 2.25:1.00. For purposes of this
Section 11.14.2, the measurement of EBITDA shall include the pro
form effects of acquisitions (including the acquisition of
Centrum Acquisition, Inc. and Crabar/GBF, Inc.) during the
relevant measurement period as if such acquisition had been
consummated at the beginning of the relevant measurement period.
11.14.3 Minimum Net Worth. Not permit the Consolidated
Net Worth of the Company to be less than $225,000,000 plus 25% of
Consolidated Net Income. As used herein "Consolidated Net Worth"
means for the Company and its Subsidiaries, on a consolidated
basis, as at the end of any Fiscal Quarter, (i) the total amount
of all consolidated assets that, in accordance with GAAP, are
properly shown as such on the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such Fiscal
Quarter, prepared in accordance with GAAP (with Inventory being
valued at the lower of cost or market value), after deducting all
proper reserves (including reserves for depreciation and
amortization), minus (ii) the total amount of all consolidated
liabilities of the Company and its Subsidiaries that, in
accordance with GAAP, are properly shown as such on such balance
sheet.
11.15 Cancellation of Debt. Not, and not permit any
other Loan Party to, cancel any claim or debt owing to it, except
for reasonable consideration or in the ordinary course of
business, and except for the cancellation of debts or claims not
to exceed $100,000 in any Fiscal Year.
11.16 Contingent Liabilities. Not, and not permit any
other Loan Party to, incur any Contingent Liabilities.
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of each Lender to make its Loans and of the
Issuing Lender to issue Letters of Credit is subject to the
following conditions precedent:
12.1 Initial Credit Extension. The obligation of the
Lenders to make the initial Loans and the obligation of the
Issuing Lender to issue its initial Letter of Credit (whichever
first occurs) is, in addition to the conditions precedent
specified in Section 12.2, subject to the conditions precedent
that (a) all Debt to be Repaid has been (or concurrently with the
initial borrowing will be) paid in full, and that all agreements
and instruments governing the Debt to be Repaid and that all
Liens securing such Debt to be Repaid have been (or concurrently
with the initial borrowing will be) terminated and (b) the
Administrative Agent shall have received (i) evidence, reasonably
satisfactory to the Administrative Agent, that the Company has
completed, or concurrently with the initial credit extension
hereunder will complete, the Related Transactions in accordance
with the terms of the Related Agreements (without any amendment
thereto or waiver thereunder unless consented to by the Lenders);
and (ii) all of the following,
56
each duly executed and dated the Closing Date (or such earlier
date as shall be satisfactory to the Administrative Agent), in
form and substance satisfactory to the Administrative Agent (and
the date on which all such conditions precedent have been
satisfied or waived in writing by the Administrative Agent and
the Lenders is called the "Closing Date").
12.1.1 Notes. A Note for each Lender.
12.1.2 Authorization Documents. For each Loan Party,
such Person's (a) charter (or similar formation document),
certified by the appropriate governmental authority; (b) good
standing certificates in its state of incorporation (or
formation) and in each other state requested by the
Administrative Agent; (c) bylaws (or similar governing document);
(d) resolutions of its board of directors (or similar governing
body) approving and authorizing such Person's execution, delivery
and performance of the Loan Documents to which it is party and
the transactions contemplated thereby; and (e) signature and
incumbency certificates of its officers executing any of the Loan
Documents (it being understood that the Administrative Agent and
each Lender may conclusively rely on each such certificate until
formally advised by a like certificate of any changes therein),
all certified by its secretary or an assistant secretary (or
similar officer) as being in full force and effect without
modification.
12.1.3 Consents, etc. Certified copies of all
documents evidencing any necessary corporate or partnership
action, consents and governmental approvals (if any) required for
the execution, delivery and performance by the Loan Parties of
the documents referred to in this Section 12.
12.1.4 Letter of Direction. A letter of direction
containing funds flow information with respect to the proceeds of
the Loans on the Closing Date.
12.1.5 Security Agreement. A counterpart of the Security
Agreement executed by each Loan Party, together with all
instruments, transfer powers and other items required to be
delivered in connection therewith.
12.1.6 Perfection Certificate. A Perfection Certificate
completed and executed by each Loan Party.
12.1.7 Real Estate Documents. With respect to each
parcel of real property with a net book value of $750,000 or
greater owned by any Loan Party, a duly executed Mortgage
providing for a fully perfected Lien, in favor of the
Administrative Agent, in all right, title and interest of the
Company or such Subsidiary in such real property, together with:
(a) an ALTA Loan Title Insurance Policy, issued by an
insurer acceptable to the Administrative Agent, insuring the
Administrative Agent's Lien on such real property and
containing such endorsements as the Administrative Agent may
reasonably require (it being understood that the amount of
coverage, exceptions to coverage and status of title set
forth in such policy shall be acceptable to the
Administrative Agent);
57
(b) copies of all documents of record concerning such
real property as shown on the commitment for the ALTA Loan
Title Insurance Policy referred to above;
(c) original or certified copies of all insurance
policies required to be maintained with respect to such real
property by this Agreement, the applicable Mortgage or any
other Loan Document;
(d) a survey certified to the Administrative Agent
meeting such standards as the Administrative Agent may
reasonably establish and otherwise reasonably satisfactory
to the Administrative Agent; and
(e) a flood insurance policy concerning such real
property, if required by the Flood Disaster Protection Act
of 1973.
Additionally, (a) in the case of any leased real property, a
Collateral Access Agreement from the landlord of such property
waiving any landlord's Lien in respect of personal property kept
at the premises subject to such lease and (b) in the case of any
mortgaged real property, a waiver from the mortgagee thereof
waiving any Lien in respect of personal property kept at the
premises subject to such Mortgage.
12.1.8 Opinions of Counsel. Opinions of counsel for each
Loan Party, including local counsel reasonably requested by the
Administrative Agent including local counsel opinions in relation
to the Mortgages referenced in Section 12.1.7 hereof, and all
other opinions issued pursuant to the Related Transactions.
12.1.9 Insurance. Evidence of the existence of insurance
required to be maintained pursuant to Section 10.3(b), together
with evidence that the Administrative Agent has been named as a
lender's loss payee and an additional insured on all related
insurance policies.
12.1.10 Copies of Documents. Copies of the Related
Agreements certified by the secretary or assistant secretary (or
similar officer) of the Company as being true, accurate and
complete.
12.1.11 Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Closing Date, together with
all Attorney Costs of the Administrative Agent to the extent
invoiced prior to the Closing Date, plus such additional amounts
of Attorney Costs as shall constitute the Administrative Agent's
reasonable estimate of Attorney Costs incurred or to be incurred
by the Administrative Agent through the closing proceedings
(provided that such estimate shall not thereafter preclude final
settling of accounts between the Company and the Administrative
Agent).
12.1.12 Solvency Certificate. If requested by the
Administrative Agent, a Solvency Certificate executed by a Senior
Officer of the Company.
58
12.1.13 Pro Forma; Financial Statements. A consolidated
pro forma balance sheet of the Company, adjusted to give effect
to the consummation of the Related Transactions and the
financings contemplated hereby as if such transactions had
occurred on such date, consistent in all material respects with
the sources and uses of cash as previously described to the
Lenders and the forecasts previously provided to the Lenders, as
provided in the Proxy Statement as filed on Form S-4 with the
Securities and Exchange Commission on September 3, 2004, as
amended. Copies of the annual audit report of Centrum and its
Subsidiaries, if previously prepared and available, for its three
most recently ended fiscal years, including therein consolidated
balance sheets and statements of earnings and cash flows of
Centrum and its Subsidiaries as at the end of such fiscal years,
certified without adverse reference to going concern value and
without qualification by independent auditors of recognized
standing selected by Centrum and reasonably acceptable to the
Administrative Agent.
12.1.14 Environmental Reports. Environmental site
assessment reports, if and to the extent requested by the
Administrative Agent.
12.1.15 Search Results; Lien Terminations. Certified
copies of Uniform Commercial Code search reports dated a date
reasonably near to the Closing Date, listing all effective
financing statements which name any Loan Party or Centrum or any
of its Subsidiaries or any of any of Seller's Subsidiaries]
(under their present names and any previous names) as debtors,
together with (a) copies of such financing statements, (b) payoff
letters evidencing repayment in full of all Debt to be Repaid,
the termination of all agreements relating thereto and the
release of all Liens granted in connection therewith, with
Uniform Commercial Code or other appropriate termination
statements and documents effective to evidence the foregoing
(other than Liens permitted by Section 11.2) and (c) such other
Uniform Commercial Code termination statements as the
Administrative Agent may reasonably request.
12.1.16 Filings, Registrations and Recordings. The
Administrative Agent shall have received each document (including
Uniform Commercial Code financing statements) required by the
Collateral Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order
to create in favor of the Administrative Agent, for the benefit
of the Lenders, a perfected Lien on the collateral described
therein, prior to any other Liens (subject only to Liens
permitted pursuant to Section 11.2), in proper form for filing,
registration or recording.
12.1.17 Closing Certificate, Consents and Permits. A
certificate executed by an officer of the Company on behalf of
the Company certifying (a) the matters set forth in Section
12.2.1 as of the Closing Date and (b) the occurrence of the
closing of the Related Transactions and that such closing has
been consummated in accordance with the terms of the Related
Agreements without waiver of any material condition thereof;
together with evidence that (i) all necessary governmental,
regulatory, creditor, shareholder, partner and other material
consents, approvals and exemptions required to be obtained by the
Company in connection with the Related Transactions have been
duly obtained and are in full force and effect and (ii) all
material permits
59
necessary for the operation of any business(es) acquired in
connection with the Related Transactions have been obtained.
12.1.18 Account Control Agreements. Account Control
Agreements, as referred to in the Security Agreement, duly
executed by each of the Pledged Account Banks (as defined in the
Security Agreement), the applicable Loan Party and the
Administrative Agent.
12.1.19 Other. Such other documents as the Administrative
Agent or any Lender may reasonably request.
12.2 Conditions. The obligation (a) of each Lender to make
each Loan and (b) of the Issuing Lender to issue each Letter of
Credit is subject to the following further conditions precedent
that:
12.2.1 Compliance with Warranties, No Default, etc. Both
before and after giving effect to any borrowing and the issuance
of any Letter of Credit, the following statements shall be true
and correct:
(a) the representations and warranties of each Loan
Party set forth in this Agreement and the other Loan
Documents shall be true and correct in all respects with the
same effect as if then made (except to the extent stated to
relate to a specific earlier date, in which case such
representations and warranties shall be true and correct as
of such earlier date); and
(b) no Event of Default or Unmatured Event of Default
shall have then occurred and be continuing.
