EXHIBIT 99.4
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TERM LOAN AGREEMENT
Dated: April 30, 2003
$30,000,000.00
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[FLEET CAPITAL LOGO]
TERM LOAN AGREEMENT
THIS LOAN AGREEMENT is made this 30th day of April, 2003, by and among
FLEET CAPITAL CORPORATION ("Lender"), a Rhode Island corporation with a place of
business located at 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000,
and UNITED NATURAL FOODS, INC., a Delaware corporation with its chief executive
office and principal place of business located at 000 Xxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("UNF"), STOW XXXXX, INC., a Vermont corporation with its
chief executive office and principal place of business located at 00 Xxxx Xxxxx,
Xxxxxxxxxxxx, Xxx Xxxxxxxxx 00000 ("SMI"), and UNITED NATURAL FOODS
PENNSYLVANIA, INC., a Pennsylvania corporation with its chief executive office
and principal place of business located at 00 Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxx
Xxxxxxxxx 00000 ("UNFPA") XXXXXX'S ORGANICS, INC., a California corporation,
with its chief executive office and principal place of business located at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("XXXXXXX" and together with UNF,
SMI, and UNFPA, the "Borrowers"). Capitalized terms used in this Agreement have
the meanings assigned to them in Appendix A, General Definitions. Accounting
terms not otherwise specifically defined herein shall be construed in accordance
with GAAP consistently applied.
R E C I T A L S
WHEREAS, the Borrowers have requested that the Lender extend credit to the
Borrowers in the principal amount of THIRTY MILLION DOLLARS ($30,000,000.00);
and
WHEREAS, to induce the Lender to extend such credit, the Borrowers and the
Lender propose to enter into this Agreement pursuant to which the Lender will
make a Term Loan and otherwise extend credit to the Borrowers.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon the
representations and warranties made in this Agreement and the other Loan
Documents, Xxxxxx agrees to make a Term Loan of $30,000,000.00 to Borrowers on
the Closing Date, as follows:
1.1. Term Loan.
1.1.1. Term Loan. Xxxxxx agrees to make a Term Loan to Borrowers on
the Closing Date in the principal amount of $30,000,000.00, which shall be
repayable in accordance with the terms of the Term Note and shall be secured by
all of the Collateral.
1.1.2. Use of Proceeds. The Term Loan shall be used solely for the
satisfaction of a portion of the existing Indebtedness of Borrower to Fleet
Capital Corporation, as Agent, for itself and the other lenders under the
Working Capital Facility to obtain the release of the Mortgages and any other
liens relating to the Real Property, and for Xxxxxxxx's general operating
capital needs in a manner consistent with the provisions of this Agreement and
all applicable laws.
1.1.3. Guarantors. The Obligations of Borrowers under the Term Loan
are guaranteed by the Guarantors pursuant to Guaranty Agreements.
SECTION 2. INTEREST, FEES AND CHARGES
2.1. Interest.
2.1.1. Rates of Interest. Interest shall accrue on the Term Loan in
accordance with the terms of this Agreement. Interest shall accrue on the
principal amount of the Base Rate Advances outstanding at the end of each day at
a fluctuating rate per annum equal to the Base Rate. Interest shall accrue on
the principal amount of each of the Libor Advances outstanding at the end of
each day at a fixed rate equal to LIBOR for the applicable Interest Period plus
the Applicable LIBOR Margin. The rate of interest applicable to the Base Rate
Advances shall increase or decrease by an amount equal to any increase or
decrease in the Base Rate, effective as of the opening of business on the date
that any such change in the Base Rate occurs. Interest shall be payable monthly
in arrears on the first day of each month.
2.1.2. Default Rate of Interest. Upon and after the occurrence of an
Event of Default, and during the continuation thereof, the principal amount of
the Loan shall bear interest at a rate per annum equal to two percent (2%) above
the interest rate otherwise applicable thereto (the "Default Rate").
2.1.3. Maximum Interest. In no event whatsoever shall the aggregate
of all amounts deemed interest under the Term Note or this Agreement and charged
or collected pursuant to the terms of this Agreement or pursuant to the Term
Note exceed the highest rate permissible under any law which a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
If any provisions of this Agreement or the Term Note are in contravention of any
such law, such provisions shall be deemed amended to conform thereto.
2.2. Computation of Interest and Fees. Interest hereunder shall be
calculated daily and shall be computed on the actual number of days elapsed over
a year of 360 days. For the purpose of computing interest hereunder, all items
of payment received by Xxxxxx shall be deemed applied by Xxxxxx on account of
the Obligations (subject to final payment of such items) on the next succeeding
Business Day after receipt by Xxxxxx of such items in Xxxxxx's account located
in Fleet National Bank.
2.3. Commitment Fee. Borrowers shall pay to Lender a commitment fee of
$150,000.00, which shall be fully earned and nonrefundable on the Closing Date
(of which amount $75,000.00 shall be credited from the initial deposit paid to
Lender upon execution of the Letter of Intent dated February 19, 2003) and shall
be paid concurrently with the initial Loan hereunder.
2.4. Reimbursement of Expenses. If, at any time or times regardless of
whether or not an Event of Default then exists, Lender or any Participating
Lender incurs legal or accounting
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expenses or any other costs or out-of-pocket expenses in connection with (i) the
negotiation and preparation of this Agreement or any of the other Loan
Documents, any amendment of or modification of this Agreement or any of the
other Loan Documents, or any sale or attempted sale of any interest herein to a
Participating Lender; (ii) the administration of this Agreement or any of the
other Loan Documents and the transactions contemplated hereby and thereby; (iii)
any litigation, contest, dispute, suit, proceeding or action (whether instituted
by Xxxxxx, Borrowers or any other Person) in any way relating to the Collateral,
this Agreement or any of the other Loan Documents or Borrowers' affairs; (iv)
any attempt to enforce any rights of Lender or any Participating Lender against
Borrowers or any other Person which may be obligated to Lender by virtue of this
Agreement or any of the other Loan Documents; or (v) any attempt to inspect,
verify, protect, preserve, restore, collect, sell, liquidate or otherwise
dispose of or realize upon the Collateral; then all such reasonable legal and
accounting expenses, other costs and out of pocket expenses of Lender shall be
charged to Borrowers. All amounts chargeable to Borrowers under this Section 2.4
shall be Obligations secured by all of the Collateral, shall be payable on
demand to Lender or to such Participating Lender, as the case may be, and shall
bear interest from the date such demand is made until paid in full at the rate
applicable to LIBOR Advances from time to time. Borrowers shall also reimburse
Lender for expenses incurred by Xxxxxx in its administration of the Collateral
to the extent and in the manner provided in Section 4 hereof.
2.5. Bank Charges. Borrower shall pay to Lender, on demand, any and all
fees, costs or expenses which Lender or any Participating Lender pays to a bank
or other similar institution (including, without limitation, any fees paid by
Lender to any Participating Lender) arising out of or in connection with (i) the
forwarding to Borrowers or any other Person on behalf of Borrowers, by Lender or
any Participating Lender, of proceeds of loans made by Lender to Borrowers
pursuant to this Agreement and (ii) the depositing for collection, by Lender or
any Participating Lender, of any check or item of payment received or delivered
to Lender or any Participating Lender on account of the Obligations.
SECTION 3. LOAN ADMINISTRATION.
3.1. Term Loan. The Term Loan shall be made in accordance with the
following:
3.1.1. Authorization. Borrowers hereby irrevocably authorizes
Xxxxxx, in Xxxxxx's sole discretion, to advance to Borrowers, and to charge to
Borrowers' Loan Account hereunder, a sum sufficient to pay all interest accrued
on the Obligations during the immediately preceding month and to pay all costs,
fees and expenses at any time owed by Borrowers to Lender hereunder.
3.1.2. LIBOR Advances. Subject to the terms hereunder, Borrowers
shall give Lender prior, written, irrevocable notice no later than 11:00 A.M.
New York City Time on the 2nd Business Day prior to the Closing Date specifying
(i) Borrowers' election to obtain a LIBOR Advance and (ii) the date of the
proposed borrowing (which shall be a Business Day).
3.1.3. Continuation of LIBOR Advances. Borrowers shall have the
right on two (2) Business Days' prior irrevocable written notice given to Lender
by Borrowers (prior to 11:00 A.M. New York City Time on such Business Day),
subject to the provisions hereof, to
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continue any LIBOR Advance into a subsequent Interest Period of the same or a
different permitted duration, in each case subject to the satisfaction of the
following conditions:
(i) in the case of a continuation of less than all LIBOR Advances,
the LIBOR Advances continued shall each be in a minimum principal amount of
$100,000 and may increase in integral multiples of $100,000; and
(ii) no LIBOR Advance (or portion thereof) may be continued as a
LIBOR Advance if a Default has occurred which is then continuing or if, after
giving effect to such continuation, Borrowers shall have outstanding more than
five (5) separate LIBOR Advances in the aggregate.
If Borrowers shall fail to give timely notice of their election to
continue any LIBOR Advance or portion thereof as provided above, or if such
continuation shall not be permitted, such LIBOR Advance or portion thereof,
unless such LIBOR Advance shall be repaid, shall automatically be converted into
a Base Rate Advance at the end of the Interest Period then in effect with
respect to such LIBOR Advance.
3.1.4. Inability to Make LIBOR Advances. Notwithstanding any other
provision hereof, if any applicable law, treaty, regulation or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for Lender (for purposes of this subsection 3.1.4, the term "Lender"
shall include the office or branch where Lender or any corporation or bank then
controlling any Lender makes or maintains any LIBOR Advances) to make or
maintain its LIBOR Advances, or if with respect to any Interest Period, Lender
is unable to determine the LIBOR relating thereto, or adverse or unusual
conditions in, or changes in applicable law relating to, the London interbank
market make it, in the reasonable judgment of Lender, impracticable to fund
therein any of the LIBOR Advances, or make the projected LIBOR unreflective of
the actual costs of funds therefor to Lender, the obligation of Lender to make
LIBOR Advances hereunder shall forthwith be suspended during the pendency of
such circumstances and Borrowers shall, if any affected LIBOR Advances are then
outstanding, promptly upon request from Xxxxxx, convert such affected LIBOR
Advances into Base Rate Advances.
3.2. Payments. Except where evidenced by the Term Note or other instruments
issued or made by Borrowers to Lender specifically containing payment provisions
which are in conflict with this Section 3.2 (in which event the conflicting
provisions of said notes or other instruments shall govern and control), the
Obligations shall be payable as follows:
3.2.1. Costs, Fees and Charges. Costs, fees and charges payable
pursuant to this Agreement shall be payable by Borrowers as and when provided in
Section 2 hereof, to Lender or to any other Person designated by Lender in
writing.
3.2.2. Other Obligations. The balance of the Obligations requiring
the payment of money, if any, shall be payable by Borrowers to Lender as and
when provided in this Agreement, the Other Agreements or the Security Documents,
or on demand, whichever is later.
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3.2.3. Prepayment of LIBOR Advances. Borrower may prepay a LIBOR
Advance only upon at least three (3) Business Days prior written notice to
Lender (which notice shall be irrevocable), and any such prepayment shall occur
only on the last day of the Interest Period for such LIBOR Advance. Borrower
shall pay to Lender, upon request of Lender, such amount or amounts as shall be
sufficient (in the reasonable opinion of Lender) to compensate Lender for any
loss, cost, or expense incurred as a result of: (i) any payment of a LIBOR
Advance on a date other than the last day of the Interest Period for such Loan;
(ii) any failure by Borrower to borrow a LIBOR Advance on the date specified by
Borrower's written notice; or (iii) any failure by Borrower to pay a LIBOR
Advance on the date for payment specified in Borrower's written notice. Without
limiting the foregoing, Borrower shall pay to Lender a "yield maintenance fee"
in an amount computed as follows: the current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the Interest Period chosen pursuant to the LIBOR
Advance as to which the prepayment is made, shall be subtracted from the LIBOR
in effect at the time of prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the principal
balance being prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the Interest Period chosen
pursuant to the LIBOR Advance as to which the prepayment is made. Said amount
shall be reduced to present value calculated by using the above-referenced
United States Treasury securities rate and the number of days remaining in the
term chosen pursuant to the LIBOR Advance as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to Lender upon the
prepayment of a LIBOR Advance. If by reason of an Event of Default, Lender
elects to declare the Obligations to be immediately due and payable, then any
yield maintenance fee with respect to a LIBOR Advance shall become due and
payable in the same manner as though the Borrower had exercised such right of
prepayment.
3.3. Mandatory Prepayments.
3.3.1. Proceeds of Sale, Loss, Destruction or Condemnation of
Collateral. If Xxxxxxxx sells any of the Real Property, or if any of the
Collateral is lost or destroyed or taken by condemnation, Borrowers shall pay to
Lender, unless otherwise agreed by Lender or as provided herein or in the
Mortgages, as and when received by Borrowers and as a mandatory prepayment of
the Term Loan, a sum equal to the proceeds (including insurance payments)
received by Borrowers from such sale, loss, destruction or condemnation.
3.4. Application of Payments and Collections. All items of payment
received by Lender by 12:00 noon, Eastern time, on any Business Day shall be
deemed received on that Business Day. All items of payment received after 12:00
noon, Eastern time, on any Business Day shall be deemed received on the
following Business Day. Borrowers irrevocably waive the right to direct the
application of any and all payments and collections at any time or times
hereafter received by Lender from or on behalf of Borrowers, and Borrowers do
hereby irrevocably agree that Lender shall have the continuing exclusive right
to apply and reapply any and all such payments and collections received at any
time or times hereafter by Lender against the Obligations, in such manner as
Lender may deem advisable, notwithstanding any entry by Lender upon any of its
books and records.
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3.5. Xxxxxx's Lien Upon Collateral. The Loan shall be secured by Xxxxxx's
Lien upon all of the Collateral.
3.6. Loan Account. Lender shall enter the Loan as a debit to the Loan
Account and shall also record in the Loan Account all payments made by Borrowers
on any Obligations and all proceeds of Collateral which are finally paid to
Lender, and may record therein, in accordance with customary accounting
practice, other debits and credits, including interest and all charges and
expenses properly chargeable to Borrowers.