12.2.2 Confirmatory Certificate. If requested by the
Administrative Agent or any Lender, the Administrative Agent
shall have received (in sufficient counterparts to provide one to
each Lender) a certificate dated the date of such requested Loan
or Letter of Credit and signed by a duly authorized
representative of the Company as to the matters set out in
Section 12.2.1 (it being understood that each request by the
Company for the making of a Loan or the issuance of a Letter of
Credit shall be deemed to constitute a representation and
warranty by the Company that the conditions precedent set forth
in Section 12.2.1 will be satisfied at the time of the making of
such Loan or the issuance of such Letter of Credit), together
with such other documents as the Administrative Agent or any
Lender may reasonably request in support thereof.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
13.1.1 Non-Payment of the Loans, etc. Default in the
payment when due
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of the principal of any Loan; or default, and continuance thereof
for five days, in the payment when due of any interest, fee,
reimbursement obligation with respect to any Letter of Credit or
other amount payable by the Company hereunder or under any other
Loan Document.
13.1.2 Non-Payment of Other Debt. Any default shall
occur under the terms applicable to any Debt of any Loan Party in
an aggregate amount (for all such Debt so affected and including
undrawn committed or available amounts and amounts owing to all
creditors under any combined or syndicated credit arrangement)
exceeding $500,000 and such default shall (a) consist of the
failure to pay such Debt when due, whether by acceleration or
otherwise, or (b) accelerate the maturity of such Debt or permit
the holder or holders thereof, or any trustee or agent for such
holder or holders, to cause such Debt to become due and payable
(or require any Loan Party to purchase or redeem such Debt or
post cash collateral in respect thereof) prior to its expressed
maturity.
13.1.3 Other Material Obligations. Default in the
payment when due, or in the performance or observance of, any
material obligation of, or condition agreed to by, any Loan Party
with respect to any material purchase or lease of goods or
services where such default, singly or in the aggregate with all
other such defaults, might reasonably be expected to have a
Material Adverse Effect.
13.1.4 Bankruptcy, Insolvency, etc. Any Loan Party
becomes insolvent or generally fails to pay, or admits in writing
its inability or refusal to pay, debts as they become due; or any
Loan Party applies for, consents to, or acquiesces in the
appointment of a trustee, receiver or other custodian for such
Loan Party or any property thereof, or makes a general assignment
for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for any Loan Party or for a
substantial part of the property of any thereof and is not
discharged within 60 days; or any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation
proceeding, is commenced in respect of any Loan Party, and if
such case or proceeding is not commenced by such Loan Party, it
is consented to or acquiesced in by such Loan Party, or remains
for 60 days undismissed; or any Loan Party takes any action to
authorize, or in furtherance of, any of the foregoing.
13.1.5 Non-Compliance with Loan Documents. (a) Failure
by any Loan Party to comply with or to perform any covenant set
forth in Section 10.1.5, 10.3(b) or 10.5 or Section 11; or
(b) failure by any Loan Party to comply with or to perform any
other provision of this Agreement or any other Loan Document (and
not constituting an Event of Default under any other provision of
this Section 13) and continuance of such failure described in
this clause (b) for 30 days.
13.1.6 Representations; Warranties. Any representation
or warranty made by any Loan Party herein or any other Loan
Document is breached or is false or
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misleading in any material respect, or any schedule, certificate,
financial statement, report, notice or other writing furnished by
any Loan Party to the Administrative Agent or any Lender in
connection herewith is false or misleading in any material
respect on the date as of which the facts therein set forth are
stated or certified.
13.1.7 Pension Plans. (a) Any Person institutes steps to
terminate a Pension Plan if as a result of such termination the
Company or any member of the Controlled Group could be required
to make a contribution to such Pension Plan, or could incur a
liability or obligation to such Pension Plan, in excess of
$2,500,000; (b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA; (c) the Unfunded Liability exceeds twenty
percent of the Total Plan Liability, or (d) there shall occur any
withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to
Multiemployer Pension Plans as a result of such withdrawal
(including any outstanding withdrawal liability that the Company
or any member of the Controlled Group have incurred on the date
of such withdrawal) exceeds $2,500,000.
13.1.8 Judgments. Final judgments which exceed an
aggregate of $2,500,000 shall be rendered against any Loan Party
and shall not have been paid, discharged or vacated or had
execution thereof stayed pending appeal within 30 days after
entry or filing of such judgments.
13.1.9 Invalidity of Collateral Documents, etc. Any
Collateral Document shall cease to be in full force and effect;
or any Loan Party (or any Person by, through or on behalf of any
Loan Party) shall contest in any manner the validity, binding
nature or enforceability of any Collateral Document.
13.1.10 Invalidity of Subordination Provisions, etc. Any
subordination provision in any document or instrument governing
any Subordinated Debt, or any subordination provision in any
guaranty by any Subsidiary of any Subordinated Debt, shall cease
to be in full force and effect, or any Loan Party or any other
Person (including the holder of any applicable Subordinated Debt)
shall contest in any manner the validity, binding nature or
enforceability of any such provision.
13.1.11 Change of Control. A Change of Control shall
occur.
13.2 Effect of Event of Default. If any Event of Default
described in Section 13.1.4 shall occur in respect of the
Company, the Commitments shall immediately terminate and the
Loans and all other Obligations hereunder shall become
immediately due and payable and the Company shall become
immediately obligated to Cash Collateralize all Letters of
Credit, all without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration, or notice of any
kind; and, if any other Event of Default shall occur and be
continuing, the Administrative Agent may (and, upon the written
request of the Required Lenders shall) declare the Commitments to
be terminated in whole or in part and/or declare all or any part
of the Loans and all other Obligations hereunder to be due and
payable and/or demand that the Company immediately Cash
Collateralize all or any Letters of Credit, whereupon the
Commitments shall immediately terminate (or be reduced, as
applicable) and/or the Loans and other Obligations hereunder
shall become immediately due and payable (in whole or in part, as
applicable) and/or the Company shall immediately become obligated
to Cash Collateralize the Letters of Credit (all
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or any, as applicable), all without presentment, demand, protest
or notice of any kind. The Administrative Agent shall promptly
advise the Company of any such declaration, but failure to do so
shall not impair the effect of such declaration. Any cash
collateral delivered hereunder shall be held by the
Administrative Agent (without liability for interest thereon) and
applied to the Obligations arising in connection with any drawing
under a Letter of Credit. After the expiration or termination of
all Letters of Credit, such cash collateral shall be applied by
the Administrative Agent to any remaining Obligations hereunder
and any excess shall be delivered to the Company or as a court of
competent jurisdiction may elect.
SECTION 14 THE AGENTS.
14.1 Appointment and Authorization. Each Lender hereby
irrevocably (subject to Section 14.10) appoints, designates and
authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any
duty or responsibility except those expressly set forth herein,
nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in
other Loan Documents with reference to the Agent is not intended
to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative
relationship between independent contracting parties.
14.2 Issuing Lender. The Issuing Lender shall act on behalf
of the Lenders (according to their Pro Rata Shares) with respect
to any Letters of Credit issued by it and the documents
associated therewith. The Issuing Lender shall have all of the
benefits and immunities (a) provided to the Administrative Agent
in this Section 14 with respect to any acts taken or omissions
suffered by the Issuing Lender in connection with Letters of
Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to
such Letters of Credit as fully as if the term "Administrative
Agent", as used in this Section 14, included the Issuing Lender
with respect to such acts or omissions and (b) as additionally
provided in this Agreement with respect to the Issuing Lender.
14.3 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or
experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct.
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14.4 Exculpation of Administrative Agent. None of the
Administrative Agent nor any of its directors, officers,
employees or agents shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions
contemplated hereby (except to the extent resulting from its own
gross negligence or willful misconduct in connection with its
duties expressly set forth herein as determined by a final,
nonappealable judgment by a court of competent jurisdiction), or
(b) be responsible in any manner to any Lender or participant for
any recital, statement, representation or warranty made by any
Loan Party or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in
any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document (or the
creation, perfection or priority of any Lien or security interest
therein), or for any failure of the Company or any other party to
any Loan Document to perform its Obligations hereunder or
thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or
to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
14.5 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, electronic mail
message, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, confirmation from the
Lenders of their obligation to indemnify the Administrative Agent
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon each
Lender. For purposes of determining compliance with the
conditions specified in Section 12, each Lender that has signed
this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received written notice from such Lender prior
to the proposed Closing Date specifying its objection thereto.
14.6 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default except with
respect to defaults in the payment of principal, interest and
fees required to be paid
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to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written
notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default
and stating that such notice is a "notice of default". The
Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action
with respect to such Event of Default or Unmatured Event of
Default as may be requested by the Required Lenders in accordance
with Section 13; provided that unless and until the
Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Event of Default or Unmatured Event of Default as it shall
deem advisable or in the best interest of the Lenders.
14.7 Credit Decision. Each Lender acknowledges that the
Administrative Agent has not made any representation or warranty
to it, and that no act by the Administrative Agent hereafter
taken, including any consent and acceptance of any assignment or
review of the affairs of the Loan Parties, shall be deemed to
constitute any representation or warranty by the Administrative
Agent to any Lender as to any matter, including whether the
Administrative Agent has disclosed material information in its
possession. Each Lender represents to the Administrative Agent
that it has, independently and without reliance upon the
Administrative Agent and based on such documents and information
as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan
Parties, and made its own decision to enter into this Agreement
and to extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of
the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or
other information concerning the business, prospects, operations,
property, financial or other condition or creditworthiness of the
Company which may come into the possession of the Administrative
Agent.
14.8 Indemnification. Whether or not the transactions
contemplated hereby are consummated, each Lender shall indemnify
upon demand the Administrative Agent and its directors, officers,
employees and agents (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the
Company to do so), according to its applicable Pro Rata Share,
from and against any and all Indemnified Liabilities (as
hereinafter defined); provided that no Lender shall be liable for
any payment to any such Person of any portion of the Indemnified
Liabilities to the extent determined by a final, nonappealable
judgment by a court of competent jurisdiction to have resulted
from the applicable Person's own gross negligence or willful
misconduct. No action taken in accordance with the directions of
the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for
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purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand
for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs and Taxes) incurred by the
Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Company. The undertaking in this
Section shall survive repayment of the Loans, cancellation of the
Notes, expiration or termination of the Letters of Credit, any
foreclosure under, or modification, release or discharge of, any
or all of the Collateral Documents, termination of this Agreement
and the resignation or replacement of the Administrative Agent.