3.7. Intentionally Deleted.
3.8. Changed Costs. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement and having general
applicability to all banks within the jurisdiction in which Lender operates
(excluding, for the avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the date of this
Agreement), or any interpretation or application thereof by any governmental
authority charged with the interpretation or application thereof, or the
compliance of Lender therewith, shall:
(i) (1) subject Lender to any tax with respect to this Agreement
(other than (a) any tax based on or measured by net income or otherwise in the
nature of a net income tax, including, without limitation, any franchise tax or
any similar tax based on capital, net worth or comparable basis for measurement
and (b) any tax collected by a withholding on payments and which neither is
computed by reference to the net income of the payee nor is in the nature of an
advance collection of a tax based on or measured by the net income of the payee)
or (2) change the basis of taxation of payments to Lender of principal, fees,
interest or any other amount payable hereunder or under any Loan Documents
(other than in respect of (a) any tax based on or measured by net income or
otherwise in the nature of a net income tax, including, without limitation, any
franchise tax or any similar tax based on capital, net worth or comparable basis
for measurement and (b) any tax collected by a withholding on payments and which
neither is computed by reference to the net income of the payee nor is in the
nature of an advance collection of a tax based on or measured by the net income
of the payee);
(ii) impose, modify or hold applicable any reserve (except any
reserve taken into account in the determination of the applicable LIBOR),
special deposit, assessment or similar requirement against assets held by, or
deposits in or for the account of, advances or loans by, or other credit
extended by, any office of Lender, including (without limitation) pursuant to
Regulation D of the Board of Governors of the Federal Reserve System; or
(iii) impose on Lender or the London interbank market any other
condition with respect to any Loan Document;
and the result of any of the foregoing is to increase the cost to Lender of
making, renewing or maintaining Loans hereunder by an amount that Xxxxxx deems
to be material or to reduce the amount of any payment (whether of principal,
interest or otherwise) in respect of any of the Loans by an amount that Lender
deems to be material, then, in any such case, Borrower shall pay
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Lender, upon demand and certification not later than sixty (60) days following
its receipt of notice of the imposition of such increased costs, such additional
amount as will compensate Lender for such additional cost or such reduction, as
the case may be, to the extent Lender has not otherwise been compensated, with
respect to a particular Loan, for such increased cost as a result of an increase
in the Base Rate or LIBOR. An officer of Lender shall determine the amount of
such additional cost or reduced amount using reasonable averaging and
attribution methods and shall certify the amount of such additional cost or
reduced amount to Borrower, which certification shall include a written
explanation of such additional cost or reduction to Borrower. Such certification
shall be conclusive absent manifest error. If Lender claims any additional cost
or reduced amount pursuant to this Section 3.8, then Lender shall use reasonable
efforts (consistent with legal and regulatory restrictions) to designate a
different lending office or to file any certificate or document reasonably
requested by Borrower if the making of such designation or filing would avoid
the need for, or reduce the amount of, any such additional cost or reduced
amount and would not, in the sole discretion of Lender, be otherwise
disadvantageous to Lender.
3.9. Basis for Determining Interest Rate Inadequate or Unfair. In the
event that Lender shall have determined that:
(i) reasonable means do not exist for ascertaining the LIBOR for any
Interest Period; or
(ii) Dollar deposits in the relevant amount and for the relevant
maturity are not available in the London interbank market with respect to a
proposed LIBOR Advance, or a proposed conversion of a Base Rate Advance into a
LIBOR Advance; then
Lender shall give Borrowers prompt written, telephonic or electronic notice of
the determination of such effect. If such notice is given, (i) any such
requested LIBOR Advance shall be made as a Base Rate Advance, unless Borrowers
shall notify Lender no later than 10:00 A.M. (New York City Time) two (2)
Business Days prior to the date of such proposed borrowing that the request for
such borrowing shall be canceled or made as an unaffected type of LIBOR Advance,
and (ii) any Base Rate Advance which was to have been converted to an affected
type of LIBOR Advance shall be continued as or converted into a Base Rate
Advance, or, if Borrowers shall notify Lender, no later than 10:00 A.M. (New
York City Time) two (2) Business Days prior to the proposed conversion, shall be
maintained as an unaffected type of LIBOR Advance.
3.10. Borrowers' Representative. Borrowers hereby irrevocably appoint UNF,
and UNF agrees to act under this Agreement, as the agent and representative of
itself and the other Borrowers for all purposes under this Agreement, including
receiving notices and communications to Borrowers (or any of them) from Lender
and sending notices to Lender. Lender may rely, and shall be fully protected in
relying, on any reports, information or any other notice or communication made
or given by UNF, whether in its own name, or on behalf of the Borrowers, and
Lender shall have no obligation to make any inquiry or request any confirmation
from or on behalf of any Borrower as to the binding effect on Borrowers of any
such request, instruction, report, information, notice or communication, nor
shall the joint and several character of Borrowers' liability for the Loan be
affected, provided that the provisions of this
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Section 3.10 shall not be construed so as to preclude any Borrower from directly
taking actions permitted to be taken by "a Borrower" hereunder. Xxxxxx may
maintain a single Loan Account in the name of UNF hereunder, and each Borrower
expressly agrees to such arrangement and confirms that such arrangement shall
have no effect on the absolute, unconditional and joint and several character of
such Xxxxxxxx's liability for the Obligations.
SECTION 4. COLLATERAL
4.1. Lien on Realty/Other Collateral. (a) The due and punctual payment and
performance of the Term Note shall be secured by the Lien created by the
Mortgages upon the Real Property and other property covered by the Mortgages.
The Mortgages shall be executed by Xxxxxxxx in favor of Xxxxxx and shall be duly
recorded, at Borrowers' expense, in each office where such recording is required
to constitute a fully perfected Lien on the Real Property and Property covered
thereby. Borrower shall deliver to Lender, at Xxxxxxxx's expense, mortgagee
title insurance policies issued by a title insurance company satisfactory to
Lender, which policies shall be in form and substance satisfactory to Lender and
shall insure a valid, first Lien in favor of Lender on the Property covered
thereby, subject only to those exceptions acceptable to Lender. Borrower shall
deliver to Lender such other documents, including, without limitation, as-built
survey prints of the Real Property, as Lender may request relating to the Real
Property subject to the Mortgage.
(b) The due and punctual payment and performance of the Term Note shall
also be secured by among other things:
(i) A first priority Assignment of Leases and Rents covering the
Real Property;
(ii) A Collateral Assignment of Contracts, Licenses and Permits
relating to the Real Property;
(iii) An Assignment of Payment and Proceeds covering amounts due
Borrower under the interest rate hedging agreement referred to in Section 6.1.14
below; and
(iv) An Environmental Indemnity covering the Real Property.
4.2. Lien Perfection; Further Assurances. Borrowers shall execute such
UCC-1 financing statements as are required by the UCC and such other
instruments, assignments or documents as are necessary to perfect Xxxxxx's Lien
upon any of the Collateral and shall take such other action as may be required
to perfect or to continue the perfection of Xxxxxx's Lien upon the Collateral.
Unless prohibited by applicable law, Borrower hereby irrevocably authorizes
Lender to execute and file any such financing statements, including, without
limitation, financing statements that indicate the Collateral as being of an
equal or lesser scope, or with greater or lesser detail, than as set forth in
Section 4.1, on Borrowers' behalf. Borrowers also hereby ratify their
authorization for Lender to have filed in any jurisdiction any like financing
statements or amendments thereto if filed prior to the date hereof. The parties
agree that a photographic or other reproduction of this Agreement shall be
sufficient as a financing
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statement and may be filed in any appropriate office in lieu thereof. At
Lender's request, Borrowers shall also promptly execute or cause to be executed
and shall deliver to Lender any and all documents, instruments and agreements
deemed necessary by Lender to give effect to or carry out the terms or intent of
the Loan Documents.
4.3. Insurance of Collateral. Borrowers shall maintain and pay for
insurance upon all Collateral wherever located and with respect to Borrower's
business, covering casualty, hazard, public liability and such other risks in
such amounts and with such insurance companies as are reasonably satisfactory to
Lender. Borrowers shall deliver the originals of such policies to Lender with
satisfactory lender's loss payable endorsements, naming Xxxxxx as loss payee,
mortgagee, assignee or additional insured, as appropriate. Each policy of
insurance or endorsement shall contain a clause requiring the insurer to give
not less than thirty (30) days prior written notice to Lender in the event of
cancellation of the policy for any reason whatsoever and a clause specifying
that the interest of Lender shall not be impaired or invalidated by any act or
neglect of Borrowers or the owner of the Property or by the occupation of the
premises for purposes more hazardous than are permitted by said policy. If
Borrowers fail to provide and pay for such insurance, Lender may, at its option,
but shall not be required to, procure the same and charge Borrowers therefor.
Borrowers agree to deliver to Lender, promptly as rendered, true copies of all
reports made in any reporting forms to insurance companies.
Without limiting the foregoing, Borrower shall at all times provide and
maintain the following insurance coverages with respect to the Real Property,
issued by companies qualified to do business in the jurisdictions in which the
Real Property is located, having a best's Rating of not less than A+ and
otherwise acceptable to Lender in its sole discretion:
(i) If there are improvements on the Real Property, physical
insurance on an all-risk basis without exception (including,
without limitation, flood required if property is in a
"Special Flood Hazard Area" A or V), vandalism and malicious
mischief, earthquake, collapse, boiler explosion, sprinkler
coverage, cost of demolition, increased costs of construction
and the value of the undamaged portion of the building and
soft costs coverage) covering all the real estate, fixtures
and personal property to the extent of the full insurable
value thereof, having replacement cost and agreed amount
endorsements (with deductibles not in excess of 1% of
insurable value);
(ii) rent loss or business interruption insurance, to the extent
there are leases covering any portion of the Real Property in
effect, in an amount equal to one year's projected rentals or
gross revenues;
(iii) worker's compensation, employer's liability and other
insurance required by law;
(iv) such other insurance coverages in such amounts as Lender may
request consistent with the customary practices of prudent
owners of similar properties.
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An actual insurance policy or certified copy thereof, or a binder,
certificate of insurance, or other evidence of property coverage in the form of
Xxxxx 27 (Evidence of Property Coverage), Xxxxx 25 (Certificate of Insurance),
or a 30-day binder in form acceptable to Lender with an unconditional
undertaking to deliver the policy or a certified copy within thirty (30) days,
shall be delivered at closing of the Loan.
Flood insurance shall be provided if the Real Property is located in a
flood prone, flood risk or flood hazard area as designated pursuant to the
Federal Flood Disaster Protection Act of 1973, as amended, and the Regulations
thereunder, or if otherwise reasonably required by Lender.
Lender shall be named as first mortgagee on policies of all-risk-type
insurance on the Real Property, and as first mortgagee on rent-loss or business
interruption coverages related thereto.
Except with respect to public liability insurance, as to which Lender
shall be named as an additional insured with respect to the Real Property, all
other required insurance coverages shall have a so-called "Mortgagee's
endorsement" or "Lender's loss-payable endorsement" which shall provide in
substance as follows:
A. Loss or damage, if any, under the policy shall be paid to Lender and
its successors and assigns in whatever form or capacity its interest may appear
and whether said interest be vested in said Lender in its individual or in its
disclosed or undisclosed fiduciary or representative capacity, or otherwise, or
vested in a nominee or trustee of said Xxxxxx.
B. The insurance under the policy, or under any rider or endorsement
attached thereto, as to the interest only of Lender, its successors and assigns,
shall not be invalidated nor suspended:
(a) by any error, omission or change respecting the ownership,
description, possession or location of the subject of the
insurance or the interests therein or the title thereto; or
(b) by the commencement of foreclosure or similar proceedings or
the giving of notice of sale of any of the property covered by
the policy by virtue of any mortgage, deed of trust, or
security interest; or
(c) by any breach of warranty, act, omission, neglect, or
noncompliance with any provisions of the policy by the named
insured, or any one else, whether before or after a loss,
which under the provisions of the policy of insurance, would
invalidate or suspend the insurance as to the named insured,
excluding, however, any acts or omissions of Lender while
exercising active control and management of the insured
property.
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C. Insurer shall provide Lender with not less than thirty (30) days' prior
written notice of cancellation of the policy (for non-payment or any other
reason) or of the non-renewal thereof.
D. The insurer reserves the right to cancel the policy at any time, but
only as provided by its terms. However, in such case this policy shall continue
in force for the benefit of Lender for thirty (30) days after written notice of
such cancellation is received by Xxxxxx and shall then cease.
E. Should legal title to and beneficial ownership of any of the property
covered under the policy become vested in Lender or its agents, successors or
assigns, insurance under the policy shall continue for the term thereof for the
benefit of Lender.
4.4. Protection of Collateral. All expenses of protecting, storing,
warehousing, insuring, handling, maintaining and shipping the Collateral, any
and all excise, property, sales, and use taxes imposed by any state, federal, or
local authority on any of the Collateral or in respect of the sale thereof shall
be borne and paid by Borrowers. If Borrowers fail to promptly pay any portion
thereof when due, Lender may, at its option, but shall not be required to, pay
the same and charge Borrowers therefor. Lender shall not be liable or
responsible in any way for the safekeeping of any of the Collateral or for any
loss or damage thereto (except for reasonable care in the custody thereof while
any Collateral is in Lender's actual possession) or for any diminution in the
value thereof, or for any act or default of any warehouseman, carrier,
forwarding agency, or other person whomsoever, but the same shall be at
Borrower's sole risk.
4.5. Payment of Charges. All amounts chargeable to Borrowers under this
Section 4 shall be Obligations secured by all of the Collateral, shall be
payable on demand and shall bear interest from the date such advance was made
until paid in full at the rate applicable to LIBOR Advances from time to time.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1. General Representations and Warranties. To induce Lender to enter
into this Agreement each Borrower warrants, represents and covenants to the
Lender that:
5.1.1. Organization and Qualification. Each Borrower and its
Subsidiaries is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization. Each Borrower and its Subsidiaries is duly
qualified and is authorized to do business and is in good standing in each state
or jurisdiction listed on Exhibit C hereto and in all other states and
jurisdictions in which the failure of such Borrower or any of its Subsidiaries
to be so qualified would have a material adverse effect on the financial
condition, business or Properties of any such Borrower or any of such Borrower's
Subsidiaries.
5.1.2. Corporate Power and Authority. Each Borrower and its
Subsidiaries is duly authorized and empowered to enter into, execute, deliver
and perform this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and
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performance of this Agreement and each of the other Loan Documents have been
duly authorized by all necessary action and do not and will not (i) require any
consent or approval of the shareholders (or members, in the case of a limited
liability company) of any Borrower or any of its Subsidiaries; (ii) contravene
any Borrower's or any of its Subsidiaries' charter, articles or certificate of
incorporation or by-laws in the case of a corporation or certificate of
formation and limited liability company or operating agreement, in the case of a
limited liability company; (iii) violate, or cause any Borrower or any of its
Subsidiaries to be in default under, any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award in effect
having applicability to any Borrower or any of its Subsidiaries; (iv) result in
a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which any Borrower or
any of its Subsidiaries is a party or by which it or its Properties may be bound
or affected; or (v) result in, or require, the creation or imposition of any
Lien (other than Permitted Liens) upon or with respect to any of the Properties
now owned or hereafter acquired by any Borrower or any of its Subsidiaries.
5.1.3. Legally Enforceable Agreement. This Agreement is, and each of
the other Loan Documents when delivered under this Agreement will be, a legal,
valid and binding obligation of each Borrower and its Subsidiaries enforceable
against it in accordance with its respective terms.
5.1.4. Capital Structure. Exhibit D hereto states (i) the correct
name of each of the Subsidiaries of Borrowers, its jurisdiction of formation and
the percentage interest owned by each Borrower, (ii) the name of each of
Borrowers' corporate or joint venture Affiliates and the nature of the
affiliation, (iii) the number, nature and holder of all outstanding Securities
of each Borrower and each Subsidiary of each Borrower and (iv) the number of
authorized, issued and treasury shares of each such Borrower and each Subsidiary
of each such Borrower that is a corporation. Each Borrower has good title to all
of the shares it purports to own of the stock of each of its Subsidiaries.
Except as set forth on Exhibit D, all such shares have been duly issued and are
fully paid and non-assessable. Except as set forth on Exhibit D there are no
outstanding options to purchase, or any rights or warrants to subscribe for, or
any commitments or agreements to issue or sell, or any Securities or obligations
convertible into, or any powers of attorney relating to, shares of the capital
stock of any Borrower or any of such Borrower's Subsidiaries. Except as set
forth on Exhibit D, there are no outstanding agreements or instruments binding
upon any of Borrowers' shareholders (or members, in the case of a limited
liability company) relating to the ownership of its shares of capital stock (or
membership interest, in the case of a limited liability company).
5.1.5. Corporate Names, Etc. No Borrower nor any Subsidiary of any
Borrower has been known as or used any corporate, fictitious or trade names
except those listed on Exhibit E hereto. Except as set forth on Exhibit E, no
Borrower nor any Subsidiary of any Borrower has been the surviving corporation
of a merger or consolidation or acquired all or substantially all of the assets
of any Person. Each Borrower's and each Subsidiary's state(s) of incorporation
or organization, Type of Organization and Organizational I.D. Number is set
forth on Exhibit E. The exact legal name of each Borrower and each of such
Borrower's Subsidiaries is set forth on Exhibit E.
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5.1.6. Business Locations; Agent for Process. Each Borrower's and
its Subsidiaries' chief executive office and other places of business are as
listed on Exhibit B hereto. During the preceding one-year period, no Borrower
nor any of their Subsidiaries has had an office, place of business or agent for
service of process other than as listed on Exhibit B.
5.1.7. Title to Properties; Priority of Liens. Each Borrower and
each of their Subsidiaries has good, indefeasible and marketable title to and
fee simple ownership of, or valid and subsisting leasehold interests in, all of
its Real Property, and good title to all of the Collateral, in each case, free
and clear of all Liens except Permitted Liens. Borrowers have paid or discharged
all lawful claims which, if unpaid, might become a Lien against any of
Borrowers' Properties that is not a Permitted Lien.
5.1.8. Financial Statements; Fiscal Year. The Consolidated and
consolidating balance sheets of Borrowers and such other Persons described
therein (including the accounts of all Subsidiaries of Borrowers for the
respective periods during which a Subsidiary relationship existed) as of January
31, 2003, and the related statements of income, changes in stockholder's equity,
and changes in financial position for the periods ended on such dates, have been
prepared in accordance with GAAP, and present fairly the financial positions of
Borrowers and such Persons at such dates and the results of Borrowers' and such
Persons' operations for such periods. Since January 31, 2003, there has been no
material change in the condition, financial or otherwise, of Borrowers and such
other Persons as shown on the Consolidated balance sheet as of such date and no
change in the aggregate value of Real Property owned by Borrowers or such other
Persons, except changes in the ordinary course of business, none of which
individually or in the aggregate has been materially adverse. The fiscal year of
each Borrower and each of its respective Subsidiaries ends on July 31 of each
year.
5.1.9. Full Disclosure. The financial statements referred to in
subsection 5.1.8. hereof do not, nor does this Agreement or any other written
statement of Borrowers to Lender, contain any untrue statement of a material
fact or omit a material fact necessary to make the statements contained therein
or herein not misleading. There is no fact which Borrowers have failed to
disclose to Lender in writing which materially affects adversely or, so far as
Borrowers can now foresee, will materially affect adversely the Property,
business, prospects, profits or condition (financial or otherwise) of any
Borrower or any of such Borrower's Subsidiaries or the ability of any Borrower
or its Subsidiaries to perform this Agreement or the other Loan Documents.
5.1.10. Solvent Financial Condition. Each Borrower and its
Subsidiaries is now and, after giving effect to the Loan to be made hereunder,
at all times will be, Solvent.
5.1.11. Surety Obligations. No Borrower nor any of its Subsidiaries
is obligated as surety or indemnitor under any surety or similar bond or other
contract, or has issued or entered into any agreement to assure payment,
performance or completion of performance of any undertaking or obligation of any
Person.
5.1.12. Taxes. The federal tax identification number of each
Borrower and its Subsidiaries is shown on Exhibit F hereto. Each Borrower and
each of its Subsidiaries has filed
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all federal, state and local tax returns and other reports it is required by law
to file and has paid, or made provision for the payment of, all material taxes,
assessments, fees, levies and other governmental charges upon it, its income and
Property as and when such taxes, assessments, fees, levies and charges are due
and payable, unless and to the extent any thereof are being actively contested
in good faith and by appropriate proceedings and each Borrower maintains
reasonable reserves on its books therefor. The provision for taxes on the books
of each Borrower and each of its Subsidiaries are adequate for all years not
closed by applicable statutes, and for its current fiscal year.
5.1.13. Brokers. There are no claims for brokerage commissions,
finder's fees or investment banking fees in connection with the transactions
contemplated by this Agreement.
5.1.14. Governmental Consents. Each Borrower and each of its
Subsidiaries has, and is in good standing with respect to, all governmental
consents, approvals, licenses, authorizations, permits, certificates,
inspections and franchises necessary to continue to conduct its business as
heretofore or proposed to be conducted by it and to own or lease and operate its
Real Property as now owned or leased by it, except for those that would not have
a material adverse effect on the business, prospects, profits, properties, or
condition (financial or otherwise) of the Borrowers taken as a whole.
5.1.15. Compliance with Laws. Each Borrower and its Subsidiaries has
duly complied with, and its Property, business operations and leaseholds are in
compliance in all material respects with, the provisions of all federal, state
and local laws, rules and regulations including, without limitation, all
Environmental Laws applicable to such Borrower or such Subsidiary, as
applicable, its Property or the conduct of its business and there have been no
citations, notices or orders of noncompliance issued to any Borrower or any of
its Subsidiaries under any such law, rule or regulation, except for those that
would not have a material adverse effect on the business, prospects, profits,
properties or condition (financial or otherwise) of the Borrowers taken as a
whole. Each Borrower and its Subsidiaries has established and maintains an
adequate monitoring system to insure that it remains in compliance with all
federal, state and local laws, rules and regulations applicable to it.
5.1.16. Restrictions. No Borrower nor any of its Subsidiaries is a
party or subject to any contract, agreement, or charter or other corporate
restriction, which materially and adversely affects its business or the use or
ownership of any of its Real Property. No Borrower nor any of its Subsidiaries
is a party or subject to any contract or agreement which restricts its right or
ability to incur Indebtedness, other than as set forth on Exhibit G hereto, none
of which prohibit the execution of or compliance with this Agreement or the
other Loan Documents by Borrowers or any of their Subsidiaries, as applicable.
5.1.17. Litigation. Except as set forth on Exhibit H hereto, there
are no actions, suits, proceedings or investigations pending, or to the
knowledge of any Borrower, threatened, against or affecting any Borrower or any
of such Borrower's Subsidiaries, that would, if adversely determined, have a
material adverse effect on the business, operations, Properties, prospects,
profits or condition (financial or otherwise) of the Borrowers taken as a whole.
No Borrower nor any of such Xxxxxxxx's Subsidiaries is in default with respect
to any order, writ,
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injunction, judgment, decree or rule of any court, governmental authority or
arbitration board or tribunal.
5.1.18. No Defaults. No event has occurred and no condition exists
which would, upon or after the execution and delivery of this Agreement or
Borrowers' performance hereunder, constitute a Default or an Event of Default.
No Borrower nor any of its Subsidiaries is in default, and no event has occurred
and no condition exists which constitutes, or which with the passage of time or
the giving of notice or both would constitute, a default in the payment of any
Indebtedness to any Person for Money Borrowed.
5.1.19. Leases. Exhibit I hereto is a complete listing of all real
estate leases of each Borrower and each of its Subsidiaries affecting the Real
Property. Each Borrower and each of its Subsidiaries is in full compliance with
all of the terms of each of its respective real estate leases.
5.1.20. Trade Relations. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship between Borrowers or any of their Subsidiaries and any
customer or any group of customers whose purchases individually or in the
aggregate are material to the business of Borrowers or any of their
Subsidiaries, or with any material supplier, and there exists no present
condition or state of facts or circumstances which would materially affect
adversely any Borrower or any of such Borrower's Subsidiaries or prevent any
Borrower or any of such Borrower's Subsidiaries from conducting such business
after the consummation of the transaction contemplated by this Agreement in
substantially the same manner in which it has heretofore been conducted.
5.2. Continuous Nature of Representations and Warranties. Each
representation and warranty contained in this Agreement and the other Loan
Documents shall be continuous in nature and shall remain accurate, complete and
not misleading at all times during the term of this Agreement, except for
changes in the nature of any Borrower's or any Borrower's Subsidiaries' business
or operations that would render the information in any exhibit attached hereto
either inaccurate, incomplete or misleading, so long as Lender has consented to
such changes or such changes are expressly permitted by this Agreement.
5.3. Survival of Representations and Warranties. All representations and
warranties of Borrowers contained in this Agreement or any of the other Loan
Documents shall survive the execution, delivery and acceptance thereof by Xxxxxx
and the parties thereto and the closing of the transactions described therein or
related thereto.
SECTION 6. COVENANTS AND CONTINUING AGREEMENTS
6.1. Affirmative Covenants. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, each Borrower
covenants that, unless otherwise consented to by Lender in writing, it shall:
6.1.1. Visits and Inspections. Permit representatives of Xxxxxx,
from time to time, as often as may be reasonably requested, but only during
normal business hours or at any
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time and without notice if a Default or an Event of Default has occurred and is
continuing, to visit and inspect the Real Property of each Borrower and each of
its Subsidiaries, inspect, audit and make extracts from its books and records,
and discuss with its officers, employees and independent accountants, such
Borrower's and its Subsidiaries' business, assets, liabilities, financial
condition, business prospects and results of operations.
6.1.2. Notices. Promptly notify Lender in writing of the occurrence
of any event or the existence of any fact which renders any representation or
warranty in this Agreement or any of the other Loan Documents inaccurate,
incomplete or misleading.
6.1.3. Financial Statements. Keep, and cause each Subsidiary to
keep, adequate records and books of account with respect to its business
activities in which proper entries are made in accordance with GAAP reflecting
all its financial transactions; and cause to be prepared and furnished to Lender
the following (all to be prepared in accordance with GAAP on a first-in,
first-out basis for Borrowers' interim financial statements and on a last-in,
first-out basis for Borrowers' audited financial statements, applied on a
consistent basis, unless Borrowers' certified public accountants concur in any
change therein and such change is disclosed to Lender and is consistent with
GAAP):
(i) not later than ninety (90) days after the close of each fiscal
year of Borrowers, unqualified, audited financial statements of Borrowers and
their Subsidiaries as of the end of such year, on a Consolidated basis,
certified by a firm of independent certified public accountants of recognized
standing selected by Borrowers but reasonably acceptable to Xxxxxx (except for a
qualification for a change in accounting principles with which the accountant
concurs) together with consolidating financial statements prepared by management
of Borrowers in accordance with GAAP;
(ii) not later than thirty (30) days after the end of each fiscal
quarter hereafter, unaudited, interim financial statements of Borrowers and
their Subsidiaries as of the end of such fiscal quarter and of the portion of
Borrowers' financial year then elapsed, on a Consolidated and consolidating
basis, certified by the principal financial officer of Borrowers as prepared in
accordance with GAAP and fairly presenting the Consolidated financial position
and results of operations of Borrowers and their Subsidiaries for such period
subject only to changes from audit and year-end adjustments and except that such
statements need not contain notes;
(iii) promptly after the sending or filing thereof, as the case may
be, copies of any proxy statements, financial statements or reports which any
Borrower has made available to its shareholders (or members, in the case of a
limited liability company) and copies of any regular, periodic and special
reports or registration statements which any Borrower files with the Securities
and Exchange Commission or any governmental authority which may be substituted
therefore, or any national securities exchange;
(iv) upon Xxxxxx's request promptly after the filing thereof, copies
of any annual report to be filed under ERISA in connection with each Plan; and
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(v) such other data and information (financial and otherwise) as
Lender, from time to time, may reasonably request, bearing upon or related to
the Collateral or Borrowers' and each of their Subsidiaries' financial condition
or results of operations.
Concurrently with the delivery of the financial statements described
in clause (i) of this subsection 6.1.3, Borrowers shall forward to Lender a copy
of the accountants' letter to Borrowers' management that is prepared in
connection with such financial statements. Concurrently with the delivery of the
financial statements described in clauses (i) and (ii) of this subsection 6.1.3,
or more frequently if requested by Xxxxxx, Borrowers shall cause to be prepared
and furnished to Lender a Compliance Certificate in the form of Exhibit J hereto
executed by the Chief Financial Officer of UNF.
6.1.4. Guarantor Financial Statements. Deliver or cause to be
delivered to Lender financial statements for the Guarantors as consolidated as a
group with NRG, in form and substance reasonably satisfactory to Lender at such
intervals and covering such time periods as Lender may request.
6.1.5. Projections. No later than the first day of each fiscal year
of Borrowers, deliver to Lender Projections of Borrowers for the forthcoming
three (3) years, year by year, and for the forthcoming fiscal year, month by
month.
6.1.6. Taxes and Liens. Pay and discharge, and cause each Subsidiary
to pay and discharge, all taxes, assessments and government charges upon it, its
income and Property as and when such taxes, assessments and charges are due and
payable, unless and to the extent only that such taxes, assessments and charges
are being contested in good faith and by appropriate proceedings and Borrowers
maintain reasonable reserves on their books therefor. Borrowers shall also pay
and discharge any lawful claims which, if unpaid, might become a Lien against
any of the Borrowers' Property except for Permitted Liens.
6.1.7. Tax Returns. File, and cause each Subsidiary of the Borrowers
to file, all federal, state and local tax returns and other reports the
Borrowers or each Subsidiary of the Borrowers are required by law to file and
maintain adequate reserves for the payment of all taxes, assessments,
governmental charges, and levies imposed upon them, their income, or their
profits, or upon any Properties belonging to them.