14.9 Administrative Agent in Individual Capacity. LaSalle
and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Loan Parties
and Affiliates as though LaSalle were not the Administrative
Agent hereunder and without notice to or consent of any Lender.
Each Lender acknowledges that, pursuant to such activities,
LaSalle or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or
such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them.
With respect to their Loans (if any), LaSalle and its Affiliates
shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though LaSalle were not
the Administrative Agent, and the terms "Lender" and "Lenders"
include LaSalle and its Affiliates, to the extent applicable, in
their individual capacities.
14.10 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns
under this Agreement, the Required Lenders shall, with (so long
as no Event of Default exists) the consent of the Company (which
shall not be unreasonably withheld or delayed), appoint from
among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders and the Company, a
successor agent from among the Lenders. Upon the acceptance of
its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Section 14 and Sections 15.5 and 15.17 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no
successor agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative
Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective
and the
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Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.
14.11 Collateral Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its
discretion, (a) to release any Lien granted to or held by the
Administrative Agent under any Collateral Document (i) upon
termination of the Commitments and payment in full of all Loans
and all other obligations of the Company hereunder and the
expiration or termination of all Letters of Credit; (ii)
constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; or
(iii) subject to Section 15.1, if approved, authorized or
ratified in writing by the Required Lenders; or (b) to
subordinate its interest in any collateral to any holder of a
Lien on such collateral which is permitted by Section 11.2(d)(i)
or (d)(iii) (it being understood that the Administrative Agent
may conclusively rely on a certificate from the Company in
determining whether the Debt secured by any such Lien is
permitted by Section 11.1(b)). Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release, or subordinate its
interest in, particular types or items of collateral pursuant to
this Section 14.11. Each Lender hereby authorizes the
Administrative Agent to give blockage notices in connection with
any Subordinated Debt at the direction of Required Lenders and
agrees that it will not act unilaterally to deliver such notices.
14.12 Administrative Agent May File Proofs of Claim. In
case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on
the Company) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agent under
Sections 5, 15.5 and 15.17) allowed in such judicial proceedings;
and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent
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and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 5, 15.5 and 15.17.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such
proceeding.
14.13 Other Agents; Arrangers and Managers. None of the
Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent,"
"documentation agent," "co-agent," "book manager," "lead
manager," "arranger," "lead arranger" or "co-arranger", if any,
shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the
case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges
that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
14.14 Relationship Among Lenders. The obligations of
each Lender and each Issuing Bank under this Agreement are
several. Neither the Administrative Agent, any Issuing Bank, nor
any Lender shall be liable for the failure of any Lender or any
Issuing Bank to perform its obligations under this Agreement.
Each Lender and each Issuing Bank agrees that it will not take
any legal action, or institute any action or proceedings, against
the company or any Loan Party or with respect to any Collateral,
without the prior written consent of the Requisite Lenders.
14.15 Benefit of Article. The provisions contained in
this Article are solely for the benefit of the Administrative
Agent, the Issuing Bank, and the Lenders and are not for the
benefit of, nor may they be relied upon by, the Company, any Loan
Party, or any third party.
SECTION 15 GENERAL.
15.1 Waiver; Amendments. No delay on the part of the
Administrative Agent or any Lender in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the
exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any
provision of this Agreement or the other Loan Documents shall in
any event be effective unless the same shall be in writing and
acknowledged by Lenders having an aggregate Pro Rata Shares of
not less than the aggregate Pro Rata Shares expressly designated
herein with respect thereto or, in the absence of such
designation as to any provision of this Agreement, by the
Required Lenders, and then any such amendment, modification,
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall
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(a) extend or increase the Commitment of any Lender without the
written consent of such Lender, (b) extend the date scheduled for
payment of any principal (excluding mandatory prepayments) of or
interest on the Loans or any fees payable hereunder without the
written consent of each Lender directly affected thereby, (c)
reduce the principal amount of any Loan, the rate of interest
thereon or any fees payable hereunder, without the consent of
each Lender directly affected thereby; or (d) waive any Unmatured
Event of Default or Event of Default or release any party from
its obligations under the Guaranty or all or any substantial part
of the collateral granted under the Collateral Documents, change
the definition of Required Lenders, any provisions of Section 14,
any provision of this Section 15.1 or reduce the aggregate Pro
Rata Share required to effect an amendment, modification, waiver
or consent, without, in each case, the written consent of all
Lenders. No provision of Sections 6.2.2 or 6.3 with respect to
the timing or application of mandatory prepayments of the Loans
shall be amended, modified or waived without the consent of
Lenders having a majority of the aggregate Pro Rata Shares of the
Term Loans affected thereby. No provision of Section 14 or other
provision of this Agreement affecting the Administrative Agent in
its capacity as such shall be amended, modified or waived without
the consent of the Administrative Agent. No provision of this
Agreement relating to the rights or duties of the Issuing Lender
in its capacity as such shall be amended, modified or waived
without the consent of the Issuing Lender. No provision of this
Agreement relating to the rights or duties of the Swing Line
Lender in its capacity as such shall be amended, modified or
waived without the consent of the Swing Line Lender.
15.2 Confirmations. The Company and each holder of a Note
agree from time to time, upon written request received by it from
the other, to confirm to the other in writing (with a copy of
each such confirmation to the Administrative Agent) the aggregate
unpaid principal amount of the Loans then outstanding under such
Note.
15.3 Notices. Except as otherwise provided in Sections 2.2.2
and 2.2.3, all notices hereunder shall be in writing (including
facsimile transmission) and shall be sent to the applicable party
at its address shown on Annex B or at such other address as such
party may, by written notice received by the other parties, have
designated as its address for such purpose. Notices sent by
facsimile transmission shall be deemed to have been given when
sent; notices sent by mail shall be deemed to have been given
three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand
delivery or overnight courier service shall be deemed to have
been given when received. For purposes of Sections 2.2.2 and
2.2.3, the Administrative Agent shall be entitled to rely on
telephonic instructions from any person that the Administrative
Agent in good faith believes is an authorized officer or employee
of the Company, and the Company shall hold the Administrative
Agent and each other Lender harmless from any loss, cost or
expense resulting from any such reliance.
15.4 Computations. Where the character or amount of any
asset or liability or item of income or expense is required to be
determined, or any consolidation or other accounting computation
is required to be made, for the purpose of this Agreement, such
determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in
accordance with GAAP, consistently applied; provided that if the
Company notifies the
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Administrative Agent that the Company wishes to amend any
covenant in Section 10 (or any related definition) to eliminate
or to take into account the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Lenders wish to amend
Section 10 (or any related definition) for such purpose), then
the Company's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is
withdrawn or such covenant (or related definition) is amended in
a manner satisfactory to the Company and the Required Lenders.
15.5 Costs, Expenses and Taxes. The Company agrees to pay
on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including Attorney Costs and any Taxes) in
connection with the preparation, execution, syndication, delivery
and administration (including perfection and protection of any
collateral and the costs of Intralinks (or other similar
service), if applicable) of this Agreement, the other Loan
Documents and all other documents provided for herein or
delivered or to be delivered hereunder or in connection herewith
(including any amendment, supplement or waiver to any Loan
Document), whether or not the transactions contemplated hereby or
thereby shall be consummated, and all reasonable out-of-pocket
costs and expenses (including Attorney Costs and any Taxes)
incurred by the Administrative Agent after an Event of Default in
connection with the collection of the Obligations or the
enforcement of this Agreement the other Loan Documents or any
such other documents or during any workout, restructuring or
negotiations in respect thereof. In addition, the Company agrees
to pay, and to save the Administrative Agent and the Lenders
harmless from all liability for, any fees of the Company's
auditors in connection with any reasonable exercise by the
Administrative Agent and the Lenders of their rights pursuant to
Section 10.2. All Obligations provided for in this Section 15.5
shall survive repayment of the Loans, cancellation of the Notes,
expiration or termination of the Letters of Credit and
termination of this Agreement.
15.6 Assignments; Participations.
15.6.1 Assignments. (a) Any Lender may at any time
assign to one or more Persons (any such Person, an "Assignee")
all or any portion of such Lender's Loans and Commitments, with
the prior written consent of the Administrative Agent, the
Issuing Lender (for an assignment of the Revolving Loans and the
Revolving Commitment) and, so long as no Event of Default exists,
the Company (which consents shall not be unreasonably withheld or
delayed and shall not be required for an assignment by a Lender
to a Lender or an Affiliate of a Lender). Except as the
Administrative Agent may otherwise agree, any such assignment
shall be in a minimum aggregate amount equal to $5,000,000 or, if
less, the remaining Commitment and Loans held by the assigning
Lender. The Company and the Administrative Agent shall be
entitled to continue to deal solely and directly with such Lender
in connection with the interests so assigned to an Assignee until
the Administrative Agent shall have received and accepted an
effective assignment agreement in substantially the form of
Exhibit D hereto (an "Assignment Agreement") executed, delivered
and fully completed by the applicable parties thereto and a
processing fee of $3,500. No assignment may be made to any
Person if at the time of such
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assignment the Company would be obligated to pay any greater
amount under Section 7.6 or 8 to the Assignee than the Company is
then obligated to pay to the assigning Lender under such Sections
(and if any assignment is made in violation of the foregoing, the
Company will not be required to pay such greater amounts). Any
attempted assignment not made in accordance with this Section
15.6.1 shall be treated as the sale of a participation under
Section 15.6.2. The Company shall be deemed to have granted its
consent to any assignment requiring its consent hereunder unless
the Company has expressly objected to such assignment within
three Business Days after notice thereof.
(b) From and after the date on which the conditions
described above have been met, (i) such Assignee shall be deemed
automatically to have become a party hereto and, to the extent
that rights and obligations hereunder have been assigned to such
Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (ii) the
assigning Lender, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
Agreement, shall be released from its rights (other than its
indemnification rights) and obligations hereunder. Upon the
request of the Assignee (and, as applicable, the assigning
Lender) pursuant to an effective Assignment Agreement, the
Company shall execute and deliver to the Administrative Agent for
delivery to the Assignee (and, as applicable, the assigning
Lender) a Note in the principal amount of the Assignee's Pro Rata
Share of the Revolving Commitment plus the principal amount of
the Assignee's Term Loan (and, as applicable, a Note in the
principal amount of the Pro Rata Share of the Revolving
Commitment retained by the assigning Lender plus the principal
amount of the Term Loan retained by the assigning Lender). Each
such Note shall be dated the effective date of such assignment.