6.1.8. Business and Existence. Preserve and maintain, and cause each
Subsidiary of the Borrowers to preserve and maintain, its separate corporate
existence and all rights, privileges, and franchises in connection therewith,
and maintain, and cause each Subsidiary of the Borrowers to maintain, its
qualification and good standing in all states in which such qualification is
necessary in order for the Borrower or their Subsidiaries to conduct business in
such states.
6.1.9. Maintain Real Property. Maintain and cause each Subsidiary of
the Borrowers to maintain its Real Property in good condition and make, and
cause each Subsidiary of the Borrowers to make all necessary renewals, repairs,
replacements, additions or improvements thereto.
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6.1.10. Compliance with Laws. Comply, and cause each Subsidiary to
comply, with all laws, ordinances, governmental rules and regulations to which
it is subject, and obtain and keep in force any and all licenses, permits,
franchises, or other governmental authorizations necessary to the ownership of
its Real Property or the conduct of its business, which violation or failure to
obtain might materially and adversely affect the business, prospects, profits,
properties, or condition (financial or otherwise) of the Borrowers, taken as a
whole.
6.1.11. ERISA Compliance. (i) At all times make prompt payment of
contributions required to meet the minimum funding standard set forth in ERISA
with respect to each Plan; and (ii) notify Lender as soon as practicable of any
Reportable Event and of any additional act or condition arising in connection
with any Plan which the Borrowers believe might constitute grounds for the
termination thereof by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a Trustee to
administer the Plan.
6.1.12. Appraisals. At Lender's request, but no more often than once
every three years, obtain subsequent appraisals or updates to the Original
Appraisals of the Real Estate, at Borrowers' expense, in form and substance
satisfactory to Lender until such time as the Obligations are paid in full,
provided however, (i) after an Event of Default occurs, (ii) if at any time
Lender believes, for any reason, that the fair market value of the Real Property
may have decreased or (iii) after a material casualty or condemnation occurs
with respect to any of the Real Property and Lender is obligated to release
insurance proceeds or condemnation awards to Borrowers, Borrower shall be
required to obtain any and all such appraisals or updates as requested by
Xxxxxx.
6.1.13. Further Assurances. At Lender's request, promptly execute or
cause to be executed and delivered to Lender any and all documents, instruments
and agreements deemed necessary by Lender to give effect to or carry out the
terms or intent of this Agreement or any of the Loan Documents.
6.1.14. Interest Rate Protection. Until the Indebtedness under the
Term Loan is paid in full, maintain an interest rate hedging agreement
acceptable to Lender, with a notional amount equal to the principal amount
outstanding under the Term Loan. Such interest rate hedging agreement shall
create an interest rate swap arrangement with an "all in" rate of 5.18% per
annum.
6.2. Negative Covenants. During the term of this Agreement, and thereafter
for so long as there are any Obligations to Lender, each Borrower covenants
that, unless, Xxxxxx has first consented thereto in writing, it will not:
6.2.1. Mergers; Consolidations; Acquisitions. Merge or consolidate
or permit any Subsidiary of Borrowers to merge or consolidate, with any Person
(except for mergers or consolidations among the Borrowers or mergers or
consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or
permit any of its Subsidiaries to acquire all or any substantial part of the
Property or stock or securities of any Person except that, so long as no Default
or Event of Default exists or has occurred and is continuing, Borrowers may
purchase
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businesses in the lines of business conducted by the Borrowers which Borrowers
have determined, in their reasonable business judgment, would enhance the
business, operations, prospects and condition (financial or otherwise) of the
Borrowers provided that each of the following conditions are satisfied: (a) not
more than $5,000,000, or such greater amount as allowed under the Working
Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or
incurred Indebtedness by Borrowers in respect of all acquisitions and/or
investments made in any such fiscal year; (b) prior to entering into any
agreement or undertaking with respect to any such acquisition or investment,
Borrowers shall prepare and submit to Lender pro forma balance sheets and income
statements for the entity to be acquired and consolidated with the Borrowers
demonstrating to the satisfaction of Lender continuing compliance with all the
covenants in Section 6.3 for the next twelve (12) fiscal months; (c) the
Borrowers shall furnish to the Lender notice and copies of any letter of intent
or other memorandum of understanding and purchase documents for any acquisition
they may contemplate and allow Lender and its representatives reasonable access
to financial information and the assets and Properties to be acquired. The
Lender agrees to enter into confidentiality agreements with the Persons that
Borrower may acquire on terms mutually agreeable to Lender and such Person.
6.2.2. Loans. Make, or permit any Subsidiary of Borrowers to make,
any loans or other advances of money (other than for salary, travel advances,
advances against commissions and other similar advances in the ordinary course
of business or as existing on the Closing Date and disclosed on Exhibits hereto)
to any Person; provided, however, that Borrowers may accept promissory notes for
loans to their customers in the normal course of business to the extent not
prohibited by the terms of this Agreement and Borrowers may make loans or other
advances of money between and among the Borrowers and the Guarantors in the
ordinary course of business.
6.2.3. Total Indebtedness. Create, incur, assume, or suffer to
exist, or permit any Subsidiary of any Borrower to create, incur or suffer to
exist, any Indebtedness, except:
(i) Obligations owing to Lender hereunder;
(ii) Trade payables and normal expense accruals in the ordinary
course of business, not yet due and payable, or with respect to which a Borrower
is contesting in good faith the amount or the validity thereof in appropriate
proceedings diligently pursued and with respect to which adequate reserves have
been set aside on its books;
(iii) Indebtedness attributable to the ESOP notes to the extent that
such Indebtedness is attributable to UNF in accordance with GAAP;
(iv) Indebtedness attributable to the Working Capital Facility;
(v) Contingent liabilities arising out of endorsements of checks and
other negotiable instruments for deposit or collection in the ordinary course of
business;
(vi) Indebtedness otherwise permitted under Subsection 6.2.1;
(vii) Unsecured Indebtedness incurred among the Borrowers; and
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(viii) Permitted Purchase Money Indebtedness;
(ix) Indebtedness not included in paragraphs (i) through (vii) above
which is not secured by any Lien and does not exceed at any time, in the
aggregate $5,000,000, or such greater amount as allowed under the Working
Capital Facility, as to all Borrowers and their Subsidiaries.
6.2.4. Affiliate and Subsidiary Transactions. Enter into, or be a
party to, or permit any Subsidiary of a Borrower to enter into or be a party to,
any transaction with any Affiliate of any Borrower or stockholder of any
Borrower except in the ordinary course of and pursuant to the reasonable
requirements of such Borrowers or such Subsidiary's business and upon fair and
reasonable terms which are no less favorable to Borrower than would obtain in a
comparable arm's length transaction with a Person not an Affiliate or
stockholder of Borrowers or such Subsidiary.
6.2.5. Limitation on Liens. Create or suffer to exist, or permit any
Subsidiary of Borrowers to create or suffer to exist, any Lien upon any
Property, income or profits, whether now owned or hereafter acquired, except:
(i) Liens at any time granted in favor of Lender pursuant hereto;
(ii) Liens for taxes (excluding any Lien imposed pursuant to any of
the provisions of ERISA) not yet due, or being contested in the manner described
in subsection 5.1.12. hereto, but only if in Xxxxxx's judgment such Lien does
not adversely affect Xxxxxx's rights or the priority of Xxxxxx's Lien in the
Collateral;
(iii) Liens arising in the ordinary course of Borrowers' business by
operation of law or regulation, but only if payment in respect of any such Lien
is not at the time required and such Liens do not, in the aggregate, materially
detract from the value of the Property of Borrowers or materially impair the use
thereof in the operation of Borrowers' business;
(iv) Liens securing Indebtedness of any one of Borrowers'
Subsidiaries to Borrowers or another such Subsidiary;
(v) such other Liens as appear on Exhibit K hereto;
(xx) Xxxxx granted in favor of FCC, as agent, under the Working
Capital Facility and as allowed under the Intercreditor Agreement;
(vii) attachment, judgment, and other similar non-tax liens arising
in connection with court proceedings, but only if and for so long as the
execution or other enforcement of such liens is and continues to be effectively
stayed and bonded on appeal, the validity and amount of the claims secured
thereby are being actively contended in good faith and by appropriate lawful
proceedings and such liens do not, in the aggregate, materially detract from the
value of the Property of the Borrowers or materially impair the use thereof in
the operation of the Borrowers' business;
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(viii) reservations, exceptions, easements, rights of way, and other
similar encumbrances effecting real property, provided that, in Xxxxxx's sole
judgment, they do not in the aggregate materially detract from the value of said
Properties or materially interfere with their use in the ordinary conduct of the
Borrowers' business and, if said real property constitutes Collateral, Lender
has consented thereto; and
(ix) such other Liens as Lender may hereafter approve in writing.
6.2.6. Subordinated Debt. Issue or enter into any agreement to issue
Subordinated Debt except upon terms and provisions relating to the maturity and
repayment thereof and terms relating to the subordination of payment thereof to
the Obligations, in each case reasonably acceptable to the Lender.
6.2.7. Distributions. Declare or make, or permit any Subsidiary of
Borrowers to declare or make, any Distributions except Distributions made by a
wholly-owned Subsidiary of a Borrower to such Borrower in the ordinary course of
business.
6.2.8. Disposition of Assets. Sell, lease or otherwise dispose of
any of, or permit any Subsidiary of any Borrower to sell, lease or otherwise
dispose of any of, its Real Property, including any disposition of Real Property
as part of a sale and leaseback transaction, to or in favor of any Person,
except (i) sales of inventory in the ordinary course of business for so long as
no Event of Default exists hereunder, (ii) a transfer of Real Property to any
Borrower by a Subsidiary of such Borrower or (iii) dispositions expressly
authorized by this Agreement or (iv) dispositions of real estate not listed on
Exhibit L.
6.2.9. Stock of Subsidiaries. Permit any of Borrowers' Subsidiaries
to issue any additional shares of its capital stock except director's qualifying
shares.
6.2.10. Restricted Investment. Make or have, or permit any
Subsidiary of Borrowers to make or have, any Restricted Investment.
6.2.11. Tax Consolidation. File or consent to the filing of any
consolidated income tax return with any Person other than a Subsidiary of
Borrowers.
6.2.12. Business Locations. Transfer its principal place of business
or chief executive office, or open any new business location, except upon at
least thirty (30) days prior written notice to Lender and after delivery to
Lender of financing statements if required by Xxxxxx in form satisfactory to
Lender to perfect or continue the perfection and priority of Xxxxxx's Lien and
security interest hereunder.
6.2.13. Guaranties. Except as set forth in Exhibit M hereto,
guaranty, assume, endorse or otherwise, in any way, become directly or
contingently liable with respect to the Indebtedness of any Person except by
endorsement or instrument or items of payment for deposit or collection,
provided, however, that the Borrowers may (a) enter into guaranties in the
ordinary course of business of indebtedness and obligations incurred by Borrower
and their Subsidiaries and (b) make payments (but not prepayments) of principal
and interest when due under the terms
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of the ESOP Notes to the extent that no Default or Event of Default shall have
occurred and be continuing at the time of or hereafter giving effect to any such
payment (c) guaranties on an unsecured basis of the obligations of Subsidiaries
established to make acquisitions or investments permitted under Subsection 6.2.1
hereof.
6.2.14. Adverse Transactions. Enter into any transaction or permit
any Subsidiary to enter into any transaction, which materially and adversely
affects or may materially adversely affect the Collateral or the Borrowers'
ability to repay the Obligations.
6.2.15. Subsidiaries. Hereafter create any Subsidiary except as
provided in Subsection 6.2.1 hereof.
6.2.16. Change of Business. Enter into any new business or make any
material change in any of Borrowers' business objectives, purposes and
operations.
6.2.17. Name of Borrowers. Use any corporate name (other than its
own) or any fictitious name, trade style or "d/b/a" except for the names
disclosed on Exhibit E attached hereto.
6.2.18. Use of Lender's Name. Without prior written consent of
Lender, use the name of Lender or the name of any Affiliates of Lender in
connection with any of the Borrowers' business or activities, except in
connection with internal business matters, as required in dealings with
governmental agencies and financial institutions and to trade creditors of the
Borrowers solely for credit reference purposes.
6.2.19. Margin Securities. Own, purchase or acquire (or enter into
any contracts to purchase or acquire) any "margin security" as defined by any
regulation of the Federal Reserve Board as now in effect or as the same may
hereafter be in effect unless, prior to any such purchase or acquisition or
entering into any such contract, Lender shall have received an opinion of
counsel satisfactory to Lender that the effect of such purchase or acquisition
will not cause this Agreement to violate regulations (G) or (U) or any other
regulations of the Federal Reserve Board then in effect.
6.2.20. Fiscal Year. Change the fiscal year of Borrowers' or any of
Borrowers' Subsidiaries.
6.3. Specific Financial Covenants. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, UNF covenants
that, unless otherwise consented to by Lender in writing, it shall:
6.3.1. Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio, on a Consolidated basis, of not less than 1.45 calculated at the end of
each fiscal quarter on a rolling four quarter basis.
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6.3.2. Minimum Net Worth. Maintain a Net Worth, on a Consolidated
basis, of not less than the amounts set forth below determined at the end of
each fiscal quarter:
--------------------------------------------------------------------------------
Net Worth Fiscal Quarter End
--------------------------------------------------------------------------------
$155,000,000, plus (a) 25% of the At each fiscal quarter end commencing
Consolidated net earnings of UNF for with the fiscal quarter ending July
each fiscal quarter, after the quarter 31, 2003
ending January 31, 2003, determined in
accordance with GAAP, and (b) 100% of
the net proceeds of any private or
public offering of common or preferred
stock of the Borrowers issued after
January 31, 2003
--------------------------------------------------------------------------------
6.3.3. Loan To Value. The Borrowers shall maintain a Loan-to-Value
ratio on the Closing Date and thereafter of not less than seventy-five percent
(75%). "Loan-to-Value Ratio" shall mean the ratio, expressed as a percentage, of
(a) the outstanding principal balance plus any accrued but unpaid interest under
the Term Note, divided by (b) the Mortgaged Property Value. The "Mortgaged
Property Value" shall mean the fair market value of the Real Property based upon
the final appraisals delivered to and accepted by Lender in connection with the
Term Loan (the "Original Appraisals"), as such Mortgaged Property Value may
hereafter be changed by an update to any or all of the Original Appraisals
ordered by and acceptable to Lender. As of the date hereof, the Mortgaged
Property Value is $61,300,000.
SECTION 7. CONDITIONS PRECEDENT
7.1. Conditions Precedent to Credit Extensions. Notwithstanding any other
provision of this Agreement or any of the other Loan Documents, and without
affecting in any manner the rights of Lender under the other sections of this
Agreement, Lender shall not be required to make the Term Loan under this
Agreement unless and until each of the following conditions has been and
continues to be satisfied:
7.1.1. Documentation. Lender shall have received, in form and
substance satisfactory to Lender, a duly executed copy of this Agreement and the
other Loan Documents, together with such additional documents, instruments and
certificates as Lender shall require in connection therewith from time to time,
all in form and substance satisfactory to Lender and its counsel.
7.1.2. No Default. No Default or Event of Default shall exist.
7.1.3. Other Loan Documents. Each of the conditions precedent set
forth in the other Loan Documents shall have been satisfied.
7.1.4. Corporate Documents. The receipt by the Lender of (i)
certified copies of the charter and by-laws (or equivalent constitutional
documents) of each Borrower and each Guarantor, (ii) a long-form good standing
certificate issued by the Secretary of State of the
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jurisdiction of incorporation or organization of each Borrower and each
Guarantor and (iii) certified copies of all corporate or partnership authority
for each Borrower and each Guarantor (including, without limitation, board of
director resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery and performance
of such of the Loan Documents to which such Borrower or each Guarantor is
intended to be a party and each other document to be delivered by such Borrower
or each Guarantor from time to time in connection herewith (and the Lender may
conclusively rely on such certificate until it receives notice in writing from
such Borrower or each Guarantor to the contrary).
7.1.5. Opinions of Counsel to the Borrowers. The receipt by the
Lender of an opinion, dated the Closing Date, of (i) Xxxxxxx & Xxxxxxxxx LLP,
counsel to the Borrowers and Guarantors, covering such matters as the Lender may
reasonably request and (ii) local counsel to the Borrowers in the jurisdictions
where the Real Property is located, covering such matters as Lender may
reasonably request.
7.1.6. Note. The receipt by the Lender of the executed Term Note.
7.1.7. Repayment of Existing Indebtedness. The Lender shall have
received from any Person holding any Lien on the Real Property, such Uniform
Commercial Code termination statements, mortgage releases and other instruments,
in each case in proper form for recording, as the Lender shall have requested to
release and terminate of record the Liens (or arrangements for such release and
termination satisfactory to the Lender shall have been made).
7.1.8. No Adverse Litigation or Proceeding. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any court, governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain damages in respect of, or which is related to
or arises out of this Agreement, the Collateral or the consummation of the
transactions contemplated hereby or which could have a material adverse effect
on the Borrowers or any subsidiary of any Borrower.
7.1.9. Consents, Etc. The receipt by the Lender of a certificate of
a senior officer of each Borrower to the effect that, on and as of the Closing
Date, all necessary governmental and third party consents and approvals in
connection with the transactions contemplated by this Agreement (including
consent of the required lenders under the Working Capital Line) have been
obtained and remain in effect and that all applicable waiting periods have
expired.
7.1.10. Payment of Fees. The payment by the Borrowers of such fees
as the Borrowers shall have agreed to pay or deliver to Lender in connection
herewith, including, without limitation, commitment fees due to the Lender, and
the reasonable fees and expenses of Xxxxx Xxxxxxx Xxxxxxx Israels LLP, special
counsel to Lender in connection with the negotiation, preparation, execution and
delivery of this Agreement and the Note and the other Loan Documents (to the
extent that statements for such fees and expenses have been delivered to the
Borrowers).
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7.1.11. Capital Structure. Evidence that the capital structure of
each of the Borrowers is satisfactory to Lender.
7.1.12. Due Diligence. Satisfactory completion by Lender of
financial, business, environmental, title and collateral due diligence
including, without limitation, receipt of (i) Phase I environmental reports on
each of the Real Property and Phase II environmental reports required by Xxxxxx,
(ii) appraisals of the Real Property, in form and substance satisfactory to
Lender, (iii) ALTA instrument surveys and surveyors certificates, satisfactory
to Lender, and (iv) satisfactory completion of legal due diligence by Xxxxxx's
legal counsel.
7.1.13. Labor Relations. All collective bargaining agreements are in
full force and effect and no material grievances, disputes or controversies
exist with any union or any other organization of any of Borrowers' or any
Subsidiary of any Borrower's employees, and there exist no threats of strikes,
work stoppages or any asserted or pending demands for collective bargaining by
any union or organization.
7.1.14. Financial Statements. Receipt by Xxxxxx of all financial
information and projections requested by Xxxxxx in form, substance and detail
satisfactory to Lender.
7.1.15. No Material Adverse Change. Since January 31, 2003, there
shall not have occurred any material adverse change in the business, operations
or condition (financial or otherwise) of any Borrower or any of its
Subsidiaries, or the existence or value of any Collateral or any event,
condition or state of facts which would reasonably be expected to materially and
adversely affect the business, operations or conditions (financial or otherwise)
of any Borrower or any of its Subsidiaries.
7.1.16. Insurance. Borrowers shall deliver to Lender copies of
Borrowers' casualty insurance policies, together with certificates of insurance
evidencing loss payable endorsements on Xxxxxx's standard forms of loss payee
and mortgagee endorsements naming Xxxxxx as loss payee or mortgagee, as
applicable, and certified copies of Borrowers' liability insurance policies,
together with endorsements showing Lender as an additional insured.
7.1.17. Title Insurance. Borrowers shall obtain title insurance from
title insurers acceptable to Lender, insuring the Mortgages in such amount and
in such form (including endorsements) as reasonably required by Lender, subject
to exceptions as may be reasonably acceptable to Lender.
7.1.18. Zoning Compliance and Certificates of Occupancy. Borrowers
shall provide Lender with Certificates of Occupancy and zoning compliance
letters for each Real Property.
7.1.19. Other Documents. Such other documents as the Lender or
counsel to Lender may reasonably request, including, but not limited to, an
Intercreditor Agreement in form and substance satisfactory to Lender with the
Agent for the Working Capital Facility, and an interest rate hedge agreement in
form satisfactory to Lender.
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SECTION 8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
8.1. Events of Default. The occurrence of one or more of the following
events shall constitute an "Event of Default":
8.1.1. Payment of Note. Borrowers shall fail to pay any installment
of principal, interest or premium, if any, owing on the Term Note on or within
two (2) Business Days after the due date of such installment.
8.1.2. Payment of Other Obligations. Borrowers shall fail to pay any
of the Obligations that are not evidenced by the Term Note on the due date
thereof (whether due at stated maturity, on demand, upon acceleration or
otherwise).
8.1.3. Misrepresentations. Any representation, warranty or other
statement made or furnished to Lender by or on behalf of Borrowers, any
Subsidiary of Borrowers, or Guarantor in this Agreement, any of the other Loan
Documents or any instrument, certificate or financial statement furnished in
compliance with or in reference thereto proves to have been false or misleading
in any material respect when made or furnished.
8.1.4. Breach of Specific Covenants. Borrowers shall fail or neglect
to perform, keep or observe any covenant contained in Sections 4.1, 4.2, 4.3,
6.1, or 6.2 hereof on the date that Borrowers are required to perform, keep or
observe such covenant.
8.1.5. Breach of Other Covenants. Borrowers shall fail or neglect to
perform, keep or observe any covenant contained in this Agreement (other than a
covenant which is dealt with specifically elsewhere in Section 8.1 hereof) and
the breach of such other covenant is not cured to Lender's satisfaction within
thirty (30) days after the sooner to occur of Borrowers' receipt of notice of
such breach from Lender or the date on which such failure or neglect first
becomes known to any officer of Borrowers.
8.1.6. Default Under Security Documents/Other Agreements. Any event
of default shall occur under, or Borrowers shall default in the performance or
observance of any term, covenant, condition or agreement contained in, any of
the Security Documents or the Other Agreements and such default shall continue
beyond any applicable grace period.
8.1.7. Other Defaults. There shall occur any default or event of
default on the part of Borrowers under any agreement, document or instrument to
which any Borrower is a party or by which any Borrower or any of its Real
Property is bound, creating or relating to any Indebtedness (other than the
Obligations) in excess of $250,000 if the payment or maturity of such
Indebtedness is accelerated in consequence of such event of default or demand
for payment of such Indebtedness is made.
8.1.8. Uninsured Losses. Any material loss, theft, damage or
destruction of any of the Collateral not fully covered (subject to such
deductibles as Lender shall have permitted) by insurance.
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8.1.9. Adverse Changes. There shall occur any material adverse
change in the financial condition or business prospects of Borrowers or any
Guarantor, which may, as determined by Lender, in its sole discretion, affect
the ability of the Borrowers and Guarantors to repay the Obligations when due
and payable.
8.1.10. Insolvency and Related Proceedings. Any Borrower or any
Guarantor shall cease to be Solvent or shall suffer the appointment of a
receiver, trustee, custodian or similar fiduciary, or shall make an assignment
for the benefit of creditors, or any petition for an order for relief shall be
filed by or against any Borrower or any Guarantor under the Bankruptcy Code (if
against any Borrower or any Guarantor, the continuation of such proceeding for
more than thirty (30) days), or any Borrower or any Guarantor shall make any
offer of settlement, extension or composition to their respective unsecured
creditors generally.
8.1.11. Business Disruption; Condemnation. There shall occur a
cessation of a substantial part of the business of any Borrower, any Subsidiary
of any Borrower or any Guarantor for a period which significantly affects such
Borrower's or such Guarantor's capacity to continue its business, on a
profitable basis; or any Borrower, any Subsidiary of any Borrower or any
Guarantor shall suffer the loss or revocation of any license or permit now held
or hereafter acquired by any Borrower or such Guarantor which is necessary to
the continued or lawful operation of its business; or any Borrower or any
Guarantor shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any material part of
its business affairs; or any material lease or agreement pursuant to which any
Borrower or any Guarantor leases, uses or occupies any Property shall be
canceled or terminated prior to the expiration of its stated term; or any part
of the Collateral shall be taken through condemnation or the value of such
Property shall be impaired through condemnation; and with respect to the
occurrence of any of the above such events, Lender determines, in its sole
discretion, that such occurrence may affect the ability of the Borrowers and
Guarantors to repay the Obligations when due and payable.
8.1.12. Fundamental Change. (a) There shall occur a Fundamental
Change with respect to UNF. A Fundamental Change shall mean any of the
following:
(i) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), becoming the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of Voting Stock of UNF entitled to exercise more than 50% of the
total voting power of all outstanding Voting Stock of UNF (including any right
to acquire Voting Stock that are not then outstanding of which such person or
group is deemed the beneficial owner); or
(ii) a change in the Board of Directors in which the individuals who
constituted the Board of Directors at the beginning of the one-year period
immediately preceding such change (together with any other director whose
election by the Board of Directors or whose nomination for election by the
shareholders of UNF was approved by a vote of at least two-thirds of the
directors then in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors then in office;
or
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(iii) any consolidation of UNF with, or merger of UNF into, any
other Person, any merger of another Person into UNF, or any sale or transfer of
all or substantially all of the assets of UNF to another Person (other than (v)
a merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of capital stock, (w) a merger which is
effected solely to change the jurisdiction of incorporation of UNF, (x) any
consolidation with or merger of UNF into a Subsidiary of UNF, or any sale or
transfer by UNF of all or substantially all of its assets to one or more of its
Subsidiaries, in any one transaction or a series of transactions, provided, in
any such case, that the resulting corporation or each such Subsidiary assumes
the Obligations under the Loan Documents; or (y) a merger or consolidation in
which the holders of UNF's Voting Stock immediately prior to such event continue
to hold more than 50% of the Voting Stock outstanding immediately after such
event; or (z) a transaction permitted under subsection 6.2.1); or
(iv) a change in control or any change in the ownership of any
Borrower other than UNF of any Subsidiary of any Borrower shall occur such that
UNF shall cease to own and control directly or indirectly 100% of the issued and
outstanding voting stock (or membership interest if such Borrower or Subsidiary
is a limited liability company).
8.1.13. ERISA. A Reportable Event shall occur which Lender, in its
sole discretion, shall determine in good faith constitutes grounds for the
termination by the Pension Benefit Guaranty Corporation of any Plan or for the
appointment by the appropriate United States district court of a trustee for any
Plan, or if any Plan shall be terminated or any such trustee shall be requested
or appointed, or if any Borrower, any Subsidiary of any Borrower or any
Guarantor is in "default" (as defined in Section 4219(c)(5) of ERISA) with
respect to payments to a Multi-employer Plan resulting from Borrower's, such
Subsidiary's or such Guarantor's complete or partial withdrawal from such Plan.
8.1.14. Challenge to Agreement. Any Borrower, any Subsidiary of any
Borrower or any Guarantor, or any Affiliate of any of them, shall challenge or
contest in any action, suit or proceeding the validity or enforceability of this
Agreement, or any of the other Loan Documents, the legality or enforceability of
any of the Obligations or the perfection or priority of any Lien granted to
Lender.
8.1.15. Repudiation of or Default Under Guaranty Agreement. Any
Guarantor shall revoke or attempt to revoke the Guaranty Agreement signed by
such Guarantor, or shall repudiate such Guarantor's liability thereunder or
shall be in default under the terms thereof.
8.1.16. Criminal Forfeiture. Any Borrower, any Subsidiary of any
Borrower or any Guarantor shall be criminally indicted or convicted under any
law that could lead to a forfeiture of any Property of any Borrower, any
Subsidiary of any Borrower or any Guarantor.
8.1.17. Judgments. Any money judgment, writ of attachment or similar
process is filed against any Borrower, any Subsidiary of any Borrower or any
Guarantor, or any of their respective Property in an amount in excess of
$250,000 and such judgment, attachment or similar process is not satisfied or
stayed on appeal within thirty (30) days.
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8.1.18. Working Capital Facility. There shall occur any default or
event of default on the part of any or all of Borrowers under the Working
Capital Facility.
8.2. Acceleration of the Obligations. Upon or at any time after the
occurrence of an Event of Default, all or any portion of the Obligations shall,
at the option of Lender and without presentment, demand, protest or further
notice by Xxxxxx, become at once due and payable and Borrowers shall forthwith
pay to Lender, the full amount of such Obligations, provided, that upon the
occurrence of an Event of Default specified in subsection 8.1.10 hereof, all of
the Obligations shall become automatically due and payable without declaration,
notice or demand by Lender.
8.3. Other Remedies. Upon the occurrence of any Event of Default, the
Lender shall have and may exercise any one or more of the following rights and
remedies:
8.3.1. Foreclosure. The Lender may foreclose the Mortgages and
exercise its rights as a secured party for all or any portion of the
Indebtedness which is then due and payable, subject to the continuing lien of
the Mortgages for the balance not then due and payable. Lender, upon acquiring
the Property or any part thereof, shall be entitled to hold, deal with and sell
the same in any manner permitted by law.
8.3.2. Possession Of Real Property; Appointment Of Receiver.
A. The Lender may, at its option (1) enter upon and take possession
and control of the Real Property and the Property Income with those rights and
powers more particularly set forth in subsection C. below; (2) make application
to a court of competent jurisdiction for and obtain the immediate ex parte
appointment of a receiver authorized to immediately enter upon and take
possession and control of the Real Property and the Property Income with those
rights and powers more particularly set forth in subsection C. below; and (3)
without taking possession and control of the Property, immediately commence
action to collect directly all Property Income in the place and stead of the
Borrower with full rights and powers to notify all parties liable to make
payments of Property Income to make said payments directly to the Lender or its
agents, and the Lender or its agents shall have the further power and authority
to sue for or otherwise collect and receive all Property Income.