Upon receipt by the assigning Lender of such Note, the assigning
Lender shall return to the Company any prior Note held by it.
(c) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of
a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
15.6.2 Participations. Any Lender may at any time sell
to one or more Persons participating interests in its Loans,
Commitments or other interests hereunder (any such Person, a
"Participant"). In the event of a sale by a Lender of a
participating interest to a Participant, (a) such Lender's
obligations hereunder shall remain unchanged for all purposes,
(b) the Company and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations hereunder, (c) all amounts
payable by the Company shall be determined as if such Lender had
not sold such participation and shall be paid directly to such
Lender and (d) the Lender shall send notice to the Administrative
Agent and the Administrative Agent shall send notice to the
Company, which shall include the name of the Participant and the
size of the participation. No Participant shall have any direct
or indirect voting rights hereunder except with respect to any
event described in Section 15.1 expressly
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requiring the unanimous vote of all Lenders or, as applicable,
all affected Lenders. Each Lender agrees to incorporate the
requirements of the preceding sentence into each participation
agreement which such Lender enters into with any Participant.
The Company agrees that if amounts outstanding under this
Agreement are due and payable (as a result of acceleration or
otherwise), each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing
under this Agreement and with respect to any Letter of Credit to
the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement;
provided that such right of set-off shall be subject to the
obligation of each Participant to share with the Lenders, and the
Lenders agree to share with each Participant, as provided in
Section 7.5. The Company also agrees that each Participant shall
be entitled to the benefits of Section 7.6 or 8 as if it were a
Lender (provided that on the date of the participation no
Participant shall be entitled to any greater compensation
pursuant to Section 7.6 or 8 than would have been paid to the
participating Lender on such date if no participation had been
sold and that each Participant complies with Section 7.6(d) as if
it were an Assignee).
15.7 Register. The Administrative Agent shall maintain a
copy of each Assignment Agreement delivered and accepted by it
and register (the "Register") for the recordation of names and
addresses of the Lenders and the Commitment of each Lender from
time to time and whether such Lender is the original Lender or
the Assignee. No assignment shall be effective unless and until
the Assignment Agreement is accepted and registered in the
Register. All records of transfer of a Lender's interest in the
Register shall be conclusive, absent manifest error, as to the
ownership of the interests in the Loans. The Administrative Agent
shall not incur any liability of any kind with respect to any
Lender with respect to the maintenance of the Register.
15.8 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY AND ALL ISSUES ARISING
THEREUNDER, INCLUDING THE VALIDITY AND ENFORCEABILITY SHALL BE
DETERMINED UNDER THE INTERNAL LAWS OF THE STATE OF ILLINOIS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
15.9 Confidentiality. As required by federal law and the
Administrative Agent's policies and practices, the Administrative
Agent may need to obtain, verify, and record certain customer
identification information and documentation in connection with
opening or maintaining accounts, or establishing or continuing to
provide services. The Administrative Agent and each Lender agree
to use commercially reasonable efforts (equivalent to the efforts
the Administrative Agent or such Lender applies to maintain the
confidentiality of its own confidential information) to maintain
as confidential all information provided to them by any Loan
Party and designated as confidential (it being understood that
the information provided pursuant to Section 10.1.7 and financial
information delivered on a pro forma basis in connection with an
acquisition shall be confidential information subject to the
provisions of this Section 15.9), except that the Administrative
Agent and each Lender may disclose such information (a)
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to Persons employed or engaged by the Administrative Agent or
such Lender in evaluating, approving, structuring, collecting, or
administering the Loans and the Commitments; (b) to any assignee
or participant or potential assignee or participant that has
agreed to comply with the covenant contained in this Section 15.9
(and any such assignee or participant or potential assignee or
participant may disclose such information to Persons employed or
engaged by them as described in clause (a) above); (c) as
required or requested by any federal or state regulatory
authority or examiner, or any insurance industry association that
agrees to be bound by the terms of this Section 15.9, or as
reasonably believed by the Administrative Agent or such Lender to
be compelled by any court decree, subpoena or legal or
administrative order or process; (d) as, on the advice of the
Administrative Agent's or such Lender's counsel, is required by
law; (e) in connection with the exercise of any right or remedy
under the Loan Documents or in connection with any litigation to
which the Administrative Agent or such Lender is a party; (f) to
any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection
with ratings issued with respect to such Lender and agrees to be
bound by the provisions of this Section 15.9; (g) to any
Affiliate of the Administrative Agent, the Issuing Lender or any
other Lender who may provide Bank Products to the Loan Parties
that agrees to be bound by the terms of this Section 15.9; or (h)
that ceases to be confidential through no fault of the
Administrative Agent or any Lender. Notwithstanding the
foregoing, the Company consents to the publication by the
Administrative Agent or any Lender of a tombstone or similar
advertising material relating to the financing transactions
contemplated by this Agreement, and the Administrative Agent
reserves the right to provide to industry trade organizations
information necessary and customary for inclusion in league table
measurements, provided that such shall not include material non-
public information.
15.10 Severability. Whenever possible each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
All obligations of the Company and rights of the Administrative
Agent and the Lenders expressed herein or in any other Loan
Document shall be in addition to and not in limitation of those
provided by applicable law.
15.11 Nature of Remedies. All Obligations of the
Company and rights of the Administrative Agent and the Lenders
expressed herein or in any other Loan Document shall be in
addition to and not in limitation of those provided by applicable
law. No failure to exercise and no delay in exercising, on the
part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege.
15.12 Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and supersedes all prior
or contemporaneous agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and
thereof (except as relates to the fees described in Section
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5.3) and any prior arrangements made with respect to the payment
by the Company of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on
behalf of the Administrative Agent or the Lenders.
15.13 Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on
separate counterparts and each such counterpart shall be deemed
to be an original, but all such counterparts shall together
constitute but one and the same Agreement. Receipt of an
executed signature page to this Agreement by facsimile or other
electronic transmission shall constitute effective delivery
thereof. Electronic records of executed Loan Documents
maintained by the Lenders shall deemed to be originals.
15.14 Successors and Assigns. This Agreement shall be
binding upon the Company, the Lenders and the Administrative
Agent and their respective successors and assigns, and shall
inure to the benefit of the Company, the Lenders and the
Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent. No other Person shall be a
direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. The Company may
not assign or transfer any of its rights or Obligations under
this Agreement without the prior written consent of the
Administrative Agent and each Lender.
15.15 Captions. Section captions used in this Agreement
are for convenience only and shall not affect the construction of
this Agreement.
15.16 Customer Identification - USA Patriot Act Notice.
Each Lender and LaSalle (for itself and not on behalf of any
other party) hereby notifies the Loan Parties 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 identifies the Loan
Parties, which information includes the name and address of the
Loan Parties and other information that will allow such Lender or
LaSalle, as applicable, to identify the Loan Parties in
accordance with the Act.
15.7 INDEMNIFICATION BY THE COMPANY. IN CONSIDERATION OF
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
ADMINISTRATIVE AGENT AND THE LENDERS AND THE AGREEMENT TO EXTEND
THE COMMITMENTS PROVIDED HEREUNDER, THE COMPANY HEREBY AGREES TO
INDEMNIFY, EXONERATE AND HOLD THE ADMINISTRATIVE AGENT, EACH
LENDER AND EACH OF THE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES
AND AGENTS OF THE ADMINISTRATIVE AGENT AND EACH LENDER (EACH A
"LENDER PARTY") FREE AND HARMLESS FROM AND AGAINST ANY AND ALL
ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES
AND EXPENSES, INCLUDING ATTORNEY COSTS (COLLECTIVELY, THE
"INDEMNIFIED LIABILITIES"), INCURRED BY THE LENDER PARTIES OR ANY
OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO (A) ANY
TENDER OFFER,
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MERGER, PURCHASE OF CAPITAL SECURITIES, PURCHASE OF ASSETS
(INCLUDING THE RELATED TRANSACTIONS) OR OTHER SIMILAR TRANSACTION
FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY
OR INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE
USE, HANDLING, RELEASE, EMISSION, DISCHARGE, TRANSPORTATION,
STORAGE, TREATMENT OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY
PROPERTY OWNED OR LEASED BY ANY LOAN PARTY, (C) ANY VIOLATION OF
ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT ANY PROPERTY
OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS CONDUCTED
THEREON, (D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE
LOCATIONS AT WHICH ANY LOAN PARTY OR THEIR RESPECTIVE
PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY DISPOSED
OF HAZARDOUS SUBSTANCES OR (E) THE EXECUTION, DELIVERY,
PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH
INDEMNIFIED LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE
LENDER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS
DETERMINED BY A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION. IF AND TO THE EXTENT THAT THE FOREGOING
UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE COMPANY
HEREBY AGREES TO MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND
SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS
PERMISSIBLE UNDER APPLICABLE LAW. ALL OBLIGATIONS PROVIDED FOR
IN THIS SECTION 15.17 SHALL SURVIVE REPAYMENT OF THE LOANS,
CANCELLATION OF THE NOTES, EXPIRATION OR TERMINATION OF THE
LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION,
RELEASE OR DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS
AND TERMINATION OF THIS AGREEMENT.
15.18 Nonliability of Lenders. The relationship between
the Company on the one hand and the Lenders and the
Administrative Agent on the other hand shall be solely that of
borrower and lender. Neither the Administrative Agent nor any
Lender has any fiduciary relationship with or duty to any Loan
Party arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the
Loan Parties, on the one hand, and the Administrative Agent and
the Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor. Neither the
Administrative Agent nor any Lender undertakes any responsibility
to any Loan Party to review or inform any Loan Party of any
matter in connection with any phase of any Loan Party's business
or operations. The Company agrees, on behalf of itself and each
other Loan Party, that neither the Administrative Agent nor any
Lender shall have liability to any Loan Party (whether sounding
in tort, contract or otherwise) for losses suffered by any Loan
Party in connection with, arising out of, or in any way related
to the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-
75
appealable judgment by a court of competent jurisdiction that
such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought. NO LENDER
PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH
INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER PARTY HAVE
ANY LIABILITY WITH RESPECT TO, AND THE COMPANY ON BEHALF OF
ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND
AGREES NOT TO SUE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH
(WHETHER BEFORE OR AFTER THE CLOSING DATE). The Company
acknowledges that it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the
other Loan Documents to which it is a party. No joint venture is
created hereby or by the other Loan Documents or otherwise exists
by virtue of the transactions contemplated hereby among the
Lenders or among the Loan Parties and the Lenders
15.19 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION. THE COMPANY HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15.20 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
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AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING
RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
SECTION 16 CROSS-GUARANTY.