B. The Borrowers hereby waive to the fullest extent permitted by law
all rights to prior notice or court hearing in connection with any action by the
Lender of the types set forth in subsection A., and the Borrowers further waives
any requirement that Lender provide any bond, surety, or other security in
connection with any said action.
C. In the event the Lender or a receiver enters upon and takes
possession and control of the Real Property and/or the Property Income pursuant
to subsection A., said person or entity shall, in addition to such other rights
and powers as may subsequently be authorized, have the right and power to (1)
operate, manage and control the Real Property and exercise all the rights and
powers of the Borrowers in its name or otherwise with respect to the same; (2)
make all necessary and proper maintenance, repairs, replacements, and
improvements to the Real Property; (3) collect and receive all Property Income;
and (4) enforce all terms of existing
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contracts pertaining to the Real Property and enter into such new contracts as
the Lender or the receiver may reasonably determine necessary in its sole
discretion.
D. All Property Income collected by the Lender, the Lender's agent
or a receiver pursuant to subsection A. shall be applied in such order of
priority as the Lender may determine in its sole discretion to (1) interest and
principal due on the Indebtedness; (2) taxes, assessments and insurance premiums
due with respect to the Real Property and/or the business operations conducted
from the Real Property; (3) all costs and expenses of operating, maintaining,
repairing and improving the Real Property; and (4) the compensation, salaries,
expenses and disbursements of any agents, employees, attorneys or other
representatives of the Lender, the Lender's agent or the receiver in connection
with the possession, control and/or operation of the Real Property and the
business operations conducted therefrom.
E. The Lender, its agents, or any receiver acting pursuant to
subsection A. shall in no event be liable or accountable for more monies than
actually are received from the Real Property during the period which the Lender,
its agent or any receiver actually is in possession and control of the Real
Property. Neither the Lender, its agents or any receiver shall be liable or
accountable in any manner for the failure to collect Property Income for any
reason whatsoever.
F. All costs, expenses and liabilities of every character incurred
by the Lender in managing, operating and maintaining the Real Property, not paid
from Property Income as hereinabove provided, shall constitute Lender advances
pursuant to Section 8.3.3.
G. In the event of foreclosure, the Lender, its agent or any
receiver acting pursuant to subsection A. may remain in possession of the Real
Property until (1) the foreclosure sale; (2) the redemption of the Real
Property; or (3) if a deficiency exists, the expiration of any redemption period
of the United States of America extending subsequent to the foreclosure sale.
The Lender, its agents or the receiver shall incur no liability for, nor shall
the Borrowers assert any claim or setoff as a result of, any action taken while
the Lender, its agent or a receiver is in possession of the Real Property.
8.3.3. Lender Advances. The Lender may, without notice or demand,
pay any amount which the Borrowers have failed to pay, or perform any act which
the Borrowers have failed to perform hereunder. In such event such Lender
advances, together with interest thereon from the date made, at the highest
interest rate allowed under the Term Note shall be (1) added to the
Indebtedness, (2) payable on demand to the Lender and (3) secured by the lien of
the Mortgages.
8.3.4. No Marshaling. The Lender shall not be (1) compelled to
release, or be prevented from foreclosing or enforcing the Mortgages upon all or
any part of the Real Property, unless the entire Indebtedness shall be paid; (2)
required to accept any part or parts of the Real Property, as distinguished from
the entire whole thereof, as payment of or upon the Indebtedness to the extent
of the value of such part or parts; (3) compelled to accept or allow any
apportionment of the Indebtedness to or among any separate parts of the Real
Property; or (4)
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prevented from selling the Real Property in one or more parcels or as an
entirety and in such manner and order as the Lender in its sole discretion may
elect.
8.3.5. Remedies Cumulative; Xxxxxx's Discretion. No remedy conferred
upon or reserved to the Lender hereunder is or shall be deemed to be exclusive
but shall be cumulative, and may be exercised in the sole discretion of the
Lender at any time, in any manner, and in any order, and shall be in addition to
and separate and distinct from every other remedy given the Lender under the
Mortgages, the Term Note, or any other Loan Documents, or now or hereafter
existing in favor of the Lender at law or in equity or by statute. The Lender,
in exercising any remedy provided herein under which it may make payments or
perform actions which the Borrowers have failed to do or make, may do so in its
sole discretion whenever in its opinion such payment or performance is necessary
or desirable to protect the full security intended by this Mortgage.
8.3.6. UCC Rights. Lender shall have all rights and remedies of a
secured party under the Connecticut Uniform Commercial Code (in addition to all
of its other rights and remedies) with respect to the Collateral as may be
governed by or controlled under the Connecticut Uniform Commercial Code.
8.4. Remedies Cumulative; No Waiver. All covenants, conditions,
provisions, warranties, guaranties, indemnities, and other undertakings of
Borrowers contained in this Agreement and the other Loan Documents, or in any
document referred to herein or contained in any agreement supplementary hereto
or in any schedule or in any Guaranty Agreement given to Lender or contained in
any other agreement between Lender and Borrowers, heretofore, concurrently, or
hereafter entered into, shall be deemed cumulative to and not in derogation or
substitution of any of the terms, covenants, conditions, or agreements of
Borrowers herein contained. The failure or delay of Lender to require strict
performance by Borrowers of any provision of this Agreement or to exercise or
enforce any rights, Liens, powers, or remedies hereunder or under any of the
aforesaid agreements or other documents or security or Collateral shall not
operate as a waiver of such performance, Liens, rights, powers and remedies, but
all such requirements, Liens, rights, powers, and remedies shall continue in
full force and effect until all Loans and all other Obligations owing or to
become owing from Borrowers to Lender shall have been fully satisfied. None of
the undertakings, agreements, warranties, covenants and representations of
Borrowers contained in this Agreement or any of the other Loan Documents and no
Default or Event of Default by Borrowers under this Agreement or any other Loan
Documents shall be deemed to have been suspended or waived by Lender, unless
such suspension or waiver is by an instrument in writing specifying such
suspension or waiver and is signed by a duly authorized representative of Lender
and directed to Borrowers.
Notwithstanding anything stated in O.C.G.A. 13-1-11 (Georgia code) to the
contrary, any attorney's fees which Xxxxxx is entitled to under the Loan
Documents shall be deemed to be reasonable and actually incurred attorney's
fees.
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SECTION 9. MISCELLANEOUS
9.1. Power of Attorney. Each Borrower hereby irrevocably designates,
makes, constitutes and appoints Lender (and all Persons designated by Lender) as
such Borrower's true and lawful attorney (and agent-in-fact) and Xxxxxx, or
Xxxxxx's agent, may, without notice to such Borrower and in either such
Borrower's or Lender's name, but at the cost and expense of such Borrower:
9.1.1. At such time or times upon or after the occurrence of a
Default or an Event of Default as Lender or said agent, in its sole discretion,
may determine, endorse Borrowers' name on any checks, notes, acceptances,
drafts, money orders or any other evidence of payment or proceeds of the
Collateral which come into the possession of Lender or under Xxxxxx's control.
9.1.2. At such time or times upon or after the occurrence of an
Event of Default as Lender or its agent in its sole discretion may determine:
(i) settle, adjust, compromise, discharge or release any Collateral or any legal
proceedings brought to collect any of the Collateral; (ii) sell or assign any of
the Collateral upon such terms, for such amounts and at such time or times as
Lender deems advisable and, at Lender's option, with all warranties regarding
the Collateral disclaimed; (iii) take control, in any manner, of any item of
payment or proceeds relating to any Collateral; (iv) prepare, file and sign
Borrowers' name to any notice of lien, assignment or satisfaction of lien or
similar document in connection with any of the Collateral; (v) receive, open and
dispose of all mail addressed to Borrowers and to notify postal authorities to
change the address for delivery thereof to such address as Lender may designate;
(vi) endorse the name of Borrowers upon any of the items of payment or proceeds
relating to any Collateral and deposit the same to the account of Lender on
account of the Obligations; (vii) endorse the name of Borrowers upon any chattel
paper, document, instrument, invoice, freight bill, bill of lading or similar
document or agreement relating to the Collateral; (viii) use the information
recorded on or contained in any data processing equipment and computer hardware
and software relating to the Collateral; (ix) make and adjust claims under
policies of insurance; and (x) do all other acts and things necessary, in
Xxxxxx's determination, to fulfill Borrowers' obligations under this Agreement.
9.2. Indemnity. Each Borrower hereby agrees to indemnify Lender, its
affiliates and its directors, officers, employees, attorneys and agents from and
hold each of them harmless from and against any liability, loss, damage, suit,
action or proceeding ever suffered or incurred any of them (including reasonable
attorneys fees and legal expenses) as the result of Borrowers' failure to
observe, perform or discharge Borrowers' duties hereunder or under any of the
Loan Documents or the transactions contemplated thereby. In addition, Borrowers
shall defend Lender, its affiliates and its directors, officers, employees,
attorneys and agents from, against and save them harmless from all claims of any
Person with respect to the Collateral or under any of the Loan Documents or the
transactions contemplated thereby. Notwithstanding any contrary provision in
this Agreement, the obligation of Borrowers under this Section 9.2 shall survive
the payment in full of the Obligations and the termination of this Agreement.
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9.3. Modification of Agreement; Sale of Interest. This Agreement may not
be modified, altered or amended, except by an agreement in writing signed by
Xxxxxxxxx and Xxxxxx. Borrowers may not sell, assign or transfer any interest in
this Agreement, any of the other Loan Documents, or any of the Obligations, or
any portion thereof, including, without limitation, Borrowers' rights, title,
interests, remedies, powers, and duties hereunder or thereunder. Borrowers
hereby consent to Xxxxxx's participation, sale, assignment, transfer or other
disposition, at any time or times hereafter, of this Agreement and any of the
other Loan Documents, or of any portion hereof or thereof, including, without
limitation, Xxxxxx's rights, title, interests, remedies, powers, and duties
hereunder or thereunder. In the case of an assignment, the assignee shall have,
to the extent of such assignment, the same rights, benefits and obligations as
it would if it were "Lender" hereunder and Xxxxxx shall be relieved of all
obligations hereunder upon any such assignments. Borrowers agree that they will
use their best efforts to assist and cooperate with Xxxxxx in any manner
reasonably requested by Xxxxxx to effect the sale of participations in or
assignments of any of the Loan Documents or any portion thereof or interest
therein, including, without limitation, assisting in the preparation of
appropriate disclosure documents. Borrowers further agree that Xxxxxx may
disclose credit information regarding Borrowers or any of their Subsidiaries and
any Guarantor to any potential participant or assignee, provided that Lender
receives from any such potential participant or assignee a confidentiality
agreement containing customary terms and conditions.
9.4. Severability. Wherever 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 only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
9.5. Successors and Assigns. This Agreement, the Other Agreements and the
Security Documents shall be binding upon and inure to the benefit of the
successors and assigns of Borrowers and Lender permitted under Section 11.3
hereof.
9.6. Cumulative Effect; Conflict of Terms. The provisions of the Other
Agreements and the Security Documents are hereby made cumulative with the
provisions of this Agreement. Except as otherwise provided in any of the other
Loan Documents by specific reference to the applicable provision of this
Agreement, if any provision contained in this Agreement is in direct conflict
with, or inconsistent with, any provision in any of the other Loan Documents,
the provision contained in this Agreement shall govern and control.
9.7. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the
same instrument.
9.8. Notice. Except as otherwise provided herein, all notices, requests
and demands to or upon a party hereto, to be effective, shall be in writing and
shall be sent by certified or registered mail, return receipt requested, by
personal delivery against receipt, by overnight courier or by facsimile and,
unless otherwise expressly provided herein, shall be deemed to have
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been validly served, given or delivered immediately when delivered against
receipt, one Business Day after deposit in the mail, postage prepaid, or with an
overnight courier or, in the case of facsimile notice, when sent, addressed as
follows:
If to Lender: Fleet Capital Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx,
Senior Vice President
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxxxx Israels LLP
One Financial Center
Boston, Massachusetts 02111
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Borrowers: c/o United Natural Foods, Inc.
000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Chief Financial
Officer
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxxxxx LLP
00 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address as each party may designate for itself by notice given
in accordance with this Section 9.8.
9.9. Xxxxxx's Consent. Whenever Xxxxxx's consent is required to be
obtained under this Agreement, any of the Other Agreements or any of the
Security Documents as a condition to any action, inaction, condition or event,
Lender shall be authorized to give or withhold such consent in its sole and
absolute discretion and to condition its consent upon the giving of additional
collateral security for the Obligations, the payment of money or any other
matter. Notwithstanding the foregoing, Lender shall not unreasonably withhold
its consent in connection with Section 6.2.1.
9.10. Credit Inquiries. Borrowers hereby authorize and permit Xxxxxx to
respond to usual and customary credit inquiries from third parties concerning
Borrowers or any of their Subsidiaries or any Guarantor.
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9.11. Joint and Several Liability. All Loans made or issued hereunder are
made to or for the benefit of each of the Borrowers. The Borrowers are jointly
and severally, directly and primarily liable for the full and indefeasible
payment when due and performance of all Obligations and for the prompt and full
payment and performance of all of the promises, covenants, representations, and
warranties made or undertaken by each Borrower under this Agreement and the Loan
Documents and Borrowers agree that such liability is independent of the duties,
obligations, and liabilities of each of the joint and several Borrowers. In
furtherance of the foregoing, each Borrower jointly and severally, absolutely
and unconditionally guaranties to Lender and agrees to be liable for the full
and indefeasible payment and performance when due of all the Obligations. This
guarantee is a continuing guarantee, and shall apply to all Obligations whenever
arising.
9.12. Suretyship Waivers and Consents.
(i) Each Borrower acknowledges that the obligations of such Borrower
undertaken herein might be construed to consist, at least in part, of the
guaranty of obligations of persons other than such Borrower (including the other
Borrowers) and, in full recognition of that fact, each Borrower consents and
agrees that Lender may, at any time and from time to time, without notice or
demand (except as provided in and in accordance with the terms of this
Agreement), whether before or after any actual or purported termination,
repudiation or revocation of this Agreement by any Borrower, and without
affecting the enforceability or continuing effectiveness hereof as to each
Borrower: (a) increase, extend, or otherwise change the time for payment or the
terms of the Obligations or any part thereof; (b) supplement, restate, modify,
amend, increase, decrease, or waive, or enter into or give any agreement,
approval or consent with respect to, the Obligations or any part thereof, this
Agreement, or any of the Loan Documents or any additional security or
guarantees, or any condition, covenant, default, remedy, right, representation,
or term thereof or thereunder; (c) accept new or additional instruments,
documents, or agreements in exchange for or relative to any of the Loan
Documents or the Obligations or any part thereof; (d) accept partial payments on
the Obligations; (e) receive and hold additional security or guarantees for the
Obligations or any part thereof; (f) release, reconvey, terminate, waive,
abandon, fail to perfect, subordinate, exchange, substitute, transfer, or
enforce any Collateral, security or guarantees, and apply any Collateral or
security and direct the order or manner of sale thereof as Lender in its sole
and absolute discretion may determine; (g) release any Person from any personal
liability with respect to the Obligations or any part thereof; (h) settle,
release on terms satisfactory to Lender or by operation of applicable laws or
otherwise liquidate or enforce any Obligations and any Collateral or security
therefor or guaranty thereof in any manner, consent to the transfer of any
Collateral or security and bid and purchase at any sale; or (i) consent to the
merger, change, or any other restructuring or termination of the corporate or
partnership existence of any Borrower, and correspondingly restructure the
Obligations, and any such merger, change, restructuring, or termination shall
not affect the liability of any Borrower or the continuing effectiveness hereof,
or the enforceability hereof with respect to all or any part of the Obligations.
(ii) Lender may enforce this Agreement independently as to each
Borrower and independently of any other remedy or security Lender at any time
may have or hold in connection with the Obligations, and it shall not be
necessary for Lender to marshal assets in
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favor of any Borrower or to proceed upon or against or exhaust any Collateral or
security or remedy before proceeding to enforce this Agreement. Each Borrower
expressly waives any right to require Lender to marshal assets in favor of any
Borrower or any guarantor of the Obligations or to proceed against any other
Borrower, and agrees that Xxxxxx may proceed against Borrowers or any Collateral
in such order as Lender shall determine in its sole and absolute discretion.
(iii) Lender may file a separate action or actions against any
Borrower, whether such action is brought or prosecuted with respect to any
security or against any guarantor of the Obligations, or whether any other
person is joined in any such action or actions. Each Borrower agrees that Lender
and each Borrower and any affiliate of any Borrower may deal with each other in
connection with the Obligations or otherwise, or alter any contracts or
agreements now or hereafter existing between any of them, in any manner
whatsoever, all without in any way altering or affecting the continuing
enforceability of this Agreement. Each Borrower, as a joint and several Borrower
hereunder, expressly waives the benefit of any statute of limitations affecting
its joint and several liability hereunder or the enforcement of the Obligations
or any rights of Xxxxxx created or granted herein.
(iv) Xxxxxx's rights hereunder shall be reinstated and revived, and
the enforceability of this Agreement shall continue, with respect to any amount
at any time paid on account of the Obligations which thereafter shall be
required to be restored or returned by Lender, all as though such amount had not
been paid. The rights of Lender created or granted herein and the enforceability
of this Agreement at all times shall remain effective to cover the full amount
of all the Obligations even though the Obligations, including any part thereof
or any Collateral, other security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against any Borrower and whether or
not any Borrower shall have any personal liability with respect thereto.
(v) Each Borrower expressly waives any and all defenses now or
hereafter arising or asserted by reason of (a) any disability or other defense
of any other Borrower with respect to the Obligations; (b) the unenforceability
or invalidity of any security or guaranty for the Obligations or the lack of
perfection or continuing perfection or failure of priority of any security for
the Obligations; (c) the cessation for any cause whatsoever of the liability of
any Borrower (other than by reason of the full payment and performance of all
Obligations as required herein); (d) any failure of Lender to xxxxxxxx assets in
favor of any Borrower; (e) any failure of Lender to give notice to any Borrower
of sale or other disposition of Collateral of another Borrower or any defect in
any notice that may be given in connection with any such sale or disposition of
Collateral of any Borrower securing the Obligations; (f) any failure of Lender
to comply with applicable law in connection with the sale or other disposition
of any Collateral or other security of any Borrower, for any Obligation,
including any failure of Lender to conduct a commercially reasonable sale or
other disposition of any Collateral or other security of any Borrower for any
Obligation; (g) any act or omission of Lender or others that directly or
indirectly results in or aids the discharge or release of any Borrower or the
Obligations of any Borrower or any security or guaranty therefor by operation of
law or otherwise; (h) any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation; (i) any failure of Lender to file or
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enforce a claim in any bankruptcy or other proceeding with respect to any
Borrower; (j) the avoidance of any lien or security interest in assets of any
Borrower in favor of Lender for any reason; or (k) any action taken by Lender
that is authorized by this section or any other provision of any Loan Document.
Until such time, if any, as all of the Obligations have been indefeasibly paid
and performed in full and no portion of any commitment of Lender to Borrowers
under any Loan Document remains in effect, each Borrowers' indebtedness, claims
and rights of subrogation, contribution, reimbursement, or indemnity against the
other Borrowers shall be fully and completely subordinated to the indefeasible
repayment in full of the Obligations, and each Borrower expressly waives until
such indefeasible payment any right to enforce any remedy that it now has or
hereafter may have against any other Person and waives the benefit of, or any
right to participate in, any Collateral now or hereafter held by Xxxxxx.
(vi) To the fullest extent permitted by applicable law, each
Borrower expressly waives and agrees not to assert, any and all defenses in its
favor based upon an election of remedies by Xxxxxx which destroys, diminishes,
or affects such Borrower's subrogation rights against the other Borrowers, or
against any Guarantor, and/or (except as explicitly provided for herein) any
rights to proceed against each other Borrower, or any other party liable to
Lender, for reimbursement, contribution, indemnity, or otherwise.
(vii) Borrowers and each of them warrant and agree that each of the
waivers and consents set forth herein are made after consultation with legal
counsel and with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy, or otherwise adversely affect rights which Borrowers
otherwise may have against each other, Lender, or others, or against Collateral,
and that, under the circumstances, the waivers and consents herein given are
reasonable and not contrary to public policy or law. If any of the waivers or
consents herein are determined to be contrary to any applicable law or public
policy, such waivers and consents shall be effective to the maximum extent
permitted by law.
9.13. Time of Essence. Time is of the essence of this Agreement, the Other
Agreements and the Security Documents.
9.14. Entire Agreement. This Agreement and the other Loan Documents,
together with all other instruments, agreements and certificates executed by the
parties in connection therewith or with reference thereto, embody the entire
understanding and agreement between the parties hereto and thereto with respect
to the subject matter hereof and thereof and supersede all prior agreements,
understandings and inducements, whether express or implied, oral or written.
9.15. Interpretation. No provision of this Agreement or any of the other
Loan Documents shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured or dictated such
provision.
9.16 GOVERNING LAW; CONSENT TO FORUM. THIS AGREEMENT HAS BEEN NEGOTIATED,
EXECUTED AND DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN HARTFORD,
CONNECTICUT. THIS
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AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CONNECTICUT; PROVIDED, HOWEVER, THAT IF ANY OF THE COLLATERAL SHALL BE
LOCATED IN ANY JURISDICTION OTHER THAN CONNECTICUT, THE LAWS OF SUCH
JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR FORECLOSURE OF
XXXXXX'S LIEN UPON SUCH COLLATERAL AND THE ENFORCEMENT OF LENDER'S OTHER
REMEDIES IN RESPECT OF SUCH COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH
JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF CONNECTICUT. AS
PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT
OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF BORROWERS OR LENDER,
BORROWERS HEREBY CONSENT AND AGREE THAT THE SUPERIOR COURT OF HARTFORD,
CONNECTICUT, OR, AT XXXXXX'S OPTION, THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES BETWEEN BORROWERS AND LENDER PERTAINING TO THIS AGREEMENT
OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. BORROWERS
EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND BORROWERS HEREBY WAIVE ANY OBJECTION WHICH
BORROWERS MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. BORROWERS HEREBY WAIVE
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWERS AT
THE ADDRESS SET FORTH IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF BORROWERS' ACTUAL RECEIPT THEREOF OR THREE (3)
DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF LENDER TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE
TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER
APPROPRIATE FORUM OR JURISDICTION.
9.17. WAIVERS BY BORROWERS. BORROWERS WAIVE (i) THE RIGHT TO TRIAL BY JURY
(WHICH XXXXXX XXXXXX ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND
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ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE
COLLATERAL; (ii) PRESENTMENT, DEMAND AND PROTEST AND NOTICE OF PRESENTMENT,
PROTEST, DEFAULT, NON PAYMENT, MATURITY, RELEASE, COMPROMISE, SETTLEMENT,
EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER, ACCOUNTS, CONTRACT RIGHTS,
DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND GUARANTIES AT ANY TIME HELD BY LENDER
ON WHICH BORROWERS MAY IN ANY WAY BE LIABLE AND HEREBY RATIFY AND CONFIRM
WHATEVER LENDER MAY DO IN THIS REGARD; (iii) NOTICE PRIOR TO TAKING POSSESSION
OR CONTROL OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY
ANY COURT PRIOR TO ALLOWING LENDER TO EXERCISE ANY OF XXXXXX'S REMEDIES; (iv)
THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION LAWS; (v) NOTICE OF
ACCEPTANCE HEREOF; AND (VI) EXCEPT AS PROHIBITED BY LAW, ANY RIGHT TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWERS ACKNOWLEDGE THAT THE
FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO XXXXXX'S ENTERING INTO THIS
AGREEMENT AND THAT XXXXXX IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE
DEALINGS WITH BORROWERS. XXXXXXXXX WARRANT AND REPRESENT THAT THEY HAVE REVIEWED
THE FOREGOING WAIVERS WITH THEIR LEGAL COUNSEL AND HAVE KNOWINGLY AND
VOLUNTARILY WAIVED THEIR JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
9.18. PREJUDGMENT REMEDIES. EACH BORROWER HEREBY WAIVES SUCH RIGHTS AS IT
MAY HAVE TO NOTICE AND/OR HEARING UNDER ANY APPLICABLE FEDERAL OR STATE LAWS
INCLUDING, WITHOUT LIMITATION, CONNECTICUT GENERAL STATUTES SECTIONS 52-278A,
ET-SEQ., AS AMENDED, PERTAINING TO THE EXERCISE BY LENDER OF SUCH RIGHTS AS THE
LENDER MAY HAVE INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK PREJUDGMENT
REMEDIES AND/OR DEPRIVE BORROWERS OF OR AFFECT THE USE OF OR POSSESSION OR
ENJOYMENT OF BORROWERS' PROPERTY PRIOR TO THE RENDITION OF A FINAL JUDGMENT
AGAINST A BORROWER. EACH BORROWER FURTHER WAIVES ANY RIGHT IT MAY HAVE TO
REQUIRE LENDER TO PROVIDE A BOND OR OTHER SECURITY AS A PRECONDITION TO OR IN
CONNECTION WITH ANY PREJUDGMENT REMEDY SOUGHT BY LENDER.
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IN WITNESS WHEREOF, this Agreement has been duly executed in Hartford,
Connecticut, on the day and year specified at the beginning of this Agreement.
WITNESS/ATTEST: UNITED NATURAL FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
WITNESS/ATTEST: STOW XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
WITNESS/ATTEST: UNITED NATURAL FOODS
PENNSYLVANIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
WITNESS/ATTEST: XXXXXX'S ORGANICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Xxx X. Xxxxxx
----------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
Notice Address
and Applicable
Lending Office: 000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
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APPENDIX A
GENERAL DEFINITIONS
When used in the Loan Agreement dated as of April 30, 2003, by and among
United Natural Foods, Inc., Stow Xxxxx, Inc., Xxxxxx's Organics, Inc. and United
Natural Foods Pennsylvania, Inc. (the "Borrower" or "Borrowers"), and Fleet
Capital Corporation (the "Lender"). The following terms shall have the following
meanings (terms defined in the singular to have the same meaning when used in
the plural and vice versa):
Affiliate - a Person (other than a Subsidiary): (i) which directly
or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, a Person; (ii) which
beneficially owns or holds five percent (5%) or more of any class of the
Voting Stock of a Person; or (iii) five percent (5%) or more of the Voting
Stock (or in the case of a Person which is not a corporation, five percent
(5%) or more of the equity interest) of which is beneficially owned or
held by a Person or a Subsidiary of a Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession , directly or
indirectly, of power to direct or cause the direction of management or
policies whether through ownership of securities or other ownership
interests of the Borrowers by contract or otherwise.
Agreement - the Loan Agreement referred to in the first sentence of
this Appendix A, all Exhibits and Schedules thereto and this Appendix A.
Applicable Libor Margin - One and 50/100 (1.50%) percent.
Assignments of Leases and Rents -the Assignments of Leases and Rents
relating to the Real Property which are to be executed and delivered by
Borrower pursuant to Section 4.1 hereof.
Bank - Fleet National Bank.
Base Rate - the rate of interest announced or quoted by Bank from
time to time as its prime rate for commercial loans, whether or not such
rate is the lowest rate charged by Bank to its most preferred borrowers;
and, if such prime rate for commercial loans is discontinued by Bank as a
standard, a comparable reference rate designated by Bank as a substitute
therefor shall be the Base Rate.
Base Rate Advances - any amount outstanding under the Term Loan
bearing interest computed by reference to the Base Rate.
Business Day - any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of Connecticut or is a day
on which banking institutions located in such state are closed.
Capital Expenditures - expenditures made or liabilities incurred for
the acquisition of any fixed assets or improvements, replacements,
substitutions or additions thereto which have a useful life of more than
one year, including the total principal portion of Capitalized Lease
Obligations.
Capitalized Lease Obligation - any Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
Closing Date - the date on which all of the conditions precedent in
Section 7 of the Agreement are satisfied and the initial Loan made under
the Agreement.
Collateral - collectively all property now or hereafter pledged,
mortgaged, assigned, hypothecated or otherwise provided to the Lender as
collateral security for the Obligations evidenced by the Loan Documents,
whether to secure the Term Note, any Guaranty, this Agreement, or any
other instrument, indebtedness or undertaking.
Consolidated - the consolidation in accordance with GAAP of the
accounts or other items as to which such term applies.
Contract Right - any right of Borrowers to payment under a contract
for the sale or lease of goods or the rendering of services, which right
is at the time not yet earned by performance.
Current Assets - at any date means the amount at which all of the
current assets of a Person would be properly classified as current assets
shown on a balance sheet at such date in accordance with GAAP.
Current Liabilities - at any date means the amount at which all of
the current liabilities of a Person would be properly classified as
current liabilities shown on a balance sheet at such date in accordance
with GAAP.
Default - an event or condition the occurrence of which would, with
the lapse of time or the giving of notice, or both, become an Event of
Default.
Default Rate - as defined in subsection 2.1.2 of the Agreement.
Distribution - in respect of any corporation means and includes: (i)
the payment of any dividends or other distributions on capital stock of
the corporation (except distributions in such stock) and (ii) the
redemption or acquisition of Securities unless made contemporaneously from
the net proceeds of the sale of Securities.