16.1 Cross-Guaranty. Each Co-Borrower hereby agrees that
such Co-Borrower is jointly and severally liable for, and hereby
absolutely and unconditionally guarantees to the Administrative
Agent and Lenders and their respective successors and assigns,
the full and prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of, all Obligations
owed or hereafter owing to the Administrative Agent and Lenders
by each other Co-Borrower. Each Co-Borrower agrees that its
guaranty obligation hereunder is a continuing guaranty of payment
and performance and not of collection, that its obligations under
this Section 16 shall not be discharged until payment and
performance, in full, of the Obligations has occurred, and that
its obligations under this Section 16 shall be absolute and
unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity,
enforceability or any future amendment of, or change in,
this Agreement, any other Loan Document or any other
agreement, document or instrument to which any Co-Borrower
is or may become a party;
(b) the absence of any action to enforce this
Agreement (including this Section 16) or any other Loan
Document or the waiver or consent by the Administrative
Agent and Lenders with respect to any of the provisions
thereof;
(c) the insolvency of any Co-Borrower or Subsidiary;
or
(d) any other action or circumstances that might
otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
Each Co-Borrower shall be regarded, and shall be in the same
position, as principal debtor with respect to the Obligations
guaranteed hereunder.
16.2 Waivers by Co-Borrowers. Each Co-Borrower expressly
waives all rights it may have now or in the future under any
statute, or at common law, or at law or in equity, or otherwise,
to compel the Administrative Agent or Lenders to marshal assets
or to proceed in respect of the Obligations guaranteed hereunder
against any other Co-Borrower or Subsidiary, any other party or
against any security for the payment and performance of the
Obligations before proceeding against, or as a condition to
proceeding against, such Co-Borrower. It is agreed among each Co-
Borrower, the Administrative Agent and Lenders that the foregoing
waivers are of the essence of the transaction contemplated by
this Agreement and the other Loan Documents and that, but for the
provisions of this Section 16 and such waivers, the
Administrative Agent and Lenders would decline to enter into this
Agreement.
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16.3 Benefit of Guaranty. Each Co-Borrower agrees that the
provisions of this Section 16 are for the benefit of the
Administrative Agent and Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained
shall impair, as between any other Co-Borrower and the
Administrative Agent or Lenders, the obligations of such other Co-
Borrower under the Loan Documents.
16.4 Waiver of Subrogation, Etc. Notwithstanding anything
to the contrary in this Agreement or in any other Loan Document,
and except as set forth in Section 16.7, each Co-Borrower hereby
expressly and irrevocably waives any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defenses available to
a surety, guarantor or accommodation co-obligor. Each Co-
Borrower acknowledges and agrees that this waiver is intended to
benefit the Administrative Agent and Lenders and shall not limit
or otherwise affect such Co-Borrower's liability hereunder or the
enforceability of this Section 16, and that the Administrative
Agent, Lenders and their respective successors and assigns are
intended third party beneficiaries of the waivers and agreements
set forth in this Section 16.4.
16.5 Election of Remedies. If the Administrative Agent or
any Lender may, under applicable law, proceed to realize its
benefits under any of the Loan Documents, the Administrative
Agent or any Lender may, at its sole option, determine which of
its remedies or rights it may pursue without affecting any of its
rights and remedies under this Section 16. If, in the exercise
of any of its rights and remedies, the Administrative Agent or
any Lender shall forfeit any of its rights or remedies, including
its right to enter a deficiency judgment against any Co-Borrower
or any other Person, whether because of any applicable laws
pertaining to "election of remedies" or the like, each Co-
Borrower hereby consents to such action by the Administrative
Agent or such Lender and waives any claim based upon such action,
even if such action by the Administrative Agent or such Lender
shall result in a full or partial loss of any rights of
subrogation that each Co-Borrower might otherwise have had but
for such action by the Administrative Agent or such Lender. Any
election of remedies that results in the denial or impairment of
the right of the Administrative Agent or any Lender to seek a
deficiency judgment against any Co-Borrower shall not impair any
other Co-Borrower's obligation to pay the full amount of the
Obligations.
16.6 Limitation. Notwithstanding any provision herein
contained to the contrary, each Co-Borrower's liability under
this Section 16 (which liability is in any event in addition to
amounts for which such Co-Borrower is primarily liable under
Section 2) shall be limited to an amount not to exceed as of any
date of determination the greater of:
(a) the net amount of all Loans advanced to any other
Co-Borrower under this Agreement and then re-loaned or
otherwise transferred to, or for the benefit of, such Co-
Borrower; and
(b) the amount that could be claimed by the
Administrative Agent and Lenders from such Co-Borrower under
this Section 16 without rendering such claim
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voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act
or similar statute or common law after taking into account,
among other things, such Co-Borrower's right of contribution
and indemnification from each other Co-Borrower under
Section 16.7.
16.7 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Co-Borrower shall make a
payment under this Section 16 of all or any of the
Obligations (other than Loans made to that Co-Borrower for
which it is primarily liable) (a "Guarantor Payment") that,
taking into account all other Guarantor Payments then
previously or concurrently made by any other Co-Borrower,
exceeds the amount that such Co-Borrower would otherwise
have paid if each Co-Borrower had paid the aggregate
Obligations satisfied by such Guarantor Payment in the same
proportion that such Co-Borrower's "Allocable Amount" (as
defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts
of each of the Co-Borrowers as determined immediately prior
to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Obligations and
termination of the Commitments, such Co-Borrower shall be
entitled to receive contribution and indemnification
payments from, and be reimbursed by, each other Co-Borrower
for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "Allocable
Amount" of any Co-Borrower shall be equal to the maximum
amount of the claim that could then be recovered from such
Co-Borrower under this Section 16 without rendering such
claim voidable or avoidable under Section 548 of Chapter 11
of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act
or similar statute or common law.
(c) This Section 16.7 is intended only to define the
relative rights of Co-Borrowers and nothing set forth in
this Section 16.7 is intended to or shall impair the
obligations of Co-Borrowers, jointly and severally, to pay
any amounts as and when the same shall become due and
payable in accordance with the terms of this Agreement,
including Section 16.1. Nothing contained in this Section
16.7 shall limit the liability of any Co-Borrower to pay the
Loans made directly or indirectly to that Co-Borrower and
accrued interest, fees and expenses with respect thereto for
which such Co-Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute
assets of the Co-Borrower to which such contribution and
indemnification is owing.
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(d) The rights of the indemnifying Co-Borrowers
against other Co-Borrowers under this Section 16.7 shall be
exercisable upon the full and indefeasible payment of the
Obligations and the termination of the Commitments.
16.8 Liability Cumulative. The liability of Co-Borrowers
under this Section 16 is in addition to and shall be cumulative
with all liabilities of each Co-Borrower to the Administrative
Agent and Lenders under this Agreement and the other Loan
Documents to which such Co-Borrower is a party or in respect of
any Obligations or obligation of the other Co-Borrower, without
any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides
to the contrary.
16.9 Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Co-Borrowers under this
Agreement is stayed upon the insolvency, bankruptcy or
reorganization of any of the Co-Borrowers, all such amounts
otherwise subject to acceleration under the terms of this
Agreement shall nonetheless be payable jointly and severally by
the Co-Borrower hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Lenders.
16.10 Benefit to Co-Borrowers. All of the Co-Borrowers
and their Subsidiaries are engaged in related businesses and
integrated to such an extent that the financial strength and
flexibility of each such Person has a direct impact on the
success of each other Person. Each Co-Borrower and each
Subsidiary will derive substantial direct and indirect benefit
from the extension of credit hereunder.
[signature pages follow]
80
The parties hereto have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of
the date first set forth above.
CO-BORROWERS :
Ennis, Inc.
Ennis Business Forms of Kansas,
Inc.
Connolly Tool and Machine Co.
Admore, Inc.
PFC Products, Inc.
Ennis Acquisitions, Inc.
Northstar Computer Forms, Inc.
General Financial Supply, Inc.
Calibrated Forms Co. Inc.
Crabar/GBF, Inc.
Royal Business Forms, Inc.
Midlothian Holdings LLC (to be
renamed Alstyle Apparel LLC)
A and G, Inc.
Alstyle Ensenada LLC
Alstyle Hermosilla LLC
The Great Pumpkin, Inc.
Diaco USA, LLC
By:
-----------------------------
Keith S. Walters, President of each
American Forms I, L.P.
Adams McClure I, L.P.
Texas EBF, L.P.
Ennis Sales, L.P.
Ennis Management, L.P.
By: Ennis, Inc., the sole general
partner of each
By:
------------------------------
Keith S. Walters, President
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent,
Documentation Agent, as Issuing
Lender and as a Lender
By:
------------------------------
Title:
---------------------------
COMPASS BANK, as Co-Syndication
Agent and as a Lender
By:
------------------------------
Title:
---------------------------
JPMORGAN CHASE BANK, N.A., as Co-
Syndication Agent and as a Lender
By:
------------------------------
Title:
---------------------------
U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By:
------------------------------
Title:
---------------------------
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By:
------------------------------
Title:
---------------------------
SOUTHWEST BANK OF TEXAS, N.A., as a
Lender
By:
------------------------------
Title:
---------------------------
WACHOVIA BANK, NA, as a Lender
By:
------------------------------
Title:
---------------------------
ANNEX A
LENDERS AND PRO RATA SHARES
Revolving Pro Rata Term Pro Rata
Lender Commitment Share Commitment Share
LaSalle Bank $26,666,666.67 26.666666667% $13,333,333.33 26.666666667%
National
Association
Compass Bank $15,000,000.00 15.000000000% $7,500,000.00 15.000000000%
Bank One, NA $15,000,000.00 15.000000000% $7,500,000.00 15.000000000%
Wachovia $13,333,333.33 13.333333333% $6,666,666.67 13.333333333%
Bank, NA
KeyBank $10,000,000.00 10.000000000% $5,000,000.00 10.000000000%
National
Association
Southwest $10,000,000.00 10.000000000% $5,000,000.00 10.000000000%
Bank of
Texas, N.A.