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EBITDA - with respect to any fiscal period, the sum of Borrowers'
Consolidated net earnings (or loss) before interest expense, taxes
depreciation and amortization for said period as determined in accordance
with GAAP.
Environmental Indemnity - an Environmental Indemnity dated of even
date herewith given by Xxxxxxxx and Guarantors to Lender.
Environmental Laws - all federal, state and local laws, rules,
regulations, ordinances, programs, permits, guidances, orders and consent
decrees relating to health, safety and environmental matters.
ERISA - the Employee Retirement Income Security Act of 1974, as
amended, and all rules and regulations from time to time promulgated
thereunder.
Event of Default - as defined in Section 8.1 of the Agreement.
FCC - Fleet Capital Corporation.
Fixed Charge Coverage Ratio - for the applicable calculation period
of the Borrowers, on a Consolidated basis, that quotient equal to (A) the
sum of (i) EBITDA, less (ii) the sum of taxes paid and nonfinanced Capital
Expenditures made during such period, divided by (B) the sum of (i)
interest payments on any Indebtedness for Money Borrowed and (ii)
scheduled principal payments and prepayments on Indebtedness for Money
Borrowed for such period, determined in accordance with GAAP.
Fixture - has the meaning assigned thereto under the UCC.
GAAP - generally accepted accounting principles in the United States
of America in effect from time to time.
Guarantors - Mountain People's Warehouse Incorporated, a California
corporation, Nutrasource, Inc., a Washington corporation, Rainbow Natural
Foods, Inc., a Colorado corporation, United Northeast, LLC, a Delaware
limited liability company, Natural Retail Group, Inc., a Delaware
corporation, and United Natural Trading Co., a Delaware corporation and
any other Person who may hereafter guarantee payment or performance of the
whole or any part of the Obligations.
Guaranty Agreements - the Continuing Guaranty Agreements which are
to be executed by each Guarantor in form and substance satisfactory to
Lenders.
Indebtedness - as applied to a Person means, without duplication
(i) all items which in accordance with GAAP would be
included in determining total liabilities as shown on the liability
side of a balance
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sheet of such Person as at the date as of which Indebtedness is to
be determined, including, without limitation, Capitalized Lease
Obligations,
(ii) all obligations of other Persons which such Person
has guaranteed,
(iii) all reimbursement obligations in connection with
letters of credit or letter of credit guaranties issued for the
account of such Person, and
(iv) in the case of Borrowers (without duplication), the
Obligations.
Intercreditor Agreement - agreement entered into on or about the
date hereof by and among the Lender and Fleet Capital Corporation, as
Agent, for itself and the other lenders parties to the Working Capital
Facility.
Interest Expense - with respect to any fiscal period, the interest
expense incurred for such period as determined in accordance with GAAP.
Interest Period - as applicable to any LIBOR Advance, a period
commencing on the date a LIBOR Advance is made, and ending on the date
which is one (1) month later; provided that any Interest Period which
would otherwise end on a day which is not a Business Day shall end in the
next preceding or succeeding Business Day as is such Lender's custom in
the market to which the Interest Period applicable to such LIBOR Advance
relates.
LIBOR - as applicable to any LIBOR Advance, the rate per annum
(rounded upward, if necessary, to the nearest 1/32 of one percent) as
determined on the basis of the offered rates for deposits in U.S. dollars,
for a period of time comparable to the Interest Period applicable to such
LIBOR Advance which appears on the Telerate page 3750 as of 11:00 a.m.
(London time) on the day that is two (2) London Banking Days preceding the
first day of such LIBOR Advance; provided, however, if the rate described
above does not appear on the Telerate System on any applicable interest
determination date, the LIBOR rate shall be the rate (rounded upwards as
described above, if necessary) for deposits in U.S. dollars for a period
substantially equal to the interest period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO Page on that service for the
purpose of displaying such rates), as of 11:00 a.m. (London Time), on the
day that is two (2) London Banking Days prior to the beginning of such
Interest Period. If both the Telerate and Reuters systems are unavailable,
then the rate for that date will be determined on the basis of the offered
rates for deposits in U.S. dollars for a period of time comparable to such
LIBOR Advance which are offered by four (4) major banks in the London
interbank market at approximately 11:00 a.m. (London time), on the day
that is two (2) London Banking Days preceding the first day of such LIBOR
Advance as selected by Xxxxxx. The principal London office of each of the
major London Banks so selected will be requested to provide a quotation of
its U.S. dollar deposit offered rate. If
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at least two (2) such quotations are provided, the rate for that date will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. dollars to leading European
banks for a period of time comparable to such LIBOR Advance offered by
major banks in New York City at approximately 11:00 a.m. (New York City
time), on the day that is two (2) London Banking Days preceding the first
day of such LIBOR Advance. In the event that Xxxxxx is unable to obtain
any such quotation as provided above, it will be determined that LIBOR
pursuant to a LIBOR Advance cannot be determined. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Bank then for any period
during which such Reserve Percentage shall apply, LIBOR shall be equal to
the amount determined above divided by an amount equal to 1 minus the
Reserve Percentage.
LIBOR Advance - any amount outstanding under the Term Loan bearing
interest computed by reference to LIBOR.
Lien - any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such
interest is based on common law, statute or contract. The term "Lien"
shall also include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting Property. For the purpose of the
Agreement, Borrowers shall be deemed to be the owner of any Property which
they have acquired or hold subject to a conditional sale agreement or
other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
Loan Account - the loan account established on the books of Lender
pursuant to Section 3.6 of the Agreement.
Loan Documents - the Agreement, the Other Agreements and the
Security Documents.
Loan(s) - all loans and advances of any kind made by Xxxxxx, and/or
by any affiliates of Lender, pursuant to the Agreement.
London Banking Day - any date on which commercial banks are open for
business in London, England.
Maturity Date - May 1, 2010.
Money Borrowed - means (i) Indebtedness arising from the lending of
money by any Person to Borrowers; (ii) Indebtedness, whether or not in any
such case arising from the lending by any Person of money to Borrowers,
(A) which is represented by notes payable or drafts accepted that evidence
extensions of credit, (B) which constitutes obligations evidenced by
bonds, debentures, notes or similar instruments, or (C) upon
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which interest charges are customarily paid (other than accounts payable)
or that was issued or assumed as full or partial payment for Property;
(iii) Indebtedness that constitutes a Capitalized Lease Obligation; (iv)
reimbursement obligations with respect to letters of credit or guaranties
of letters of credit and (v) Indebtedness of Borrowers under any guaranty
of obligations that would constitute Indebtedness for Money Borrowed under
clauses (i) through (iii) hereof, if owed directly by Borrowers.
Mortgages - the Mortgage and Security Agreements and Deed of Trust
and Security Agreements which are to be executed and delivered by
Borrowers and Guarantors pursuant to Section 4.1 hereof to secure the
Obligations, in form and substance satisfactory to the Lender.
Multiemployer Plan - has the meaning set forth in Section 4001(a)(3)
of ERISA.
Net Worth - the shareholder's equity of a Person as determined in
accordance with GAAP.
NRG - Natural Retail Group, Inc.
Obligations - all Loans and all other advances, debts, liabilities,
obligations, covenants and duties, together with all interest, fees and
other charges thereon, owing, arising, due or payable from Borrowers to
Lender of any kind or nature, present or future, whether or not evidenced
by any note, guaranty or other instrument, whether arising under the
Agreement or any of the other Loan Documents or otherwise whether direct
or indirect (including those arising out of the provision by Fleet
National Bank of a swap interest rate arrangement for any of the
Borrowers, specifically relating to the Term Loan), absolute or
contingent, primary or secondary, due or to become due, now existing or
hereafter arising and however acquired. Notwithstanding the foregoing,
Obligations shall not include the Working Capital Facility.
Organizational I.D. Number - with respect to Borrowers, the
organizational identification number assigned to Borrowers by the
applicable governmental unit or agency of the jurisdiction of organization
of Borrowers.
Other Agreements - any and all agreements, instruments and documents
(other than the Agreement and the Security Documents), heretofore, now or
hereafter executed by Xxxxxxxx, any Subsidiary of Borrower or any other
third party and delivered to Lender in respect of the transactions
contemplated by the Agreement.
Participant - each Person who shall be granted the right by the
Lender to participate in the Loan described in the Agreement and who shall
have entered into a participation agreement in form and substance
satisfactory to such Lender.
Permitted Liens - any Lien of a kind specified in subsection 6.2.5
of the Agreement.
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Permitted Purchase Money Indebtedness - Purchase Money Indebtedness
and Capitalized Lease Obligations of Borrowers incurred after the date
hereof which is secured solely by a Purchase Money Lien.
Person - an individual, partnership, corporation, limited liability
company, joint stock company, land trust, business trust, or
unincorporated organization, or a government (or agency, instrumentally or
political subdivision thereof) and shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of the
Securities and Exchange Act of 1934, as amended.
Plan - an employee benefit plan now or hereafter maintained for
employees of Borrowers that is covered by Title IV of ERISA.
Projections - Each Borrower's forecasted Consolidated and
consolidating (a) balance sheets, (b) profit and loss statements, (c) cash
flow statements, and (d) capitalization statements, all prepared on a
consistent basis with each Borrower's historical financial statements,
together with appropriate supporting details and a statement of underlying
assumptions.
Property - any interest in property of any kind whatsoever, whether
real or personal or mixed and whether tangible or intangible.
Property Income - all revenue derived from the Real Property,
including rental income, if any, but excluding revenue from business
operations of Borrowers thereon.
Purchase Money Indebtedness - means and includes (i) Indebtedness
(other than the Obligations) for the payment of all or any part of the
purchase price of any fixed assets, (ii) any Indebtedness (other than the
Obligations) incurred at the time of or within ten (10) days prior to or
after the acquisition of any fixed assets for the purpose of financing all
or any part of the purchase price thereof, and (iii) any renewals,
extensions or refinancings thereof, but not any increases in the principal
amounts thereof outstanding at the time.
Purchase Money Lien - a Lien upon fixed assets which secures
Purchase Money Indebtedness, but only if such Lien shall at all times be
confined solely to the fixed assets the purchase price of which was
financed through the incurrence of the Purchase Money Indebtedness secured
by such Lien.
Real Property - the land, together with buildings, fixtures and
improvements thereon listed on Exhibit L.
Reportable Event - any of the events set forth in Section 4043(b) of
ERISA.
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Reserve Percentage - the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D of the Board of
Governors of the Federal Reserve System (or any successor) as the same may
be modified or supplemented and in effect from time to time.
Restricted Investment - any investment made in cash or by delivery
of Property to any Person, whether by acquisition of stock, Indebtedness
or other obligation or Security, or by loan, advance or capital
contribution, or otherwise, or in any Property except the following:
(i) investments in one or more Subsidiaries of Borrowers
to the extent existing on the Closing Date;
(ii) Property to be used in the ordinary course of
business;
(iii) Current Assets arising from the sale of goods and
services in the ordinary course of business of Borrowers and their
Subsidiaries;
(iv) investments in direct obligations of the United
States of America, or any agency thereof or obligations guaranteed
by the United States of America, provided that such obligations
mature within one (1) year from the date of acquisition thereof;
(v) investments in certificates of deposit maturing
within one (1) year from the date of acquisition issued by a bank or
trust company organized under the laws of the United States or any
state thereof having capital surplus and undivided profits
aggregating at least $100,000,000; and
(vi) investments in commercial paper given the highest
rating by a national credit rating agency and maturing not more than
270 days from the date of creation thereof.
Security - shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
Security Documents - the Mortgages, the Assignments of Rents and
Leases, the Guaranty Agreements, and all other instruments and agreements
now or at any time hereafter securing the whole or any part of the
Obligations.
Solvent - as to any Person, that such Person (i) owns Property whose
fair saleable value is greater than the amount required to pay all of such
Person's Indebtedness (including contingent debts), (ii) is able to pay
all of its Indebtedness as such Indebtedness matures and (iii) has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage.
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Subordinated Debt - Indebtedness of Borrowers that is subordinated
to the Obligations in a manner satisfactory to Lender.
Subsidiary - any Person of which the Borrower owns, directly or
indirectly through one or more intermediaries, (i) shares of stock having
ordinary voting power to elect a majority of the Board of Directors (or
equivalent governing body) of such Person (irrespective of whether at the
time stock of any other class or classes of such Person shall or might
have voting power upon the occurrence of any contingency); or (ii) more
than 50% of the Voting Stock or any other ownership or equity interest in
such Person; or (iii) controls the management of such Person.
Term Loan - the Loan described in subsection 1.1.1 of the Agreement.
Term Note - the promissory note to be executed by Borrowers on or
about the Closing Date in favor of Lender to evidence the Term Loan, which
shall be in the form of Exhibit A to the Agreement.
Total Credit Facility - $30,000,000.00.
Total Liabilities - at any date means all amounts properly
classified as liabilities on a balance sheet at such date in accordance
with GAAP, plus all reserves for contingencies and all other potential
liabilities for which no reserves have previously been established on such
balance sheet, to the extent such amounts are not already classified as
liabilities in accordance with GAAP.
Type of Organization - with respect to Borrowers, the kind or type
of entity by which each Borrower is organized, such as a corporation or
limited liability company.
UCC - the Uniform Commercial Code as in effect in the State of
Connecticut on the date of this Agreement, as the UCC may be amended or
otherwise modified.
Voting Stock - Securities of any class or classes of a corporation
the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the corporate directors (or Persons
performing similar functions).
Working Capital Facility - Borrowers' $150,000,000.00 working
capital line of credit evidenced by a certain Loan and Security Agreement
dated August 31, 2001 by and among the Borrowers and Lender as Agent for
itself and the other lenders party thereto, as amended.
Other Terms. All other terms contained in the Agreement shall have,
when the context so indicates, the meanings provided for by the UCC to the
extent the same are used or defined therein.
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Certain Matters of Construction. The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to the Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. The section titles, table of contents and
list of exhibits and schedules appear as a matter of convenience only and shall
not affect the interpretation of the Agreement. All references to statutes and
related regulations shall include any amendments of same and any successor
statutes and regulations. All references to any of the Loan Documents shall
include any and all modifications thereto and any and all extensions or renewals
thereof.
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LIST OF EXHIBITS
Exhibit A Term Note
Exhibit B Borrower's and each Subsidiary's Business Locations
Exhibit C Jurisdictions in which Borrower and each Subsidiary is Authorized to
do Business
Exhibit D Capital Structure of Borrower
Exhibit E Corporate Names
Exhibit F Tax Identification Numbers of Subsidiaries
Exhibit G Contracts Restricting Borrower's Right to Incur Debts
Exhibit H Litigation
Exhibit I Real Estate Leases
Exhibit J Compliance Certificate
Exhibit K Permitted Liens
Exhibit L Real Property
Exhibit M Guaranties