US Bank $10,000,000.00 10.000000000% $5,000,000.00 10.000000000%
National
Association
TOTALS $100,000,000.00 100.000000000% $50,000,000.00 100.000000000%
ANNEX B
ADDRESSES FOR NOTICES
ENNIS, INC. and the other CO-BORROWERS
2441 Presidential Parkway
Midlothian, Texas 76065
Attention: Harve Cathey
Telephone: (972) 775-9805
Facsimile: (800) 579-4271
LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent,
Issuing Lender and a Lender
Notices of Borrowing , Conversion, Continuation and Letter of
Credit Issuance
135 South LaSalle Street
Chicago, Illinois 60603
Attention: John Mostofi
Telephone: (312) 904-8141
Facsimile: (312) 904-4269
All Other Notices
135 South LaSalle Street
Chicago, Illinois 60603
Attention: John Mostofi
Telephone: (312) 904-8141
Facsimile: (312) 904-4269
Bank One, NA
1717 Main Street
3rd Floor / TX1-2436
Dallas, Texas 75201
Attention: J. Patrick Brockette
Telephone: (214) 290-2453
Facsimile: (214) 290-2453
Compass Bank
8080 North Central Expressway, Suite 250
Dallas, Texas 75206
Attention: Michael H. Keith
Telephone: (214) 706-8046
Facsimile: (214) 346-2746
U.S. Bank National Association
800 Nicollet Mall
BC-MN-H03P
Minneapolis, Minnesota 55402
Attention: Michael J. Reymann
Telephone: (612) 303-3781
Facsimile: (612) 303-2264
KeyBank National Association
8117 Preston Road, Suite 440
Preston Commons West Tower
Dallas, Texas 75225
Attention: Temple Abney and Joanne Bramanti
Telephone: (214) 414-2579
Facsimile: (214) 414-2623
Southwest Bank of Texas, N.A.
4400 Post Oak Parkway
Houston, Texas 77027
Attention: Melinda N. Jackson
Telephone: (214) 754-9512
Facsimile: (214) 754-9651
Wachovia Bank, NA
700 North Pearl Street
STE 1700, NC 5842
Dallas, Texas75201
Attention: Jennifer L. Norris
Telephone: (214) 397-4786
Facsimile: (214) 397-4786
EXHIBIT A-1
FORM OF
TERM NOTE
Executed as of the 19th day of No.
November, 2004 at Chicago, ----------
Illinois.
Amount $
---------------
FOR VALUE RECEIVED, the Undersigned, jointly and
severally, promise to pay to the order of ----------------------
(hereinafter, together with any holder hereof, called "Lender"),
at the main office of the Agent (as defined below), or pursuant
to such other instructions or at such other address as it shall
designate, the principal sum of --------------------- Dollars ($-
- -----------------). The Undersigned, jointly and severally,
further promise to pay interest on the outstanding principal
amount hereof on the dates and at the rates provided in the
Credit Agreement (defined below) from the date hereof until
payment in full hereof.
This Note was delivered pursuant to that certain Credit
Agreement of even date herewith (as amended, amended and restated
or otherwise modified from time to time, the "Credit Agreement")
as it may be amended from time to time, together with all
exhibits thereto, dated as of November 19, 2004 among LaSalle
Bank National Association as agent ("Agent") for Lender and the
other lenders from time to time party thereto and the
Undersigned, and a certain Security Agreement dated as of
November 19, 2004 (as amended, amended and restated or otherwise
modified from time to time, the "Security Agreement") by the
Undersigned in favor of Agent for the benefit of Lender and the
other Lenders, and other related loan documents of even date
herewith (collectively, with the Credit Agreement and the
Security Agreement, and as each may be amended or otherwise
modified from time to time, the "Financing Agreements"). All
terms which are capitalized and used herein (which are not
otherwise defined herein) shall have the meaning ascribed to such
term in the Credit Agreement.
The Undersigned hereby authorize Agent and Lender to
charge any account of the Undersigned for all sums due hereunder.
If payment hereunder becomes due and payable on a Saturday,
Sunday or legal holiday under the laws of the United States or
the State of Illinois, the due date thereof shall be extended to
the next succeeding business day, and interest shall be payable
thereon at the rate specified during such extension. Credit
shall be given for payments made in the manner and at the times
provided in the Credit Agreement. It is the intent of the
parties that the rate of interest and other charges to the
Undersigned under this Note shall be lawful; therefore, if for
any reason the interest or other charges payable hereunder are
found by a court of competent jurisdiction, in a final
determination, to exceed the limit which Lender may lawfully
charge the Undersigned, then the obligation to pay interest or
other charges shall automatically be reduced to such limit and,
if any amount in excess of such limit shall have been paid, then
such amount shall be refunded to the Undersigned.
The principal and all accrued interest hereunder may be
prepaid by the Undersigned, in part or in full, at any time.
The Undersigned waive every defense, counterclaim or
setoff which the Undersigned may now have or hereafter may have
to any action by Agent or Lender in enforcing this Note and/or
any of the other Obligations, or in enforcing Agent's rights in
the Collateral and ratifies and confirms whatever Agent and
Lender may do pursuant to the terms hereof and of the Financing
Agreements and with respect to the Collateral and agrees that
neither Agent nor Lender shall be liable for any error in
judgment or mistakes of fact or law.
The Undersigned, any other party liable with respect to
the Obligations and any and all endorsers and accommodation
parties, and each one of them, if more than one, waive any and
all presentment, demand, notice of dishonor, protest, notice of
intent to accelerate, notice of acceleration, and all other
notices and demands in connection with the enforcement of Agent's
and Lender's rights hereunder.
The loan evidenced hereby has been made and this Note
has been delivered at Chicago, Illinois. THIS NOTE SHALL BE
GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING
WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER
CHARGES, and shall be binding upon the Undersigned and the
Undersigned's heirs, legal representatives, successors and
assigns. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be
prohibited by or be invalid under such law, such provision shall
be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining
provisions of this Note. If more than one party shall execute
this Note, the term "Undersigned" as used herein shall mean all
parties signing this Note, and each one of them, and all such
parties, their respective heirs, executors, administrators,
successors and assigns, shall be jointly and severally obligated
hereunder.
To induce the Lender to make the loan evidenced by this
Note, the Undersigned (i) irrevocably agree that, subject to
Agent's sole and absolute election, all actions arising directly
or indirectly as a result or in consequence of this Note or any
other agreement with the Lender, or the Collateral, shall be
instituted and litigated only in courts having situs in the City
of Chicago, Illinois; (ii) hereby consent to the exclusive
jurisdiction and venue of any State or Federal Court located and
having its situs in said city; and (iii) waive any objection
based on forum non-conveniens. IN ADDITION, LENDER AND THE
UNDERSIGNED HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE,
THE OBLIGATIONS, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY
THE UNDERSIGNED OR LENDER OR WHICH IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP AMONG
THE UNDERSIGNED, AGENT AND LENDER. In addition, the Undersigned
agree that all service of process shall be made as provided in
the Credit Agreement.
As used herein, all provisions shall include the
masculine, feminine, neuter, singular and plural thereof,
wherever the context and facts require such construction and in
particular the word "Undersigned" shall be so construed.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the Undersigned has executed this
Note on the date above set forth.
Ennis, Inc.
Ennis Business Forms of Kansas, Inc.
Connolly Tool and Machine Co.
Admore, Inc.
PFC Products, Inc.
Ennis Acquisitions, Inc.
Northstar Computer Forms, Inc.
General Financial Supply, Inc.
Calibrated Forms Co. Inc.
Crabar/GBF, Inc.
Royal Business Forms, Inc.
Midlothian Holdings LLC (to be renamed
Alstyle Apparel LLC)
A and G, Inc.
Alstyle Ensenada LLC
Alstyle Hermosilla LLC
The Great Pumpkin, Inc.
Diaco USA, LLC
By:
---------------------------------
Keith S. Walters, President of each
American Forms I, L.P.
Adams McClure I, L.P.
Texas EBF, L.P.
Ennis Sales, L.P.
Ennis Management, L.P.
By: Ennis, Inc., the sole general partner of
each
By:
---------------------------------
Keith S. Walters, President
FOR BANK USE ONLY
Officer's Initials:
-----------
Approval:
----------
EXHIBIT A-2
FORM OF
REVOLVING NOTE
Executed as of the 19th day of No.
November, 2004 at Chicago, ----------
Illinois.
Amount $
---------------
FOR VALUE RECEIVED, the Undersigned, jointly and
severally, promise to pay to the order of -----------------------
- ----------------- (hereinafter, together with any holder hereof,
called "Lender"), at the main office of Agent (as defined below)
or pursuant to such other instructions or at such other address
as it shall designate), the principal sum of --------------------
- ---------------------- Dollars ($---------------) plus the
aggregate unpaid principal amount of all advances made by Lender
to the Undersigned pursuant to and in accordance with Section 2
of the Credit Agreement (as hereinafter defined) in excess of
such amount, or, if less, the aggregate unpaid principal amount
of all advances made by Lender to the Undersigned pursuant to and
in accordance with Section 2 of the Credit Agreement. The
Undersigned, jointly and severally, further promise to pay
interest on the outstanding principal amount hereof on the dates
and at the rates provided in the Credit Agreement from the date
hereof until payment in full hereof.
This Note was delivered pursuant to that certain Credit
Agreement of even date herewith (as amended, amended and restated
or otherwise modified from time to time, the "Credit Agreement")
as it may be amended from time to time, together with all
exhibits thereto, dated as of November 19, 2004 among LaSalle
Bank National Association as agent ("Agent") for Lender and the
other lenders from time to time party thereto and the
Undersigned, and a certain Security Agreement dated as of
November 19, 2004 (as amended, amended and restated or otherwise
modified from time to time, the "Security Agreement") by the
Undersigned in favor of Agent for the benefit of Lender and the
other Lenders, and other related loan documents of even date
herewith (collectively, with the Credit Agreement and the
Security Agreement, and as each may be amended or otherwise
modified from time to time, the "Financing Agreements"). All
terms which are capitalized and used herein (which are not
otherwise defined herein) shall have the meaning ascribed to such
term in the Credit Agreement.
The Undersigned hereby authorize the Agent and Lender
to charge any account of the Undersigned for all sums due
hereunder. If payment hereunder becomes due and payable on a
Saturday, Sunday or legal holiday under the laws of the United
States or the State of Illinois, the due date thereof shall be
extended to the next succeeding business day, and interest shall
be payable thereon at the rate specified during such extension.
Credit shall be given for payments made in the manner and at the
times provided in the Credit Agreement. It is the intent of the
parties that the rate of interest and other charges to the
Undersigned under this Note shall be lawful; therefore, if for
any reason the interest or other charges payable hereunder are
found by a court of competent jurisdiction, in a final
determination, to exceed the limit which Lender may
lawfully charge the Undersigned, then the obligation to pay
interest or other charges shall automatically be reduced to such
limit and, if any amount in excess of such limit shall have been
paid, then such amount shall be refunded to the Undersigned.
The principal and all accrued interest hereunder may be
prepaid by the Undersigned, in part or in full, at any time.
The Undersigned waive every defense, counterclaim or
setoff which the Undersigned may now have or hereafter may have
to any action by Agent or Lender in enforcing this Note and/or
any of the other Obligations, or in enforcing Agent's rights in
the Collateral and ratifies and confirms whatever Agent and
Lender may do pursuant to the terms hereof and of the Financing
Agreements and with respect to the Collateral and agrees that
neither Agent nor Lender shall be liable for any error in
judgment or mistakes of fact or law.
The Undersigned, any other party liable with respect to
the Obligations and any and all endorsers and accommodation
parties, and each one of them, if more than one, waive any and
all presentment, demand, notice of dishonor, protest, notice of
intent to accelerate, notice of acceleration, and all other
notices and demands in connection with the enforcement of Agent's
and Lender's rights hereunder.
The loan evidenced hereby has been made and this Note
has been delivered at Chicago, Illinois. THIS NOTE SHALL BE
GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING
WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER
CHARGES, and shall be binding upon the Undersigned and the
Undersigned's heirs, legal representatives, successors and
assigns. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be
prohibited by or be invalid under such law, such provision shall
be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining
provisions of this Note. If more than one party shall execute
this Note, the term "Undersigned" as used herein shall mean all
parties signing this Note, and each one of them, and all such
parties, their respective heirs, executors, administrators,
successors and assigns, shall be jointly and severally obligated
hereunder.
To induce the Lender to make the loan evidenced by this
Note, the Undersigned (i) irrevocably agree that, subject to
Agent's sole and absolute election, all actions arising directly
or indirectly as a result or in consequence of this Note or any
other agreement with the Lender, or the Collateral, shall be
instituted and litigated only in courts having situs in the City
of Chicago, Illinois; (ii) hereby consent to the exclusive
jurisdiction and venue of any State or Federal Court located and
having its situs in said city; and (iii) waive any objection
based on forum non-conveniens. IN ADDITION, LENDER AND THE
UNDERSIGNED HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE,
THE OBLIGATIONS, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY
THE UNDERSIGNED OR LENDER OR WHICH IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO
THE RELATIONSHIP AMONG THE UNDERSIGNED, AGENT AND LENDER. In
addition, the Undersigned agree that all service of process shall
be made as provided in the Credit Agreement.
As used herein, all provisions shall include the
masculine, feminine, neuter, singular and plural thereof,
wherever the context and facts require such construction and in
particular the word "Undersigned" shall be so construed.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the Undersigned has
executed this Note on the date above set forth.
Ennis, Inc.
Ennis Business Forms of Kansas, Inc.
Connolly Tool and Machine Co.
Admore, Inc.
PFC Products, Inc.
Ennis Acquisitions, Inc.
Northstar Computer Forms, Inc.
General Financial Supply, Inc.
Calibrated Forms Co. Inc.
Crabar/GBF, Inc.
Royal Business Forms, Inc.
Midlothian Holdings LLC (to be renamed
Alstyle Apparel LLC)
A and G, Inc.
Alstyle Ensenada LLC
Alstyle Hermosilla LLC
The Great Pumpkin, Inc.
Diaco USA, LLC
By:
----------------------------------
Keith S. Walters, President of each
American Forms I, L.P.
Adams McClure I, L.P.
Texas EBF, L.P.
Ennis Sales, L.P.
Ennis Management, L.P.
By: Ennis, Inc., the sole general partner of
each
By:
---------------------------------
Keith S. Walters, President
FOR BANK USE ONLY
Officer's Initials:
--------
Approval:
-----------
EXHIBIT A-3
FORM OF
SWING LINE NOTE
Executed as of the 19th day of No.
November, 2004 at Chicago, ----------
Illinois.
Amount $
---------------
FOR VALUE RECEIVED, the Undersigned, jointly and
severally, hereby unconditionally promise to pay to the order of
- ----------------------------- ("Lender"), at the main office of
Agent (as defined below) or at such other place as the Agent may
from time to time designate in writing, in lawful money of the
United States of America and in immediately available funds, the
principal sum of --------------------- ($---------------), or, if
less, the aggregate unpaid principal balance of the Swing Line
Loans made to Borrower by Lender pursuant to the Credit Agreement
described below, at such times as are specified therein.
This Note was delivered pursuant to that certain Credit
Agreement of even date herewith (as amended, amended and restated
or otherwise modified from time to time, the "Credit Agreement")
as it may be amended from time to time, together with all
exhibits thereto, dated as of November 19, 2004 among LaSalle
Bank National Association as agent ("Agent") for itself and the
other lenders from time to time party thereto and the
Undersigned, and a certain Security Agreement dated as of
November 19, 2004 (as amended, amended and restated or otherwise
modified from time to time, the "Security Agreement") by the
Undersigned in favor of Agent for the benefit of Lender and the
other Lenders, and other related loan documents of even date
herewith (collectively, with the Credit Agreement and the
Security Agreement, and as each may be amended or otherwise
modified from time to time, the "Financing Agreements"). All
terms which are capitalized and used herein (which are not
otherwise defined herein) shall have the meaning ascribed to such
term in the Credit Agreement.
The Undersigned, jointly and severally, further promise
to pay interest on the outstanding unpaid principal amount hereof
from the date hereof until payment in full at the rate from time
to time applicable to the Swing Line Loans as determined in
accordance with the Credit Agreement; provided, however, that
upon the occurrence and during the continuance of an Event of
Default, the Undersigned shall pay interest on the outstanding
principal balance of this Note at the rate of interest applicable
following the occurrence of an Event of Default as determined in
accordance with the Credit Agreement.
THE OUTSTANDING PRINCIPAL BALANCE OF THE UNDERSIGNEDS'
OBLIGATIONS TO LENDER UNDER THIS NOTE SHALL BE PAYABLE UPON
DEMAND. Prior to demand, principal hereunder shall be payable
pursuant to the terms of the Credit Agreement.
The Undersigned hereby authorize the Agent and Lender
to charge any account of the Undersigned for all sums due
hereunder. If payment hereunder becomes due and payable on a
Saturday, Sunday or legal holiday under the laws of the United
States or the State of Illinois, the due date thereof shall be
extended to the next succeeding business day, and interest shall
be payable thereon at the rate specified during such extension.
Credit shall be given for payments made in the manner and at the
times provided in the Credit Agreement. It is the intent of the
parties that the rate of interest and other charges to the
Undersigned under this Note shall be lawful; therefore, if for
any reason the interest or other charges payable hereunder are
found by a court of competent jurisdiction, in a final
determination, to exceed the limit which Lender may lawfully
charge the Undersigned, then the obligation to pay interest or
other charges shall automatically be reduced to such limit and,
if any amount in excess of such limit shall have been paid, then
such amount shall be refunded to the Undersigned.
The principal and all accrued interest hereunder may be
prepaid by the Undersigned, in part or in full, at any time.
The Undersigned waive every defense, counterclaim or
setoff which the Undersigned may now have or hereafter may have
to any action by Agent or Lender in enforcing this Note and/or
any of the other Obligations, or in enforcing Agent's rights in
the Collateral and ratifies and confirms whatever Agent and
Lender may do pursuant to the terms hereof and of the Financing
Agreements and with respect to the Collateral and agrees that
neither Agent nor Lender shall be liable for any error in
judgment or mistakes of fact or law.
The Undersigned, any other party liable with respect to
the Obligations and any and all endorsers and accommodation
parties, and each one of them, if more than one, waive any and
all presentment, demand, notice of dishonor, protest, notice of
intent to accelerate, notice of acceleration, and all other
notices and demands in connection with the enforcement of Agent's
and Lender's rights hereunder.
The loan evidenced hereby has been made and this Note
has been delivered at Chicago, Illinois. THIS NOTE SHALL BE
GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING
WITHOUT LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER
CHARGES, and shall be binding upon the Undersigned and the
Undersigned's heirs, legal representatives, successors and
assigns. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be
prohibited by or be invalid under such law, such provision shall
be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining
provisions of this Note. If more than one party shall execute
this Note, the term "Undersigned" as used herein shall mean all
parties signing this Note, and each one of them, and all such
parties, their respective heirs, executors, administrators,
successors and assigns, shall be jointly and severally obligated
hereunder.
To induce the Lender to make the loan evidenced by this
Note, the Undersigned (i) irrevocably agree that, subject to
Agent's sole and absolute election, all actions arising
directly or indirectly as a result or in consequence of this Note
or any other agreement with the Lender, or the Collateral, shall
be instituted and litigated only in courts having situs in the
City of Chicago, Illinois; (ii) hereby consent to the exclusive
jurisdiction and venue of any State or Federal Court located and
having its situs in said city; and (iii) waive any objection
based on forum non-conveniens. IN ADDITION, LENDER AND THE
UNDERSIGNED HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE,
THE OBLIGATIONS, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY
THE UNDERSIGNED OR LENDER OR WHICH IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP AMONG
THE UNDERSIGNED, AGENT AND LENDER. In addition, the Undersigned
agree that all service of process shall be made as provided in
the Credit Agreement.
As used herein, all provisions shall include the
masculine, feminine, neuter, singular and plural thereof,
wherever the context and facts require such construction and in
particular the word "Undersigned" shall be so construed.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, each of the Undersigned has
executed this Note on the date above set forth.
Ennis, Inc.
Ennis Business Forms of Kansas, Inc.
Connolly Tool and Machine Co.
Admore, Inc.
PFC Products, Inc.
Ennis Acquisitions, Inc.
Northstar Computer Forms, Inc.
General Financial Supply, Inc.
Calibrated Forms Co. Inc.
Crabar/GBF, Inc.
Royal Business Forms, Inc.
Midlothian Holdings LLC (to be renamed
Alstyle Apparel LLC)
A and G, Inc.
Alstyle Ensenada LLC
Alstyle Hermosilla LLC
The Great Pumpkin, Inc.
Diaco USA, LLC
By:
----------------------------------
Keith S. Walters, President of each
American Forms I, L.P.
Adams McClure I, L.P.
Texas EBF, L.P.
Ennis Sales, L.P.
Ennis Management, L.P.
By: Ennis, Inc., the sole general partner of
each
By:
----------------------------------
Keith S. Walters, President
FOR BANK USE ONLY
Officer's Initials:
---------
Approval:
----------
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: LaSalle Bank National Association, as Administrative Agent
Please refer to the Credit Agreement dated as of November
19, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Ennis,
Inc. (the "Company"), each of the other entities signatory
thereto under the heading "Co-Borrowers", various financial
institutions and LaSalle Bank National Association, as
Administrative Agent. Terms used but not otherwise defined
herein are used herein as defined in the Credit Agreement.
I. Reports. Enclosed herewith is a copy of the [annual
audited/quarterly] report of the Company as at -----------,
---- (the "Computation Date"), which report fairly presents
in all material respects the financial condition and results
of operations [(subject to the absence of footnotes and to
normal year-end adjustments)] of the Company as of the
Computation Date and has been prepared in accordance with
GAAP consistently applied.
II. Financial Tests. The Company hereby certifies and
warrants to you that the following is a true and correct
computation as at the Computation Date of the following
ratios and/or financial restrictions contained in the Credit
Agreement:
A. Section 11.14.1 - Minimum Fixed Charge Coverage Ratio
1. EBITDA $
-------
2. Income taxes paid $
--------
3. Capital Expenditures $
--------
4. Sum of (2) and (3) $
--------
5. Remainder of (1) minus (4) $
--------
6. Interest Expense $
--------
7. Required payments of
principal of Funded Debt
(including Term Loans but
excluding Revolving Loans) $
--------
8. Distributions to holders
of Parent Capital Securities (other
than distributions of non-redeemable
common equity securities) $
--------
9. Sum of (6), (7) and (8) $
--------
10. Ratio of (5) to (9) to 1
----
11. Minimum Required to 1
----
B. Section 11.14.2 - Maximum Total Funded Debt to EBITDA Ratio
1. Total Funded Debt $
--------
2. EBITDA $
--------
(from Item A(3) above)
3. Ratio of (1) to (2) to 1
----
4. Maximum allowed to 1
----
C. Section 11.14.3 - Minimum Net Worth
1. Consolidated Net Worth $
--------
2. Baseline value $
--------
3. Consolidated Net Income $
--------
4. 25% of C.3. $
--------
5. Minimum Net Worth $
(sum of C.2 and C.4) --------
The Company further certifies to you that no Event of
Default or Unmatured Event of Default has occurred and is
continuing.
The Company has caused this Certificate to be executed and
delivered by its duly authorized officer on --------, -----.
ENNIS, INC.
By:
------------------------
Title: Chairman, President and
CEO
EXHIBIT C
FORM OF
ASSIGNMENT AGREEMENT
Date:
-----------------
To: [Company Lower Case]
and
LaSalle Bank National Association, as Administrative Agent
Re: Assignment under the Credit Agreement referred to below
Gentlemen and Ladies:
Please refer to Section 15.6.1 of the Credit Agreement dated
as of November 19, 2004 (as amended or otherwise modified from
time to time, the "Credit Agreement") among Ennis, Inc. (the
"Company"), each of the other parties signatory thereto under the
heading "Co-Borrower", various financial institutions and LaSalle
Bank National Association, as administrative agent (in such
capacity, the "Administrative Agent"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have
the meanings provided in the Credit Agreement.
------------------(the "Assignor") hereby sells and assigns,
without recourse, to ------------(the "Assignee"), and the
Assignee hereby purchases and assumes from the Assignor, that
interest in and to the Assignor's rights and obligations under
the Credit Agreement as of the date hereof equal to ----% of all
of the Loans, of the participation interests in the Letters of
Credit and of the Commitments, such sale, purchase, assignment
and assumption to be effective as of ---------------, ----, or
such later date on which the Company and the Administrative Agent
shall have consented hereto (the "Effective Date"). After giving
effect to such sale, purchase, assignment and assumption, the
Assignee's and the Assignor's respective Percentages for purposes
of the Credit Agreement will be as set forth opposite their names
on the signature pages hereof.
The Assignor hereby instructs the Administrative Agent to
make all payments from and after the Effective Date in respect of
the interest assigned hereby directly to the Assignee. The
Assignor and the Assignee agree that all interest and fees
accrued up to, but not including, the Effective Date are the
property of the Assignor, and not the Assignee. The Assignee
agrees that, upon receipt of any such interest or fees, the
Assignee will promptly remit the same to the Assignor.
The Assignor represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim.
The Assignee represents and warrants to the Company and the
Administrative Agent that, as of the date hereof, the Company
will not be obligated to pay any greater amount under Section 7.6
or 8 of the Credit Agreement than the Company is obligated to pay
to the Assignor under such Section. [The Assignee has delivered,
or is delivering concurrently herewith, to the Company and the
Administrative Agent the forms required by Section 7.6 of the
Credit Agreement.] [INSERT IF ASSIGNEE IS ORGANIZED UNDER THE
LAWS OF A JURISDICTION OTHER THAN THE UNITED STATES OF AMERICA OR
A STATE THEREOF.] The Company shall pay the fee payable to the
Administrative Agent pursuant to Section 15.6.1.
The Assignee hereby confirms that it has received a copy of
the Credit Agreement. Except as otherwise provided in the Credit
Agreement, effective as of the Effective Date:
(a) the Assignee (i) shall be deemed automatically to have
become a party to the Credit Agreement and to have all
the rights and obligations of a "Lender" under the
Credit Agreement as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof; and (ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement as if it
were an original signatory thereto; and
(b) the Assignor shall be released from its obligations
under the Credit Agreement to the extent specified in
the second paragraph hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitment:
(A) Institution Name:
Address:
Attention:
Telephone:
Facsimile:
(B) Payment Instructions:
This Assignment shall be governed by and construed in
accordance with the laws of the State of Illinois
Please evidence your receipt hereof and your consent to the
sale, assignment, purchase and assumption set forth herein by
signing and returning counterparts hereof to the Assignor and the
Assignee.
Percentage = % [ASSIGNEE]
----
By:
-----------------------------
Title:
-----------------------------
Adjusted Percentage = % [ASSIGNOR]
---
By:
-----------------------------
Title:
-----------------------------
ACKNOWLEDGED AND CONSENTED TO
this day of ,
----- -------- ----
LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent
By:
------------------------------
Title:
-------------------------------
ACKNOWLEDGED AND CONSENTED TO
this day of ,
--- ------------ --------
ENNIS, INC.
By:
------------------------------
Title:
-------------------------------
EXHIBIT D
FORM OF NOTICE OF BORROWING
To: LaSalle Bank National Association, as Administrative
Agent
Please refer to the Credit Agreement dated as of November
19, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Ennis,
Inc. (the "Company"), each of the other persons signatory thereto
under the heading "Co-Borrower", various financial institutions
and LaSalle Bank National Association, as Administrative Agent.
Terms used but not otherwise defined herein are used herein as
defined in the Credit Agreement.
The undersigned hereby gives irrevocable notice, pursuant to
Section 2.2.2 of the Credit Agreement, of a request hereby for a
borrowing as follows:
(i) The requested borrowing date for the proposed borrowing
(which is a Business Day) is , .
(ii) The aggregate amount of the proposed borrowing is $
..
(iii) The type of Revolving Loans comprising the
proposed borrowing are [Base Rate] [LIBOR] Loans.
(iv) The duration of the Interest Period for each LIBOR Loan
made as part of the proposed borrowing, if applicable, is
months (which shall be 1, 2, 3 or 6 months).
The undersigned hereby certifies that on the date hereof and
on the date of borrowing set forth above, and immediately after
giving effect to the borrowing requested hereby: (i) there exists
and there shall exist no Unmatured Event of Default or Event of
Default under the Credit Agreement; and (ii) each of the
representations and warranties contained in the Credit Agreement
and the other Loan Documents is true and correct as of the date
hereof, except to the extent that such representation or warranty
expressly relates to another date and except for changes therein
expressly permitted or expressly contemplated by the Credit
Agreement.
The Company has caused this Notice of Borrowing to be
executed and delivered by its officer thereunto duly authorized
on , .
ENNIS, INC.
By:
-----------------------------
Title:
----------------------------
EXHIBIT E
FORM OF NOTICE OF CONVERSION/CONTINUATION
To: LaSalle Bank National Association, as Administrative
Agent
Please refer to the Credit Agreement dated as of November
19, 2004 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Ennis,
Inc. (the "Company"), the other parties signatory thereto under
the heading "Co-Borrowers", various financial institutions and
LaSalle Bank National Association, as Administrative Agent.
Terms used but not otherwise defined herein are used herein as
defined in the Credit Agreement.
The undersigned hereby gives irrevocable notice, pursuant to
Section 2.2.3 of the Credit Agreement, of its request to:
(a) on [ date ] convert $[ ]of the
aggregate outstanding principal amount of the [ ] Loan,
bearing interest at the [ ] Rate, into a(n) [ ]
Loan [and, in the case of a LIBOR Loan, having an Interest Period
of [ ] month(s)];
[(b) on [ date ] continue $[ ]of the
aggregate outstanding principal amount of the [ ] Loan,
bearing interest at the LIBOR Rate, as a LIBOR Loan having an
Interest Period of [ ] month(s)].
The undersigned hereby represents and warrants that all of
the conditions contained in Section 12.2 of the Credit Agreement
have been satisfied on and as of the date hereof, and will
continue to be satisfied on and as of the date of the
conversion/continuation requested hereby, before and after giving
effect thereto.
The Company has caused this Notice of
Conversion/Continuation to be executed and delivered by its
officer thereunto duly authorized on , .
ENNIS, INC.
By:
-----------------------------
Title:
----------------------------